Ramon Amezola-Garcia v. Loretta E. Lynch

NOT RECOMMENDED FOR PUBLICATION
File Name: 16a0510n.06
FILED
No. 15-3328 Aug 26, 2016
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
RAMON AMEZOLA-GARCIA, aka Jose Rivera- )
Camarena, )
)
Petitioner, )
) ON PETITION FOR REVIEW
v. ) FROM THE UNITED STATES
) BOARD OF IMMIGRATION
LORETTA E. LYNCH, U.S. Attorney General, ) APPEALS
)
Respondent. )
)
BEFORE: BOGGS and ROGERS, Circuit Judges, and BERG, District Judge.*
ROGERS, Circuit Judge. Ramon Amezola-Garcia (“Amezola”), a Mexican citizen
whose final removal order we recently upheld along with a remand for a voluntary-departure
determination, requests attorney fees under the Equal Access to Justice Act (“EAJA”). The fees
are not warranted under that act, however, because the Government’s position, if partially
unjustified, was as a whole justified.
Amezola, who was ordered removed for being present in the United States without
having been admitted or paroled, sought judicial review of the Board of Immigration Appeals’s
(“BIA’s”) denial of his applications for withholding of removal and voluntary departure. He
primarily argued that the BIA erred by sending his case to a single-member panel for review
rather than to a three-member panel, by rejecting his argument that his familial relationship with
*
The Honorable Judge Terrence Berg, United States District Judge for the Eastern District of Michigan, sitting by
designation.
No. 15-3328, Amezola-Garcia v. Lynch
his murdered brother-in-law will subject him to future persecution in Mexico, and by
mischaracterizing the record in its voluntary-departure determination. While the Government
opposed most of Amezola’s petition, it conceded on judicial review that the BIA’s interpretation
of the record in its voluntary-departure determination was problematic and warranted a remand.
In light of the Government’s concession, we remanded the voluntary-departure determination to
the BIA for reconsideration of its decision. We held that the remainder of Amezola’s petition
was without merit. Amezola now applies for attorney fees under the EAJA, 28 U.S.C. § 2412.
In order to recover attorneys’ fees under the EAJA, the applicant must satisfy four
requirements:
(1) that the fee applicant be a prevailing party; (2) that the government’s
position not be substantially justified; (3) that no special circumstances make
an award unjust; and (4) that the fee applicant file the requisite application
within thirty days of final judgment.
Townsend v. Soc. Sec. Admin., 486 F.3d 127, 129–30 (6th Cir. 2007) (citing Comm'r, INS v.
Jean, 496 U.S. 154, 158 (1990)). We deny the motion for fees for failure to meet the second
requirement, and do not address the remaining requirements.
Assuming that the Government’s pre-litigation position on voluntary departure was not
justified, the fact that the remainder of the Government’s case was justified renders the
Government’s position in this case, as a whole, substantially justified. In order for a party to
recover attorneys’ fees under the EAJA, the Government’s position “as a whole” must not have
been substantially justified. 28 U.S.C. § 2412(d)(1)(A); E.E.O.C. v. Memphis Health Ctr., Inc.,
526 F. App’x 607, 615 (6th Cir. 2013). Further, because the Government’s “position”
comprehends both the underlying agency action and the current litigation, Delta Eng’g v. United
States, 41 F.3d 259, 261 (6th Cir. 1994) (citing 28 U.S.C. § 2412(d)(2)(D)), the position that the
Government took when arguing before the BIA is fair game.
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Amezola states that the government’s pre-litigation position was substantially unjustified,
as evidenced by the fact that the Government conceded on appeal that remand was warranted.
While Amezola is unhelpful in explaining why the Government’s pre-litigation position was
unjustified (as he does not provide any citations to the administrative record highlighting the
Government’s position below), we assume that the Government’s pre-litigation position
regarding voluntary departure was, in fact, unjustified.
However, the Government’s position “as a whole” must be examined when determining
the “substantial justification” question, and an EAJA application fails if the multiple claims
involved in the case are “distinct” and if the more “prominent” claims were substantially
justified. Memphis Health Ctr., 526 F. App’x at 615 (citing United States v. Heavrin, 330 F.3d
723, 730 (6th Cir. 2003)). No Sixth Circuit case elaborates on the “as a whole” standard adopted
by the Memphis Health Center court, but two points indicate that the Government’s position “as
a whole” was substantially justified. First, the majority of the Government’s arguments were
justified, as the Government successfully argued against Amezola’s request for a three-member
panel and his withholding-of-removal application. See slip op. at 5–11. Further, these other
claims are quite “distinct” from the voluntary-departure issue. The procedural “three-member
panel versus one-member panel” issue is a matter of law entirely separate from the issue of
whether Amezola had sufficient good moral character to merit voluntary departure.
Additionally, the question of whether Amezola demonstrated a clear probability of future
persecution sufficient to warrant withholding of removal is likewise distinct from the issue of
whether he has good moral character. These two other claims were also more “prominent” than
the voluntary-departure issue. The voluntary-departure issue made up only seven pages out of
the twenty-five pages of argument in his brief, and it was the last argument made. Second, the
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Government’s litigation position before this court was entirely justified. Rather than continuing
to advance an incorrect interpretation of the record, the Government conceded error. Amezola-
Garcia suggests that the Government’s position on appeal was substantially unjustified because it
failed to include in its brief’s table of contents the section in which it conceded error. Such
conduct hardly rises to the level of being “substantially unjustified,” as this court was obviously
able to locate the Government’s concession in its brief.
While Memphis Health Center is unpublished, its reasoning as to why the “as a whole”
standard applies is persuasive. The Memphis Health Center court explained that this court
previously adopted the “as a whole” standard in a published case when it was interpreting “the
position of the [United States]” language in the Hyde Amendment, which is subject to the
procedures and limitations of the EAJA. 526 F. App’x at 615 & n.5 (citing United States v.
Heavrin, 330 F.3d 723 (6th Cir. 2003)). Further, the Heavrin court specifically stated that “the
term ‘position’ should be accorded the same meaning under the Hyde Amendment as it is in the
EAJA.” 330 F.3d at 730. Thus, given this court’s published holding in Heavrin, the “as a
whole” standard applies.
The motion for attorney fees under the EAJA is accordingly denied.
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