Primero Garcia v. Barr

Background

Narciso Primero Garcia, a Guatemalan citizen, applied for Special Immigrant Juvenile status, an immigration classification that can provide immigration relief. Before he submitted his application, the court had entered a preliminary injunction in a related lawsuit barring the removal of people with pending applications for that status. The opinion states that respondents removed Primero Garcia to Guatemala on June 13, 2019, where he was attacked twice by gang members over the following six months. After the related lawsuit settled, the court determined that the removal had violated the preliminary injunction, held the responsible defendants in civil contempt, and ordered Primero Garcia’s return to the United States.

After his return, the United States Citizenship and Immigration Services granted Primero Garcia Special Immigrant Juvenile status. He then sought to reopen his immigration proceedings. Because Immigration and Customs Enforcement indicated that it still intended to remove him, he asked this court to temporarily bar his removal, order his release from custody, or, alternatively, order a bond hearing. The court granted in part and denied in part that request: it denied immediate release, but temporarily barred removal and ordered a bond hearing within 60 days.

Primero Garcia later requested $76,524.89 in attorneys’ fees under the Equal Access to Justice Act, a federal law that generally allows a qualifying party who prevails in a civil case against the United States to recover reasonable fees unless the government’s position was substantially justified or special circumstances make an award unfair.

Prevailing-party status

The respondents argued that Primero Garcia was not a prevailing party because the temporary order did not materially change the parties’ legal relationship. They noted that an immigration judge had already stayed his removal while considering his motion to reopen.

The court rejected that argument. It explained that its order extended the protection beyond the period of the immigration judge’s stay and was necessary because Immigration and Customs Enforcement had indicated that it wanted to remove Primero Garcia again after the earlier violation of court orders. The court also found that the court-ordered bond hearing gave Primero Garcia a partial victory, even though the court had denied immediate release. It therefore found that he was a prevailing party for purposes of the fee statute.

Substantial justification and special circumstances

The respondents also argued that their position was substantially justified and that the settlement in the related lawsuit barred another fee request. The court explained that substantial justification considers both the government’s original conduct and its position in the litigation, and requires a reasonable basis in fact and law.

The court found that the original removal, which it described as violating the preliminary injunction, was not justified. It also rejected the argument based on the earlier settlement, finding that the settlement covered work performed in the related lawsuit, while Primero Garcia sought fees for work performed in this case. The court concluded that the government had not shown substantial justification and that no special circumstance made an award unfair.

Enhanced hourly rates

The Equal Access to Justice Act generally limits hourly rates but permits higher rates when inflation or a special factor justifies them. Primero Garcia requested enhanced rates of $600 for Bree Bernwanger, $590 for Mary Tanagho Ross, and $625 for Sara Van Hofwegen. The respondents did not oppose inflation- and cost-of-living-adjusted rates of $206.77 for Primero Garcia’s other attorneys.

The court approved the three requested enhanced rates. It found that the attorneys’ work in the related lawsuit gave them important background knowledge, that their experience in immigration litigation was relevant, and that finding other attorneys with comparable expertise would have been impractical given the short time—possibly eight days—before a potential re-removal. The court also found that Primero Garcia had sufficiently supported the requested rates with information about comparable market rates.

Reasonableness of the award

The court rejected objections that counsel had overstaffed the case or performed duplicative and excessive work. It found that the jurisdictional issues were close and that the filings were complex and necessarily lengthy.

The court did, however, reduce the requested fees. It found some billing entries too vague to evaluate, particularly entries describing communications with co-counsel without making clear whether the work related entirely to this case. It also excluded time spent on an unfiled motion seeking release from detention after the court had already denied that relief. In addition, it determined that certain time spent preparing the fee motion and performing clerical tasks did not qualify for enhanced rates.

The court reduced the requested fees by $10,323.45 and granted Primero Garcia’s motion for attorneys’ fees. It awarded $66,201.44 under the Equal Access to Justice Act.