govinfo:USCOURTS-njd-2_26-cv-03541-1

UNITED STATES DISTRICT COURT 
DISTRICT OF NEW JERSEY 
 
RUHUL AMIN BAPARY, 
 
Petitioner, 
 
v. 
 
LUIS SOTO, et al., 
 
Respondents. 
 
Civil Action No. 26-3541 (SDW) 
 
 
 
OPINION 
 
 IT APPEARING THAT: 
1. Presently before this Court is Petitioner Ruhul Amin Bapary’s motion for attorneys’ 
fees (“Motion”) pursuant to the Equal Access to Justice Act ( “EAJA”), 28 U.S.C. §  2412. (ECF 
No. 11). 
2. Petitioner is a citizen of Bangladesh. (ECF No. 6 at 1 ). He entered the United 
States on or about March 24, 2023 and was detained by Border Patrol shortly after his arrival. (Id.) 
Border Patrol “determined that Petitioner had entered without a valid unexpired immigrant visa, 
reentry permit, border crossing card, or other valid entry document, in violation of 8 U.S.C. § 
1182(a)(7)(A)(i)(I).” (Id. at 1 -2). Petitioner was ordered removed pursuant to 8 U.S.C. § 
1225(b)(1) on March 27, 2023. (ECF No. 6-2 at 2). 
3. Petitioner filed an application for asylum on April 27, 2023. (ECF No. 6 -1 at 3). 
He was granted interim parole set to expire on March 28, 2024. (Id.) 
4. Petitioner was detained by ICE on March 3, 2026. (ECF No. 1 ¶ 2). 
5. On March 19, 2026, an asylum officer concluded that Petitioner had established a 
credible fear of persecution. ( Id. ¶ 3; ECF No. 1 -1 at 16 -17). His removal order was vacated PageID: <pageID>
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pursuant to 8 C.F.R. § 208.30 on March 25, 2026, and he was referred for full removal proceedings. 
(ECF No. 1-1 at 1). 
6. On April 29, 2026, this Cou rt conc luded that Petitioner was being unlaw fully 
detained and ordered his release. (ECF No. 9). Petitioner was released, (ECF No. 10), and he now 
seeks attorneys’ fees under the EAJA, (ECF No. 11). Respondents oppose the Motion. (ECF No. 
12). 
7. The EAJA “provides that the prevailing private party ‘in any civil action (other than 
cases sounding in tort) ’ brought by or against the United States is entitled to attorneys ’ fees and 
costs if the Government’s position was not ‘substantially justified’ or ‘special circumstances make 
an award unjust.’” Michelin v. Warden Moshannon Valley Corr. Ctr., 169 F.4th 418, 422 (3d Cir. 
2026) (quoting 28 U.S.C. § 2412(d)(1)(A)). 
8. In Michelin, the Third Circuit held as a matter of first impression that “[h]abeas 
challenges to immigration detention under 28 U.S.C. § 2241 are civil actions.” Id. at 425. This 
Court granted Petitioner’s habeas petition; therefore, Petitioner is a prevailing party in a civil action 
against the United States. 
9. Respondents now bear the burden of proving their position was justified. Id. at 433. 
10. Under the EAJA, the Government ’s position was substantially justified only if its 
conduct was ‘justified to a degree that could satisfy a reasonable person. ’” Id. (quoting Johnson 
v. Gonzales, 416 F.3d 205, 210 (3d Cir. 2005)). 
11. “To satisfy this burden and defeat a prevailing party ’s application for fees, the 
government must establish that there is substantial justification for its position by demonstrating 
‘(1) a reasonable basis in truth for the facts alleged; (2) a reasonable basis in law for the theory it 
propounded; and (3) a reasonable connection between the facts alleged and the legal theory PageID: <pageID>
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advanced.’” Cruz v. Comm’r of Soc. Sec., 630 F.3d 321, 324 (3d Cir. 2010) (quoting Morgan v. 
Perry, 142 F.3d 670, 684 (3d Cir. 1998)). 
12. “[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.” Johnson v. Gonzales, 416 F.3d 205, 210 (3d 
Cir. 2005). 
13. Significantly, courts may “not assume the position of the Government was not 
substantially justified simply because it lost.” Michelin, 169 F.4th at 433. 
14. This Court concludes that Respondents’ pre-litigation conduct of holding Petitioner 
without bond was substantially justified for purposes of the EAJA. 
15. Petitioner’s detention began on March 3, 2026. (ECF No. 1 ¶ 2). At that point in 
time, Petitioner was being detained pursuant to 8 U.S. C. § 1225(b)(1) because he was subject to 
an administratively final order of removal. See Bapary v. Soto, No. 26-cv-2388, 2026 WL 892482, 
at *1-2 (D.N.J. Apr. 1, 2026).1 
16. Section 1225 provides in relevant part that “in the case of [a noncitizen] who is an 
applicant for admission, if the examining immigration officer determines that [a noncitizen] 
seeking admission is not clearly and beyond a doubt entitled to be admitted, the [noncitizen] shall 
be detained” pending removal hearings. 8 U.S.C. § 1225(b)(2)(A) (emphasis added). Accordingly, 
Petitioner’s detention was reasonable when his first habeas petition was filed. 
 
1 This Court dismissed Petitioner’s first habeas petition on April 1, 2026. See Bapary v. Soto, No. 
26-cv-2388 (D.N.J. Apr. 1, 2026) (ECF No. 8). Petitioner filed a second petition on April 2, 2026 
informing this Court that the removal order that existed at the time the first petition was filed was 
vacated on March 25, 2026. (ECF No. 1 at 2 n.1). This information was not made available to 
this Court prior to its April 1, 2026 opinion and order. PageID: <pageID>
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17. Former Attorney General William Barr issued an interim decision concluding that 
noncitizens who were originally placed into expe dited removal proceedings but later referred to 
full removal proceedings —as Petitioner was once the removal order was vacated on March 26, 
2026—are still subject to mandatory detention without bond. Matter of M-S-, 27 I. & N. Dec. 509, 
515 (A.G. 2019). 
18. This Court unequivocally disagrees with that statutory interpretation as a matter of 
law,2 but Respondents did no more than follow a binding administrative decision in continuing to 
detain Petitioner. “Given the state of precedent on this issue, this Court finds that the 
Government’s position was substantially justified, even if ultimately unsuccessful.” Gjergj G. v. 
Edwards, No. 19 -cv-5059, 2019 WL 3245104, at *2 (D.N.J. July 17, 2019) (concluding 
Government was substantially justified in holding noncitizen without a bond hearing as it was 
following administrative precedent). 
19. Petitioner argues that Respondents were not justified in their position before this 
Court because they “presented to this Court a legal theory that has been rejected by every … judge 
in the District of New Jersey, including this specific Court previously.” (ECF No. 11 at 4). The 
cases cited by Petitioner are distinguishable. (See ECF No. 11 at 4 (citing cases)). Those cases 
concerned the statutory interpretation of § 1225(b)(2), but Respondents did not argue to this Court 
that Petitioner was rightfully detained under § 1225(b)(2). They argued that Petitioner’s detention 
was governed by § 1225(b)(1). (See ECF No. 6 at 3-4). 
 
2 See Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 412 (2024) (noting district judges “have 
always been expected to apply their ‘judgment’ independent of the political branches when 
interpreting the laws those branches enact.” (emphasis in original)). PageID: <pageID>
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20. In any event , the decisions cited by Petitioner do not bind the Department of 
Homeland Security o r Immigration and Customs Enforcement outside of their interactions with 
the filing parties. 
21. This Court concluded that 8 U.S.C. § 1226 governed Petitioner’s detention rather 
than § 1225 because the Notice to Appear attached to the immigration judge ’s order identified 
Petitioner as a noncitizen who was “present in the United States who has not been admitted or 
paroled.” (ECF No. 1 -1 at 1 (emphasis added)) . “That language aligns with § 1226(a), not § 
1225(b)(1).” (ECF No. 8 ¶ 10). 
22. Other courts have agreed with Matter of M-S- and found that noncitizens are still 
subject to mandatory detention without bond after a credible fear finding. See Giri v. Lyons, No. 
5:26-cv-00149, __ F. Supp. 3d __, 2026 WL 1361557, at *2 (S.D. Tex. May 12, 2026) (noting that 
“Petitioner is detained pursuant to 8 U.S.C. § 1225(b)(1)(B)(ii), which states that if an immigration 
officer finds a credible fear of persecution during the Expedited Removal process, [a noncitizen] 
‘shall be detained for further consideration of the application for asylum.’”); Arcos Tasigchana v. 
Soto, No. 25-cv-18252, 2026 WL 266170, at *2 (D.N.J. Feb. 2, 2026) (finding mandatory 
detention for noncitizen who was “subject to an initial expedited removal determination, provided 
a credible fear interview, and then referred for removal proceedings once a credible fear was 
established”); Pipa-Aquise v. Bondi, No. 1:25-cv-01094, 2025 WL 2490657, at *2 (E.D. Va. Aug. 
5, 2025) (“Section 1225(b) provides for mandatory detention pending an asylum application. ” 
(emphasis in original)). 
23. “Although a single court decision is not itself proof positive of substantial 
justification, that the Government ’s position has produced favorable decisions by other federal 
courts and administrative courts is an ‘objective indicia’ of substantial justification.” Gjergj G., PageID: <pageID>
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2019 WL 3245104, at *2 (quoting Pierce v. Underwood , 487 U.S. 552, 569 (1988)); see also 
Michel v. Mayorkas , 68 F.4th 74, 80 (1st Cir. 2023) (“[A] string of court decisions going either 
way can indicate that the government ’s position is substantially justified.” (internal quotation 
marks omitted)). 
24. The statutory interpretation of immigration statutes is rapidly evolving. Therefore, 
this Court cannot say that respondents’ position was unjustified. Michel, 68 F.4th at 78 (“When 
the issue is a novel one with little to no precedent, courts have been hesitant to find the 
government’s position not substantially justified.”) 
25. Therefore, this Court will deny the Motion. 
26. An appropriate order follows. 
 
 
 Hon. Susan D. Wigenton, 
United States District Judge 
 
Dated: June 16, 2026 PageID: <pageID>

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