Song v. Kent
| Decision Date | 31 March 2021 |
| Docket Number | Case No.: 2:18-cv-00919-GMN-VCF |
| Parties | YALI SONG, Petitioner, v. JEANNE KENT, Director, Las Vegas Field Office of United States Citizenship and Immigration Services, in her official capacity; and UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Respondents. |
| Court | U.S. District Court — District of Nevada |
Pending before the Court is the Report and Recommendation ("R&R") of the United States Magistrate Judge Cam Ferenbach, (ECF No. 37), recommending that the Court grant Petitioner Yali Song's ("Petitioner's") Motion for Attorney's Fees and Expenses, (ECF No. 33). Respondents United States Citizenship and Immigration Services ("USCIS") and Jeanne Kent, director of the Las Vegas USCIS field office (collectively, "Respondents") timely filed its Objection, (ECF No. 38). Petitioner filed a Response, (ECF No. 40).
For the reasons discussed below, the Court REJECTS the Magistrate Judge's R&R and DENIES Petitioner's Motion for Attorney's Fees and Expenses.
The case arises from USCIS's denial of Petitioner's naturalization application. (See Pet. Review, ECF No. 1). Petitioner is a native and citizen of China, and she was born on July 29, 1986. (Id. ¶ 6). On November 18, 2006, Petitioner and her mother entered the United States as K-1 and K-2 nonimmigrants.1 (Id. ¶ 7). Petitioner was twenty (20) years old at the time of entry. (Id.).
Petitioner's mother married within ninety (90) days of entering the United States. (Id. ¶ 8). On March 19, 2007, Petitioner and her mother filed separate Form I-485s2 for the purpose of adjusting their immigration status and registering for permanent residence in the United States. (Id. ¶ 9). USCIS granted Petitioner's mother's request; however, denied Petitioner's application because Petitioner turned twenty-one (21) years old before USCIS adjudicated her Form I-485. Petitioner, however, was twenty (20) years old at the time of entry and at the time she submitted her Form I-485. (Id. ¶ 9).
In 2009, Petitioner married a United States citizen. Based on her marriage, Petitioner filed a second Form I-485 to register for permanent residence after marrying a United States citizen. (Id. ¶ 10). USCIS subsequently approved Petitioner's second Form I-485 based on her marriage and Petitioner received lawful permanent resident status on December 1, 2009. (Id.).
Approximately eight (8) years after receiving permanent resident status, Petitioner filed an Application for Naturalization ("Form N-400"). (Id. ¶ 11). After further review of Petitioner's immigration record, USCIS found that it had, unfortunately, granted Petitioner's permanent status in 2009 by mistake.3 (Id. ¶ 12); ). USCIS consequently denied Petitioner's naturalization applicationon April 19, 2017 because Petitioner had not properly received lawful permanent residency in the United States. (Id. ¶ 12).
On May 25, 2017, Petitioner filed a Request for Hearing on Decision in Naturalization Proceedings. (Id. ¶ 13). In that Request, Petitioner's counsel conceded that USCIS mistakenly granted her 2009 application for permanent residence. ). Nevertheless, Petitioner explained that a 2011 decision by the Board of Immigration Appeals ("BIA") in Matter of Le had essentially invalidated USCIS's basis for denial of Petitioner's 2007 application for permanent resident status. (Id. at 56-60).
Specifically, Petitioner pointed out that Matter of Le abrogated USCIS's prior finding that Petitioner "aged out" of eligibility for permanent residency under her K-2 nonimmigrant status. (Id.). Petitioner thus argued that USCIS could approve her 2007 application nunc pro tunc by retroactively applying this new authority to remedy the "procedural hiccup" that prevented her naturalization. (Id.). USCIS, however, denied Petitioner's request for nunc pro tunc relief and retroactive application of authority in its Decision on March 7, 2018. ); (Pet. ¶ 14).
Pursuant to 8 U.S.C. § 1421(c), Petitioner filed a Petition for Judicial Review in this Court on May 20, 2018, seeking de novo review of USCIS's denial of naturalization. (Id. at 3). The Court ultimately granted judgment in favor of Petitioner, finding that USCIS erroneously denied Petitioner's request for nunc pro tunc relief. (See Order Granting Mot. Summ. J., ECF No. 31). Petitioner thereafter filed a Motion for Attorney's Fees under the Equal Access to Justice Act ("EAJA"). (See Mot. Att'y Fees, ECF No. 33). Magistrate Judge Cam Ferenbach issued a Report and Recommendation, (ECF No. 37), recommending the Court grant the Motion for Attorney's Fees and award Petitioner $18,077.50 in attorney's fees and costs.Respondents filed an Objection, (ECF No. 37), to which Petitioner filed a Response, (ECF No. 40).
A party may file specific written objections to the findings and recommendations of a United States Magistrate Judge made pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B); D. Nev. R. IB 3-2. Upon the filing of such objections, the Court must make a de novo determination of those portions of the Report and Recommendation to which objections are made. Id. The Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1); D. Nev. IB 3-2(b).
Respondents make two objections. First, they argue that the award of fees under the EAJA is unwarranted given that USCIS's denial of Petitioner's naturalization application was substantially justified. . Respondents specifically argue that the R&R failed to discuss or even address the fact that applying Matter of Le retroactively or nunc pro tunc was an issue of first impression. (Id. 7:14-24). In the alternative, Respondents request the Court reduce the amount of attorney's fees sought to the "reasonable time spent" because the R&R failed to make a specific reasonableness finding as to the fees and hours counsel spent in the underlying case. (Id.).
Under 28 U.S.C. § 2412(d)(1)(A) of the EAJA:
eligibility for a fee award in any civil action requires: (1) that the claimant be "a prevailing party"; (2) that the Government's position was not "substantially justified"; (3) that no "special circumstances make an award unjust"; and, (4) pursuant to 28 U.S.C. § 2412(d)(1)(B), that any fee application be submitted to the court within 30 days of final judgment in the action and be supported by an itemized statement.
Ibrahim v. U.S. Dep't of Homeland Sec., 912 F.3d 1147, 1167 (9th Cir. 2019) (quoting I.N.S. Comm'r v. Jean, 496 U.S. 154, 158 (1990)), cert. denied, 140 S. Ct. 424 (2019). "The clearlystated objective of the EAJA is to eliminate financial disincentives for those who would defend against unjustified governmental action and thereby to deter the unreasonable exercise of Government authority." Ardestani v. I.N.S., 502 U.S. 129, 138 (1991). "Congress specifically intended the EAJA to deter unreasonable agency conduct." Ibrahim, 912 F.3d 1147, 1166-67 (9th Cir. 2019) (citing Jean, 496 U.S. at 163 n.11 (). "The policy behind the EAJA 'is to encourage litigants to vindicate their rights where any level of the adjudicating agency has made some error in law or fact and has thereby forced the litigant to seek relief from a federal court.'" Id. at 1167 (quoting Li v. Keisler, 505 F.3d 913, 919 (9th Cir. 2007)).
A. Substantial Justification
Respondents oppose Petitioner's eligibility for an EAJA fee award on two grounds, arguing that Respondents' position before and during litigation was substantially justified. .4 "When evaluating the government's 'position' under the EAJA," federal courts "consider both the government's litigation position and the 'action or failure to act by the agency upon which the civil action is based'." Ibrahim, 912 F.3d at 1168 (quoting 28 U.S.C. § 2412(d)(1)(B)). "Thus, the substantial justification test is comprised of two inquiries, one directed toward the government's agency's conduct, and the other toward the government's attorneys' conduct during litigation. Id. (citing Gutierrez v. Barnhart, 274 F.3d 1255, 1259 (9th Cir. 2001)).
Respondents bear the burden of showing that their position was substantially justified. Gonzalez v. Free Speech Coalition, 408 F.3d 613, 618 (9th Cir. 2005). To prove substantial justification, "the government need not establish that it was correct or 'justified to a high degree.'" Ibrahim, 912 F.3d at 1167 (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)).Respondents must only establish that their "position is one that 'a reasonable person could think it correct, that is, [that the position] has a reasonable basis in law and fact'." Id. (quoting Pierce, 487 U.S. at 566 n.2). The fact that Respondents did not prevail in court "does not raise a presumption that [their] position was not substantially justified." Kali v. Bowen, 854 F.2d 329, 334.
Respondents argue that "USCIS's determination was substantially justified because it applied the then-existing law to Petitioner's first I-485 application and later declined to approve Petitioner's naturalization application based on Petitioner's inability to establish a statutorily mandated requirement." (Obj. 8:8-11). In response, Petitioner asserts that USCIS's mistake in granting Petitioner's 2009 adjustment application and USCIS's subsequent refusal to remedy the mistake by retroactively applying Matter of Le was nonetheless unreasonable. (Mot. Att'y Fees 4:1-9).
The position of the United States is defined as "the action or failure to act by the agency upon which the civil...
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