The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge
This matter comes before the court on petitioner Juan Morales-Martinez's motion for attorney fees and costs, under the Equal Access to Justice Act ("EAJA"). Respondent opposes petitioner's motion on the ground that the government's position was substantially justified and thus, in accordance with the EAJA's limitations on recovery, no fees should be awarded. Alternatively, respondent argues that if any fees and costs are awarded to petitioner, the court should significantly reduce the amount petitioner requests, awarding no more than attorneys fees for 55 hours of work related to the federal court litigation.
For the reasons set forth below, petitioner's motion for attorney fees is DENIED.*fn1
On August 11, 1999, Petitioner was served with a Notice to Appear by the former Immigration and Naturalization Service,*fn3 charging him with violation of section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (INA) based upon his conviction of an aggravated felony after admission. (Certified Administrative Record [Docket #31], lodged May 12, 2008, ("A.R.") 1197). 8 U.S.C. § 1227(a)(2)(A)(iii). This aggravated felony conviction was a May 1992 lewd and lascivious conduct conviction, pursuant to California Penal Code § 288(a). (A.R. 1197). Petitioner applied for derivative citizenship with the United States Citizenship and Immigration Services ("USCIS"). (A.R. 974). The application was denied. (A.R. 975). Subsequently, the Administrative Appeals Office (the "AAO") of USCIS dismissed the appeal of the denial. (A.R. 975). The AAO's decision stated that a review of all the information in petitioner's file failed to establish the requisite elements for derivative citizenship. (A.R. 976). Specifically, the decision noted that the affidavits from friends and family members were vague and conclusory and that there was no corroborating evidence or independent objective evidence to resolve the inconsistencies in the record. (A.R. 976).
Petitioner raised this claim of derivative citizenship before the Immigration Judge. (A.R. 981). On March 18, 2004, the Immigration Judge ruled that Morales did not meet his burden of establishing derivative citizenship -- specifically, that Morales failed to demonstrate that his mother was "[continually physically present] in the United States for the requisite period of time." (A.R. 496-97). The Immigration Judge noted that while there was additional evidence presented before the court that was not included in the application reviewed by the AAO, the testimony was similarly lacking in specificity and detail, and thus, petitioner failed to meet his burden. (A.R. 496-97). However, the Immigration Judge did grant discretionary relief under former section 212(c) of the INA. (A.R. 514).
The government filed a notice of appeal with the Board of Immigration Appeals on the § 212(c) issue, and Morales appealed the derivative citizenship issue. (A.R. 473-78, 485, 488-92). The Board ruled on February 9, 2005, dismissing Morales' appeal and sustaining the government's appeal. (A.R. 414-16). The Board adopted and affirmed the Immigration Judge's findings with respect to the issue of derivative citizenship and remanded for further proceedings consistent with its decision. (A.R. 414-16).
On remand, on June 15, 2005, the Immigration Judge ordered Morales removed to Mexico. (Alien File [Docket #8], lodged July 2, 2007, ("A.F.") 47). Morales again appealed to the Board. The Board dismissed this appeal on May 12, 2006. (A.F. 44-46).
Morales filed a petition for review with the Ninth Circuit on June 9, 2006. (A.F. 1). On February 1, 2007, the government filed an unopposed motion to transfer the petition to district court for a determination of citizenship pursuant to 8 U.S.C. § 1252(b)(5)(B). This motion was granted and the case transferred on April 9, 2007.
On April 1, 2008, the court held an evidentiary hearing and heard the testimony of Simona Gutierres, petitioner's sister. (F&C at 1). Petitioner also presented evidence relating to the drought in Chihuahua, Mexico, where petitioner's mother and father were living, that lasted from 1948 to 1964. (F&C at 5). The sole disputed factual issue between the parties was whether petitioner's mother was physically present in the United States for a period of at least five years after she turned fourteen and before petitioner's birth on March 15, 1959. (F&C at 1) The court found that the evidence submitted by petitioner demonstrated, by a preponderance of the evidence, that (1) his mother lived in the United States until she was, at youngest, approximately 15 years old (12 months after her fourteenth birthday in 1940); and (2) she was physically present in the United States, at minimum, for 58 months between 1951 and 1958. (F&C at 12-13). Thus, petitioner's mother was physically present in the United States for 70 months, or almost six years, after reaching the age of fourteen. (F&C at 13). As such, the court held that petitioner had met his burden of demonstrating that his mother was physically present in the United States for five years after she turned fourteen years old in 1940 and prior to his birth in 1959. (F&C at 13).*fn4 Therefore, petitioner's claim of derivative citizenship through his mother, pursuant to 8 U.S.C. § 1252(b)(5)(B) was granted. (F&C at 13).
Under the EAJA, a court "shall award" attorney fees, costs and other expenses to a "prevailing party" in a civil 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). In the absence of a statutory definition, a plaintiff is a "prevailing party" for purposes of the EAJA if he or she "succeed[s] on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." See United States v. Real Property Known as 22249 Dolorosa Street, 190 F.3d 977, 981 (9th Cir. 1999) (internal citations and quotation marks omitted).
The parties do not dispute that petitioner is a prevailing party under the EAJA. Rather, the government contends that fees should not be awarded in this case because it was substantially justified in its underlying action and in its subsequent litigation position.
Even if a party prevails in a civil action against the United States, as required by the EAJA for recovery, a plaintiff is not entitled to attorney fees, costs and other expenses in a civil action against the United States, if the government, bearing the burden of proof, demonstrates that its position "was substantially justified." 28 U.S.C. § 2412(d)(1)(A); see Barry v. Bowen, 825 F.2d 1324, 1330 (9th Cir. 1988). The government's position is "substantially justified" if it is "justified to a degree that could satisfy a reasonable ...