Kiareldeen v. Ashcroft

• Decision Date: 10 September 2001
• Docket Number: No. 00-1823,00-1823
• Parties: (3rd Cir. 2001) HANY MAHMOUD KIARELDEEN, v. JOHN ASHCROFT, ATTORNEY GENERAL; IMMIGRATION AND NATURALIZATION SERVICE; PAUL SCHMIDT, CHAIR, BOARD OF IMMIGRATION APPEALS; KEVIN D. ROONEY, ACTING COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE; ANDREA QUARANTILLO, DISTRICT DIRECTOR, NEWARK, INS; RALPH GREEN, WARDEN HUDSON COUNTY CORRECTIONAL CENTER, APPELLANTS Submitted under Third Circuit LAR 34.1(a)
• Court: U.S. Court of Appeals — Third Circuit

Page 542

273 F.3d 542 (3rd Cir. 2001)

HANY MAHMOUD KIARELDEEN, v. JOHN ASHCROFT, ATTORNEY GENERAL; IMMIGRATION AND NATURALIZATION SERVICE; PAUL SCHMIDT, CHAIR, BOARD OF IMMIGRATION APPEALS; KEVIN D. ROONEY, ACTING COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE; ANDREA QUARANTILLO, DISTRICT DIRECTOR, NEWARK, INS; RALPH GREEN, WARDEN HUDSON COUNTY CORRECTIONAL CENTER, APPELLANTS

No. 00-1823

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Submitted under Third Circuit LAR 34.1(a) September 10, 2001

Filed December 5, 2001

Appeal from the United States District Court for the District of New Jersey District Judge: William H. Walls (D.C. Civil No. 99-03925) [Copyrighted Material Omitted] Stuart E. Schiffer, Acting Assistant Attorney General, Michael P. Lindemann, Assistant Director, Douglas E. Ginsburg, Attorney, Lyle D. Jentzer, Attorney, Office of Immigration Litigation Civil Division, Department of Justice P.O. Box 878, Ben Franklin Station Washington, D.C. 20044, and James B. Clark, III Office of United States Attorney 970 Broad Street Room 700 Newark, N.J. 07102, for Appellants.

David D. Cole Counsel, Center for Constitutional Rights c/o Georgetown University Law Center 600 New Jersey Ave. NW Washington, D.C. 20001, Nancy Chang Center for Constitutional Rights 666 Broadway -- 7th Floor New York, NY 10012. Regis Fernandez 744 Broad Street Suite 1807 Newark, N.J. 07102, and Houeida Saad Blue Cross and Blue Shield Association 1310 G Street, NW Washington, D.C. 20005, for Appellee.

Daniel J. Popeo Richard A. Samp Washington Legal Foundation 2009 Massachusetts Avenue, NW Washington, D.C. 20036. Washington Legal Foundation; U.S. Representatives Sherwood Boehlert, J.D. Hayworth, Lamar Smith, and John E. Sweeney; U.S. Senator Jesse Helms; Allied Educational Foundation; Stephen Flatow; Grand Lodge Fraternal Order of Police; and the Jewish Institute For National Security Affairs as Amici Curiae in support of Appellants Seeking Reversal.

Before: Mansmann, Rendell and Aldisert, Circuit Judges.

OPINION OF THE COURT

Aldisert, Circuit Judge

In the course of proceedings to remove Appellee Hany Mahmoud Kiareldeen, an ethnic Palestinian and Israeli citizen, from the United States, the Immigration and Naturalization Service ("INS") relied on classified evidence obtained by the FBI's Joint Terrorism Task Force. This evidence suggested that Appellee was a member of a terrorist organization, was involved in the 1993 bombing of the World Trade Center and had made threats against Attorney General Janet Reno.

After numerous administrative hearings, stays and appeals, the district court granted Kiareldeen a writ of habeas corpus reasoning that the INS had not sufficiently proved its case against him to justify its actions during removal proceedings. The court later awarded him $110,743.06 in attorney fees under the Equal Access to Justice Act ("EAJA"), determining that the INS's detention, and litigation in support of the detention, were not substantially justified. The Attorney General and the INS now appeal the grant of attorneys' fees. We reverse the judgment.

The EAJA provides that "a court shall award to a prevailing party other than the United States fees and other expenses... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. SS 2412(d)(1)(A); see also Comm'r, INS v. Jean, 496 U.S. 154, 159-160 (1990). The government must meet this threshold twice. First, it must independently establish that the agency action giving rise to the litigation was substantially justified. Second, it must establish that its litigation positions were substantially justified. See id. See also Natural Resources Defense Council, Inc. v. EPA, 703 F.2d 700, 708 (3d Cir. 1983). The principal argument advanced by the government is that its position during removal proceedings was substantially justified. We hold that it was, and reverse the district court's grant of attorneys' fees.

Although the government originally took the position that the district court lacked jurisdiction to hear this case, that court assumed jurisdiction under 28 U.S.C. S 2241. We have jurisdiction to review the government's appeal of the district court's final order granting attorneys' fees pursuant to 28 U.S.C. S 1291.

This court reviews a district court's determination of no substantial justification in an EAJA suit for abuse of discretion. See Morgan v. Perry, 142 F.3d 670, 682-683 (3d Cir. 1998) (citing Pierce v. Underwood, 487 U.S. 552, 558- 563 (1988)); cert. denied, 525 U.S. 1070 (1999). This court will not interfere with a district court's exercise of discretion "unless there is a definite and firm conviction that the court... committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors." Morgan, 142 F.3d at 683.

However, we may find an abuse of discretion "when no reasonable person would adopt the district court's view" or "when the district court's decision rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact." Id. at 682-683. This court will also "review an award [of attorneys' fees] de novo insofar as it rests on conclusions of law, such as an interpretation of the statutory terms that define eligibility for an award." Nat'l Ass'n of Mfrs. v. Dep't of Labor, 159 F.3d 597, 599 (D.C. Cir. 1998) (citing Love v. Reilly, 924 F.2d 1492, 1493 (9th Cir. 1991)); see also Friends of Boundary Waters Wilderness v. Thomas, 53 F.3d 881, 885 (8th Cir. 1995) (holding that when the abuse of discretion standard is applied in an EAJA case, the district court's conclusions of law are still reviewed de novo).

I.

Kiareldeen entered the United States on a student visa on April 27, 1990. He then violated the specific terms of his visa by remaining in the United States after completing his studies in 1994. On March 26, 1998, the INS served him with a Notice to Appear charging that he was removable under S 237(a)(1)(C)(i) of the Immigration and Nationality Act ("INA") for failing to comply with the terms of his visa. The service ordered him held without bond pending the outcome of his deportation hearing.

On April 27, 1998, an immigration judge denied bond and scheduled a removal hearing. On May 22, 1998, Kiareldeen conceded that he violated the terms of his visa, and then sought an adjustment of status based upon INA S 245 (marriage to a United States citizen). The INS resisted the adjustment of status with evidence that Kiareldeen had filed a false birth certificate with the immigration judge. The INS also submitted classified evidence to the immigration judge, in camera and ex parte, alleging that (1) Kiareldeen was a member of a foreign terrorist organization, (2) he was involved in a meeting planning the 1993 attack on the World Trade Center one week prior to the actual attack, at which a suicide bombing was discussed, and (3) he later threatened to kill Attorney General Janet Reno for her role in convicting those responsible for the 1993 bombing of the World Trade Center.

The INS provided Kiareldeen with several unclassified summaries of the classified evidence of the Federal Bureau of Investigation ("FBI"). The summary dated July 29, 1998, stated that the information was obtained by the Joint Terrorism Task Force, an FBI-supervised squad with detailed representation from numerous law enforcement agencies that work together on terrorism matters in the Newark, New Jersey area. The summary stated also that the information gathered was foreign intelligence information based on multiple sources, which the FBI considered to be reliable, and that the FBI had taken "additional steps to test the veracity of the source reporting the threat against the Attorney General." App. Vol. II at 25- 28. It emphasized that the reliability of the sources "is of fundamental concern to the FBI" and that the characterization of the reporting "is controlled by guidelines set forth in the National Foreign Intelligence Program Manual." Id. at 25. Finally, it explained that this type of information regarding terrorist investigations is "classified to protect against disclosure that would permit a terrorist or suspected terrorist organization, group, or individual to avoid preventive or detection measures, or would reveal FBI or other intelligence agency sources and methods by which such information is obtained." Id. at 26.

Kiareldeen responded to the accusations with character witness testimony from family and friends, as well as other evidence seeking to rebut the claims in the unclassified summaries. On April 2, 1999, the immigration judge granted his application for adjustment of status, awarded conditional permanent resident status and released him on bail. That same day, the INS appealed the decision to the Board of Immigration Appeals ("Board"), which then issued a stay of the release order.

Kiareldeen appealed the temporary stay, but the Board denied the motion. It stated that Kiareldeen's "use of a fraudulent birth certificate in conjunction with his application for adjustment of status... [is a] serious matter... [which] casts doubt on [Kiareldeen's] credibility and on the credibility of the evidence he submitted." Id. at 62. The Board further found that the INS was likely to prevail on its appeal, and that "there [are] sufficient reason[s] to believe that the respondent would be a threat to the national security... such that we find the respondent ineligible for bond." Id. Kiareldeen also filed a petition for a writ of habeas corpus in the district court challenging the government's use of classified evidence to detain him, which was also denied.

On October 15, 1999, a separate panel of the Board issued a decision on the merits of the case granting the adjustment of status. Because of this, the prior Board panel lifted the stay on the release order and bond appeal. On...