MARIA MEDINA TOVAR V. LAURA ZUCHOWSKI, No. 21-35664 (9th Cir. 2022)
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The United States Citizenship and Immigration Services denied the U-visa petition based on its regulation limiting derivative U-visa status to spouses married at the time the principal petition is filed. Plaintiffs challenged that denial in the district court, which granted summary judgment to the government.
The Ninth Circuit affirmed the district court’s denial of Plaintiffs’ application for attorneys’ fees and costs under the Equal Access to Justice Act (“EAJA”). The court concluded that the district court did not abuse its discretion, explaining that the factors identified by the district court provided strong support for its determination that the government’s position was substantially justified. Specifically, the court observed that the government’s position was found persuasive by no fewer than six federal judges in the course of the case, and as many judges were persuaded by the government’s position as were persuaded by the Plaintiffs’ position. The court explained that these circumstances supported the district court’s conclusion that the government’s position was not unreasonable. In addition, the court concluded that the district court properly considered the fact that this case involved an issue of first impression.
Court Description: Immigration/Attorneys’ Fees. In a case in which Plaintiffs previously prevailed in this court in their challenge to the denial of a petition seeking derivative U-visa status, the panel affirmed the district court’s denial of Plaintiffs’ application for attorneys’ fees and costs under the Equal Access to Justice Act (“EAJA”). United States Citizenship and Immigration Services denied the U-visa petition based on its regulation limiting derivative U-visa status to spouses married at the time the principal petition is filed. Plaintiffs challenged that denial in the district court, which granted summary judgment to the government, and a three-judge panel of this court affirmed in a split decision. However, on rehearing en banc, this court invalidated the regulation as inconsistent with the governing statute. Medina Tovar v. Zuchowski, 982 F.3d 631 (9th Cir. 2020) (en banc). Having prevailed on the merits, Plaintiffs filed an application for attorneys’ fees and costs under the EAJA, but the district court denied the application because * The Honorable David M. Ebel, United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. MEDINA TOVAR V. ZUCHOWSKI 3 it determined that the government’s position was substantially justified. The panel concluded that the district court did not abuse its discretion, explaining that the factors identified by the district court provided strong support for its determination that the government’s position was substantially justified. Specifically, the panel observed that the government’s position was found persuasive by no fewer than six federal judges in the course of the case, and as many judges were persuaded by the government’s position as were persuaded by the Plaintiffs’ position. The panel explained that these circumstances supported the district court’s conclusion that the government’s position was not unreasonable. In the same vein, given the evident disagreement on the statutory question, with many judges agreeing with the government’s position, the panel could not say the district court was out of bounds in concluding that the government’s position was substantially justified. In addition, the panel concluded that the district court properly considered the fact that this case involved an issue of first impression.
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