Ahrary v. Curda et al

Filing 39

ORDER signed by Judge Garland E. Burrell, Jr on 7/18/13 DENYING 30 Motion for Attorney Fees. (Meuleman, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TAHERA AHRARY,
Plaintiff,

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v.

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SUSAN CURDA, Officer in Charge,
Sacramento Office, U.S.
Citizenship and Immigration
Services; ALEJANDRO N. MAYORKAS,
Director, Bureau of Citizenship
and Immigration Services, U.S.
Dept. of Homeland Security;
JANET NAPOLITANO, U.S. Secretary
of Homeland Security; ERIC H.
HOLDER, JR., U.S. Attorney
General; ROBERT S. MUELLER, III,
Director of the Federal Bureau
of Investigation,

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Defendants.
________________________________

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2:11-cv-02992-GEB-EFB
ORDER DENYING ATTORNEY’S FEES

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Plaintiff moves for $6,987.50 in attorney’s fees and costs

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under the Equal Access to Justice Act (“EAJA”), prescribed in 28 U.S.C.

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§ 2412(d). (Pl.’s Mot. for Award of Attorney’s Fees (“Pl.’s Mot.”) ECF

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No. 30, ¶¶ 13, 19.) Plaintiff argues she is entitled to these fees and

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costs since an Order was filed on October 3, 2012, in which Plaintiff

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was granted partial summary judgment and Defendants were directed to

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adjudicate Plaintiff’s Form I-485 Application to Adjust to Permanent

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Resident Status. (Order Granting Pl.’s Mot. for Summ. J. (“Order”), ECF

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No. 28.) Defendants oppose Plaintiff’s motion “on the grounds that both

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the delay in adjudicating the adjustment of status application and the

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government’s litigating position were substantially justified.” (Defs.’

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Opp’n to Pl.’s Mot. (“Defs.’ Opp’n”), ECF No. 36, 1:27–29.)

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I. FACTUAL AND PROCEDURAL BACKGROUND

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Plaintiff

filed

a

Form

I-485

Application

to

Adjust

to

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Permanent Resident Status in January 2011 based on her status as an

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asylee. (Compl. ¶ 11.) Plaintiff’s application was received by U.S.

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Citizenship and Immigration Services (“USCIS”). (Id. ¶ 11; id., Ex. A.)

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Over ten years later, on July 20, 2011, Plaintiff “submitted a letter to

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U.S. Secretary of Homeland Security Janet Napolitano to inquire about

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her

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eventually

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adjudication in abeyance” and that an “exact date for completion of the

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DHS review is not known at this time.” (Id. ¶ 15; id., Ex. D.) Under the

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USCIS directive of March 26, 2008,1 USCIS’s policy was to “withhold

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adjudication of asylee adjustment of status applications where the

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applicant appears to be inadmissible due to provision of material

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support to a Tier III terrorist organization” until “such time as an

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exemption to the terrorism-related ground of inadmissibility (“TRIG”)

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becomes

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adjustment of status application implicated USCIS’s hold policy since

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over thirty years ago Plaintiff supported one of the Mujahideen groups

adjustment

application.”

received

available.”

a

(Id.

response

(Defs.’

¶

15;

stating

Opp’n

id.,
that

3:15—18,

Ex.

D.)

USCIS

4:20—21.)

was

Plaintiff
“holding

Plaintiff’s

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See Memorandum from Jonathan Scharfen, Deputy Dir., U.S.
Citizenship & Immigration Servs., Withholding Adjudication and Review of
Prior Denials of Certain Categories of Cases Involving Association with,
or Provision of Material Support to, Certain Terrorist Organizations or
Other Groups (Mar. 26, 2008) (issuing “this USCIS-wide hold directive”).
.
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in Afghanistan, which was then classified as a Tier III terrorist

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organization under 8 U.S.C. § 1182(a)(3)(B)(vi)(III), and thus subject

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to the material support to terrorism bar codified in 8 U.S.C. §

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1182(a)(3)(B)(iv)(VI)(dd). (Decl. of Julia Doig Wilcox (“Wilcox Decl.”),

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ECF No. 11—2, ¶¶ 13, 14.)

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On November 9, 2011, Plaintiff filed the instant lawsuit

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seeking a declaratory judgment that Defendants’ adjudication delay was

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unreasonable and a writ of mandamus to compel Defendants to adjudicate

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her

decade-old

adjustment

of

status

application.

(Compl.

11:2—9.)

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Plaintiff argued that she “suffered significant mental and emotional

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pain”

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application, among other harms. (Id. ¶ 22; see id. ¶¶ 20, 21; id., Ex.

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H.)

due

to

Defendants’

delay

in

adjudicating

her

Form

I-485

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Defendants argued that their delay in adjudicating Plaintiff’s

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application was “reasonable” and “inure[d] to the benefit” of Plaintiff.

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(Defs.’ Opp’n 4:1, 4:12.) When Plaintiff applied for asylum-based

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adjustment of status, such applications were subject to “an annual

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numerical limitation of 10,000” applications, generating a significant

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backlog. (Wilcox Decl. ¶ 6.)2 Although the annual 10,000 application

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limit was lifted in May 2005,3 USCIS did not complete adjudication of the

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“asylum based adjustment applications that had been affected by the

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numerical limitation” until 2008. (Id. ¶ 7.) In 2008, Plaintiff’s

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application was placed on hold in accordance with USCIS’s agency-wide

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See 8 U.S.C. § 1159(b) (2004) (“Not more than 10,000 of the
refugee admissions authorized . . . in any fiscal year may be made
available . . . to adjust to the status of . . . permanent residence the
status of any alien granted asylum who [meets certain specified
criteria].”)
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See REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (May
11, 2005).
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hold policy, set forth in the March 26 memorandum. (Id. ¶ 12.) USCIS

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classified Plaintiff as “inadmissible” to the United States under 8

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U.S.C. § 1182(a)(3)(i)(I), since Plaintiff “afford[ed] material support”

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to an undesignated Tier III terrorist organization and thus “[e]ngage[d]

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in terrorist activity” under 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(dd).

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(Wilcox Decl. ¶ 14.) However, the Congressional Appropriations Act of

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2008 (“CAA”) granted the Secretary of Homeland Security (“Secretary”)

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expanded

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terrorism-related

discretionary

authority

to

exempt

inadmissability grounds.

applicants

See

§

from

these

1182(d)(3)(B)(i).4

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Interpreting the CAA, USCIS implemented an agency-wide hold policy,

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directing adjudicators to “place on hold any case in which . . . the

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alien

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Secretary” under her newly expanded CAA authority. Ayyoubi v. Holder,

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712 F.3d 387, 389 (8th Cir. 2013). Plaintiff’s application was placed on

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hold in accordance with this policy. (Wilcox Decl. ¶ 30.)

might

benefit

from

future

[TRIG]

exemptions

issued

by

the

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When Defendants filed their final brief in this case, no

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existing TRIG exemption benefitted Plaintiff. (Id. ¶ 25.) Therefore,

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although USCIS had jurisdiction to adjudicate Plaintiff’s adjustment of

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status application under 8 C.F.R. § 245.2(a), USCIS explained that if it

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“were ordered to complete the adjudication of Plaintiff’s application

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for adjustment of status” at that time, Plaintiff’s application “would

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The CAA amended the Immigration and Nationality Act (“INA”) to
allow the Secretary “to make a determination to not apply almost all of
the terrorism-related [inadmissability] provisions under INA section
212(a)(3)(B),” 8 U.S.C. § 1182(a)(3)(B). Memorandum from Michael L.
Aytes, Acting Deputy Dir., U.S. Citizenship & Immigration Servs.,
Implementation of Section 691 of Division J of the Consolidated
Appropriations Act, 2008, and Updated Processing Requirements for
Discretionary Exemptions to Terrorist Activity Inadmissibility Grounds
(July 28, 2008); see Consolidated Appropriations Act of 2008, Pub. L.
No. 110-161, 121 Stat. 2364 (Dec. 26, 2007) (codified as amended at 8
U.S.C. § 1182(d)(3)(B)(i)).
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likely be denied.” (Id. ¶ 30.) Defendants argue that they “reasonably

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believed [USCIS] had the authority to create the hold policy,” that such

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authority derived from the CAA, and that the policy inured to the

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benefit of adjustment of status applicants such as Plaintiff. (Defs.’

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Opp’n 4:20—21.)

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After Defendants filed their final brief opposing Plaintiff’s

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summary judgment motion, the Secretary “signed a new exercise of her

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[TRIG] exemption authority, pursuant to” the authority conferred upon

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her by the CAA. (Id. 4:3—4.) The new exemption prescribes that the bar

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on admissibility for any alien who “engages in terrorist activity” by

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“afford[ing] material support” to a Tier III undesignated terrorist

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organization “shall not apply with respect to an alien . . . who meets

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[certain enumerated] specifications.” Notice of Determination: Exercise

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of Authority Under the Immigration and Nationality Act, 77 Fed. Reg.

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49821 (Aug. 17, 2012).

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After Plaintiff submitted her brief on the new August 2012

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TRIG

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application

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factors—which govern the issuance of the relief sought, and which are

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set forth in Telecommunications Research & Action v. FCC, 750 F.2d 70,

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79—80 (D.C. Cir. 1984)—weigh in Plaintiff’s favor. “On October 15, 2012,

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USCIS favorably adjudicated [Plaintiff’s] application” for adjustment of

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status. (Pl.’s Mot. ¶ 4.) Defendants argue that they were “ultimately

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able to approve [Plaintiff’s] application” because of the new August

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2012 exemption. (Defs.’ Opp’n 4:3—6.)5

exemption,

Defendants

within

sixty

were

days,

ordered
based

on

to
a

adjudicate
finding

Plaintiff’s

that

the

TRAC

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Defendants also contend that they could not grant Plaintiff’s
application for adjustment of status earlier, since no existing
exemption benefitted Plaintiff and exercise of the Secretary’s exemption
(continued...)
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II. LEGAL STANDARD

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Under the EAJA, a party litigating against the United States

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may recover attorney’s fees and costs when: “(1) the plaintiff is the

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prevailing party; (2) the government has not met its burden of showing

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that

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circumstances make an award unjust; and (3) the requested attorney’s

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fees and costs are reasonable.” Perez-Arellano v. Smith, 279 F.3d 791,

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793 (9th Cir. 2002) (citing 28 U.S.C. § 2412(d)(1)(A)). The decision to

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award such fees and costs under the EAJA is within the sound discretion

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of the district court. Pierce v. Underwood, 487 U.S. 552, 563 (1988).

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III. DISCUSSION

its

positions

were

substantially

justified

or

that

special

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Defendants argue they were substantially justified both in

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delaying adjudication of Plaintiff’s application for adjustment of

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status until they could grant Plaintiff’s application and in defending

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this lawsuit in court. (Defs.’ Opp’n 1:26—28.) Plaintiff rejoins that

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“Defendants

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adjudicate an application.” (Pl.’s Reply to Defs.’ Opp’n, ECF No. 37,

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3:8—9.)

cannot

substantially

justify

taking

eleven

years

to

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Under the EAJA, the government bears the burden of showing

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that its actions were “substantially justified,” namely, that it “had a

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reasonable basis [for its actions] both in fact and law.” Pierce, 487

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U.S. at 565. “It may sustain that burden by showing its position is ‘a

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novel but credible extension or interpretation of the law.’” Petition of

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Hill,

775

F.2d

1037,

1042

(9th

Cir.

1985)

(quoting

Hoang

Ha

v.

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(...continued)
authority “generally requires not only a significant investment of
resources from [the agencies involved], but also a significant period of
time.” (Wilcox Decl. ¶ 28.) See generally Singh v. Napolitano, 909 F.
Supp. 2d 1164, 1175 (E.D. Cal. 2012) (collecting cases recognizing the
same).
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Schweiker, 707 F.2d 1104, 1106 (9th Cir. 1983)). Further, “[t]he fact

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that the [g]overnment lost its case on the merits does not create a

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presumption that its position was not substantially justified.” Timms v.

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United States, 742 F.2d 489, 492 (9th Cir. 1984); accord Renee v.

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Duncan, 686 F.3d 1002, 1017 (9th Cir. 2012).

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Here, USCIS’s adjudication delay from 2001 until 2008 was

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substantially justified under § 2412(d)(1)(A). The delay during those

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years was due to the congressionally authorized 10,000 annual numerical

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limitation on asylum-based adjustment of status applications and the

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consequent backlog of such applications. See 8 U.S.C. § 1159(b) (2004).

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Following enactment of the CAA on December 26, 2007, USCIS authorized

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and implemented a policy to withhold adjudication of any application

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that might benefit from the exercise of the Secretary’s greatly expanded

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discretionary

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Defendants’ hold policy was thus “‘a novel but credible extension or

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interpretation’” of the newly enacted CAA. Renee, 686 F.3d at 1017

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(quoting Timms, 742 F.2d at 492). Further, creation of the hold policy

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was reasonable in light of the “substantial discretion in determining

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matters of policy” afforded to the Secretary by the Immigration and

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Nationality Act, id., and the “complex” TRIG statutory scheme. See

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Pottgieser v. Kizer, 906 F.2d 1319, 1324 (9th Cir. 1990) (“If the

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statutory scheme to be considered is complex . . . then [EAJA] fees may

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be denied.”).

authority

under

the

CAA.

(Defs.’

Opp’n

4:20—24.)

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Further, when USCIS took and defended its position, no circuit

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court had examined the reasonableness of USCIS’s hold policy. (Opp’n

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5:8—9.)

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concerning the reasonableness of the adjudication delays due to USCIS’s

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hold policy. Compare, e.g., Khan v. Scharfen, No. 08-1398 SC, 2009 WL

Nor

had

district

courts

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reached

consistent

conclusions

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941574, at *9 (N.D. Cal. Apr. 6, 2009) (“conclud[ing] that the delay in

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adjudication of [p]laintiff’s application for adjustment of status [due

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to USCIS’s hold policy] is reasonable”), and Singh, 909 F. Supp. 2d at

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1177 (same), with Qureshi v. Napolitano, No. C-11-05814-YGR, 2012 WL

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2503828, at *7 (N.D. Cal. June 28, 2012) (determining that the delay in

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adjudicating plaintiff’s application due to USCIS’s hold policy “is

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unreasonable”), and Mugomoke v. Curda, No. 2:10-CV-02166 KJM DAD, 2012

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WL 113800, at *9 (E.D. Cal. Jan. 13, 2012) (same). USCIS thus acted

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“without any guidance from any federal [appellate] court,” and without

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consistent guidance from federal district courts. See Renee, 686 F.3d at

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1018 (finding government’s position substantially justified given “the

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divergent views of federal judges” and the absence of controlling

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precedent); Gonzales v. Free Speech Coal., 408 F.3d 613, 621 (9th Cir.

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2005) (concluding government’s position was substantially justified

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because “‘reasonable minds’ could and did differ”).

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In the absence of clear legal authority, Defendants adopted a

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consistent position to which they adhered throughout, and which did not

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require Plaintiff to undertake complex or lengthy remedial litigation.

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See Spencer v. N.L.R.B., 712 F.2d 539, 559—61 (D.C. Cir. 1983) (listing

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these criteria as indicative of substantially justified government

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positions); see also Le v. Astrue, 529 F.3d 1200, 1201 (9th Cir. 2008)

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(holding government’s position was “nonfrivolous” and thus substantially

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justified

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Defendants’ actions in delaying adjudication of Plaintiff’s adjustment

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of status application for eleven years were unreasonable under the TRAC

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factors, Defendants’ actions in authorizing, implementing, and defending

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the USCIS-wide hold policy were substantially justified under 28 U.S.C.

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§ 2412(d)(1)(A).

in

light

of

the

statutory

8

scheme).

Therefore,

although

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III. CONCLUSION

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Accordingly, Plaintiff’s request for attorney’s fees and costs

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is denied.

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Dated:

July 18, 2013

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GARLAND E. BURRELL, JR.
Senior United States District Judge

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