Alien Obtaining Court Order Incorporating Voluntary Stipulation Staying Deportation is Prevailing Party Under EAJA

Per Carbonell v. I.N.S., 429 F.3d 894 (9th Cir. Nov. 18, 2005):

Congress has authorized fee recovery by prevailing parties in EAJA [Equal Access to Justice Act]. Under EAJA, a litigant is entitled to attorney's fees and costs if: (1) he is the prevailing party; (2) the government fails to show that its position was substantially justified or that special circumstances make an award unjust; and (3) the requested fees and costs are reasonable.

. . .

The first question that must be resolved, therefore, is whether Carbonell is a "prevailing party." In Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep't of Health & Human Res., 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), the Supreme Court clarified who constitutes a prevailing party for the purpose of awarding attorney's fees. According to Buckhannon, a litigant must meet two criteria to qualify as a prevailing party. First, he must achieve a "material alteration of the legal relationship of the parties." Second, that alteration must be "judicially sanctioned." Id. at 604-05, 121 S.Ct. 1835; Labotest, Inc. v. Bonta, 297 F.3d 892, 895 (9th Cir.2002).

. . .

[A]lthough Carbonell obtained relief that was not an enforceable judgment on the merits or a consent decree, he nonetheless can qualify as a prevailing party--and he does so under the two-part test set forth by the Supreme Court in Buckhannon as elaborated on by this court in subsequent cases.

. . .

We agree with the Second, Fourth, and Eleventh Circuits [and] hold that when a court incorporates the terms of a voluntary agreement into an order, that order is stamped with sufficient "judicial imprimatur" for the litigant to qualify as a prevailing party for the purpose of awarding attorney's fees.

. . .

[T]he district court's order incorporating the voluntary stipulation to a stay of departure materially altered the relationship between Carbonell and the government and . . . this alteration was judicially sanctioned. As a result, we hold that Carbonell is a prevailing party for the purpose of awarding attorney's fees under EAJA.