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Kleinauskaite v. Doll

United States District Court, M.D. Pennsylvania

July 23, 2019

CLAIR DOLL, Respondent.


          Matthew W. Brann, United States District Judge

         On November 21, 2018, this Court granted Daiva Kleinauskaite's Petition for a Writ of Habeas Corpus. Pursuant to the Equal Access to Justice Act (“EAJA”), Ms. Kleinauskaite now moves this Court for an order directing the Government to compensate her for the attorneys' fees she incurred litigating that petition. For the following reasons, that motion will be granted in part.

         I. BACKGROUND

         Ms. Kleinauskaite, a Lithuanian citizen, entered the United States in 2009. Although authorized to stay here for only 90 days, she never left, and has been in this country ever since.

         On May 17, 2017, Ms. Kleinauskaite was arrested in Pennsylvania for driving under the influence. She was taken into custody by the United States Immigration and Customs Enforcement that same day. Facing removal to Lithuania, she immediately applied for asylum, arguing that her sexuality made it dangerous for her to return to her home country.

         After an August 30, 2017 hearing, an immigration judge denied Ms. Kleinauskaite's asylum application as untimely, because it was filed more than one year after her arrival in the United States and because he found no circumstances that would excuse that delay. The Board of Immigration Appeals (“BIA”) affirmed the immigration judge's ruling. On June 26, 2018, while the matter was on further appeal to the United States Court of Appeals for the Third Circuit, the Government moved to remand the case back to the BIA for reconsideration. The BIA, on remand, reversed itself and remanded the case back to the immigration judge for a new hearing, which is currently scheduled for January 2020.

         On November 27, 2017, while her initial appeal to the BIA was pending, Ms. Kleinauskaite petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Her petition raised two main arguments. First, she argued that she was being detained pursuant to 8 U.S.C. § 1226(a) and that she was therefore entitled to an individualized bond hearing pursuant to that statute's implementing regulations. Second, she argued that the Due Process Clause of the United States Constitution mandated an individualized bond hearing, regardless of the statutory basis of her detention. The Government opposed this petition on December 21, 2017. It also raised two main arguments. First, it argued that Ms. Kleinauskaite was being detained pursuant to 8 U.S.C. § 1187(c)(2)(E) and that the implementing regulations of 8 U.S.C. § 1226 therefore had no application to her. Second, it argued that Ms. Kleinauskaite's detention was not unreasonable, such that a bond hearing was constitutionally required.

         On February 28, 2018, Chief Magistrate Judge Susan E. Schwab ordered the parties to file briefs addressing the impact on Ms. Kleinauskaite's petition, if any, of a recent decision of the Supreme Court.[1] When that briefing was complete, on October 9, 2018, Judge Schwab issued her Report and Recommendation.[2] Although Judge Schwab rejected Ms. Kleinauskaite's statutory argument-i.e., rejected Ms. Kleinauskaite's argument that she was detained pursuant to 8 U.S.C. § 1226(a) and therefore entitled to an individualized bond hearing pursuant to that statute's implementing regulations-Judge Schwab determined that Ms. Kleinauskaite's continued detention without a bond hearing violated the Due Process Clause. Judge Schwab therefore recommended that this Court grant Ms. Kleinauskaite's petition.

         On November 21, 2018, over the Government's objection, this Court adopted Judge Schwab's Report and Recommendation; granted Ms. Kleinauskaite's petition; and ordered the Government to hold an individualized bond hearing for Ms. Kleinauskaite at which the Government “b[ore] the burden of proving that [Ms. Kleinauskaite's] continued detention [wa]s necessary to fulfill the purposes of the [statute under which she is detained].”[3] That hearing was held on November 30, 2018, and resulted in Ms. Kleinauskaite's release on $7, 500 bond.[4] The Government appealed this Court's decision to the Third Circuit but eventually stipulated to the appeal's dismissal. Ms. Kleinauskaite now moves for attorneys' fees pursuant to the EAJA.


         The EAJA states that, in civil actions brought against the United States, a court “shall” award “reasonable attorneys['] fees” incurred by the prevailing party “unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.”[5] The Government does not dispute that Ms. Kleinauskaite was the prevailing party or that the number of hours expended, or the hourly rate charged, by Ms. Kleinauskaite's counsel was unreasonable.[6] The Government also does not argue that there are any special circumstances that would make an award unjust. The Government does, however, argue that its position was substantially justified.

         A position by the Government is substantially justified when it has a “reasonable basis in both law and fact.”[7] And in a case involving agency action, the Government's position “includes . . . the agency position that made the litigation necessary in the first place.”[8] Therefore, to avoid paying Ms. Kleinauskaite's attorneys' fees, the Government must show that its detention of Ms. Kleinauskaite without a bond hearing was reasonable.

         For the reasons that follow, this Court finds that Ms. Kleinauskaite's detention became unreasonable after twelve months.[9] It will therefore order the Government to pay all attorneys' fees incurred by her after May 17, 2018.[10]

         A. Detention of Aliens During Deportation Proceedings

         Reaching a conclusion on this issue requires a review of case law analyzing and interpreting statutes that authorize the Government to detain aliens during the removal process. Two such statutes are relevant for present purposes: 8 U.S.C. § 1226(c) and 8 U.S.C. § 1231(a)(6). Both will be discussed below.

         1. Zadvydas

         In its 2001 decision in Zadvydas v. Davis, [11] the Supreme Court considered the habeas petitions of two aliens being detained pursuant to 8 U.S.C. § 1231(a)(6). This statute indicates that the Government “may” detain certain aliens after those aliens have been ordered removed from the United States, while actual removal is being effectuated. Both aliens in Zadvydas were subject to removal orders and otherwise qualified for detention under § 1231(a)(6), but the Government had been unable to actually effectuate their removal.[12] Facing “potentially permanent” detention, the petitioners challenged the statute's constitutionality.[13]

         The Supreme Court began its analysis by recognizing that “[f]reedom from imprisonment lies at the heart of the liberty that [the Due Process] Clause protects” and that “[a] statute permitting indefinite detention of an alien would raise a serious constitutional problem, ” especially in light of that court's previous decisions requiring either “adequate procedural protections” before detention is permitted in criminal proceedings or “special justification[s]” before detention is permitted in “certain special and narrow nonpunitive circumstances.”[14] The Supreme Court then rejected the Government's two asserted interests in petitioners' detention. First, the court rejected the Government's asserted interest in “ensuring the appearance of aliens at future immigration proceedings, ” since “removal seem[ed] a remote possibility at best” for these petitioners.[15] And second, the court rejected the Government's asserted interest in “preventing danger to the community, ” since detention under the statute was not “limited to specially dangerous individuals and subject to strong procedural protections” but instead applied “broadly to aliens ordered removed for many and various reasons, including tourist visa violations” and was subject to no procedural check other than “administrative proceedings, where the alien bears the burden of proving he is not dangerous.”[16]

         The constitutional problems thus highlighted, the Supreme Court queried whether there was “any clear indication of congressional intent to grant the [Government] the power to hold indefinitely in confinement an alien ordered removed.”[17] Finding none, the court used the constitutional avoidance canon to interpret the statute as allowing detention only for a period “reasonably necessary to bring about [an] alien's removal from the United States.”[18] Clarifying, the court noted that six months of detention was presumptively reasonable, but that detention beyond that period was permissible only if the Government was able to show a “significant likelihood of removal in the reasonable foreseeable future.”[19] The court indicated, however, that “as the period of prior postremoval confinement grows, what counts as the ‘reasonably foreseeable future' conversely would have to shrink.”[20]

         2. Demore

         In its 2003 decision in Demore v. Kim, [21] the Supreme Court considered the habeas petition of an alien being detained pursuant to 8 U.S.C. § 1226(c). This statute authorizes the Government to detain certain aliens-i.e., those convicted of specific, serious crimes-pending a decision on whether or not those aliens should be removed from the United States.[22] The alien in Demore did not dispute that he had been convicted of a qualifying predicate crime or that he was deportable under the law.[23] He did, however, argue that the Government could not constitutionally detain him without specifically finding that his release would pose flight risk or create a danger to the community.[24]

         In his majority opinion, Chief Justice Rehnquist first noted that 8 U.S.C. § 1226(c) covered “a limited class of deportable aliens-including those convicted of an aggravated felony.”[25] He then explained that Congress's purposes in enacting 8 U.S.C. § 1226(c) included “deal[ing] with increasing rates of criminal activity by aliens” and the Government's “near-total inability to remove deportable criminal alien” and noted Congress's consideration of “evidence that one of the major causes of [these problems] was [the Government's] failure to detain those aliens during their deportation proceedings.”[26] Finally, he highlighted the “proposition that Congress may make rules as to aliens that would be unacceptable if allied to citizens” and may rely on “reasonable presumptions and generic rules” when legislating in this area.[27]

         Chief Justice Rehnquist then distinguished Zadvydas. First, he noted that detention of aliens while their removal proceedings were underway actually served the Government's interest in preventing flight, unlike the detention of aliens whom the Government was, for other reasons, practically unable to remove.[28] Second, he contrasted the “brief” and “limited” period of detention during removal proceedings-“roughly a month and a half in the vast majority of cases . . . and about five months in the minority of cases”-with the “indefinite and potentially permanent” detention of aliens practically unremovable.[29] And although the Demore petitioner had been detained for six months, Chief Justice Rehnquist explained that at least part of that delay was attributable to the petitioner's request to continue his removal hearing.[30]

         In consequence of all that, Chief Justice Rehnquist held that detaining petitioner, “a criminal alien who has conceded that he is deportable, for the limited period of his removal proceedings, ” was constitutional.[31]

         Justice Kennedy provided the fifth vote for the portion of Chief Justice Rehnquist's opinion affirming the constitutionality of the Demore petitioner's detention. In a concurring opinion, Justice Kennedy first highlighted the fact that the petitioner conceded that he was “properly included in [the] mandatory detention category” created by 8 U.S.C. § 1226(c).[32] Justice Kennedy then asserted that an alien in petitioner's shoes “could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified”; that is, “[w]ere there to be an unreasonable delay by the [Government] in pursuing and completing deportation proceedings, it could become necessary then to inquire whether the detention is not to facilitate deportation, or to protect against risk of flight or dangerousness, but to incarcerate for other reasons.”[33] Finding that not to be “a proper influence, . . . either from the statutory scheme itself or from the circumstances of this case, ” Justice Kennedy noted his approval of Chief Justice Rehnquist's opinion “in full.”[34]

         3. Diop and ...

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