Michel v. Mayorkas

United States Court of Appeals
For the First Circuit

No. 22-1465

BARBARA MICHEL; KARINE G. PIERRE BOUCICAUT; ANA MARISELA
DIAZ SANCHEZ; JOSE ANGEL ANDRADE; FREDY FRANCISCO FUENTES;
OSCAR OSMIN CHAVEZ-DERAS,

Plaintiffs, Appellants,

v.

ALEJANDRO MAYORKAS, in his official capacity as Secretary of
Homeland Security; UNITED STATES DEPARTMENT OF HOMELAND
SECURITY; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES;
MICHAEL J. MCCLEARY, in his official capacity as Field Director
of the United States Citizenship and Immigration Services,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Indira Talwani, U.S. District Judge]

Before

Barron, Chief Judge,
Lynch and Gelpí, Circuit Judges.

Anthony Drago, Jr., with whom Anthony Drago, Jr., P.C. was on
brief, for appellants.
Mary L. Larakers, Trial Attorney, Office of Immigration
Litigation, with whom Brian M. Boynton, Principal Deputy Assistant
Attorney General, Civil Division, William C. Peachey, Assistant
Director, and Monique T. Peoples, Senior Litigation Counsel, were
on brief, for appellees.
May 11, 2023
 GELPÍ, Circuit Judge. The Equal Access to Justice Act

("EAJA") entitles a prevailing party in certain civil actions

against the United States to receive attorney's fees, unless the

government's position was substantially justified or special

circumstances make an award unjust. 28 U.S.C. § 2412(d)(1); see

also McLaughlin v. Hagel, 767 F.3d 113, 117 (1st Cir. 2014).

Barbara Michel, Karine G. Pierre Boucicaut, Ana Marisela

Díaz Sánchez, José Angel Andrade, Fredy Francisco Fuentes, and

Oscar Osmin Chávez-Deras (collectively, "Appellants") prevailed

before the district court in a challenge against the Department of

Homeland Security ("DHS") and its agency, the United States

Citizenship and Immigration Services ("USCIS") (collectively, the

"government" or "Appellees"), after USCIS administratively closed

each individual's application to adjust status. Appellants

subsequently filed a motion for attorney's fees under the EAJA.

The district court determined that although Appellants had

prevailed in their challenge to USCIS' action, the government's

position was substantially justified. The district court

therefore denied them attorney's fees for the proceedings before

it. However, the district court granted Appellants EAJA fees for

the ensuing appellate proceedings, which were voluntarily

dismissed by the government. This award nonetheless amounted to

a reduced percentage of the global sum sought based on a finding

- 3 -
that the total hours billed were duplicative. We affirm both

rulings.

I. Background

Although Appellants' underlying challenge has been

resolved in their favor and is no longer at issue, we describe the

dispute for context. Appellants are citizens of Haiti and El

Salvador who were granted Temporary Protected Status ("TPS") after

previously being in removal proceedings in the United States. TPS

constitutes a temporary permission to remain in the United States

and is granted to certain noncitizens whose country of origin meets

the statutory conditions outlined in 8 U.S.C. § 1254a. Upon

obtaining this status, each Appellant filed an application with

USCIS for "advance parole" to travel to his or her country of

citizenship and be allowed entry to the United States upon

returning.

USCIS, in fact, authorized their travel. Upon

Appellants' return, they were "inspected and paroled" into the

United States. They then filed an application to adjust their

immigration statuses from TPS to Lawful Permanent Resident.

However, USCIS administratively closed their applications for lack

of jurisdiction, concluding that the immigration judge, not USCIS,

had sole jurisdiction over their applications because they were

not "arriving aliens" under the Miscellaneous and Technical

Immigration and Naturalization Amendments of 1991 ("MTINA"), Pub.

- 4 -
L. No. 102-232, § 304(c), 105 Stat. 1733, 1749 (1991), despite

having been "inspected and paroled."1

Appellants proceeded to file individual complaints in

the United States District Court for the District of Massachusetts

under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, et

seq., challenging USCIS' refusal to entertain jurisdiction over

their adjustment of status applications. Each complaint presented

the same legal issue: whether travel on advance parole rendered

Appellants "arriving aliens" such that USCIS, rather than the

immigration judge, had jurisdiction over their applications to

adjust status. The cases were consolidated by the district court

as they involved identical issues. The government moved to dismiss

the six complaints, on the ground that the district court did not

have jurisdiction to hear the claims under 8 U.S.C. § 1252(g) as

Appellants sought to indirectly challenge their removal orders.

Alternatively, the government posited that Appellants were not

1 Regulations promulgated by DHS provide that jurisdiction
over adjustment of status applications lies with USCIS, 8 C.F.R
§ 245.2(a)(1), unless the immigration judge has jurisdiction under
8 C.F.R § 1245.2(a)(1)(i). Sections 1245.2(a)(1)(i) and (ii)
provide that an immigration judge has sole jurisdiction over
adjustment of status applications for those in removal proceedings
"other than" "arriving aliens" unless certain conditions are met.
Accordingly, whether USCIS could adjudicate Appellants'
applications turns in part on whether they are "arriving aliens"
not subject to certain conditions. "Arriving Alien," as defined
by regulation, includes noncitizens who apply for admission
"coming or attempting to come into the United States at a port-
of-entry." 8 C.F.R. § 1.2.

- 5 -
"arriving aliens" under the MTINA. Appellants filed a cross motion

for judgment on the pleadings. On March 2, 2021, the district

court denied the government's motion to dismiss and granted

Appellants' cross motion for judgment on the pleadings, ruling

that USCIS had jurisdiction and ordering the agency to reopen the

applications and adjudicate them on the merits.

The government timely appealed each of the six cases to

this court, where the same were also consolidated. Prior to any

briefing, the government voluntarily dismissed its appeal.

Subsequently, Appellants filed timely motions before the district

court requesting attorney's fees under the EAJA for both district

and appellate court proceedings. The district court held that the

government's position throughout the district court litigation was

substantially justified and denied EAJA fees for the same. The

district court, however, found no justification for the

government's appeal and thus granted EAJA fees for the short-lived

appellate proceedings, but at a fraction of the requested sum upon

a finding that the total number of hours billed included duplicate

listings.

Appellants challenge the district court's EAJA rulings

for both the district court and appellate proceedings and seek an

award of $179,480 for district court work and a total award of

$12,663.92 for appellate work.

- 6 -
 II. Standard of Review

"We review a district court's determinations under the

EAJA for abuse of discretion." Aronov v. Napolitano, 562 F.3d 84,

88 (1st Cir. 2009). We will find an abuse of discretion "when a

material factor deserving significant weight is ignored, when an

improper factor was relied upon, or when all proper and no improper

factors are assessed, but the [district] court makes a serious

mistake in weighing them." Casa Marie Hogar Geriatrico, Inc. v.

Rivera-Santos, 38 F.3d 615, 618 (1st Cir. 1994) (quoting Foster v.

Mydas Assoc., Inc., 943 F.2d 139, 143 (1st Cir. 1991)).

III. Discussion

As a general principle, each party before the court is

usually responsible for its own attorney's fees. See Castañeda-

Castillo v. Holder, 723 F.3d 48, 56 (1st Cir. 2013). The EAJA is

an exception to this traditional "American rule." See Aronov, 562

F.3d at 88; 28 U.S.C. § 2412. The EAJA provides in pertinent part

that:

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

- 7 -
28 U.S.C. § 2412(d)(1)(A) (emphasis added). The statute's purpose

is "to ensure that certain individuals . . . will not be deterred

from seeking review of, or defending against, unjustified

governmental action because of the expense involved." Aronov, 562

F.3d at 88 (omission in original) (quoting Scarborough v. Principi,

541 U.S. 401, 407 (2004)). Not only is the EAJA a fee shifting

statute, but it is also a waiver of the government's sovereign

immunity "and so must be construed strictly in favor of the

government." Id.

Here, there is no dispute that Appellants prevailed.

Hence, the issue at bar is whether the government was

"substantially justified" in the underlying litigation, which the

government must establish by a preponderance of the evidence.

Saysana v. Gillen, 614 F.3d 1, 5 (1st Cir. 2010).

We have held that the government is "substantially

justified" if "it has a reasonable basis in law and fact" for its

position, Aronov, 562 F.3d at 94 (quoting Pierce v. Underwood, 487

U.S. 552, 566 n.2 (1988)), or put another way, if "a reasonable

person could think [the government's position] correct," Dantran,

Inc. v. U.S. Dep't of Lab., 246 F.3d 36, 41 (1st Cir. 2001) (quoting

Pierce, 487 U.S. at 566 n.2). "To be 'substantially justified,'

it is not necessary for the [g]overnment's position to be

'justified to a high degree'; rather, the [g]overnment meets this

standard if its position is 'justified in substance or in the

- 8 -
main.'" Saysana, 614 F.3d at 5 (quoting Pierce, 487 U.S. at 565).

Further, even if the government failed on the merits, its position

could still have been substantially justified. See id.; Aronov,

562 F.3d at 94. When the issue is a novel one with little to no

precedent, courts have been hesitant to find the government's

position not substantially justified. Saysana, 614 F.3d at 6;

Schock v. United States, 254 F.3d 1, 5-6 (1st Cir. 2001) (outlining

certain factors courts may consider when evaluating the

government's position). Finally, "in evaluating the

[g]overnment's position, we must 'arrive at one conclusion that

simultaneously encompasses and accommodates the entire civil

action.'" Saysana, 614 F.3d at 5 (quoting Dantran, 246 F.3d at

41).

We now turn to the question before us: whether the

district court abused its discretion in finding the government's

position substantially justified.2 We evaluate the government's

pre-litigation and litigation positions holistically. Id.

Appellants argue that the government's position was not

substantially justified because it departed from decades of prior

As outlined above, the EAJA provides that a court shall
2

award fees to a prevailing party unless "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). Because we
agree with the district court that the government's position was
substantially justified, we need not reach whether special
circumstances were present here. McLaughlin, 767 F.3d at 117.

- 9 -
interpretation and had no basis in law of fact. They further posit

that the government's attempt to justify a "fabricated legal

theory" during the litigation stage was "absurd." The government,

on the other hand, contends that the arguments it presented before

the district court were novel, based on the plain language of the

MTINA, supported by recent court decisions dating back to 2014,

and had never been addressed by the First Circuit, and that the

overwhelming number of decisions from other courts adopting its

position support the denial of EAJA fees.

1. District Court Proceedings

The district court identified two reasons for concluding

that the government was substantially justified. First, the legal

arguments raised were novel and have not yet been addressed by the

First Circuit. Second, it observed that, although it disagreed

with the government's position, that position was previously

upheld by other federal courts, including one within the District

of Massachusetts. In sum, the district court found that the

government had presented a substantial question of law. Because

it assessed the factors in Schock and weighed them appropriately,

we conclude it did not abuse its discretion in denying Appellants

attorney's fees for the proceedings before it.

An award of EAJA fees foremost was not warranted in this

instance given that the issue before the district court was novel

and of first impression within the First Circuit. When the

- 10 -
district court addressed whether travel on advance parole rendered

Appellants "arriving aliens," such that USCIS would have

jurisdiction over Appellants' applications to adjust status,

caselaw was scant. Moreover, as Appellants' counsel admitted to

the district court, not a single case in the country had been

issued favoring their arguments. When an issue before the court

is novel and has little to no precedent, "courts have found that

an award of EAJA fees is not warranted." Saysana, 614 F.3d at 6.

Whether travel on advance parole rendered Appellants arriving

aliens was then and remains an issue of first impression in this

circuit.3 As such, "it was appropriate for the government to seek

specific instruction from the [district] court on th[is] issue[]."

Id. (second and third alterations in the original) (quoting De

Allende v. Baker, 891 F.2d 7, 13 (1st Cir. 1989)). Moreover, the

only district court within the First Circuit to address the key

issue agreed that the government's position on the merits is

correct. See Pineda v. Wolf, No. 19-11201, 2020 WL 4559936, at *1

(D. Mass. May 13, 2020).

Moreover, the district court did not abuse its

discretion in denying fees since "a string of court decisions going

either way" can indicate that the government's position is

substantially justified. Schock, 254 F.3d at 6. And that was

3 We have yet to address the merits of this issue, and do not
do so now.

- 11 -
precisely the case here where a number of courts have issued

reasoned opinions agreeing with the government. For instance, the

Fifth Circuit recently addressed -- before the district court here

denied fees -- the underlying issue in a case mirroring this one

and held that the Appellants in that case, who returned from

foreign travel, were not "arriving aliens" when they submitted

their applications for adjustment of status and thus that USCIS

lacked jurisdiction over said applications. Duarte v. Mayorkas,

27 F.4th 1044, 1057-1061 (5th Cir. 2022). Similarly, another court

within the District of Massachusetts had previously held that the

plaintiff in that case was not an "arriving alien" after he

traveled outside the United States on advance parole and was

inspected upon return. Pineda, 2020 WL 4559936, at *1. Likewise,

a court in the District of Columbia held that the petitioner did

not meet the definition of "arriving alien" after traveling on

advance parole and returning to the United States and thus that

USCIS could not adjudicate his application to adjust status.

Barrera v. U.S. Dep't of Homeland Sec., No. 20-cv-02395, 2022 WL

103307, at *1, *3 (D.D.C. Jan. 11, 2022). This jurisprudence makes

it clear that the government's position was, and continues to be,

substantially justified.

Appellants posit that the fact that other courts reached

different conclusions based on the same facts "does not justify

the illogical legal position taken by the government." We are

- 12 -
unpersuaded. On the contrary, the fact that the issue here has

been decided in the government's favor by several courts indicates

that there is uncertainty on whether TPS holders traveling on

advance parole can be classified as "arriving aliens" upon reentry

to the country.

The fact that the government's claims failed on the

merits does not dispose of the issue of substantial justification.

Schock, 254 F.3d at 5. The government's position, when viewed

holistically, was indeed justified. Thus, we discern no abuse of

discretion in the denial of EAJA fees related to the challenge

before the district court.

2. Appellate Proceedings

We now turn to Appellants' remaining challenge. The

district court granted Appellants an EAJA award for the appellate

proceedings abandoned by the government. Appellants argue,

however, that the district court erred in its calculation of the

award as it drastically reduced the same to $4,228 from the $28,450

sought.4 The district court justified the reduction based on

incongruities between the number of hours billed and the duplicate

work done across the six identical appeals. Appellants argue that

the district court should have awarded them a higher sum and in

4 The district court also set an hourly rate of $226.34 per
hour for Appellants' attorney's legal work (the same attorney
worked on the six appeals). The adjusted hourly rate set by the
district court is not being contested.

- 13 -
fact erred in calculating the time their attorney spent on each

one of the six appeals, which they argue was not duplicative and

essential for each. We again review for abuse of discretion.

McLaughlin, 767 F.3d at 117.

District courts have considerable leeway in selecting

fair and reasonable attorney's fees particularly when the district

court "has presided over [the] case from its inception" and has

had the opportunity to evaluate the attorney's diligence and

expertise firsthand. Pérez-Sosa v. Garland, 22 F.4th 312, 326

(1st Cir. 2022). An attorney's statement must support the fees

requested and it is within the district court's broad discretion

to "separat[e] wheat from chaff." Torres-Rivera v. O'Neill-

Cancel, 524 F.3d 331, 340 (1st Cir. 2008). Nothing in the record

urges us to find that the district court abused its discretion in

the reduction at issue here.

Appellants suggest that since counsel is a solo

practitioner who lacks the staffing the government has, the

"performance of multiple tasks is necessary for survival" in order

to "properly manage six . . . separate files." That may be so,

but we see no abuse of discretion in the district court's reduction

of the award of attorney's fees. Here, for example, the same

counsel represented all six Appellants on appeal, with each one of

the six appeals having the same notice of appeal, yet billed 4.8

- 14 -
hours total -- that is, almost an hour for each -- to review the

government's almost identical notices of appeal.

The district court meticulously explained its decision

to reduce the time entries and to shrink the overall fees related

to the government's appeal on the ground that Appellants failed to

prove the reasonableness of the hours claimed. Torres-Rivera, 524

F.3d at 340. Where the district court could not distinguish

unreasonably duplicated fees from others that had been reasonably

incurred in each case, it limited the fee award to the time spent

by counsel on the lead case and the separate phone calls to each

Appellant. The district court, thus, did not abuse its discretion

in determining whether the hours were redundant and/or excessive.

IV. Conclusion

We affirm.

- 15 -