Ge v. United States Citizenship & Immigration Services, No. 20-1582 (4th Cir. 2021)
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Ge, then a citizen of China, entered the U.S. on a student visa. After pursuing his education for four years, he enlisted in the Army through the Military Accessions Vital to the National Interest (MAVNI) program, which allows foreign nationals to enlist in the armed forces and thereafter apply for naturalization under 8 U.S.C. 1440(a). Ge filed his application in May 2016. After completing interviews and tests administered by USCIS, he received notice in July 2017, that his naturalization oath ceremony had been scheduled for later that month. Days later, he was informed that the ceremony had been canceled. USCIS had a new policy, requiring that enhanced Department of Defense background checks for all MAVNI applicants before their naturalization applications could be granted.
Ge filed suit in December 2018, under 8 U.S.C. 1447(b). The district court directed USCIS to adjudicate Ge’s naturalization application within 45 days. Shortly after the court’s remand order, Ge reported that he had been sworn in as a citizen. The court dismissed Ge’s action. Ge then sought attorneys fees under the Equal Access to Justice Act, 28 U.S.C. 2412, alleging that he was the “prevailing party” and that USCIS’s position was not “justified in law and fact at all stages.” The district court denied his motion, ruling that Ge did not qualify as a prevailing party because its remand was not a judgment on the merits or consent decree that created a “material alteration of the legal relationship of the parties.” The Fourth Circuit affirmed. After the remand order, Ge was still the applicant; USCIS was still the agency that could grant or deny the application. The legal relationship had not changed.
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