Vacchio v. Ashcroft

404 F.3d 663

Tullio VACCHIO, Petitioner-Appellant, v. John ASHCROFT, as Attorney General, U.S. Department of Justice, 950 Pennsylvania Avenue, NW, Washington, D.C. 20530-0001; James W. Ziglar, as Commissioner of the Immigration and Naturalization Service, 425 I Street, NW, Room 3260, Washington, D.C., 20536; Jean R. Ouelette, as District Director of the Immigration and Naturalization Service, Portland, Maine District Office, 176 Gannett Drive, South Portland, ME 04106; Jamie Shea, as Lead Detention Officer of the Franklin County Detention Facility, P.O. Box 367, 30 Lincoln Avenue, St. Albans, VT 05478; Robert Norris, as Franklin County Sheriff, P.O. Box 367, St. Albans, VT 05478-0367, Respondents-Appellees.

Docket No. 03-2532.

United States Court of Appeals, Second Circuit.

Argued: December 10, 2004.

Decided: April 18, 2005.

Sandra A. Strempel, Dinse, Knapp & McAndrew, Burlington, VT, for Plaintiff-Appellant.

Carol L. Shea, Chief, Civil Division (David V. Kirby, Assistant United States Attorney, Peter W. Hall, United States Attorney for the District of Vermont, on the brief), United States Attorney's Office for the District of Vermont, Burlington, VT, for Defendant-Appellee.

Before: OAKES, JACOBS, and CABRANES, Circuit Judges.

Judge OAKES concurs in part and dissents in part in a separate opinion.

CABRANES, Circuit Judge.

This case presents a number of complicated issues under the Equal Access to Justice Act, 28 U.S.C. § 2412, ("EAJA"), including a question of first impression in the Courts of Appeals: whether a petition for a writ of habeas corpus challenging an immigration detention qualifies as a "civil action" for the purposes of the EAJA. The EAJA provides that courts shall award fees and other expenses to parties who prevail in civil actions brought by or against the United States unless the position of the Government is substantially justified. 28 U.S.C. § 2412(d)(1)(A). Petitioner Tullio Vacchio ("Vacchio") filed a habeas petition seeking to be released on bail during the pendency of his removal case. A panel of this Court released Vacchio on bail and an Immigration Judge later granted his application for cancellation of removal — a decision the Immigration and Naturalization Service ("INS") did not appeal.¹ Vacchio then petitioned for fees and costs under the EAJA. The District Court denied Vacchio's EAJA petition because it found that he met none of the requirements of the statute — that the case was not a "civil action," that Vacchio was not a "prevailing party," and that the position of the United States was "substantially justified." Although we conclude that the case is a civil action and that Vacchio was a prevailing party, we affirm the judgment of the District Court because the position of the United States was substantially justified.

BACKGROUND

We recount the story of one of those complex immigration proceedings that occur all too frequently, to the embarrassment of all concerned.

Vacchio is a citizen of Italy and permanent resident of this country, and has been here since 1970, when he was 5 years old. In November 2001, he moved from New York to Vermont. Vermont police were notified of Vacchio's move because he was on probation, having twice been convicted in New York, in 1992 and again in 1999, of Criminal Sale of Marihuana in the Fourth Degree, a misdemeanor under New York Penal Law § 221.40. The Vermont police in turn notified the INS of Vacchio's move. On September 7, 2002, the INS detained Vacchio pursuant to 8 U.S.C. § 1226(c), claiming he was removable because he had been twice convicted of a drug offense, and his drug convictions constituted "aggravated felonies."

On September 16, 2002, the Immigration Judge ("IJ") presiding over the removal action heard Vacchio's request for redetermination of his interim detention. The IJ concluded that the misdemeanor marijuana convictions did not constitute aggravated felonies under federal law, and determined that Vacchio was eligible to apply for discretionary relief because he was a long-time permanent resident and had not been convicted of an aggravated felony. The hearing on Vacchio's application for cancellation of removal was scheduled for February 11, 2003.

Later that same day, the IJ conducted a bond hearing and concluded that Vacchio should be released on a $2500 bond during the pendency of his removal case. The IJ based her decision on her determination that Vacchio was not subject to mandatory detention and her findings that Vacchio did not pose a risk to the community and was not likely to flee. The INS did not contest these findings but did contend that Vacchio remained subject to mandatory detention.

The next day, September 17, 2002, the INS filed with the Board of Immigration Appeals ("BIA") a Form EOIR-43 ("Notice of Intent to Appeal Custody Redetermination") and claimed that the filing of this form effectuated an automatic stay of the IJ's order releasing Vacchio on bond.² Consistent with this claim, the INS retained Vacchio in custody. On September 20, 2002, Vacchio filed with the BIA and the IJ an opposition to the INS's claim of an automatic stay of the order releasing him on bond. The BIA would not consider the filing because, while the INS had filed its notice of intent to appeal, it had not yet actually filed the notice of appeal. In turn, on September 30, 2002, the IJ ruled that she had no jurisdiction to consider Vacchio's motion to lift the automatic stay because the INS's filing of the Form EOIR-34 with the BIA deprived her of jurisdiction pending the BIA's decision.

The INS filed a "Notice of Appeal from a Decision of an Immigration Judge" with the BIA on October 4, 2002, claiming that the IJ had no authority to release Vacchio on bond because his convictions qualified as aggravated felonies and detention was thus mandatory.

The IJ held a preliminary hearing regarding the merits of the charges underlying the removal proceedings on October 7, 2002. The IJ sustained the controlled substances charges as a proper basis for removal, but rejected the aggravated felony charge, leaving Vacchio eligible for discretionary relief.

On October 8, 2002, Vacchio filed with the BIA a Motion for Lift of Stay and Affirmance of the IJ's Bond Ruling.³ On November 5, 2002, with no action forthcoming from the BIA, he filed a Petition for Writ of Habeas Corpus in the United States District Court for the District of Vermont, seeking to be released from detention based on his claim that the mandatory detention statute was unconstitutional. The INS opposed the petition, arguing that Vacchio had no chance of avoiding removal because he was an aggravated felon and ineligible for discretionary relief. On December 20, 2002, Judge J. Garvan Murtha found that the habeas petition was premature and dismissed the petition without prejudice. Vacchio then filed a Petition for Writ of Mandamus with the District Court on December 23, 2002, seeking to compel the BIA to rule on the bond appeal.

On January 9, 2003, Vacchio appealed the District Court's dismissal of his habeas petition to this Court. He also requested that he be released from INS custody pending his appeal of the denial of his habeas petition.

On January 16, 2003, more than three months after the INS filed its notice of appeal, the BIA issued a briefing schedule for the bond appeal, directing the parties to file briefs on February 6, 2003. This schedule was meaningless, as the parties had already filed briefs with their initial filings.

On February 5, 2003, a panel of this Court ordered Vacchio released on bail pending appeal from the denial of his habeas petition. Vacchio posted the bond and was released from INS custody that day.

The IJ held a hearing on February 11, 2003, on the merits of Vacchio's application for cancellation of removal. The IJ granted the application and cancelled the removal. The INS chose not to appeal the IJ's decision. Subsequently, on February 21, 2003, the INS filed with the BIA a motion to dismiss the bond appeal in light of the IJ's ruling and advised the BIA that it would not appeal the IJ's decision. The BIA granted the INS's motion. On March 13, 2003, Vacchio moved to dismiss his Second Circuit habeas appeal on grounds of mootness, and requested that we vacate the District Court's decision dismissing the habeas petition. On April 28, we granted the rulings requested.

One month later, on May 28, 2003, Vacchio filed in the District Court a petition for fees and costs under the EAJA based on his attempts to be released on bond pending the ultimate decision on removal. The Court denied the request. That denial is the basis of this appeal.

DISCUSSION

The Equal Access to Justice Act, 28 U.S.C. § 2412, provides, in relevant part:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A) (emphasis added).

Three of these provisions are at issue in this case: first, whether the underlying action is a "civil action" for the purposes of the EAJA; second, whether Vacchio is a "prevailing party" given the disposition of the case; and third, whether the position of the United States was substantially justified. The District Court decided all three issues in favor of the Government. In order to reverse, and grant Vacchio any award, we must decide all three of these issues in his favor. We will examine each of these questions in turn.

A. "Civil Action"

The District Court concluded that Vacchio's habeas...