Benjamin Lizardi v. ROBERT M. WILKINSON, Acting Attorney General

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BENJAMIN LIZARDI,
Petitioner,
v.
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
No. 18-72576
Agency No.
A205-530-611
ORDER
Filed February 9, 2021
Before: Sidney R. Thomas, Chief Judge, and Mary M.
Schroeder and Marsha S. Berzon, Circuit Judges.
Order

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LIZARDI V. WILKINSON 2
SUMMARY*
Attorney’s Fees
The panel denied respondent’s motion to stay
proceedings, and granted respondent’s motion for an
extension of time to respond to petitioner Benjamin Lizardi’s
motion for attorney’s fees. The panel wrote that Lizardi’s
motion for attorney’s fees under the Equal Access to Justice
Act (EAJA), 28 U.S.C. § 2412(d)(1)(B), was not premature,
explaining that under the EAJA, the deadline to file for
attorney’s fees is 30 days after a final judgment–that is, 30
days after the date when a petition for a writ of certiorari
would be untimely. The panel wrote that a party need not
wait until the judgment is final to move for attorney’s fees,
and concluded that Lizardi’s motion was timely because he
had already “prevailed.” To receive an extension of time to
respond to an attorney’s fees motion based on the deadline for
seeking certiorari, the panel advised that the government
should indicate that it is actually contemplating filing a
petition for a writ of certiorari. As there was no such
indication here, the panel granted a more limited extension.
COUNSEL
Rodrigo I. Canido, LORIC Law Firm, Mountain View,
California, for Petitioner.
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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LIZARDI V. WILKINSON 3
Jeffrey Bossert Clark, Acting Assistant Attorney General;
Keith I. McManus, Assistant Director; Rosanne M. Perry,
Trial Attorney; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
ORDER
The respondent’s motion to stay proceedings is DENIED.
The respondent’s motion for an extension of time to respond
to petitioner Lizardi’s motion for attorney’s fees is
GRANTED. The response to the motion for fees is due
February 25, 2021.
Lizardi’s motion for attorney’s fees under the Equal
Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1)(B), is
not premature. Although judgment is not yet final in this case
until the time to seek certiorari expires, Zheng v. Ashcroft,
383 F.3d 919, 920 (9th Cir. 2004), Lizardi’s motion is
nonetheless timely because he has already “prevailed,” Auke
Bay Concerned Citizen's Advisory Council v. Marsh,
779 F.2d 1391, 1393 (9th Cir. 1986). The EAJA grants parties
a 120-day clock to file for attorney’s fees after the filing of a
disposition, not a 30-day clock beginning after the certiorari
deadline passes. See Zheng, 383 F.3d at 920–21; Li v. Keisler,
505 F.3d 913, 917 (9th Cir. 2007).
To receive an extension of time to respond to an
attorney’s fees motion based on the deadline for seeking
certiorari, the government should indicate that it is actually
contemplating filing a petition for a writ of certiorari. As
there is no such indication here, we grant a more limited
extension.

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