Unpublished Disposition, 886 F.2d 334 (9th Cir. 1989)

MEMORANDUM *

We affirm the judgment.

In a previous order, the court found that the INS abused its discretion in denying Gagh's motion for a stay of deportation pending appeal. Petitioner then asked for fees. In its order granting attorney fees, the court enumerated the four factors a party must establish to recover fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d). It concluded that "the government lacked a reasonable basis for its decision." Based on that conclusion, it held that the government's position was not substantially justified.

When a district court makes a determination that the INS abused its discretion, both sides agree that the district court may not automatically find the INS's position unreasonable. The district court order can be interpreted as complying with this rule. The government did not request clarification from the district court.

We find that the court conducted an adequate independent analysis regarding substantial justification. See Federal Election Commission v. Rose, 806 F.2d 1081, 1089 (D.C. Cir. 1986).

The amount awarded is not unreasonable, and the government does not argue to the contrary.

Gagh's request for attorney fees on appeal is denied.

AFFIRMED.

---------------