Tuesday, July 26, 2005

EAJA Fees for overturning a BIA decision

Filed 07/25/05, No. 03-1931
Johnson v. Atty Gen USA
(Precedential, which means it can be relied on and cited in other cases)

The Equal Access to Justice Act is a law that will pay attorney's fees for someone who vindicated his or her rights in overturning an agency's action. This helps encourage people to go through the expensive task of standing up for their rights. As a safeguard, the law allows the government to avoid paying the attorney's fees if the government can show its position was substantially justified.

The Third Circuit ruled that an individual will be considered the victor (the prevailing party) anytime the Third Circuit overturns a BIA decision and remands the case for further proceedings. The individual is immediately the prevailing party, even if it's unclear whether the individual will ultimately win after many other unrelated issues are resolved on remand.

The Third Circuit also clarified what the government must show to prove its position was substantially justified.

The Supreme Court has held that, as used in the EAJA,
“substantially justified” does not mean “justified to a high
degree” but instead means “justified in substance or in the
main—that is, justified to a degree that could satisfy a
reasonable person.” Pierce v. Underwood, 487 U.S. 553, 565
(1988). Put another way, substantially justified means having a
“reasonable basis in both law and fact.” Id. (internal quotation
omitted). Thus, “[a] court must not assume that the
government’s position was not substantially justified simply
because the government lost on the merits.” Kiareldeen v.
Ashcroft, 273 F.3d 542, 554 (3d Cir. 2001).

Importantly, the Third Circuit reiterated that in immigration cases, the Government must meet the substantially justified test twice—once with regard to the underlying agency action and again with regard to its litigation position in the proceedings arising from that action.

The Third Circuit granted EAJA fees in this case because the asylum seeker in his second hearing submitted a "mixed motive" theory that the persecution he suffered was partially based on a protected ground, even though the motive may have also been mixed with other unprotected grounds. For example, that he was persecuted for his imputed political opinion (his attackers believed he held a political opinion they disliked) along with other reasons (such as personal dislike or general lawlessness).

The immigration judge and the BIA rejected his claim without addressing his viable theory that he was the victim of persecution that had a mixed motive. The Third Circuit ruled that failing to analyze his mixed motive theory was a legal error that was not substantially justified. Therefore, it awarded fees.

The lawyer spent 82 hours of work on just the asylum portion of the appeal to the Third Circuit (there were other parts to the appeal, too) and at the statutorily prescribed $125 per hour plus modest costs, the total reimbursement was $10.800.


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