concurring in part and dissenting in part.
Although I am in agreement with virtually all of the majority opinion, I disagree with its conclusion that Vacchio’s prolonged detention does not provide a basis for finding that the actions of the INS were not “substantially justified” in this case.
The majority opinion recognizes that the INS’s actions in this case were questionable and that the INS’s continued insistence on Vacchio’s detention appears “considerably more frivolous and unreasonable” in light of the INS’s failure to appeal Vac-chio’s eventual release. The majority opinion states, however, that it was the inaction of the BIA, not the conduct of the INS, that led to Vacchio’s detention and, because Vacehio’s habeas petition is directed at the INS, the BIA’s inaction cannot appropriately be considered the position of the government for the purposes of Vac-chio’s appeal.
In my view, the majority’s argument rests on a technicality that obscures the leading role the INS played in assuring Vacchio’s detention. If the INS had not acted as it did, there would have been no need for the BIA to act (or fail to act) on Vacchio’s detention. Specifically, it was the INS that filed the Form EOIR-43 preventing Vacchio’s release in September 2002. The INS then sought to continue Vacchio’s detention in its appeal of October 4, 2002. Under the circumstances, the INS’s actions are sufficiently determinative of Vacchio’s detention as to constitute a litigation position that was not “substantially justified” for the purposes of the EAJA.
Because I believe that the INS was not substantially justified in taking the actions that caused Vacchio’s prolonged detention, *678I would grant Vacchio’s request for attorney’s fees and costs under the EAJA.