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Muse v. Barr

United States District Court, D. Minnesota

September 9, 2019

WILLIAM P. BARR, Attorney General; KEVIN MCALEENAN, Acting Secretary, Department of Homeland Security; MATTHEW T. ALBENCE, Acting Director, Immigration and Customs Enforcement; PETER BERG, Director, St. Paul Field Office Immigration and Customs Enforcement; and KURT FREITAG, Freeborn County Sheriff, Respondents.[1]

          John R. Bruning, KIM HUNTER LAW, PLLC, for petitioner.

          Ana H. Voss and Ann M. Bildtsen, UNITED STATES ATTORNEY'S OFFICE, for respondents.


          Patrick J. Schiltz United States District Judge.

         This matter is before the Court on petitioner Abdullahi Muse's motion for attorney's fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412.

         Muse, a native of Somalia, came to the United States in 1995 as a refugee and soon became a lawful permanent resident. ECF No. 1 at 7; ECF No. 9 at 1. In 2013, Muse was convicted of theft by obtaining services without payment, ECF No. 7-2 at 2, and two years later he was convicted of financial transaction card fraud, ECF No. 7-3 at 2. The Department of Homeland Security initiated removal proceedings against Muse and, on July 5, 2017, United States Immigration and Customs Enforcement took him into custody under 8 U.S.C. § 1226(c).

         Months after he was taken into custody, Muse sought habeas relief under 28 U.S.C. § 2241, arguing that his prolonged detention without an individualized hearing violated due process. The Court granted Muse's petition in part and ordered an immigration judge to “make an individualized determination regarding whether detention is necessary to protect the community or to prevent Muse from fleeing.” Muse v. Sessions, No. 18-CV-0054 (PJS/LIB), 2018 WL 4466052, at *7 (D. Minn. Sept. 18, 2018). Muse now moves for an award of attorney's fees. ECF No. 24.

         The EAJA provides that a prevailing party is entitled to fees and expenses in any action brought against the United States “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).[2] “Substantially justified means ‘justified to a degree that could satisfy a reasonable person.'” Bah v. Cangemi, 548 F.3d 680, 683 (8th Cir. 2008) (quotation omitted). A litigation position that is ultimately rejected may nonetheless be substantially justified if “a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact.” Id. at 683-84 (quotation omitted); see Mattson v. Bowen, 824 F.2d 655, 656 (8th Cir. 1987) (“To show that his position is ‘substantially justified,' the Secretary must show that it is ‘clearly reasonable, well founded in law and fact, solid though not necessarily correct.'” (quotation omitted)). The government bears the burden of demonstrating that its litigation position was substantially justified. Friends of Boundary Waters Wilderness v. Thomas, 53 F.3d 881, 885 (8th Cir. 1995).

         Throughout this litigation, the government has taken the position that the Due Process Clause does not place any limit on the detention of a criminal alien under § 1226(c) so long as that detention serves an “immigration purpose”-that is, ensures that the alien will not flee (so that the government can “effect[] removal of a criminal alien if he is ordered removed at the end of the proceedings, ” ECF No. 13 at 7) and ensures that the alien will not endanger the community. Of course, this is no limitation at all, because detaining a criminal alien will always ensure that the alien will not flee or endanger the community. That is the reason why the government argues that, no matter how long a criminal alien is detained under § 1226(c), the alien is never entitled to a bond hearing at which a judge makes an individualized determination about the likelihood that he will flee or endanger the community. Indeed, not only does the government contend that the length of detention carries no constitutional significance, the government argues (somewhat perversely) that the longer a criminal alien is detained, the more justifiable is his continued detention:

[T]he government's interest in keeping the alien in custody (and the alien's incentive to abscond) will typically increase over time as removal proceedings progress towards their completion. A criminal alien on the cusp of removal has a greater incentive to abscond than one who is at the beginning of his proceedings.

ECF No. 13 at 7. According to the government, only if the government acts in bad faith by unreasonably delaying removal proceedings might a court conclude that the alien was not being detained for an “immigration purpose” (but instead for punitive or other purposes) and that the Due Process Clause is violated. But, says the government, such a case would be “extraordinary.” Id. at 10. At bottom, the government's position is that, as long as the government acts in good faith, a criminal alien can be detained under § 1226(c) for as long as necessary to complete the removal proceedings-and the alien is never entitled to a bond hearing regarding the likelihood that he will flee or endanger the community if released.

         In its prior order, the Court identified significant problems with the government's position, including the fact that the government's position cannot be reconciled with the two most relevant Supreme Court cases: Jennings v. Rodriguez, 138 S.Ct. 830 (2018), and Zadvydas v. Davis, 533 U.S. 678 (2001). Muse, 2018 WL 4466052, at *3. The government argues that its position was nevertheless substantially justified because the language of § 1226(c) mandates the detention of Muse and similar removable aliens. ECF No. 29 at 3; see Jennings, 138 S.Ct. at 847. That is true, but irrelevant. The central question in this litigation is not what the statute requires, but instead the constitutionality of what the statute requires. See Jennings, 138 S.Ct. at 851 (holding that § 1226(c) requires detaining criminal aliens but leaving open the question of whether the Due Process Clause imposes limits on that detention).

         More to the point, the government argues that its position was substantially justified because neither the United States Supreme Court nor the Eighth Circuit has expressed an opinion on the extent to which the Due Process Clause limits detention under § 1226(c). ECF No. 29 at 4 (“Given this dearth of . . . precedent on the constitutionality of § 1226(c) as applied here, the United States' position in this matter was substantially justified.”). The government emphasizes that

[t]he clarity of the governing law is an important factor to consider in determining whether the government's position was substantially justified. . . . [I]f the governing law is unclear or in flux, it is more likely that the government's position will be substantially justified.

Mattson, 824 F.2d at 657 (quoting Martinez v. Sec'y of Health and Human Servs.,815 F.2d 1381, 1383 ...

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