justified." Although we conclude that the case is a civil action and that Vacchio was a prevailing party, we affirm the judgment of the District Court because the position of the United States was substantially justified.

BACKGROUND

2
We recount the story of one of those complex immigration proceedings that occur all too frequently, to the embarrassment of all concerned.


3
Vacchio is a citizen of Italy and permanent resident of this country, and has been here since 1970, when he was 5 years old. In November 2001, he moved from New York to Vermont. Vermont police were notified of Vacchio's move because he was on probation, having twice been convicted in New York, in 1992 and again in 1999, of Criminal Sale of Marihuana in the Fourth Degree, a misdemeanor under Newthis claim, the INS retained Vacchio in custody. On September 20, 2002, Vacchio filed with the BIA and the IJ an opposition to the INS's claim of an automatic stay of the order releasing him on bond. The BIA would not consider the filing because, while the INS had filed its notice of intent to appeal, it had not yet actually filed the notice of appeal. In turn, on September 30, 2002, the IJ ruled that she had no jurisdiction to consider Vacchio's motion to lift the automatic stay because the INS's filing of the Form EOIR-34 with the BIA deprived her of jurisdiction pending the BIA's decision.


7
The INS filed a "Notice of Appeal from a Decision of an Immigration Judge" with the BIA on October 4, 2002,