United States v. 2007-09-07 | 04-70300 | SINGH VGONZALES | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 DIDAR SINGH,
Petitioner, No. 04-70300
v. Agency No.
 A79-612-780ALBERTO R. GONZALES, Attorney
General, ORDER
Respondent. 
Filed September 7, 2007
Before: Michael Daly Hawkins and Marsha S. Berzon,
Circuit Judges, and Roslyn O. Silver,* District Judge.
ORDER
The Petitioner’s Motion for Costs and Fees under the Equal
Access to Justice Act, 28 U.S.C. § 2412(d) (“EAJA”), is
GRANTED.
1. The Court notes that Respondent’s primary argument
— that only litigation positions of the Department of Home-
land Security (“DHS”) before this Court, and not decisions of
Immigration Judges (“IJs”) and the Bureau of Immigration
Appeals (“BIA”), are pertinent with regard to whether the
government’s position in this case was substantially justified
— was squarely rejected by this Court in Thangaraja v. Gon-
zales, 428 F.3d 870, 873 (9th Cir. 2005) (“We reject this con-
tention, which completely lacks justification. Pursuant to the
EAJA, the BIA and IJ decisions we review are as much the
*The Honorable Roslyn O. Silver, United States District Judge for the
District of Arizona, sitting by designation.
11919

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‘position of the United States’ as is the DHS’ litigation posi-
tion.”).
It is the responsibility of the Department of Justice and its
lawyers to be aware when its positions have been rejected by
the court. While it is acceptable to make a rejected argument
for purposes of preserving it for en banc or Supreme Court
consideration while acknowledging that it has been rejected
by the court, it is not acceptable to repeat an argument already
rejected without acknowledging the case that rejected it, par-
ticularly where it is the Department of Justice itself that was
involved in earlier case. Another such repetition of this same
argument in this court will be considered sanctionable behav-
ior.
2. Considering the BIA’s position as well as the argu-
ments made in this court, the Government’s position in this
action was not substantially justified. See Singh v. Gonzales,
No. 04-70300, mem. at 2-4 (9th Cir. Dec. 5, 2006). Because
Petitioner was the prevailing party in this action and the fees
requested are consistent with the statute and reasonable, see
id. at 4, attorney’s fees and costs are awarded to Petitioner in
the amount of $3807.04.
11920 SINGH v. GONZALES

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