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)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Phuong Dien Dang Tran, Petitioner, 10 11 vs. 12 Eric H. Holder, Jr., et al, 13 Respondents. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 10-01906-PHX-FJM ORDER 15 16 17 18 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). 19 Petitioner was born in Saigon, Vietnam. He was admitted to the United States as a 20 refugee and eventually became a lawful permanent resident. On March 9, 2009, he filed a 21 Form N-400 Application for Naturalization. The application stated that on October 23, 2000, 22 petitioner was convicted of aggravated assault. Although the crime carried a presumptive 23 3.5 year sentence, petitioner was sentenced to three years probation and one month in the 24 county jail. 25 The United States Citizenship and Immigration Services (“CIS”) denied the 26 naturalization application based on its conclusion that petitioner’s October 2000 conviction 27 constituted an aggravated felony making him ineligible to naturalize. Petitioner filed this 28 action seeking review of that decision. 1 Notwithstanding respondents’ efforts to reopen, reconsider, and then recharacterize 2 the basis for the denial of the naturalization application, the nature of the appeal presented 3 to us remained unchanged—did CIS err when it denied petitioner’s application based on the 4 finding that his October 2000 conviction constituted an aggravated felony making him 5 ineligible to naturalize? 6 On July 6, 2012, we granted summary judgment in favor of petitioner, holding that 7 CIS incorrectly concluded that petitioner lacked good moral character required under 8 8 C.F.R. § 316.10(b)(1)(ii) because he was convicted of an aggravated felony. (doc. 65). We 9 held that because petitioner was not sentenced to at least one year in prison, his conviction 10 did not qualify as an aggravated felony as defined by 8 U.S.C. § 1101(a)(43). The 11 government conceded this point. We concluded that CIS erred in denying petitioner’s 12 naturalization application on this basis. Therefore, petitioner was unquestionably the 13 prevailing party in this appeal. 14 Under the Equal Access to Justice Act (“EAJA”), a prevailing party is entitled to 15 reimbursement of attorney’s fees incurred in any civil litigation brought by or against the 16 United States, “unless the court finds that the position of the United States was substantially 17 justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). 18 The government objects to the motion for attorney’s fees arguing that petitioner is not 19 a prevailing party “because his success on the sole issue of whether his conviction constitutes 20 an aggravated felony, did not result in any enforceable relief.” Response at 2. Because the 21 government acknowledges that CIS’s denial of petitioner’s naturalization application on this 22 basis was erroneous, it concedes that its position was not substantially justified. 23 Nevertheless the government contends that to be a prevailing party, petitioner “must achieve 24 a ‘material alteration of the legal relationship between’ the parties,” and the alteration must 25 be “judicially sanctioned.” Carbonell v. INS, 429 F.3d 894, 898 (9th Cir. 2005). Id. 26 Here, petitioner received the relief he requested–an order declaring that the denial of 27 his application for naturalization on the basis of an aggravated felony was contrary to law. 28 This order materially altered the relationship of the parties in that the government is now -2- 1 prohibited from denying petitioner’s naturalization application on this basis. It is not 2 necessary that petitioner obtain the ultimate relief sought–that of administering the oath of 3 citizenship. Petitioner achieved everything he could have achieved within the scope of this 4 action. A plaintiff prevails if he “has succeeded on any significant issue in litigation which 5 achieved some of the benefit [he] sought in bringing suit.” Tex. State Teachers Ass’n v. 6 Garland Indep. Sch. Dist., 489 U.S. 782, 791-92, 109 S. Ct. 1486, 1493 (1989). Here 7 petitioner succeeded on the only issue presented in this action. He is thus the prevailing 8 party and is entitled to attorney’s fees. 9 Petitioner seeks reimbursement for 82.3 hours at a rate of $250 an hour, for a total fee 10 award of $20,575. Under the EAJA, attorney’s fees are capped at $125 an hour, plus 11 adjustments for cost of living and special factors, including “the limited availability of 12 qualified attorneys for the proceedings involved.” Pierce v. Underwood, 487 U.S. 552, 571, 13 108 S. Ct. 2541, 2553 (1988). The government has calculated that an annual cost of living 14 adjustment results in an average adjusted hourly rate of $179. We agree with the government 15 that this case was not complex and thus decline to apply the enhanced hourly rate requested 16 by petitioner. Instead, we apply the statutory rate adjusted for cost of living for an hourly 17 rate of $179. We approve of the 82.3 hours requested by petitioner and reject the 18 government’s argument that the hours should be reduced because of excessive or 19 unsupported billing. This case was protracted solely because of the conduct of the 20 government. 21 22 23 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. 24 25 26 27 28 -3-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?