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Fatty v. Nielsen

United States District Court, W.D. Washington, Seattle

May 3, 2019

BENGALLY FATTY, Petitioner,
v.
KIRSTJEN M. NIELSEN, et al., Respondents.

          ORDER GRANTING PETITIONER'S MOTION FOR ATTORNEY FEES

          MARSHA J. PECHMAN, UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court on Petitioner's Motion for Attorney Fees and Costs (Dkt. No. 49). Having reviewed the Motion, the Response (Dkt. No. 54), the Reply (Dkt. No. 55) and all related papers, the Court GRANTS the Motion for Attorney Fees.

         Background

         Petitioner Bengally Fatty, a native and citizen of the Republic of Gambia, entered the United States on a student visa on July 13, 2002. (Dkt. No. 9, ¶ 20.) After Mr. Fatty arrived, he discovered the funding he thought he would receive for school was not available. (Id., ¶ 21.) Desperate for money, Mr. Fatty agreed to work in a Pennsylvania restaurant, where he became the victim of labor trafficking and was held against his will until he was able to escape. (Id., ¶¶ 21-24.) The remainder of Mr. Fatty's long history with United States Immigration and Customs Enforcement (“ICE”) is recounted in detail in his Amended Habeas Petition (Dkt. No. 9) and in the Report and Recommendation (Dkt. No. 27).

         The instant case began when Mr. Fatty was taken into detention by ICE on September 19, 2017. (Id. ¶ 1.) On October 13, 2017 Mr. Fatty filed an immigration habeas petition seeking a bond hearing and judicial stay of removal pending the adjudication of his T (trafficking victim) visa application by U.S. Citizenship and Immigration Services (“USCIS”). (Dkt. No. 9.) Mr. Fatty argued that removal before his T visa application was processed would violate his right to due process, and he brought an Administrative Procedures Act (“APA”) claim alleging that ICE abused its discretion when it denied his administrative request for a stay of removal. (Dkt. No. 9.)

         In a Report and Recommendation filed April 5, 2018, the Honorable Magistrate Judge Brian A. Tsuchida found the Court did not have jurisdiction to stay Mr. Fatty's removal pending adjudication of his T visa because removal fell within the discretionary powers of USCIS. (Dkt. No. 27 at 8-12.) Magistrate Judge Tsuchida then concluded removal prior to adjudication of Mr. Fatty's T visa would not deprive Mr. Fatty of a liberty or property interest. (Id. at 12, 14-20.)

         Rejecting the Report and Recommendation, the Court held that Mr. Fatty had a liberty interest in preventing his removal and faced a risk of erroneous deportation if he was removed before his T visa was adjudicated; the Court granted Mr. Fatty's request for a stay of removal. (Dkt. No. 40 at 4-5.) The Court also found the bona fide determination by USCIS as to Mr. Fatty's T visa application-the initial step in preparing for adjudication-was improperly made in support of the litigation, before completion of Mr. Fatty's background check, and without supplemental information supporting his application. (Id. at 7.) The bona fide determination was therefore “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, ” in violation of the APA. (Id. at 7 (citing 5 U.S.C. § 706(2)(A)).) The Court also ordered Respondents to provide Mr. Fatty with a bond hearing pursuant to Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011) (“Diouf II”). (Dkt. Nos. 30, 33-34.) The bond hearing was held on May 31, 2018. (Dkt. No. 34.)

         Mr. Fatty now seeks attorney fees and costs under the Equal Access to Justice Act (“EAJA”), arguing that Respondents' position in this matter was not substantially justified. (Dkt. No. 49 at 5-8.) Mr. Fatty pursues an enhanced rate for his attorney, Christopher Strawn, asserting that Mr. Strawn's distinctive knowledge and specialized skill were necessary to this case and unavailable elsewhere at the statutory rate. (Id. at 9-11.)

         Discussion

         I. Legal Standard

         The Equal Access to Justice Act (EAJA) provides that in any action brought by or against the United States, “a court shall award to a prevailing party other than the United States fees and other expenses . . . unless the court finds the position the United States was substantially justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). Fee applicants may apply for “for fees and other expenses which show[ ] that the party is a prevailing party and is eligible to receive an award.” 28 U.S.C. 2412(d)(1)(B).

         A. EAJA Factors

         For this Court to award attorney fees and costs under the EAJA, it must find that (1) the party seeking fees qualifies as the “prevailing party;” (2) the government has failed to meet its burden of showing that its positions were substantially justified, or that special circumstances make an award of fees unjust; and (3) the requested fees and costs are reasonable. Abdur-Rahman v. Napolitano, 868 F.Supp.2d 1158, 1160 (W.D. Wash. 2012) (citing United States v. Milner, 583 F.3d 1174, 1196 (9th Cir. 2009).)

         As an initial matter, Respondents do not challenge Mr. Fatty's status as an eligible prevailing party. (Dkt. No. 54.) Mr. Fatty has satisfied the prevailing party standard because the Court granted his motion to stay removal pending adjudication of his T visa, a “judicially sanctioned, ” “material alteration of the legal relationship of the parties.” Buckhannon Bd. and Care Home, Inc. v. W.Va. Dep't. of Health and Human Res.,532 U.S. 598, ...


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