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Magistrate’s Recommendation On Attorney Fees Brings Franz Kafka To Mind
by Carl R. Baldwin

On May 1, 2002 a U.S Magistrate Judge decided a motion for attorney fees under the EAJA (Equal Access to Justice Act). Kossov v. Perryman, No. 01-2179 (N.D. Illinois, Eastern District). The recommendation to the District Court to dismiss the petition is not surprising, given the U.S. Supreme Court’s rejection of the “catalyst” theory of recovery. But it is Kafka-like none the less.

Does this remind you of any cases that you have had? Pavel Kossov, a native of Latvia, entered the U.S. in 1991 as a tourist. He overstayed, and in 1993 the INS commenced proceedings against him. Luckily for him, the proceedings moved very slowly, or hardly at all. Years went by, and in 1998 Pavel’s wife applied for the visa lottery and put Pavel down as her spouse. She won the lottery, and therefore so did he. They applied for adjustment, which was granted by an immigration judge on September 16, 1998. So far, everything was “coming up roses” for the couple.

The next step, according to Department of State instructions, was to file and pay the fees for an immigrant visa ($325) and the visa lottery surcharge ($75). Given that the visa lottery application itself was free of charge, the Kossovs must have been glad to pay these fees.

These applications were completed in the INS Chicago office on September 30, 1998. According to the court: “Mrs. Kossov received her green card shortly thereafter, but Mr. Kossov’s card did not arrive and the INS provided no reason for its delay.” Then began the Kafka-like experience. Numerous inquiries were made, to no avail, and much time went by. At last the Nebraska Service Center informed Mr. Kossov that the file could not be found.

On October 19, 2001—more than three years after submitting the immigrant visa application—Mr. Kossov filed a writ of mandamus to prompt the INS to process and complete the application. It may have worked. About one week prior to the scheduled status hearing, on December 5, 2001, the Form I-551 was received. The mandamus petition was therefore dismissed as moot.

On December 19, 2001 Mr. Kossov filed an EAJA application, seeking $2,074.86 in fees for professional services rendered by his attorney and for associated costs. That application ran smack into the U.S. Supreme Court decision that eliminated the “catalyst” theory of recovery in EAJA proceedings. Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health & Human Resources, 532 U.S. 598, 602-603 (2001). In that case the Court explained that, to be a “prevailing party” and therefore entitled to an EAJA award, a plaintiff must have received a judgment from a court or a judicially enforced agreement granting the relief sought, in whole or in part. If a lawsuit merely prompts the defendant to “voluntarily” act on an application, that does not suffice.

The court in this case expressed qualified sympathy for the plaintiff, but advised him to face reality: “In the end, just as Mr. Kossov is bound by the rules and idiosyncrasies of an overburdened federal agency, processing thousands of immigration applications, he is also bound by the Supreme Court ’s rulings.”

A visa lottery winner, in planning his or her budget, should not have to anticipate, in addition to the $400 fees for the immigrant visa and surcharge, several thousand dollars for an EAJA proceeding. But many immigrants, suffering “the law’s delay” in connection with various applications and petitions, will have to do exactly that after Buckhannon. Unless the INS or its successor agency learns how to adjudicate promptly? To be less “idiosyncratic?”

About The Author

Carl R. Baldwin graduated from Columbia University Law School in 1980, and became a member of the New York State Bar a year later. He worked for three years with the New York City Law Department, and then entered solo practice in immigration law, which he has continued to the present. His work with clients has included asylum applications, deportation defense, visa processing, adjustment of status, and naturalization. He has also worked to implement special laws, such as the 1986 "amnesty" (The Immigration Reform and Control Act), and the 1998 Haitian reform act (The Haitian Refugee Immigration Fairness Act). Mr. Baldwin is the author of Immigration News Monthly. He can be reached by e-mail at

He has written a book on immigration law, called "Immigration Questions and Answers," Allworth Press, 2002. The book, which contains essential background information about how the immigration law works, can be ordered online from Allsworth Press at:

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