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Chinese Citizen's Misdemeanor Assault Does Not Justify Removal Under Crime of Violence; Entitled to Fees Under EAJA

China native and permanent U.S. resident Hua Fang's misdemeanor assault in Montana led a U.S. Immigration Judge (IJ) to order his deportation. The Board of Immigration Appeals (BIA) affirmed the order without opinion. On review, the Ninth Circuit reversed the order and awarded Fang attorney fees and expenses.

Fang's misdemeanor assault conviction, as determined by the IJ, justified his removal under 8 U.S.C. § 1227 as a crime of domestic violence. The appellate court held that the misdemeanor did not constitute a crime of domestic violence and remanded to vacate the removal order. The court assessed costs against the government and Fang filed for attorney fees and expenses. His motion was referred to the Appellate Commissioner to determine entitlement and, if warranted, the amount.

Fang was entitled to fees and costs under the Equal Access to Justice Act (EAJA), as the court determined that the IJ's decision was not "justified in substance or in the main" and did not "have a reasonable basis both in law and fact" pursuant to Pierce v. Underwood. 487 U.S. at 563 64 (1988). Fang was awarded attorney fees in excess of allowable fees under the EAJA as his counsel's specialized skills and distinctive knowledge of immigration laws were needed to obtain relief. See: Fang v. Ashcroft, 111 Fed.Appx. 912 (9th Cir. 2004) (unpublished).

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Related legal case

Fang v. Ashcroft