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Keywords

plaintiffattorneyvisanaturalization
plaintiffattorneyvisanaturalization

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Tow, Estate of, v. Immigration and Naturalization Service

Facts

In the action for which plaintiffs have brought the instant EAJA application for fees and expenses, plaintiffs sought to overturn INS decisions refusing to invoke 8 C.F.R. 205.1(a)(3) to retain Tow's visa petition on behalf of Chao after Tow's February 1990 death, and to grant Chao permanent resident status. On November 16, 1990, the court ruled that INS' decision, that Chao was not entitled, under 205, to seek humanitarian relief from the visa revocation, was arbitrary and capricious and not in accordance with the law. The court remanded the matter to INS to apply 205.

In the action for which plaintiffs have brought the instant EAJA application for fees and expenses, plaintiffs sought to overturn INS decisions refusing to invoke 8 C.F.R. 205.1(a)(3) to retain Tow's visa petition on behalf of Chao after Tow's February 1990 death, and to grant Chao permanent resident status. On November 16, 1990, the court ruled that INS' decision, that Chao was not entitled, under 205, to seek humanitarian relief from the visa revocation, was arbitrary and capricious and not in accordance with the law. The court remanded the matter to INS to apply 205.

Issue

Whether the plaintiffs are entitled to recover fees and expenses under the Equal Access to Justice Act (EAJA) from the Immigration and Naturalization Service (INS) and the United States.

Whether the plaintiffs are entitled to recover fees and expenses under the Equal Access to Justice Act (EAJA) from the Immigration and Naturalization Service (INS) and the United States.

Rule

Under EAJA, a court must award fees to a prevailing party unless the government can demonstrate that its position was 'substantially justified' or that special circumstances would make a fee award unjust.

Under EAJA, a court must award fees to a prevailing party unless the government can demonstrate that its position was 'substantially justified' or that special circumstances would make a fee award unjust.

Analysis

The court found that the INS acted arbitrarily and capriciously in denying the visa petition and that the government's position was not 'substantially justified.' The court determined that the applicants achieved at least some of the benefits they sought, as the INS ultimately granted lawful permanent residence status to Chao. The court awarded attorney fees at an inflation-adjusted hourly rate of $106.50, concluding that the attorney time records submitted were sufficiently detailed to support the fees charged as reasonable.

The court found that the INS acted arbitrarily and capriciously in denying the visa petition and that the government's position was not 'substantially justified.' The court determined that the applicants achieved at least some of the benefits they sought, as the INS ultimately granted lawful permanent residence status to Chao. The court awarded attorney fees at an inflation-adjusted hourly rate of $106.50, concluding that the attorney time records submitted were sufficiently detailed to support the fees charged as reasonable.

Conclusion

The court granted the applicants' application to recover fees and expenses pursuant to the EAJA, awarding a total of $36,102.90.

The court granted the applicants' application to recover fees and expenses pursuant to the EAJA, awarding a total of $36,102.90.

Who won?

The plaintiffs prevailed in the case because the court found that the INS's position was not substantially justified and awarded them reasonable fees and expenses.

The plaintiffs prevailed in the case because the court found that the INS's position was not substantially justified and awarded them reasonable fees and expenses.

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