United States District Court, D. Minnesota
R. Bruning, KIM HUNTER LAW, PLLC, for petitioner.
Voss and Ann M. Bildtsen, UNITED STATES ATTORNEY'S
OFFICE, for respondents.
Patrick J. Schiltz United States District Judge.
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.
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. §
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.
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). “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).
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.
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).
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,