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Hassine v. Johnson

United States District Court, E.D. California

October 8, 2014

JEH CHARLES JOHNSON, et al., Defendants

Page 1298

For Samir Abdallah Ben Hassine, Petitioner: Stacy Eva Tolchin, LEAD ATTORNEY, Law Offices Of Stacy Tolchin, Los Angeles, CA; Trina Ann Realmuto, LEAD ATTORNEY, National Immigration Project of the National Lawyers Guild, Boston, MA.

For Lori Scialabba, in her Official Capacity, Director, U.S. Citizenship and Immigration Services, Jeh Charles Johnson, in his Official Capacity, Secretary, U.S. Department of Homeland Security, Respondents: Audrey Benison Hemesath, LEAD ATTORNEY, United States Attorney's Office, Sacramento, CA; Christopher W. Hollis, LEAD ATTORNEY, U.S. Department Of Justice, Civil Division, Oil-dcs, Washington, DC.

Page 1299




On July 24, 2013, Plaintiff Samir Abdallah Ben Hassine (" Plaintiff" ) petitioned this Court for a de novo hearing on his application for naturalization, which had been pending with the United States Citizenship and Immigration Services (" USCIS" ) for nearly two and a half years. (Doc. 2.)

On April 11, 2014, Plaintiff and Defendants Janet Napolitano, Alejandro Mayorkas, Lori Scialabba, and Jeh Charles Johnson (" Defendants" ) filed a stipulation requesting the Court remand this matter to the USCIS (Doc. 22) for adjudication, and on April 15, 2014, the undersigned issued an order remanding this matter pursuant to 8 U.S.C. § 1447(b) (Doc. 23). After the remand to USCIS, on May 2, 2014, Plaintiff received his certificate of naturalization.

Presently before the Court is Plaintiff's motion for attorneys' fees and costs under the Equal Access to Justice Act (" EAJA" ), 28 U.S.C. § 2412(d). (Doc. 24.) For the reasons set forth below, Plaintiff's petition for an award of EAJA fees and costs is GRANTED in the amount of $13,388.18.


A. Factual Background

Plaintiff has been a lawful permanent resident of the United States since November 6, 2007. Id. In 2008, Plaintiff was interviewed by the Federal Bureau of Investigation (" FBI" ) regarding his attendance at local mosques, immigration status, and whether he expressed " anti-American" or " anti-West" sentiments. Id. In November 2009, Plaintiff was denied access when attempting to board an international flight with his family, and was informed by FBI agents that he was not permitted to fly on a commercial aircraft. (Doc. 24, 2.) Eventually, Plaintiff was permitted to fly internationally. Id.

On February 3, 2011, Plaintiff, represented by counsel, submitted an application for naturalization to the USCIS pursuant to 8 U.S.C. § 1430. (Doc. 2-1, Exh. A.) On July 27, 2011, Plaintiff's counsel inquired to USCIS about scheduling a date for Plaintiff's naturalization interview. (Doc. 24, 3.) On September 27, 2011, Plaintiff received a notice that his naturalization interview was scheduled for the next day. (Doc. 2, ¶ 25.) However, USCIS did not send Plaintiff's counsel a copy of the notice, as required by 8 C.F.R. § 292.5(a). (Doc. 2, ¶ 25.) Plaintiff appeared at the naturalization interview unrepresented. (Doc. 2, ¶ 27.) Following the interview, a USCIS officer notified Plaintiff that he had passed the civics and English portions of the examination. (Doc. 24, 3.)

B. Procedural Background

Regulations require that USCIS either issue a decision on Plaintiff's naturalization application at the interview, or schedule a second interview within 120 days of the interview, which would have been no later than January 26, 2012. 8 C.F.R. § § 335.3(a), 336.1(a). USCIS did not issue a decision on Plaintiff's application or schedule a second interview within 120 days of the first interview. As a result of the delay, Plaintiff petitioned this Court to adjudicate his naturalization application on July 24, 2013. (Doc. 2.) Plaintiff initially

Page 1300

requested that the Court conduct a hearing and adjudicate the naturalization application de novo, rather than remanding the matter to the USCIS. Plaintiff believed his naturalization application would be subject to additional lengthy delays if remanded to the agency because he suspected his application was associated with the Controlled Application Review and Resolution Program (" CARRP" ). (Doc. 2, 2.)

While Plaintiff's petition for review in this Court was pending, USCIS issued a notice of second interview for August 23, 2013. Plaintiff's counsel responded to USCIS explaining that, because Plaintiff had petitioned the district court for naturalization determination, USCIS lacked jurisdiction to adjudicate Plaintiff's application pursuant to 8 U.S.C. § 1447(b).

On April 11, 2014, the parties resolved the district court action by stipulating to remand the case to USCIS to adjudicate Plaintiff's naturalization application; the stipulation also specified that the agency would re-interview Plaintiff within 30 days and adjudicate his application within 45 days. (Doc. 22.)

On April 15, 2014, the Court approved the parties' joint stipulation, incorporating the terms agreed to by the parties. The order specified as follows:

1) USCIS would set an interview date for Plaintiff on his naturalization application within 30 days of the remand Order, and adjudicate the naturalization application within 45 days;
2) The scope of the interview was limited on remand to " the sole purpose of updating the information in Plaintiff's previously filed naturalization application, including following-up on or clarifying any such responses, in order to make a prompt determination on the merits of that application" and precluding the re-administration of the English and Civics portion of the test;
3) The Court would retain jurisdiction over the matter in the event USCIS did not timely adjudicate the naturalization application or denied the application;
4) The deadline for any EAJA fee application was controlled by 28 U.S.C. § 2412(d)(1)(B), not Local Rule 54-10; and
5) The Order constituted a " final judgment" for purposes of calculating the EAJA deadline.

(Doc. 23, 2-3.) On May 2, 2014, USCIS interviewed Plaintiff, approved his naturalization application, administered the oath of allegiance, and issued a certification of naturalization.

On July 8, 2014, Plaintiff filed a motion for attorneys' fees under the EAJA, which is now before the Court. (Doc. 24.) Defendants filed an opposition on September 10, 2014 (Doc. 28), and Plaintiff filed a reply on September 15, 2014 (Doc. 29).


Plaintiff moves for attorneys' fees pursuant to the EAJA asserting he was the prevailing party, and Defendants' position was not substantially justified. (Doc. 24, 8.) Defendants argue that Plaintiff was not a ...

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