Jamal Atalla v. Uscis

FILED
NOT FOR PUBLICATION DEC 01 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMAL ATALLA, M.D., ) No. 12-15309
)
Plaintiff - Appellee, ) D.C. No. 2:09-cv-01610-NVW
)
v. ) MEMORANDUM*
)
UNITED STATES CITIZENSHIP )
AND IMMIGRATION SERVICES; )
JOHN KRAMER, District Director )
of United States Citizenship and )
Immigration Services, )
)
Defendants - Appellants. )
)
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Submitted November 18, 2014**
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
Before: FERNANDEZ and IKUTA, Circuit Judges, and DANIEL,*** District
Judge.
United States Citizenship and Immigration Services (USCIS) appeals the
district court’s order awarding attorney’s fees to Jamal Atalla pursuant to the Equal
Access to Justice Act (“EAJA”). 28 U.S.C. § 2412(d)(1)(A). We reverse.
USCIS denied Atalla’s application for naturalization1 and he commenced
this action for review of that decision.2 The district court granted his petition and
we affirmed. See Atalla v. USCIS, 541 F. App’x 760, 761 (9th Cir. 2013) (“Atalla
I”). The district court also granted attorney’s fees pursuant to the EAJA, and this
appeal followed.
USCIS asserts that based on the record3 the district court abused its
***
The Honorable Wiley Y. Daniel, Senior United States District Judge for
the District of Colorado, sitting by designation.
1
See 8 U.S.C. § 1421; 8 C.F.R. §§ 334.1, 335.3.
2
See 8 U.S.C. § 1421(c).
3
In making its decision regarding fees, the district court was required to
consider “the record (including the record with respect to the action or failure to act
by the agency . . . ).” 28 U.S.C. § 2412(d)(1)(B); see also United States v. 22249
Dolorosa St., 190 F.3d 977, 981 (9th Cir. 1999). That record included a myriad of
instances “that could satisfy a reasonable person” that Atalla was intentionally
untruthful throughout the process. Pierce v. Underwood, 487 U.S. 552, 565, 108 S.
Ct. 2541, 2550, 101 L. Ed. 2d 490 (1988). Throughout the litigation, USCIS took
the position that he was.
2
discretion4 when it granted EAJA fees to Atalla.5 It argues, as it did at the district
court, that it was substantially justified in its position that Atalla had at the time of
his initial interview “failed to truthfully disclose the full extent of his involvement
with GRF [the Global Relief Foundation],” and “failed to volunteer information
about the full extent of his involvement with GRF throughout the administrative
processing of his naturalization application.”6 That assessment of Atalla’s
behavior and testimony when he was questioned by the USCIS adjudication
officers was not ultimately successful. However, it did have strong support in the
record.
We recognize that USCIS did have “the burden of demonstrating substantial
4
See Pierce, 487 U.S. at 559–60, 108 S. Ct. at 2547; see also United States v.
Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 2009) (en banc); United States v.
Rubin, 97 F.3d 373, 375 (9th Cir. 1996) .
5
See 28 U.S.C. § 2412(d)(1)(A); see also Pierce, 487 U.S. at 564–66, 108
S. Ct. at 2550; Shafer v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008).
6
Atalla suggests that because in opposing fees USCIS did not assert that he
was untruthful, but only that he did not volunteer information before his
interviews, it cannot now assert untruthfulness. See W. Watersheds Project v. U.S.
Dep’t of the Interior, 677 F.3d 922, 925 (9th Cir. 2012); In re Mercury Interactive
Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010). However, while USCIS’s
opposition could have been more expansive, in light of the whole record, it was
sufficient to place the issue of truthfulness before the district court. See
Watersheds, 677 F.3d at 925–26; Simkins v. NevadaCare, Inc., 229 F.3d 729, 736
(9th Cir. 2000).
3
justification,”7 but it carried that burden here because the record showed that its
“‘position [had] a reasonable basis in law and fact.’”8 Of course, the mere fact that
USCIS lost on the merits was not sufficient to show that its position was not
substantially justified. See Renee v. Duncan, 686 F.3d 1002, 1017 (9th Cir. 2012);
see also Al-Harbi v. INS, 284 F.3d 1080, 1084–85 (9th Cir. 2002). Rather, on this
record, our decision in Atalla I, 541 F. App’x at 762, put it well when we declared
that “the Government presents us with a close case” but “the district court’s
account of the evidence [did not fall] below the low threshold of ‘plausib[ility].’”
That underscores our “‘definite and firm conviction’”9 that the district court’s
decision regarding EAJA fees was an abuse of discretion because it improperly
construed USCIS’s position to refer solely to Atalla’s statements before he was
questioned under oath and also failed to consider the overall strength of USCIS’s
case as shown by the record.10 Therefore, we reverse the award of EAJA fees.
REVERSED.
7
Gonzales v. Free Speech Coalition, 408 F.3d 613, 618 (9th Cir. 2005).
8
Shafer, 518 F.3d at 1071; see also Pierce, 487 U.S. at 565–66, 108 S. Ct. at
2550.
9
Hinkson, 585 F.3d at 1262.
10
See id.4