Atalla v. United States Citizenship and Immigration Services et al

Filing 122

ORDER: Respondents' 121 Motion to Alter or Amend Judgment is denied. See order for complete details. Signed by Judge Neil V Wake on 1/18/12. (NKS)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Petitioner,
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vs.
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John Kramer, District Director of United)
States Citizenship and Immigration)
Services, and United States Citizenship)
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and Immigration Services,
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Respondents.
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Jamal Atalla,

No. CV 09-01610-PHX-NVW
ORDER

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Pending before the Court is Respondents’ Motion to Alter or Amend Judgment

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(Doc. 121). Reconsideration of a prior order is appropriate in very limited circumstances.

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A court should reconsider its ruling if it is presented with newly discovered evidence,

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shown that it committed clear error, or there is an intervening change in controlling law.

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See School Dist. No. 1J, Multnomah County, Or, v. ACandS, Inc., 5 F.3d 1255, 1263 (9th

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Cir. 1993). Respondents do not offer newly discovered evidence or note an intervening

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change in controlling law.

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Respondents request reconsideration of the order granting Petitioner attorneys’

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fees under the Equal Access to Justice Act (“EAJA”). (Doc. 119.) Under the EAJA, the

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government bears the burden of proving the special circumstances or substantial

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justification exceptions to the mandatory award of fees under the EAJA to an eligible

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party. Love v. Reilly, 924 F.2d 1492, 1495 (9th Cir. 1991).

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Respondents contend their litigation position was substantially justified because a

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reasonable person considering the record “as a whole” could conclude Petitioner provided

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false and misleading sworn testimony during his three naturalization interviews. The

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Court made detailed, specific findings of fact regarding Petitioner’s three sworn oral

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statements, including lengthy excerpts from transcripts of the recorded interviews, which

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support its conclusion that Petitioner did not give false sworn oral testimony with the

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subjective intent to obtain an immigration benefit. (Doc. 99 at 10-20.) In their motion for

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reconsideration, Respondents have not identified any clear error in those findings, but

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instead urge reconsideration of whether Petitioner made false written statements on his

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application for naturalization and “played an elaborate game of semantics throughout his

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naturalization proceedings.” This argument was previously presented, considered, and

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rejected.

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Respondents further contend that “USCIS was not so far afield that it deserves to

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pay EAJA fees.” Award of fees under the EAJA is not a sanction imposed on the

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government when it deserves punishment. Rather, the EAJA mandates fee awards unless

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the government proves an exception. Here, it did not.

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Respondents also contend that special circumstances counsel against an award of

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EAJA fees because the USCIS believed Petitioner posed a threat to national security and

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it should be allowed “greater latitude in cases where USCIS is vigorously defending

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against the naturalization of an alien with a nexus to national security.” Respondents

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state that their “litigation position is often driven by third-agency information upon which

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it is not authorized to reveal [or] rely upon in its defense,” leaving them “empty handed”

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when it comes to matters of proof at trial, but they should not be forced to accede to the

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granting of immigration benefits to known or suspected terrorists. Our justice system,

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however, requires courts to make findings based on admitted evidence, not by speculating

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about possible evidence not admitted or even offered. Whether Respondents choose to

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oppose naturalization of an individual based on evidence they cannot or will not reveal is

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a policy decision they are free to make, but their policy decision, without more, does not
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constitute special circumstances making an award unjust under the EAJA. See 28 U.S.C.

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§ 2412(d)(1)(A). Creating a national security exception to the EAJA is the responsibility

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of Congress, not of this Court.

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IT IS THEREFORE ORDERED that Respondents’ Motion to Alter or Amend
Judgment (Doc. 121) is denied.
DATED this 18th day of January, 2012.

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