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Elashi v. Sabol

November 2, 2010

BAYAN ELASHI PETITIONER,
v.
MARY E. SABOL, JANET NAPOLITANO, JOHN T. MORTON, DAVID VENTURELLA, CHERYL CRENSHAW, AND THOMAS DECKER RESPONDENTS.



The opinion of the court was delivered by: Judge McClure

MEMORANDUM

BACKGROUND

Bayan Elashi filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §2241. On March 18, 2010, the petition was granted by the Honorable Malcolm Muir, and the Bureau of Immigration and Customs Enforcement was ordered to release the petitioner from prison under conditions of supervised release. The case was subsequently reassigned to the undersigned judge.

Now before the court is petitioner's "Motion for Attorney Fees Pursuant to EAJA." (Rec. Doc. No. 22). Opposing and reply briefs have been filed. Thus, the matter is ripe for disposition. Now, therefore, for the following reasons we will grant the motion, to the extent of the relief provided in this memorandum and the accompanying order.

DISCUSSION

The motion presently before the court is a motion for attorneys' fees and expenses pursuant to the Equal Access to Justice Act ("EAJA") 28 U.S.C. 2412(d). To fully understand whether or not attorney's fees and costs should be paid by respondents, one must first understand the history of Elashi's petition for writ of habeas corpus.

Elashi was born in Palestine in 1955. During the Arab-Israeli War, he was sent to Egypt to attend boarding school. After he earned his bachelor's degree in Egypt, he moved to the U.S. on a student visa. In 1984, Elashi married a Jordanian citizen. They have five children, all United States citizens.

On October 6, 2006, Elashi was convicted of multiple violations of federal law. He served an 84-month sentence. After completing his sentence, on January 22, 2009, Elashi was taken into custody by the Bureau of Immigration and Customs Enforcement ("ICE") pursuant to a final order of removal. Elashi does not contest the removal order. Elashi had filed his § 2241 petition, which was granted, because his continued detention pending removal was in violation of the Immigration and Nationality Act. See 8 U.S.C. §1231(a)(6).

Elashi was imprisoned pursuant to ICE custody for approximately 11 months when he filed his petition. He sought permission to enter from more than 40 countries, and was denied by all, including Israel, Jordan and Egypt. Because of the complicated politics between Palestine and Israel, Elashi could not gain permission to be repatriated to his home territory. For all of these reasons, the Honorable Malcolm Muir granted his petition, finding that the government had not rebutted Elashi's reasons to believe that there is no significant likelihood of removal in the reasonably foreseeable future.

This history sets the stage for petitioner's motion for attorneys fees and costs pursuant to the EAJA. The EAJA states, in relevant part,:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action. . . unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

***** . . . Whether or not the position of the United States was substantially justified shall be determined on the basis of the record. . .

*****

The court, in its discretion, may reduce the amount to be awarded pursuant to this ...


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