                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 08-1813


JEAN MARC NKEN,

                  Petitioner,

          v.

ERIC H. HOLDER, JR., Attorney General,

                  Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Submitted:   March 26, 2010                    Decided:   June 24, 2010


Before MOTZ and KING, Circuit Judges, and Mark S. DAVIS, United
States District Judge for the Eastern District of Virginia,
sitting by designation.


Application for fees granted in         part   and   denied   in   part   by
unpublished per curiam opinion.


Jared O. Freedman, Lindsay C. Harrison, JENNER & BLOCK, LLP,
Washington, D.C., for Petitioner.   Gregory G. Katsas, Assistant
General Counsel, Civil Division, David V. Bernal, Assistant
Director, Jennifer Paisner Williams, Senior Litigation Counsel,
Lindsay E. Williams, Trial Attorney, UNITED STATES DEPARTMENT OF
JUSTICE, Office of Immigration Litigation, Washington, D.C., for
Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      After we granted Jean Marc Nken’s petition for review of

the Board of Immigration Appeals’s (“BIA”) order denying his

motion to reopen his immigration proceedings, Nken submitted an

application for attorney’s fees and expenses under the Equal

Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d) (2006).                        The

facts that give rise to this fee dispute are set forth in our

previous opinion.        See Nken v. Holder, 585 F.3d 818 (4th Cir.

2009).     For the reasons that follow, we grant Nken’s application

in part and deny it in part.



                                        I.

      Nken requests $246,951.70 in attorney’s fees and $13,628.45

in other expenses under the EAJA.                   With regard to the fees,

$200,631.83 (approximately 81 percent of the total fees) relate

to   litigation   over    his    motion      for     a    stay    pending     appeal,

$39,517.79 (16 percent) relate to litigation over the petition

for review, and $6802.08 (3 percent) relate to the preparation

of   the   application   for    fees.        With   regard       to   the    expenses,

$10,150.79    (74.5   percent)    relate      to    the    motion      for    a   stay,

$3418.79 (25 percent) relate to the merits of the petition, and

$58.87 (less than 1 percent) relate to the fee application.                        The

Government does not dispute any of these calculations.



                                        2
                                          II.

       The EAJA provides, in relevant part, that:

       [A] court shall award to a prevailing party other than
       the United States fees and other expenses . . .
       incurred by that party in any civil action . . .
       including proceedings for judicial review of agency
       action, brought by or against the United States . . .
       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).            It is undisputed that Nken was a

“prevailing      party”     and    that     he     filed    a        complete,       timely

application for fees.         The Government argues, however, that its

position      was    “substantially         justified”          and     that        “special

circumstances” would make an award of fees and expenses related

to     litigation    over    the    stay        unjust.         We     consider       these

contentions in turn.

                                          A.

       The    Government    bears     the       burden     of    showing       that        its

position was “substantially justified.”                   See Hyatt v. Barnhart,

315 F.3d 239, 244 (4th Cir. 2002).                   To do so, the Government

must show that its position was “‘justified to a degree that

could    satisfy     a   reasonable       person,’”       i.e.,       that     it    had    a

“‘reasonable basis both in law and fact.’”                            United States v.

Cox,    575   F.3d   352,   355    (4th     Cir.    2009)       (quoting       Pierce      v.

Underwood, 487 U.S. 552, 565 (1988)).




                                           3
       The Government argues that both its opposition to Nken’s

motion for a stay and its position with regard to the merits of

his    petition       for       review    were        substantially       justified.         The

Supreme Court has held, however, that when determining whether

“the position of the United States” was justified, a court does

not separately consider every position the Government has taken,

but instead makes one determination for the action as a whole.

See    INS     v.    Jean,      496     U.S.    154,      161-62    (1990)        (“While    the

parties'      postures       on    individual          matters     may    be    more   or   less

justified,          the   EAJA     --    like     other       fee-shifting        statutes    --

favors treating a case as an inclusive whole, rather than as

atomized line-items.”).                 Therefore, we must first identify which

position constitutes “the position of the United States” for

EAJA       purposes,      and    then    determine        whether        that    position    was

substantially justified.

       Considering the “case as an inclusive whole,” the merits of

the BIA’s denial of Nken’s motion to reopen, together with the

Government’s          defense      of     that        order,     clearly        represent    the

dominant       “position”          for      the        purpose     of     determining        the

appropriateness            of     fees. 1             These    issues      constitute        the

substantive heart of this case.                        The motion for a stay, on the

       1
       In cases involving judicial review of agency decisions,
the Government must justify both the initial agency action (or
inaction) and the Government’s litigating position in defense of
that action (or inaction). See 21 U.S.C. § 2412(d)(2)(D).


                                                  4
other      hand,       is     a   procedural    maneuver     that    is   in   every    way

peripheral to the merits.                   Indeed, “[t]he whole idea [of a stay]

is   to     hold       the    matter    under   review     in    abeyance    because    the

appellate court lacks sufficient time to decide the merits.”

Nken v. Holder, 129 S. Ct. 1749, 1760 (2009) (emphasis added).

       Having identified “the position of the United States,” 2 the

next       question          is   whether     that   position       was   “substantially

justified.”            After remand from the Supreme Court, we concluded

that       the    BIA       denied     Nken’s   motion     to    reopen     without    even

considering Nken’s most important new evidence (his brother’s

letter).          Nken, 585 F.3d at 822.                   We reversed and remanded

because          the    agency’s        decision     was    at    odds      with   clearly

established law, and therefore was not substantially justified.


       2
       Relying on Gatimi v. Holder, __ F.3d __ (7th Cir. 2010),
available at 2010 WL 1948351, the Government unpersuasively
argues that the “position of the United States” refers to the
Government’s opposition to Nken’s motion for a stay because the
fees relating to that issue constitute the majority of the fees
that Nken is requesting.      But Gatimi does not hold that a
peripheral issue like a stay can overtake or somehow become the
merits of a dispute simply because the parties spent more time
litigating the stay.    In Gatimi, the Government attacked the
merits of the petitioner’s claim on two grounds.      The Seventh
Circuit found the Government’s position substantially justified
on the “more prominent” ground and so denied fees.     Id. at *5.
Here, the Government does not present multiple attacks on the
merits of Nken’s claim; rather the Government’s sole attack on
the merits is that Nken failed to present sufficient evidence to
support his claim of persecution.        The Government’s other
argument, that Nken did not deserve a stay, does not constitute
an attack on the merits, but simply responds to Nken’s motion to
prevent his removal pending the resolution of the merits.


                                                5
See id. at 823.         The Government argued on appeal that the BIA

was entitled to deference.             But we found no justification for

that view given our settled precedents holding that unless the

agency offers some reason for its action, it provides nothing to

which we may defer.           See id. at 822 (citing SEC v. Chenery

Corp., 318 U.S. 80 (1943); Li Fang Lin v. Mukasey, 517 F.3d 685

(4th Cir. 2008)).       Because the position of the United States had

no reasonable basis in law or in fact, it was not substantially

justified.      Thus,    Nken    has    cleared    this    “threshold   for   fee

eligibility.”       Jean, 496 U.S. at 160.

                                         B.

       The above facts establish that Nken is entitled to some

attorney’s fees and expenses.             The Government argues, however,

that “special circumstances” render an award of fees related to

the    litigation    over    Nken’s    motion    for   a   stay   “unjust.”    We

agree.

       Consistent with the discretion afforded the court by the

plain language of the statute, the legislative history of the

EAJA    recognizes    that    the     “special    circumstances”     clause   can

serve two purposes.         Specifically,

       [t]his ‘safety valve’ helps to insure that the
       Government is not deterred from advancing in good
       faith   the   novel   but   credible   extensions   and
       interpretations of law that often underlie vigorous
       enforcement efforts.      It also gives the court
       discretion    to    deny   awards    where    equitable
       considerations dictate an award should not be made.

                                         6
H.R. Rep. No. 96-1418, at 11 (1980).

      An award of fees related to Nken’s motion for a stay would

punish the Government for advancing a plausible legal argument

in good faith.           When the Government first opposed Nken’s motion

for   a   stay     before       this    court,       it    did    so    on     the   basis    of

established Fourth Circuit precedent, and it prevailed.                                In the

Supreme Court, the Government defended our precedent and lost.

See Nken, 129 S. Ct. at 1754, 1762.                         On remand, the Government

agreed      not    to    deport        Nken    before       we    issued       our   mandate,

rendering moot the issue of a stay.                        See Nken, 585 F.3d at 821.

The   Government         thus    pressed       its        position      only    as   long     as

controlling law clearly supported it, and a fee award relating

to that portion of the litigation would therefore not serve the

purposes of the EAJA.              Exercising our equitable discretion, we

refuse to award Nken fees and expenses related to the litigation

over his motion for a stay pending appeal.



                                              III.

      For    these       reasons,       we    grant       Nken’s       application     as     it

relates     to    fees    and    expenses       incurred         in    litigation      on    the

merits      of    his    petition       for     review,       and      in    preparing       the

application for fees.             We deny his application as it relates to

fees and expenses arising out of litigation over the motion for


                                               7
a stay.   Thus, we award Nken a total of $46,319.87 in attorney’s

fees, and $3477.66 in expenses.



                   APPLICATION GRANTED IN PART AND DENIED IN PART




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