Muhur, Yordanos M. v. Ashcroft, John ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3597
YORDANOS MUHUR,
Petitioner,
v.
JOHN D. ASHCROFT, Attorney General
of the United States,
Respondent.
____________
On Petition for Review of an Order of
the Board of Immigration Appeals.
No. A 77 383 237
____________
SUBMITTED MAY 20, 2004—DECIDED AUGUST 24, 2004
____________
Before FLAUM, Chief Judge, and POSNER and WILLIAMS,
Circuit Judges.
POSNER, Circuit Judge. Yordanos Muhur, who succeeded
in obtaining from us a reversal of her removal order and the
remand of her case for asylum to the immigration service,
355 F.3d 958 (7th Cir. 2004), now seeks an award of attor-
neys’ fees and costs under the Equal Access to Justice Act,
28 U.S.C. § 2412(d)(1)(A). The Act provides that a court shall
award the “prevailing party” his attorneys’ fees and other
expenses “unless the court finds that the position of the
2 No. 02-3597
United States was substantially justified or that special
circumstances make an award unjust.”
The petition presents several issues. The first is whether
Muhur was a “prevailing party,” since all she got from us
was a remand for reconsideration of her asylum application;
we did not order that she be granted asylum. In the context
of social security, the Supreme Court has ruled that an
applicant who persuades the court of appeals to set aside
the Social Security Administration’s denial of benefits is a
prevailing party in the judicial proceeding because nothing
remains to be done by the court, which having found error
has finished with the case and relinquished jurisdiction.
Shalala v. Schaefer, 509 U.S. 292, 300-02 (1993). It is different if
the remand is merely to enable the agency to consider new
evidence, because in that case the judicial proceeding is merely
suspended. Former Employees of Motorola Ceramic Products v.
United States, 336 F.3d 1360, 1366 (Fed. Cir. 2003), while in the
former case the applicant incurred additional legal expense
as a result of the agency’s error—a material consideration,
as the cases make clear, Krecioch v. United States, 316 F.3d
684, 688 (7th Cir. 2003); Kopunec v. Nelson, 801 F.2d 1226,
1229 (10th Cir. 1986). We thus agree with Rueda-Menicucci v.
INS, 132 F.3d 493, 495 (9th Cir. 1997), that when a court of
appeals, as in this case, reverses a denial of asylum because
the denial was erroneous, and sends the case back to the
immigration service for further proceedings, the applicant is
a prevailing party; for like the Ninth Circuit we cannot see
any difference between such a case and Schaefer.
The next question is whether the government’s position,
in defending the denial of asylum to Muhur, “was substan-
tially justified or . . . special circumstances make an award
unjust.” The government cites us to no special circumstances,
and offers merely a footnote of argument that it had a sub-
stantial justification for the position it took. A glance at our
No. 02-3597 3
opinion granting Muhur’s petition for review will explain
the government’s diffidence. We held that the immigration
judge had committed a “clear error” in ruling that Muhur
need not fear persecution on account of her being a Jehovah’s
Witness if she was returned to Eritrea, which persecutes
Jehovah’s Witnesses, because as long as she practiced her
religion covertly the authorities would not discover that she
was a Jehovah’s Witness and they would therefore leave her
alone. 355 F.3d at 960-61. By this token, we remarked, ancient
Christians were not persecuted by the Roman Empire because
they were safe as long as they practiced their religion in se-
cret. In opposing the fee petition all the government say on
this score is that Muhur did not have a well-founded fear of
persecution because she was not “a known practitioner” of her
religion. True—but it was because she hadn't become a
Jehovah’s Witness until years after leaving Eritrea that the
Eritrean authorities didn’t know that she is a Jehovah’s
Witness. She would become a “known practitioner” soon
enough if upon her forced return to Eritrea she tried to
practice her religion openly. All this assumes, of course, that
she is a Jehovah’s Witness, which the government does not
concede and is one of the questions open on remand. But
that does not affect her status as a prevailing party in this
court.
Against this the government says only that its “argument
that Ms. Muhur did not have a well-founded fear of pers-
ecution on account of her professed religion because she was
not a known practitioner of that religion was supported by
case law in the analogous area of political opinion,” citing
Keo v. Ashcroft, 341 F.3d 57, 60 (1st Cir. 2003), and Disu v.
Aschcroft, 338 F.3d 13, 18 (1st Cir. 2003). In Keo the question
was whether the Cambodian authorities knew that Keo had
once been a secret member of a political party; there was no
suggestion that he wanted to engage in open, or for that
matter any, political activities if he returned to Cambodia.
4 No. 02-3597
As for Disu, he “was a low-level volunteer in a political
organization who did nothing to assume a prominent role
in opposition to the government.” There was no suggestion
that he wanted to assume a prominent role that might invite
persecution. Neither was a case in which the asylum seeker
could have avoided persecution only by concealing his
political views. But Muhur (always assuming she really is a
Jehovah’s Witness) could avoid persecution only by conceal-
ing her religious beliefs and observances.
The last question is the amount of attorneys’ fees and court
costs to which Muhur is entitled. The amounts sought, after
certain adjustments properly urged by the government, are
modest: $9,439 in attorneys’ fees and $459.52 in costs. How-
ever, the EAJA caps hourly rates at $125 “unless the court
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), and Muhur seeks reimbursement at rates
ranging from $60 to $225 an hour. Pierce v. Underwood, 487
U.S. 552, 572 (1988), held that the statutory ceiling can be
pierced for attorneys having “some distinctive knowledge
or specialized skill needful for the litigation in question”
and gave as examples attorneys having a practice specialty
such as patent law and attorneys who use a knowledge of
foreign laws or languages in their practice.
The Fifth Circuit has held that immigration practice, un-
like patent practice, is not a practice specialty for this pur-
pose. Perales v. Casillas, 950 F.2d 1066, 1078-79 (5th Cir. 1992).
But we interpret this to mean merely that immigration lawyers
are not ipso facto entitled to fees above the statutory ceiling.
Fair enough, but the cases pierce the ceiling for immigration
lawyers who bring relevant expertise to a case, such as
knowledge of foreign cultures or of particular, esoteric nooks
and crannies of immigration law, in which such expertise is
No. 02-3597 5
needed to give the alien a fair shot at prevailing. E.g.,
Nwaokolo v. INS, 314 F.3d 303 (7th Cir. 2002) (per curiam);
Jideonwo v. INS, 224 F.3d 692 (7th Cir. 2000); Nasir v. INS, 122
F.3d 484 (7th Cir. 1997). The immigration laws are im-
mensely complex (perhaps second only in complexity to the
law of postconviction remedies) and their application often
requires knowledge of foreign cultures unfamiliar to most
Americans, as in this case. The top rate sought here, $225 an
hour for Herbert Igbanugo, is modest by current standards
of attorney compensation and the government does not
object to his rate, noting the “extensive argument in support
of the claimed rate” for him. It does object to the $190 an
hour sought for the lawyer, Riddhi Jani, who put in the
most hours on the case. We cannot find anything in the
papers submitted by Muhur concerning Jani’s qualifications,
experience, special knowledge, standard billing rates, or
anything else that might bear on her entitlement to a fee in
excess of the statutory ceiling. We shall therefore reduce her
hourly fee to the ceiling. With this adjustment, the petitioner
is awarded attorneys’ fees of $7,053.50 along with costs of
$459.52, for a total of $7,513.02.
SO ORDERED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-24-04