District Court Awards Attorney's Fees in EAD Delay Case
Posted Aug 15, 2008
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In Chowdhury v. Siciliano, et. al., the United States District Court for the Northern District of California awarded the plaintiff attorney's fees and costs under the Equal Access to Justice Act (EAJA). This award of fees was based upon the Court's determination that the government's reason for delaying the applicant's Employment Authorization Document (EAD) card was not reasonable or substantially justified.
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Repeated Delays in EAD Issuance
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In Chowdhury, the plaintiff's asylum application was pending since 1997. The plaintiff was entitled to apply for an EAD and did so successfully from 1997 to 2000.
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The plaintiff began having difficulty in obtaining his EAD in 2000. Despite his timely applications and multiple appointments at Legacy INS offices, Legacy INS failed to issue his EAD card within 90 days of application, as required by law. The plaintiff received an interim EAD on two occasions, after lengthy delays that were well beyond the 90-day period. This problem persisted through 2005. In 2005, there were numerous problems in obtaining the EAD, requiring eight visits to the U.S. Citizenship and Immigration Services over a period of eleven months. The plaintiff received two interim EADs during this timeframe, each valid for only two months, and, finally an EAD with a one-year validity. The same problems reappeared when the plaintiff attempted yet again to renew his EAD in 2006.
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Outcome : Agree to Dismiss with Promise of Timely EAD Issuance in Future
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The case was dismissed by agreement between the parties, based on the condition that USCIS would adjudicate the plaintiff's future, properly-filed EAD applications within 90 days of receipt.
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Government Explanation for Delay
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Following the termination of the case, the plaintiff sought attorney's fees. Under the EAJA, a prevailing party is entitled to attorney's fees if, in a civil action by or against the government, the court finds the government's position was not substantially justified, or finds any special circumstances that would make an award just.
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The USCIS explained the EAD delays by contending that they uncovered negative information during the background check that required additional investigation. It was stated that an outstanding international arrest warrant for the plaintiff was discovered. In support of delaying the EAD on this basis, USCIS relied upon a section of the law that provides for arrest and detention and institution of removal proceedings against a foreign national if a warrant is issued by the U.S. Attorney General. In that situation, the EAD may not be issued unless the foreign national otherwise (apart from the removal proceedings) would be eligible for the EAD.
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The Court found that this explanation was not well founded, as there was no U.S. warrant issued, and the plaintiff was eligible for the EAD on a separate basis.
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Fees Awarded
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Since the government could not properly account of the delays, the court found no substantially justified reason for its delay in processing the EAD application and awarded $30,025.80 in attorney's fees to the plaintiff. We would note that, while recovery of legal fees for lawsuits against the government is permitted under the provisions of EAJA, one should not assume that s/he will be granted such fees. In order to receive the fees, one must prevail and demonstrate that the government's position was not substantially justified. We at the Murthy Law Firm have found that the USCIS often simply approves long-pending cases shortly after a mandamus action is filed, rather than litigating the matter and trying to justify the delay. In such a situation, there is no prevailing party and no claim for recovery of EAJA fees.