Appeal from a decision and order of the United States District Court for the Southern District of New York (Griesa, Judge) denying an application for attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 (Supp. V 1981).
Van Graafeiland, Meskill and Winter, Circuit Judges.
John Oguachuba appeals from Judge Thomas P. Griesa's denial of an application for attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412 (Supp. V 1981). The application followed a grant of Oguachuba's petition for the writ of habeas corpus, Oguachuba v. INS, 82 Civ. 0073 (S.D.N.Y. Jan. 28, 1982). On appeal, Oguachuba and amicus curiae, the American Immigration Lawyer's Association, contend that Oguachuba's conceded history of misconduct did not constitute a "special circumstance" for which attorneys' fees may be denied within the meaning of the EAJA, 28 U.S.C. §§ 2412(d)(1)(A) and (2), and that the government's opposition to Oguachuba's petition for the writ was not "substantially justified" under 28 U.S.C. § 2412(d)(1)(A). In addition, both Oguachuba and amicus claim that the government's opposition to his petition was in bad faith and that attorneys' fees should be awarded under the "bad faith" exception, which permits an award in circumstances in which the common law would have permitted an award against a private party. 28 U.S.C. § 2412(b).
Because we agree with Judge Griesa that Oguachuba's persistent flouting of United States immigration law constituted "special circumstances mak[ing] an award [of attorneys' fees] unjust," 28 U.S.C. § 2412(d)(1)(A), we need not reach the question of whether the government's position in opposing the petition for a writ of habeas corpus was substantially justified. We also reject as waived Oguachuba's argument that the government proceeded in bad faith.
Oguachuba's extraordinary persistence in evading the lawful efforts of the INS to deport him to Nigeria, his flagrant contempt for United States law and the fact that his own decision not to acquiesce in deportation caused his incarceration constitute the "special circumstances" which make it inequitable to award him attorneys' fees under the EAJA. Regrettably, Mr. Oguachuba's exploits must be recounted at some length.
Oguachuba is a Nigerian citizen*fn1 who entered the United States on February 5, 1975 under a non-immigrant student visa. He attended Spring Arbor College in Spring Arbor, Michigan, until May 1976, when he was dismissed on disciplinary grounds. Oguachuba then transferred to the University of Michigan but soon left during the Spring 1977 semester due to failing grades. The ease with which these academic institutions obtained his departure from their premises sharply contrasts with the difficulties encountered by the INS in obtaining his permanent exit from the United States.
On February 6, 1978, two days after Oguachuba's student visa expired, someone claiming to be Zannie Lee Wesley Oguachuba presented herself at INS offices and sought to have Oguachuba classified as her spouse so he might obtain an immigrant visa. She failed, however, to follow through and INS administrative procedures extinguished her request on September 23, 1978.*fn2 On February 10, 1978, despite his non-student status, Oguachuba requested and received an extension of his student visa until February 4, 1979. However, he did not leave the country on that date, nor apparently did he seek further extensions of his visa.
After his departure from the University of Michigan, Oguachuba apparently embarked upon a series of anti-social acts which enabled INS agents to locate him during periodic appearances in local Michigan courtrooms. During the immigration proceedings which followed his first arrest, on June 8, 1979, the INS dropped its allegation that Oguachuba had failed to comply with his non-immigrant status, and Oguachuba, represented by counsel, conceded that he was a native citizen of Nigeria who had overstayed his February 4, 1979 departure date without authorization from the Service. The Immigration Judge then granted Oguachuba's request to be permitted voluntary departure from the United States at his own expense on or before August 21, 1979. The order included the standard proviso that if Oguachuba failed to depart by that date, an order requiring his deportation would become effective immediately.
On that date, Oguachuba appeared at the INS office in Detroit and requested an extension of his voluntary departure on the ground that his marriage to an American citizen entitled him to an immigrant visa. He stated that his wife could not appear on his behalf because she was in Baton Rouge, Louisiana visiting her ailing mother. He further represented that they were unable to afford a ticket north since she would have to return to her mother's bedside directly after the hearing but stated that Mrs. Oguachuba would be returning to school in Michigan in September anyway. On these grounds, he was granted a stay of departure until September 21, 1979. The evanescent Mrs. Oguachuba never appeared by that date and Oguachuba himself was nowhere to be found. Accordingly, the order of deportation went into effect and Oguachuba was sent a notice directing him to surrender for deportation on October 11, 1979. When he failed to surrender, a warrant was issued for his immediate arrest and deportation. The INS apprehended him on October 18, 1979, in a Michigan courtroom awaiting sentencing on an unrelated charge.
On October 19, 1979, the INS began a prolonged quest to secure the necessary travel documents from the Nigerian embassy in New York in order to return Oguachuba to Nigeria. The target date was October 23, 1979. By December 20, 1979, the papers still had not been issued and there is reason to suspect that an embassy staff member in league with Oguachuba caused the delay. On December 20, two INS agents went to the embassy to be interviewed regarding Oguachuba's status and to secure the travel documents. Upon their arrival, the embassy staff member told them that Oguachuba's presence was necessary. The agents then returned with Oguachuba in tow and were directed to wait outside the official's office while he interviewed Oguachuba in private. The agents were then sent to the consulate's office to be interviewed themselves. As they left, Oguachuba was still in the official's office. When they returned, he was gone and, once again, nowhere to be found.
Eighteen months later, the INS caught up with Oguachuba in Pittsburg, California, following his arrest on a traffic warrant. On June 24, 1981, with Oguachuba in INS custody, the Service contacted the Nigerian consulate in San Francisco to obtain the travel documents. The next day, that consulate provided the necessary papers. On July 2, 1981, Oguachuba was escorted to Kennedy International Airport by INS agents and placed on a flight to Nigeria.
Three days later, Oguachuba reappeared at Kennedy Airport, first seeking readmission to the United States as a citizen and then asserting he was a citizen or resident of Liberia who was eligible for United States citizenship but who had lost both his luggage and Liberian passport. The precise method leading to his return is obscure, but it seems probable that, after destroying his travel documents while on the airplane, he told Nigerian officials that he was a Liberian national who had lost his travel documents. The Nigerian customs agents then shunted him to Liberia, where he told officials he was an American citizen who had lost his travel documents. Liberian officials then refused Oguachuba admission to their country and returned him to the United ...