Davila-Bardales v. INS, 47 F.3d 1156, 1st Cir. (1995)

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47 F.

3d 1156
NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be
cited only in related cases.

In re Ricardo DAVILA-BARDALES.
Ricardo DAVILA-BARDALES, Movant,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
No. 93-2124

United States Court of Appeals,


First Circuit.
Feb. 27, 1995.

ON MOTION FOR AN AWARD OF ATTORNEYS' FEES


Before TORRUELLA, Chief Judge, SELYA and CYR, Circuit Judges.
Victoria Lewis and Greater Boston Legal Services on memorandum for
movant.
Frank W. Hunger, Assistant Attorney General, Civil Division, Department
of Justice, Priscilla McNeill Jones and Donald E. Keener, Attorneys,
Office of Immigration Litigation, Civil Division, on memorandum for
respondent.
SELYA, Circuit Judge.

Ricardo Davila-Bardales seeks attorneys' fees under the Equal Access to Justice
Act (EAJA), 28 U.S.C. Sec. 2412 (1988). He bases his motion on appellate
proceedings in which he successfully persuaded this court to vacate an order of
deportation and remand for further consideration. See Davila-Bardales v. INS,
27 F.3d 1 (1st Cir. 1994). Because we find that the government's position in this
court was substantially justified, we deny the motion.

* We offer a succinct summary of prior proceedings, referring the reader who

hungers for a meatier account to our earlier opinion.


3

In 1989, the Immigration and Naturalization Service (INS) issued an order to


show cause why Davila- Bardales should not be deported on the ground that he
was a Peruvian national who had unlawfully entered the United States without
inspection. Applicable INS regulations prohibit an immigration judge (IJ) from
accepting an admission of deportability from an unrepresented party under the
age of 16 unless the minor is accompanied by an adult guardian, relative, or
friend. See 8 C.F.R. Sec. 242.16(b) (1994). Nevertheless, at the show-cause
hearing the IJ asked petitioner, then age 15, whether the allegations in the rule
to show cause were true. The petitioner answered affirmatively.

The IJ also reviewed Form I-213, a document constituting a record of an INS


officer's interview with petitioner shortly after petitioner's alleged entry. The
form attributed to petitioner admissions similar to those he made in the later
show-cause hearing. The IJ asked petitioner if the statements reported in the
form were correct, and petitioner acknowledged that they were. His comments
regarding the form, and Form I-213 itself, arguably escaped the grasp of the
aforementioned regulation, 8 C.F.R. Sec. 242.16(b), because the statements
were not made as part of the hearing, but, rather, in custodial interrogation
outside the IJ's presence.

The IJ found petitioner deportable, and the Board of Immigration Appeals


(BIA) affirmed despite an apparent conflict with two unpublished BIA
decisions. See In re Garcia, NO. A70- 006-067, slip op. (BIA Aug. 17, 1993);
In re Hernandez-Jimenez, No. Anl-gxg-bbw, slip op. (BIA Nov. 8, 1991).
Although these decisions lacked precedential force, see 8 C.F.R. Sec. 3.1(g)
(1994), they suggested that the evidence related to the form should have been
excluded. See Davila-Bardales, 27 F.3d at 4.

Petitioner sought judicial review. We vacated the order of deportation because


the BIA had not adequately explained the apparent inconsistency between its
unpublished decisions in Garcia and Hernandez-Jimenez, on the one hand, and
its decision in petitioner's case, on the other hand. See id. at 5-6. Withal, we left
open the possibility that the BIA might develop a consistent and principled rule
which would sometimes allow the introduction of an unaccompanied minor's
statements made during custodial interrogation. See id. Shortly thereafter,
petitioner filed the instant motion.

II
7

The EAJA permits a prevailing party to recover reasonable counsel fees and

The EAJA permits a prevailing party to recover reasonable counsel fees and
expenses incurred in civil litigation with the government, but only if the
government has taken a position that is not "substantially justified" and no
special circumstance renders a fee award unjust. See De Allende v. Baker, 891
F.2d 7, 8 (1st Cir. 1989); Sierra Club v. Secretary of the Army, 820 F.2d 513,
516-17 (1st Cir. 1987).

The threshold requirement for access to EAJA benefits is that a party prevail in
his litigation with the federal sovereign. It is unclear whether petitioner satisfies
this benchmark: it is problematic whether one is a "prevailing party" within the
meaning of the EAJA merely because he secures a remand for further agency
action. Several cases have held or implied that prevailing party status is only
conferred upon a party who wins at least part of the ultimate relief sought. See,
e.g., Hanrahan v. Hampton, 446 U.S. 754, 758-59 (1980) (rejecting prevailing
party status under 42 U.S.C. Sec. 1988 for one who merely obtains vacation of
a directed verdict on appeal); Escobar Ruiz v. INS, 787 F.2d 1294, 1297 (9th
Cir. 1986), aff'd, 838 F.2d 1020, 1029 (9th Cir. 1988) (en banc); see also Texas
State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-92 (1989).
Here, petitioner has not yet obtained any ultimate relief as the issue of his
deportability remains unsettled.

We are hesitant to decide the matter on this basis, however, as the status of
these cases has been drawn into some question by the Court's recent opinion in
Shalala v. Schaefer, 113 S. Ct. 2625, 2631-32 (1993), which held that
procurement of a "sentence four" remand in the context of social security
litigation qualifies the putative benefit-recipient as a prevailing party. And,
moreover, the record reveals an independent basis on which the motion can be
decided. Because we find the government's position in the present case was
substantially justified, see infra, we skirt the challenging legal question of
whether petitioner can at this stage be considered a prevailing party.

10

The question of what constitutes "substantial justification" has proven to be a


vexing one, best addressed on a case by case basis. In Pierce v. Underwood,
487 U.S. 552 (1988), the Court noted that substantial justification does not
necessarily mean justified to a high degree, but, rather, requires only that the
government's stance must have been "justified to a degree that could satisfy a
reasonable person." Id. at 565. Accordingly, the test of substantial justification
turns on whether the government's position was "reasonable in both law and
fact." United States v. Yoffe, 775 F.2d 447, 449 (1st Cir. 1985). What is more,
an unfavorable outcome in the underlying litigation, by itself, does not create a
presumption that the government's position was not substantially justified. See
De Allende, 891 F.2d at 12; Sierra Club, 820 F.2d at 517.

11

Frequently, the issue of substantial justification is bifurcated so that an


inquiring court may consider, first, the reasonableness of the government's
agency position, and, second, the reasonableness of its litigation position. See,
e.g., United States v. One Parcel of Real Property, 960 F.2d 200, 209 (1st Cir.
1992). We eschew such a bifurcated approach in the instant case. In the first
place, the Supreme Court has held that the EAJA does not apply to civil
deportation proceedings before the INS, see Ardestani v. INS, 112 S. Ct. 515,
521 (1991), and petitioner, mindful of this impediment, has not sought fees for
proceedings prior to those conducted in this court. Thus our analysis of
substantial justification must focus primarily on the INS's litigation position in
this venue as opposed to its conduct in bringing the deportation proceedings and
in considering the petitioner's admissions during custodial interrogation.
Second, and relatedly, we have held that adjudicators, even though part of the
Executive Branch, are exempt from the provisions of the EAJA. See In re
Perry, 882 F.2d 534, 539-41 (1st Cir. 1989). Consequently, our analysis of
substantial justification must look primarily from the perspective of the INS
rather than from the perspective of the BIA.

III
12

Applying the standard we have described, we find that the government has met
its burden of showing that its position was substantially justified. The law
concerning the status of a minor's admissions during interrogation at the border
was tenebrous before our decision in the instant case, and remains somewhat
murky. There was no precedent in this court regarding admissions of
deportability by minors, and the only BIA discussions of the issue were in
unpublished opinions, which have no precedential value. This lack of clarity in
the law strongly suggests substantial justification for the government's position.
See De Allende, 891 F.2d at 12-13; Mattson v. Bowen, 824 F.2d 655, 657 (8th
Cir. 1987); Martinez v. Secretary of HHS, 815 F.2d 1381, 1383 (10th Cir.
1987). Put another way, since the petitioner's statements seemingly fell outside
the reach of the only applicable regulation, there was a significant lack of
guidance in the law, and the government was substantially justified in adhering
to its position that the IJ and the BIA properly relied upon the disputed
statements.

13

This was especially true in the situation at hand. After all, the INS had good
reason to believe that the circumstances surrounding the petitioner's statements
supported the veracity and reliablility of the admissions; the transcript of the
hearings reveals that petitioner was able to understand and articulate answers to
the relatively simple factual questions he was asked. Although the BIA
displayed regrettable inconsistency in its decisions, the INS could realistically

hope that petitioner's statements would prove admissible in the end, even if the
statements became subject to a consistent rule governing unaccompanied
admissions made during custodial interrogation.
14

We think, too, that the posture of the case argues cogently in favor of a finding
of substantial justification. The INS prevailed initially, both before the IJ and
before the BIA. It did not seek judicial review, but came to this court as a
respondent. While we are not prepared to say that the government, qua
respondent, may never be held responsible for fees under the EAJA if the
petitioner prevails, cf. Sierra Club, 820 F.2d at 519-20 (affirming EAJA award
of reasonable attorneys' fees in non-administrative adjudication, despite
"evanescent" government victory in the district court, because the government's
legal position was so obviously contrary to existing law), we are very reluctant
to criticize the INS for opposing the petition for review in this court, given that
the BIA already had decided the case in its favor. Thus, we conclude that the
INS's position, though ultimately unsuccessful, was reasonable under the
circumstances.

IV
15

We need go no further. Because the government's position was substantially


justified within the meaning of the EAJA, petitioner's motion for attorneys' fees
is

16

Denied.

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