Tang v. Chertoff

• Decision Date: 01 March 2010
• Docket Number: Civ. Action No. 07cv10231-NG.
• Citation: 689 F. Supp.2d 206
• Parties: Yong TANG and Yan Luo, Plaintiffs, v. Michael CHERTOFF, Secretary of the Department of Homeland Security; Emilio Gonzalez, Director of U.S. Citizenship and Immigration Services; Paul Novak, Director of USCIS Vermont Service Center; and, Robert Mueller, III, Director of Federal Bureau of Investigation, Defendants.
• Court: U.S. District Court — District of Massachusetts

689 F.Supp.2d 206

Yong TANG and Yan Luo, Plaintiffs, v. Michael CHERTOFF, Secretary of the Department of Homeland Security; Emilio Gonzalez, Director of U.S. Citizenship and Immigration Services; Paul Novak, Director of USCIS Vermont Service Center; and, Robert Mueller, III, Director of Federal Bureau of Investigation, Defendants.

Civ. Action No. 07cv10231-NG.

United States District Court, D. Massachusetts.

March 1, 2010.

Vard R. Johnson, Boston, MA, for Plaintiffs.

Christopher R. Donato, United States Attorney's Office, Boston, MA, for Defendants.

MEMORANDUM AND ORDER RE: ATTORNEY'S FEES

GERTNER, District Judge.

This case raises questions concerning the awarding of attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412, in a very specific setting-namely, in connection with an adjustment-in-status mandamus petition. It also addresses the scope of the First Circuit's recent decision on the EAJA in Aronov v. Napolitano, 562 F.3d 84 (1st Cir.2009), a naturalization mandamus case. Plaintiffs Yong Tang and his wife, Yan Luo, have moved for an award of attorney's fees in the amount of $6,250.00 and court costs in the amount of $250.00. (Application for Allowance of Att'ys' Fees & Costs, document # 21.) The fees stemmed from the complaint they filed on February 6, 2007, seeking to compel the United States Citizenship and Immigration Service ("USCIS") to act on their application for permanent residency. As of the date of the lawsuit, that application had been pending for nearly four years.¹

The government opposed on jurisdictional grounds. The Immigration and Nationality Act ("INA"), 8 U.S.C. § 1252(a)(2)(B), the government contended, broadly precluded judicial review of any discretionary decision of the Attorney General in immigration matters, or of any matters even related to a discretionary decision. Since adjustment of status was a discretionary decision of the USCIS, the government argued, the Court had no jurisdiction to hear a challenge to an allegedly unconscionable delay in determining Tang's status. While the plaintiffs' initial complaint had been filed pro se, the plaintiffs retained counsel after the government moved to dismiss.

On June 26, 2007, the Court denied the government's motion to dismiss and granted the relief sought by the plaintiffs in a lengthy reported decision, Tang v. Chertoff, 493 F.Supp.2d 148 (D.Mass.2007). On the question of jurisdiction, the Court found that the jurisdiction-stripping provisions of the Act applied only to the specific discretionary decisions of the USCIS that were named in the statute. It was not a blanket immunity from all court scrutiny, as the government had argued. In particular, the Court noted:

I cannot accept the argument that, simply because adjustment of status is a form of discretionary relief, there are no limits to the length of time the USCIS may take processing applications. The duty to act is no duty at all if the deadline is eternity.

Tang, 493 F.Supp.2d at 150 (emphasis added). Defendants were ordered to adjudicate plaintiffs' application for adjustment of status.² On July 19, 2007, the government did so; both plaintiffs became permanent residents of the United States. (Decl. Peter R. Thomas, document # 19.)

On September 5, 2007, plaintiffs' counsel filed a motion for attorney's fees and costs under the EAJA. The EAJA provides:

A court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, 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. § 2412(d)(1)(A). The government opposed, and in a round of supplemental briefing ordered by the Court, it argued that the First Circuit's decision in Aronov precluded plaintiffs from recovering attorney's fees. The argument had a surface plausibility: The First Circuit in Aronov denied attorney's fees in a naturalization case after finding that the delay in processing the citizenship applicant's petition was "substantially justified," even though the delay violated the 120-day limit of 8 U.S.C. § 1447(b). Aronov, 562 F.3d at 94-99. The reason for the delay credited by the First Circuit was that national security required the completion of a Federal Bureau of Investigation ("FBI") background check. The government had to wait for that check to be completed, and thus the delay in processing the application was substantially justified. Id. Since Tang's adjustment of status petition was delayed for the same reason as Aronov's naturalization petition—to complete an FBI background check—it too was substantially justified.

But the government overstates Aronov and minimizes the difference between that case and this. Indeed, if the government's interpretation of Aronov held sway then "national security" would be the excuse to defeat fees in almost any immigration case challenging agency delay, no matter what the length of time, no matter what the context, and no matter what the particularized showing. The context here is an adjustment of status petition, not a naturalization petition. While the government cannot easily un-naturalize someone who has become an American citizen, it can readily start removal proceedings for a permanent resident if a subsequent background check discloses serious problems.³ And, in any event, four years—the period of delay in this case—cannot be "substantially justified."

After careful review of the petition, I award attorney's fees and costs in the amount of $4,605.00.

I. BACKGROUND

Yong Tang filed an I-485 application on June 23, 2003, to adjust his status to that of a permanent resident, with his wife Yan Luo as a derivative beneficiary. Tang, 493 F.Supp.2d at 150. He also filed an I-140 Immigrant Petition for Alien Worker through his employer, Millennium Pharmaceuticals, on May 30, 2003. Id. The latter was approved by USCIS on March 22, 2004. The plaintiffs were then fingerprinted on August 31, 2004. Id.

From August of 2004 until after this litigation commenced in 2007, there was no progress on their applications. Yet plaintiffs persisted: They inquired about the application in 2005 on March 11, July 12, August 10, and September 9 and 13. They inquired in 2006 on May 2 and October 16, and then again on January 30, 2007. Each time they were told the same thing: their background investigations had not been completed, and they should check back in six months. Id.

In May of 2006, plaintiffs filed a Freedom of Information and Privacy Act request with the FBI seeking any records relating to them. They were told that there were no such records. Id. The conclusion was clear: There were or should have been no impediments to their adjustment in status.

Finally, 43 months after their initial application, they filed this lawsuit—pro se— seeking to compel adjudication of the petition. Id. On May 22, 2007, in response to this Court's order concerning the status of the petition, defendants conceded that Yan Luo's background check was completed, but that Yong Tang's was still pending. Id.

The government responded to the complaint by moving to dismiss on jurisdictional grounds. (Defs.' Mot. to Dismiss, document #9.) It noted that 8 U.S.C. § 1252(a)(2)(B) strips the court of jurisdiction to review "any judgment regarding the granting of relief under 8 U.S.C. § 1255," or "any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security." See Tang, 493 F.Supp.2d at 151. However, the Court concluded that while the ultimate decision—whether or not to adjust an alien's status under 8 U.S.C. § 1255(a)—is "indisputedly within the discretion of the Attorney General," and thus not subject to court review, it does not follow that all actions "that call for some discretion or that have any relation to adjustment of status" are likewise unreviewable. Tang, 493 F.Supp.2d at 151. Reading the text of the statute with precision, the Court concluded that the jurisdiction-stripping provision applied "only to those actions or decisions `the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security.'" Id. at 152. And the decision at issue in this case to allow an adjustment of status matter to drag on for almost four years was surely not included. As the Court stated in its prior opinion:

I am not persuaded that Congress, despite its careful wording of the jurisdiction-stripping language, intended to vaguely immunize all conduct as long as the agent can be said to have exercised some discretion in the performance of it, or it can be related to a discretionary action. The clear meaning of 8 U.S.C. § 1252(a)(2)(B)(ii) is that courts may not review decisions specified as discretionary by the INA. Despite the care taken in the INA to specify the substance of an adjustment of status decision as discretionary, the pacing of such a decision is not so specified.

Tang, 493 F.Supp.2d at 153-54 (citation omitted).

On June 26, 2007, the Court denied the defendants' motion to dismiss and ordered USCIS to adjudicate Tang's application for adjustment of status, and by extension, that of his wife. In July 2007, the plaintiffs became permanent residents of the United States. (Decl. Peter R. Thomas, document # 19.)

Shortly thereafter, the plaintiffs filed a motion for attorney's fees and costs under the EAJA. (Application for Allowance of Att'ys' Fees & Costs, document # 21.)

II. DISCUSSION

The EAJA permits the award of attorney's fees for a litigant who was the "prevailing party" befo...