Michel v. Mayorkas ( 2023 )

United States Court of Appeals
For the First Circuit
No. 22-1465
BARBARA MICHEL; KARINE G. PIERRE BOUCICAUT; ANA MARISELA
DIAZ SANCHEZ; JOSE ANGEL ANDRADE; FREDY FRANCISCO FUENTES;
OSCAR OSMIN CHAVEZ-DERAS,
Plaintiffs, Appellants,
v.
ALEJANDRO MAYORKAS, in his official capacity as Secretary of
Homeland Security; UNITED STATES DEPARTMENT OF HOMELAND
SECURITY; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES;
MICHAEL J. MCCLEARY, in his official capacity as Field Director
of the United States Citizenship and Immigration Services,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Indira Talwani, U.S. District Judge]
Before
Barron, Chief Judge,
Lynch and Gelpí, Circuit Judges.
Anthony Drago, Jr., with whom Anthony Drago, Jr., P.C. was on
brief, for appellants.
Mary L. Larakers, Trial Attorney, Office of Immigration
Litigation, with whom Brian M. Boynton, Principal Deputy Assistant
Attorney General, Civil Division, William C. Peachey, Assistant
Director, and Monique T. Peoples, Senior Litigation Counsel, were
on brief, for appellees.
May 11, 2023
GELPÍ, Circuit Judge. The Equal Access to Justice Act
("EAJA") entitles a prevailing party in certain civil actions
against the United States to receive attorney's fees, unless the
government's position was substantially justified or special
circumstances make an award unjust. 28 U.S.C. § 2412(d)(1); see
also McLaughlin v. Hagel, 767 F.3d 113, 117 (1st Cir. 2014).
Barbara Michel, Karine G. Pierre Boucicaut, Ana Marisela
Díaz Sánchez, José Angel Andrade, Fredy Francisco Fuentes, and
Oscar Osmin Chávez-Deras (collectively, "Appellants") prevailed
before the district court in a challenge against the Department of
Homeland Security ("DHS") and its agency, the United States
Citizenship and Immigration Services ("USCIS") (collectively, the
"government" or "Appellees"), after USCIS administratively closed
each individual's application to adjust status. Appellants
subsequently filed a motion for attorney's fees under the EAJA.
The district court determined that although Appellants had
prevailed in their challenge to USCIS' action, the government's
position was substantially justified. The district court
therefore denied them attorney's fees for the proceedings before
it. However, the district court granted Appellants EAJA fees for
the ensuing appellate proceedings, which were voluntarily
dismissed by the government. This award nonetheless amounted to
a reduced percentage of the global sum sought based on a finding
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that the total hours billed were duplicative. We affirm both
rulings.
I. Background
Although Appellants' underlying challenge has been
resolved in their favor and is no longer at issue, we describe the
dispute for context. Appellants are citizens of Haiti and El
Salvador who were granted Temporary Protected Status ("TPS") after
previously being in removal proceedings in the United States. TPS
constitutes a temporary permission to remain in the United States
and is granted to certain noncitizens whose country of origin meets
the statutory conditions outlined in 8 U.S.C. § 1254a. Upon
obtaining this status, each Appellant filed an application with
USCIS for "advance parole" to travel to his or her country of
citizenship and be allowed entry to the United States upon
returning.
USCIS, in fact, authorized their travel. Upon
Appellants' return, they were "inspected and paroled" into the
United States. They then filed an application to adjust their
immigration statuses from TPS to Lawful Permanent Resident.
However, USCIS administratively closed their applications for lack
of jurisdiction, concluding that the immigration judge, not USCIS,
had sole jurisdiction over their applications because they were
not "arriving aliens" under the Miscellaneous and Technical
Immigration and Naturalization Amendments of 1991 ("MTINA"), Pub.
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L. No. 102-232, § 304(c), 105 Stat. 1733, 1749 (1991), despite
having been "inspected and paroled."1
Appellants proceeded to file individual complaints in
the United States District Court for the District of Massachusetts
under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, et
seq., challenging USCIS' refusal to entertain jurisdiction over
their adjustment of status applications. Each complaint presented
the same legal issue: whether travel on advance parole rendered
Appellants "arriving aliens" such that USCIS, rather than the
immigration judge, had jurisdiction over their applications to
adjust status. The cases were consolidated by the district court
as they involved identical issues. The government moved to dismiss
the six complaints, on the ground that the district court did not
have jurisdiction to hear the claims under 8 U.S.C. § 1252(g) as
Appellants sought to indirectly challenge their removal orders.
Alternatively, the government posited that Appellants were not
1 Regulations promulgated by DHS provide that jurisdiction
over adjustment of status applications lies with USCIS, 8 C.F.R
§ 245.2(a)(1), unless the immigration judge has jurisdiction under
8 C.F.R § 1245.2(a)(1)(i). Sections 1245.2(a)(1)(i) and (ii)
provide that an immigration judge has sole jurisdiction over
adjustment of status applications for those in removal proceedings
"other than" "arriving aliens" unless certain conditions are met.
Accordingly, whether USCIS could adjudicate Appellants'
applications turns in part on whether they are "arriving aliens"
not subject to certain conditions. "Arriving Alien," as defined
by regulation, includes noncitizens who apply for admission
"coming or attempting to come into the United States at a port-
of-entry." 8 C.F.R. § 1.2.
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"arriving aliens" under the MTINA. Appellants filed a cross motion
for judgment on the pleadings. On March 2, 2021, the district
court denied the government's motion to dismiss and granted
Appellants' cross motion for judgment on the pleadings, ruling
that USCIS had jurisdiction and ordering the agency to reopen the
applications and adjudicate them on the merits.
The government timely appealed each of the six cases to
this court, where the same were also consolidated. Prior to any
briefing, the government voluntarily dismissed its appeal.
Subsequently, Appellants filed timely motions before the district
court requesting attorney's fees under the EAJA for both district
and appellate court proceedings. The district court held that the
government's position throughout the district court litigation was
substantially justified and denied EAJA fees for the same. The
district court, however, found no justification for the
government's appeal and thus granted EAJA fees for the short-lived
appellate proceedings, but at a fraction of the requested sum upon
a finding that the total number of hours billed included duplicate
listings.
Appellants challenge the district court's EAJA rulings
for both the district court and appellate proceedings and seek an
award of $179,480 for district court work and a total award of
$12,663.92 for appellate work.
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II. Standard of Review
"We review a district court's determinations under the
EAJA for abuse of discretion." Aronov v. Napolitano, 562 F.3d 84,
88 (1st Cir. 2009). We will find an abuse of discretion "when a
material factor deserving significant weight is ignored, when an
improper factor was relied upon, or when all proper and no improper
factors are assessed, but the [district] court makes a serious
mistake in weighing them." Casa Marie Hogar Geriatrico, Inc. v.
Rivera-Santos, 38 F.3d 615, 618 (1st Cir. 1994) (quoting Foster v.
Mydas Assoc., Inc., 943 F.2d 139, 143 (1st Cir. 1991)).
III. Discussion
As a general principle, each party before the court is
usually responsible for its own attorney's fees. See Castañeda-
Castillo v. Holder, 723 F.3d 48, 56 (1st Cir. 2013). The EAJA is
an exception to this traditional "American rule." See Aronov, 562
F.3d at 88; 28 U.S.C. § 2412. The EAJA provides in pertinent part
that:
a court shall award to a prevailing party
other than the United States fees and other
expenses . . . incurred by that party in any
civil action (other than cases sounding in
tort), including proceedings for judicial
review of agency action, brought by or against
the United States in any court having
jurisdiction of that action, unless the court
finds that the position of the United States
was substantially justified or that special
circumstances make an award unjust.
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28 U.S.C. § 2412(d)(1)(A) (emphasis added). The statute's purpose
is "to ensure that certain individuals . . . will not be deterred
from seeking review of, or defending against, unjustified
governmental action because of the expense involved." Aronov, 562
F.3d at 88 (omission in original) (quoting Scarborough v. Principi,
541 U.S. 401, 407 (2004)). Not only is the EAJA a fee shifting
statute, but it is also a waiver of the government's sovereign
immunity "and so must be construed strictly in favor of the
government." Id.Here, there is no dispute that Appellants prevailed.
Hence, the issue at bar is whether the government was
"substantially justified" in the underlying litigation, which the
government must establish by a preponderance of the evidence.
Saysana v. Gillen, 614 F.3d 1, 5 (1st Cir. 2010).
We have held that the government is "substantially
justified" if "it has a reasonable basis in law and fact" for its
position, Aronov, 562 F.3d at 94 (quoting Pierce v. Underwood, 487
U.S. 552, 566 n.2 (1988)), or put another way, if "a reasonable
person could think [the government's position] correct," Dantran,
Inc. v. U.S. Dep't of Lab., 246 F.3d 36, 41 (1st Cir. 2001) (quoting
Pierce, 487 U.S. at 566 n.2). "To be 'substantially justified,'
it is not necessary for the [g]overnment's position to be
'justified to a high degree'; rather, the [g]overnment meets this
standard if its position is 'justified in substance or in the
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main.'" Saysana, 614 F.3d at 5 (quoting Pierce, 487 U.S. at 565).
Further, even if the government failed on the merits, its position
could still have been substantially justified. See id.; Aronov,
562 F.3d at 94. When the issue is a novel one with little to no
precedent, courts have been hesitant to find the government's
position not substantially justified. Saysana, 614 F.3d at 6;
Schock v. United States, 254 F.3d 1, 5-6 (1st Cir. 2001) (outlining
certain factors courts may consider when evaluating the
government's position). Finally, "in evaluating the
[g]overnment's position, we must 'arrive at one conclusion that
simultaneously encompasses and accommodates the entire civil
action.'" Saysana, 614 F.3d at 5 (quoting Dantran, 246 F.3d at
41).
We now turn to the question before us: whether the
district court abused its discretion in finding the government's
position substantially justified.2 We evaluate the government's
pre-litigation and litigation positions holistically. Id.Appellants argue that the government's position was not
substantially justified because it departed from decades of prior
As outlined above, the EAJA provides that a court shall
2
award fees to a prevailing party unless "the position of the United
States was substantially justified or that special circumstances
make an award unjust." 28 U.S.C. § 2412(d)(1)(A). Because we
agree with the district court that the government's position was
substantially justified, we need not reach whether special
circumstances were present here. McLaughlin, 767 F.3d at 117.
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interpretation and had no basis in law of fact. They further posit
that the government's attempt to justify a "fabricated legal
theory" during the litigation stage was "absurd." The government,
on the other hand, contends that the arguments it presented before
the district court were novel, based on the plain language of the
MTINA, supported by recent court decisions dating back to 2014,
and had never been addressed by the First Circuit, and that the
overwhelming number of decisions from other courts adopting its
position support the denial of EAJA fees.
1. District Court Proceedings
The district court identified two reasons for concluding
that the government was substantially justified. First, the legal
arguments raised were novel and have not yet been addressed by the
First Circuit. Second, it observed that, although it disagreed
with the government's position, that position was previously
upheld by other federal courts, including one within the District
of Massachusetts. In sum, the district court found that the
government had presented a substantial question of law. Because
it assessed the factors in Schock and weighed them appropriately,
we conclude it did not abuse its discretion in denying Appellants
attorney's fees for the proceedings before it.
An award of EAJA fees foremost was not warranted in this
instance given that the issue before the district court was novel
and of first impression within the First Circuit. When the
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district court addressed whether travel on advance parole rendered
Appellants "arriving aliens," such that USCIS would have
jurisdiction over Appellants' applications to adjust status,
caselaw was scant. Moreover, as Appellants' counsel admitted to
the district court, not a single case in the country had been
issued favoring their arguments. When an issue before the court
is novel and has little to no precedent, "courts have found that
an award of EAJA fees is not warranted." Saysana, 614 F.3d at 6.
Whether travel on advance parole rendered Appellants arriving
aliens was then and remains an issue of first impression in this
circuit.3 As such, "it was appropriate for the government to seek
specific instruction from the [district] court on th[is] issue[]."
Id. (second and third alterations in the original) (quoting De
Allende v. Baker, 891 F.2d 7, 13 (1st Cir. 1989)). Moreover, the
only district court within the First Circuit to address the key
issue agreed that the government's position on the merits is
correct. See Pineda v. Wolf, No. 19-11201, 2020 WL 4559936, at *1
(D. Mass. May 13, 2020).
Moreover, the district court did not abuse its
discretion in denying fees since "a string of court decisions going
either way" can indicate that the government's position is
substantially justified. Schock, 254 F.3d at 6. And that was
3 We have yet to address the merits of this issue, and do not
do so now.
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precisely the case here where a number of courts have issued
reasoned opinions agreeing with the government. For instance, the
Fifth Circuit recently addressed -- before the district court here
denied fees -- the underlying issue in a case mirroring this one
and held that the Appellants in that case, who returned from
foreign travel, were not "arriving aliens" when they submitted
their applications for adjustment of status and thus that USCIS
lacked jurisdiction over said applications. Duarte v. Mayorkas,
27 F.4th 1044, 1057-1061 (5th Cir. 2022). Similarly, another court
within the District of Massachusetts had previously held that the
plaintiff in that case was not an "arriving alien" after he
traveled outside the United States on advance parole and was
inspected upon return. Pineda, 2020 WL 4559936, at *1. Likewise,
a court in the District of Columbia held that the petitioner did
not meet the definition of "arriving alien" after traveling on
advance parole and returning to the United States and thus that
USCIS could not adjudicate his application to adjust status.
Barrera v. U.S. Dep't of Homeland Sec., No. 20-cv-02395, 2022 WL
103307, at *1, *3 (D.D.C. Jan. 11, 2022). This jurisprudence makes
it clear that the government's position was, and continues to be,
substantially justified.
Appellants posit that the fact that other courts reached
different conclusions based on the same facts "does not justify
the illogical legal position taken by the government." We are
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unpersuaded. On the contrary, the fact that the issue here has
been decided in the government's favor by several courts indicates
that there is uncertainty on whether TPS holders traveling on
advance parole can be classified as "arriving aliens" upon reentry
to the country.
The fact that the government's claims failed on the
merits does not dispose of the issue of substantial justification.
Schock, 254 F.3d at 5. The government's position, when viewed
holistically, was indeed justified. Thus, we discern no abuse of
discretion in the denial of EAJA fees related to the challenge
before the district court.
2. Appellate Proceedings
We now turn to Appellants' remaining challenge. The
district court granted Appellants an EAJA award for the appellate
proceedings abandoned by the government. Appellants argue,
however, that the district court erred in its calculation of the
award as it drastically reduced the same to $4,228 from the $28,450
sought.4 The district court justified the reduction based on
incongruities between the number of hours billed and the duplicate
work done across the six identical appeals. Appellants argue that
the district court should have awarded them a higher sum and in
4 The district court also set an hourly rate of $226.34 per
hour for Appellants' attorney's legal work (the same attorney
worked on the six appeals). The adjusted hourly rate set by the
district court is not being contested.
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fact erred in calculating the time their attorney spent on each
one of the six appeals, which they argue was not duplicative and
essential for each. We again review for abuse of discretion.
McLaughlin, 767 F.3d at 117.
District courts have considerable leeway in selecting
fair and reasonable attorney's fees particularly when the district
court "has presided over [the] case from its inception" and has
had the opportunity to evaluate the attorney's diligence and
expertise firsthand. Pérez-Sosa v. Garland, 22 F.4th 312, 326
(1st Cir. 2022). An attorney's statement must support the fees
requested and it is within the district court's broad discretion
to "separat[e] wheat from chaff." Torres-Rivera v. O'Neill-
Cancel, 524 F.3d 331, 340 (1st Cir. 2008). Nothing in the record
urges us to find that the district court abused its discretion in
the reduction at issue here.
Appellants suggest that since counsel is a solo
practitioner who lacks the staffing the government has, the
"performance of multiple tasks is necessary for survival" in order
to "properly manage six . . . separate files." That may be so,
but we see no abuse of discretion in the district court's reduction
of the award of attorney's fees. Here, for example, the same
counsel represented all six Appellants on appeal, with each one of
the six appeals having the same notice of appeal, yet billed 4.8
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hours total -- that is, almost an hour for each -- to review the
government's almost identical notices of appeal.
The district court meticulously explained its decision
to reduce the time entries and to shrink the overall fees related
to the government's appeal on the ground that Appellants failed to
prove the reasonableness of the hours claimed. Torres-Rivera, 524
F.3d at 340. Where the district court could not distinguish
unreasonably duplicated fees from others that had been reasonably
incurred in each case, it limited the fee award to the time spent
by counsel on the lead case and the separate phone calls to each
Appellant. The district court, thus, did not abuse its discretion
in determining whether the hours were redundant and/or excessive.
IV. Conclusion
We affirm.
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