Tran v. Holder et al

Filing 77

ORDER granting Petitioner's 68 Motion for Attorney Fees in the amount of $14,731.17. Signed by Judge Frederick J Martone on 11/29/2012.(LFIG)

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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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Phuong Dien Dang Tran,
Petitioner,

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vs.

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Eric H. Holder, Jr., et al,
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Respondents.
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No. CV 10-01906-PHX-FJM
ORDER

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The court has before it petitioner’s motion for an award of attorney’s fees (doc. 68),
respondents’ response (doc. 73), and petitioner’s reply (doc. 76).

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Petitioner was born in Saigon, Vietnam. He was admitted to the United States as a

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refugee and eventually became a lawful permanent resident. On March 9, 2009, he filed a

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Form N-400 Application for Naturalization. The application stated that on October 23, 2000,

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petitioner was convicted of aggravated assault. Although the crime carried a presumptive

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3.5 year sentence, petitioner was sentenced to three years probation and one month in the

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county jail.

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The United States Citizenship and Immigration Services (“CIS”) denied the

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naturalization application based on its conclusion that petitioner’s October 2000 conviction

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constituted an aggravated felony making him ineligible to naturalize. Petitioner filed this

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action seeking review of that decision.

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Notwithstanding respondents’ efforts to reopen, reconsider, and then recharacterize

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the basis for the denial of the naturalization application, the nature of the appeal presented

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to us remained unchanged—did CIS err when it denied petitioner’s application based on the

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finding that his October 2000 conviction constituted an aggravated felony making him

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ineligible to naturalize?

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On July 6, 2012, we granted summary judgment in favor of petitioner, holding that

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CIS incorrectly concluded that petitioner lacked good moral character required under 8

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C.F.R. § 316.10(b)(1)(ii) because he was convicted of an aggravated felony. (doc. 65). We

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held that because petitioner was not sentenced to at least one year in prison, his conviction

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did not qualify as an aggravated felony as defined by 8 U.S.C. § 1101(a)(43). The

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government conceded this point. We concluded that CIS erred in denying petitioner’s

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naturalization application on this basis. Therefore, petitioner was unquestionably the

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prevailing party in this appeal.

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Under the Equal Access to Justice Act (“EAJA”), a prevailing party is entitled to

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reimbursement of attorney’s fees incurred in any civil litigation brought by or against the

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United States, “unless the court finds that the position of the United States was substantially

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justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A).

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The government objects to the motion for attorney’s fees arguing that petitioner is not

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a prevailing party “because his success on the sole issue of whether his conviction constitutes

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an aggravated felony, did not result in any enforceable relief.” Response at 2. Because the

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government acknowledges that CIS’s denial of petitioner’s naturalization application on this

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basis was erroneous, it concedes that its position was not substantially justified.

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Nevertheless the government contends that to be a prevailing party, petitioner “must achieve

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a ‘material alteration of the legal relationship between’ the parties,” and the alteration must

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be “judicially sanctioned.” Carbonell v. INS, 429 F.3d 894, 898 (9th Cir. 2005).

Id.

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Here, petitioner received the relief he requested–an order declaring that the denial of

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his application for naturalization on the basis of an aggravated felony was contrary to law.

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This order materially altered the relationship of the parties in that the government is now
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prohibited from denying petitioner’s naturalization application on this basis. It is not

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necessary that petitioner obtain the ultimate relief sought–that of administering the oath of

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citizenship. Petitioner achieved everything he could have achieved within the scope of this

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action. A plaintiff prevails if he “has succeeded on any significant issue in litigation which

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achieved some of the benefit [he] sought in bringing suit.” Tex. State Teachers Ass’n v.

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Garland Indep. Sch. Dist., 489 U.S. 782, 791-92, 109 S. Ct. 1486, 1493 (1989). Here

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petitioner succeeded on the only issue presented in this action. He is thus the prevailing

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party and is entitled to attorney’s fees.

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Petitioner seeks reimbursement for 82.3 hours at a rate of $250 an hour, for a total fee

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award of $20,575. Under the EAJA, attorney’s fees are capped at $125 an hour, plus

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adjustments for cost of living and special factors, including “the limited availability of

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qualified attorneys for the proceedings involved.” Pierce v. Underwood, 487 U.S. 552, 571,

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108 S. Ct. 2541, 2553 (1988). The government has calculated that an annual cost of living

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adjustment results in an average adjusted hourly rate of $179. We agree with the government

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that this case was not complex and thus decline to apply the enhanced hourly rate requested

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by petitioner. Instead, we apply the statutory rate adjusted for cost of living for an hourly

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rate of $179. We approve of the 82.3 hours requested by petitioner and reject the

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government’s argument that the hours should be reduced because of excessive or

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unsupported billing. This case was protracted solely because of the conduct of the

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government.

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IT IS ORDERED GRANTING petitioner’s motion for an award of attorney’s fees
in the amount of $14,731.17 (doc. 68).
DATED this 29th day of November, 2012.

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