Maria Del Carmen Medina Tovar; Adrian Jovan Alonso Martinez v. LAURA B. ZUCHOWSKI , Director, Vermont Service Center, United States Citizenship

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
M ARIA DEL CARMEN M EDINA
TOVAR; ADRIAN J OVAN ALONSO
M ARTINEZ ,
Plaintiffs-Appellants,
v.
LAURA B. Z UCHOWSKI , Director,
Vermont Service Center, United
States Citizenship and Immigration
Services; ALEJANDRO N.
M AYORKAS , Secretary, Department
of Homeland Security; M ERRICK B.
GARLAND , Attorney General,
Defendants-Appellees.
No. 21-35664
D.C. No.
3:17-cv-00719-
BR
OPINION
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted June 6, 2022
Portland, Oregon
Filed July 21, 2022

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2 M EDINA TOVAR V . ZUCHOWSKI
Before: David M. Ebel,* William A. Fletcher, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Clifton
SUMMARY**
Immigration/Attorneys’ Fees
In a case in which Plaintiffs previously prevailed in this
court in their challenge to the denial of a petition seeking
derivative U-visa status, the panel affirmed the district
court’s denial of Plaintiffs’ application for attorneys’ fees
and costs under the Equal Access to Justice Act (“EAJA”).
United States Citizenship and Immigration Services
denied the U-visa petition based on its regulation limiting
derivative U-visa status to spouses married at the time the
principal petition is filed. Plaintiffs challenged that denial in
the district court, which granted summary judgment to the
government, and a three-judge panel of this court affirmed
in a split decision. However, on rehearing en banc, this court
invalidated the regulation as inconsistent with the governing
statute. Medina Tovar v. Zuchowski, 982 F.3d 631 (9th Cir.
2020) (en banc). Having prevailed on the merits, Plaintiffs
filed an application for attorneys’ fees and costs under the
EAJA, but the district court denied the application because
* The Honorable David M. Ebel, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
** 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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it determined that the government’s position was
substantially justified.
The panel concluded that the district court did not abuse
its discretion, explaining that the factors identified by the
district court provided strong support for its determination
that the government’s position was substantially justified.
Specifically, the panel observed that the government’s
position was found persuasive by no fewer than six federal
judges in the course of the case, and as many judges were
persuaded by the government’s position as were persuaded
by the Plaintiffs’ position. The panel explained that these
circumstances supported the district court’s conclusion that
the government’s position was not unreasonable. In the
same vein, given the evident disagreement on the statutory
question, with many judges agreeing with the government’s
position, the panel could not say the district court was out of
bounds in concluding that the government’s position was
substantially justified. In addition, the panel concluded that
the district court properly considered the fact that this case
involved an issue of first impression.
COUNSEL
Philip James Smith (argued), Nelson Smith LLP, Portland,
Oregon, for Plaintiffs-Appellants.
Aaron S. Goldsmith (argued), Senior Litigation Counsel;
Jeffrey S. Robins, Deputy Director; William C. Peachey,
Director; Brian M. Boynton, Acting Assistant Attorney
General; Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C.; for
Defendants-Appellees.

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OPINION
CLIFTON, Circuit Judge:
Plaintiffs Maria Medina Tovar and Adrian Alonso
Martinez brought this action challenging the denial of
Ms. Medina Tovar’s petition seeking derivative U-visa
status for her husband. United States Citizenship and
Immigration Services (“USCIS”) denied the petition based
on its regulation limiting derivative U-visa status to spouses
married at the time the principal petition is filed. On
rehearing en banc, our court invalidated the regulation as
inconsistent with the governing statute. Medina Tovar v.
Zuchowski, 982 F.3d 631, 633 (9th Cir. 2020).
Having prevailed on the merits, Plaintiffs filed in the
district court an application for attorneys’ fees and costs
under the Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412. The district court denied the application because it
determined that the government’s position was substantially
justified, which precludes a fee award under the EAJA. This
appeal followed. Because we conclude that the district court
did not abuse its discretion in so concluding, we affirm.
I. The Underlying Dispute
Although Plaintiffs’ underlying challenge has been
resolved in their favor and is no longer at issue, to put the
current question into focus we start by describing that
dispute and its progress through the courts.
A “U visa” is a nonimmigrant visa designed to grant
legal status to a non-citizen victim of violent crime who
assists law enforcement in its investigation. The
requirements for a principal applicant to obtain a U visa are
set forth in 8 U.S.C. § 1101(a)(15)(U)(i). A qualifying U-

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visa recipient may also petition for derivative status for a
qualifying spouse who is “accompanying or following to
join” the U-visa holder. Id. § 1101(a)(15)(U)(ii). USCIS
adopted a regulation interpretating and implementing the U-
visa statute, providing, in relevant part, that “the relationship
between the U-1 principal alien and the qualifying family
member must exist at the time [the principal petition] was
filed.” 8 C.F.R. § 214.14(f)(4).
Plaintiffs are a married couple, both of whom are natives
and citizens of Mexico. In 2004, Ms. Medina Tovar was the
victim of a serious crime and assisted law enforcement with
the investigation. She applied for U-visa status in 2013 by
filing a principal petition with USCIS. She married the
second plaintiff, Mr. Alonso Martinez, in 2015. Ms. Medina
Tovar’s U visa was granted soon thereafter. A few months
after that, she filed a petition for derivative U-visa status for
her husband. USCIS denied the petition on the basis that
Plaintiffs were not married at the time the principal petition
was filed, as required by the USCIS regulation.
Plaintiffs filed an action in federal court challenging the
denial of their derivative petition and seeking to invalidate
the regulation as inconsistent with the governing statute. The
district court granted summary judgment to the government.
It determined that (1) the statute did not directly address the
question of when the marital relationship must exist for a
derivative spouse to be eligible, and (2) the temporal
component of the regulation was a reasonable interpretation
and thus entitled to Chevron deference. Medina Tovar v.
Zuchowski, No. 3:17-cv-00719-BR, 2017 WL 6453345,
at *4–6 (D. Or. Dec. 15, 2017); see Chevron U.S.A., Inc. v.
Nat’l Res. Def. Council, 467 U.S. 837, 842–43 (1984).
On appeal, a three-judge panel of this court affirmed the
district court’s judgment in a split decision. Medina Tovar v.

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Zuchowski, 950 F.3d 581 (9th Cir. 2020). The panel majority
agreed that the statute was ambiguous and that the agency’s
reasonable interpretation was owed Chevron deference. Id.
at 587–92. The majority focused its analysis of the statute on
the phrase “accompanying, or following to join.” Id. at 587.
The dissent focused on the same language but concluded that
the regulation’s temporal requirement was contrary to the
statute’s plain meaning. See id. at 594 (Watford, J.,
dissenting).
On rehearing en banc, a panel of eleven judges of this
court reached a different conclusion. The en banc majority
reversed the judgment of the district court and invalidated
the regulation insofar as it required the petitioning spouses
to be married at the time the principal petition is filed rather
than when it is granted. Medina Tovar, 982 F.3d at 633. Like
the panel majority, the en banc majority opinion, joined by
six judges, viewed the case as turning on the
“accompanying, or following to join” language in the statute,
but it concluded that the statute “clearly answer[ed] the
relevant interpretive question.” Id. at 635–37. Three judges
dissented, largely adopting the reasoning of the district court
and three-judge panel majority. See id. at 644–48 (Callahan,
J., dissenting). Two judges concurred in the judgment, but
for reasons different from those expressed in the majority
opinion.1 See id. at 637–44 (Collins, J., concurring).
1 The concurrence rested its analysis not on the “accompanying, or
following to join” language, but instead on other “unique wording of
§ 101(a)(15)(U).” Medina Tovar, 982 F.3d at 639 (Collins, J.,
concurring).

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II. The Current Claim for Attorneys’ Fees
The EAJA provides, subject to exceptions not relevant
here, that in an action brought by or against the United
States, a court must award fees and expenses to a prevailing
non-government party “unless the court finds that the
position of the United States was substantially justified or
that special circumstances make an award unjust.” 28 U.S.C.
§ 2412(d)(1)(A). The district court here denied Plaintiffs’
application for attorneys’ fees and costs under the EAJA
because it concluded that the government’s position at the
agency level and in the courts was substantially justified.
We review the district court’s denial of fees under EAJA
for abuse of discretion. Gonzales v. Free Speech Coal., 408
F.3d 613, 618 (9th Cir. 2005). “A district court abuses its
discretion when it fails to apply the correct legal rule or its
application of the correct legal rule is illogical, implausible
or without support in inferences that may be drawn from the
facts in the record.” Meier v. Colvin, 727 F.3d 867, 869–70
(9th Cir. 2013). “Abuse of discretion is a highly deferential
standard, under which the appellate court cannot substitute
its view of what constitutes substantial justification for that
of the district court; rather, the review is limited to assuring
that the district court’s determination has a basis in reason.”
Free Speech Coal., 408 F.3d at 618 (citation and internal
quotation marks omitted).
It is undisputed that Plaintiffs here are the prevailing
parties in a civil action brought against the United States.
The question before us, then, is limited to whether the district
court abused its discretion in finding the government’s

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position substantially justified.2 Because this case posed a
novel legal question of statutory interpretation, as to which
many judges reached conflicting conclusions, and ultimately
resulted in this court rehearing the matter en banc, we
conclude that the district court did not abuse its discretion.
It is the government’s burden to show that its position
was substantially justified. Gutierrez v. Barnhart, 274 F.3d
1255, 1258 (9th Cir. 2001). “In this circuit, we apply a
reasonableness standard in determining whether the
government’s position was substantially justified for
purposes of the EAJA.” Flores v. Shalala, 49 F.3d 562, 569
(9th Cir. 1995). “Substantially justified” means “justified to
a degree that could satisfy a reasonable person.” Meier,
727 F.3d at 870 (quoting Pierce v. Underwood, 487 U.S.
552, 565 (1988)). “The government’s position is not
substantially justified simply because our precedents have
not squarely foreclosed the position.” Decker v. Berryhill,
856 F.3d 659, 664 (9th Cir. 2017). Rather, “the
government’s position must have a ‘reasonable basis both in
law and fact.’” Meier, 727 F.3d at 870 (quoting Pierce,
487 U.S. at 565).
For purposes of evaluating the government’s position,
“[t]he ‘position of the United States’ includes both the
government’s litigation position and the underlying agency
action giving rise to the civil action.” Meier, 727 F.3d at 870;
see also 28 U.S.C. § 2412(d)(2)(D). We examine “the
position on the merits” and consider any “extraneous
2 On appeal, Plaintiffs also argue that special circumstances would
not make an EAJA award unjust. Because we ultimately conclude that
the district court did not abuse its discretion in finding that the
government’s position was substantially justified, we need not decide
whether special circumstances exist.

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circumstances bearing upon the reasonableness of the
government’s decision.” Or. Nat. Res. Council v. Madigan,
980 F.2d 1330, 1331–32 (9th Cir. 1992) (quoting Kali v.
Bowen, 854 F.2d 329, 332 (9th Cir. 1988)).
“On the merits, we are bound by the previous panel’s
holding and rationale . . . .” Id. at 1332. On rehearing en
banc, we held that the temporal limitation imposed by the
regulation was inconsistent with the statutory language. The
contrary position advocated by the government was that the
language of the governing statute permitted it to limit
derivative U visas to couples who were married when the
principal petition was filed.3 That our court did not adopt the
government’s argument does not necessarily mean that the
argument was unjustified. See United States v. Marolf,
277 F.3d 1156, 1162 (9th Cir. 2002) (“[T]he government’s
failure to prevail does not raise a presumption that its
position was not substantially justified.” (citation and
3 The parties have dedicated much of their briefs and oral arguments
to squabbling over what particular agency “action” is subject to review.
Plaintiffs contend that we must review the government’s rationale in
promulgating the regulation, while the government argues that it is the
specific denial of Plaintiffs’ derivative U-visa petition that matters. This
disagreement is a red herring. Either way, the government’s position has
been the same “at each stage” of the proceedings, see Corbin v. Apfel,
149 F.3d 1051, 1053 (9th Cir. 1998)—that the statutory language
authorized it to impose the temporal requirement.
We are not persuaded by Plaintiffs’ argument that, to meet its
burden, the government must provide evidence establishing the agency’s
rationale for promulgating the regulation. Plaintiffs did not frame their
case as a challenge to the agency’s rulemaking process; they chose
instead to frame their case as a challenge to the substance of the
regulation. See United States v. Marolf, 277 F.3d 1156, 1159 (9th Cir.
2002) (“[T]he scope of the underlying action that the court is to review
in assessing substantial justification extends only as far as the prevailing
party’s challenge itself.”).

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internal quotation marks omitted)); e.g., Kali, 854 F.2d at
334–35 (affirming district court’s finding of substantial
justification even though the government “lost the case on
the merits”).
In assessing whether the government’s position was
substantially justified, we also consider any “extraneous
circumstances bearing upon the reasonableness of the
government’s decision.” Madigan, 980 F.2d at 1331–32
(quoting Kali, 854 F.2d at 332). Extraneous circumstances
can include “relevant legal or factual precedents.” Id. A
“string of losses” or a “string of successes” can also be an
objective indicator of reasonableness. Pierce, 487 U.S. at
569; see also Free Speech Coal., 408 F.3d at 619. That said,
“that the district court initially agreed with the government’s
position is not ‘conclusive as to whether or not the
government was reasonable.’” Marolf, 277 F.3d at 1162
(quoting United States v. Real Prop. Known as 22249
Dolorosa St., 190 F.3d 977, 982 (9th Cir. 1999)). Similarly,
disagreement between judges on the merits of a case is not
dispositive. Madigan, 980 F.2d at 1332.
The district court here identified several reasons for
concluding that the government’s position was substantially
justified. It noted that the government prevailed at the district
court and initially on appeal; highlighted the disagreement
among the district, three-judge panel, and en banc panel
judges; and observed that this case “involved a novel legal
issue that had not been addressed specifically by any other
court.” These factors provide strong support for the district
court’s determination that the government’s position was
substantially justified and lead us to conclude that the district
court did not abuse its discretion.
The government’s position persuaded both the district
court and a majority of the three-judge panel of this court

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that first heard the case on appeal. It was also adopted by
three more of our judges who dissented from the en banc
majority decision. In other words, the government’s position
was found persuasive by no fewer than six federal judges:
the district court, two judges on the majority panel, and three
dissenting judges on the en banc panel. See Perez v. Jaddou,
31 F.4th 267, 271–72 (4th Cir. 2022) (“[I]t is certainly more
likely in these circumstances—where no fewer than seven
federal judges agreed with the government—that the
position of the United States was substantially justified.”).
Indeed, as many judges were persuaded by the government’s
position as were persuaded by Plaintiffs’ position.4 These
circumstances support the district court’s conclusion that the
government’s position was not unreasonable.
In the same vein, judges disagreed about the proper
reading of the statute. The district judge held for the
government. The initial appellate panel decision was split,
two to one. The en banc decision resulted in three separate
opinions. Given the evident disagreement on the statutory
question, with many judges agreeing with the government’s
position, we cannot say the district court was out of bounds
in concluding that the government’s position was justified.
See Bay Area Peace Navy v. United States, 914 F.2d 1224,
1231 (9th Cir. 1990) (disagreement within a panel regarding
the merits of the government’s appeal suggests a finding of
substantial justification); Free Speech Coal., 408 F.3d at 619
(a split decision can serve “as an indicator of the
reasonableness of the government’s position”).
4 Six judges joined the majority en banc opinion. This includes
Judge Watford, who sat on both the three-judge panel, where he
dissented, and the en banc panel, where he joined the majority.

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In addition, the district court properly considered the fact
that this case involved an issue of first impression. See Perez,
31 F.4th at 271 (“[I]t matters that [the movant]’s case
presented a novel question.”); see Stebco, Inc. v. United
States, 939 F.2d 686, 687–88 (9th Cir. 1990) (denying EAJA
fees for litigation of a statutory-interpretation question of
first impression). It is true, as we observed in Gutierrez,
274 F.3d at 1261, that “there is no per se rule that EAJA fees
cannot be awarded where the government’s litigation
position contains an issue of first impression,” but the district
court appropriately gave weight to that context. Because the
interpretive question was one of first impression and
appeared close, the district court did not abuse its discretion
in concluding that the government’s position was
reasonable. Compare TKB Int’l., Inc. v. United States,
995 F.2d 1460, 1468 (9th Cir. 1993) (position was
substantially justified in part because the case presented “a
close question of law”), with Madigan, 980 F.2d at 1332
(position was not substantially justified because government
“lost on an issue of statutory interpretation that the previous
[unanimous] panel did not consider close”).
III. Conclusion
Because we conclude that the district court did not abuse
its discretion in denying Plaintiffs’ application for attorneys’
fees under the EAJA, we affirm the district court’s decision.
AFFIRMED.

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