                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 07-1020

A RKADIY L. K HOLYAVSKIY,
                                                      Petitioner,
                              v.

E RIC H. H OLDER, JR., Attorney
General of the United States,
                                                     Respondent.


                  Petition for Review of an Order
              of the Board of Immigration Appeals.
                          No. A71-093-229



        O N M OTION FOR A TTORNEYS ’ F EES AND C OSTS


                        A PRIL 3, 2009




  Before F LAUM, R IPPLE and M ANION, Circuit Judges.
  R IPPLE, Circuit Judge.   In a previous opinion, we
granted the petition for review of an order of the Board
of Immigration Appeals (“BIA”) filed by Arkadiy
Kholyavskiy, a native of the former Soviet Union, who
had been denied asylum, withholding of removal and
2                                                     No. 07-1020

relief under the Convention Against Torture (“CAT”).
Kholyavskiy v. Mukasey, 540 F.3d 555 (7th Cir. 2008).1
Mr. Kholyavskiy now moves for an award of attorneys’
fees and costs. For the reasons set forth in this opinion,
we deny the petition.


                                A.
   A petitioner in an immigration case is eligible for at-
torneys’ fees under the Equal Access to Justice Act, 28
U.S.C. § 2412 (“EAJA”), if he can establish the statutory
grounds for an award. See Floroiu v. Gonzales, 498 F.3d 746,
748 (7th Cir. 2007). Specifically, a petitioner must show
that: (1) he was a prevailing party; (2) the Government’s
position was not substantially justified; (3) there existed
no special circumstances that would make an award
unjust; and (4) he filed a timely and complete applica-
tion for fees. 28 U.S.C. § 2412(d)(1)(A)-(B); Floroiu, 498
F.3d at 748; Muhur v. Ashcroft, 382 F.3d 653, 654-55
(7th Cir. 2004). It is undisputed that Mr. Kholyavskiy
is a prevailing party 2 and timely filed his motion; the Gov-


1
  In considering Mr. Kholyavskiy’s request, we presume
familiarity with our previous opinion.
2
   In Muhur v. Ashcroft, 382 F.3d 653, 654 (7th Cir. 2004), we held
that a party who secures a remand for reconsideration of an
asylum application is a prevailing party for purposes of the
EAJA. Analogizing to the Supreme Court’s decision in Shalala
v. Schaefer, 509 U.S. 292, 300-03 (1993), we reasoned that, once
a petitioner has persuaded the court of appeals to set aside
                                                      (continued...)
No. 07-1020                                                    3

ernment contends, however, that its position was sub-
stantially justified.
  To be substantially justified, the Government’s posi-
tion must be “justified in substance or in the main” or
“justified to a degree that could satisfy a reasonable
person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). The
Government bears the burden of proving that its posi-
tion 3 was, in fact, “substantially justified.” Floroiu, 498
F.3d at 748; Golembiewski v. Barnhart, 382 F.3d 721, 724 (7th
Cir. 2004). The Government meets its burden if: (1) it had


2
  (...continued)
the determination of an administrative agency, the petitioner
is a “prevailing party in the judicial proceeding because
nothing remains to be done by the court, which having
found error has finished with the case and relinquished juris-
diction.” Muhur, 382 F.3d at 654.
3
   There is some question whether, in the context of immigra-
tion proceedings, the “position” of the Government is limited
to the arguments made during litigation or also includes the
underlying decision of the BIA. In other contexts, we have
held that “[t]he ‘position of the United States’ includes the
underlying agency conduct as well as the agency’s litigation
position.” Marcus v. Shalala, 17 F.3d 1033, 1036 (7th Cir. 1994).
Although other circuits have extended this rationale to the
immigration context, see, e.g., Thangaraja v. Gonzales, 428 F.3d
870, 873 (9th Cir. 2005), we have not had an occasion to
address directly the applicability of this rule to immigration
cases. See Tchemkou v. Mukasey, 517 F.3d 506, 509 n.1 (7th Cir.
2008). In this case, as well, we need not reach the issue: Here,
the agency’s litigation position does not differ in material
respects from the approach taken by the BIA.
4                                                No. 07-1020

a reasonable basis in truth for the facts alleged, (2) it had
a reasonable basis in law for the theory propounded, and
(3) there was a reasonable connection between the facts
alleged and the theory propounded. Conrad v. Barnhart,
434 F.3d 987, 990 (7th Cir. 2006).
   “The outcome of a case is not conclusive evidence of the
justification for the government’s position.” United States
v. Hallmark Const. Co., 200 F.3d 1076, 1079 (7th Cir.
2000). Similarly, the fact that we found that part of the
BIA’s determination was not supported “by substantial
evidence does not foreclose the possibility that the posi-
tion was substantially justified.” Howard v. Barnhart,
376 F.3d 551, 554 (6th Cir. 2004). Instead, we must analyze
and evaluate “the factual and legal support for the gov-
ernment’s position throughout the entire proceeding.”
Hallmark Constr. Co., 200 F.3d at 1080. Our case law has
identified some relevant considerations in conducting
this evaluation. For instance, courts are more likely to
conclude that the Government’s position is substantially
justified if it is supported by our precedent or that of
other courts. See Krecioch v. United States, 316 F.3d 684, 689
(7th Cir. 2003) (finding the Government’s position to be
substantially justified in part because it was “supported by
precedent from other federal circuits”). Moreover, “uncer-
tainty in the law arising from conflicting authority or the
novelty of the question weighs in the government’s favor
when analyzing the reasonableness of the government’s
litigation position.” Marcus v. Shalala, 17 F.3d 1033, 1037
(7th Cir. 1994). By contrast, “[s]trong language against
the government’s position in an opinion assessing the
merits of a key issue is evidence in support of an award
No. 07-1020                                              5

of EAJA fees,” Golembiewski, 382 F.3d at 724, as is whole-
sale rejection of the Government’s arguments by the
merits panel, see id. at 725 (awarding fees and observing
that “[w]e did not reject any issue raised by the plaintiff
on appeal nor did we adopt or affirm any position
taken by the Commissioner”). With these guidelines in
mind, we turn to the Government’s position in this litiga-
tion.


                            B.
  The Government maintains that the position it took in
response to Mr. Kholyavskiy’s applications for relief
from removal was substantially justified. Specifically, it
observes that, in his appeal to this court, Mr. Kholyavskiy
raised seven issues, but prevailed on only two. With
respect to the first of his meritorious arguments—Mr.
Kholyavskiy’s claim that his experiences as a child in the
former Soviet Union constituted past persecution on
account of his Jewish religion and ethnicity—the Gov-
ernment contends that we did not conclude necessarily
that the BIA’s conclusion was “incorrect.” Opposition to
Fee Petition at 11. Rather, we held “only that it did not
fully consider the possibility that Kholyavskiy’s age might
have made him more susceptible to persecution.” Id.
Similarly, the Government notes that both the BIA’s
determination with respect to past persecution and the
Government’s own arguments in support of that determi-
nation were grounded in circuit case law. See id. With
respect to the second issue on which Mr. Kholyavskiy
prevailed, his claim for humanitarian asylum, the Gov-
6                                               No. 07-1020

ernment notes that we held that the BIA did not ade-
quately consider whether Mr. Kholyavskiy “might suffer
‘other serious harm’ if returned to Russia because he
might not have access to his medication for his mental
illness.” Id. at 12. However, earlier in the opinion, we
concluded that the unavailability of his medication could
not be considered a form of persecution. The Government
reasons, therefore, that, “[t]hough the Board may have
missed the distinction drawn by the Court, that does not
make its handling of the issue irrational.” Id.


                             1.
  On review of the entire record, we agree with the Gov-
ernment that its position was substantially justified. First,
the Government is correct that, with respect to the issues
raised on appeal, we rejected many of Mr. Kholyavskiy’s
positions and affirmed the agency’s action. We held that
Mr. Kholyavskiy was not denied a fair hearing before the
Immigration Judge, that he was not entitled to a
regulatory presumption of future persecution based on his
prior refugee status, that he had not established that
he was likely to suffer future persecution based on his
refugee status, his mental illness or his Jewish back-
ground, that he was not entitled to relief under the CAT,
and that he had not established his eligibility for a grant
of humanitarian asylum based on the severity of his
persecution. Indeed, we remanded only two issues to the
BIA for further consideration: (1) Mr. Kholyavskiy’s claim
of past persecution based on his Jewish religion and
ethnicity and (2) the possibility that Mr. Kholyavskiy
No. 07-1020                                               7

qualified for humanitarian asylum based on the rea-
sonable possibility that he would “suffer other serious
harm upon removal” to Russia. Kholyavskiy, 540 F.3d at 577
(quoting 8 C.F.R. § 1208.13(b)(1)(iii)(B)). The fact that we
agreed with the Government’s position with respect to the
bulk of the issues raised by Mr. Kholyavskiy weighs
against an award of fees under the EAJA. Cf. Golembiewski,
382 F.3d at 725 (considering whether we had rejected any
of the plaintiff’s arguments on appeal and whether we
had accepted or affirmed any of the Government’s posi-
tions on appeal).


                             2.
  We turn now to the first issue on which Mr. Kholyavskiy
prevailed, the issue of his past persecution based on his
Jewish religion and ethnicity. With respect to this issue,
Mr. Kholyavskiy maintains that we “resoundingly re-
jected” the BIA’s rationale based on well-established case
law; consequently, the Government’s claim that its posi-
tion was justified is “baseless.” See Petitioner’s Reply to
Respondent’s Opposition to Petitioner’s Motion for At-
torneys’ Fees at 3, 3 n.1. We believe that Mr. Kholyavskiy
underestimates the complexity of his situation from an
asylum-law perspective.
  There are two aspects of Mr. Kholyavskiy’s situation that
we found compelling. The first was Mr. Kholyavskiy’s
severe mistreatment at the hands of his classmates and
neighbors on account of his Jewish religion and ethnicity.
The more serious of the incidents occurred several years
prior to Mr. Kholyavskiy’s arrival in the United States;
8                                               No. 07-1020

the IJ and BIA believed that the effect of these incidents,
and therefore their significance, dissipated over time.
This is a conclusion that, on its face, is not wholly unrea-
sonable. Nevertheless, it fails to account for the fact that,
although somewhat removed in time, the incidents took
place when Mr. Kholyavskiy was child, which rendered
his experiences even more traumatic.
  The second aspect of Mr. Kholyavskiy’s situation that
justified remand was the background of pervasive harass-
ment that the Kholyavskiy family, as a unit, endured.
However, in Mr. Kholyavskiy’s submissions to the BIA
and to this court, he often tied the discussion of the
threats and harassment experienced by his family to the
discussion of whether he still maintained his legal status
as a refugee. With respect to the latter issue, the BIA
correctly ruled that, after Mr. Kholyavskiy became a
lawful permanent resident, he was no longer a refugee
for purposes of a statutory presumption of persecution.
Where the BIA’s analysis went astray, however, was in
failing to recognize that, regardless of his refugee status,
these events still were relevant to the question whether
Mr. Kholyavskiy endured past persecution. In other
words, although his refugee status did not survive the
grant of lawful permanent residency, the historical facts
on which that status was based did not change.
  In sum, there is no question that, based on the BIA’s
failure to consider Mr. Kholyavskiy’s age at the time of
the incidents and its failure to consider Mr. Kholyavskiy’s
mistreatment against the background of pervasive anti-
semitic actions towards the Kholyavskiy family,
No. 07-1020                                                 9

Mr. Kholyavskiy’s asylum claim had to be remanded to
the BIA. However, the confluence of factors here—Mr.
Kholyavskiy’s age, the lapse of time, the claim of con-
tinued refugee status, and harassment targeted at the
family as a unit—places this outside of the mine-run of
cases. This is not a case in which the BIA or the Govern-
ment chose to ignore precedent or relevant facts; instead,
it is a situation in which the combination of the petitioner’s
immigration status and his family and personal history
made the appropriate standard difficult to discern. We
believe that this “uncertainty in the law arising from . . .
the novelty of the question weighs in the government’s
favor when analyzing the reasonableness of the govern-
ment’s litigation position.” Marcus, 17 F.3d at 1037.


                              3.
  Finally, we turn to the Government’s position with
respect to humanitarian asylum. On his petition for review,
the focus of Mr. Kholyavskiy’s humanitarian-asylum
argument was 8 C.F.R. § 1208.13(b)(1)(iii)(A), which
allows for a grant of humanitarian asylum based
on the severity of past persecution. We agreed with
the BIA that Mr. Kholyavskiy did not qualify for humani-
tarian asylum under this provision. However, Mr.
Kholyavskiy’s submission also referenced generally 8
C.F.R. § 1208.13(b)(1), which encompasses grants of
humanitarian asylum based on the severity of past perse-
cution as well as on the reasonable likelihood that the
applicant “will suffer other serious harm upon removal” to
his country of origin. 8 C.F.R. § 1208.13(b)(1)(iii)(B).
10                                               No. 07-1020

Our review of the entire humanitarian-asylum provi-
sion, combined with Mr. Kholyavskiy’s factual presenta-
tion concerning the hardships he would face if removed
to Russia, convinced us that Mr. Kholyavskiy suf-
ficiently had raised the issue of prospective harm and
that we therefore should remand the case to the BIA so it
could consider whether Mr. Kholyavskiy was eligible
for relief under § 1208.13(b)(1)(iii)(B). See Kholyavskiy, 540
F.3d at 577. However, it does not follow that the BIA’s
initial failure to consider this possible avenue of relief, or
the Government’s defense of the BIA’s decision with
respect to humanitarian asylum, was unreasonable.
Although Mr. Kholyavskiy raised the general provision as
well as supporting facts, his presentation on this issue
was less than explicit. The BIA’s focus, therefore, on
humanitarian asylum based on the severity of past perse-
cution, as opposed to the likelihood of future harm, was
not unreasonable.


                        Conclusion
  For the reasons set forth above, we believe that the
Government’s position in the underlying litigation was
substantially justified. We therefore deny M r.
Kholyavskiy’s petition for fees and costs.
                                           P ETITION DENIED.




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