Li v. Keisler

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JIANPING LI, 
Petitioner, No. 04-73258
v.
 Agency No.
A75-731-658
PETER D. KEISLER,* Acting
Attorney General,
Respondent.


RIGOBERTO MENDOZA-AGUILERA, 
Petitioner, No. 04-74457
v.
 Agency No.
A92-123-198
PETER D. KEISLER, Acting Attorney
General,
Respondent.


NAZNIN M.B. JANMOHAMED, 
Petitioner, No. 06-71068
v.
 Agency No.
A97-864-569
PETER D. KEISLER, Acting Attorney
General, ORDER
Respondent.

Filed September 27, 2007

*Peter D. Keisler is substituted for his predecessor, Alberto R. Gon-
zales, as Acting Attorney General of the United States, pursuant to Fed.
R. App. P. 43(c)(2).

13289
13290 LI v. KEISLER
Before: Alex Kozinski, Ronald M. Gould and
Consuelo M. Callahan, Circuit Judges.

ORDER

We consider applications for attorney’s fees pursuant to the
Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d),
in three immigration petitions for review. Because the appli-
cations present similar issues, we consider them together.

Li v. Keisler

Petitioner Li, an asylum applicant from China, filed a
motion to reopen following the Immigration Judge’s (“IJ”) in
absentia order of removal in his case. Petitioner asserted that
he failed to appear for the hearing due to “exceptional circum-
stances,” consisting of a high fever, drainage from his ear,
loss of balance, headache and dizziness. In the alternative,
petitioner claimed that, pursuant to the Board of Immigration
Appeals’ (“BIA”) decision in Matter of M-S, 22 I & N Dec.
349 (BIA 1998), he was not required to demonstrate excep-
tional circumstances where he did not challenge removability,
but rather sought to reopen in order to apply for the discre-
tionary relief of asylum. The IJ found that petitioner had not
established exceptional circumstances and denied the motion
to reopen without addressing Matter of M-S. On appeal to the
BIA, petitioner argued that the IJ’s failure to address Matter
of M-S denied him a full and fair hearing and violated due
process. The BIA affirmed the IJ’s decision, finding that peti-
tioner had not established exceptional circumstances and that
the due process claim was groundless.

After petitioner filed his opening brief, respondent moved
to remand to the BIA to permit the BIA to consider petition-
er’s Matter of M-S claim and other arguments petitioner
raised on appeal. Our Circuit Mediator granted respondent’s
 LI v. KEISLER 13291
motion and filed a remand order on December 16, 2005. The
mandate issued the same day.

Petitioner filed an application for attorney’s fees under
EAJA on March 16, 2006. Respondent opposed the applica-
tion because (1) it was untimely, (2) petitioner was not the
prevailing party, and (3) an award of attorney’s fees would be
unjust.

Janmohamed v. Keisler

Petitioner Janmohamed is an Indian citizen of Kenya who
feared torture — specifically, female genital mutilation
(“FGM”) — should she be returned to her native country.
After petitioner filed her opening brief, respondent filed an
unopposed motion to remand proceedings to the Agency.
Without conceding any error in the underlying proceedings,
respondent requested a remand to the BIA so that the Agency
could reexamine the IJ’s analysis of petitioner’s application
for relief under Article 3 of the United Nations Convention
Against Torture. Additionally, respondent acknowledged that
the IJ did not explain why, given the credible evidence of
petitioner’s fear of FGM, petitioner did not establish a well-
founded fear of persecution for purposes of asylum under 8
U.S.C. § 1158(b)(1). The Circuit Mediator granted respon-
dent’s motion and filed a remand order on August 16, 2006.
The mandate issued the same day.

Subsequently, on October 16, 2006 (sixty-one days after
issuance of the court’s mandate), petitioner filed an applica-
tion for attorney’s fees under the EAJA. Respondent opposed
the application because (1) it was untimely, (2) petitioner was
not the prevailing party, and (3) an award of attorney’s fees
would be unjust.

Mendoza-Aguilera v. Keisler

Petitioner Mendoza-Aguilera filed a motion to reopen
before the BIA to apply for a waiver of deportation pursuant
13292 LI v. KEISLER
to 8 U.S.C. § 1182(c) (“212(c)”) in April 2004. Petitioner
asserted that he became eligible for this relief while his appeal
had been pending before the BIA in 1996, that his departure
from the United States was not pursuant to a legally executed
deportation order, and that he was denied effective assistance
of counsel when his prior counsel failed to move to reopen.

After petitioner filed his opening brief, respondent moved
to remand to permit the BIA to consider whether petitioner
became eligible for 212(c) relief while his appeal was pend-
ing, and, if so, whether the BIA erred in dismissing petition-
er’s appeal without providing him an opportunity to seek such
relief. In addition, respondent stated that the remand would
allow the BIA to address whether petitioner was denied effec-
tive assistance of counsel and whether petitioner’s departure
from the United States was pursuant to a legally executed
deportation order under Wiedersperg v. INS, 896 F.2d 1179,
1181 (9th Cir. 1990). The Circuit Mediator granted respon-
dent’s motion and filed a remand order on January 30, 2006.
The mandate issued on the same day.

Petitioner filed an application for attorney’s fees under
EAJA on March 3, 2006. Respondent opposed the application
because it was untimely, and because an award of attorney’s
fees would be unjust.

I. Timeliness of EAJA Fee Applications.

As an initial matter, we conclude that petitioners’ fee appli-
cations are timely. The thirty-day deadline to file an applica-
tion for attorney’s fees under EAJA does not begin to run
until after the ninety-day period during which a party may
seek a writ of certiorari from the United States Supreme
Court. See 28 U.S.C. § 2412(d)(1)(B); Al-Harbi v. INS, 284
F.3d 1080, 1082-84 (9th Cir. 2002). Further, we held in Hoa
Hong Van v. Barnhart, 483 F.3d 600, 612 (9th Cir. 2007), that
the applicable post-judgment appeal period applies for pur-
poses of EAJA even if entry of the judgment was made pursu-
 LI v. KEISLER 13293
ant to the government’s request. Although Van was a Social
Security disability benefits appeal and the entry of judgment
in question was made at the district court, these differences
are not material. Specifically, this situation poses the same
dangers of uncertainty and inconsistency that this court
resolved in Van, and which the statute and its interpretive case
law seek to eliminate. See id. Thus, we conclude that the
thirty-day EAJA fee application period does not begin to run
until ninety days after an order remanding an immigration
matter to the BIA, even if such an order is at the request of
the government. See 28 U.S.C. § 2412(d)(1)(B); Van, 483
F.3d at 612; Al-Harbi, 284 F.3d at 1082-84.

In Li, the petitioner’s application was timely filed because
it was filed ninety-one days after this court’s order and man-
date issued, within the statutory period. Similarly, in Janmo-
hamed, the petitioner’s application was timely because it was
filed sixty-one days after the issuance of this court’s order and
mandate, well within the statutory application period. Finally,
in Mendoza-Aguilera, the petitioner’s application was timely
because it was filed thirty-two days after the issuance of this
court’s order and mandate, also within the statutory applica-
tion period.

II. Prevailing Parties in Remanded Immigration Petitions
for Review.

We also find that petitioners satisfy the prevailing party
requirement of EAJA, and are therefore eligible for an award
of reasonable attorney’s fees under 28 U.S.C.
§ 2412(d)(1)(A). Petitioners have met the prevailing party
standard set forth in Buckhannon Board and Care Home, Inc.
v. West Virginia Department of Health and Human Resources
by establishing that these federal court actions resulted in a
“material alteration of the legal relationship of the parties”
and that the alteration was “judicially sanctioned.” 532 U.S.
598, 604-05 (2001); see Perez-Arellano v. Smith, 279 F.3d
791, 794 (9th Cir. 2002) (holding that the Buckhannon rule
13294 LI v. KEISLER
regarding prevailing party status governs EAJA fee applica-
tions).

First, we have previously held in Carbonell v. INS, 429
F.3d 894, 899 (9th Cir. 2005), that “litigants who achieve
relief other than a judgment on the merits or a consent decree
are prevailing parties.” In that case, we observed that the peti-
tioner’s success in obtaining the desired relief from the fed-
eral court is critical to establishing prevailing party status
under Buckhannon, regardless of whether the federal court’s
order addressed the merits of the underlying case. Id. at 900;
see also Rueda-Menicucci v. INS, 132 F.3d 493, 495 (9th Cir.
1997).

Petitioner Li’s opening brief sought a reopened removal
proceeding to apply for asylum and related relief. Our order
remanded proceedings to the BIA. Similarly, in Janmohamed,
the petitioner sought in her opening brief that which our order
granted: a remand to the Agency. Finally, the petitioner in
Mendoza-Aguilera sought a remand to the Agency for review
of his 212(c) claim. Following our remand order, the BIA
ordered the case remanded to the IJ for consideration of
Mendoza-Aguilera’s 212(c) application and for consideration
of the issues raised by petitioner’s opening brief. Thus, the
Circuit Mediator’s remand orders in all three petitions for
review advanced the goals sought by petitioners, and consti-
tuted material alterations of the parties’ legal relationships for
purposes of Buckhannon.

Second, an order by a Circuit Mediator is sufficient to sat-
isfy the judicial imprimatur requirement of Buckhannon. See
532 U.S. at 605. Pursuant to Ninth Circuit Rule 27-7, the
court has delegated the authority to enter orders resolving cer-
tain motions to deputized court staff, including Circuit Media-
tors. The authority for deputized court staff to enter orders,
such as orders granting unopposed motions to remand cases
to administrative agencies, flows directly from the court.
See General Orders, Appendix A(52). Thus, we conclude that
 LI v. KEISLER 13295
an order by a Circuit Mediator granting an unopposed motion
to remand a case to the BIA pursuant to General Orders,
Appendix A(52) bears a sufficient judicial imprimatur to sat-
isfy the prevailing party standard of Buckhannon.

III. Substantial Justification or Special Circumstances
Rendering Award of Fees Unjust.

Beyond the Buckhannon prevailing party inquiry, EAJA
requires us to further consider whether the government’s posi-
tion throughout the litigation was substantially justified or if
special circumstances render an award unjust. 28 U.S.C.
§ 2412(d)(1)(A). For purposes of EAJA, “the position of the
United States” includes the decisions of the IJ and the BIA,
as well as the litigation position of the Department of Home-
land Security. 28 U.S.C. § 2412(d)(2)(D) (“ ‘position of the
United States’ means, in addition to the position taken by the
United States in the civil action, the action or failure to act by
the agency upon which the civil action is based”); Singh v.
Gonzales, ___ F.3d ___, No. 04-70300, 2007 WL 2562964,
at *1 (9th Cir. Sept. 7, 2007); Thangaraja v. Gonzales, 428
F.3d 870, 873-74 (9th Cir. 2005). Thus, the government must
show that all of these positions were substantially justified in
order to avoid an award of EAJA fees. Thangaraja, 428 F.3d
at 873-74.

In the context of unopposed remands to the BIA granted by
a Circuit Mediator prior to submission to a merits panel, the
inquiry related to the substantial justification of the govern-
ment’s position raises difficult issues. In effect, this situation
requires the government to justify an Agency position which
it has subsequently determined may be problematic, even if
the government does not necessarily concede a prejudicial
legal error. Moreover, the parties in these situations address
the question of substantial justification solely in the papers for
the fees, without full briefing on the merits of the underlying
case. This scenario makes it difficult for the parties to argue,
and for us to evaluate, whether the government’s conduct was
13296 LI v. KEISLER
substantially justified throughout the Agency proceedings as
well as during the litigation before us. See 28 U.S.C.
§ 2412(d)(2)(D).

This problem is further complicated by countervailing pol-
icy considerations. On the one hand, we acknowledge that the
government should retain the flexibility to voluntarily remand
in order to correct prior actions that have been subsequently
called into question by emerging case law, claims of changed
circumstances, or other novel considerations. See INS v. Ven-
tura, 537 U.S. 12 (2002) (per curiam) (reversing court of
appeals for failing to remand and to allow the BIA to consider
claim of changed country conditions the BIA had not previ-
ously adjudicated); Ren v. Gonzales, 440 F.3d 446, 448 (7th
Cir. 2006) (granting government’s motion to remand petition
for review to the BIA for reconsideration “in light of the
emerging case law” regarding asylum). This gives the Agency
an opportunity to address these new factors in the first
instance, and the court should avoid discouraging this valu-
able procedure.

At the same time, we are mindful that “[t]he clearly stated
objective of the EAJA is to eliminate financial disincentives
for those who would defend against unjustified governmental
action and thereby to deter the unreasonable exercise of Gov-
ernment authority.” Ardestani v. INS, 502 U.S. 129, 138
(1991); see also INS v. Jean, 496 U.S. 154, 163 (1990)
(“[T]he specific purpose of the EAJA is to eliminate for the
average person the financial disincentive to challenge unrea-
sonable governmental actions.”). Congress specifically
intended EAJA to be a deterrent for unreasonable agency con-
duct. See Jean, 496 U.S. at 164 n.11 (quoting the statement
of purpose for the 1980 amendments to the EAJA at Pub. L.
No. 96-481, § 202, 1980 HR 5612).

Moreover, we have acknowledged that the policy goal of
EAJA is to encourage litigants to vindicate their rights where
any level of the adjudicating agency has made some error in
 LI v. KEISLER 13297
law or fact and has thereby forced the litigant to seek relief
from a federal court. Thangaraja, 428 F.3d at 875 n.1. We
have further expressed doubt that the government’s subse-
quent request for a remand to reexamine a possible error can
“cure” prior unjustified positions in agency proceedings for
purposes of EAJA. Id. Rather, we have consistently held that
regardless of the government’s conduct in the federal court
proceedings, unreasonable agency action at any level entitles
the litigant to EAJA fees. See 28 U.S.C. § 2412(d)(2)(D);
Thangaraja, 428 F.3d at 876-74. The most recent example is
Singh v. Gonzales, ___ F.3d ___, No. 04-70300, 2007 WL
2562964, at *1, where we awarded EAJA attorney’s fees after
“[c]onsidering the BIA’s position as well as the arguments
made in this court” in the substantial justification analysis.

For the type of situation presented here, we conclude that
EAJA’s standards are best served by considering the likely
reason behind the voluntary remand in question. If the gov-
ernment seeks a remand because the record indicates that the
Agency’s prior action was not consistent with clearly estab-
lished law at the time the case was before it, then the govern-
ment’s position would not be substantially justified and the
petitioner would be entitled to EAJA fees. In other words, the
petitioner would be entitled to reasonable attorney’s fees
where the government requests a remand to reevaluate the
prior proceedings due to a misapplication of, or failure to
apply, controlling law and where there is no new law or
claims of new facts.

Such situations are distinguishable from cases where the
government seeks a remand due to intervening case law,
because of unclear controlling case law, or where the Agency
should have an opportunity to adjudicate a new claim for
relief in the first instance. See, e.g., Ren, 440 F.3d 446. In
cases such as these, the government’s position may have been
substantially justified at the time the Agency acted, even
though subsequent, novel considerations have since undercut
the underlying Agency decision. Therefore, the fee applicant
13298 LI v. KEISLER
would not be entitled to fees under EAJA in those situations
(even if the applicant otherwise prevailed by meeting the
Buckhannon standard).

This distinction furthers the explicit policy goal of EAJA to
discourage unjustifiable government conduct at the agency
level. Allowing the government to avoid EAJA fees any time
the government voluntarily seeks a remand to address a mis-
application of then-prevailing law would neutralize the clear
congressional intent that EAJA deter agencies from making
those types of errors in the first place.1 See Thangaraja, 428
F.3d at 875 n.1. The government’s voluntary request to
remand the proceedings to the BIA, while commendable, does
not nunc pro tunc substantially justify the Agency’s conduct
for purposes of the EAJA inquiry. At the same time, this dis-
tinction does not penalize the government for seeking a
remand where intervening case law or new facts have legiti-
mately rendered the underlying result legally suspect or other-
wise unjust.

Applying this standard to the fee application in Li, we con-
clude that the government’s position was substantially justi-
fied because the BIA order was not contrary to clearly
established law. The government sought remand to permit the
BIA an opportunity to address whether Matter of M-S “would
be dispositive of this petition for review.” However, we have
no published opinion reviewing Matter of M-S, the substance
of Li’s claim. Specifically, we have not addressed whether an
alien must establish “exceptional circumstances” to be eligi-
ble for a reopened removal proceeding when he intends to
apply for discretionary relief. In the absence of guidance from
this court, the government’s position was substantially justi-
fied. Moreover, the BIA’s decision that Li failed to demon-
strate “exceptional circumstances” is not contrary to clearly
1
For the same reason, the government’s request for a voluntary remand
is not a “special circumstance” that would relieve the government from the
applicants’ statutory entitlement to EAJA fees.
 LI v. KEISLER 13299
established law. At the time of the BIA’s May 14, 2004 order,
clearly established law held that the BIA did not abuse its dis-
cretion in finding that a severe asthma attack did not consti-
tute “exceptional circumstances” warranting a reopened
proceeding. See Celis-Castellano v. Ashcroft, 298 F.3d 888,
892 (9th Cir. 2002). Therefore, the government’s position in
Li is substantially justified and petitioner is not entitled to
attorney’s fees pursuant to EAJA.

In contrast, in Janmohamed, we conclude that the govern-
ment’s position was not substantially justified at all levels of
the proceedings. See 28 U.S.C. § 2412(d)(2)(D). The govern-
ment’s unopposed motion sought a remand because:

The [IJ] did not explicitly address which, if any, of
the PSGs identified by petitioner were legally cogni-
zable. The IJ, who found petitioner credible, did not
explain why, given her evidence, she had not demon-
strated well-founded fear. The IJ denied CAT protec-
tion based on an incorrect analysis, referring to the
past rather than the future. The BIA did not correct
these errors.

At the time of the IJ’s oral decision on December 9, 2004 and
the BIA’s February 16, 2006 order, clearly established law
held that credible testimony about a genuine fear of harm
meets both the objective and subjective prongs of the well-
founded fear of persecution inquiry. See Ladha v. INS, 215
F.3d 889, 897 (9th Cir. 2000) (observing that objective
requirement can be met by submitting credible testimony);
Mejia-Paiz v. INS, 111 F.3d 720, 723-24 (9th Cir. 1997)
(holding that subjective component of well-founded fear stan-
dard is met by “candid, credible and sincere testimony dem-
onstrating a genuine fear of persecution”); Singh v.
Moschorak, 53 F.3d 1031, 1034 (9th Cir. 1995) (holding that
victim of past persecution who returned to political work had
a subjective well-founded fear of persecution). Similarly, it
was clearly established law that CAT relief may be based on
13300 LI v. KEISLER
evidence of future torture. 8 C.F.R. § 208.16(c)(3) (“[A]ll evi-
dence relevant to the possibility of future torture shall be con-
sidered . . . .”); see Kamalthas v. INS, 251 F.3d 1279, 1282-
83 (9th Cir. 2001). Because at least some flaws in the IJ’s and
BIA’s orders were legal flaws at the time the case was before
the Agency, and not due to some later legal or factual devel-
opment, we cannot say that the government’s position was
substantially justified at all levels. See 28 U.S.C.
§ 2412(d)(2)(D). Therefore, the petitioner in Janmohamed, as
the prevailing party, is entitled to reasonable attorney’s fees
pursuant to EAJA.

We similarly conclude that the government’s position in
Mendoza-Aguilera was not substantially justified at the BIA
level. Mendoza-Aguilera obtained temporary resident status
prior to March 1988 and became a legal permanent resident
of the United States in September 1989. At the time of his
deportation hearing before the immigration judge, Mendoza-
Aguilera did not have the period of legal residency required
for 212(c) relief. However, during the pendency of his appeal
to the BIA, we ruled that the period of temporary resident sta-
tus would be considered for purposes of a 212(c) claim. See
Ortega de Robles v. INS, 58 F.3d 1355, 1360-61 (9th Cir.
1995). Moreover, Mendoza-Aguilera acquired the requisite
legal domicile in March 1995, long before the BIA issued its
January 1996 decision ordering his deportation.

At the time of the BIA’s April 2004 order denying
Mendoza-Aguilera’s motion to reopen in order to apply for a
waiver of deportation pursuant to 212(c), it was clearly estab-
lished that Mendoza-Aguilera had become eligible for 212(c)
relief while his appeal was pending before the BIA. Ortega de
Robles, 58 F.3d at 1360-61 (holding that a legal resident who
obtained status pursuant to 8 U.S.C. § 1255a established
domicile for purposes of 212(c) relief as of the date of his
application for legalization); see also Forough v. INS, 60 F.3d
570, 576 (9th Cir. 1995) (holding that the period of legal resi-
dency continued to accrue throughout the deportation pro-
 LI v. KEISLER 13301
ceeding until the BIA rendered its decision). The BIA’s
January 1996 and April 2004 decisions relied on flawed legal
analysis at the time that the case was before the Agency and
were not due to some later legal or factual development.
Therefore, the government’s position was not substantially
justified at all levels and Mendoza-Aguilera, as a prevailing
party, is entitled to EAJA fees.

IV. Reasonable Fees.

Having determined that the applications in Mendoza-
Aguilera v. Keisler, No. 04-74457, and Janmohamed v. Keis-
ler, No. 06-71068, demonstrate an entitlement to EAJA attor-
ney’s fees, these applications are referred to the Appellate
Commissioner for purposes of calculating the appropriate
attorney’s fees awards. See 9th Cir. R. 39-1.9.

The application for attorney’s fees in Li v. Keisler, No. 04-
73258, is denied.

COUNSEL

Li v. Keisler, No. 04-73258

Patricia Vargas, Alhambra, California, for the petitioner.

Terri J. Scadron, Office of Immigration Litigation, United
States Department of Justice, Washington, DC, for the
respondent.

Mendoza-Aguilera v. Keisler, No. 04-74457

Patricia Vargas, Alhambra, California, for the petitioner.

Patricia A. Smith, Office of Immigration Litigation, United
States Department of Justice, Washington, DC, for the
respondent.
13302 LI v. KEISLER
Janmohamed v. Keisler, No. 06-71068

Judith L. Wood, Los Angeles, California, for the petitioner.

Alison R. Drucker, Office of Immigration Litigation,
United States Department of Justice, Washington, DC, for the
respondent.
 PRINTED FOR
ADMINISTRATIVE OFFICE—U.S. COURTS
BY THOMSON/WEST—SAN FRANCISCO

The summary, which does not constitute a part of the opinion of the court, is copyrighted
© 2007 Thomson/West.