Baptista v. Lyons

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

___________________________________

)

ALIRIO TEIXEIRA BAPTISTA, )

Plaintiff, )

) Civil Action

v. ) No. 19-11467-PBS

)

TODD LYONS, )

Acting Field Office Director )

U.S. Immigration and Customs )

Enforcement, )

ANTONE MONIZ, )

Superintendent of Plymouth County )

Correctional Facility, )

JOSEPH D. MCDONALD, JR., )

Sheriff of Plymouth County )

Respondents. )

______________________________ )

MEMORANDUM AND ORDER

February 11, 2020

Saris, D.J.

This is a motion for attorney fees and costs in the amount

of $12,417.50 brought under the Equal Access to Justice Act

(“EAJA”) by Petitioner Alirio Teixeira Baptista against

Respondents Todd Lyons, Antone Moniz and Joseph D. McDonald, Jr.

After hearing and review of the record, this Court DENIES the

motion for attorney fees. (Docket No. 13).

FACTUAL BACKGROUND

Unless otherwise noted, the following facts are undisputed.

I. Petitioner’s Background

Petitioner is a citizen of Cape Verde who has resided in

the United States for over 40 years. He entered the United

States on October 27, 1979 as a lawful permanent resident. He

has three U.S. citizen children.

On April 30, 2001, Petitioner was found guilty of

possession of cocaine and placed in removal proceedings. An

immigration judge granted Petitioner’s application for

cancellation of removal on January 6, 2003.

Petitioner was subsequently convicted of other state

crimes: a January 2006 conviction for second offense of

shoplifting; a February 2006 conviction for receiving stolen

property; a November 2008 conviction for larceny and trespass; a

February 2009 conviction for possession of cocaine; an August

2015 conviction for operating a motor vehicle with a revoked

license; and two December 2016 convictions for shoplifting by

asportation, third offense. He also has three open cases in

state court.

In January 2017, the Department of Homeland Security

(“DHS”) issued a Notice To Appear charging Petitioner with

removability on two grounds. Petitioner was charged under INA

§ 237(a)(2)(A)(ii) as an alien who has been convicted of two

crimes involving moral turpitude after admission, and under INA

§ 237(a)(2)(B)(i) as an alien who has been convicted of a

violation of (or conspiracy or attempt to violate) any law

related to controlled substances. In February 2017, when

Petitioner attempted to appear at the Quincy District Court to

schedule hearings on his open criminal matters, he was taken

into immigration custody.

In April 2017, the controlled substances offense that

provided the basis for Petitioner’s removal under INA

§ 127(a)(2)(B)(i) was vacated with prejudice, causing the

corresponding charge of removability to be withdrawn in August

2017. Thereafter, only the ground for removal based on two

crimes involving moral turpitude remained.

II. Immigration Court Proceedings

A Petition for Alien Relative was filed by Petitioner’s

daughter on his behalf in July 2017 and was approved in

September 2017. After that, Petitioner submitted to Immigration

Court an application to adjust status and an application for

waiver of grounds of inadmissibility. At the December 5, 2017

hearing, DHS moved to pretermit Petitioner’s applications based

on his 2001 conviction for possession of cocaine.

On December 19, 2017, the immigration judge granted DHS’s

motion and ordered Petitioner removed to Cape Verde. Petitioner

appealed the removal order to the Board of Immigration Appeals

(BIA). The appeal was dismissed on May 9, 2018.

After additional rulings on Petitioner’s motions to reopen

his case, the BIA remanded Petitioner’s case back to the

Immigration Court on October 3, 2018. In early 2019, an

immigration judge again ordered Petitioner removed to Cape

Verde. Petitioner did not appeal. Instead, he filed motions for

new trial for the state court convictions that rendered him

deportable.

Meanwhile, the United States Immigration and Customs

Enforcement (“ICE”) scheduled the Petitioner’s removal to Cape

Verde on June 28, 2019. Due to a lack of available seats on the

June 28, 2019 flight, ICE moved the date of removal to July 5,

2019. Petitioner and his family were notified of the removal

date.

III. State Court Proceedings

On July 1, 2019, the Quincy District Court issued a habeas

writ to the Sheriff of Plymouth County and the Plymouth

Correctional Facility to bring Petitioner to court on July 3,

2019. Petitioner sought to clear default warrants issued during

Petitioner’s detention by ICE and to be heard on his motion for

new trial.

Petitioner was not brought to the Quincy District Court on

July 3, 2019. Petitioner’s counsel was unable to reach anyone at

ICE’s Boston field office that day. According to Respondents,

ICE received the habeas writ from the Quincy District Court on

July 2, 2019. ICE states that it did not honor the writ because

it did not have enough advance notice.

In addition to the July 3, 2019 hearing, Petitioner had

evidentiary hearings scheduled for July 8, 2019 in the Boston

Municipal Court (“BMC”) in Roxbury and July 12, 2019 in BMC

Dorchester. ICE claims that it did not receive a habeas writ for

the July 8, 2019 hearing. On July 9, 2019, ICE received a habeas

writ for the July 12, 2019 hearing and approved it. Petitioner

was successful in his post-conviction motions in state court,

and subsequently filed a motion to reopen in immigration court.

Petitioner was released from immigration custody and his status

has been returned to that of a lawful permanent resident.

IV. Federal Habeas Proceedings

On July 3, 2019, Petitioner filed a petition for writ of

habeas corpus in this Court on the ground that Respondents

failed to transport him to his state criminal court hearing. In

his petition, Petitioner also sought a temporary restraining

order (“TRO”) requiring the government to transport him to the

July 8, 2019 hearing, the July 12, 2019 hearing, and the

rescheduled July 3, 2019 hearing. On the same day, this Court

(Saris, J.) issued a standard, pro forma order requiring ICE to

give the Court 48 hours advance notice before Petitioner was

moved out of the jurisdiction in order to give the Court time to

consider the petition. As a result, Respondents cancelled

Petitioner’s removal from the District scheduled for July 5.

On July 5, 2019, the court (Young, J., the Emergency Judge)

granted, ex parte, a 10-day TRO which provides in full:

Treating the prayer for affirmative injunctive relief

as seeking all lesser forms of relief, this Court, ex

parte, enters the following temporary restraining

order to preserve the status quo and all the rights of

the parties:

Upon the filing of a petition verified under oath (the

present petition is not), the respondents, their

agencies, servants, employees, and all persons acting

in concert with them, including the Article I

adjudicative arm of the Department of Homeland

Security (the immigration courts) are hereby

restrained and enjoined for the period of ten days

from taking any action whatsoever – procedural or

substantive – further to effectuate the deportation of

the petitioner. Any action taken in violation of this

order is void and of no force and effect.

This order shall terminate upon the happening of the

first of the following three conditions:

1. The petitioner is afforded the opportunity to attend

duly scheduled hearings pertaining to his post-

conviction remedies in the Courts of the

Commonwealth.

2. The Court enters a further order modifying or

terminating this temporary restraining order.

3. Ten days shall elapse.

Docket No. 4. After Petitioner attended his criminal

proceedings, he was released from immigration custody on July

19, 2019.

On July 26, 2019, Respondents moved to dismiss the petition

on the ground that Petitioner was released. On August 16, 2019,

Respondents’ motion was granted without opposition. As a result,

the case was dismissed without prejudice.

On September 9, 2019, Petitioner filed this timely motion

for attorneys’ fees pursuant to Fed. R. Civ. P. 54 and the EAJA,

28 U.S.C. § 2412.

LEGAL STANDARD

Generally, each party is required to bear his own

attorneys’ fees. Castañeda-Castillo v. Holder, 723 F.3d 48, 56

(1st Cir. 2013). However, under the EAJA a party may obtain

attorneys’ fees from the government if he proves “1) that he is

the prevailing party in the civil action; 2) that his petition

was timely filed; 3) that the government’s position was not

substantially justified; and 4) that no special circumstances

make an award against the government unjust.” Id. at 57

(citations omitted). The EAJA seeks to “eliminate financial

disincentives for those [challenging] unjustified governmental

action” and to “deter the unreasonable exercise of Government

authority.” Ardestani v. INS, 502 U.S. 129, 138 (1991).

Nevertheless, since the EAJA effectively waives part of the

government’s sovereign immunity by making it liable for the

other party’s attorney fees, it must be strictly construed in

favor of the government. Id. at 137.

DISCUSSION

I. Prevailing Party

Respondents argue that Petitioner is not a prevailing party

because he did not succeed on the merits of his claim. The

phrase “prevailing party” is a “legal term of art” for “one who

has been awarded some relief by the court.” Buckhannon Bd. &

Care Home, Inc. v. W.Va. Dep’t of Health & Human Res., 532 U.S.

598, 603 (2001). A party does not achieve prevailing party

status merely by “accomplishing its objectives,” Castañeda-

Castillo, 723 F.3d at 57, or by instigating “a voluntary change

in the [opposing party’s] conduct” through litigation,

Buckhannon, 532 U.S. at 601.

To qualify as a prevailing party, a party must show both

(1) a “material alteration of the legal relationship of the

parties” and (2) a “judicial imprimatur on the change.”

Castañeda-Castillo, 723 F.3d at 57 (quoting Aronov v.

Napolitano, 562 F.3d 84, 89 (1st Cir. 2009)). The “judicial

imprimatur” requirement is met only where the party “obtained a

court-ordered consent decree” or “received a judgment on the

merits.” Castañeda-Castillo, 723 F.3d at 57 (quoting Buckhannon,

532 U.S. at 605).

Several circuit courts have held that a party is a

prevailing party if it “secures a preliminary judgment based on

a judicial judgment of the likelihood of success on the merits,

and the passage of time together with that injunction, provides

the party with all the relief it has ever sought.” Tri-City

Cmty. Action Program, Inc. v. City of Malden, 680 F. Supp. 2d

306, 312-14 (D. Mass. 2010) (collecting cases from the Third,

Fifth, Ninth, and District of Columbia Circuits). In contrast,

“interlocutory orders that serve merely to maintain the status

quo usually are deemed insufficient to buoy a fee award.” Me.

Sch. Admin. Dist. No. 35 v. Mr. R., 321 F.3d 9, 15 (1st Cir.

2003); see also Sinapi v. R.I. Bd. of Bar Exam’rs, 910 F.3d 544,

551-52 (1st Cir. 2018) (holding the standards for a prevailing

party were not met where the district court had declined to

address the moving party’s substantive arguments during the

“hasty and abbreviated” ex parte TRO proceedings)

Here, Petitioner argues that a “material alteration of the

legal relationship of the parties” occurred because this Court

barred Petitioner’s removal from the District of Massachusetts

via both a standard 48-hour order on July 3, 2019 and a TRO on

July 5, 2019. Respondents do not dispute that upon receiving the

48-hour order, they cancelled Petitioner’s removal scheduled for

July 5, 2019.

The essential question, then, is whether the Court’s orders

constituted “judicial imprimatur” by providing a “judgment on

the merits.” The 48-hour order aimed only to “give the Court

time to consider” the petition, addressed no substantive issues,

and made no determinations of Petitioner’s likelihood of success

on the merits. Likewise, the TRO was issued based on an ex parte

request, did not address the merits of Petitioner’s claim, and

did not make any explicit findings of either party’s likelihood

of success on the merits. The TRO’s stated purpose was simply

“to preserve the status quo and all the rights of the parties.”

Docket No. 4 at 1. Such orders cannot confer prevailing party

status.

Petitioner argues that the Emergency Judge found a

likelihood of success for Petitioner’s claim of a right to

attend state court proceedings, because the judge held that the

TRO would terminate if Petitioner had the “opportunity to attend

duly scheduled hearings” in state court. Docket No. 4 at 1. But

Petitioner reads the TRO too narrowly. The order states that it

will terminate upon the happening of the earliest of three

conditions, only one of which was Petitioner’s attendance at the

state court proceedings. The Court did not order Petitioner

transported to the hearing. Accordingly, the Emergency Judge did

not address the merits of Petitioner’s case when he issued the

TRO.

II. Substantial Justification

Even if Petitioner were to qualify as a prevailing party,

attorneys’ fees would not be merited here because the

government’s position in the litigation was “substantially

justified.” Castañeda-Castillo, 723 F.3d at 73.

Under the EAJA, the government bears the burden to

establish that its position was “substantially justified” “both

during the litigation and the agency proceedings that preceded

the litigation” by “a preponderance of the evidence.” Id. A

position is “substantially justified” when it “had a reasonable

basis both in law and in fact.” Pierce v. Underwood, 487 U.S.

552, 563 (1988) (citation omitted). In other words, the

government’s position is reasonable if it is “justified to a

degree that could satisfy a reasonable person.” Id. at 565. The

government’s position does not to be “justified to a high

degree”; rather, as long as its position is “justified in

substance or in the main,” it is “substantially justified.”

Saysana v. Gillen, 614 F.3d 1, 5 (1st Cir. 2010) (quoting

Pierce, 487 U.S. at 565).

Here, the government did not take any position with respect

to the 48-hour order or the TRO, as they were issued ex parte.

Moreover, its position in this litigation and the prior

proceedings was substantially justified. On July 1, 2019, the

Quincy District Court issued the request for a hearing held on

July 3, 2019, which Respondents allegedly did not receive until

July 2, 2019. According to the Committee for Public Counsel

Services’ recommended practice for bringing defendants from

immigration custody to state court proceedings (“habeing”),

dated January 2019, “defense counsel should request that the

clerk issue the habe a few days prior to the court date (as

opposed to the day before).” Docket No. 21-1 at 1. Respondents

argue that they were unable to accommodate Petitioner’s request

to attend the July 3, 2019 hearing because they had insufficient

time to “coordinate in order for transport to occur.” Id. Given

that the habeas writ issued during the Fourth of July week and

allowed the government less than the recommended notice,

Respondents have established that their failure to honor the

July 1, 2019 habeas writ was “substantially justified.”

Castañeda-Castillo, 723 F.3d at 73. Furthermore, Petitioner was

brought to state court for the July 12, 2019 hearing, when the

government received the habeas writ in a timely fashion.

Petitioner has a constitutional due process right to “be

present at any stage of [a] criminal proceeding that is critical

to its outcome if his presence would contribute to the fairness

of the procedure.” Kentucky v. Stincer, 482 U.S. 730, 745

(1987); see also United States v. Veloz, No. 17-2136, 2020 WL

401801, at *10 (1st Cir. Jan. 24, 2020) (reiterating same).

Petitioner claims that he accordingly had a constitutional right

to be heard on his motion for a new trial on July 3, 2019. Even

if true, Respondents have demonstrated that given the

circumstances of this case, in particular the last-minute nature

of Petitioner’s request, the government was substantially

justified in not honoring the habeas writ.

ORDER

Petitioner’s motion for attorney fees (Docket No. 13) is

DENIED.

SO ORDERED.

/s/ PATTI B. SARIS

Hon. Patti B. Saris

United States District Judge