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REID v. UNITED STATES INS

September 20, 1995

YVONNE REID, Plaintiff, against UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Defendant.


The opinion of the court was delivered by: WHITMAN KNAPP

 WHITMAN KNAPP, SENIOR D.J.

 In a memorandum of April 7, 1994, we found that plaintiff, a Jamaican national, had been awarded lawful permanent resident status in 1980 and accordingly ordered defendant to process her INS Form I-551, more popularly known as a "green card." Plaintiff now moves for an award of attorneys' fees pursuant to the Equal Access to Justice Act (hereinafter "the EAJA"), 28 U.S.C. § 2412(d). For reasons which follow, we grant the motion.

 BACKGROUND

 We inherited this matter from Judge Leval after he was appointed to the Court of Appeals for the Second Circuit. In summarizing the case, we shall rely in large part on Judge Leval's statement of facts in his July 13, 1993 memorandum. See Reid v. INS, 91 Civ. 6535 at 2-3 (PNL) (July 13, 1993) (hereinafter "the Leval Opinion").

 Plaintiff first applied for lawful permanent residence status in 1977, based on her status as the unmarried daughter of lawful permanent resident. In early 1980 defendant placed on her passport a temporary I-551 stamp indicating an adjustment of her status to lawful permanent residence. However, though defendant continued to issue plaintiff temporary I-551 passport stamps on a regular basis until March 15, 1989, it never issued a permanent INS Form I-551 or "green card." Plaintiff married on June 26, 1980.

 In September and November of 1983, defendant sent both plaintiff and her attorney interview notices, but plaintiff failed to appear at such interviews. Plaintiff claims that she failed to so appear because the notices were sent to an old address rather than the address she had provided defendant in correspondence of May 1980. Defendant contends that on January 27, 1984, after plaintiff's failure to respond to the notices, it terminated action on her application.

 In December 1983 and January 1984, plaintiff inquired by mail about her green card. Several months later defendant's facility issuing green cards informed her that it had not received the necessary forms from her local office. In October 1984, plaintiff filed an INS Form I-90 to advise defendant that she had not yet received her green card. Defendant wrote plaintiff in August 1985 to inform her that it could not locate any record of its having granted her lawful permanent resident status.

 In February 1985, plaintiff pled guilty to a charge of possession for sale of cocaine. In November 1988, defendant informed plaintiff that she had not been granted lawful permanent resident status. In August 1990, plaintiff resubmitted her application for such status to defendant. On April 4, 1991, defendant denied this renewed application on the ground that plaintiff had been convicted of a narcotics offense.

 After this matter was transferred to us defendant renewed its motion for summary judgment, which we denied. Adopting Judge Leval's ruling on the cross-motions for summary judgment we held a hearing on March 7, 1994 to resolve the factual question he had identified. We found that by a preponderance of the evidence plaintiff's initial I-551 stamp was issued prior to her marriage. Accordingly, we ordered defendant, pursuant to our authority under 5 U.S.C.A. § 706 (1977 & Supp. 1995), to grant plaintiff lawful permanent resident status.

 Plaintiff now seeks attorneys' fees in the amount of $ 110,480 pursuant to the EAJA. Defendant argues that because its position in this litigation was "substantially justified" for purposes of the EAJA it is not liable for such fees.

 DISCUSSION

 Under the EAJA, a court "shall" award attorneys fees and other expenses to a "prevailing party" ...


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