Potdar, Madhumilind v. Holder Eric H.

In the
United States Court of Appeals
For the Seventh Circuit
No. 06-2441
M ADHUMILIND P OTDAR,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney
General of the United States,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A93-042-676
O N M OTION FOR A TTORNEYS’ F EES AND C OSTS
O CTOBER 21, 2009
Before R IPPLE, M ANION and K ANNE, Circuit Judges.
R IPPLE, Circuit Judge. In a previous opinion, we granted
the petition for review of an order of the Board of Immigra-
tion Appeals (“BIA” or “Board”) filed by Madhumilind
Potdar. The path by which Mr. Potdar reached this court
is a long and tortuous one, recounted in detail in two
prior opinions of this court, see Potdar v. Keisler, 505 F.3d
2 No. 06-2441
680 (7th Cir. 2007) (“Potdar I”); Potdar v. Mukasey, 550 F.3d
594 (7th Cir. 2007) (“Potdar II”); we presume familiarity
with these prior decisions. Currently before the court is
Mr. Potdar’s motion for attorneys’ fees and costs. For the
reasons set forth in this opinion, we deny the petition.
A.
Petitioners in immigration cases are eligible for attor-
neys’ fees under the Equal Access to Justice Act, 28 U.S.C.
§ 2412 (“EAJA”). To be eligible for an award of fees, “a
petitioner must show that: (1) he was a prevailing party;
(2) the Government’s position was not substantially
justified; (3) there existed no special circumstances that
would make an award unjust; and (4) he filed a timely
and complete application for fees.” Kholyavskiy v. Holder,
561 F.3d 689, 690 (7th Cir. 2009) (citations omitted). Here,
Mr. Potdar timely filed a complete petition for fees and
costs. Additionally, the Government does not dispute
that Mr. Potdar is a prevailing party. See Respondent’s
Opposition at 7 n.1. The Government also does not
claim that “special circumstances [exist] that would
make an award unjust.” Kholyavskiy, 561 F.3d at 690.
Consequently, the only issue we must resolve is whether
the Government’s position was substantially justified,
an issue on which the Government bears the burden
of proof. Floroiu v. Gonzales, 498 F.3d 746, 748 (7th Cir.
2007); Golembiewski v. Barnhart, 382 F.3d 721, 724 (7th Cir.
No. 06-2441 3
2004).1
To be substantially justified, the Government’s position
must be “justified in substance or in the main” or “justified
to a degree that could satisfy a reasonable person.” Pierce
1
We previously have observed that “[t]here is some question
whether, in the context of immigration proceedings, the ‘posi-
tion’ of the Government is limited to the arguments made
during litigation or also includes the underlying decision of
the BIA.” Kholyavskiy v. Holder, 561 F.3d 689, 691 n.3 (7th Cir.
2009). We explained in Kholyavskiy that
[i]n other contexts, we have held that “[t]he ‘position of the
United States’ includes the underlying agency conduct as
well as the agency’s litigation position.” Marcus v. Shalala, 17
F.3d 1033, 1036 (7th Cir. 1994). Although other circuits have
extended this rationale to the immigration context, see, e.g.,
Thangaraja v. Gonzales, 428 F.3d 870, 873 (9th Cir. 2005),
we have not had an occasion to address directly the ap-
plicability of this rule to immigration cases. See Tchemkou v.
Mukasey, 517 F.3d 506, 509 n.1 (7th Cir. 2008).
Id. We did not have to reach the issue in Kholyavskiy because, in
that case, “the agency’s litigation position d[id] not differ in
material respects from the approach taken by the BIA.” Id.Here, we need not address the issue for another reason:
Regardless of whether we consider the underlying BIA decision
as part of the position of the Government, we still reach the
conclusion that the Government’s position was substantially
justified. However, because Mr. Potdar has included the BIA’s
decision as one of the bases for his argument, we assume, for
the purposes of our analysis, that this is part of the position of
the Government.
4 No. 06-2441
v. Underwood, 487 U.S. 552, 565 (1988). The Government
meets this burden if: “(1) it had a reasonable basis in
truth for the facts alleged, (2) it had a reasonable basis in
law for the theory propounded, and (3) there was a rea-
sonable connection between the facts alleged and the
theory propounded.” Kholyavskiy, 561 F.3d at 691 (citing
Conrad v. Barnhart, 434 F.3d 987, 990 (7th Cir. 2006)). The
“EAJA is not an automatic fee-shifting statute in favor of
litigants who prevail against the government,” Zapon v.
United States Dep’t of Justice, 53 F.3d 283, 284 (9th Cir. 1995);
“[t]he outcome of a case is not conclusive evidence of
the justification for the government’s position,” United
States v. Hallmark Const. Co., 200 F.3d 1076, 1079 (7th Cir.
2000). More specific to the immigration context, a deter-
mination that part of the BIA’s decision was not sup-
ported “by substantial evidence does not foreclose the
possibility that the position was substantially justified.”
Howard v. Barnhart, 376 F.3d 551, 554 (6th Cir. 2004). Rather,
we must consider “the factual and legal support for the
government’s position throughout the entire proceeding.”
Hallmark Constr. Co., 200 F.3d at 1080.
As we observed in Kholyavskiy, we have identified some
relevant considerations for evaluating the Government’s
position:
For instance, courts are more likely to conclude that
the Government’s position is substantially justified
if it is supported by our precedent or that of other
courts. See Krecioch v. United States, 316 F.3d 684, 689
(7th Cir. 2003) (finding the Government’s position to
be substantially justified in part because it was “sup-
No. 06-2441 5
ported by precedent from other federal circuits”).
Moreover, “uncertainty in the law arising from con-
flicting authority or the novelty of the question
weighs in the government’s favor when analyzing the
reasonableness of the government’s litigation posi-
tion.” Marcus v. Shalala, 17 F.3d 1033, 1037 (7th Cir.
1994). By contrast, “[s]trong language against the
government’s position in an opinion assessing the
merits of a key issue is evidence in support of an award
of EAJA fees,” Golembiewski, 382 F.3d at 724, as is
wholesale rejection of the Government’s arguments by
the merits panel, see id. at 725 (awarding fees and
observing that “[w]e did not reject any issue raised by
the plaintiff on appeal nor did we adopt or affirm
any position taken by the Commissioner”).
561 F.3d at 691-92.
B.
The Supreme Court has cautioned that we must not
treat different phases of litigation as “atomized line-
items” for purposes of determining whether the Govern-
ment’s position was substantially justified. Commissioner,
INS v. Jean, 496 U.S. 154, 162 (1990). However, for ease
of analysis, we shall review separately the different
phases of the present litigation and the parties’ approaches
at each stage. After doing so, we then shall consider
whether the Government’s position “as an inclusive
whole,” id., was substantially justified. We begin our
review with Mr. Potdar’s motion to reopen before the
BIA. Mr. Potdar does not seek fees for any proceeding pre-
6 No. 06-2441
dating the filing of the petition for review with this court.
However, because many of the arguments and decisions
made during the administrative process frame the argu-
ments made to this court, we recount those as well.
1. Administrative Proceedings
In April 2003, the BIA determined that Mr. Potdar was
excludable. In its decision affirming the Immigration
Judge (“IJ”), the BIA rejected several grounds of exclusion
relied upon by the IJ; however, it did find that, “because
Mr. Potdar was seeking legalization, . . . he had immigrant
intent, and, therefore, he was excludable based on his
failure to present an immigrant visa.” Potdar II, 550 F.3d
at 595. Mr. Potdar did not appeal from that order,
but pursued other avenues of relief. “Specifically, his
employer sponsored him for an employment-based visa
and submitted a labor certification application on
his behalf. After this application was approved, the
employer petitioned for an immigrant visa on his
behalf, and Mr. Potdar applied for adjustment of status.”
Id. At that point, Mr. Potdar moved to reopen pro-
ceedings before the BIA so that his pending applications
could be processed by the District Director. His pro se
motion requested that “the board . . . re open [sic] my case
and consider these new findings. Further, I would
request the board to grant a stay of removal until my
Petition for Alien Worker (form I-140) and Application to
Adjust to Permanent Resident Status (form I485) are
adjudicated by the BCIS.” A.R.61. The motion went unop-
posed, and, on November 7, 2003, the BIA “grant[ed] the
No. 06-2441 7
motion to reopen and remand[ed] the case for further
proceedings.” A.R.56.
In the reopened proceedings, Mr. Potdar’s counsel
charted a new course. Instead of arguing in support of a
stay to allow the processing of his application for ad-
justment by the District Director, he “renew[ed]” the
motion that he had made before the prior IJ “to dismiss
the charges of excludability having been charged against
him and terminate the instant exclusion proceedings.”
A.R.19. Armed with documents that could not be located
during his initial proceedings, specifically his grant of
advance parole, Mr. Potdar requested that “the
instant proceedings in Exclusion be terminated and the
applicants [sic] admission as a parolee be reinstated
pending adjudication of his Legalization application or
any other application for status pending with the [ United
States Citizenship and Immigration Services (“USCIS”)]
office.” Id. at 20. The Government responded that,
because the District Director had “revoked the ap-
plicant’s advance parole,” he “was properly placed into
exclusion proceedings.” A.R.12. The Government, there-
fore, requested that the motion to terminate be denied.
In considering the parties’ filings, the IJ mistakenly
characterized Mr. Potdar’s motion to reopen as “re-
questing Adjustment of Status.” A.R.5. The immigration
court determined that it did not have authority to
consider such a request and certified the record to the
Board sua sponte, posing the following questions:
“(1) [W]as the grant of the applicant’s motion for ad-
justment appropriate; (2) Is the denial of Adjustment of
Status is [sic] warranted as a matter of law.” A.R.6. The IJ
8 No. 06-2441
entered this order on July 8, 2005. Thereafter, Mr. Potdar
did not seek to apprise either the IJ or the Board that the
IJ had misunderstood his request.
Over eight months later, the Board considered the
certified record and questions. It accepted the IJ’s charac-
terization of Mr. Potdar’s August 25, 2003 filing as
“seeking an opportunity to apply for adjustment of
status.” A.R.2. The Board agreed with the IJ that he lacked
authority to grant adjustment of status in exclusion
proceedings. It therefore vacated its prior decision and
denied the motion to reopen.
2. Petition for Review
Mr. Potdar petitioned for review. Before this court,
Mr. Potdar raised a myriad of issues challenging the IJ’s
failure to grant the motion to terminate and chal-
lenging aspects of the Board’s initial determination of
excludability 2 —a determination for which Mr. Potdar had
2
Specifically, as set forth in Mr. Potdar’s opening brief, the
“ISSUES PRESENTED FOR REVIEW” were:
I. Whether or not this court has jurisdiction under the
REAL ID Act to consider whether the Board acted arbi-
trarily in refusing to terminate exclusion proceedings.
II. Whether or not Petitioner has presented substantial
legal questions that are within this courts jurisdiction to
review under the REAL ID Act.
A. Whether or not the Board correctly concluded
that Petitioner was “an arriving alien.”
(continued...)
No. 06-2441 9
not sought review. However, Mr. Potdar did not raise as
a separate issue the fact that the Board misconstrued
the nature and purpose of his motion to reopen.3
In response, the Government argued that the issues
resolved by the Board’s April 2003 order were not
properly before the court. Instead, the Government main-
tained that our review should be limited to issues pre-
sented by the denial of the motion to reopen. The Gov-
ernment went on to argue that the Board was correct that
it did not have jurisdiction to consider an application
for adjustment of status by an arriving alien and that
Mr. Potdar fell within that category.
2
(...continued)
B. Whether or not the Board erred in failing to
order Petitioner’s admission as a legalization ap-
plication nunc pro tunc to August 10, 1996.
III. Whether or not the Board erred in refusing to recog-
nize the significance of the advance parole document that
Petitioner was unable to present in the original proceedings.
IV. Whether or not the Board’s conclusion that it lacked
jurisdiction to consider Petitioner’s application for ad-
justment of status filed under § 245(i) was erroneous as
a matter of law.
V. Whether or not the Petitioner was given an opportu-
nity to present evidence to rebut the exclusion charge
lodge under § 212(a)(7)(A)(i)(I).
Petitioner’s Br. 2.
3
Mr. Potdar mentions the IJ’s misconception in passing,
but only as support for other arguments. See Reply Br. 6.
10 No. 06-2441
After considering the parties’ submissions, we agreed
with the Government that “the Board’s order reopening
the case did not resurrect jurisdiction over the issues
underlying the initial exclusion order.” Potdar I, 505 F.3d
at 683. We therefore could not consider any of the sub-
stantive challenges made to the initial exclusion order.
However, we did not end our analysis there. Despite
only vague references in Mr. Potdar’s briefs to the IJ’s
mistake in construing the motion to reopen as one
seeking substantive relief, we did recognize that the IJ
had “misapprehended the Board’s order reopening pro-
ceedings” and further recognized that the Board had
failed to correct the error when the IJ certified the record
back to the Board. See Potdar I, 505 F.3d at 684. Never-
theless, because Mr. Potdar essentially was requesting
a continuance and because the grant of a continuance
was discretionary, we held that, after our decision in Ali
v. Gonzales, 502 F.3d 659 (7th Cir. 2007), we did not have
jurisdiction to review the denial of this request.
3. Petition for Rehearing
Mr. Potdar then petitioned for rehearing. While ac-
knowledging that Ali generally barred review of the
denial of motions to continue, Mr. Potdar noted that Ali
also had preserved an exception, set forth in Subhan v.
Ashcroft, 383 F.3d 591 (7th Cir. 2004), to the jurisdictional
bar. Subhan preceded Ali and held that, even assuming that
8 U.S.C. § 1252(a)(2)(B)(ii) “generally bars judicial review of
a continuance granted by an immigration judge in a
removal proceeding,” Congress did not intend “to entitle
No. 06-2441 11
illegal aliens to seek an adjustment of status upon the
receipt of certificates from the state and federal labor
departments” and “at the same time also intend[] section
1252(a)(2)(B)(ii) to place beyond judicial review decisions
by the immigration authorities that nullif[y] the statute.”
Subhan, 383 F.3d at 595. In Subhan, we concluded that the
BIA violated 8 U.S.C. § 1255 when it denied a petitioner’s
motion to continue for purposes of seeking an adjustment
of status “without giving a reason consistent with the
statute, indeed without giving any reason.” Id. Under
such circumstances, appellate review was permissible.
When we issued our opinion in Ali, which decided the
jurisdictional issue that Subhan had assumed arguendo,
we preserved the “exception noted in Subhan.” 502 F.3d
at 664.
Ali was issued in September 2007, a month before our
opinion in Potdar I. Consequently, neither party had had
the opportunity to comment on Ali’s applicability before
we invoked its holding to dismiss Mr. Potdar’s petition. As
a corollary, neither party had had the opportunity to
address whether the Subhan exception to the general rule
articulated in Ali applied to Mr. Potdar’s application
for relief. Because, at least at first blush, Mr. Potdar’s
request could have fallen within the Subhan exception,
we granted panel rehearing and asked the parties to
brief this issue.
4. Supplemental Briefing
In response to this request, Mr. Potdar and the Gov-
ernment filed supplemental briefs addressing whether
12 No. 06-2441
Mr. Potdar’s motion to continue fell within the Subhan
exception. Mr. Potdar argued, inter alia,4 that his case
fell “squarely within Subhan, where an arbitrary
and clearly erroneous misinterpretation of Petitioner’s
motion to continue exclusion proceedings prevents Peti-
tioner from obtaining an adjudication of his application
for adjustment of status for USCIS.” Petitioner’s Supp.
Br. 4. For its part, the Government argued that Mr. Potdar’s
case did not fall within the exception set forth in Subhan
for several reasons.5 First, the Government argued,
“Potdar did not request a continuance before the agency,
but rather, he moved the agency to terminate his pro-
ceedings, a distinctly different procedural request.” Gov-
ernment’s Supp. Br. 9. The Government recounted, as we
have above, the various opportunities that Mr. Potdar
had to correct the IJ’s and the BIA’s characterization of
Mr. Potdar’s request, as one seeking a continuance as
opposed to more substantive relief. The Government
noted that it was “[m]ost telling” that “in briefing before
this Court, Potdar did not assert that he requested a
continuance before the IJ or that the IJ should have con-
sidered his request as such and thus continued the pro-
4
Mr. Potdar also criticized this court’s decision in Ali v.
Gonzales, 502 F.3d 659 (7th Cir. 2007). See Petitioner’s Supp.
Br. 10-14.
5
The Government, like Mr. Potdar, urged the court to recon-
sider its decision in Ali as “inconsistent with the relevant
statutory language[] and . . . contrary to the overwhelming
weight of precedent from other circuits.” Government’s
Supp. Br. 8 n.3.
No. 06-2441 13
ceedings.” Id. at 11. The Government also argued that
Subhan did not apply because Mr. Potdar’s “statutory
right to apply for adjustment of status was not nullified
by the agency’s action,” id. at 13; according to the Gov-
ernment, “Potdar’s application was pending at the [USCIS]
at the time he requested termination in immigration
court, and it remained pending at USCIS after the
Board’s vacatur of its reopening order,” id. at 14. Finally,
the Government observed that “subsequent events
further support the conclusion that Potdar’s statutory
right to seek adjustment of status was not nullified.” Id. at
15. Specifically, the Government noted that Mr. Potdar’s
application had proceeded through the administrative
process and ultimately had been denied. The Government
acknowledged that these documents were not part of the
administrative record, but requested that we “take
judicial notice of their effect on whether the Subhan excep-
tion applies to Potdar’s claims.” Id.
On rehearing, we declined both parties’ invitation to
revisit the holding in Ali as “outside the scope of the
grant of rehearing by this panel.” Potdar II, 550 F.3d at 597.
We also determined that the Government’s argument
that Mr. Potdar did not fall within Subhan because he
had not requested explicitly a continuance was fore-
closed by our prior decision. We rejected the Govern-
ment’s argument that Mr. Potdar was not in “jeopardy
of imminent removal after the Board entered its final
exclusion order,” Respondent’s Supp. Br. 14, noting that
“the only reason that Mr. Potdar was not deported was
that, on November 3, 2006, this court issued a stay of
14 No. 06-2441
removal pending resolution of his appeal.” Potdar II, 550
F.3d at 597. However, we did observe that there was
some merit to the Government’s contention that
Mr. Potdar was not prejudiced by the IJ’s denial of the
continuance:
The Government explains that Mr. Potdar sought a
continuance to allow his adjustment of status applica-
tion to be processed.
The basis of Mr. Potdar’s continuation request before
the BIA was to allow time for adjudication of his
legalization and other applications then pending
with the Department of Homeland Security. If, there-
fore, Mr. Potdar’s applications all have been consid-
ered and rejected, it would appear that our involve-
ment in the case is at an end. However, the Govern-
ment neither has provided us with the documenta-
tion substantiating its assertion, nor has it provided
us with authority supporting an appellate court’s use
of judicial notice in a similar situation. Consequently,
we believe the best course is to remand the matter
to the BIA. The BIA is in a better position to evaluate
the subsequent administrative actions, to determine
whether Mr. Potdar’s applications for substantive
relief have been considered and denied and, in the
first instance, to determine the appropriate disposi-
tion of this administrative proceeding if those applica-
tions have been denied.
Id. at 597-98 (internal citations omitted).
No. 06-2441 15
C.
Having reviewed the record as a whole, we now con-
sider whether the Government’s position was sub-
stantially justified. Throughout this litigation, we have
been critical only of three actions taken and arguments
made by the Government. See Golembiewski, 382 F.3d at 724(observing that “[s]trong language against the govern-
ment’s position in an opinion assessing the merits of a
key issue is evidence in support of an award of EAJA
fees”). The first was the IJ’s, and later the BIA’s, misap-
prehension of the relief Mr. Potdar was seeking. See
Potdar I, 505 F.3d at 684 (noting that “the approach [the IJ]
took to the case was not responsive to the inquiry the
Board had placed before him in granting Mr. Potdar’s
motion to reopen the proceedings”).6 This confusion,
however, was precipitated by Mr. Potdar’s newly
retained counsel.7 Once the motion to reopen was granted,
Mr. Potdar’s counsel abandoned the argument that pro-
ceedings should be stayed to allow Mr. Potdar’s applica-
tions for relief to be processed by the District Director
and, instead, argued that the exclusion proceedings
should be terminated. The IJ mistakenly believed that,
given the procedural posture of the case and the applica-
6
We again emphasize that this case does not require us to
determine whether the underlying BIA decision is an aspect
of the Government’s litigation position for purposes of the
EAJA. See supra note 1.
7
That attorney is not the same counsel currently representing
Mr. Potdar before the court.
16 No. 06-2441
tion of the law of the case doctrine, Mr. Potdar was
seeking adjustment of status in the immigration court. The
IJ therefore certified the record to the BIA for further
guidance. Although Mr. Potdar’s counsel had notice of
the IJ’s action, and despite the fact that eight months
elapsed before the BIA acted on the IJ’s certification,
Mr. Potdar’s counsel did nothing to correct the IJ’s mis-
conception. Thus, although we faulted the BIA in Potdar I
for failing to correct the IJ’s error, see Potdar I, 505 F.3d at
684, in light of counsel’s renewed efforts to terminate
exclusion proceedings and concomitant failure either to
dispel the IJ’s misconception of Mr. Potdar’s motion or to
clarify Mr. Potdar’s intent, we cannot conclude that the
BIA’s conclusion was unjustified. Cf. Kholyavskiy, 561 F.3d
at 691 (“Similarly, the fact that we found that part of the
BIA’s determination was not supported ‘by substantial
evidence does not foreclose the possibility that the
position was substantially justified.’ ” (quoting Howard v.
Barnhart, 376 F.3d 551, 554 (6th Cir. 2004))).8
Our only other two criticisms of the Government’s
position were in response to arguments made in its sup-
8
For the same reason, we believe the Government’s defense of
the BIA’s action was substantially justified. Mr. Potdar faults the
Government for defending the BIA’s error and not recognizing
“that the record clearly reflects that Potdar’s motion initially
requested reopening to stay the exclusion proceedings.” Peti-
tioner’s Reply (Attorneys’ Fees) at 1. However, whether he
recognized the error or not, even Mr. Potdar did not raise the
BIA’s mischaracterization as an independent ground for
relief in his opening brief.
No. 06-2441 17
plemental filing. We stated in Potdar II that we could not
accept the Government’s arguments that Subhan did not
apply because Mr. Potdar was not “in jeopardy of immi-
nent removal,” 550 F.3d at 597; we observed that, absent
the stay of removal that we had issued, Mr. Potdar
already would have been removed from the United
States. Additionally, we held that we could not deem
Mr. Potdar’s appeal moot based on the Government’s
representation in its brief that Mr. Potdar’s applications
for relief had been adjudicated. We acknowledged that,
if “Mr. Potdar’s applications all have been considered
and rejected, it would appear that our involvement is at
an end.” Id. at 598. However, we could not reach that
conclusion without either further documentation or
authority for the proposition that we could take
judicial notice of such events. See id.
The presence of these arguments does not render the
Government’s approach, as a whole, unreasonable. Al-
though we do not believe that there is any merit to the
Government’s claim that Mr. Potdar was not in
imminent danger of removal, this argument was only
one of many propounded by the Government in its sup-
plemental filing. In light of the entire record, we do not
believe that this one argument supplies a sufficient taint
to render the Government’s position unjustified. See
Roanoke River Basin Ass’n v. Hudson, 991 F.2d 132, 139 (4th
Cir. 1993) (observing that “a totally insupportable and
clearly unreasonable position by the government on an
inconsequential aspect of the litigation” might not
render the Government’s position unreasonable).
18 No. 06-2441
Furthermore, the Government’s argument with respect
to the mootness of Mr. Potdar’s administrative ap-
plications was relevant to the inquiry before the court.
Specifically, it addressed the question of whether the
denial of the continuance affected Mr. Potdar’s sub-
stantive rights and, therefore, placed him within the
exception to the jurisdictional bar carved out by Subhan.
With respect to this argument, we did not reject it because
it was meritless, but because the Government’s presenta-
tion was incomplete. Without additional documentation,
we could not reach the conclusion that Mr. Potdar’s
applications had been completely and finally adjudicated.
Conclusion
Although we have determined that the Government’s
response to certain events in this record were incorrect,
we believe that, given the factual scenario in which they
arose, its response was nonetheless a reasonable one.
Our review of the entire record leads us to believe that
the Government’s position was “justified in substance
or in the main.” Pierce, 487 U.S. at 565. Therefore, the fee
petition is denied.
P ETITION D ENIED
10-21-09