Yesenia Equihua-Equihua v. Jefferson Sessions

FILED
NOT FOR PUBLICATION
DEC 18 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YESENIA EQUIHUA-EQUIHUA; et al., No. 16-35125
Plaintiffs-Appellants, D.C. No. 9:14-cv-00268-DWM
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted October 5, 2017
Seattle, Washington
Before: LIPEZ,** WARDLAW, and OWENS, Circuit Judges.
Yesenia Equihua-Equihua (“Equihua”) appeals the district court’s denial of
attorney’s fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Kermit V. Lipez, United States Circuit Judge for the
First Circuit, sitting by designation.
§ 2412(d). We reverse and refer the case to the Appellate Commissioner for the
calculation of attorney’s fees and expenses.
1. Equihua is a prevailing party because the district court’s order holding
the case in abeyance was sufficient to confer judicial imprimatur on the material
alteration of the parties’ relationship. See Li v. Keisler, 505 F.3d 913, 917 (9th Cir.
2007). The order held the case in abeyance “pursuant to the stipulation of the
parties,” wherein the government promised that it would not deny Equihua’s I-485
application based on her Quilantan admission. The district court committed an
error of law by requiring express incorporation of the stipulated terms, when
incorporation by reference is sufficient. See Carbonell v. I.N.S., 429 F.3d 894,
897, 901–02 (9th Cir. 2005) (holding that a district court order stating only “[i]t is
so ordered” conferred judicial imprimatur and enforceability on an adjacent
stipulation); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589
F.3d 1027, 1031 (9th Cir. 2009) (same).
2. The Department of Homeland Security’s (“DHS”) position was not
substantially justified, and the district court abused its discretion in concluding
otherwise. A district court abuses its discretion, inter alia, when its decision rests
on irrelevant considerations. See, e.g., La Quinta Worldwide LLC v. Q.R.T.M.,
S.A. de C.V., 762 F.3d 867, 879 (9th Cir. 2014) (stating that, under abuse of
2
discretion standard, the appellate court “must consider whether the district court’s
decision was based on a consideration of the relevant factors”); United States v.
Mancinas-Flores, 588 F.3d 677, 683 (9th Cir. 2009) (citing Ins. Co. of N. Am. v.
Moore, 783 F.2d 1326, 1328 (9th Cir. 1986) (describing abuse of discretion as
requiring determination “that the district court’s exercise of discretion was based
on consideration of the relevant factors”)); Horphag Research Ltd. v. Pellegrini,
337 F.3d 1036, 1042 (9th Cir. 2003) (“Under the abuse of discretion standard, a
reviewing court cannot reverse a decision of the district court unless the reviewing
court has a definite and firm conviction that the district court committed a clear
error of judgment in the conclusion it reached upon a weighing of the relevant
factors.”); United States v. Schlette, 842 F.2d 1574, 1577 (9th Cir.), amended, 854
F.2d 359 (9th Cir. 1988) (citing with approval United States v. Kramer, 827 F.2d
1174, 1179 (8th Cir. 1987) (defining abuse of discretion as the court failing to
consider a significant factor, or “an irrelevant or improper factor is considered and
given significant weight”)).
Here, the district court relied on two irrelevant considerations. First, the
district court analyzed legal bases that the United States Citizenship and
Immigration Service (“USCIS”) could have relied upon to conclude it was not
bound by a decision from an Immigration Judge (“IJ”), rather than USCIS’ actual
3
position, which was to ignore the IJ entirely. Second, after extensive discussion
concluding that there was legal uncertainty around whether an IJ’s decision had
preclusive effect on USCIS, the district court considered whether USCIS’ adverse
credibility determination was supported by substantial evidence. But whether or
not there is an evidentiary basis for an adverse credibility determination is
irrelevant to the question of whether USCIS’ decision to conduct a de novo
credibility analysis was substantially justified. And the relevance of any
evidentiary basis to overall substantial justification depends on the preclusive
effect of the IJ’s ruling.
Instead, the district court should have considered “whether the position of
the government was, as a whole, substantially justified.” Gutierrez v. Barnhart,
274 F.3d 1255, 1258–59 (9th Cir. 2001) (quotation omitted). DHS’ conduct and
position was neither satisfactory or justified. First, one agency of DHS,
Immigration and Customs Enforcement (“ICE”) subjected Equihua to deportation
proceedings. Second, after the IJ ruled against it, finding that Equihua credibly
demonstrated a Quilantan admission, ICE voluntarily terminated those
proceedings. Third, ICE’s sibling agency within DHS, USCIS, ignored the IJ’s
ruling and denied Equihua’s I-485 on the basis that she did not credibly
demonstrate a Quilantan admission (relying on minor inconsistencies that were all
4
also before the IJ). And fourth, as soon as Equihua filed this mandamus action,
DHS reversed course again and stipulated that USCIS would act as though the IJ’s
decision precluded it from denying Equihua’s I-485 on the basis of her Quilantan
admission.
3. As Equihua is the prevailing party and the government’s position was
not substantially justified, she is entitled to attorney’s fees and expenses. 28
U.S.C. § 2412(d)(1)(A). The matter is referred to the Appellate Commissioner,
who shall conduct proceedings to calculate the proper amount of fees and expenses
and who shall have the authority to enter an order awarding fees and expenses to
Equihua. See Ninth Cir. R. 39-1.9.1
REVERSED; REFERRED TO THE APPELLATE
COMMISSIONER.
1
The government’s attempt to circumvent our court’s order denying its
motion to file a surreply via its motion to strike unspecified portions of Equihua’s
reply brief is DENIED.
5
FILED
Equihua-Equihua v. Sessions, No. 16-35125
DEC 18 2017
OWENS, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I respectfully dissent. In my view, the district court did not abuse its
discretion in determining that its own abeyance order was not “an enforceable,
judicially sanctioned award” in the plaintiffs’ favor. Klamath Siskiyou Wildlands
Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1031 (9th Cir. 2009). Nor did
the court abuse its discretion in concluding that the government’s litigating
position was substantially justified—an analysis to which the state of the law
governing an IJ decision’s preclusive effect, as well as the government’s reasons
for questioning Equihua-Equihua and Diaz’s credibility, were surely relevant.
Citizens for Better Forestry v. U.S. Dep’t of Agric., 567 F.3d 1128, 1131 (9th Cir.
2009) (“We review for abuse of discretion the district court’s decision to award
fees under the EAJA.”); Horphag Research Ltd. v. Pellegrini, 337 F.3d 1036, 1042
(9th Cir. 2003) (“An abuse of discretion is a plain error, discretion exercised to an
end not justified by the evidence, a judgment that is clearly against the logic and
effect of the facts as are found. . . . Under the abuse of discretion standard, a
reviewing court cannot reverse a decision of the district court unless the reviewing
court has a definite and firm conviction that the district court committed a clear
error of judgment in the conclusion it reached upon a weighing of the relevant
factors.” (internal quotation marks omitted)).