The opinion of the court was delivered by: William W. Caldwell United States District Judge
We are considering Petitioner, Damion Wilks's, motion for attorney's fees under the Equal Access to Justice Act (EAJA).
28 U.S.C. § 2412(d)(1)(A). In these 28 U.S.C. § 2241 habeas proceedings, Petitioner asserted that the Department of Homeland Security was violating his right to due process by continuing to detain him while he contested the government's decision to deport him. We agreed with Petitioner and ordered that he receive a hearing before an immigration judge, where the government would have the burden of establishing that he was a flight risk or a danger to the community if it wished to continue his detention pending the outcome of the removal proceedings. Wilks v. U. S. Dep't of Homeland Security, No. 07-2171, 2008 WL 4820654, at *1 (M.D. Pa. Nov. 3, 2008).*fn1
Wilks now seeks his attorney's fees and costs as the prevailing party. We will deny that request as the government's position was substantially justified.
We provide a brief background.*fn2 Petitioner is a citizen of Jamaica who became a lawful permanent resident of the United States in 1997. In March 2005, he was convicted of carrying a firearm without a license, and in August 2005 was convicted of aggravated assault. In May 2006, ICE served Petitioner with a notice to appear, informing him that the government intended to remove him to Jamaica under 8 U.S.C. § 1227(a)(2)(A)(iii), INA § 237(a)(2)(A)(iii), on the basis that his aggravated assault conviction was an aggravated felony, and under 8 U.S.C. § 1227(a)(2)(C), INA § 237(a)(2)(C), on the basis that he was an alien convicted of a firearms offense.
On May 8, 2006, Wilks was taken into ICE custody. On May 16, 2006, an immigration judge denied Petitioner's request to be released on bond because detention was mandatory under 8 U.S.C. § 1226(c), INA § 236(c).*fn3
Petitioner remained in ICE custody while his immigration proceedings took place, including two petitions for review he filed with the Third Circuit. He filed the first one after the Board of Immigration Appeals (BIA) dismissed his appeal from the order of the immigration judge to remove him to Jamaica. He filed the second petition when the BIA denied his motion to reopen his case after the state court granted him post-conviction relief on the assault conviction by reducing his sentence to no more than 364 days.
On April 15, 2008, the Third Circuit denied the first petition but granted the second, instructing the BIA to determine if the aggravated assault conviction still constituted an aggravated felony in light of the state court's action in reducing Petitioner's sentence to less than a year. In response, on September 3, 2008, the BIA reopened Petitioner's case and remanded it to the immigration judge to determine if Wilks should be deported on the basis of his firearms offense and whether he would be entitled to cancellation of removal. After a hearing, on January 29, 2009, the immigration judge granted Petitioner cancellation of removal. (Doc. 43, CM/ECF p. 7).
In the meantime, the Bureau of Immigration and Customs Enforcement (ICE) reviewed Petitioner's detention two times. In May 2007, ICE performed a file custody review. By a decision dated May 23, 2007, ICE informed the petitioner that it would continue to detain him because it believed he was a threat to the community and a flight risk. The second review was conducted in May and June of 2008. As part of the latter review, Wilks was interviewed by two ICE officers.*fn4 On June 4, 2008, ICE decided that he would remain in custody. ICE noted that it had travel documents that would effect Petitioner's removal to Jamaica. The agency also noted: "Your criminal history shows that you have several criminal convictions including aggravated assault, carrying a firearm without a license, possession of marijuana and violation of probation. It then concluded: "[I]n light of your criminal history you have failed to prove that you are not a danger to the community." (Doc. 29-2, ECF page 19).
These habeas 2241 proceedings were begun on November 27, 2007. By order of June 4, 2008, we dismissed the petition. Wilks appealed our decision, and the case was remanded on September 25, 2008, on Respondents' motion in the Third Circuit so that we could consider Wilks's detention under 8 U.S.C. § 1226(c). By that point, Wilks had been in ICE detention for about two and one-half years. As noted, we granted the petition by requiring a hearing before an immigration judge, where the government would have the burden of establishing that he was a flight risk or a danger to the community if it wished to continue his detention.
In relevant part, under section 2412(d)(1)(A), the "prevailing party" in a suit against the United States "shall" be awarded his "fees and other expenses . . . unless the court finds that the position of ...