The opinion of the court was delivered by: William M. Skretny United States District Judge
On July 29, 2003, Luciano Cinquemani filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the Western District of New York. In his Petition, Mr. Cinquemani, a visitor under the Visa Waiver Pilot Program ("VWPP"), alleged that he did not knowingly and intelligently waive his right to a removal hearing when he entered the United States, and that the Immigration and Naturalization Service ("INS") violated his due process rights by ordering him removed without a hearing.*fn1 By Decision and Order entered on March 18, 2005, this Court granted Mr. Cinquemani's Petition and vacated his Order of Removal. Currently before this Court is Mr. Cinquemani's Motion for Attorneys' fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d).*fn2 For the reasons discussed below, Mr. Cinquemani's
Motion for Attorneys' Fees is denied.
The following facts are derived from the Petition and other documents in support of and in opposition to the Petition and the instant motion. Mr. Cinquemani is a native and a citizen of Italy. (Cinquemani Aff., ¶ 1).*fn3 On October 11, 1989, Mr. Cinquemani traveled to the United States with his Italian-citizen parents, Marie and Giuseppe Cinquemani, and his Italian-citizen brother, Stephano Franceso Cinquemani.*fn4 (Cinquemani Aff., ¶ 4). Mr. Cinquemani was four years old at the time, and did not speak, read, or write English. (Cinquemani Aff., ¶¶ 5-7).
Upon Mr. Cinquemani's admission into the United States, a form I-94 Departure Notice ("I-94 form") was executed on his behalf. (Pet., Ex. C). The executed I-94 form, which is printed in the French language, bears the date January 10, 1990, and the handwritten notation "WT," which indicates admission under the VWPP. (Mitchell Aff., ¶ 6; Pet., Ex. C; Krygier Aff., ¶¶ 5-8).*fn5 Visitors admitted under the VWPP may enter the United States without a visa, and may stay for a maximum of ninety days "in exchange for waiving their right to contest any action for removal against them, unless that challenge is based upon an application for asylum." Faruqi v. Dep't of Homeland Sec., 360 F.3d 985, 986-87 (9th Cir. 2004) (citing 8 U.S.C. § 1187(b)(2)).
Prior to 1991, an admitting officer was required under the standard INS procedure to issue two separate forms to visitors under the VWPP, an I-94 form and an I-791 form. (Mitchell Aff., ¶ 10, Ex. B). The I-94 form does not contain any waiver language whatsoever. (Pet.'s Resp., Exs. H & I). By contrast, the I-791 form expressly provides, "I hereby waive any and all rights to review of or appeal from an Immigration Officer's determination as to my admissibility, or to contest, other than on a basis of an application for asylum, any action for deportation." (Mitchell Aff., ¶ 10, Ex. B). This form requires the visitor's signature. (Mitchell Aff., ¶ 10, Ex. B). There is no evidence that the admitting officer presented Mr. Cinquemani with an I-791 form, or that one was executed on his behalf when he entered the United States on October 11, 1989. (Mitchell Aff., ¶ 11).
Although Mr. Cinquemani was only authorized to remain in the United States under the VWPP until January 10, 1990, he has not left since his arrival. (Resp.'s Opp. to Mot. for Att. Fees, p.2). On October 31, 2002, Mr. Cinquemani, his mother and brother were asked to appear at the INS District Office located in Albany, New York, where they were arrested, and without a hearing, issued Orders of Removal. (Pet.'s Resp., ¶ 20). Mr. Cinquemani's Order of Removal alleges that he waived his right to a removal hearing when he entered the United States. (Pet.'s Resp., ¶ 21).
Mr. Cinquemani filed his Petition for a Writ of Habeas Corpus on July 29, 2003. After oral argument and supplemental briefing, this Court entered a Decision and Order granting Mr. Cinquemani's Petition and vacating his Order of Removal. Specifically, this Court concluded that the VWPP's express waiver condition, 8 U.S.C. § 1187(b)(2), and the Immigration and Nationality Act's "exclusive jurisdiction" provision, 8 U.S.C. § 1252, did not divest this Court of jurisdiction over Mr. Cinquemani's Petition, provided that its inquiry was limited to constitutional issues and questions of law. Further, this Court found that the INS failed to demonstrate that Mr. Cinquemani's waiver was knowing and voluntary, and thus concluded that the agency violated his due process rights by issuing an order for his removal without a hearing. The Decision and Order granting Mr. Cinquemani's Petition was entered on March 18, 2005. On April 19, 2005, Mr. Cinquemani filed the instant Motion for Attorneys' Fees.
A. Standard for Fee Award ...