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Cinquemani v. Ashcroft

February 27, 2006

MARIE SYLVANA CINQUEMANI, PETITIONER,
v.
JOHN ASHCROFT, ET AL., RESPONDENTS.



The opinion of the court was delivered by: William M. Skretny United States District Judge

ORDER

I. INTRODUCTION

On July 29, 2003, Marie 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 her Petition, Mrs. Cinquemani, a visitor under the Visa Waiver Pilot Program ("VWPP"), alleged that she did not knowingly and intelligently waive her right to a removal hearing when she entered the United States, and that the Immigration and Naturalization Service ("INS") violated her due process rights by ordering her removed without a hearing.*fn1 By Decision and Order entered on March 18, 2005, this Court granted Mrs. Cinquemani's Petition and vacated her Order of Removal. Currently before this Court is Mrs. 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, Mrs. Cinquemani's Motion for Attorneys' Fees is denied.

II. BACKGROUND

A. Facts

The following facts are derived from the Petition and other documents in support of and in opposition to the Petition and the instant motion. Mrs. Cinquemani is a native of Mauritius and a citizen of Italy. (Cinquemani Aff., ¶ 1).*fn3 On October 11, 1989, Mrs. Cinquemani traveled to the United States with her Italian-citizen husband, Giuseppe Cinquemani, and her two Italian-citizen sons, Stephano Franceso and Luciano Cinquemani. (Cinquemani Aff., ¶ 4). Mrs. Cinquemani's knowledge of English at that time was very limited. (Cinquemani Aff., ¶ 10).

Upon Mrs. Cinquemani's admission into the United States, she executed a form I-94 Departure Notice ("I-94 form"). (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).*fn4 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). The I-791 form requires the visitor's signature. (Mitchell Aff., ¶ 10, Ex. B). There is no evidence that the admitting officer presented Mrs. Cinquemani with an I-791 form when she entered the United States on October 11, 1989. (Mitchell Aff., ¶ 11). Mrs. Cinquemani maintains that she was never advised, verbally or in writing, that by entering under the VWPP, she waived her right to a removal hearing. (Cinquemani Aff., ¶ 15).

Although Mrs. CInquemani was only authorized to remain in the United States under the VWPP until January 10, 1990, she has not left since her arrival. (Resp.'s Opp. to Mot. for Att. Fees, p.2). On October 31, 2002, Mrs. Cinquemani and her sons were directed 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., ¶ 18). Mrs. Cinquemani's Order of Removal alleges that she waived her right to a removal hearing when she entered the United States. (Pet.'s Resp., ¶ 19).

B. Procedural Background

Mrs. Cinquemani filed her 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 Mrs. Cinquemani's Petition and vacating her 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 her 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 Mrs. Cinquemani's waiver was knowing and voluntary and thus concluded that the agency violated her due process rights by issuing an order for her removal without a hearing. The Decision and Order granting Mrs. Cinquemani's Petition was entered on March 18, 2005. On April 19, 2005, Mrs. Cinquemani filed the instant Motion for Attorneys' Fees.

III. DISCUSSION

A. Standard for Fee Award Under the EAJA

The EAJA provides that a court shall award attorneys' fees and other expenses to a "prevailing party" in any civil action in which the United States is a party, "unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." See 28 U.S.C. § 2412(d)(1)(A); Comm., I.N.S. v. Jean, 496 U.S. 154, 158, 110 S.Ct. 2316, 2319, 110 L.Ed. 2d 134 (1990). To obtain such fees, the prevailing party must submit an application within 30 days of a "final judgment" in the action. 28 U.S.C. ยง 2412(d)(1)(B). The ...


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