United States District Court, C.D. California
CIVIL MINUTES - GENERAL
Proceedings: (In Chambers) ORDER RE: MOTION FOR ATTORNEY'S FEES
GARY ALLEN FEESS, District Judge.
This action stemmed from the denial of the permanent residence applications of Plaintiff Kil Hyun Kim ("Kim" or "Plaintiff") and his family. Kim, a religious worker, sought permanent special immigrant religious worker status as an Assistant Pastor for The Gracious Ark Church ("TGAC" or "Plaintiff TGAC"). When the application for permanent residence status was first presented, the United States Citizenship and Immigration Service ("USCIS") denied the application. Kim sought relief from the denial in a lawsuit filed in district court against the United States of America and various United States officers in their official capacities (collectively "the United States").
Thereafter, the USCIS Administrative Appeals Office ("AAO") vacated and reopened the previous final decision regarding Kim's applications. Because the agency action was no longer final, the United States moved to dismiss the district court action as moot. The Parties submitted a Joint Status Report ("JSR") in which Plaintiffs indicated they did not intend to oppose the motion, and that the only issue that would remain for determination is an application for attorney's fees. (Docket No. 43 [Joint Status Report (""JSR")].) The Court granted the Motion to Dismiss for mootness. (Docket No. 44 [2/20/14 Order].)
The AAO denied Kim's application again, this time on a new ground. On Kim's request, the AAO again reconsidered and ultimately granted Kim's application. Now, Plaintiffs have brought this motion to recover attorney's fees under portions of the Equal Access to Justice Act ("EAJA"). (Docket No. 48 [Motion for Attorney's Fees ("Mem.")].)
Because the AAO's decision was voluntarily vacated and ultimately granted without any Court imprimatur, Kim is not a "prevailing party" and cannot be awarded attorney's fees. The Court sets forth its reasoning in detail below. Accordingly, Plaintiffs' Motion for Attorney's Fees is DENIED.
Kim, Kim's wife, and their first child are citizens of South Korea. (Docket No. 14, [First Am. Compl. ("FAC")] ¶¶ 8-10.) Kim's other child is a citizen of the United States. (Id. ¶ 11.) Kim arrived in the United States on March 18, 2004 as a "B-2" non-immigrant visitor. (Docket No. 27, [Certified Administrative Record ("CRA")] at 1 [AAO Decision] at 3.) From April 2006 until August 2009, Kim, who was in R-1 non-immigrant religious worker status, served as an associate pastor at the Wyclif Presbyterian Church. (Id.; FAC ¶ 18.) A few months after Kim's R-1 status expired, TGAC sought Kim as its Assistant Pastor and began the permanent resident application process. (Id.; FAC ¶ 18.)
The permanent resident application process for religious ministers involves a two step process. (Id. ¶ 19.) First, the sponsoring religious organization files a Form I-360 on behalf of the minister. (Id.) Second, the minister and his family must file Forms I-485 to adjust their resident status. (Id.) The approval of the Form I-485 is contingent upon the approval of the Form I-360. (Docket No. 32, [Defendants' Mot. for Summary Judgment ("D-Mem. MSJ") at 4.) Kim's Form I-485 is premised upon TGAC's Form I-360; Kim's wife and Kim's first child's Forms I-485 are both derivative of Kim's Form I-485 (i.e. applications would fail if Kim's did). (See CRA at 69-71.)
On August 27, 2009, TGAC and the Kim Family filed their respective applications for adjustment of status. (Id. ¶ 23.) The application for adjustment of status was denied by the USCIS on May 3, 2010 because "the evidence [was] insufficient to establish that [Kim] has been performing full-time work as Pastor for at least the two-year period immediately preceding the filing of the petition in lawful immigration status" in violation of 8 C.F.R. §§ 204.5(m)(4) and (11). (See CRA at 66-68 [USCIS Decision]; FAC ¶ 25.) Plaintiffs appealed the decision to the AAO, which was denied on April 2, 2012 for the same reason as the USCIS Decision. (AAO Decision at 1-6; FAC ¶ 31.) On the basis of that denial, Plaintiffs brought this suit. However, on March 29, 2013, nearly a year after this suit was filed-and while briefing for the Cross-Motions for Summary Judgment was ongoing-the AAO sua sponte vacated and reopened its previously final decision on the Form I-360, on which the denial of all the other Forms was based. (D-Mem. MSJ at Ex. 1 [03/29/13 Letter].)
In light of the AAO's sua sponte actions, instead of dismissing the action, because "judicial review was properly sought in the first instance, and... litigation [had] proceeded to the summary judgment stage, dismissing the case could, at the very least, foster inefficiency, " the Court chose to stay "this action pending a final agency decision." (See Docket No. 35 [5/15/13 Order] at 10.) Additionally, the Court expressly "decline[d] to interject itself into the administrative process and dictate what the AAO should consider in reevaluating the applications." (Id. at 10-11, n. 8)
When the AAO reopened Kim's application, it noted new grounds precluding approval of Kim's application and invited Kim to submit additional evidence, which he did. (See Mem. Ex. 4, at 2.) The new evidence satisfied all but one of the newly identified grounds, and thus Kim's application was again denied. (Id. at 8.) Kim then filed a motion to reconsider with the AAO. The USCIS then "determined that [Kim] had overcome all grounds ...