PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 20-1582 JUNFEI GE, Plaintiff - Appellant, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; UR M. JADDOU, Director, U.S. Citizenship and Immigration Services; FRANK C. REFFEL, in official capacity as Norfolk Field Office Director, U.S. Citizenship and Immigration Services, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. John A. Gibney, Jr., Senior District Judge. (3:18-cv-00889-JAG) Argued: October 28, 2021 Decided: December 7, 2021 Before NIEMEYER, AGEE, and RUSHING, Circuit Judges. Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Agee and Judge Rushing joined. ARGUED: Trina A. Realmuto, NATIONAL IMMIGRATION LITIGATION ALLIANCE, Brookline, Massachusetts, for Appellant. Jonathan Holland Hambrick, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellees. ON BRIEF: David E. Gluckman, MCCANDLISH HOLTON, PC, Richmond, Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellees. NIEMEYER, Circuit Judge: Junfei Ge commenced this action under 8 U.S.C. § 1447(b), requesting that the district court grant his application for U.S. citizenship through naturalization, which had been pending before the U.S. Citizenship and Immigration Services (“USCIS”) for more than two and a half years, or, alternatively, that the court remand the matter to USCIS with instructions “to adjudicate the application immediately and to schedule and administer an Oath Ceremony by a date certain.” (Emphasis added). In response, the district court entered a remand order directing USCIS to “adjudicate the plaintiff’s naturalization application within forty-five (45) days of this Order” and retaining jurisdiction to “exercise its authority to hear and decide the case” if the agency failed to comply. Shortly after the court’s remand order, however, Ge reported to the court that he had been sworn in as a U.S. citizen, and the court dismissed Ge’s action with prejudice. Ge then filed a motion for his attorneys fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, alleging that he was the “prevailing party” in the action 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 order was not a judgment on the merits or consent decree that created a “material alteration of the legal relationship of the parties.” (Quoting Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health and Human Res., 532 U.S. 598, 604 (2001)). We affirm. 2 I Junfei Ge, then a citizen of China, entered the United States on December 28, 2011, on a student visa. After pursuing his education for four years, he enlisted in the U.S. Army through a recruiting program known as Military Accessions Vital to the National Interest (“MAVNI”), which allows certain foreign nationals to enlist in the U.S. armed forces and thereafter to apply for naturalization pursuant to 8 U.S.C. § 1440(a). Ge filed such an application on May 25, …
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