Obando-Segura v. Garland

999 F.3d 190

Jose Andres OBANDO-SEGURA, Petitioner – Appellant,

v.Merrick B. GARLAND, Attorney General; Alejandro N. Mayorkas, Secretary of the Department of Homeland Security; Tae D. Johnson, Acting Director, U.S. Immigration and Customs Enforcement; Dorothy Herrera-Niles, Field Office Director, Enforcement and Removal Operations, U.S. Immigration and Customs Enforcement; Charles Lee, Assistant Field Office Director, Enforcement and Removal Operations, U.S. Immigration Customs Enforcement; Donna Bounds, Warden of Immigration Facility, Worcester County, Respondents – Appellees.

National Immigration Project of the National Lawyers Guild; Legal Aid Justice Center; American Immigration Council; Habeas Corpus and Federal Litigation Scholars, Amici Supporting Petitioner.

No. 19-7736

United States Court of Appeals, Fourth Circuit.

Argued: December 9, 2020

Decided: May 28, 2021

ARGUED: Sean A. Mirski, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C., for Appellant. Jonathan Aaron Robbins, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Adina Appelbaum, Claudia R. Cubas, CAPITAL AREA IMMIGRANTS’ RIGHTS (CAIR) COALITION, Washington, D.C.; R. Stanton Jones, Andrew T. Tutt, ARNOLD & PORTER KAYE SCHOLER LLP, Washington, D.C., for Appellant. Joseph H. Hunt, Assistant Attorney General, Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. Sean Marotta, Jared Crum, Sarah Ruckriegle, HOGAN LOVELLS US LLP, Washington, D.C., for Amici Habeas Corpus and Federal Litigation Scholars. Sirine Shebaya, Cristina Velez, NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, Washington, D.C.; Carmine D. Boccuzzi, Jr., Tapan R. Oza, Aaron Francis, CLEARY GOTTLIEB STEEN & HAMILTON LLP, New York, New York, for Amici National Immigration Project of the National Lawyers Guild, Legal Aid Justice Center, and American Immigration Council.

Before KEENAN and RICHARDSON, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by published opinion. Judge Richardson wrote the majority opinion, in which Senior Judge Traxler joined. Judge Keenan wrote a dissenting opinion.

RICHARDSON, Circuit Judge:

Jose Andres Obando-Segura prevailed on an application for a writ of habeas corpus seeking release from federal immigration detention. He now seeks to recover attorney's fees under the Equal Access to Justice Act. See 28 U.S.C. § 2412. We have held that the Act does not apply to a habeas proceeding seeking release from criminal detention. See O'Brien v. Moore , 395 F.3d 499, 508 (4th Cir. 2005). And today we hold that the same is true for habeas proceedings seeking release from civil detention. Because the Act does not provide a basis for Obando to recover attorney's fees, we affirm the district court's denial.

I. Background

A. Obando's detention and habeas application

Obando legally came to the United States in 2001 with a visa authorizing him to stay for six months. But he stayed well beyond his authorized time. Seven years after he arrived, he was convicted and sentenced to four years in California prison after he was found with a suitcase full of marijuana and a .40 caliber pistol.¹ After his prison term, the Department of Homeland Security began removal proceedings against him based on that conviction. An immigration judge found Obando removable, but he was not deported and was eventually released on bond in 2014.

Two years after his release, Obando was again found removable after he failed to appear at an immigration proceeding. But it turned out that Obando could not appear because he was incarcerated in Maryland for conspiring to distribute marijuana. So the immigration judge reopened the case. After that prison term, Obando was again placed in immigration custody, and again found removable. On appeal, the Board of Immigration Appeals remanded because Obando had submitted a U-visa application.

The remand directed the immigration judge to consider granting Obando a continuance or an administrative closure. When Homeland Security continued to detain Obando, he applied for a writ of habeas corpus, requesting immediate release or a bond hearing. See 28 U.S.C. § 2241. The district court ordered a bond hearing before the immigration judge, who set Obando's bond at $5,000. Obando paid the bond and was again released.

B. Obando's motion for attorney's fees

After being released on bond, Obando filed a motion for attorney's fees under the Equal Access to Justice Act. The Act requires the government to pay attorney's fees to a private party who prevails in "any civil action" against the United States, unless the government's position was substantially justified (or special circumstances make awarding attorney's fees unjust). 28 U.S.C. § 2412(d)(1)(A). The district court rejected his request, relying on our decision in O'Brien , 395 F.3d 499, where we held that a habeas proceeding is not a "civil action" under the Act. Id . at 508. Obando timely appealed and we have jurisdiction to review de novo the Act's interpretation. See 28 U.S.C. § 1291 ; Broaddus v. U.S. Army Corps of Eng'rs , 380 F.3d 162, 165 (4th Cir. 2004).

II. Discussion

The Equal Access to Justice Act, Pub L. No. 96-481, § 204(a), 94 Stat. 2321, 2328 (1980), requires awarding attorney's fees incurred "in any civil action" brought by or against the United States to a private "prevailing party," unless the United States’ position "was substantially justified" or "special circumstances make an award unjust."² The district court held that Obando's habeas proceeding was not a "civil action" under the Act. We agree.

The law is often divided into simple categories: for example, criminal law, where the state imposes punishments, and civil law, which includes basically everything else. Ex parte Tom Tong , 108 U.S. 556, 559–60, 2 S.Ct. 871, 27 L.Ed. 826 (1883) ; see also BLACK'S LAW DICTIONARY 245 (6th ed. 1990) (defining "civil action" as "[i]n general, all types of actions other than criminal proceedings"). But habeas proceedings, for one, do not fit neatly into this dichotomy. The writ of habeas corpus is an ancient and important writ designed to safeguard individual freedom against unlawful custody. Harris v. Nelson , 394 U.S. 286, 290–91, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969) ; THE FEDERALIST No. 83, at 562 (Alexander Hamilton) (J. Cooke ed., 1961) (noting that habeas corpus serves as a bulwark against "arbitrary methods of prosecuting pretended offenses, and arbitrary punishments upon arbitrary convictions"); 3 BLACKSTONE COMMENTARIES 131 (St. G. Tucker ed., 1803) (habeas is "the great and efficacious writ, in all manner of illegal confinement"). Indeed, despite Congress's power to alter most civil actions, the Constitution ensures that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." U.S. Const., Art. I, s 9, cl. 2. So the civil label, as applied to applications seeking the writ of habeas corpus, is "gross and inexact," as habeas corpus proceedings are "unique" and occupy a special place of their own in our system. Harris , 394 U.S. at 293–94, 89 S.Ct. 1082. We must decide whether the writ of habeas corpus falls within the phrase "any civil action" as used in the Act. As we are to construe ambiguous waivers of sovereign immunity narrowly, see Lane v. Pena , 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996), and because the nature of habeas corpus proceedings makes it ambiguous as to whether habeas proceedings fall within that statutory phrase, we find that phrase excludes them. This conclusion is required by precedent.

In O'Brien , 395 F.3d 499, we held that a habeas proceeding was not a "civil action" under the Act. In that case, a criminal defendant sought a writ of habeas corpus under § 2241 challenging his transfer from a halfway house to a federal prison camp. Id. at 500. He prevailed and sought attorney's fees under the Act. Id. at 502.

We began by recognizing that the Act's authorization of attorney's fees against the government was a waiver of sovereign immunity. Id. at 503. And a waiver of sovereign immunity requires an unequivocal statutory expression of congressional intent. Id . (quoting United States v. Williams , 514 U.S. 527, 531, 115 S.Ct. 1611, 131 L.Ed.2d 608 (1995) ). So framed, we asked whether the Act's attorney's-fee authorization in "civil actions" unambiguously covers habeas corpus proceedings. Id . If not, then the Act does not include the required clear statutory waiver and we could not award fees.

In concluding that the Act did not unambiguously cover habeas corpus proceedings, we first noted that the Act does not define "the term ‘civil action,’ and its terms do not explicitly include or exclude habeas corpus proceedings." Id. at 504. We then acknowledged that "courts have, for a long time, categorized habeas cases as ‘civil’ in nature," rather than criminal. Id. But we found that classifying habeas proceedings under this criminal-civil dichotomy "uncomfortable." Id . So instead, we held that a proceeding following an application for the writ of habeas corpus was a "hybrid" proceeding, "unique" and in "a category unto itself"; that is, it failed to fit within the traditional paradigm. Id. at 504–06 ; see also Harris , 394 U.S. at 293–94, 89 S.Ct. 1082 (Calling habeas proceedings "civil" "is gross and inexact. Essentially, the proceeding is unique."); Smith v. Angelone , 111 F.3d 1126, 1130 (4th Cir. 1997) ("Although a habeas proceeding is considered a civil action for some purposes ... it is more accurately regarded as being sui generis .").

This conclusion—that habeas proceedings do not fit neatly within the criminal-civil dichotomy—was supported by cases interpreting similar statutory provisions. O'Brien , 395 F.3d at 506 (discussing, among other cases, Schlanger v. Seamans , 401 U.S. 487, 490 n. 4, 91 S.Ct. 995, 28 L.Ed.2d 251 ...