United States v. 2005-11-02 | 02-73970 | THANGARAJA VGONZALES | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 SALUJA THANGARAJA,
Petitioner, No. 02-73970
v. Agency No.
 A79-784-820ALBERTO R. GONZALES,* Attorney
General, ORDER
Respondent. 
Filed November 3, 2005
Before: Betty B. Fletcher, Edward Leavy, and
Marsha S. Berzon, Circuit Judges.
COUNSEL
Visuvanathan Rudrakumaran, Law Office of Visuvanathan
Rudrakumaran, New York, New York, for the petitioner.
Michael L. Tingle, Department of Justice, Civil Division,
Office of Immigration Litigation, Washington, D.C., for the
respondent.
*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
as Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
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ORDER
BERZON, Circuit Judge:
When this case was last before us, petitioner Saluja Than-
garaja’s petition for review was granted with respect to her
asylum and withholding of removal claims. We remanded the
matter to the Board of Immigration Appeals (“BIA”) for fur-
ther proceedings. See Thangaraja v. Ashcroft, 2004 WL
1922161 (9th Cir. Aug. 25, 2004) (unpublished memoran-
dum). On November 26, 2004, Thangaraja filed a timely
motion for attorney’s fees and costs, which was opposed by
the respondent. We now grant the motion and award fees at
the rates prescribed by the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412.
BACKGROUND
Thangaraja is a Tamil native and citizen of Sri Lanka. She
attempted to enter the United States in October 2001 at the
San Ysidro border crossing. After an interview with an asy-
lum officer, Thangaraja was found to have “demonstrated a
credible fear of persecution or torture.” She was placed in
detention and issued a Notice to Appear in Immigration
Court.
In January 2002, Thangaraja submitted an asylum applica-
tion and appended a declaration describing her claim. The
declaration detailed two incidents of prolonged detention by
the Sri Lankan Army, during which Thangaraja was taken
from her home, interrogated, accused of being a member of
the Liberation Tigers of Tamil Eelam (“LTTE”), and physi-
cally abused. “I was neither taken to a court nor allowed to
seek any legal help.”
At Thangaraja’s removal hearing on April 10, 2002, she
testified similarly, noting that she was never an LTTE mem-
ber and that she was not politically active in Sri Lanka. No
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evidence was presented that Thangaraja was the subject of a
legitimate criminal prosecution.
The Immigration Judge (“IJ”) denied Thangaraja’s applica-
tions for relief. The IJ made an adverse credibility determina-
tion on two grounds: aspects of Thangaraja’s testimonial
demeanor, and her inability to answer questions about her trip
to the United States “with any kind of specific information,
although she took a two month trip on a ship from Colombo
to Mexico . . . . When we compare that to the amount of detail
that the respondent has presented with regard to the substance
of her claim, there is much greater detail.”
The IJ also made an alternative merits determination.
Assuming Thangaraja’s testimony to be credible, the IJ found
that she had not met her burden of demonstrating that the
alleged persecution was on account of imputed political opin-
ion. The IJ concluded that the “two incidents where she may
have been [taken] into custody [were] for questioning on the
basis of a legitimate investigation” into whether or not she
was an LTTE member. In addition, the IJ determined “that the
objective evidence indicates that there are very few instances
where women are associated with the Tamil Tigers. The Court
. . . finds that there is very little objective evidence to support
the respondent’s claim that there even would be a question of
imputed political opinion to a female youth in Sri Lanka.”
On appeal, the BIA summarily affirmed without opinion
pursuant to its streamlining regulation, 8 C.F.R.
§ 1003.1(e)(4).
Our memorandum disposition concluded that all aspects of
the IJ’s decision concerning Thangaraja’s asylum and with-
holding of removal claims were unsupported by substantial
evidence.
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DISCUSSION
A. Position of the United States
We begin by addressing the Attorney General’s argument,
contained in his opposition to Thangaraja’s fees request, that
the IJ’s decision in this case is not relevant to our analysis
under EAJA of whether “the position of the United States was
substantially justified.” 28 U.S.C. § 2412(d)(1)(A). According
to the Attorney General, “[t]he agency . . . bore the same rela-
tionship to the Board in administrative proceedings as execu-
tive departments and agencies bear to courts in judicial
proceedings.” As a result, the Department of Homeland
Security (DHS) is the only relevant actor whose position mat-
ters: “It is . . . the agency’s defense of the Board’s decision
before this Court, and not the decision itself, that constitutes
the ‘position of the United States’ for EAJA purposes.”
We reject this contention, which completely lacks justifica-
tion. Pursuant to EAJA, the BIA and IJ decisions we review
are as much the “position of the United States” as is the
DHS’s litigation position. See 28 U.S.C. § 2412(d)(2)(D)
(“ ‘position of the United States’ means, in addition to the
position taken by the United States in the civil action, the
action or failure to act by the agency upon which the civil
action is based” (emphasis added)); Al-Harbi v. INS, 284 F.3d
1080, 1084 (9th Cir. 2002) (order) (“In making a determina-
tion of substantial justification, the court must consider the
reasonableness of both the underlying government action at
issue and the position asserted by the government in defend-
ing the validity of the action in court.” (internal quotation
marks and citations omitted)); Gutierrez v. Barnhart, 274
F.3d 1255, 1259 (9th Cir. 2001) (“The district court erred in
not addressing the reasonableness of the underlying [agency]
conduct and basing its denial of fees solely on the govern-
ment’s litigation position.”). The IJ’s decision in this case,
summarily affirmed without opinion by the BIA, is “the
action . . . by the agency upon which the civil action is
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based,” which the statute requires us to consider in determin-
ing whether the “position of the United States” was substan-
tially justified. 28 U.S.C. § 2412(d)(2)(D).
Moreover, the DHS’s analogy to judicial proceedings is
misplaced. Both the Executive Office for Immigration Review
(EOIR), to which the BIA and the Immigration Court belong,
and the DHS are part of the executive branch of the United
States government, despite their mutual independence. The
BIA’s decision in this case was rendered before the March 1,
2003 effective date of the Homeland Security Act of 2002,
Pub. L. 107-296, § 471, 116 Stat. 2135 (2002), which
assigned former Immigration and Naturalization Service func-
tions to the DHS while leaving the adjudicative functions of
IJs and the BIA within the Department of Justice. See gener-
ally Lagandaon v. Ashcroft, 383 F.3d 983, 987 n.3 (9th Cir.
2004). Nothing in that reorganization, however, affects our
conclusion that the “position of the United States” as defined
by EAJA encompasses both the DHS’s litigation position and
the underlying agency decision rendered by the BIA or an IJ,
as the manner in which responsibilities are divided within the
executive branch is immaterial to determining what the statu-
tory language requires.
B. Substantial Justification
“The government bears the burden of demonstrating sub-
stantial justification.” Gonzales v. Free Speech Coalition, 408
F.3d 613, 618 (9th Cir. 2005). Our determination that the IJ’s
decision was not supported by substantial evidence applied a
deferential standard of review, which precludes relief absent
a conclusion that “no reasonable factfinder” could have
reached the agency’s result. See, e.g., Hasan v. Ashcroft, 380
F.3d 1114, 1119 (9th Cir. 2004). In the context of attorney’s
fees determinations, we have held that: “ ‘Substantial justifi-
cation’ is equated with ‘reasonableness.’ . . . The govern-
ment’s position is ‘substantially justified’ if it ‘has a
reasonable basis in law and fact.’ ” Ramon-Sepulveda v. INS,
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863 F.2d 1458, 1459 (9th Cir. 1988) (quoting Pierce v.
Underwood, 487 U.S. 552, 566 n.2 (1988)); see also Al-
Harbi, 284 F.3d at 1085 (“Substantial justification in this con-
text means justification to a degree that could satisfy a reason-
able person.”). Our holding that the agency’s decision of
Thangaraja’s case was unsupported by substantial evidence is
therefore a strong indication that the “position of the United
States” in this matter was not substantially justified. Indeed,
it will be only a “decidedly unusual case in which there is
substantial justification under the EAJA even though the
agency’s decision was reversed as lacking in reasonable, sub-
stantial and probative evidence in the record.” Al-Harbi, 284
F.3d at 1085.
Aside from the lack of substantial evidence supporting the
IJ’s grounds of decision, which we enumerated in our disposi-
tion, an examination of the Attorney General’s chosen litiga-
tion position confirms that the “position of the United States”
was not substantially justified. At the time the respondent sub-
mitted his brief, on March 13, 2004, our most relevant prece-
dents concerning the central issues in this case, demeanor-
based credibility determinations and imputed political opinion
in the context of Sri Lankan investigations of suspected LTTE
members, were available. See Arulampalam v. Ashcroft, 353
F.3d 679 (9th Cir. 2003); Ratnam v. INS, 154 F.3d 990 (9th
Cir. 1998). Yet, neither was cited in the Attorney General’s
brief. See Rueda-Menicucci v. INS, 132 F.3d 493, 495 (9th
Cir. 1997) (emphasizing contrary circuit precedent in holding
that the government’s position in defense of an agency deci-
sion was not substantially justified).
Instead, the Attorney General defended the IJ’s credibility
findings without reference to Arulampalam’s controlling dis-
cussion of demeanor-based determinations. Moreover, the
Attorney General’s defense of the IJ’s finding concerning the
level of detail provided by Thangaraja about her journey to
the United States consisted of two unsupported sentences of
assertion: “A petitioner testifying on the basis of her own
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memory reasonably can be expected to recall each aspect of
her entire story with a similar level of detail. Petitioner’s
inability to fulfill that expectation logically gives rise to the
inference that the portion of the story that is more detailed
may be the result of coaching, confabulation or deliberate
deceit.”
Our disposition concluded that the record simply did not
support the IJ’s critical assessment of Thangaraja’s descrip-
tion of her journey by ship. There was no vagueness about the
testimony she gave, which was “sufficiently descriptive.” See
Akinmade v. INS, 196 F.3d 951, 957 (9th Cir. 1999). For
example, Thangaraja gave a precise figure (50) as an estimate
of the number of people on board the ship, and explained sen-
sibly why she could not be more specific about their identities
(because she could not speak their language).
The Attorney General’s arguments on the merits of Than-
garaja’s asylum and withholding of removal claims were also
not substantially justified. The IJ’s decision, defended by the
Attorney General, ran squarely counter to our precedent. Rat-
nam held that persecution on account of imputed political
opinion had occurred despite the government’s assertion that
the Sri Lankan authorities were engaged in counter-terrorism
efforts, as there was no legitimate criminal prosecution of the
petitioner. See 154 F.3d at 995 (quoting Singh v. Ilchert, 63
F.3d 1501, 1509 (9th Cir. 1995), for the proposition that “if
there is no evidence of a legitimate prosecutorial purpose for
a government’s harassment of a person . . . there arises a pre-
sumption that the motive for harassment is political”). The
Attorney General’s representation that “the IJ concluded rea-
sonably that the arrest, detention and interrogation of [Than-
garaja] was done for legitimate investigative purposes” is
entirely unsupported by the record, which indicates no poten-
tially culpable activity on Thangaraja’s part.
We commend the Attorney General’s brief for having
drawn the court’s attention to the lack of record support for
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the IJ’s mistaken notion that “there are very few instances
where women are associated with the Tamil Tigers.” While
noteworthy in the context of an otherwise staunch defense of
the IJ’s decision, this concession does not alone render the
“position of the United States” substantially justified. We
expect nothing less than such candid and rigorous evaluations
of the agency’s explanations of its decisions in all parties’
briefs. Had this level of searching analysis and measured
argument been employed by the Attorney General with
respect to the remainder of the IJ’s decision, he might have
decided to move to remand the proceedings to the agency in
order to correct the IJ’s errors.1
In sum, we conclude that the “position of the United
States” was not substantially justified in this case. Thangaraja
is therefore entitled to attorney’s fees and costs.
C. Enhanced Fees
Thangaraja claims attorney’s fees in the amount of $12,700
for 63.5 hours of her counsel’s work, at an hourly rate of
$200. The requested hourly rate is higher than the $125 rate
contained in EAJA, based on the special factor of “the limited
1Commissioner, INS v. Jean, 496 U.S. 154 (1990), held that “only one
threshold determination for the entire civil action is to be made.” Id. at
159; see also United States v. Rubin, 97 F.3d 373, 375-76 (9th Cir. 1996).
In so holding, Jean quoted legislative history of EAJA suggesting that a
subsequent litigation position cannot “cure” an underlying agency action
that is not substantially justified. See 496 U.S. at 159 n.7 (“Congress’
emphasis on the underlying Government action supports a single evalua-
tion of past conduct. See H. R. Rep. No. 98-992, pp. 9, 13 (1984) (“[T]he
amendment will make clear that the Congressional intent is to provide for
attorney fees when an unjustifiable agency action forces litigation, and the
agency then tries to avoid such liability by reasonable behavior during the
litigation”) . . . .”). In the case before us, neither the underlying agency
action nor the DHS’s litigation position was substantially justified. We
need not, therefore, decide whether a substantially justified litigation posi-
tion could ever “cure” an insufficiently justified underlying agency deci-
sion for purposes of EAJA fees.
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availability of qualified attorneys for the proceedings
involved.” 28 U.S.C. § 2412(d)(2)(A). In the alternative,
Thangaraja claims fees at the statutory rate.
We have not awarded enhanced hourly rates in immigration
cases pursuant to the statutory exception for limited availabil-
ity of qualified attorneys where the litigation in question
required no “distinctive knowledge” or “specialized skill.”
See Rueda-Menicucci, 132 F.3d at 496 (quoting Pierce, 487
U.S. at 572). Nevertheless, Thangaraja’s counsel contends
that an enhanced hourly rate is justified here, because he pos-
sesses “special expertise in litigation” through “practicing
almost exclusively asylum law for more than 10 years and . . .
represent[ing] over 750 individuals in immigration cases.”
As in Rueda-Menicucci, however, we conclude that
“[w]hile we believe that a speciality in immigration law could
be a special factor warranting an enhancement of the statutory
rate, . . . we find that counsel’s specialized skill was not need-
ful for the litigation in question.” Id.; cf. Johnson v. Gonzales,
416 F.3d 205, 213 (3d Cir. 2005) (“Although Johnson’s coun-
sel is an experienced attorney who specializes in immigration,
he was here faced with a case of straightforward application
of the substantial evidence and asylum standards.”); Muhur v.
Ashcroft, 382 F.3d 653, 656 (7th Cir. 2004) (recognizing that
“immigration laws are complex and their application often
requires knowledge of foreign cultures unfamiliar to most
Americans,” but concluding that fee enhancement requires a
showing by counsel that “knowledge of foreign cultures or of
particular, esoteric nooks and crannies of immigration law . . .
[was] needed to give the alien a fair shot at prevailing”).
We decline to adopt counsel’s proposed per se rule that
“the practice of immigration law should be classified as a spe-
cialty similar to practicing patent law.” With respect to the
case at hand, beyond generalizing about his experience, coun-
sel has not established that he possessed some “distinctive
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knowledge” or “specialized skill” necessary to litigating
Thangaraja’s case. Enhanced fees are therefore not justified.
Thangaraja requests, in the alternative, that fees be awarded
at the statute’s prescribed hourly rate. EAJA provides for an
upward adjustment of the $125 rate contained in the statute,
based on cost-of-living increases. See 28 U.S.C.
§ 2412(d)(2)(A); Sorenson v. Mink, 239 F.3d 1140, 1147-49
(9th Cir. 2001). Appropriate cost-of-living increases are cal-
culated by multiplying the $125 statutory rate by the annual
average consumer price index figure for all urban consumers
(“CPI-U”) for the years in which counsel’s work was per-
formed, and then dividing by the CPI-U figure for March
1996, the effective date of EAJA’s $125 statutory rate. See
Sorenson, 239 F.3d at 1148.
Pursuant to these calculations, Thangaraja is awarded fees
at the hourly rates of $144.43 for 5 hours of work performed
by counsel in 2002 and $151.65 for 58.5 hours of work per-
formed by counsel in 2004, for a total award of $9,593.68 in
attorney’s fees. In addition, Thangaraja is entitled to $407.54
in recoverable costs.
CONCLUSION
Thangaraja’s motion for attorney’s fees and costs is
granted. Attorney’s fees and costs in the amount of
$10,001.22 are awarded in favor of Thangaraja and against
respondent Gonzales.
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