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LUNG YEUNG v. RENO

November 3, 1994

Larry Lung Yeung, Plaintiff,
v.
Janet Reno, United States Attorney General, Defendant.


CARTER


The opinion of the court was delivered by: ROBERT L. CARTER

CARTER, District Judge

 Preliminary Statement

 Plaintiff Larry Lung Yeung has applied for an award of attorney's fees pursuant to the Equal Access to Justice Act ("EAJA"). 28 U.S.C. § 2412 (1994). Yeung applied for adjustment to lawful permanent resident status under the Chinese Student Protection Act of 1992 ("CSPA"), Pub. L. No. 102-404, § 2, 106 Stat. 1969 (Supp. 1993), which provides protection against deportation to "certain nationals of the People's Republic of China," ("PRC"). The Immigration and Naturalization Service ("INS") denied Yeung's application because it found him "statutorily ineligible," (Complaint, Exhibit L), citing Yeung's initial illegal entry into the United States and subsequent return to China, and a lack of evidence of advance parole as causes. Id.

 Yeung brought an action on December 7, 1993, against defendant Janet Reno, Attorney General of the United States for declaratory and injunctive relief, seeking to have his adjustment request granted. The government argued that Yeung's complaint was not ripe for review because he had not exhausted all available administrative remedies, in particular, renewal of his application in deportation proceedings. As a result, the government argued that the court lacked jurisdiction to hear the case. Yeung moved for summary judgment, and the government cross-moved for the same. Yeung's request for adjustment was subsequently granted by the INS, resulting in plaintiff's and defendant's counsels' stipulating to dismiss the action on June 29, 1994.

 I.

 The EAJA mandates the award of fees to the prevailing party in suits that challenge agency actions "unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A) (1994). It is undisputed that Yeung prevailed in his case against the INS. See Environmental Defense Fund, Inc. v. Watt, 722 F.2d 1081, 1082 (2d Cir. 1983), citing H.R. Rep. No. 1418, 96th Cong., 2d Sess. 11 (1980), reprinted in 1980 U.S.C.C.A.N. 4984, 4990; see also Correa v. Heckler, 587 F. Supp. 1216, 1220 (S.D.N.Y. 1984) (Ward, J.). The only issues we must address are whether the position of the United States was "substantially justified" and, if it was not, the appropriate amount to award.

 The test for determining whether the government's position is substantially justified is "essentially one of reasonableness." *fn1" H.R. Rep. No. 1418, at 10, reprinted in 1980 U.S.C.C.A.N. at 4989; accord Pierce v. Underwood, 487 U.S. 552, 565 n. 2, 101 L. Ed. 2d 490, 108 S. Ct. 2541 (1988); Federal Election Comm'n v. Political Contributions Data, Inc., 995 F.2d 383, 386 (2d Cir. 1993), cert. denied, 127 L. Ed. 2d 384, 114 S. Ct. 1064 (1994); Cohen v. Bowen, 837 F.2d 582, 585 (2d Cir. 1988); Environmental Defense Fund, 722 F.2d at 1085. The United States must make a "strong showing" to demonstrate that its position was reasonable, H.R. Rep. No. 1418, at 18, reprinted in 1980 U.S.C.C.A.N. at 4989, 4997; Environmental Defense Fund, 722 F.2d at 1085; Boudin v. Thomas, 732 F.2d 1107, 1110 (2d Cir. 1984); see also Rosado, 823 F.2d 40, 42, and the court must examine "the full course of the litigation" when determining the government's reasonableness. Environmental Defense Fund, 722 F.2d at 1085.

 The "'position of the United States' means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based . . . ." *fn2" 28 U.S.C. § 2412(d)(2)(D) (1994); see also id. at § 2412(d)(1)(B). Therefore, both the position of the Attorney General and the action of the INS must be evaluated in order to determine whether the government action constituted substantially justifiable behavior. Political Contributions Data, Inc., 995 F.2d at 386. *fn3"

 II.

 The Attorney General's position was substantially justified. The fact that the government settled does not mandate the conclusion that its position was not substantially justified, H.R. Rep. No. 1418, at 11, reprinted in 1980 U.S.C.C.A.N. at 4990; accord Underwood, 487 U.S. at 568; Environmental Defense Fund, 722 F.2d at 1085; Cohen, 837 F.2d at 582; Correa, 587 F. Supp. at 1222; United States v. Giovanelli, 853 F. Supp. 88, 1994 WL 416158 (S.D.N.Y. 1994) (Motley, J.), and that therefore, it must pay attorney's fees under the EAJA, Callejo, 613 F. Supp. at 1232 (citing cases). Rather, its position may be substantially justified if it is reasonable. H.R. Rep. No. 1418, at 14, reprinted in 1980 U.S.C.C.A.N. at 4993; accord Cohen, 837 F.2d at 585; Callejo, 613 F. Supp. at 1232.

 The government's position that Yeung's complaint was not ripe for review because he could contest the denial of his application in deportation proceedings was reasonable. Section 245(a) of the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. § 1255(a) (Supp. 1993), ("INA") permits an immigrant to adjust his status, but prohibits him from directly appealing unsuccessful claims in district court. The alien, however, does have a "right to renew his or her [adjustment] application in [deportation] proceedings," *fn4" 8 C.F.R. §§ 245.2(a)(5)(ii), 242.17(a) (1994), to appeal this decision to the Board of Immigration Appeals ("BIA"), 8 C.F.R. §§ 236.7, 242.21 (1994), and then to appeal to a circuit court of appeals under Section 106(a) of the INA, 8 U.S.C. § 1105a(a) (Supp. 1993).

 This court has concluded that its direct review of an adjustment determination is precluded by the requirement of exhaustion of remedies. Augoustinakis v. United States INS at New York, N.Y., 693 F. Supp. 1554, 1555 (S.D.N.Y. 1988) (Conboy, J.); see also Small v. Kiley, 567 F.2d 163, 165 (2d Cir. 1977) (absent irreparable harm, alien must exhaust all administrative remedies); Yim Tong Chung v. Smith, 640 F. Supp. 1065, 1067, 1069-70 (S.D.N.Y. 1986) (Sprizzo, J.) (denial of asylum by INS was not judicially reviewable because deportation proceedings had not been pursued); Lindo v. INS, 596 F. Supp. 1380, 1382 (S.D.N.Y. 1984) (Keenan, J.); but see Reid v. INS, 1993 WL 267278, at *3 (S.D.N.Y. Nov. 7, 1993) (Leval, J.) (holding that district court has jurisdiction to review "determinations ancillary to deportation orders" despite the fact that alien did not exhaust all administrative remedies). Therefore, it ...


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