claiming that the IJ had no authority to release Vacchio on bond because his convictions qualified as aggravated felonies and detention was thus mandatory.


8
The IJ held a preliminary hearing regarding the merits of the charges underlying the removal proceedings on October 7, 2002. The IJ sustained the controlled substances charges as a proper basis for removal, but rejected the aggravated felony charge, leaving Vacchio eligible for discretionary relief.


9
On October 8, 2002, Vacchio filed with the BIA a Motion for Lift of Stay and Affirmance of the IJ's Bond Ruling.3 On November 5, 2002, with no action forthcoming from the BIA, he filed a Petition for Writ of Habeas Corpus in the United States District Court for the District of Vermont, seeking to be released from detention based onBoudin holding to the criminal context presented by that case, and hold that a habeas proceeding challenging immigration detentions constitutes a "civil action" under the EAJA.


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B. "Prevailing Party"


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The District Court concluded that Vacchio was not a "`prevailing party' for the purpose of awarding costs and fees against the United States." The Court reasoned that Vacchio "claimed the mandatory detention statute, and the automatic stay regulation which resulted in his continued detention despite the IJ's grant of bond, violated due process. This District Court dismissed the petition as premature, and the Court of Appeals, while releasing him on bail pending the outcome of the merits of his appeal, did not address the constitutional issues he raised. In administrative proceedings, the petitioner ultimately obtained the relief he sought: retention of