Sisiliano-Lopez v. Lowe

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOSE MARTIN SISILIANO-LOPEZ, No. 1:16-CV-01793

Petitioner, (Judge Brann)

v.

CRAIG A. LOWE, et al.,

Respondents.

MEMORANDUM OPINION

MARCH 25, 2020

In August 2017, United States District Judge William W. Caldwell1 granted

Jose Martin Sisiliano-Lopez’s 28 U.S.C. § 2241 petition and ordered that the

Government provide Sisiliano-Lopez a bond hearing pending the resolution of his

motion for withholding of removal.2 Pursuant to the Equal Access to Justice Act

(“EAJA”), Sisiliano-Lopez now moves this Court for an order directing the

Government to compensate him for the attorneys’ fees and expenses that he incurred

litigating that petition.3 For the following reasons, that motion will be granted in

part.

1 Judge Caldwell died in May 2019, and this matter was administratively reassigned to the

undersigned.

2 Doc. 25.

I. BACKGROUND

Sisiliano-Lopez, a citizen of El Salvador, unlawfully entered the United States

in 2013, starting a chain of events that led to this matter. In August 2017, Magistrate

Judge Martin C. Carlson summarized the history of this matter following Sisiliano-

Lopez’s illegal entry into the country:

Following a hearing before an immigration judge, on May 20, 2013,

Sisiliano was ordered removed. Sisiliano was physically removed from

the United States on June 17, 2013. Following his removal, Sisiliano

attempted to return to the United States unlawfully on August 17, 2015.

Immigration officials reinstated Sisiliano’s prior order of removal,

resulting in Sisiliano’s physical removal to El Salvador.

On September 28, 2015, Sisiliano again attempted to enter the United

States unlawfully, and was subsequently detained at York County

Prison in York, Pennsylvania. The next day, immigration officials

reinstated his order of removal. After expressing a fear of return to El

Salvador, Sisiliano was scheduled for an interview with an asylum

officer. On November 9, 20[1]5, Sisiliano was interviewed by an

asylum officer. Finding that Sisiliano had a reasonable fear of

persecution or torture in El Salvador, the asylum officer referred

Sisiliano’s case to the immigration judge for “withholding-only”

proceedings.

On January 13, 2016, Sisiliano filed his application for withholding of

removal with the immigration judge, and on March 25, 2016, Sisiliano

appeared before the immigration judge for a hearing on his application.

On April 12, 2016, in a written decision, the immigration judge denied

Sisiliano’s application for withholding of his removal to El Salvador.

On May 12, 2016, Sisiliano filed an appeal with the Board of

Immigration Appeals (“BIA”). In a decision dated September 9, 2016,

the BIA dismissed Sisiliano’s appeal.

On September 29, 2016, Sisiliano filed a petition for review with the

[United States Court of Appeals for the] Third Circuit. On February 3,

2017, the court of appeals entered an order staying Sisiliano’s removal

pending disposition of his petition for review. His petition remains

pending before that court and this stay of removal also remains in effect.

Thus, Sisiliano has been in ICE custody for nearly two years, since his

detention on September 28, 2015.4

On August 29, 2016, Sisiliano-Lopez filed his § 2241 petition with this Court

raising two arguments. First, Sisiliano-Lopez argued that he was being detained

pursuant to 8 U.S.C. § 1226—not 8 U.S.C. § 1231—and, thus, was entitled to a bond

hearing after having spent approximately eleven months in custody.5 Second, he

asserted that, regardless of the basis for his detention, the Due Process Clause of the

United States Constitution mandated an individualized bond hearing after prolonged

detention.6 The Government in turn argued that, because he was subject to a

reinstated removal order, Sisiliano-Lopez was being held pursuant to § 1231 and

was therefore subject to mandatory detention.7 The Government further argued that

Sisiliano-Lopez’s detention did not violate the Due Process Clause, as there was a

significant possibility that he would soon be removed from the country.8

In August 2017, Magistrate Judge Carlson issued a Report and

Recommendation wherein he rejected the Government’s position that Sisiliano-

Lopez was detained pursuant to § 1231, noting that Judge Caldwell has twice ruled

4 Doc. 19 at 6-7.

5 Doc. 1 at 10-15.

6 Id. at 15-17.

7 Doc. 6 at 10-21.

8 Id. at 21-24.

in prior cases that individuals in Sisiliano-Lopez’s position were held pursuant to

§ 1226.9 Magistrate Judge Carlson further noted that, even if Sisiliano-Lopez were

held pursuant to § 1231, his continued detention without a bond hearing violated the

Due Process Clause, as such continued detention was unreasonable and Sisiliano-

Lopez’s removal was not likely in the reasonably foreseeable future.10 Magistrate

Judge Carlson therefore recommended that Judge Caldwell grant Sisiliano-Lopez’s

petition and order a bond hearing.

On August 22, 2017—over the Government’s objection—Judge Caldwell

adopted Magistrate Judge Carlson’s Report and Recommendation, granted Sisiliano-

Lopez’s petition, and ordered the Government to hold an individualized bond

hearing at which the Government bore “the burden of proving by clear and

convincing evidence at this hearing that [Sisiliano-Lopez’s] continued detention is

necessary to fulfill the purposes of the detention statute.”11 A bond hearing was held,

and Sisiliano-Lopez was released on $5,000 bond.12 The Government appealed

Judge Caldwell’s decision granting Sisiliano-Lopez’s § 2241 petition to the Third

Circuit, but eventually stipulated to the appeal’s dismissal.13

9 Doc. 19 at 8-12.

10 Id. at 12-15.

11 Doc. 25.

12 Doc. 26-1.

13 Doc. 30-4 at 12.

II. DISCUSSION

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

“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.”14 The Government does not

dispute that Sisiliano-Lopez was the prevailing party and that no special

circumstances exist that would justify denial of fees and expenses, but argues that

its position was substantially justified, and that the number of hours expended and

the hourly rate charged by Sisiliano-Lopez’s counsel are unreasonable.15

A. Whether the Government’s Position was Substantially Justified

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

“reasonable basis in both law and fact.”16 In a case involving agency action, the

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

necessary in the first place.”17 Therefore, to avoid paying Sisiliano-Lopez’s

14 28 U.S.C. § 2412(d)(1)(A).

15 Doc. 32.

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

17 Id. 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.”).

attorneys’ fees, the Government must show that Sisiliano-Lopez’s detention without

a bond hearing was reasonable.18

The Government contends that its litigation position was substantially

justified because the question of whether Sisiliano-Lopez was detained pursuant to

§ 1226(c) or § 1231 was—at the time—an open question in this Circuit and had led

to a split amongst various courts.19 At the time that Sisiliano-Lopez filed this § 2241

petition, the Third Circuit had not yet addressed the “novel question of immigration

law” that was posed by the detention of individuals who are detained pursuant to

reinstated removal orders.20 Based on the novelty of the question of law regarding

under what section of the immigration statute Sisiliano-Lopez was detained, the

Government’s litigation position here was substantially justified. Nevertheless, a

review of the relevant case law makes clear that the Government’s decision to hold

Sisiliano-Lopez without a bond hearing after one year in custody was not

substantially justified.

In its 2001 decision in Zadvydas v. Davis,21 the United States Supreme Court

considered the habeas petitions of two individuals detained pursuant to 8 U.S.C.

§ 1231(a)(6). That statute indicates that the Government “may” detain certain

18 Kleinauskaite v. Doll, No. 4:17-CV-02176, 2019 WL 3302236, at *2 (M.D. Pa. July 23, 2019).

19 Doc. 32 at 9-16.

20 Guerrero-Sanchez v. Warden York Cty. Prison, 905 F.3d 208, 211 (3d Cir. 2018).

21 533 U.S. 678 (2001).

individuals after they have been ordered removed from the country, while actual

removal is being effectuated. Both individuals in Zadvydas were subject to removal

orders and otherwise qualified for detention under § 1231(a)(6), but the Government

had been unable to effectuate their removal.22 Facing “potentially permanent”

detention, the petitioners challenged the statute’s constitutionality.23

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

constitutional problem,” especially in light of the Supreme 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.”24 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.25 Second, the court

rejected the Government’s asserted interest in “preventing danger to the

22 Id. at 684-85.

23 Id. at 691.

24 Id. at 690.

25 Id.

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.”26

The Supreme Court then inquired whether there was “any clear indication of

congressional intent to grant the [Government] the power to hold indefinitely in

confinement an alien ordered removed.”27 Finding none, the court used the canon

of constitutional avoidance to interpret the statute as allowing detention only for a

period “reasonably necessary to bring about [an] alien’s removal from the United

States.”28 The Supreme Court held that six months’ detention without a bond

hearing 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.”29 The court indicated, however, that

26 Id. at 691-92.

27 Id.

28 Id.

29 Id.

“as the period of prior postremoval confinement grows, what counts as the

‘reasonably foreseeable future’ conversely would have to shrink.”30

In its 2011 decision in Diop v. ICE/Homeland Security,31 the Third Circuit

considered a habeas petition filed by an individual who argued that his automatic,

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

Third Circuit concluded that “[a]t a certain point, continued detention [pursuant to

§ 1226(c)] becomes unreasonable and . . . [therefore] unconstitutional[,] 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.”32 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,” and rejected a proposed six-month presumption of

unreasonableness.33 The court, 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.”34

30 Id.

31 656 F.3d 221 (3d Cir. 2011).

32 Id. at 232.

33 Id. at 233.

34 Id.

The Third Circuit further emphasized that “Congress [did not] intend[] to

authorize prolonged, unreasonable[] detention without a bond hearing.”35 The court

therefore also employed the canon of constitutional avoidance to hold that § 1226(c)

“contains an implicit limitation of reasonableness,” and “authorizes only mandatory

detention that is reasonable in length.”36

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

Prison37 considered yet another challenge to automatic, unreviewed detention

pursuant to § 1226(c). Referencing Diop, the court reiterated that “any

determination on reasonableness [is] highly fact-specific,” and while 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 § 1226(c).38 The court therefore found that Chavez-Alvarez’s

due process rights had been violated and ordered that the petition be granted.

In early 2018, the Supreme Court, in Jennings v. Rodriguez,39 held that,

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

35 Id. at 235.

36 Id.

37 783 F.3d 469 (3d Cir. 2015).

38 Id. at 474-78.

39 138 S. Ct. 830 (2018).

individuals, the statute is not ambiguous and is thus impervious to the canon of

constitutional avoidance. It therefore overruled the Ninth Circuit’s interpretation of

§ 1226(c) that required bond hearings. Later in 2018, in Borbot v. Warden Hudson

County Correctional Facility,40 the Third Circuit recognized that Jennings

effectively abrogated Diop’s statutory holding that, based on the canon of

constitutional avoidance, § 1226(c) itself required bond hearings.41 The Third

Circuit, however, noted that “Jennings did not call into question [Diop’s]

constitutional holding” that unreasonably long detention without a bond hearing

violates the Due Process Clause.42

Finally, later in 2018 the Third Circuit in Guerrero-Sanchez v. Warden York

County Prison43 addressed the circumstances at issue here—a habeas petition filed

by an individual who was subject to a reinstated order of removal, but also sought

withholding-only relief. The Third Circuit first determined that such individuals are

held pursuant to 8 U.S.C. § 1231, not 8 U.S.C. § 1226.44 The Court then noted “the

due process concerns posed by prolonged detention” and held that, after a certain

point, “the private interests at stake [become] profound and the risk of an erroneous

40 906 F.3d 274 (3d Cir. 2018).

41 Id. at 278.

42 Id.

43 905 F.3d 208 (3d Cir. 2018).

44 Id. at 213-19.

deprivation of liberty . . . substantial,” and thus used the canon of constitutional

avoidance to interpret § 1231(a)(6) as requiring a bond hearing after six months.45

Notably, the Third Circuit saw “no substantial distinction between the liberty

interests of aliens detained” in Diop with those like Sisiliano-Lopez who are detained

pursuant to reinstated orders of removal.46

Thus, Guerrero-Sanchez makes clear that Sisiliano-Lopez was actually

entitled to a bond hearing after six months’ detention, well prior to the date that he

filed his § 2241 petition. Nevertheless, the Government cannot be ordered to pay

attorneys’ fees under EAJA based on Guerrero-Sanchez, as that decision post-dates

all litigation in this matter.47 During the time that litigation was ongoing in this

matter, the United States Supreme Court had previously concluded that detention

without a bond hearing for up to six months was presumptively reasonable under the

Due Process Clause, and the Third Circuit had declined to require bond hearings at

the six-month mark.48 Thus, the Government had a reasonable basis to detain

Sisiliano-Lopez up to the six-month mark without a bond hearing. However, even

discounting the impact of Guerrero-Sanchez, it should have been clear to the

45 Id. at 225.

46 Id. at 222.

47 See Pierce v. Underwood, 487 U.S. 552, 561 (1988) (noting that the relevant question under

the EAJA is “not what the law now is, but what the Government was substantially justified in

believing it to have been”).

48 Zadvydas, 533 U.S. at 691-92; Diop, 656 F.3d at 232-33; Chavez-Alvarez, 783 F.3d at 474-78.

Government that detaining Sisiliano-Lopez without a bond hearing beyond the one-

year mark was not justified.

As this Court noted in Kleinauskaite v. Doll, the Third Circuit in “Chavez-

Alvarez . . . ascertained that, at the one-year mark, unreviewed detention necessarily

becomes unreasonable.”49 Thus, at a minimum, when Chavez-Alvarez issued in

April 2015, “the twelve-month milestone [became an] appropriate [measure for

when] detention escaped the realm of reason.”50

Chavez-Alvarez issued more than five months before Sisiliano-Lopez was

detained and placed in federal custody. The relevant case law within the Third

Circuit made clear that, regardless of what statute an individual is detained under

during removal proceedings, the Due Process Clause is violated where that

individual is detained for more than one year without a bond hearing.51 The

Government therefore was not substantially justified in holding Sisiliano-Lopez

after September 28, 2016—one year after he was initially detained pending removal

from the country—without conducting a bond hearing. Consequently, the Court

49 Kleinauskaite, 2019 WL 3302236, at *6.

50 Kleinauskaite, 2019 WL 3302236, at *6.

51 Although 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—there is no

evidence in the record that any of Sisiliano-Lopez’s actions were taken in bad faith. Moreover,

given the clear and repeated indications from the Third Circuit that prolonged detention

without a bond hearing violates the Due Process Clause, the circuit split referenced by the

Government cannot justify Sisiliano-Lopez’s prolonged detention without a bond hearing.

finds an award under the EAJA appropriate for all hours and fees expended after that

date.52

B. Whether the Rates Charged are Reasonable

Having concluded that attorneys’ fees are appropriate, the Court must now

address the amount to be awarded to Sisiliano-Lopez. The Government first argues

that Sisiliano-Lopez’s attorney is not entitled to a rate of $250 per hour, as (1) an

immigration law specialist was not necessary for this matter, (2) there is insufficient

evidence that there are few immigration-law specialists within this District, and (3)

this case was not overly complex.53 Second, the Government asserts that some

billable hours should be discounted, as they are not properly subject to the EAJA.54

The EAJA provides that “a court shall award to a prevailing party other than

the United States fees and other expenses.”55 The statute further provides that:

“fees and other expenses” includes the reasonable expenses of expert

witnesses, the reasonable cost of any study, analysis, engineering

report, test, or project which is found by the court to be necessary for

52 Even under Zadvydas, the Government bore the burden of demonstrating that Sisiliano-

Lopez’s removal was imminent. 533 U.S. at 691-92. Considered under that rubric, the Court

would still find that Sisiliano-Lopez’s detention without a bond hearing became unreasonable

by the one-year mark. By then an immigration official had concluded that Sisiliano-Lopez

possessed a reasonable fear of prosecution or torture should he be returned to El Salvador,

immigration officials had rejected his application for withholding of removal, and Sisiliano-

Lopez had filed an appeal to the Third Circuit. Clearly then, Sisiliano-Lopez’s appeal process

would not imminently conclude; indeed, the Third Circuit issued a stay of removal order on

February 3, 2017.

53 Doc. 32 at 17-19.

54 Id. at 19-21.

55 28 U.S.C. § 2412(d)(1)(A).

the preparation of the party's case, and reasonable attorney fees (The

amount of fees awarded under this subsection shall be based upon

prevailing market rates for the kind and quality of the services

furnished, except that (i) no expert witness shall be compensated at a

rate in excess of the highest rate of compensation for expert witnesses

paid by the United States; and (ii) attorney fees shall not be awarded in

excess of $ 125 per hour unless the court determines that an increase in

the cost of living or a special factor, such as the limited availability of

qualified attorneys for the proceedings involved, justifies a higher fee.56

Special factors that authorize a reviewing court to award a higher fee also include

“some distinctive knowledge or specialized skill needful for the litigation in

question.”57

Sisiliano-Lopez’s attorney has submitted an affidavit to the Court that

adequately demonstrates his expertise in immigration law.58 Additionally, there is

ample evidence of an absence of attorneys within the Middle District of

Pennsylvania who specialize in immigration law and who are willing to accept work

at the EAJA statutory rate.59

56 28 U.S.C. § 2412(d)(2)(A).

57 Pierce v. Underwood, 487 U.S. 552, 572 (1988).

58 Doc. 30-2.

59 Doc. 30-7. Although the list provided by Sisiliano-Lopez’s attorney is alone not dispositive

of this question, that information simply reinforces what this and other judges within the

Middle District of Pennsylvania have repeatedly affirmed: that there is an absence of qualified

immigration attorneys within the District who are willing to work at the statutory rate. See

Walker v. Lowe, No. 4:15-CV-0887, 2016 WL 6082289, at *5 (M.D. Pa. Oct. 17, 2016) (noting

that “specialized knowledge of immigration law, and the limited availability of attorneys who

would have taken this case at the statutory rate, are ‘special factors’ which justify [a reasonable]

increase in the rate of pay”); Mendoza-Ordonez v. Lowe, No. 1:16-CV-1777, 2019 WL

1410893, at *20 (M.D. Pa. Mar. 28, 2019) (same and collecting cases).

Moreover, the Court concludes that Sisiliano-Lopez’s attorney’s expertise in

that area of the law was helpful in this matter. Certainly, litigating the question of

whether detention was reasonable under Zadvydas required at least some

understanding of immigration law. The question of whether Sisiliano-Lopez’s

removal was imminent required an understanding of the immigration and appeals

process and the speed at which that process occurs. An attorney would also need to

determine the likelihood of success in the immigration matters, as well as whether

further appeals or proceedings would have presented a colorable claim or would

simply have served to stall deportation proceedings in pursuit of a frivolous claim.60

In light of this, the Court reaffirms its conclusion in other cases “that Petitioners’

counsel’s specialized knowledge of immigration law, and the limited availability of

attorneys who would have taken this case at the statutory rate, are special factors

which justify a reasonable increase in the rate of pay” to $250 per hour.61

Turning then to the question of whether counsel’s hours should be discounted,

the Court concludes that such hours should be discounted, but only to the extent that

counsel’s work predated the one-year mark of Sisiliano-Lopez’s detention. As

60 This information is critical because the Third Circuit in Chavez-Alvarez noted that an important

consideration in whether prolonged detention without a bond hearing violates the Due Process

Clause is whether the petitioner’s actions were the cause of those proceedings’ delay and, if

so, whether petitioner’s action were taken in good faith.

61 Walker, 2016 WL 6082289, at *5 (brackets and internal quotation marks omitted). See also

Mendoza-Ordonez, 2019 WL 1410893, at *20.

discussed above, the Government’s decision to detain Sisiliano-Lopez without a

bond hearing was reasonable up to the one-year mark and, thus, any work done by

counsel prior to September 28, 2016,62 is not recoverable under the EAJA.63

However, the Court finds that the remainder of the hours billed by Sisiliano-

Lopez’s attorney are recoverable. First, contrary to the Government’s assertion,64

billing for hours spent in conjunction with “the individualized bond hearing that [this

Court] ordered the immigration judge to conduct to streamline the instant habeas

action” is permissible under the EAJA.65

Second, the Government provides no reasoned basis for striking or reducing

the fees related to counsel’s travel for matters that are relevant to this § 2241 petition.

Hours spent traveling for hearings or other matters are generally billed by attorneys,

as those hours are directly related to the case and constitute time that may not be

billed in other matters. Such “costs . . . are ordinarily billed to a client” and are

therefore recoverable under the EAJA.66

62 This includes all work done in August and September 2016, which amounts to $2,030. (Doc.

30-3 at 2, 4-5).

63 See Kleinauskaite, 2019 WL 3302236, at *6 (awarding attorneys’ fees only for work done after

the one-year mark).

64 Doc. 32 at 20.

65 Walker, 2016 WL 6082289, at *5 (footnote omitted).

66 Int’l Woodworkers of Am., AFL-CIO, Local 3-98 v. Donovan, 792 F.2d 762, 767 (9th Cir.

1985). See also Jean v. Nelson, 863 F.2d 759, 777-78 (11th Cir. 1988) (finding any hours

“necessary to the preparation of the prevailing party’s case,” including travel time, are

recoverable under the EAJA); Mendoza-Ordonez, 2019 WL 1410893, at *22 (“Given the

geographic realities of the Middle District of Pennsylvania and the recognition discussed above

III. CONCLUSION

For the foregoing reasons, the Court will grant in part Sisiliano-Lopez’s

Motion for Attorneys’ Fees and order the Government to compensate Sisiliano-

Lopez for attorneys’ fees and expenses incurred after September 28, 2016.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

United States District Judge

that there are a limited number of immigration attorneys practicing in the area, the Court will

not deduct time for travel from the amount calculated”).