                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                   Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                            File Name: 16a0236p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


 RAMON AMEZOLA-GARCIA, a.k.a. Jose Rivera-                      ┐
 Camarena,                                                      │
                                 Petitioner,                    │
                                                                │
                                                                 >        No. 15-3328
            v.                                                  │
                                                                │
                                                                │
 LORETTA E. LYNCH, Attorney General,                            │
                                               Respondent.      │
                                                                ┘
                                   On Petition for Review of an Order
                                from the Board of Immigration Appeals.
                                            No. A074387805.

                                  Decided and Filed: August 26, 2016*

                 Before: BOGGS and ROGERS, Circuit Judges; BERG, District Judge.**

                                           _________________

                                                  ORDER
                                           _________________

        ROGERS, Circuit Judge.            Ramon Amezola-Garcia (“Amezola-Garcia”), a Mexican
citizen whose final removal order we recently upheld along with a remand for a voluntary-
departure determination, requests attorney’s fees under the Equal Access to Justice Act
(“EAJA”). The fees are not warranted under that act, however, because the Government’s
position, if partially unjustified, was as a whole justified.



        *
       This order originally issued on August 26, 2016.       The court has now designated the order as one
recommended for full-text publication.
        **
           The Honorable Judge Terrence Berg, United States District Judge for the Eastern District of Michigan,
sitting by designation.




                                                       1
No. 15-3328                         Amezola-Garcia v. Lynch                         Page 2


       Amezola-Garcia, who was ordered removed for being present in the United States
without having been admitted or paroled, sought judicial review of the Board of Immigration
Appeals’s (“BIA’s”) denial of his applications for withholding of removal and voluntary
departure. He primarily argued that the BIA erred by sending his case to a single-member panel
for review rather than to a three-member panel, by rejecting his argument that his familial
relationship with his murdered brother-in-law will subject him to future persecution in Mexico,
and by mischaracterizing the record in its voluntary-departure determination. While the
Government opposed most of Amezola-Garcia’s petition, it conceded on judicial review that the
BIA’s interpretation of the record in its voluntary-departure determination was problematic and
warranted a remand. In light of the Government’s concession, we remanded the voluntary-
departure determination to the BIA for reconsideration of its decision. We held that the
remainder of Amezola-Garcia’s petition was without merit. Amezola-Garcia now applies for
attorney fees under the EAJA, 28 U.S.C. § 2412.

       In order to recover attorney’s fees under the EAJA, the applicant must satisfy four
requirements:

           (1) that the fee applicant be a prevailing party; (2) that the government’s
           position not be substantially justified; (3) that no special circumstances make
           an award unjust; and (4) that the fee applicant file the requisite application
           within thirty days of final judgment.

Townsend v. Soc. Sec. Admin., 486 F.3d 127, 129–30 (6th Cir. 2007) (citing Comm’r, INS v.
Jean, 496 U.S. 154, 158 (1990)). We deny the motion for fees for failure to meet the second
requirement, and do not address the remaining requirements.

       Assuming that the Government’s pre-litigation position on voluntary departure was not
justified, the fact that the remainder of the Government’s case was justified renders the
Government’s position in this case, as a whole, substantially justified. In order for a party to
recover attorney’s fees under the EAJA, the Government’s position “as a whole” must not have
been substantially justified. 28 U.S.C. § 2412(d)(1)(A); E.E.O.C. v. Memphis Health Ctr., Inc.,
526 F. App’x 607, 615 (6th Cir. 2013).         Further, because the Government’s “position”
comprehends both the underlying agency action and the current litigation, Delta Eng’g v. United
No. 15-3328                           Amezola-Garcia v. Lynch                        Page 3


States, 41 F.3d 259, 261 (6th Cir. 1994) (citing 28 U.S.C. § 2412(d)(2)(D)), the position that the
Government took when arguing before the BIA is fair game.

       Amezola-Garcia states that the government’s pre-litigation position was substantially
unjustified, as evidenced by the fact that the Government conceded on appeal that remand was
warranted.    While Amezola-Garcia is unhelpful in explaining why the Government’s pre-
litigation position was unjustified (as he does not provide any citations to the administrative
record highlighting the Government’s position below), we assume that the Government’s pre-
litigation position regarding voluntary departure was, in fact, unjustified.

       However, the Government’s position “as a whole” must be examined when determining
the “substantial justification” question, and an EAJA application fails if the multiple claims
involved in the case are “distinct” and if the more “prominent” claims were substantially
justified. Memphis Health Ctr., 526 F. App’x at 615 (citing United States v. Heavrin, 330 F.3d
723, 730 (6th Cir. 2003)). No Sixth Circuit case elaborates on the “as a whole” standard adopted
by the Memphis Health Center court, but two points indicate that the Government’s position “as
a whole” was substantially justified. First, the majority of the Government’s arguments were
justified, as the Government successfully argued against Amezola-Garcia’s request for a three-
member panel and his withholding-of-removal application. See slip op. at 5–11. Further, these
other claims are quite “distinct” from the voluntary-departure issue. The procedural “three-
member panel versus one-member panel” issue is a matter of law entirely separate from the issue
of whether Amezola-Garcia had sufficiently good moral character to merit voluntary departure.
Additionally, the question of whether Amezola-Garcia demonstrated a clear probability of future
persecution sufficient to warrant withholding of removal is likewise distinct from the issue of
whether he has good moral character. These two other claims were also more “prominent” than
the voluntary-departure issue. The voluntary-departure issue made up only seven pages out of
the twenty-five pages of argument in his brief, and it was the last argument made. Second, the
Government’s litigation position before this court was entirely justified. Rather than continuing
to advance an incorrect interpretation of the record, the Government conceded error. Amezola-
Garcia suggests that the Government’s position on appeal was substantially unjustified because it
failed to include in its brief’s table of contents the section in which it conceded error. Such
No. 15-3328                          Amezola-Garcia v. Lynch                          Page 4


conduct hardly rises to the level of being “substantially unjustified,” as this court was obviously
able to locate the Government’s concession in its brief.

       While Memphis Health Center is unpublished, its reasoning as to why the “as a whole”
standard applies is persuasive. The Memphis Health Center court explained that this court
previously adopted the “as a whole” standard in a published case when it was interpreting “the
position of the [United States]” language in the Hyde Amendment, which is subject to the
procedures and limitations of the EAJA. 526 F. App’x at 615 & n.5 (citing Heavrin, 330 F.3d
723). Further, the Heavrin court specifically stated that “the term ‘position’ should be accorded
the same meaning under the Hyde Amendment as it is in the EAJA.” 330 F.3d at 730. Thus,
given this court’s published holding in Heavrin, the “as a whole” standard applies.

       The motion for attorney fees under the EAJA is accordingly denied.
