February 27, 1995 [NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-2124
IN RE: RICARDO DAVILA-BARDALES.
RICARDO DAVILA-BARDALES,
Movant,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
ON MOTION FOR AN AWARD OF ATTORNEYS' FEES
Before
Torruella, Chief Judge,
Selya and Cyr, Circuit Judges.
Victoria Lewis and Greater Boston Legal Services on
memorandum for movant.
Frank W. Hunger, Assistant Attorney General, Civil Division,
Department of Justice, Priscilla McNeill Jones and Donald E.
Keener, Attorneys, Office of Immigration Litigation, Civil
Division, on memorandum for respondent.
SELYA, Circuit Judge. Ricardo Davila-Bardales seeks
SELYA, Circuit Judge.
attorneys' fees under the Equal Access to Justice Act (EAJA), 28
U.S.C. 2412 (1988). He bases his motion on appellate
proceedings in which he successfully persuaded this court to
vacate an order of deportation and remand for further
consideration. See Davila-Bardales v. INS, 27 F.3d 1 (1st Cir.
1994). Because we find that the government's position in this
court was substantially justified, we deny the motion.
I
I
We offer a succinct summary of prior proceedings,
referring the reader who hungers for a meatier account to our
earlier opinion.
In 1989, the Immigration and Naturalization Service
(INS) issued an order to show cause why Davila-Bardales should
not be deported on the ground that he was a Peruvian national who
had unlawfully entered the United States without inspection.
Applicable INS regulations prohibit an immigration judge (IJ)
from accepting an admission of deportability from an
unrepresented party under the age of 16 unless the minor is
accompanied by an adult guardian, relative, or friend. See 8
C.F.R. 242.16(b) (1994). Nevertheless, at the show-cause
hearing the IJ asked petitioner, then age 15, whether the
allegations in the rule to show cause were true. The petitioner
answered affirmatively.
The IJ also reviewed Form I-213, a document
constituting a record of an INS officer's interview with
3
petitioner shortly after petitioner's alleged entry. The form
attributed to petitioner admissions similar to those he made in
the later show-cause hearing. The IJ asked petitioner if the
statements reported in the form were correct, and petitioner
acknowledged that they were. His comments regarding the form,
and Form I-213 itself, arguably escaped the grasp of the
aforementioned regulation, 8 C.F.R. 242.16(b), because the
statements were not made as part of the hearing, but, rather, in
custodial interrogation outside the IJ's presence.
The IJ found petitioner deportable, and the Board of
Immigration Appeals (BIA) affirmed despite an apparent conflict
with two unpublished BIA decisions. See In re Garcia, NO. A70-
006-067, slip op. (BIA Aug. 17, 1993); In re Hernandez-Jimenez,
No. A29-988-097, slip op. (BIA Nov. 8, 1991). Although these
decisions lacked precedential force, see 8 C.F.R. 3.1(g)
(1994), they suggested that the evidence related to the form
should have been excluded. See Davila-Bardales, 27 F.3d at 4.
Petitioner sought judicial review. We vacated the
order of deportation because the BIA had not adequately explained
the apparent inconsistency between its unpublished decisions in
Garcia and Hernandez-Jimenez, on the one hand, and its decision
in petitioner's case, on the other hand. See id. at 5-6.
Withal, we left open the possibility that the BIA might develop a
consistent and principled rule which would sometimes allow the
introduction of an unaccompanied minor's statements made during
custodial interrogation. See id. Shortly thereafter, petitioner
4
filed the instant motion.
II
II
The EAJA permits a prevailing party to recover
reasonable counsel fees and expenses incurred in civil litigation
with the government, but only if the government has taken a
position that is not "substantially justified" and no special
circumstance renders a fee award unjust. See De Allende v.
Baker, 891 F.2d 7, 8 (1st Cir. 1989); Sierra Club v. Secretary of
the Army, 820 F.2d 513, 516-17 (1st Cir. 1987).
The threshold requirement for access to EAJA benefits
is that a party prevail in his litigation with the federal
sovereign. It is unclear whether petitioner satisfies this
benchmark: it is problematic whether one is a "prevailing party"
within the meaning of the EAJA merely because he secures a remand
for further agency action. Several cases have held or implied
that prevailing party status is only conferred upon a party who
wins at least part of the ultimate relief sought. See, e.g.,
Hanrahan v. Hampton, 446 U.S. 754, 758-59 (1980) (rejecting
prevailing party status under 42 U.S.C. 1988 for one who merely
obtains vacation of a directed verdict on appeal); Escobar Ruiz
v. INS, 787 F.2d 1294, 1297 (9th Cir. 1986), aff'd, 838 F.2d
1020, 1029 (9th Cir. 1988) (en banc); see also Texas State
Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-92
(1989). Here, petitioner has not yet obtained any ultimate
relief as the issue of his deportability remains unsettled.
We are hesitant to decide the matter on this basis,
5
however, as the status of these cases has been drawn into some
question by the Court's recent opinion in Shalala v. Schaefer,
113 S. Ct. 2625, 2631-32 (1993), which held that procurement of a
"sentence four" remand in the context of social security
litigation qualifies the putative benefit-recipient as a
prevailing party. And, moreover, the record reveals an
independent basis on which the motion can be decided. Because we
find the government's position in the present case was
substantially justified, see infra, we skirt the challenging
legal question of whether petitioner can at this stage be
considered a prevailing party.
The question of what constitutes "substantial
justification" has proven to be a vexing one, best addressed on a
case by case basis. In Pierce v. Underwood, 487 U.S. 552 (1988),
the Court noted that substantial justification does not
necessarily mean justified to a high degree, but, rather,
requires only that the government's stance must have been
"justified to a degree that could satisfy a reasonable person."
Id. at 565. Accordingly, the test of substantial justification
turns on whether the government's position was "reasonable in
both law and fact." United States v. Yoffe, 775 F.2d 447, 449
(1st Cir. 1985). What is more, an unfavorable outcome in the
underlying litigation, by itself, does not create a presumption
that the government's position was not substantially justified.
See De Allende, 891 F.2d at 12; Sierra Club, 820 F.2d at 517.
Frequently, the issue of substantial justification is
6
bifurcated so that an inquiring court may consider, first, the
reasonableness of the government's agency position, and, second,
the reasonableness of its litigation position. See, e.g., United
States v. One Parcel of Real Property, 960 F.2d 200, 209 (1st
Cir. 1992). We eschew such a bifurcated approach in the instant
case. In the first place, the Supreme Court has held that the
EAJA does not apply to civil deportation proceedings before the
INS, see Ardestani v. INS, 112 S. Ct. 515, 521 (1991), and
petitioner, mindful of this impediment, has not sought fees for
proceedings prior to those conducted in this court. Thus our
analysis of substantial justification must focus primarily on the
INS's litigation position in this venue as opposed to its conduct
in bringing the deportation proceedings and in considering the
petitioner's admissions during custodial interrogation. Second,
and relatedly, we have held that adjudicators, even though part
of the Executive Branch, are exempt from the provisions of the
EAJA. See In re Perry, 882 F.2d 534, 539-41 (1st Cir. 1989).
Consequently, our analysis of substantial justification must look
primarily from the perspective of the INS rather than from the
perspective of the BIA.
III
III
Applying the standard we have described, we find that
the government has met its burden of showing that its position
was substantially justified. The law concerning the status of a
minor's admissions during interrogation at the border was
tenebrous before our decision in the instant case, and remains
7
somewhat murky. There was no precedent in this court regarding
admissions of deportability by minors, and the only BIA
discussions of the issue were in unpublished opinions, which have
no precedential value. This lack of clarity in the law strongly
suggests substantial justification for the government's position.
See De Allende, 891 F.2d at 12-13; Mattson v. Bowen, 824 F.2d
655, 657 (8th Cir. 1987); Martinez v. Secretary of HHS, 815 F.2d
1381, 1383 (10th Cir. 1987). Put another way, since the
petitioner's statements seemingly fell outside the reach of the
only applicable regulation, there was a significant lack of
guidance in the law, and the government was substantially
justified in adhering to its position that the IJ and the BIA
properly relied upon the disputed statements.
This was especially true in the situation at hand.
After all, the INS had good reason to believe that the
circumstances surrounding the petitioner's statements supported
the veracity and reliablilty of the admissions; the transcript of
the hearings reveals that petitioner was able to understand and
articulate answers to the relatively simple factual questions he
was asked. Although the BIA displayed regrettable inconsistency
in its decisions, the INS could realistically hope that
petitioner's statements would prove admissible in the end, even
if the statements became subject to a consistent rule governing
unaccompanied admissions made during custodial interrogation.
We think, too, that the posture of the case argues
cogently in favor of a finding of substantial justification. The
8
INS prevailed initially, both before the IJ and before the BIA.
It did not seek judicial review, but came to this court as a
respondent. While we are not prepared to say that the
government, qua respondent, may never be held responsible for
fees under the EAJA if the petitioner prevails, cf. Sierra Club,
820 F.2d at 519-20 (affirming EAJA award of reasonable attorneys'
fees in non-administrative adjudication, despite "evanescent"
government victory in the district court, because the
government's legal position was so obviously contrary to existing
law), we are very reluctant to criticize the INS for opposing the
petition for review in this court, given that the BIA already had
decided the case in its favor. Thus, we conclude that the INS's
position, though ultimately unsuccessful, was reasonable under
the circumstances.
IV
IV
We need go no further. Because the government's
position was substantially justified within the meaning of the
EAJA, petitioner's motion for attorneys' fees is
Denied.
9