Meza-Vazquez v. Garland, No. 15-72672 (9th Cir. 2021)
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In a published order, the Ninth Circuit denied a motion for attorneys' fees under the Equal Access to Justice Act (EAJA) in a case in which the panel had previously remanded petitioner's application for relief from removal to the BIA for reconsideration in light of the en banc court's intervening decision in Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017) (en banc).
The panel concluded that petitioner was not entitled to attorney's fees because the government's position was substantially justified. In this case, the government seeks a voluntary remand and the panel has already recognized that the en banc decision in Bringas-Rodriguez acted as intervening case law. The panel rejected petitioner's contentions to the contrary. Therefore, because the government's position was substantially justified, EAJA fees are not appropriate, and the panel need not decide whether petitioner was a prevailing party, or whether there are special circumstances rendering an award unjust.
Court Description: Immigration / Attorney’s Fees In a published order, the panel denied a motion for attorneys’ fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), in a case in which the panel had previously remanded Hector Meza-Vasquez’s application for relief from removal to the Board of Immigration Appeals for reconsideration in light of the en banc court’s intervening decision in Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017) (en banc). The panel concluded that the government’s position was substantially justified and that Meza was therefore not entitled to attorney’s fees. The panel wrote that when the government seeks a voluntary remand, which was the case here, the court evaluates substantial justification based on whether the request was motivated by “subsequent, novel considerations,” which undercut a previously justified agency action. In other words, if the IJ’s and Board’s decisions were not contrary to controlling law at the time the decisions were rendered, and intervening case law has undercut the basis for those decisions, the government’s position was and is substantially justified. Noting that it had already recognized that the en banc decision in Bringas-Rodriguez acted as intervening case law, the panel addressed Meza’s arguments that three aspects of the IJ’s and Board’s decisions were contrary to controlling law. MEZA-VAZQUEZ V. GARLAND 3 First, Meza argued that under Afriyie v. Holder, 613 F.3d 924 (9th Cir. 2010), overruled by Bringas-Rodriguez, he was not required to report persecution to local authorities in order to meet the unable or unwilling to protect from persecution standard. The panel observed that while this was true, the IJ explicitly recognized that there was no per se requirement that a withholding applicant have reported the abuse. The panel further wrote that under Afriyie, the absence of a police report left a gap in proof about how the government would respond to the crime, and that gap had to be filled in by other methods to show the government was unable or unwilling to act. The panel concluded that the IJ’s and Board’s analysis regarding the gap in proof did not conflict with clearly established law. Second, Meza argued that under Vitug v. Holder, 723 F.3d 1056 (9th Cir. 2013), the agency erred in relying on Mexican LGBT antidiscrimination laws in assessing whether the government was unable or unwilling to act. The panel noted that Vitug concerned only a single local ordinance and evidence of local activism, whereas the IJ and Board here also relied on national anti-discrimination laws and public acceptance of LGBT individuals. The panel concluded that the IJ and Board therefore did not violate clearly established law by finding that the State Department report Meza submitted provided mixed support for his case, and concluding that he had failed to meet his burden of proof. Third, Meza argued that the IJ and Board acted contrary to controlling law when in considering the likelihood of torture they failed to recognize that Mexican authorities had ignored Meza’s report of his sexual assault. The panel observed that the IJ and Board did, in fact, consider Meza’s claim that he attempted to report his sexual assault, and that 4 MEZA-VAZQUEZ V. GARLAND the IJ merely found the claim not credible. The panel noted that Meza did not argue that this credibility finding was not substantially justified. The panel also noted that IJ and Board weighed other facts, including Meza’s previous safe relocation within Mexico, the lack of prior harm rising to the level of torture, and country conditions reports failing to show that the government would acquiesce to Meza’s torture. The panel concluded that the determination that Meza was not eligible for protection under the CAT was therefore not contrary to controlling law. Because the panel concluded that the government’s position was substantially justified, it did not decide whether Meza was a prevailing party, or whether there were special circumstances rendering an award unjust.
This opinion or order relates to an opinion or order originally issued on April 14, 2020.
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