Kleinauskaite v. Doll

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DAIVA KLEINAUSKAITE, No. 4:17-CV-02176

Petitioner, (Judge Brann)

v.

CLAIR DOLL,

Respondent.

MEMORANDUM OPINION

JULY 23, 2019

On November 21, 2018, this Court granted Daiva Kleinauskaite’s Petition for

a Writ of Habeas Corpus. Pursuant to the Equal Access to Justice Act (“EAJA”),

Ms. Kleinauskaite now moves this Court for an order directing the Government to

compensate her for the attorneys’ fees she incurred litigating that petition. For the

following reasons, that motion will be granted in part.

I. BACKGROUND

Ms. Kleinauskaite, a Lithuanian citizen, entered the United States in 2009.

Although authorized to stay here for only 90 days, she never left, and has been in

this country ever since.

On May 17, 2017, Ms. Kleinauskaite was arrested in Pennsylvania for driving

under the influence. She was taken into custody by the United States Immigration

and Customs Enforcement that same day. Facing removal to Lithuania, she

immediately applied for asylum, arguing that her sexuality made it dangerous for her

to return to her home country.

After an August 30, 2017 hearing, an immigration judge denied Ms.

Kleinauskaite’s asylum application as untimely, because it was filed more than one

year after her arrival in the United States and because he found no circumstances

that would excuse that delay. The Board of Immigration Appeals (“BIA”) affirmed

the immigration judge’s ruling. On June 26, 2018, while the matter was on further

appeal to the United States Court of Appeals for the Third Circuit, the Government

moved to remand the case back to the BIA for reconsideration. The BIA, on remand,

reversed itself and remanded the case back to the immigration judge for a new

hearing, which is currently scheduled for January 2020.

On November 27, 2017, while her initial appeal to the BIA was pending, Ms.

Kleinauskaite petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2241. Her petition raised two main arguments. First, she argued that she was

being detained pursuant to 8 U.S.C. § 1226(a) and that she was therefore entitled to

an individualized bond hearing pursuant to that statute’s implementing regulations.

Second, she argued that the Due Process Clause of the United States Constitution

mandated an individualized bond hearing, regardless of the statutory basis of her

detention. The Government opposed this petition on December 21, 2017. It also

raised two main arguments. First, it argued that Ms. Kleinauskaite was being

detained pursuant to 8 U.S.C. § 1187(c)(2)(E) and that the implementing regulations

of 8 U.S.C. § 1226 therefore had no application to her. Second, it argued that Ms.

Kleinauskaite’s detention was not unreasonable, such that a bond hearing was

constitutionally required.

On February 28, 2018, Chief Magistrate Judge Susan E. Schwab ordered the

parties to file briefs addressing the impact on Ms. Kleinauskaite’s petition, if any, of

a recent decision of the Supreme Court.1 When that briefing was complete, on

October 9, 2018, Judge Schwab issued her Report and Recommendation.2 Although

Judge Schwab rejected Ms. Kleinauskaite’s statutory argument—i.e., rejected Ms.

Kleinauskaite’s argument that she was detained pursuant to 8 U.S.C. § 1226(a) and

therefore entitled to an individualized bond hearing pursuant to that statute’s

implementing regulations—Judge Schwab determined that Ms. Kleinauskaite’s

continued detention without a bond hearing violated the Due Process Clause. Judge

Schwab therefore recommended that this Court grant Ms. Kleinauskaite’s petition.

On November 21, 2018, over the Government’s objection, this Court adopted

Judge Schwab’s Report and Recommendation; granted Ms. Kleinauskaite’s petition;

and ordered the Government to hold an individualized bond hearing for Ms.

Kleinauskaite at which the Government “b[ore] the burden of proving that [Ms.

1 ECF No. 10.

2 ECF No. 23.

Kleinauskaite’s] continued detention [wa]s necessary to fulfill the purposes of the

[statute under which she is detained].”3 That hearing was held on November 30,

2018, and resulted in Ms. Kleinauskaite’s release on $7,500 bond.4 The Government

appealed this Court’s decision to the Third Circuit but eventually stipulated to the

appeal’s dismissal. Ms. Kleinauskaite now moves for attorneys’ fees pursuant to the

EAJA.

II. DISCUSSION

The EAJA states that, in civil actions brought against the United States, a court

“shall” award “reasonable attorneys[’] fees” incurred by the prevailing party “unless

the court finds that the position of the United States was substantially justified or

that special circumstances make an award unjust.”5 The Government does not

dispute that Ms. Kleinauskaite was the prevailing party or that the number of hours

expended, or the hourly rate charged, by Ms. Kleinauskaite’s counsel was

unreasonable.6 The Government also does not argue that there are any special

circumstances that would make an award unjust. The Government does, however,

argue that its position was substantially justified.

3 ECF No. 30.

4 ECF No. 37-1, Ex. F.

5 28 U.S.C. § 2412(d)(1)(A).

6 The Government also does not dispute that Ms. Kleinauskaite’s net worth qualifies her for an

EAJA award. See 28 U.S.C. § 2412(d)(2)(B) (limiting the availability of fees to individuals

with a net worth of less than $2,000,000 at the time the civil action was filed).

A position by the Government is substantially justified when it has a

“reasonable basis in both law and fact.”7 And in a case involving agency action, the

Government’s position “includes . . . the agency position that made the litigation

necessary in the first place.”8 Therefore, to avoid paying Ms. Kleinauskaite’s

attorneys’ fees, the Government must show that its detention of Ms. Kleinauskaite

without a bond hearing was reasonable.

For the reasons that follow, this Court finds that Ms. Kleinauskaite’s detention

became unreasonable after twelve months.9 It will therefore order the Government

to pay all attorneys’ fees incurred by her after May 17, 2018.10

7 Hanover Potato Products, Inc. v. Shalala, 989 F.2d 123, 128 (3d Cir. 1993).

8 Id.

9 See Mendoza-Ordonez v. Lowe, 2019 WL 1410893 (M.D. Pa. Mar. 28, 2019) (“[The

Government’s] position that Petitioner’s removal was reasonably foreseeable and that this

remained the case through the time when the habeas petition was decided . . . was not

substantially justified.”).

10 It is true that the EAJA requires Courts to consider the agency’s litigation position as well as

the agency’s underlying action. See Johnson v. Gonzales, 416 F.3d 205, 210 (3d Cir. 2005)

(“[I]n immigration cases, the Government must meet the substantially justified test twice—

once with regard to the underlying agency action and again with regard to its litigation position

in the proceedings arising from that action.”). And it is also true that, if detention became

unreasonable after twelve months, it does not necessarily follow that the Government’s

litigation position vis-à-vis the reasonableness of that detention became unreasonable at the

twelve-month period. However, awarding all attorneys’ fees incurred after the twelve-month

mark—when detention actually became unreasonable—will necessarily include all attorneys’

fees incurred after the point at which it became unreasonable to argue that detention became

unreasonable.

A. Detention of Aliens During Deportation Proceedings

Reaching a conclusion on this issue requires a review of case law analyzing

and interpreting statutes that authorize the Government to detain aliens during the

removal process. Two such statutes are relevant for present purposes: 8 U.S.C. §

1226(c) and 8 U.S.C. § 1231(a)(6). Both will be discussed below.

1. Zadvydas

In its 2001 decision in Zadvydas v. Davis,11 the Supreme Court considered the

habeas petitions of two aliens being detained pursuant to 8 U.S.C. § 1231(a)(6). This

statute indicates that the Government “may” detain certain aliens after those aliens

have been ordered removed from the United States, while actual removal is being

effectuated. Both aliens in Zadvydas were subject to removal orders and otherwise

qualified for detention under § 1231(a)(6), but the Government had been unable to

actually effectuate their removal.12 Facing “potentially permanent” detention, the

petitioners challenged the statute’s constitutionality.13

The Supreme Court began its analysis by recognizing that “[f]reedom from

imprisonment lies at the heart of the liberty that [the Due Process] Clause protects”

and that “[a] statute permitting indefinite detention of an alien would raise a serious

11 533 U.S. 678 (2001).

12 Id. at 684-85.

13 Id. at 691.

constitutional problem,” especially in light of that court’s previous decisions

requiring either “adequate procedural protections” before detention is permitted in

criminal proceedings or “special justification[s]” before detention is permitted in

“certain special and narrow nonpunitive circumstances.”14 The Supreme Court then

rejected the Government’s two asserted interests in petitioners’ detention. First, the

court rejected the Government’s asserted interest in “ensuring the appearance of

aliens at future immigration proceedings,” since “removal seem[ed] a remote

possibility at best” for these petitioners.15 And second, the court rejected the

Government’s asserted interest in “preventing danger to the community,” since

detention under the statute was not “limited to specially dangerous individuals and

subject to strong procedural protections” but instead applied “broadly to aliens

ordered removed for many and various reasons, including tourist visa violations”

and was subject to no procedural check other than “administrative proceedings,

where the alien bears the burden of proving he is not dangerous.”16

The constitutional problems thus highlighted, the Supreme Court queried

whether there was “any clear indication of congressional intent to grant the

[Government] the power to hold indefinitely in confinement an alien ordered

14 Id. at 690.

15 Id.

16 Id. at 691-92.

removed.”17 Finding none, the court used the constitutional avoidance canon to

interpret the statute as allowing detention only for a period “reasonably necessary to

bring about [an] alien’s removal from the United States.”18 Clarifying, the court

noted that six months of detention was presumptively reasonable, but that detention

beyond that period was permissible only if the Government was able to show a

“significant likelihood of removal in the reasonable foreseeable future.”19 The court

indicated, however, that “as the period of prior postremoval confinement grows,

what counts as the ‘reasonably foreseeable future’ conversely would have to

shrink.”20

2. Demore

In its 2003 decision in Demore v. Kim,21 the Supreme Court considered the

habeas petition of an alien being detained pursuant to 8 U.S.C. § 1226(c). This

statute authorizes the Government to detain certain aliens—i.e., those convicted of

specific, serious crimes—pending a decision on whether or not those aliens should

be removed from the United States.22 The alien in Demore did not dispute that he

17 Id.

18 Id.

19 Id.

20 Id.

21 538 U.S. 510 (2003)

22 Detention authorized by 8 U.S.C. §1226(c), therefore, would necessarily come earlier in time

than detention authorized by 8 U.S.C. §1231(a)(6). The dividing point between those areas of

detention would be the issuance of a removal order for the alien at issue.

had been convicted of a qualifying predicate crime or that he was deportable under

the law.23 He did, however, argue that the Government could not constitutionally

detain him without specifically finding that his release would pose flight risk or

create a danger to the community.24

In his majority opinion, Chief Justice Rehnquist first noted that 8 U.S.C. §

1226(c) covered “a limited class of deportable aliens—including those convicted of

an aggravated felony.”25 He then explained that Congress’s purposes in enacting 8

U.S.C. § 1226(c) included “deal[ing] with increasing rates of criminal activity by

aliens” and the Government’s “near-total inability to remove deportable criminal

alien” and noted Congress’s consideration of “evidence that one of the major causes

of [these problems] was [the Government’s] failure to detain those aliens during their

deportation proceedings.”26 Finally, he highlighted the “proposition that Congress

may make rules as to aliens that would be unacceptable if allied to citizens” and may

rely on “reasonable presumptions and generic rules” when legislating in this area.27

Chief Justice Rehnquist then distinguished Zadvydas. First, he noted that

detention of aliens while their removal proceedings were underway actually served

23 Demore, 538 U.S. at 513-14.

24 Id. at 514.

25 Id. at 518.

26 Id.

27 Id. at 522-26.

the Government’s interest in preventing flight, unlike the detention of aliens whom

the Government was, for other reasons, practically unable to remove.28 Second, he

contrasted the “brief” and “limited” period of detention during removal

proceedings—“roughly a month and a half in the vast majority of cases . . . and about

five months in the minority of cases”—with the “indefinite and potentially

permanent” detention of aliens practically unremovable.29 And although the Demore

petitioner had been detained for six months, Chief Justice Rehnquist explained that

at least part of that delay was attributable to the petitioner’s request to continue his

removal hearing.30

In consequence of all that, Chief Justice Rehnquist held that detaining

petitioner, “a criminal alien who has conceded that he is deportable, for the limited

period of his removal proceedings,” was constitutional.31

Justice Kennedy provided the fifth vote for the portion of Chief Justice

Rehnquist’s opinion affirming the constitutionality of the Demore petitioner’s

detention. In a concurring opinion, Justice Kennedy first highlighted the fact that

the petitioner conceded that he was “properly included in [the] mandatory detention

28 Id. at 527.

29 Id. at 529-31.

30 Id. at 531.

31 Id.

category” created by 8 U.S.C. § 1226(c).32 Justice Kennedy then asserted that an

alien in petitioner’s shoes “could be entitled to an individualized determination as to

his risk of flight and dangerousness if the continued detention became unreasonable

or unjustified”; that is, “[w]ere there to be an unreasonable delay by the

[Government] in pursuing and completing deportation proceedings, it could become

necessary then to inquire whether the detention is not to facilitate deportation, or to

protect against risk of flight or dangerousness, but to incarcerate for other reasons.”33

Finding that not to be “a proper influence, . . . either from the statutory scheme itself

or from the circumstances of this case,” Justice Kennedy noted his approval of Chief

Justice Rehnquist’s opinion “in full.”34

3. Diop and Chavez-Alvarez

In its 2011 decision in Diop v. ICE/Homeland Security,35 the Third Circuit

considered another habeas petition filed by an alien arguing that his automatic,

unreviewed detention pursuant to 8 U.S.C. § 1226(c) was unconstitutional.

Recognizing Demore, the Third Circuit relied on Justice Kennedy’s fifth-vote

concurrence to hold that “[a]t a certain point, continued detention [pursuant to 8

U.S.C. § 1226(c)] becomes unreasonable and . . . [therefore] unconstitutional[,]

32 Id. at 532.

33 Id.

34 Id. at 533.

35 656 F.3d 221 (3d Cir. 2011).

unless the Government has justified its actions at a hearing inquiring into whether

continued detention is consistent with [that statute’s] purposes of preventing flight

and dangers to the community.”36 Recognizing that ascertaining reasonableness is

“necessarily . . . a fact-dependent inquiry that will vary depending on individual

circumstances,” the court “decline[d] to establish a universal point at which

detention will always be considered unreasonable,” specifically rejecting a proposed

six-month presumption of reasonableness.37 The Third Circuit, however, stated that

“there can be no question that [the petitioner’s] detention for nearly three years

[without a bond hearing] was unreasonable and, therefore, a violation of the Due

Process Clause.”38

Recognizing that holding, the Third Circuit then stated its belief that

“Congress [did not] intend[] to authorize prolonged, unreasonable[] detention

without a bond hearing.”39 The Third Circuit therefore used the constitutional

avoidance canon to hold that 8 U.S.C. § 1226(c) “contains an implicit limitation of

reasonableness,” and “authorizes only mandatory detention that is reasonable in

length.”40

36 Id. at 232.

37 Id. at 233.

38 Id.

39 Id. at 235.

40 Id.

The Third Circuit’s 2015 decision in Chavez-Alvarez v. Warden York County

Prison41 considered yet another habeas petition of an alien arguing that his

automatic, unreviewed detention pursuant to 8 U.S.C. § 1226(c) was

unconstitutional. Referencing Diop, reiterating that “any determination on

reasonableness [is] highly fact-specific,” and ostensibly rejecting any “bright-line

rule,” the court nevertheless found that, at the one-year mark, “the burdens to [the

petitioner’s] liberties” were “certainly . . . outweighed [by] any justification for using

presumptions” about flight or dangerousness that were embedded in 8 U.S.C. §

1226(c).42 The court therefore ordered that the petition be granted.

4. Jennings, Borbot, and Guerrero-Sanchez

In early 2018, the Supreme Court, in Jennings v. Rodriguez,43 held that,

because 8 U.S.C. § 1226(c) explicitly directs the Government to detain (“shall take

into custody”) certain criminal aliens, the statute is not ambiguous and is therefore

impervious to the constitutional avoidance canon. It therefore overruled the Ninth

Circuit’s interpretation of 8 U.S.C. § 1226(c) that required bond hearings. Later in

2018, in Borbot v. Warden Hudson County Correctional Facility,44 the Third Circuit

recognized that Jennings had the effect of abrogating Diop’s statutory holding—i.e.,

41 783 F.3d 469 (3d Cir. 2015).

42 Id. at 474-78.

43 138 S. Ct. 830 (2018).

44 906 F.3d 274 (3d Cir. 2018).

Diop’s holding, based on the constitutional avoidance canon, that 8 U.S.C. § 1226(c)

itself required bond hearings.45 The Third Circuit, however, declared that “Jennings

did not call into question [Diop’s] constitutional holding”—i.e., Diop’s holding that

unreasonably long detention without a bond hearing violates the Due Process

Clause.46

Another 2018 post-Jennings decision from the Third Circuit was Guerrero-

Sanchez v. Warden York County Prison,47 where the court considered a habeas

petition filed by an alien detained pursuant to 8 U.S.C. § 1231(a)(6)—i.e., an alien

whose removal proceedings were complete and was subject to an order of removal,

just like the Zadvydas petitioner. Concerned about the constitutional concerns

inherent in “prolonged detention” and determining that, after a certain point, “the

private interests at stake [become] profound and the risk of an erroneous deprivation

of liberty . . . substantial,” the Third Circuit used the constitutional avoidance canon

to interpret 8 U.S.C. § 1231(a)(6) as requiring a bond hearing after six months.48

B. Application to Ms. Kleinauskaite’s Detention

To resolve Ms. Kleinauskaite’s pending EAJA petition, this Court must

determine when, exactly, Ms. Kleinauskaite’s detention became unreasonable.

45 Id. at 278.

46 Id.

47 905 F.3d 208 (3d Cir. 2018).

48 Id. at 225.

Several of the cases considered the constitutionality of unreviewed detention

at the six-month mark. Diop specifically rejected a proposed six-month limitation

on unreviewed detention. Demore specifically approved six-month-long

unreviewed detention for criminal aliens. And Zadvydas and Guerrero-Sanchez

approved six-month-long unreviewed detention for non-criminal aliens. In fact,

since Zadvydas and Guerrero-Sanchez used the constitutional avoidance canon,

those cases necessarily found that a six-month-period of unreviewed detention

doesn’t even raise a constitutional question. Therefore, it must be the case that Ms.

Kleinauskaite’s detention was still reasonable after six months.

Several cases—Zadvydas, Diop, and Chavez-Alvarez—indicate or imply that

determining when unreviewed detention becomes unreasonable is a fact-intensive

inquiry. Chavez-Alvarez, however, ascertained that, at the one-year mark,

unreviewed detention necessarily becomes unreasonable.49 Although Chavez-

Alvarez recognized that the exact moment of unreasonabless could have occurred

sometime before that moment, this Court finds the twelve-month milestone

49 Chavez-Alvarez contained extensive analysis about the underlying removal proceedings—

specifically, whether the petitioner’s actions were the cause of those proceedings’ delay and,

if so, whether petitioner’s action were in good faith. However, the Government does not argue

that any actions taken by Ms. Kleinauskaite vis-à-vis her asylum were taken in bad faith. And

since the Government bears the burden on EAJA petitions, see Hanover Potato Products, Inc.

v. Shalala, 989 F.2d 123, 128 (3d Cir. 1993) (“The burden of demonstrating substantial

justification for its position rests squarely on the government agency.”), this Court will

presume that the Government has no issue with Ms. Kleinauskaite’s handling of her removal

proceedings.

appropriate in this case for determining when Ms. Kleinauskaite’s detention escaped

the realm of reason.

III. CONCLUSION

For those reasons, the Court will grant Ms. Kleinauskaite’s Motion for

Attorneys’ Fees and order the Government to compensate Ms. Kleinauskaite for the

attorneys’ fees she incurred after May 17, 2018. An appropriate order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

United States District Judge