Castaneda Castillo v. Holder, Jr. , 723 F.3d 48 ( 2013 )


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  •            United States Court of Appeals
    For the First Circuit
    No. 09-1847
    DAVID EDUARDO CASTAÑEDA-CASTILLO;
    CARMEN JULIA DE LA CRUZ-CASTAÑEDA;
    PIERA DINA CASTAÑEDA,
    Petitioners,
    v.
    ERIC H. HOLDER, JR.,
    UNITED STATES ATTORNEY GENERAL,
    Respondent.
    APPLICATION FOR ATTORNEY'S FEES
    UNDER EQUAL ACCESS TO JUSTICE ACT
    Before
    Torruella, Ripple* and Lipez,
    Circuit Judges.
    William P. Joyce, with whom Joyce & Associates P.C., was on
    brief for petitioners.
    Matt A. Crapo, Attorney, Office of Immigration Litigation,
    Civil Division, U.S. Department of Justice, with whom Tony West,
    Assistant Attorney General, Civil Division, and Michelle Gorden
    Latour, Assistant Director, were on brief for respondent.
    July 17, 2013
    *
    Of the Seventh Circuit, sitting by designation.
    TORRUELLA,      Circuit    Judge.          This   is   the    sixth      (and
    hopefully    the    final)    installment          of   Petitioner       David   Eduardo
    Castañeda's tumultuous voyage through our nation's immigration
    system.     Castañeda began his journey more than twenty years ago,
    when he arrived in the United States seeking political asylum based
    on the alleged persecution he suffered at the hands of the Shining
    Path, a ruthless guerrilla organization bent on overthrowing the
    government of Perú.       On February 6, 2012, after his case generated
    three court-of-appeals opinions, one district court opinion, and
    numerous administrative determinations, an Immigration Judge (IJ)
    finally granted asylum to Castañeda and his family members.
    Subsequently, on April 12, 2012, we entered final judgment closing
    Castañeda's case.       See Castañeda-Castillo v. Holder, 
    676 F.3d 1
    (1st Cir. 2012) ("Castañeda V"). In so doing, we cautioned that we
    were taking "no position on the deadline for filing, or potential
    merit of, an application for attorneys' fees under the Equal Access
    to Justice Act."     
    Id. at 3
    .       On July 12, 2012, Castañeda filed such
    a petition, seeking to be awarded the attorneys' fees he incurred
    while   litigating    his     case     in    federal     court,     as    well   as   the
    attorneys    fees    related    to     the        administrative     proceedings       he
    underwent.    After careful consideration, we grant his petition in
    part and deny it in part.
    -2-
    I. Background
    The full history of this case is chronicled in the four
    prior opinions of this court and one opinion of the U.S. District
    Court for the District of Massachusetts.           See     Castañeda-Castillo
    v.    Gonzales,   
    464 F.3d 112
       (1st   Cir.   2006)    ("Castañeda   I");
    Castañeda-Castillo v. Gonzales, 
    488 F.3d 17
     (1st Cir. 2007) (en
    banc) ("Castañeda II"); United States v. Castañeda-Castillo, 
    739 F. Supp. 2d 49
     (D. Mass. 2010) ("Castañeda III"); Castañeda-Castillo
    v. Holder, 
    638 F.3d 354
     (1st Cir. 2011) ("Castañeda IV"); and
    Castañeda V, 
    676 F.3d 1
    .       The following relevant facts are culled
    from those decisions.
    A.    The Accomarca Massacre
    Castañeda, a former lieutenant in the Peruvian army, was
    accused of taking part in the massacre of innocent villagers in
    Accomarca, Perú (the "Accomarca Massacre") in 1985, during the
    country's bloody struggle with the revolutionary Shining Path
    movement.    Castañeda II, 
    488 F.3d at 19
    .         Castañeda led one of the
    four patrols involved in the Accomarca operation but was three to
    five miles away from the massacre, 
    id.,
     and was not in any way
    involved in, or responsible for, the heinous actions of the larger
    force.    Castañeda IV, 
    638 F.3d at 357
    ; Castañeda II, 
    488 F.3d at 19
    .    The Peruvian Senate Human Rights Commission investigated the
    events and determined that Castañeda's squad "was not involved in
    any confrontations with [the] fugitive civilians" who were killed.
    -3-
    Castañeda II, 
    488 F.3d at 19
    .     Despite this finding, Castañeda was
    charged with homicide and abuse of authority before a military
    tribunal,   although   said   charges    were   ultimately   dismissed.
    Castañeda V, 676 F.3d at 2.       The dismissal was affirmed by the
    Supreme Council of Military Justice, Perú's highest court with
    jurisdiction over military justice matters.          See id.; Castañeda
    III, 
    739 F. Supp. 2d at 52
    .1       Notwithstanding, Castañeda's name
    became associated with the Massacre, and he and his family began
    receiving death threats from the Shining Path, Castañeda IV, 
    638 F.3d at 357-58
    , a violent group that "is among the world's most
    ruthless guerrilla organizations,"        Castañeda I, 464 F.3d at 114
    n.3. Thereafter, members of the Shining Path sent death threats to
    Castañeda, attempted to murder him twice and to kidnap one of his
    daughters, and set off explosives in front of his parent's home.
    Castañeda I, 464 F.3d at 120-21.         In fact, a bomb that went off
    shortly after he left a restaurant with his family killed several
    innocent bystanders.     Castañeda IV, 
    638 F.3d at 358
    .         In 1991,
    following the murder of his neighbor, a former military officer who
    apparently was also in the Shining Path's cross-hairs, Castañeda
    and his family decided to flee Perú, and they arrived in the United
    States on tourist visas.      Castañeda I, 464 F.3d at 120-21.
    1
    In fact, several of the officers in the other patrols were
    charged and convicted in Peruvian military tribunals. Castañeda
    III, 
    739 F. Supp. 2d at 52
    .
    -4-
    B.    The Petition for Asylum; Castañeda I and II
    In 1993, Castañeda filed the petition for asylum that
    gave rise to the instant saga.            Castañeda V, 676 F.3d at 2.2       It
    was not until 2004 that the petition was denied by an IJ, who found
    that Castañeda was barred from applying for asylum and withholding
    of removal because he had participated in the persecution of others
    on account of their political opinion, given his presumed role in
    the military during the Accomarca Massacre.               Id.    The Board of
    Immigration Appeals (BIA) affirmed in 2005.               Id.    Castañeda was
    subsequently incarcerated and spent the next five years in the
    Department of Homeland Security's (DHS) custody, until he was
    finally released on bail in August 2010.            Id.     In the meantime,
    Castañeda pursued a petition for review before us challenging the
    BIA's denial of his petition for asylum (the "first petition for
    review").   Said petition gave rise to our decision in Castañeda I,
    where we found that the BIA's determination that Castañeda had
    engaged   in     the   persecution   of    others   was   not    supported   by
    substantial evidence. Castañeda I, 464 F.3d at 137. Subsequently,
    we granted the government’s request to rehear the case en banc,
    which resulted in our decision in Castañeda II.                 There, we held
    that for the persecutor bar to apply to Castañeda, he must have had
    prior or contemporaneous knowledge that his actions during the
    2
    Castañeda listed his wife and two daughters as derivative
    beneficiaries.
    -5-
    Accomarca Massacre had the effect of assisting in the persecution
    of others.      Castañeda II, 
    488 F.3d at 21-22
    .             We remanded the case
    back to the immigration agencies for them to determine whether
    Castañeda was credible when he denied having said knowledge.                       
    Id. at 24-26
    .
    Following    remand,    the       IJ    again   denied       Castañeda's
    application for asylum and withholding of removal, holding that (1)
    he had not met his burden of proving that he did not persecute
    others; (2) he had not established that he was persecuted on
    account of his membership in a particular social group or because
    of his political opinion; and (3) he had not established that he
    had   an   objectively     reasonable      fear      of   future    persecution.
    Castañeda IV, 
    638 F.3d at 359
    .           In May 2009, the BIA reversed the
    IJ as to point (1), concluding that there was insufficient evidence
    to    support    the    IJ's   finding     that       Castañeda     had    prior     or
    contemporaneous        knowledge    of    the       Accomarca     Massacre.    
    Id.
    Nevertheless, the BIA upheld the IJ's decision as to points (2) and
    (3), reasoning that the Shining Path did not target Castañeda
    because he was a member of a particular social group -- members of
    the military who were linked to the Accomarca Massacre -- rather,
    they targeted him out of revenge for the massacre.                 
    Id. at 362-63
    .
    The BIA then found that Castañeda failed to prove that he had a
    genuine fear of future persecution were he to return to Perú and
    thus denied his application for asylum.                
    Id. at 359
    .
    -6-
    C.   Castañeda IV
    In June 2009, Castañeda filed a petition for review of
    the BIA's ruling before this court (the "second petition for
    review"). Said petition gave rise to our decision in Castañeda IV,
    where we held that the BIA committed legal error when it reasoned
    that the Shining Path's vindictive motivation precluded a finding
    of persecution on account of a statutorily protected ground.     
    Id. at 363
    .   In light of the "ordinary remand rule," we sent the case
    back to the BIA for consideration of whether "Peruvian military
    officers whose names became associated with the Accomarca massacre"
    constituted a cognizable social group.        
    Id.
        We emphasized,
    however, that the "unusually prolonged and convoluted history of
    this case prompt[ed] us to take the further step of retaining
    jurisdiction over Castañeda's appeal while the BIA addresses these
    issues on remand."   
    Id.
    On October 11, 2011, the BIA ruled that military officers
    linked to the Accomarca Massacre comprised a cognizable social
    group and that Castañeda suffered past persecution due to his
    membership in such a group.    Castañeda V, 676 F.3d at 3.   The case
    was remanded to the IJ so that she could determine whether the
    government could rebut the presumption that Castañeda harbored a
    well-founded fear of persecution if he were to return to Perú. Id.
    On February 6, 2012, an IJ granted asylum to Castañeda and his
    -7-
    family, effectively laying to rest an application for asylum that
    had been pending for almost twenty years.    Id.
    D.   Castañeda V
    Castañeda's legal battles, however, were not over.       He
    returned to this court and filed a motion requesting that we enter
    a final judgment in his favor, noting that, in Castañeda IV, this
    court had elected to retain jurisdiction over the post-remand
    proceedings, and that it was now time to "officially terminate this
    [c]ourt's jurisdiction."     In response, the government argued that
    we had no authority to issue a final judgment, because we "lack[ed]
    jurisdiction to pass judgment on the merits of this case."   Id.   It
    maintained that Congress granted courts of appeals jurisdiction to
    review only final orders of removal, and that, as the IJ's decision
    to grant asylum to Castañeda was not such an order, we lacked
    jurisdiction to enter a final judgment effectively sanctioning her
    award of asylum as final.
    In Castañeda V, we rejected that argument.     676 F.3d at
    1.   We explained that when we remanded this case to the BIA in
    Castañeda IV, we "explicitly retained jurisdiction for the express
    purpose of ensuring a speedy resolution of this case."    Id. at 3.
    As such, we dismissed as moot the petition for review over which we
    had retained jurisdiction in Castañeda IV, and directed the clerk
    of the court to issue a final judgment in Castañeda's favor.    Id.
    -8-
    The clerk of the court entered said judgment on April 12, 2012, the
    same date that Castañeda V was decided.
    E.   The Extradition Proceedings
    During the pendency of Castañeda's second petition for
    review, on March 9, 2010, the government filed a request for the
    extradition of Castañeda to his native Perú. Castañeda III, 
    739 F. Supp. 2d at 50
    .    The request stemmed from the government of Perú's
    renewed decision to charge Castañeda with the crimes of aggravated
    murder, kidnapping and forced disappearance arising from the events
    surrounding the Accomarca Massacre. This request was the result of
    a change in Perú's government and the revocation of an amnesty law
    passed in 1995 which protected members of the military from further
    prosecution. 
    Id. at 52
    . No effort was made to extradite Castañeda
    until five years after the new Peruvian government filed charges
    against him.      
    Id. at 53
    .   Nevertheless, the government argued
    before the federal district court in Massachusetts that Castañeda
    should be held in custody without bail until a determination of
    extraditability was made under 
    18 U.S.C. § 1834
    .     
    Id. at 50
    .   On
    August 17, 2010, the district court in Castañeda III granted
    Castañeda's request to be released on bail, finding that he had
    established special circumstances warranting such relief.    
    Id.
     at
    -9-
    63-64.   The government ultimately decided to voluntarily dismiss
    the extradition proceedings against Castañeda in April 2011.3
    F.   The Habeas Corpus Proceedings
    Castañeda also filed a petition for a writ of habeas
    corpus with the district court on February 2010, noting that he had
    been detained by DHS for nearly four and a half years while he
    waited for his asylum application to be adjudicated, despite having
    no criminal history and not being subject to mandatory detention.
    Given the extradition request, Castañeda was transferred to the
    custody of the U.S. Marshal service, and the government moved for
    the dismissal of the habeas petition on the grounds that Castañeda
    had named the wrong custodian, presumably the DHS.     However, as
    previously recounted, Castañeda ended up being released on bail on
    August 2010, in the context of his extradition proceeding.
    II. The Petition for Attorneys' Fees
    Having dotted the tortured factual landscape, we now
    proceed to discuss Castañeda's petition for attorneys' fees.
    3
    Since American courts normally give deference to decisions of
    foreign tribunals, Casey v. Dep't of State, 
    980 F.2d 1472
    , 1477
    (D.C. Cir. 1992)(discussing deference given to a determination of
    a foreign court in extradition proceeding), this was probably a
    recognition that Castañeda's new charges in Perú were likely to be
    dismissed under Peruvian double jeopardy principles. See Castañeda
    IV, 
    638 F.3d at 361
    .
    -10-
    On July 12, 2012, Castañeda filed the amended petition
    for attorneys' fees that is now before us.4                  He first seeks an
    award for fees he incurred in relation to his first petition for
    review of the BIA's September 9, 2005 removal order, which resulted
    in this court's decisions in Castañeda I and Castañeda II (en
    banc).        Second, Castañeda seeks an award of attorneys' fees
    incurred in relation to his second petition for review of the BIA's
    May   26,     2009   removal    order,    which   resulted    in   this   court's
    decisions in Castañeda IV and Castañeda V.             In addition to seeking
    an award with respect to those four decisions, Castañeda seeks an
    award    of    attorney's      fees   and   expenses   incurred     during    the
    post-remand administrative removal proceedings that took place
    after the remands ordered in Castañeda II and Castañeda IV.
    Castañeda also seeks an award of attorneys' fees and expenses
    incurred during the extradition and habeas proceedings that were
    4
    Castañeda had filed an earlier petition for attorneys' fees on
    April 6, 2012. The main difference between the two petitions seems
    to be that, in the amended petition, Castañeda argues for a fee
    enhancement under the EAJA. See 
    28 U.S.C. § 2412
    (d)(2)(A). It is
    also worth noting that Castañeda's attorneys worked on this case on
    a pro bono basis, and that he maintains that this should not be an
    impediment to an award under the EAJA. The government does not
    dispute this, and the case law seems to support Castañeda in this
    regard. See Blum v. Stenson, 
    465 U.S. 886
    , 894-95 (1984) ("It is
    also clear from the legislative history [of an analogous fee-
    shifting statute, 
    42 U.S.C. § 1988
    ] that Congress did not intend
    the calculation of fee awards to vary depending on whether
    plaintiff was represented by private counsel or by a nonprofit
    legal services organization."). We therefore hold that Castañeda
    may petition this court for attorneys' fees, even though his
    attorneys worked on his case on a pro bono basis.
    -11-
    conducted before the district court, as well as during several
    administrative bond proceedings that were conducted before the
    Executive   Office   for   Immigration   Review   ("EOIR").   Finally,
    Castañeda also seeks to be awarded the fees incurred during the
    preparation of both his original and amended application for
    attorneys' fees.
    III. The Equal Access to Justice Act
    In the United States, each party is usually required to
    bear its own attorneys' fees; "the prevailing party is not entitled
    to collect them from the loser."    Buckhannon Bd. & Care Home, Inc.
    v. W. Va. Dep't. of Health & Human Res., 
    532 U.S. 598
    , 602 (2001).
    The Equal Access to Justice Act ("EAJA"), 
    28 U.S.C. § 2412
    , is an
    exception to that rule.     It provides in part that
    a court shall award to a prevailing party . .
    . fees and other expenses . . . incurred by
    that party in any civil action . . . 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 EAJA aims 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 v. Napolitano, 
    562 F.3d 84
    , 88 (1st Cir.
    2009) (citing Scarborough v. Principi, 
    541 U.S. 401
    , 407 (2004)).
    The Act "reduces the disparity in resources between individuals .
    -12-
    . . and the federal government."      
    Id.
     (citing H.R. Rep. No. 99-
    120(I), at 4 and 1985 U.S.C.C.A.N. at 133). Nevertheless, since it
    effectively amounts to a partial waiver of sovereign immunity by
    the United States, its scope must be strictly construed in favor of
    the government.   Ardestani v. I.N.S., 
    502 U.S. 129
    , 137 (1991).
    The EAJA also mandates that a party seeking an award of
    attorneys' fees must submit his petition "within thirty days of
    final judgment in the action."        
    28 U.S.C. § 2412
    (d)(1)(B).
    Consequently, in order for Castañeda to prove himself eligible for
    an award of attorneys' fees under the EAJA, he must establish (1)
    that he is the prevailing party in the civil action; (2) that his
    petition was timely filed; (3) that the government's position was
    not substantially justified; and (4) that no special circumstances
    make an award against the government unjust.      Comm'r, I.N.S. v.
    Jean, 
    496 U.S. 154
    , 158 (1990); Norris v. S.E.C., 
    695 F.3d 1261
    ,
    1264 (Fed. Cir. 2012).
    IV. Eligibility Under EAJA
    We now proceed to discuss whether Castañeda meets the
    four requirements listed above.    We do so in turn.
    A. Prevailing Party Status
    1. Applicable Law
    The term "prevailing party," as used in the EAJA and
    other fee-shifting statutes, is a "legal term of art." Buckhannon,
    -13-
    
    532 U.S. at 603
    .5          To be considered a prevailing party, a party
    must be "awarded some relief by the court."                  
    Id.
       The party must
    also show (1) a "material alteration of the legal relationship of
    the parties" and (2) a "judicial imprimatur on the change." Aronov,
    562 F.3d at 89.        The Supreme Court has held that there are only two
    situations that meet the judicial imprimatur requirement: (1) where
    the party has "received a judgment on the merits" or (2) where the
    party "obtained a court-ordered consent decree."                   Buckhannon, 
    532 U.S. at 605
    .       A   party's    mere    success   in    accomplishing       its
    objectives, however, is insufficient to confer it prevailing party
    status.     
    Id. at 606
    ; Aronov, 562 F.3d at 89.
    2. Discussion
    The   government        recognizes     that     Castañeda     is     the
    prevailing party in Castañeda II and Castañeda IV, but not in
    Castañeda V. It argues that our decision to issue a final judgment
    in   Castañeda     V   did   not   confer    upon   Castañeda      the   status    of
    prevailing party, because said decision did not effectively "rule
    on the merits" of Castañeda's second petition for review.                         The
    government stresses that this court had already ruled on the merits
    of such a petition in Castañeda IV, and that, following the remand
    5
    The Supreme Court in Buckhannon interpreted the term "prevailing
    party" as used in other fee-shifting statutes, namely those present
    in the Fair Housing Act Amendments of 1988, 
    42 U.S.C. § 3613
    (c)(2)
    and the Americans with Disabilities Act, 
    42 U.S.C. § 12205
    .
    Nevertheless, the Supreme Court's interpretation is "presumed to
    apply generally to all fee-shifting statutes that use the
    prevailing party terminology." Aronov, 562 F.3d at 89.
    -14-
    ordered in that case, the immigration agencies had independent
    authority to grant Castañeda asylum. Once the decision was made by
    an IJ to grant Castañeda asylum, the argument goes, such decision
    did not depend on this court's judicial imprimatur or approval in
    the form of a final judgment.      Therefore, the government argues
    that the parties' legal relationship remained the same both before
    and after we entered final judgment in Castañeda V, and that such
    judgment cannot confer prevailing party status upon Castañeda under
    the EAJA.
    Castañeda, for his part, argues that he is the prevailing
    party in each of the proceedings of Castañeda I, Castañeda II,
    Castañeda IV and Castañeda V.     He claims that the government has
    mistakenly considered Castañeda IV and Castañeda V to be two
    separate cases, when in reality they are not, because this court
    did not issue a mandate after the Castañeda IV decision; instead,
    it decided to retain jurisdiction and refrain from terminating that
    proceeding.6   As such, Castañeda argues the decisions in Castañeda
    IV and Castañeda V should be construed as forming part of the same
    "civil action" under the EAJA, an action which was not terminated
    until after Castañeda V.    Therefore, Castañeda maintains he became
    a prevailing party in Castañeda V, when this court noted its
    6
    This court did issue a mandate after our decision in Castañeda
    IV, but that mandate was later recalled as having been issued in
    error.
    -15-
    previous findings in Castañeda IV, entered a final judgment and
    issued a mandate effectively terminating the case.
    We agree with Castañeda that he should be accorded
    prevailing party status with respect to Castañeda V.           In reaching
    our conclusion, we have found instructive the Federal Circuit’s
    ruling in Former Employees of Motorola Ceramic Products v. United
    States, 
    336 F.3d 1360
     (Fed. Cir. 2003). There, a pair of employees
    who had been dismissed from their respective employments petitioned
    the Department of Labor (DOL) for benefits.           
    Id. at 1362
    .   The DOL
    denied their petitions and the employees sought review before the
    Court of International Trade (CIT).       
    Id.
        The CIT found the DOL’s
    decision to be erroneous and thus remanded the case back to the DOL
    for reconsideration, but retained jurisdiction over the proceedings
    during remand.   
    Id.
        The employees were granted their benefits and
    afterwards filed an application for attorneys' fees pursuant to the
    EAJA.   
    Id. at 1363
    .    The CIT denied the petition, holding that its
    remand to the DOL did not constitute a judgment on the merits that
    afforded   prevailing    party   status   to    the    employees,    and   the
    employees appealed to the Federal Circuit.            
    Id.
    In order to determine whether the CIT’s remand order to
    the DOL constituted relief on the merits, the Federal Circuit
    relied on the Supreme Court's holdings in Sullivan v. Hudson, 
    490 U.S. 877
     (1989) and Shalala v. Schaefer, 
    509 U.S. 292
     (1993), and
    distilled the following rule:
    -16-
    where the plaintiff secures a remand requiring
    further agency proceedings because of alleged
    error by the agency, the plaintiff qualifies
    as a prevailing party (1) without regard to
    the outcome of the agency proceedings where
    there has been no retention of jurisdiction by
    the court, or (2) when successful in the
    remand proceedings where there has been a
    retention of jurisdiction.
    Former Emps., 
    336 F.3d at 1366
    .7    It follows that, under the second
    prong of the rule, a court’s remand order to an administrative
    agency, with retention of jurisdiction, creates a prevailing party
    "if the party obtains the benefits it sought before the agency."
    
    Id. at 1367
     (our emphasis); see also Flom v. Holly Corp., 
    276 F. App'x 615
    , 617 (9th Cir. 2008) (citing Former Employees with
    approval).     The court thus found that the employees qualified as
    prevailing parties under this prong, because they obtained relief
    at the DOL after the CIT had remanded the case due to the agency’s
    error.   Former Emps., 
    336 F.3d at 1367
    .
    In the case at bar, our remand order in Castañeda IV
    explicitly stated that we were to retain jurisdiction during the
    agency proceedings, due to the "unusually prolonged and convoluted
    history of this case."    Castañeda IV, 
    638 F.3d at 363
    .   There is no
    doubt that a material alteration of the relationship between the
    parties ocurred when an IJ granted Castañeda his request for
    asylum. However, in order to become a prevailing party, there must
    have been a "judicial imprimatur" of that change.    That imprimatur
    7
    The cases of Hudson and Schaefer will be discussed infra.
    -17-
    did   not   come     until    our     decision       in    Castañeda      V,    when    we
    acknowledged       that    "all     factual    and    legal     issues    relating     to
    Petitioners' eligibility for asylum [had] now been resolved in
    their favor by the administrative agency" and directed the clerk of
    the court to issue a final judgment.                 Castañeda V, 676 F.3d at 2.
    In essence, the final judgment we entered pursuant to Castañeda V
    is the final judgment "on the merits" we would have entered after
    deciding Castañeda IV, were it not for our decision to retain
    jurisdiction over the ensuing agency proceedings.                        In requesting
    that this court enter such a final judgment, Castañeda correctly
    attempted to comply with the strictures of the Buckhannon decision,
    which required him to secure a judgment on the merits or a court-
    approved settlement in order to be considered a prevailing party.
    
    532 U.S. at 605-06
    . He achieved the desired result and thus became
    a prevailing party once the final judgment was entered.
    As can be seen, in arriving at this conclusion we have
    traveled    down    a     similar    path     to   the    one   followed       in   Former
    Employees, except that we consider that Castañeda only became a
    prevailing party when, per his request, we entered a final judgment
    pursuant to Castañeda V. We think this was a necessary step, given
    Buckhannon's requirement that there be a "judgment on the merits,"
    
    id.,
     and the Supreme Court's holding in Melkonyan v. Sullivan, 
    501 U.S. 89
    , 94 (1991), that a "final judgment" under the EAJA "can
    only be the judgment of a court of law."
    -18-
    B. Timeliness
    1. Background
    The government's second argument is that Castañeda's
    petition   for   attorneys'    fees      is    untimely    under    
    28 U.S.C. § 2412
    (d)(1)(B). Said provision states that a proper application for
    attorneys' fees must be submitted "within thirty days of final
    judgment in the action."      
    Id.
       A "final judgment" is defined by the
    EAJA as a judgment that is final and unappealable.                       
    Id.
     at §
    2412(d)(2)(G).    Castañeda notes that this court elected to retain
    jurisdiction after its decision to remand in Castañeda IV, which
    was decided on March 24, 2011.            Following remand, Castañeda was
    able to prevail and obtain asylum in the immigration agencies, and
    he thus returned to this court requesting that we enter a final
    judgment in his favor. We entered such a final judgment, according
    to our own terms, on April 12, 2012, pursuant to our order in
    Castañeda V. Therefore, Castañeda argues that said judgment became
    a "final judgment," within the meaning of the EAJA, on July 11,
    2012, when the period for seeking certiorari to the Supreme Court
    expired.    See Sup. Ct. R. 13.1.                   The decision to remand in
    Castañeda IV, according to him, also became final and unappealable
    as of that date, because this court retained jurisdiction over his
    petition for review pending the completion of the post-remand
    administrative    proceedings       at        the     immigration    agencies.
    Consequently, as he filed his amended petition for attorneys' fees
    -19-
    the day after, on July 12, 2012, Castañeda claims he is well within
    the 30-day time period allowed by the EAJA.
    The government, for its part, claims that Castañeda's
    petition is untimely.         It counters that if Castañeda wanted to
    recover attorneys' fees for the proceedings that led to the
    decision in Castañeda IV, he should have filed his petition by July
    22, 2011, that is, 120 days after this court issued its judgment in
    that decision.8      The government claims that the judgment issued
    pursuant to Castañeda IV became a "final judgment" under the EAJA
    on   June   22,   2011,    despite   this    court's   decision       to   retain
    jurisdiction on the matter and forgo entering its own final
    judgment    until   Castañeda    V   was    decided.    In   support       of   its
    contention, it cites to several Supreme Court cases which have
    interpreted when a judgment becomes "final" for EAJA purposes, but
    those   cases     deal    with   judicial     review   of    Social    Security
    Administration ("SSA") cases under 
    42 U.S.C. § 405
    (g) by the
    district courts.         The government, nevertheless, relies on those
    cases to argue that this court was stripped of its ability to
    retain jurisdiction over Castañeda's petition for review following
    8
    On the same date we issued our decision in Castañeda IV, the
    clerk's office issued a judgment decreeing that we had vacated the
    decision of the BIA and remanded the case for further proceedings
    consistent with the opinion. The government arrives at the 120-day
    total by adding the 90 days it took for the Castañeda IV judgment
    to become final and unappealable, per Sup. Ct. R. 13.1, and the 30
    days provided by the EAJA to file a petition for attorneys fees,
    per 
    28 U.S.C. § 2412
    (d)(1)(B).
    -20-
    our remand order in Castañeda IV, and that instead we were supposed
    to enter a final judgment relinquishing jurisdiction on the matter,
    thereby triggering the 120-day time period to file a petition for
    attorneys' fees under the EAJA.
    2. Supreme Court Jurisprudence on Judicial Review
    of SSA Cases
    In order to understand the government's argument, it is
    necessary to provide a brief summary of the specialized nature of
    judicial review of SSA agency determinations.        In SSA cases, a
    district court reviewing a decision rendered by an SSA agency may
    only remand a case back to that agency under either sentence four
    or sentence six of section 405(g).     See Melkonyan, 
    501 U.S. at 90
    .
    Under sentence four of section 405(g), the district court must
    enter "a judgment, affirming, modifying, or reversing the decision
    of the Commissioner of Social Security, with or without remanding
    the cause for a rehearing," 
    42 U.S.C. § 405
    (g), whereas under
    sentence six, the district court "does not rule in any way as to
    the correctness of the administrative determination," but instead
    remands the case to the agency for further fact finding, Melkonyan,
    
    501 U.S. at 98
    .9    Further, following a sentence six remand, the
    agency "must return to the district court to 'file with the court
    9
    Sentence six of section 405(g) provides that "[t]he court may
    . . . remand the case to the Commissioner of Social Security for
    further action by the Commissioner of Social Security, and it may
    at any time order additional evidence to be taken before the
    Commissioner of Social Security . . . ." 
    42 U.S.C. § 405
    (g).
    -21-
    any such additional or modified findings of fact and decision,'"
    along with a supplemental record of the post-remand proceedings.
    
    Id.
     (quoting 
    42 U.S.C. § 405
    (g)).
    The Supreme Court distinguished between sentence four and
    sentence six remand orders for the first time in Sullivan v.
    Finkelstein, 
    496 U.S. 617
     (1990).         In Finkelstein, a case that did
    not   concern   the   EAJA,   the   SSA    agency   had    denied   a   widow's
    application for disability benefits, and the widow sought review in
    the district court under section 405(g).                  The district court
    reversed in part the decision of the SSA agency and remanded the
    case so that the agency could determine whether the widow could
    engage in any gainful activity.       The Secretary of Health and Human
    Services appealed to the court of appeals, but said court dismissed
    the appeal for lack of jurisdiction, reasoning that the district
    court's decision to remand the case to the SSA agency was not an
    appealable "final decision" under 
    28 U.S.C. § 1291
    . On certiorari,
    the Supreme Court differed and held that the district court's
    remand was a sentence four remand under section 405(g), and that
    said type of remand order is an appealable final decision.                  The
    Court reasoned that the district court's order was "unquestionably"
    a judgment because "it terminated the civil action challenging the
    Secretary's final determination that [the] respondent was not
    entitled to benefits, set aside that determination, and finally
    decided that the Secretary could not follow his own regulations in
    -22-
    considering the disability issue."           Id. at 625.    The Court ruled
    that sentence four of section 405(g) "directs the entry of a final,
    appealable judgment even though that judgment may be accompanied by
    a remand order."      Id. at 629 (our emphasis).             It placed much
    emphasis on the fact that sentence eight of section 405(g) provides
    that "[t]he judgment of the court shall be final except that it
    shall be subject to review in the same manner as a judgment in
    other civil actions." Id. at 625 (emphasis in original).
    A year after Finkelstein was decided came the Supreme
    Court's decision in Melkonyan, where the Court was faced with the
    question of whether an administrative decision rendered following
    a remand from a district court could be a "final judgment" within
    the meaning of the EAJA.          The Court answered in the negative,
    holding that the "plain language [of the EAJA] makes clear that a
    'final judgment' under § 2412 can only be the judgment of a court
    of   law."   Melknonyan,    
    501 U.S. at 94
       (quoting      
    28 U.S.C. § 2412
    (d)(1)(B)).     According to the Court, "[i]n sentence four
    [remand] cases, the [EAJA] filing period begins after the final
    judgment ('affirming, modifying, or reversing') is entered by the
    [district] court and the appeal period has run, so that the
    judgment is no longer appealable."           
    Id. at 102
     (quoting 
    42 U.S.C. § 405
    (g) and citing 
    28 U.S.C. § 2412
    (d)(2)(G)). On the other hand,
    the Court clarified that the EAJA filing period in sentence six
    remand   cases    "does    not    begin     until   after   the    post-remand
    -23-
    proceedings are completed, the Secretary returns to court, the
    court enters a final judgment, and the appeal period runs." 
    Id.
    The Court then concluded that "in § 405(g) actions, remand orders
    must either accompany a final judgment affirming, modifying or
    reversing the administrative decision in accordance with sentence
    four, or conform with the requirements outlined by Congress in
    sentence six."   Id. at 101-02 (emphasis added).10
    Two years later, in Schaefer, the Supreme Court reviewed
    an EAJA application for attorneys' fees filed after the district
    court remanded an SSA case pursuant to sentence four of section
    405(g). Schaefer is significant because the district court in that
    case clarified that, although it was remanding the case under
    sentence four, it retained jurisdiction and planned to enter a
    final sentence four judgment after the completion of the post-
    remand administrative proceedings.     
    509 U.S. at 295
    .   The EAJA
    applicant in that case thus argued that the "final judgment," for
    purposes of the EAJA, would be the final judgment entered by the
    district court after all post-remand proceedings were completed at
    the agency, and not the district court's order remanding the case
    back to the agency.   
    Id. at 297
    .   The Supreme Court rejected this
    argument, stating that it "was inconsistent with the plain language
    10
    Nevertheless, the Melkonyan Court could not determine whether
    the petitioner's EAJA application was timely, as it was unclear
    what type of remand the district court had intended to carry out,
    so it remanded the case back to the lower courts for clarification.
    -24-
    of sentence four, which authorizes a district court to enter a
    judgment 'with or without' a remand order, not a remand order 'with
    or without' a judgment." 
    Id.
     (quoting Finkelstein, 
    496 U.S. at 629
    ).   It   further   noted   that   a   sentence   four    remand   order
    constitutes a final judgment under the EAJA, as it "terminat[es]
    the litigation with victory for the plaintiff." Id. at 301. Thus,
    the Court held that the 30-day time period for filing an EAJA
    petition for attorneys' fees, following a sentence four remand,
    begins immediately upon expiration of the time to appeal said
    remand order.   Id. at 297-98.
    3. The Government's Arguments
    The government contends that Schaefer, as well as the
    other Supreme Court cases mentioned above, compels the conclusion
    that remands in the immigration context should be treated the same
    way as remands in the social security context.        Particularly, the
    government posits that our remands to the BIA in Castañeda II and
    Castañeda IV are akin to the remands authorized under sentence four
    of section 405(g). It emphatically calls our attention to case law
    from the Third, Seventh and Ninth Circuits, holding that remands to
    the BIA in immigration cases are analogous to the sentence four
    remands at issue in the Supreme Court's SSA cases.          See Johnson v.
    Gonzales, 
    416 F.3d 205
    , 209-10 (3d Cir. 2005); Muhur v. Ashcroft,
    
    382 F.3d 653
    , 654-55 (7th Cir. 2004); Rueda-Menicucci v. I.N.S.,
    
    132 F.3d 493
    , 495 (9th Cir. 1997).          Therefore, the government
    -25-
    contends that, if Castañeda wanted to recoup the attorneys' fees
    and expenses he incurred in Castañeda II and Castañeda IV, he
    should have filed his petition for attorneys' fees within 30 days
    after   the    judgments   issued   in   those   cases   became   final   and
    unappealable, that is, by September 20, 2007, and July 22, 2011,
    respectively.11     Instead, Castañeda filed his petition on July 12,
    2012 (91 days after we issued our decision in Castañeda V) which is
    long after the judgments entered in Castañeda II and Castañeda IV
    "became final," according to the government's calculations.
    The decision to retain jurisdiction following our remand
    in Castañeda IV, the government posits, is inconsistent with the
    Supreme Court's definition of a "final judgment" under the EAJA.
    According to the government's reading of the Supreme Court's
    jurisprudence, this court had to enter a final judgment after
    deciding Castañeda IV, because our decision there effectively ruled
    "on the merits" of Castañeda's petition for review, vacated the
    decision of the administrative agency, and remanded the case for
    further proceedings consistent with the opinion.            The government
    argues that, after this course of action, there was nothing left
    for this court to do but to relinquish jurisdiction and enter a
    11
    In effect, the government is arguing that Castañeda should have
    filed two petitions for attorneys' fees, one following our decision
    in Castañeda II, and another following our decision in Castañeda
    IV.
    -26-
    judgment on the merits, as commanded by sentence four of section
    405(g) and Schaefer.
    The government goes on to argue that, despite this
    court's    decision       to    retain    jurisdiction     over   the    post-remand
    proceedings in Castañeda IV, it would have been able to appeal the
    judgment in that case as a "final order" under 
    28 U.S.C. § 1291
    .
    According to the government, the final judgment we entered in
    Castañeda V cannot make the Castañeda IV judgment appealable again,
    as the former did not purport to reaffirm the latter's ruling on
    the merits.         Therefore, we are urged to construe the judgment
    entered pursuant to Castañeda IV as a "final judgment" for purposes
    of the EAJA, once the time period for seeking certiorari before the
    Supreme Court expired.
    4.       Castañeda's Arguments
    Castañeda, for his part, argues that this court's remand
    in Castañeda IV should be construed as a sentence six remand, as
    opposed to a sentence four remand.               He strenuously notes that this
    court     elected    to     retain       jurisdiction    over     the    post-remand
    administrative proceedings following our decision in Castañeda IV,
    which according to him, effectively takes that remand outside of
    the purview of sentence four of section 405(g). Although he admits
    that    sentence     four      requires    a   remanding   court    to    relinquish
    jurisdiction over the matter and terminate the case on the merits,
    he points out that there is no similar provision in any of the
    -27-
    statutes governing judicial review of immigration cases.                      The
    Third,   Seventh   and    Ninth   Circuit        cases   relied   upon   by   the
    government, he also claims, are distinguishable from his case,
    because in those cases each court plainly relinquished jurisdiction
    over the case when it remanded to the BIA.
    In addition, following a sentence six remand, the SSA
    agency is required to return to the district court and file any
    additional or modified findings of fact, as well as its decision
    adjudicating the merits of the petitioner's claims, so that the
    court may review it and enter a final judgment on it.                Castañeda
    theorizes   that   we    attempted   to     do    something   similar    in   our
    Castañeda IV remand order, because although we did not require the
    BIA to make any additional findings of fact, we did direct the
    parties to file joint status reports on the progress of the
    administrative proceedings every sixty days. Castañeda claims that
    he expected to continue filing said reports until a final decision
    was reached at the immigration agencies, at which time he would
    file said decision with this court so that we could enter a final
    judgment on it, as required by sentence eight of section 405(g).
    Therefore, Castañeda urges us to treat the remand ordered in
    Castañeda IV as a sentence six remand, and the judgment entered
    pursuant to Castañeda V as a "final judgment" for EAJA purposes,
    once the period for seeking certiorari to the Supreme Court
    expired.
    -28-
    5. Analysis
    We have not had the opportunity to consider the issue of
    what constitutes a final judgment for EAJA purposes when a court of
    appeals remands an immigration case for further administrative
    proceedings while retaining jurisdiction over those proceedings.
    The government here invites us to equate judicial remand orders in
    the immigration context with remand orders in the social security
    context.     Particularly, the government urges us to apply the
    sentence   four    --   sentence   six    remand   dichotomy   to   remands
    undertaken in the immigration context.             We, however, find it
    difficult to accept the government's invitation in this regard.
    First of all, in Tyler v. Fitzsimmons, we noted that
    "[w]hen acting outside the strictures of the Social Security
    statute, a reviewing court normally is not confined to two types of
    remand,    but    [rather]   possesses    the   'inherent'   authority    to
    condition its remand order as it deems appropriate."           
    990 F.2d 28
    ,
    32 n.3 (1st Cir. 1993) (citing Melknoyan, 
    501 U.S. at 101
    ).              This
    is because judicial remand orders in the social security context
    are governed by the detailed and inflexible language that Congress
    adopted in section 405(g).      In contrast, judicial review of final
    orders of removal in the immigration context are governed by a
    different statute: section 242 of the Immigration and Nationality
    Act (INA), as amended by the Illegal Immigration Reform and
    -29-
    Immigrant Responsibility Act of 1996 (IIRIRA), 
    8 U.S.C. § 1252
    . In
    particular, section 242(a)(1) of the INA states that:
    Judicial review of a final order of removal
    (other than an order of removal without a
    hearing pursuant to [the expedited-removal
    provisions for undocumented aliens arriving at
    the border found in] section 1225(b)(1) of
    this title) is governed only by chapter 158 of
    Title 28 [known as the Hobbs Act], except as
    provided in subsection (b) of this section and
    except that the court may not order the taking
    of additional evidence under section 2347(c)
    of such title.
    
    8 U.S.C. § 1252
    (a)(1).
    The Hobbs Act, which is incorporated by the provision
    above, sets out the jurisdiction of the courts of appeals in
    reviewing agency orders.    See 
    28 U.S.C. § 2349
    (a).12    Needless to
    say, both the INA and the Hobbs Act employ starkly different
    language when it comes to regulating judicial remands to the
    immigration agencies, as compared to that used in section 405(g) to
    regulate remands to the SSA agencies.       Despite this incongruity,
    the government urges us to adopt the sentence four -- sentence six
    12
    Said provision states the following:
    The court of appeals has jurisdiction of the proceeding
    on the filing and service of a petition to review. The
    court of appeals in which the record on review is filed,
    on the filing, has jurisdiction to vacate stay orders or
    interlocutory injunctions previously granted by any
    court, and has exclusive jurisdiction to make and enter,
    on the petition, evidence, and proceedings set forth in
    the record on review, a judgment determining the validity
    of, and enjoining, setting aside, or suspending, in whole
    or in part, the order of the agency.
    -30-
    remand dichotomy featured in section 405(g), when no such dichotomy
    exists in either the INA or the Hobbs Act.                 In so doing, the
    government has not pointed us to any language in the INA nor in the
    Hobbs Act which would support its proposition that this court
    lacked   authority   to    retain   jurisdiction    over    the   post-remand
    administrative proceedings that followed our decision in Castañeda
    IV, and that we lacked authority to enter a final judgment in
    Castañeda   V,   thereby    terminating    the     proceedings    which   had
    originated with Castañeda IV.
    In any event, the parties' assertion that we could, in
    theory, remand an immigration case using a sentence-six-style
    remand is troublesome. As already discussed, under sentence six of
    section 405(g), a district court "may at any time order additional
    evidence to be taken before the Commissioner of Social Security."
    
    42 U.S.C. § 405
    (g).       However, remanding a case to an immigration
    agency with the purpose of having it collect additional evidence,
    at least at the behest of a petitioner, appears to be prohibited
    under a plain reading of section 242 of the INA, which states that
    "the court may not order the taking of additional evidence under
    section 2347(c) of [Title 28]."        
    8 U.S.C. § 1252
    (a)(1); see also
    I.N.S. v. St. Cyr, 
    533 U.S. 289
    , 312 n.36 (2001).13 It follows that
    13
    Section 2347(c) allows any person that is a party to a petition
    for review to obtain permission from the court of appeals to adduce
    additional evidence, if that party can establish that: (1) the
    additional evidence is material; and (2) there were reasonable
    grounds for failure to adduce the evidence before the agency. 28
    -31-
    courts of appeals lack the authority to approve a party's request
    to remand a case back to the BIA so that said party may present
    additional evidence.    See Najjar v. Ashcroft, 
    257 F.3d 1262
    , 1281
    (11th Cir. 2001).
    This is not to say that the government's argument is
    entirely without merit.   We must recognize that the Third, Seventh
    and Ninth circuits have expressed a willingness to equate remands
    to the BIA in the immigration context with the sentence four
    remands featured in the social security context.         But as Castañeda
    correctly points out, the remands at issue in those cases were
    ordered with a concomitant relinquishment of jurisdiction by the
    court.   See, e.g., Johnson, 
    416 F.3d at 209-10
     ("[The court of
    appeals] entered judgment in [petitioner's] favor and relinquished
    jurisdiction.") (emphasis added). Consequently, those circuits had
    no trouble likening those remands to the sentence four remands
    existing in the social security context.      The fact remains that we
    have no way of knowing how those circuits would have ruled had the
    courts in those cases decided to retain jurisdiction over the post-
    remand proceedings.
    Conversely, in our decision in Castañeda IV, we cited to
    cases from the Second and Seventh Circuits to support our authority
    to retain jurisdiction over the post-remand proceedings.                See
    Ucelo-Gómez   v.   Gonzales,   
    464 F.3d 163
    ,   172   (2d   Cir.   2006)
    U.S.C. § 2347(c).
    -32-
    (directing the BIA to issue an opinion responsive to the limited
    remand within forty-nine days, and retaining jurisdiction in the
    interim),    Asani    v.    I.N.S.,    
    154 F.3d 719
    ,   725   (7th    Cir.
    1998)(retaining jurisdiction during a limited remand to the BIA to
    determine   whether,       inter   alia,   changed   circumstances   in    the
    petitioner's home country supported a finding of a well-founded
    fear of future persecution); and Yang v. McElroy, 
    277 F.3d 158
    , 164
    (2d Cir. 2002).      Therefore, there is countervailing authority, at
    least from the Second and Seventh Circuits, that effectively
    undermines the government's position that we lacked the authority
    to retain jurisdiction in Castañeda IV.14
    What's more, the law of the case doctrine governs on this
    issue.   In Castañeda V, we explicitly rejected the government's
    argument that we were without authority to enter a final judgment
    14
    The government also argues that it could have appealed our
    decision in Castañeda IV, despite our retention of jurisdiction.
    We note that our decision to retain jurisdiction in Castañeda IV,
    although unusual, is reconcilable with the Supreme Court's
    decisions in Schaefer, et al. In Finkelstein, the Supreme Court
    acknowledged that "the issue before us is not the broad question
    whether remands to administrative agencies are always immediately
    appealable.   There is, of course, a great variety in remands,
    reflecting in turn the variety of ways in which agency action may
    be challenged in the district courts and the possible outcomes of
    such challenges." 496 U.S. at 623. We interpret this language to
    mean that not all remands to administrative agencies have to be
    immediately appealable, but rather, there seems to be room in "the
    great variety of remands" for remands to agencies while retaining
    jurisdiction over the underlying petition for review, at least in
    exceptional   circumstances.    As   discussed    earlier,   those
    circumstances were clearly present here, because when Castañeda IV
    was decided, Castañeda's case had already been pending for almost
    two decades.
    -33-
    terminating the proceedings.      Chi. & N.W. Transp. Co. v. United
    States,     
    574 F.2d 926
    ,   929     (7th    Cir.      1978)    ("Appellate
    reconsideration of issues that have already been decided in an
    earlier appeal is ordinarily foreclosed by the doctrine of law of
    the case.").15     In addition, by retaining jurisdiction over the
    post-remand proceedings in Castañeda IV, we instilled in Castañeda
    a    legitimate   expectation   that,    were      he   to    prevail    at    the
    immigration agencies and obtain asylum, he could return to this
    court and seek the entry of a final judgment to effectively
    terminate the proceedings surrounding his petition for review.
    There is no reason to suppose that Castañeda did not reasonably
    believe that this potential final judgment would anchor the filing
    period for his EAJA attorneys' fees petition.                     Adopting the
    government's argument to the contrary would effectively force us to
    backtrack from our decision to retain jurisdiction in Castañeda IV
    and to nullify the final judgment we entered pursuant to Castañeda
    V.   We reject this argument, primarily because it has no basis in
    either the INA or the Hobbs Act, and because adopting it would
    eviscerate the legitimate expectation we ourselves created in the
    mind   of   Castañeda.    Moreover,     we   are   also      mindful    that   the
    15
    The government did not immediately object to this court's
    decision to retain jurisdiction in Castañeda IV. It was not until
    January 2012, almost ten months after the publication of Castañeda
    IV, that the government filed a status report where, in a footnote,
    it challenged our authority to retain jurisdiction over the post-
    remand administrative proceedings.
    -34-
    legislative   intent   behind   the   EAJA   counsels   against   creating
    confusion with regards to what constitutes a "final judgment" for
    purposes of the statute. See H.R. Rep. 99-120, n. 26 (provision of
    the EAJA defining "final judgment," 
    28 U.S.C. § 2412
     (d)(2)(G),
    "should not be used as a trap for the unwary resulting in the
    unwarranted denial of fees.").
    Based on the foregoing, we reject both the government's
    argument that we should treat the remand order in Castañeda IV as
    a sentence four remand, and Castañeda's argument that we should
    treat said remand as a sentence six remand.               We agree with
    Castañeda, though, that the remand order in Castañeda IV                is
    entirely distinguishable from the remands at issue in the cases
    decided by the Second, Seventh and Ninth Circuits. Accordingly, we
    hold that said remand should not be construed as a sentence four
    remand, and that the final judgment entered pursuant to Castañeda
    V should be treated as a "final judgment" under the EAJA, once the
    period for seeking certiorari before the Supreme Court expired.
    Since that occurred on July 11, 2012, and Castañeda filed his
    petition for attorneys' fees the day after, we deem that said
    petition is timely as to the proceedings that led to our decisions
    in Castañeda IV and Castañeda V.
    6. Castañeda I and II
    Castañeda also seeks an award for the attorneys' fees he
    incurred during the proceedings that led to our earlier decisions
    -35-
    in Castañeda I and II, arguing those fees may be included alongside
    the ones expended in Castañeda IV and V.16                As recounted earlier,
    the government claims that if Castañeda wanted to recover the
    attorneys' fees he incurred in Castañeda I and II, he should have
    filed an EAJA petition on or before September 20, 2007, that is, 30
    days   after    the   judgment      in    Castañeda      II    became     final    and
    unappealable.      In essence, the government believes that Castañeda
    was required to file two EAJA petitions for attorneys' fees, one
    for the proceedings that culminated in Castañeda II, and another
    for the proceedings that ended in Castañeda V. It claims that both
    sets   of   proceedings     should       be   construed       as   separate     "civil
    action[s]" under the EAJA, because they adjudicated different
    petitions    for   review    and    because     this     court     did    not   retain
    jurisdiction over the post-remand administrative proceedings that
    followed Castañeda II.       For the reasons that follow, we agree with
    the government.
    Castañeda argues that requiring him to have filed two
    different    petitions      for    attorneys'     fees    would      be   "wasteful,
    needlessly time consuming for the judicial system" and would
    "belie[] the underlying purpose of the EAJA, and def[y] a common
    sense approach to litigating EAJA claims."                     His argument here
    16
    It is unclear to us whether Castañeda may recover the fees he
    incurred during Castañeda I, as that decision was vacated when we
    decided to grant the government’s request for an en banc rehearing.
    In any case, since we find that Castañeda’s petition is untimely as
    to both Castañeda I and II, we need not reach that issue.
    -36-
    mainly rests on two cases: (1) the Supreme Court's decision in
    Jean, 
    496 U.S. 154
    , and (2) the Second Circuit's decision in Gómez-
    Beleno v. Holder, 
    644 F.3d 139
     (2d Cir. 2011).              Specifically,
    Castañeda relies on language from Jean, where the Court stated that
    "the EAJA--like other fee-shifting statutes--favors treating a case
    as an inclusive whole, rather than as atomized line-items."            496
    U.S. at 161-62.        He argues that treating a case "as an inclusive
    whole" means treating both of his petitions for review as a single
    civil action under the EAJA, which in turn warrants finding his
    EAJA petition timely with respect to the fees incurred in Castañeda
    I and II.
    We think Castañeda reads Jean too broadly. Said case did
    not involve a petitioner who was seeking a fee award for multiple
    petitions for review; rather, the issue at stake in Jean was
    whether a prevailing party could be barred from recovering the
    attorneys' fees it incurred during the fee litigation stage of the
    proceedings, if the government is able to prove that its position
    during that specific stage was substantially justified.          496 U.S.
    at 156.      The Court answered that question in the negative, holding
    that   the    EAJA's   "substantial    justification"   requirement   is   a
    "single finding that . . . operates as a one-time threshold for fee
    eligibility."      Id. at 160.   Therefore, the decision in Jean, which
    went more to the EAJA's "substantial justification" requirement,
    -37-
    rather than its statute of limitations, does not help Castañeda in
    this regard.
    Castañeda also relies on Gómez-Beleno, where the Second
    Circuit treated two separate petitions for review as a single civil
    action for purposes of attorneys' fees under the EAJA.            The court
    allowed the prevailing party in that case to recover the fees
    expended in both proceedings, even though the EAJA filing period
    for the first petition for review had already passed. The court in
    Gómez-Beleno, however, made it clear that the government did not
    argue that the two petitions for review in that case should have
    been treated as separate civil actions, and thus the argument was
    deemed   to    have   been   forfeited.   
    644 F.3d at
      145    n.3.17
    Nevertheless, Castañeda points out that the court could have, motu
    17
    The Second Circuit specifically stated that,
    Rather than file an earlier EAJA application following
    our disposition of the First Petition for Review, the
    Petitioners waited until after disposition of the Second
    Petition for Review to request fees and costs incurred in
    connection with both Petitions. If one were to construe
    the First and Second Petitions as giving rise to separate
    civil actions before this Court, then one might challenge
    the amount of the requested award, on the basis that it
    improperly includes fees and costs from a proceeding
    whose EAJA statute-of-limitations period expired well
    before this motion was filed . . . . But, “the EAJA—like
    other fee-shifting statutes—favors treating a case as an
    inclusive whole, rather than as atomized line-items.”
    Commissioner, INS v. Jean, 
    496 U.S. 154
    , 161–62, 
    110 S.Ct. 2316
    , 
    110 L.Ed.2d 134
     (1990). And the Government
    has not asserted that the First and Second Petitions
    should in this case be treated separately. We therefore
    deem any such argument forfeited. 
    644 F.3d at
    145 n.3.
    -38-
    proprio, excluded the fees incurred by the petitioner during the
    first petition for review, based purely on the language contained
    in the EAJA’s statute of limitations provision. The court declined
    to travel down that path and instead relied on Jean’s "inclusive
    whole" language as an additional basis for upholding the award of
    fees in relation to the first petition for review.    
    Id.
       As such,
    Castañeda invites us to follow the Second Circuit’s lead and allow
    him to recover the fees incurred in both Castañeda I and II.   We do
    not accept this invitation.
    As previously discussed, we do not agree that Jean should
    be read as broadly as Castañeda and the Second Circuit seem to
    suggest.   In addition, the Second Circuit may have ruled otherwise
    had the government decided to take up the issue.   Instead, we find
    ourselves favoring the approach taken by the Third, Seventh and
    Ninth Circuits in Johnson, Muhur and Rueda-Menicucci, respectively,
    where those courts held that a judgment remanding a case to the BIA
    for further proceedings constitutes a final judgment for purposes
    of the EAJA's statute of limitations.      The remands featured in
    those cases are exactly like the remand we ordered in Castañeda II;
    they were all issued after the circuit court reversed the BIA's
    erroneous denial of an asylum application and they were entered
    without    the   concomitant   retention   of   jurisdiction   that
    characterized our remand order in Castañeda IV.        As such, we
    conclude that the judgment we entered pursuant to Castañeda II
    -39-
    should be construed as a final judgment for EAJA purposes, once the
    period for seeking certiorari before the Supreme Court had expired.
    Since Castañeda did not file an EAJA petition to recoup the fees
    expended in those proceedings, his current application must be
    denied as to those fees.
    Our conclusion in this regard is further reinforced by
    the statutory language of the EAJA, its legislative history and
    common sense.    The EAJA states that "[a] party seeking an award of
    fees and other expenses shall, within thirty days of final judgment
    in the action, submit an application for fees . . . ."         
    28 U.S.C. § 2412
    (d)(1)(B) (emphasis added). The Supreme Court has noted that
    the word "shall" ordinarily connotes an intention by Congress "to
    impose discretionless obligations."       López v. Davis, 
    531 U.S. 230
    ,
    241 (2001); Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach,
    
    523 U.S. 26
    , 35 (1998) ("[T]he mandatory 'shall' . . . normally
    creates   an    obligation   impervious   to   judicial   discretion.");
    Anderson v. Yungkau, 
    329 U.S. 482
    , 485 (1947) (the term "shall" is
    "ordinarily [t]he language of command" (internal quotation marks
    omitted)). But see Gutiérrez de Martínez v. Lamagno, 
    515 U.S. 417
    ,
    432-33 n.9 (1995) ("Though 'shall' generally means 'must,' legal
    writers sometimes use, or misuse, 'shall' to mean 'should,' 'will,'
    or even 'may.'").    Given that the EAJA is a partial waiver of the
    government's sovereign immunity, and so must be strictly construed
    in favor of the government, Ardestani, 
    502 U.S. at 137
    , and that we
    -40-
    have described the EAJA's filing period as jurisdictional, Tyler,
    
    990 F.2d at 30
    , we find that the word "shall" in this context means
    "must."   See also Aronov, 562 F.3d at 88 ("Whatever flexibility
    there may be in interpreting fee shifting statutes involving awards
    against parties other than the United States, such flexibility does
    not exist as to EAJA applications." (citing Lehman v. Nakshian, 
    453 U.S. 156
    , 161 (1981))).    Therefore, it follows that if Castañeda
    wanted to recover the fees he incurred during the proceedings
    leading up to Castañeda II, he "must" have filed an EAJA petition
    as to those proceedings on or before September 20, 2007, which is
    30 days after the judgment in that civil action became final for
    EAJA purposes.     Since Castañeda failed to do so, this court is
    without jurisdiction to entertain his present fee petition as to
    those proceedings.
    Our holding is also driven by a desire to avoid confusion
    for parties and legal counsel engaged in litigating petitions for
    review such as the ones at issue here.   Suppose that Castañeda had
    actually prevailed in the immigration agencies following our remand
    in Castañeda II.   Most likely, his award of asylum would have been
    entered after the EAJA filing period for the Castañeda II judgment
    had passed.   Castañeda would have thus found himself in a position
    where he could not recover the fees expended during the judicial
    proceedings leading up to Castañeda II, nor the fees expended
    during the subsequent post-remand administrative proceedings.   He
    -41-
    could not have tethered his EAJA petition to the IJ's order
    granting him asylum, because said order would not qualify as a
    "final judgment" under the EAJA.          See Melkonyan, 
    501 U.S. at 94
    (stating that "a 'final judgment' under [the EAJA] can only be the
    judgment of a court of law.").          Nor could he have relied on 
    5 U.S.C. § 504
    , a provision of the EAJA that allows prevailing
    parties   to   recover    the   fees   incurred   during   administrative
    proceedings, because said provision does not apply to proceedings
    governed by the INA.      See   Ardestani, 
    502 U.S. at 137
     (concluding
    that administrative immigration proceedings do not fall under 
    5 U.S.C. § 504
    ).
    One can easily see how adopting Castañeda's argument in
    this regard may leave similarly situated litigants at a dead end
    with respect to attorneys' fees if they fail to file a fee petition
    following a Castañeda II-type judgment and subsequently become
    prevailing parties at the agency level.        Our holding here is meant
    to provide a clear time frame for filing a petition for attorneys'
    fees under the EAJA in the immigration context, and to avoid any
    confusion among the parties as to that time frame.
    In summary, we find that we are without jurisdiction to
    award Castañeda the attorneys' fees he seeks with respect to
    Castañeda I and II.      His petition is thus denied as to those fees.
    -42-
    C.   Other Proceedings
    Before delving into the issue of whether the government's
    position was substantially justified, we must pause to address
    Castañeda's arguments that he is entitled to an award for the fees
    he incurred during the administrative proceedings that followed
    Castañeda II and Castañeda IV, as well as the ones incurred during
    his habeas corpus and extradition proceedings.           We begin by
    analyzing whether he is eligible to recover the fees he incurred in
    the post-remand administrative proceedings that followed Castañeda
    IV.
    1.     The post-Castañeda IV     agency proceedings
    Castañeda seeks an award for the attorneys' fees he
    incurred during the post-remand administrative proceedings that
    took place after Castañeda IV.       As previously discussed, a party
    may not rely on 
    5 U.S.C. § 504
     to recoup fees expended during an
    immigration agency proceeding.       However, in Hudson, the Supreme
    Court   held   that    certain   administrative   proceedings   may   be
    considered to form part of a "civil action" for which fees may be
    awarded under the EAJA.    
    490 U.S. at 892
    .   Castañeda thus relies on
    Hudson to argue that the post-remand administrative proceedings
    that followed our decision in Castañeda IV qualify as part of the
    civil action for which he is attempting to recover fees.        We agree
    with him and proceed to explain our reasoning.
    -43-
    In Hudson, a SSA case decided before Finkelstein,
    Melkonyan and Schaefer, the district court carried out a sentence
    four remand to the SSA agency, while retaining jurisdiction over
    the ensuing administrative proceedings. The petitioner was able to
    prevail on remand and subsequently filed an EAJA application for
    attorneys' fees with the district court, where, inter alia, he
    sought to recover the fees he incurred during the post-remand
    administrative proceedings.    The Hudson court held that petitioner
    could recover such fees, and it established the following rule:
    [w]here a court orders a remand to the
    [agency] in a benefits litigation and retains
    continuing jurisdiction over the case pending
    a decision from the Secretary which will
    determine the claimant's entitlement to
    benefits, the proceedings on remand are an
    integral part of the “civil action” for
    judicial review, and thus attorney's fees for
    representation on remand are available subject
    to the other limitations in the EAJA.
    
    490 U.S. at 892
    .     The Court explained that certain qualifying
    administrative   proceedings   are    "so   intimately   connected   with
    judicial proceedings as to be considered part of the 'civil action'
    for purposes of a fee award."        
    Id.
        Those qualifying classes of
    administrative proceedings were defined by the Court to be those
    "where 'a suit has been brought in a court,' and where 'a formal
    complaint within the jurisdiction of a court of law' remains
    pending and depends for its resolution upon the outcome of the
    administrative proceedings." 
    Id.
    -44-
    Evidently, the holding in Hudson turned out to be at odds
    with later Supreme Court cases regarding sentence four remands, as
    Hudson sanctioned a district court's use of a sentence four remand
    while      retaining   jurisdiction    over    the   post-remand   agency
    proceedings.     Recall that in Finkelstein, the Court held that a
    district court may not effectuate a sentence four remand while
    simultaneously     retaining    jurisdiction     over   the   post-remand
    proceedings.     496 U.S. at 624-25.       The Justices recognized this
    incongruity in Schaefer and thus decided to narrow the scope of
    Hudson, writing that they no longer "consider[ed] the holding of
    Hudson binding as to sentence-four remands that are ordered (as
    they should be) without retention of jurisdiction, or that are
    ordered with retention of jurisdiction that is challenged."
    Schaefer, 
    509 U.S. at 300
    .
    The government argues that Hudson is now binding only as
    to sentence six remands where a court "does not rule in any way as
    to   the   correctness   of   the   administrative   determination,"   and
    remands the case to the agency for further fact-finding.           Since
    Castañeda IV was not a sentence six remand, the argument goes,
    Castañeda may not rely on Hudson to recover the fees incurred in
    the post-remand administrative proceedings that followed that
    decision.     This narrow reading of Hudson is mistaken.
    Although the Court in Schaefer, in a footnote, stated
    that "Hudson     remains good law as applied to remands ordered
    -45-
    pursuant to sentence-six," and that it was "limiting Hudson to
    sentence-six cases," we believe this language means that, in the
    context of a social security case, Hudson will only apply to
    sentence-six remand cases.        Id. at n.4.18    In short, the Court in
    Schaefer did not rule that Hudson no longer applies to other types
    of remands outside of the social security sphere, particularly
    those remands that are not analogous to sentence four remands.             As
    we have already concluded that the remand order in Castañeda IV is
    not comparable to a sentence four remand, the decision in Schaefer
    does not preclude Castañeda from relying on Hudson to reclaim the
    fees he incurred at the immigration agencies on remand.
    What's left is that we are remitted to apply the factors
    enumerated    in   Hudson   to   determine   whether    the   administrative
    proceedings    conducted    after   Castañeda     IV   are    so   "intimately
    related" to the judicial proceedings in that case so as to be
    considered part of the same "civil action."            We conclude that the
    remand order in Castañeda IV squares nicely with the "qualifying
    administrative proceedings" outlined in Hudson.               The qualifying
    class of administrative proceedings were defined by the Court to be
    those "where 'a suit has been brought in a court,' and where 'a
    formal complaint within the jurisdiction of a court of law' remains
    18
    Moreover, the footnote seems to be inconsistent with the body
    of the opinion, which implies that Hudson may still apply to
    sentence four remands that are ordered, erroneously but without
    objection, with a retention of jurisdiction. See id.
    -46-
    pending and depends for its resolution upon the outcome of the
    administrative proceedings."   
    490 U.S. at 892
    .   In Castañeda IV, a
    petition for review was brought before the court, and that petition
    for review remained pending due to our decision to remand the case
    back to the BIA while retaining jurisdiction over the petition.
    Had Castañeda failed to obtain relief before the immigration
    agencies, his petition for review before this court would have been
    reactivated, without the need for Castañeda to file a new petition.
    And had Castañeda prevailed at the agencies below, he still would
    have had to return to this court to seek a final judgment disposing
    of the petition for review.     Therefore, the petition for review
    depended on the outcome of the administrative proceedings on remand
    for its resolution.
    Additionally, when Castañeda IV was decided, Castañeda's
    application for asylum had been pending for almost twenty years and
    had already been addressed by two panels of this court, as well as
    an en banc panel.     By that point, we had already provided ample
    guidance to the immigration agencies so that they could evaluate
    Castañeda's asylum claims.     This, coupled with our decision to
    retain jurisdiction over the post-remand proceedings in Castañeda
    IV, as well as our directive ordering the parties to file periodic
    status reports on the progress of those proceedings, warrants
    finding that they were now "intimately related" with the judicial
    proceedings that book-ended them in Castañeda IV and Castañeda V.
    -47-
    Consequently, we conclude that Castañeda is eligible to recover the
    fees    incurred     during   the    post-remand    agency   proceedings   that
    followed our remand order in Castañeda IV.
    2.   The post-Castañeda II agency proceedings
    In addition to requesting attorneys' fees for the agency
    proceedings that followed our decision in Castañeda IV, Castañeda
    also seeks fees for the earlier agency proceedings that followed
    our decision in Castañeda II.            However, since we have determined
    that Castañeda's fee application is untimely as to the fees
    expended in both Castañeda I and Castañeda II, we must also deem
    his application untimely as to the administrative proceedings that
    followed those decisions.            Even assuming, without deciding, that
    those agency proceedings were "intimately related" to the judicial
    proceedings that preceded them, the fact remains that, under
    Hudson, those agency proceedings would still be part of a civil
    action for which recovery of fees is time-barred under the EAJA.
    Therefore, we deny Castañeda's fee application as to those fees.
    3.   Other Proceedings
    Castañeda also seeks an award of attorneys' fees with
    respect to the habeas corpus and extradition proceedings that took
    place    in    the   district       court.     He   argues   that   the    legal
    representation he received in those proceedings contributed to his
    ultimate victory in the asylum proceedings, and, as such, he should
    be able to include them in his fee application.               The government,
    -48-
    for its part, argues that the EAJA precludes us from awarding fees
    incurred in proceedings over which we exercised no jurisdiction. In
    this regard, the government is correct.
    The EAJA states that "a court shall award to a prevailing
    party . . . fees and other expenses . . . incurred by that party in
    any civil action . . . in any court having jurisdiction over that
    action . . . ."       
    28 U.S.C. § 2412
    (d)(1)(A).           It follows that, "[i]n
    order for a court to award fees under the EAJA, it must have
    jurisdiction over the underlying action."                 Zambrano v. I.N.S., 
    282 F.3d 1145
    , 1149-50 (9th Cir. 2002); Lundin v. Mecham, 
    980 F.2d 1450
    , 1461 (D.C. Cir. 1992) (affirming general rule that "a court
    may   not    award    fees   under   EAJA     for    work    performed    in     other
    jurisdictions"); Lane v. United States, 
    727 F.2d 18
    , 20-21 (1st
    Cir. 1984).     It is therefore clear that we may not award Castañeda
    the   fees    he     incurred   in   the    habeas    corpus    and    extradition
    proceedings, because we never exercised jurisdiction over them.
    The cases cited to by Castañeda, Hensley v. Eckerhart,
    
    461 U.S. 424
     (1983) and Pennsylvania v. Delaware Valley Citizens'
    Council for Clean Air, 
    478 U.S. 546
     (1986), are immaterial to the
    issue at hand, because neither of those two cases dealt with the
    EAJA.        Additionally,      in   Hensley,       the     district     court     had
    jurisdiction over the proceedings at issue, and in Delaware Valley,
    the Supreme Court awarded petitioner the fees it incurred in
    certain administrative proceedings, because participation in those
    -49-
    proceedings was necessary to vindicate the petitioner's rights
    under a consent decree issued by the district court. Since neither
    case assists Castañeda, we must deny his petition as to the fees
    incurred in the habeas corpus and extradition proceedings.19
    D. Position of the United States
    Having determined that Castañeda is eligible to recover
    the fees incurred in Castañeda IV, the administrative proceedings
    that followed, Castañeda V, and the current fee litigation, our
    inquiry now shifts to whether the government's position during
    those proceedings was substantially justified.    See   
    28 U.S.C. § 2412
    (d)(1)(A).   According to Jean, this entails making a single
    finding that will operate as a clear threshold for determining
    Castañeda's fee eligibility.   496 U.S. at 160.    The government,
    however, failed to include any justification for its positions
    during any of the proceedings listed above in its opposition to
    Castañeda's fee petition.
    It is well-settled that the government bears the burden
    of establishing that its position was substantially justified. See
    Pierce v. Underwood, 
    487 U.S. 552
    , 565 (1988);    Dantran, Inc. v.
    U.S. Dep't of Labor, 
    246 F.3d 36
    , 41 (1st Cir. 2001).           The
    government needs to satisfy this burden by a preponderance of the
    19
    To the extent that Castañeda also seeks to be awarded the fees
    and expenses incurred with respect to his administrative bond
    proceedings, we must reject the request under the same reasoning.
    Although he did not specifically argue he was entitled to those
    fees, he does seem to include them in his fee schedule.
    -50-
    evidence,    Dantran,      
    246 F.3d at 41
    ,    and   it    must   justify     the
    positions it took both during the litigation and the agency
    proceedings that preceded that litigation, Schock v. United States,
    
    254 F.3d 1
    , 5 (1st Cir. 2001).                 These positions must have a
    reasonable basis in both law and fact.               Jean v. United States, 
    396 F.3d 449
    , 455 (1st Cir. 2005).
    In    its    opposition     to    Castañeda's        application       for
    attorneys' fees, the government only attempts to justify its
    position during the proceedings that led up to our decision in
    Castañeda II.       In contrast, the government makes no attempt to
    justify its position during any of the proceedings for which
    Castañeda is eligible to recover fees, namely, the litigation that
    took   place      from   Castañeda      IV    to    Castañeda      V.       Given   the
    government's failure in this regard, we conclude that its arguments
    as to the substantial justification issue are waived.                    See United
    States v. Zannino, 
    895 F.2d 1
    , 17 (1st Cir. 1990) ("[I]ssues
    adverted to in a perfunctory manner, unaccompanied by some effort
    at developed argumentation, are deemed waived.").
    In any event, the government would face an uphill battle
    arguing that its position in those proceedings was substantially
    justified.        As     previously     recounted,     in       Castañeda    IV,    the
    government did not defend the BIA's decision on the merits; rather,
    it only argued that Castañeda's asylum petition should be held in
    abeyance pending the outcome of his extradition proceedings.
    -51-
    Although there are instances where a procedural argument that could
    affect   our    disposition     of   an   appeal   may   be   "substantially
    justified," it is clear to us that the procedural arguments raised
    by the government       during Castañeda IV were not substantially
    justified. First, the government claimed that the case should have
    been held in abeyance because the BIA had a "policy" –- announced
    in Matter of Pérez-Jiménez, 
    10 I. & N. Dec. 309
     (BIA 1963) –- of
    holding asylum applications in abeyance where there was a pending
    extradition attempt.     However, as we pointed out in Castañeda IV,
    the BIA itself had explicitly declined to apply the Pérez-Jiménez
    rule to Castañeda when the government had previously petitioned the
    BIA to hold his petition in abeyance.
    Second, the government argued that ruling on the asylum
    petition before the extradition proceedings were resolved would
    unduly interfere with foreign policy.         We concluded, however, that
    the government offered little to support this argument beyond
    "vague hand-waving about the nature of [] unspecified foreign
    policy consequences."         Castañeda IV, 
    638 F.3d at 360
    .          We also
    noted    that   an   asylum    application   had    no   preclusive    effect
    whatsoever on an extradition proceeding.           Moreover, the government
    conceded that, even if Castañeda were granted asylum, it would
    still be within the discretion of the Secretary of State to
    extradite him to Perú.
    -52-
    In sum, even if the government had adequately briefed the
    issue of whether its position was substantially justified, we would
    have no trouble ruling in favor of Castañeda in this regard.
    Castañeda thus merits being awarded attorneys' fees for each of the
    proceedings listed above.
    E.    Special Circumstances
    The government has not argued that there are any special
    circumstances which would make an award of fees against it unjust,
    and neither are we able to discern any.               In fact, we believe the
    circumstances of this case actually militate in favor of granting
    Castañeda an award of attorneys' fees.
    Consequently, we will now saunter over to the next issue:
    how to calculate Castañeda's award of attorneys' fees.
    V. Amount of Fees
    The    parties    vigorously        joust   over   how   to   calculate
    Castañeda's fee award, with Castañeda naturally wanting to increase
    the hourly rate for his attorneys' work while the government seeks
    to reduce it based on several alleged deficiencies in the fee
    application.    Additionally, the government claims that Castañeda's
    fee award should be reduced because he unreasonably protracted the
    proceedings    that   led   to   his    award    of   asylum.      We   begin   by
    addressing Castañeda's argument that he should be awarded an
    enhanced fee for his attorneys' performance in this case.
    -53-
    A. Enhanced Fee
    Castañeda seeks to recover fees at a rate of $450 per
    hour for the work performed by his lead attorney, Mr. William
    Joyce, and $275 per hour for the work of Mr. Joyce's associates.
    Castañeda also petitions for fees at a rate of $130 per hour for
    paralegals and $100 per hour for law clerks, both of whom worked on
    his case.    He claims these rates are in line with the prevailing
    market rates for immigration attorneys in the Boston area.
    The EAJA, however, caps awards of attorneys' fees at a
    rate of $125 per hour.   
    28 U.S.C. § 2412
    (d)(2)(A).   This statutory
    ceiling is generally "designed to hold down the government's costs
    by providing modest compensation, with exceptions."          Atl. Fish
    Spotters Ass'n v. Daley, 
    205 F.3d 488
    , 491 (1st Cir. 2001).          A
    court may only award fees beyond the statutory maximum if it
    "determines that an increase in the cost of living or a special
    factor, such as the limited availability of qualified attorneys for
    the proceedings involved, justifies a higher fee."      
    28 U.S.C. § 2412
    (d)(2)(A).    The Supreme Court has expanded on the "limited
    availability of qualified attorneys" exception, writing that
    [this] exception . . . must refer to attorneys
    'qualified for the proceedings' in some
    specialized sense, rather than just in their
    general legal competence. We think it refers
    to attorneys having some distinctive knowledge
    or   specialized   skill   needful   for   the
    litigation in question--as opposed to an
    extraordinary level of the general lawyerly
    knowledge   and   ability    useful   in   all
    litigation. Examples of the former would be an
    -54-
    identifiable practice specialty such as patent
    law, or knowledge of foreign law or language.
    Where such qualifications are necessary and
    can be obtained only at rates in excess of the
    [$125] cap, reimbursement above that limit is
    allowed.
    Pierce, 
    487 U.S. at 572
    .       The question thus becomes whether
    Castañeda's attorneys possessed some "distinctive knowledge" or
    "specialized skill" that was necessary to litigate the claims at
    stake during Castañeda IV, the administrative proceedings that
    followed, and Castañeda V.     If we answer this question in the
    affirmative, then we must examine whether, in the case at hand,
    Castañeda could have found similarly qualified lawyers elsewhere in
    the market for $125 or less.   See Atl. Fish Spotters, 205 F.3d at
    492. To begin with, Castañeda argues that his attorneys deserve an
    enhanced award because they have been mired in        particularly
    "lengthy and complex litigation" which required them to raise
    "precedential" arguments while litigating his case across a wide
    variety of legal fora.    He highlights his attorneys' extensive
    experience in immigration law and their "resilient pursuit of a
    just result in the face of, and despite, a series of nearly a dozen
    discouraging events over the course of the nineteen years of [his]
    litigation."   Their work product, he claims, could not have been
    obtained from other attorneys at or below the statutory rate.
    In support of these assertions, Castañeda has included
    with his fee application several affidavits subscribed by his
    counsel, where they describe their ample experience in deportation
    -55-
    defense and the convoluted nature of this case.                     Castañeda also
    attached   the    affidavit      of   Mr.    Harvey     Kaplan,    an   experienced
    immigration attorney who is a partner at a Boston immigration firm,
    and who attests to Mr. Joyce's ample experience and the complicated
    nature of this case.        He also asserts that the rates requested for
    Mr. Joyce and his associates are "at or below the prevailing market
    rate for the period of 2005-2012 for attorneys of their respective
    experience levels involved in highly specialized litigation."
    Having reviewed Castañeda's submissions, we find that he
    has   failed     to    establish      that   his   attorneys       possessed    some
    "specialized skill" or "distinctive knowledge" needful for the
    litigation in question.          Although Castañeda does convince us that
    representing him required a herculean effort from his counsel in
    staying the course and persevering until the end -- given the two-
    decades' long proceedings, his years of imprisonment, and the
    adverse determinations that were repeatedly made against him -- he
    does not explain how "distinctive knowledge" or "specialized skill"
    was necessary to represent him during the specific proceedings at
    issue   here.         Instead,   Castañeda     stresses    the     complexity   and
    interdependence of all of the proceedings he underwent as a whole,
    emphasizing that very few attorneys in the immigration bar are
    equipped to litigate an immigration case at the administrative
    level   while    also     "competently       handling    multi-faceted     federal
    litigation,"      including       the    habeas       corpus      and   extradition
    -56-
    proceedings    he   faced.   We,    however,   cannot   avow   Castañeda's
    holistic approach because the EAJA requires us to focus on whether
    Castañeda's attorneys possessed some "specialized skill needful for
    the litigation in question."        Pierce, 
    487 U.S. at 572
     (emphasis
    added).     In this case, we have already determined that "the
    litigation in question" must be confined to the proceedings that
    sprouted from his second petition for review, i.e., the proceedings
    that led to our decision in Castañeda IV, the "intimately related"
    administrative proceedings that followed, and the Castañeda V
    proceedings.
    As to those proceedings, particularly the litigation in
    Castañeda     IV,   Castañeda      argues   his   attorneys     made   the
    "unprecedented" argument that, "contrary to the application of
    established BIA case law, there should be no per se bar on asylum
    claims for refugees simply because of their employment in the
    military or police forces in their country of origin."          He claims
    this argument "was not straightforward" and "required a highly
    nuanced application of statutory, regulatory and case law."            But
    the Supreme Court has determined that factors such as the "novelty
    and difficulty of issues, the undesirability of the case [and] the
    work and ability of counsel" do not, by themselves, merit awarding
    fees beyond the statutory cap.       Pierce, 
    487 U.S. at 573
     (internal
    quotation marks omitted).
    -57-
    Furthermore,      in     Castañeda       IV,    the   main    issues    were
    whether Castañeda's petition for review should be held in abeyance
    pending the resolution of the extradition proceedings against him,
    and whether Castañeda had established the requisite nexus between
    his past persecution and his membership in a cognizable particular
    social group.   As to the first issue, we have already pointed out
    that the government offered very little in support of its argument
    for a stay and that it even conceded that asylum and extradition
    proceedings are "separate and distinct," such that a decision on
    the former has no preclusive effect on the latter.                     Castañeda IV,
    
    638 F.3d at 360-62
    .         As to the second issue, although it was
    difficult, the government is correct in characterizing it as one
    that is routinely litigated in our circuit by a diverse cast of
    immigration attorneys.       Therefore, we are not convinced that the
    proceedings in Castañeda IV "require[d] for competent counsel
    someone from among a small class of specialists who are available
    only for [$450] per hour."         Atl. Fish Spotters, 205 F.3d at 492.
    We    also   do    not    see      how    any    "special      skill"    or
    "distinctive knowledge," apart from that obtained by immigration
    lawyers pursuant to their general experience, was necessary to
    prevail in Castañeda IV.           As Castañeda does not set forth any
    similar arguments with respect to the administrative proceedings
    that followed Castañeda IV or the proceedings in Castañeda V, we
    -58-
    find that he is not entitled to an award of enhanced fees under the
    EAJA's "special factor" provision.
    B. Cost-of-Living Allowance
    The above is not the end of the matter, however, as the
    EAJA also provides for enhanced fees based on an increase in the
    cost of living.   
    28 U.S.C. § 2412
    (d)(2)(A).         Castañeda thus makes
    the alternative argument that the $125-per-hour cap established by
    Congress in March of 1996 should be adjusted to reflect the
    increase in the cost of living that has occurred since then,
    particularly in the Boston area.         He relies on the Consumer Price
    Index (CPI) data compiled by the U.S. Bureau of Labor Statistics.
    Given that the government does not oppose Castañeda's
    request for a cost-of-living adjustment, or that said adjustment be
    computed based on the regional, as opposed to national, CPI, we
    find that Castañeda is eligible for the requested enhancement. See
    Sierra Club v. Sec'y of Army, 
    820 F.2d 513
    , 523 (1st Cir. 1987)
    ("[F]ederal   courts    remain    able     to   augment   hourly   rates   by
    considering changes in the cost of living . . . .").           We therefore
    adjust the $125 statutory cap to reflect the increase in the cost
    of living experienced in the Boston - Brockton - Nashua geographic
    area since March of 1996, as established by the Bureau of Labor
    Statistics.    The     Annual    Consumer   Price   Index   for    all   Urban
    Consumers (CPI-U) in this area, for the month of March in 1996, was
    -59-
    162.8.20   Castañeda's attorneys worked on the proceedings for which
    he is eligible to recover attorneys' fees during 2009, 2010, 2011
    and 2012.    The CPI-U for those years is 233.778, 237.446, 243.881
    and 247.733, respectively.      We therefore divide each of these
    numbers by 163.3 and multiply the results by $125, to arrive at the
    EAJA's statutory cap for each of the relevant years, adjusted for
    inflation.     Having completed this exercise, we determine that
    Castañeda is eligible to recover fees at the following rates:
    $179.50 per hour for work completed in 2009; $182.31 per hour for
    work completed in 2010; $187.26 per hour for work completed in
    2011; and $190.21 per hour for work completed in 2012. These rates
    will apply equally to Mr. Joyce and his associates' work.
    C. Paralegals and Law Clerks
    Moving on, Castañeda requests hourly rates of $130 for
    paralegals and $100 for law clerks.         He relies on Mr. Kaplan's
    affidavit in claiming that such rates are in accordance with the
    prevailing market rates for immigration firms in the Boston area.
    The government opposes the request, arguing that Castañeda has not
    advanced sufficient evidence to prove that those rates are in fact
    comparable to the prevailing market rates.         It notes that Mr.
    20
    This data may be obtained by visiting the Bureau of Labor
    Statistics' website for the New England Information Office. See
    http://www.bls.gov/ro1/. There, one may use the Data Search Tool
    and select the "(CPI-U) Boston-Brockton-Nashua, MA-NH-ME-CT, All
    items 1982-84=100 - CUURA103SA0" database to access historical CPI-
    U values for the Boston-Brockton-Nashua geographic area.        See
    http://www.bls.gov/ro1/data.htm.
    -60-
    Joyce's affidavit does not attest to the rates charged by the
    paralegals and law clerks who worked on the case and that the case
    law cited by Castañeda in the alternative instead supports rates of
    $90 and $60 per hour, respectively, in the Boston area.                            The
    government seems to have the better argument in this regard.
    In Richlin Security Services Co. v. Chertoff, 
    553 U.S. 571
       (2008),   the    Supreme      Court   held    that    the     EAJA   allows    a
    prevailing party to recover fees incurred for paralegal services at
    the market rate for such services.21 The Court has also determined,
    while analyzing a similar fee-shifting statute, that fees expended
    on    law   clerks    and   other    individuals     who     contribute       to   the
    attorney's work product are recoverable at market rates.                           See
    Missouri    v. Jenkins, 
    491 U.S. 274
    , 285 (1989) (holding that
    "reasonable attorney's fee" under 
    42 U.S.C. § 1988
     "must take into
    account the work not only of attorneys, but also of secretaries,
    messengers,     librarians,         janitors,      and     others     whose    labor
    contributes to the work product for which an attorney bills her
    client"); Nadarajah v. Holder, 
    569 F.3d 906
    , 918 (9th Cir. 2009).
    21
    The Supreme Court based its decision on the language of 
    5 U.S.C. § 504
    (a)(1), which is the operative provision of the EAJA that
    allows prevailing parties to recover fees expended during
    administrative proceedings.     The Supreme Court stated that it
    "assume[d] without deciding" that the reasoning of its opinion
    would extend equally to 
    28 U.S.C. § 2412
    , the provision at issue in
    this case. The government does not seem to dispute that this is
    the case, and we can discern no reason for not construing Richlin's
    holding to be applicable to EAJA petitions filed under § 2412.
    -61-
    The government is correct in pointing out that none of
    Castañeda's attorneys attest to the rates charged by Mr. Joyce's
    firm for paralegal and law clerk services in their affidavits.
    Although Mr. Kaplan states that "the rates requested for paralegals
    ($130) and law clerks ($100), are also in accord with prevailing
    market rates for immigration litigation firms in Boston," some
    recent district court cases from Massachusetts suggest that rates
    of $100 for paralegals and $75 for law clerks are more in line with
    current market trends. See Rogers v. Cofield, --- F. Supp. 2d ---,
    
    2013 WL 1325034
     at *21 (D. Mass. March 31, 2013) (finding a $100
    hourly rate for paralegal work reasonable); Ferraro v. Kelley, 
    2011 WL 576074
     at *6 (D. Mass. Feb. 8, 2011) (finding a $90 rate for
    paralegals to be "in the ball park of rates approved recently for
    paralegals in this District."); Walsh v. Boston Univ., 
    661 F. Supp. 2d 91
    , 113 (D. Mass. 2009) (finding that a $75 hourly rate is "in
    line with rates approved for legal interns"); Hudson v. Dennehy,
    
    568 F. Supp. 2d 125
    , 133 (D. Mass. 2008) (finding prevailing market
    rates for paralegals during 2007-2008 to be $100 per hour).
    Accordingly, we find that Castañeda should be awarded fees for
    paralegals and law clerks at the hourly rates of $100 and $75,
    respectively.
    D. Government's Arguments for a Fee Award Reduction
    We now consider whether the government is correct in
    claiming that Castañeda's fee award must be reduced because (1) he
    -62-
    unreasonably protracted the proceedings; (2) his fee application
    does not appear to consist of contemporaneous time records; (3) his
    fee application contains excessive or duplicative time entries; (4)
    he did not prevail in his claim for an enhanced fee award; and (5)
    his statement of costs is defective. We discuss these arguments in
    turn.
    1. Protraction of Proceedings
    The government argues that Castañeda's fee award must be
    reduced because he "unreasonably protracted the litigation in
    Castañeda [IV] by opposing the government's request for a voluntary
    remand."    It relies on 
    28 U.S.C. § 2412
    (d)(1)(C), which allows
    courts to reduce or deny an award of attorneys' fees if the
    prevailing party, during the course of the proceedings, "engaged in
    conduct    which    unduly   and   unreasonably   protracted   the   final
    resolution of the matter in controversy."          Following Castañeda's
    second petition for review of the BIA's May 2009 decision, the
    government notes it filed a motion to voluntarily remand the case
    to the BIA so that the Board could further evaluate whether
    Castañeda had established the requisite nexus component of his
    asylum claim.      This court provisionally denied the motion on May
    20, 2010 and ordered the parties to brief the merits of Castañeda's
    petition   for     review.   Notwithstanding,     the   government   faults
    Castañeda for opposing the motion, arguing that he delayed the
    -63-
    resolution of his claims and as a result incurred unnecessary fees
    and expenses.      We strenuously disagree.
    The government's three-page motion to remand was based
    almost exclusively on the case of Sompotan v. Mukasey, 
    533 F.3d 63
    (1st Cir. 2008), which dealt with the nexus requirement in a pre-
    REAL ID Act case.         However, as we explained in Castañeda V,
    Sompotan "simply re-stated well-settled law and pre-dated the BIA's
    [May 2009] decision" 676 F.3d at 3. Moreover, when the government
    sought remand, Castañeda's petition for asylum had been pending for
    approximately seventeen years, the last four and a half of which he
    had   spent   in    the   DHS'   custody,   despite   an   administrative
    determination that he was not a danger to the community nor a
    flight risk.       It is therefore perplexing for us to think that
    Castañeda would voluntarily choose to delay the resolution of his
    own claims, given the precarious situation in which he found
    himself. Instead, we find that the immigration agencies' repeatedly
    erroneous determinations, as well as the government's initiation of
    the extradition proceedings against Castañeda and its repeated
    opposition to his release on bail are what caused the delay
    inherent in these proceedings and the substantial petition for
    attorneys' fees that is now before this court.
    We therefore reject the government's contention that
    Castañeda unduly protracted the proceedings in this case.
    -64-
    2. Contemporaneous Time Records
    The government also attacks the fee schedule submitted by
    Castañeda,     arguing   that   it   does   not    appear   to    consist      of
    contemporaneously-kept time records.              Instead, the government
    suggests that "the summaries of the hours expended appear to be a
    reconstruction of the time records in this case." It relies on the
    case of Grendel's Den, Inc. v. Larkin, 
    749 F.2d 945
    , 952 (1st Cir.
    1984), where we held that, "in cases involving fee applications for
    services rendered after the date of this opinion, the absence of
    detailed contemporaneous time records, except in extraordinary
    circumstances, will call for a substantial reduction in any award
    or, in egregious cases, disallowance."          We thus proceed to discuss
    the adequacy of the submitted time records.
    Pursuant to the EAJA, an application for fees must
    include "the amount sought, including an itemized statement from
    any attorney . . . stating the actual time expended and the rate at
    which   fees    and   other   expenses   were     computed."     
    28 U.S.C. § 2412
    (d)(1)(B); see also Local Rule 39.1.           This itemized statement
    must be a "full and specific accounting" of the tasks performed,
    including "the dates of performance, and the number of hours spent
    on each task" as well as a description of the nature of the tasks.
    Weinberger v. Great N. Nekoosa Corp., 
    925 F.2d 518
    , 527 (1st Cir.
    1991. The statement must also consist of "detailed contemporaneous
    time records" explaining how time was spent on each claim in the
    -65-
    case.    Grendel's Den, 
    749 F.2d at 952
    ; Hensley, 
    461 U.S. at 437
    .
    Contemporaneous time records serve not only as evidence that the
    "time claimed was indeed so spent, but [also] provide details about
    the work . . . . [t]his allows the paying party to dispute the
    accuracy of the record as well as the reasonableness of the time
    spent."    Calhoun v. Acme Cleveland Corp., 
    801 F.2d 558
    , 560 (1st
    Cir. 1986). Records that include the different tasks each attorney
    performed, the total number of hours billed, the billing rate for
    those hours, the date on which each tasks was performed, and the
    amount    of     time   spent   on    each    task   generally      fulfill    this
    requirement.       
    Id. at 560
    .
    Having reviewed the time records submitted by Castañeda,
    we are confident that they satisfy the strictures set forth above.
    The records are divided according to the attorney, paralegal or law
    clerk    that    worked   on    the   case,   and    their   time    entries   are
    classified according to the year in which they were performed.
    Further, each time entry lists a general description of the task,
    such as "Prepared for oral argument before the First Circuit" or
    "Drafted motion for expedited bond hearing," as well as the date on
    which each was performed. Each task also lists the hours that were
    allotted to it, and the rate at which those hours were billed.
    Therefore, we find that the records in this case are sufficiently
    detailed to allow the government to "dispute the accuracy of the
    records as well as the reasonableness of the time spent."                      See
    -66-
    Lipsett v. Blanco, 
    975 F.2d 934
    , 938 (1st Cir. 1992); Hensley, 
    461 U.S. at 437
     ("[C]ounsel . . . is not required to record in great
    detail how each minute of his time was expended [but] at least
    counsel should identify the general subject matter of his time
    expenditures."); Gay Officers Action League v. Puerto Rico, 
    247 F.3d 288
    , 297 (1st Cir. 2001) (stating that while it is required to
    keep detailed contemporaneous records, compilations that accurately
    reflect the records and simplify the presentation of data may be
    accepted by the courts instead of the original records).   In fact,
    the government has launched challenges to the reasonableness of the
    hours allotted to certain tasks, and we proceed to analyze these
    objections in the following section.
    3.   Duplicative or Excessive Time Entries
    The government objects to the reasonableness of several
    of the time entries made by Castañeda's attorneys, claiming that
    they are either excessive or duplicative.   However, most of these
    challenges relate to hours expended on proceedings for which we
    have already held that Castañeda is ineligible to recover fees. In
    light of our holding that Castañeda's petition for attorneys' fees
    must be circumscribed to the proceedings in Castañeda IV, the
    "intimately related" post-remand administrative proceedings that
    followed, and Castañeda V, we determine that only the following two
    objections are relevant:
    1.   Four hours on September 13, 2010 for Mr.
    Joyce to present oral argument before this
    -67-
    court; two hours for Ms. Endy to attend the
    same oral argument (for six hours total).
    2. Four and a half hours on December 20, 2011
    for Mr. Joyce and Ms. Endy to attend an
    "[i]ndividual hearing before IJ Feder." (for
    nine hours total).
    The government contends that two attorneys were not
    necessary to adequately represent Castañeda at these hearings.             It
    also claims that four hours is an excessive amount of time to argue
    a case before this court "inasmuch as the arguments did not take up
    more than a small fraction of that time."             The government thus
    suggests that these hours include travel time, which should not be
    billed at the full attorney rate.         We disagree with the government
    and find the time entries above to be reasonable.
    Fee awards are not intended "to serve as full employment
    or continuing education programs for lawyers and paralegals."
    Lipsett, 
    975 F.2d at 938
     (1st Cir. 1992).                  We have already
    emphasized that the assignment of multiple attorneys to a single
    set of tasks should be regarded with "healthy skepticism," and that
    "staffing   issues   are   often   best    resolved   by   the   []   court's
    application of its intimate, first-hand knowledge of a particular
    case's nuances and idiosyncracies."            
    Id.
        We have added that
    "[t]ime spent by two attorneys on the same general task is not . .
    .   per se duplicative" since "[c]areful preparation often requires
    collaboration and rehearsal," especially in response to complex
    legal issues that are fiercely defended. Rodríguez-Hernández v.
    -68-
    Miranda-Vélez, 
    132 F.3d 848
    , 860 (1st Cir. 1998);               Hutchinson ex
    rel. Julien v. Patrick, 
    636 F.3d 1
    , 14 (1st Cir. 2011) (“[P]arties
    sometimes are justified in making a strategic choice to use teams
    of lawyers in various phases of complex litigation”).
    We hold that Ms. Endy's presence at oral argument and at
    the hearing before IJ Feder was not unnecessarily duplicative,
    given   the     complicated   nature   of   the    case   and    the   serious
    ramifications the outcome of the hearings had on Castañeda's
    future.   On September 13, 2010, for example, Castañeda not only
    faced the impeding threat of deportation, but he was also the
    target of the government's efforts to extradite him to Perú, where
    he would again be charged for his role in the Accomarca Massacre.
    Moreover, it is understandable that both Mr. Joyce and Ms. Endy
    attended the hearing; Ms. Endy clocked almost twice the number of
    hours on the case compared to Mr. Joyce, and no doubt she was more
    familiarized with the case and thus could have provided valuable
    assistance to Mr. Joyce during the hearings.
    We also hold that billing four hours to attend oral
    argument before this court is reasonable, even though the actual
    argument time was considerably less.              Oral arguments scheduled
    before this court usually begin at 9:30 am and can sometimes last
    until after noon.     Mr. Joyce's allotment of four hours seems to be
    in the ballpark for attorneys who sit in for the full duration of
    their argument, usually waiting for their case to be called.                We
    -69-
    agree with Castañeda that such time is "necessary and unavoidable
    in litigation."      See Brewster v. Dukakis, 
    3 F.3d 488
    , 492 n.4 (1st
    Cir. 1993) (identifying court appearances as a "core work" that is
    worthy of full reimbursement).
    Therefore, we find that the government's challenges to
    the time entries listed above are without merit.
    4. Reduction of Hours Expended on Amended Petition
    As    previously   noted,       Castaneda       filed   an   amended
    application for attorneys' fees after he had filed his original
    petition.    The main difference between the two petitions is that,
    on the amended petition, Castañeda sought a fee enhancement based
    on   the   EAJA's    "limited   availability      of     qualified    attorneys"
    exception to the $125 statutory cap.22             Since Castañeda was not
    successful    in    obtaining   the    requested       fee    enhancement,   the
    government now argues that we should deny Castañeda the specific
    fees incurred in the drafting of the amended petition.                       The
    government cites to Cooper v. United States Railroad Retirement
    Board, 
    24 F.3d 1414
    , 1418 (D.C. Cir. 1994), where the D.C. Circuit
    reduced the amount of hours billed on an amended application for
    attorneys' fees, from 21 hours to 7 hours, because said application
    mainly requested fees for proceedings in which the petitioner did
    not qualify as a prevailing party.
    22
    In addition, Castañeda's amended petition seemed to include a
    significantly longer "procedural history" section.
    -70-
    Examining the records, it seems that Ms. Endy devoted 2.5
    hours to working on the amended petition, while law clerk Brian
    Doyle devoted 16 hours to it.   We therefore find it reasonable to
    reduce Mr. Doyle's hours by eight hours, but we decline to reduce
    the hours billed by Ms. Endy, due to the minimal amount of time she
    devoted to the amended petition.       Accordingly, Mr. Doyle's total
    hours for 2012 are reduced by eight.
    5. Costs
    This brings us to the government's final challenge.    It
    notes that Castañeda has requested almost $5,000 in "costs and
    fees," but that none of the itemized statements are supported with
    any documentation or are explained in sufficient detail to indicate
    for what purpose they were incurred. We agree with the government
    that this is the case, and that the costs, as presented, are
    invalid.   Nevertheless, Castañeda has represented that
    Petitioner is prepared to submit actual time
    records and documentation in support of
    expenses in discovery or upon a court order.
    For the sake of efficiency and due to the
    length of litigation, the breadth of the
    Petitioner’s itemized statements, and the
    varying administrative and judicial phases of
    this litigation, Petitioner’s counsel deemed
    it more efficient to first allow the Court to
    decide, as a threshold issue, the portions of
    the Castañeda litigation where Petitioner may
    recover fees before litigating recordkeeping
    and fee disputes. As such, Respondent’s
    argument that Petitioner’s itemized statement
    is not supported by contemporaneous time
    records and other supporting documentation is
    premature at best.
    -71-
    We therefore order Castañeda to submit a new itemized statement of
    attorneys' fees and expenses which conforms to the strictures of
    this opinion.     His new statement of fees shall only include the
    attorneys'    fees    that   were   expended    representing   him    in   the
    proceedings    that    led   to   our   decision   in   Castañeda    IV,   the
    "intimately related" post-remand administrative proceedings that
    followed, the proceedings in Castañeda V and the current fee
    litigation.     If Castañeda wishes to also recover costs, he shall
    file an itemized statement of costs that includes supporting
    documentation and an appropriate description of those costs.               The
    government shall have an opportunity to impeach any costs it deems
    improvident.
    VI. Conclusion
    For the reasons set forth above, Castañeda's petition is
    granted in part and denied in part.            Castañeda shall have twenty
    (20) days following the publication of this opinion to comply with
    the order contained herein.
    So ordered.
    -72-
    

Document Info

Docket Number: 09-1847

Citation Numbers: 723 F.3d 48, 2013 WL 3742447

Judges: Torruella, Ripple, Lipez

Filed Date: 7/17/2013

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (45)

Annabelle Lipsett v. Gumersindo Blanco , 975 F.2d 934 ( 1992 )

Missouri v. Jenkins Ex Rel. Agyei , 109 S. Ct. 2463 ( 1989 )

Sefadin Asani v. Immigration and Naturalization Service , 154 F.3d 719 ( 1998 )

Walsh v. Boston University , 661 F. Supp. 2d 91 ( 2009 )

Scarborough v. Principi , 124 S. Ct. 1856 ( 2004 )

Ardestani v. Immigration & Naturalization Service , 112 S. Ct. 515 ( 1991 )

qun-yang-v-edward-j-mcelroy-district-director-for-the-united-states , 277 F.3d 158 ( 2002 )

marta-zambrano-margarita-rodriguez-graciela-lopez-andrea-ruiz-martha-ozuna , 282 F.3d 1145 ( 2002 )

Immigration & Naturalization Service v. St. Cyr , 121 S. Ct. 2271 ( 2001 )

Denver S. Cooper v. United States Railroad Retirement Board , 24 F.3d 1414 ( 1994 )

Sullivan v. Hudson , 109 S. Ct. 2248 ( 1989 )

Gomez-Beleno v. Holder , 644 F.3d 139 ( 2011 )

Melkonyan v. Sullivan , 111 S. Ct. 2157 ( 1991 )

John E. Lane, Representative of the Estate of G. Kendrick ... , 727 F.2d 18 ( 1984 )

Lionel James Casey v. Department of State , 980 F.2d 1472 ( 1992 )

Hutchinson Ex Rel. Julien v. Patrick , 636 F.3d 1 ( 2011 )

75-fair-emplpraccas-bna-1228-73-empl-prac-dec-p-45317-48-fed-r , 132 F.3d 848 ( 1998 )

Robert H. CALHOUN, Plaintiff, Appellee, v. ACME CLEVELAND ... , 801 F.2d 558 ( 1986 )

Sierra Club v. Secretary of the Army, Sierra Club v. ... , 820 F.2d 513 ( 1987 )

Castaneda Castillo v. Gonzales , 488 F.3d 17 ( 2007 )

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