SAYSANA v. Gillen

United States Court of Appeals
For the First Circuit

No. 09-1179

HOUNG SAYSANA,

Petitioner, Appellee,

v.

BRIAN H. GILLEN, IN HIS CAPACITY AS SUPERINTENDENT OF
PLYMOUTH COUNTY CORRECTIONAL FACILITY,

Respondent, Appellant.

PETITION FOR ATTORNEYS’ FEES

Before

Howard, Ripple,* and Selya, Circuit Judges.

Theodore W. Atkinson, Trial Attorney, Office of Immigration
Litigation, United States Justice Department, Michael F. Hertz,
Acting Assistant Attorney General, Civil Division, David J. Kline,
Director, District Court Section, Office of Immigration Litigation,
and Gjon Juncaj, Senior Litigation Counsel, on brief, for
appellant.
Kerry E. Doyle, Graves & Doyle, and Jeanette Kain, Kaplan,
O’Sullivan & Friedman, on brief, for appellee.

July 14, 2010

*
Of the Seventh Circuit, sitting by designation.
 RIPPLE, Circuit Judge. In 2007, Houng Saysana was taken

into custody by Immigration and Customs Enforcement (“ICE”) and

held without bond. After agency proceedings in which bond was

again denied, he filed a petition for habeas corpus, which

challenged the conclusion of the Board of Immigration Appeals

(“BIA” or “Board”) that he was subject to the mandatory detention

provision in 8 U.S.C. § 1226(c). The district court granted the

writ, and we affirmed. See Saysana v. Gillen, 590 F.3d 7 (1st Cir.

2009). Mr. Saysana now petitions this court for an award of

attorneys’ fees under the Equal Access to Justice Act (“EAJA”), 28

U.S.C. § 2412. For the reasons set forth in the following opinion,

we deny the petition.

I. BACKGROUND

We presume familiarity with our prior decision, see

Saysana, 590 F.3d 7, and recount here only those facts pertinent to

disposition of the fee petition. Mr. Saysana, a native and citizen

of Laos, entered the United States as a refugee in 1980. In 1990,

he was convicted of indecent assault and battery in Massachusetts

state court, for which he was sentenced to five years’

imprisonment, three months of which were served.

In 2005, Mr. Saysana was arrested for failing to register

as a sex offender as required by Massachusetts law. The charge

later was dismissed, and Mr. Saysana was released from state

custody.

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 In 2007, ICE took Mr. Saysana into custody pursuant to 8

U.S.C. § 1226(c), and held him without bond. On the same day, the

Department of Homeland Security (“DHS”) initiated removal

proceedings, contending that Mr. Saysana’s 1990 conviction

qualified as an aggravated felony crime of violence, see 8 U.S.C.

§ 1101(a)(43)(F), and rendered him removable, see id. §

1227(a)(2)(A)(iii). The IJ held a bond redetermination hearing and

ordered Mr. Saysana released on $3500 bond. Mr. Saysana posted the

bond.

The DHS appealed the bond decision to the BIA. The Board

concluded that the mandatory detention provision of 8 U.S.C. §

1226(c) applied to any alien with a qualifying conviction who was

“released” from any criminal custody after the effective date of

the Illegal Immigration Reform and Immigrant Responsibility Act

(“IIRIRA”), Pub. L. 104-208, 110 Stat. 3009, 3009-546 (codified as

amended in scattered sections of 8 U.S.C.). See Matter of Saysana,

24 I & N Dec. 602 (BIA 2008). In the Board’s view, because Mr.

Saysana had been released from state custody in 2005, he was

subject to the mandatory detention requirement, even though the

charge that formed the basis for his 2005 arrest, failure to

register as a sex offender, was not the crime that formed the basis

for his removal proceedings. As a result of the Board’s decision,

ICE took Mr. Saysana back into custody, and Mr. Saysana filed a

petition for a writ of habeas corpus.

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 The district court granted the petition. In doing so, it

concluded that the Board’s interpretation of § 1226(c) was

erroneous:

“This court does not agree with the Board of
Immigration Appeals’ (BIA) interpretation of §
1226(c), as applied to petitioner’s case. I
find Chief Judge Kane’s decision in Thomas v.
Hogan, [No. 1:08-CV-0417,] 2008 WL 4793739
(M.D. Pa. Oct. 31, 2008), factually analogous
and persuasive. I adopt her reasoning as to
why the mandatory detention provision of
IIRIRA does not apply to aliens released from
custody in circumstances similar to those of
petitioner.”

Saysana, 590 F.3d at 10 (quoting from the unpublished district

court opinion in Saysana; alteration in original). Thus, the

district court granted the writ and ordered that an individualized

bond hearing be held. The Government appealed.

On appeal, the lion’s share of the Government’s brief was

dedicated to arguing that the district court erred in failing to

apply Chevron, U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984). The Chevron analysis requires an

interpreting court first to determine whether the statute is

ambiguous. See Appellant’s Br. 14-15 (citing Chevron, 467 U.S. at

842). If the statute is ambiguous, then a court must defer to a

reasonable agency interpretation of the statute. Id. at 15 (citing

Strickland v. Comm’r, 48 F.3d 12, 16 (1st Cir. 1995)). Engaging in

this analysis, the Government argued that § 1226(c) is ambiguous.

Specifically, the Government maintained that neither the statutory

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purpose, the language and structure of the statute, nor the

legislative history of the provision gave clear instruction as to

how the “when released” language should be interpreted. See id. at

16-23. Because the statute is ambiguous, the Government submitted,

the court should have proceeded to the second prong of the Chevron

analysis and considered whether the agency’s construction of the

statute is a permissible one. Turning to this inquiry, the

Government argued that the “Board’s interpretation of the statute

is reasonable because it is consistent with Congress’s intent to

require detention of certain criminal aliens during their removal

proceedings.” Id. at 25; see also id. at 25-28.

In our merits decision, we first observed that Mr.

Saysana’s appeal called on us to resolve “whether the mandatory

detention provision applies only when an alien is released from a

criminal custody the basis for which is one of the offenses listed

in § 1226(c)(1)(A)-(D); or, alternatively, whether it applies

whenever an alien, previously convicted of an offense that falls

within (c)(1)(A)-(D), is released from any criminal custody

regardless of the reason for that detention.” Saysana, 590 F.3d at

11. We noted that, in Matter of Saysana, 24 I & N Dec. at 605-06,

the Board had adopted the latter interpretation. Because the Board

had spoken authoritatively on the meaning of the statute, its

decision implicated the Court’s holding in Chevron. As set forth

by the Government, that analysis required us to undertake a two-

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part inquiry. First, we had to determine if Congress “ha[d]

directly spoken to the precise question at issue.” Saysana, 590

F.3d at 12 (internal quotation marks omitted). If it had, we were

required to give effect to Congress’s “unambiguously expressed

intent.” Id. (internal quotation marks omitted). If, however,

after applying traditional interpretive tools, we concluded that

the statute is ambiguous, we had to “turn to the second question .

. . whether the agency’s answer is based on a permissible

construction of the statute.” Id. at 13 (internal quotation marks

and citation omitted). If the agency’s construction was a

permissible one, Chevron mandated that we defer to the agency’s

interpretive regulation unless it was “arbitrary, capricious, or

manifestly contrary to the statute.” Id. (internal quotation marks

omitted).

We concluded that

a natural reading of the statutory provision from
top to bottom makes clear that the congressional
requirement of mandatory detention is addressed to
the situation of an alien who is released from
custody for one of the enumerated offenses. The
statutory language embodies the judgment of
Congress that such an individual should not be
returned to the community pending disposition of
his removal proceedings. Both the language and the
structure of the statutory provision state this
mandate in a clear and straightforward manner.

Id. We therefore rejected the Government’s submission that “when

released” was susceptible to another interpretation. The

Government had argued that “the ‘released’ language must embrace a

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broader meaning than a release from custody for an enumerated

offense because the statute requires mandatory detention for

individuals who are removable or inadmissible based on the

commission of certain offenses, whether or not they were convicted

of those offenses.” Id. at 14. We believed that “this reading of

the statutory language [wa]s a strained one.” Id. We acknowledged

that it was “true that a conviction is not always a necessary

predicate to inadmissibility or removability.” However, we noted

that “the plain language of the statute does not render the term

‘when released’ meaningless as applied to these subsections.

Individuals may be ‘released’ in connection with the offenses

listed without any resulting conviction and be subject, therefore,

to mandatory detention, consistent with the statute.” Id.

Because we concluded that the statute was clear on its

face, we were not compelled to answer Chevron’s second inquiry--

whether the agency’s interpretation of the ambiguous statute was a

reasonable one; we explained: “[B]ecause the ‘when released’

language is unambiguous, there is nothing for the agency to

interpret--no gap for it to fill--and there is no justification for

resorting to agency interpretation to address an ambiguity.” Id.

at 16. Nevertheless, we went on to state that, “even if we were to

conclude that the statute were ambiguous, we could not agree that

the BIA’s interpretation is a reasonable one.” Id. The basis for

our decision was the structural analysis, which we just have

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recounted, as well as “additional difficulties with the agency

position.” Id. Among these difficulties were that the “agency’s

interpretation would treat similarly situated individuals

differently on the basis of a factor not logically connected to the

mandatory detention provision.” Id. Further, the BIA’s

interpretation rested on several speculative assumptions--that

aliens such as Mr. Saysana “are ‘threats to persons and property in

the United States,’” are “‘poor bail risks,’” and “have ‘little

likelihood of relief from removal and . . . therefore have little

incentive to appear for their hearings.’” Id. at 17 (quoting

Saysana, 24 I & N Dec. at 607).

We summarized our decision accordingly:

We conclude that the meaning of the statute is
clear on the issue before us; the statute
contemplates mandatory detention following release
from non-DHS custody for an offense specified in
the statute, not merely any release from any non-
DHS custody. We further conclude that, even if the
statute were ambiguous, the interpretation of the
Board is not reasonable. Accordingly, we must
affirm the judgment of the district court.

Id. at 18.

Having reviewed the arguments made by the parties before

the district court and before the merits panel, we turn to Mr.

Saysana’s contention that he is entitled to fees under the EAJA.

II. FEES UNDER THE EAJA

The EAJA provides in relevant part:

[A] court shall award to a prevailing party other
than the United States fees and other expenses . .

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 . incurred by that party in any civil action (other
than cases sounding in tort), including proceedings
for judicial review of agency action, brought by or
against the United States in any court having
jurisdiction of that action, unless the court finds
that the position of the United States was
substantially justified or that special
circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A). The question we must resolve is whether

the Government’s position, both in the district court and before

this court, was “substantially justified.” The Government bears

the burden of proof, by a preponderance of the evidence, on this

issue. Dantran, Inc. v. U.S. Dep’t of Labor, 246 F.3d 36, 41 (1st

Cir. 2001).

To be “substantially justified,” it is not necessary for

the Government’s position to be “justified to a high degree”;

rather, the Government meets this standard if its position is

“justified in substance or in the main.” Pierce v. Underwood, 487

U.S. 552, 565 (1988) (internal quotation marks omitted). Although

“determining whether the government’s position is substantially

justified . . . has proved to be an issue of considerable

conceptual and practical difficulty,” Roanoke River Basin Ass’n v.

Hudson, 991 F.2d 132, 138 (4th Cir. 1993) (internal quotation marks

omitted), we have developed some “rules of analysis” to guide our

inquiry, Schock v. United States, 254 F.3d 1, 5 (1st Cir. 2001).

For instance, we must examine “the actual merits of the

government’s litigation position as to both the facts and the law.”

Id. (citing Pierce, 487 U.S. at 568-69). Additionally, “the

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position of a government agency can be substantially justified even

if a court ultimately determines the agency’s reading of the law

was not correct.” Aronov v. Napolitano, 562 F.3d 84, 94 (1st Cir.

2009) (en banc) (citing Pierce, 487 U.S. at 566 n.2). Finally,

“[w]hen the issue is a novel one on which there is little

precedent, courts have been reluctant to find the government’s

position was not substantially justified.” Schock, 254 F.3d at 6.

Defining the concept of the Government’s “position”--at

least with any precision--has proved equally elusive. The Supreme

Court has instructed that, “[w]hile the parties’ postures on

individual matters may be more or less justified, the EAJA--like

other fee shifting statutes--favors treating a case as an inclusive

whole, rather than as atomized line-items.” Comm’r, INS v. Jean,

496 U.S. 154, 161-62 (1990). In other words, in evaluating the

Government’s position, we must “arrive at one conclusion that

simultaneously encompasses and accommodates the entire civil

action.” Dantran, 246 F.3d at 41 (quoting Jackson v. Chater, 94

F.3d 274, 278 (7th Cir. 1996)). With these guidelines in mind, we

turn to the position taken by the Government in this litigation.

As set forth previously, the crux of the Government’s

position, from the outset of the litigation, was that, in light of

the Board’s decision in Matter of Saysana, the district court was

required to apply Chevron. In its opinion, however, the district

court did not apply Chevron; it did not explain why that analysis

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was inapplicable, and, indeed, it did not mention Chevron.

Instead, it merely adopted the analysis of the district court set

forth in Thomas v. Hogan, No. 1:08-CV-0417, 2008 WL 4793739 (M.D.

Pa. Oct. 31, 2008).1

On appeal to this court, the Government again emphasized

the applicability of the Chevron analysis. The bulk of the

Government’s brief to this court focused on Chevron’s applicability

and on its argument that, under the first prong of Chevron, §

1226(c) is ambiguous. We cannot say that the Government’s argument

with respect to the applicability of Chevron was not substantially

justified. Indeed, in deciding the merits of this action, we

determined that the Chevron analysis was implicated by the Board’s

decision.

We declined to accept the Government’s view that §

1226(c) was ambiguous. However, just because the Government’s

position--or, more precisely, one aspect of the Government’s

position--does not, in the end, win the day, does not mean that the

Government’s position is not substantially justified. See Aronov,

562 F.3d at 94. Rather, we must determine if the Government’s

position has a reasonable basis in law and fact. See United States

1
The Thomas opinion, as well, made no mention of Chevron.
See Thomas v. Hogan, No. 1:08-CV-0417, 2008 WL 4793739 (M.D. Pa.
Oct. 31, 2008). Indeed, Thomas was decided close on the heels of
the Board’s ruling in Matter of Saysana, and it is unclear whether
the court in Thomas even was aware of the precedential
administrative ruling.
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v. Yoffe, 775 F.2d 447, 449 (1st Cir. 1985) (asking whether the

Government’s position was “reasonable both in law and fact”).

Under the circumstances presented here, we must conclude that the

Government’s position had such a reasonable basis.

In addressing the question whether § 1226(c) was

ambiguous, neither the Government nor Mr. Saysana had a wealth of

authority on which to base their arguments. Indeed, this court was

the first court of appeals to address the question whether §

1226(c) is ambiguous and to hold that it is not.2 Where, as here,

a case presents a novel issue and one on which there is little

precedent, courts have found that an award of EAJA fees is not

warranted. See Schock, 254 F.3d at 6. In short, the question of

whether § 1226 was ambiguous, and therefore whether courts had to

defer to a reasonable administrative interpretation of the statute,

was one of first impression among the courts of appeals; as such,

“it was appropriate for the government to seek specific instruction

from the court on th[is] issue[].” De Allende v. Baker, 891 F.2d

7, 13 (1st Cir. 1989).

2
There also was limited district court consideration of the
issue. The Thomas opinion, 2008 WL 4793739, was issued by the
district court for the Middle District of Pennsylvania less than
two months before the District of Massachusetts acted in Saysana,
2008 WL 5484553. At the time of its decision, the Thomas court
noted a “developing body of case law” adopting its view. 2008 WL
4793739, at *3 (emphasis added). However, the cases cited by the
court that made up the “developing body” were not so numerous or so
uniform as to suggest that it was unreasonable for the Government
to continue to question their reasoning in the Saysana matter.
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 In arguing that the Government’s position was not

substantially justified, Mr. Saysana focuses on the language we

employed in the merits decision concerning the BIA’s interpretation

of § 1226(c). Specifically, we held that, “even if we were to

conclude that the statute were ambiguous, we could not agree that

the BIA’s interpretation is a reasonable one.” Saysana, 590 F.3d

at 16. However, as suggested by our opinion, resolution of this

issue did not impact our decision. The Government’s central

argument was that the district court was required to apply the

Chevron analysis, and, further, under the first prong of that

analysis, that § 1226(c) is ambiguous. For the reasons stated

above, this position was not unreasonable. Although it is true

that the Government then went on to make an argument in support of

the agency’s interpretation, this argument was, in the end, of no

lasting consequence. See generally Roanoke River Basin Ass’n, 991

F.2d at 139. We do not believe that the Government’s position,

assessed in its totality, can be characterized as unjustified. See

Dantran, 246 F.3d at 41.

CONCLUSION

For these reasons, Mr. Saysana’s petition for EAJA fees

is denied.

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