
USCA1 Opinion

	




          February 27, 1995     [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-2124                           IN RE:  RICARDO DAVILA-BARDALES.                              _________________________                               RICARDO DAVILA-BARDALES,                                       Movant,                                          v.                       IMMIGRATION AND NATURALIZATION SERVICE,                                     Respondent.                              _________________________                      ON MOTION FOR AN AWARD OF ATTORNEYS' FEES                              _________________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Selya and Cyr, Circuit Judges.                                           ______________                              _________________________               Victoria  Lewis  and   Greater  Boston  Legal   Services  on               _______________        _________________________________          memorandum for movant.               Frank W. Hunger, Assistant Attorney General, Civil Division,               _______________          Department  of Justice,  Priscilla  McNeill Jones  and Donald  E.                                   ________________________      __________          Keener,   Attorneys,  Office  of  Immigration  Litigation,  Civil          ______          Division, on memorandum for respondent.                              _________________________                              _________________________                               SELYA,  Circuit Judge.   Ricardo  Davila-Bardales seeks                    SELYA,  Circuit Judge.                            _____________          attorneys'  fees under the Equal Access to Justice Act (EAJA), 28          U.S.C.     2412  (1988).    He  bases  his  motion  on  appellate          proceedings  in which  he  successfully persuaded  this court  to          vacate   an  order   of  deportation   and  remand   for  further          consideration.  See Davila-Bardales  v. INS, 27 F.3d 1  (1st Cir.                          ___ _______________     ___          1994).   Because we find  that the government's  position in this          court was substantially justified, we deny the motion.                                            I                                          I                    We  offer  a  succinct  summary of  prior  proceedings,          referring the reader  who hungers  for a meatier  account to  our          earlier opinion.                      In  1989,  the Immigration  and  Naturalization Service          (INS)  issued an order  to show cause  why Davila-Bardales should          not be deported on the ground that he was a Peruvian national who          had  unlawfully entered  the  United  States without  inspection.          Applicable  INS  regulations prohibit  an immigration  judge (IJ)          from   accepting   an   admission   of   deportability  from   an          unrepresented  party  under the  age of  16  unless the  minor is          accompanied by an  adult guardian,  relative, or friend.   See  8                                                                     ___          C.F.R.     242.16(b) (1994).    Nevertheless,  at the  show-cause          hearing  the  IJ asked  petitioner,  then  age  15,  whether  the          allegations in the rule to show cause were true.  The  petitioner          answered affirmatively.                    The  IJ   also   reviewed  Form   I-213,   a   document          constituting  a  record  of   an  INS  officer's  interview  with                                          3          petitioner shortly  after petitioner's  alleged entry.   The form          attributed to petitioner  admissions similar to those  he made in          the later show-cause  hearing.   The IJ asked  petitioner if  the          statements  reported in  the  form were  correct, and  petitioner          acknowledged  that they were.   His comments  regarding the form,          and  Form  I-213  itself,  arguably  escaped  the  grasp  of  the          aforementioned  regulation,  8  C.F.R.    242.16(b),  because the          statements were not made as part  of the hearing, but, rather, in          custodial interrogation outside the IJ's presence.                    The IJ  found petitioner  deportable, and the  Board of          Immigration  Appeals (BIA) affirmed  despite an apparent conflict          with two unpublished  BIA decisions.  See In  re Garcia, NO. A70-                                                ___ _____________          006-067,  slip op. (BIA Aug.  17, 1993); In re Hernandez-Jimenez,                                                   _______________________          No. A29-988-097, slip  op. (BIA  Nov. 8, 1991).   Although  these          decisions  lacked  precedential  force,  see 8  C.F.R.     3.1(g)                                                   ___          (1994),  they  suggested that  the evidence  related to  the form          should have been excluded.  See Davila-Bardales, 27 F.3d at 4.                                      ___ _______________                    Petitioner sought  judicial  review.   We  vacated  the          order of deportation because the BIA had not adequately explained          the apparent inconsistency  between its unpublished  decisions in          Garcia  and Hernandez-Jimenez, on the one  hand, and its decision          ______      _________________          in  petitioner's  case, on  the  other  hand.   See  id.  at 5-6.                                                          ___  ___          Withal, we left open the possibility that the BIA might develop a          consistent and  principled rule  which would sometimes  allow the          introduction  of an unaccompanied  minor's statements made during          custodial interrogation.  See id.  Shortly thereafter, petitioner                                    ___ ___                                          4          filed the instant motion.                                          II                                          II                    The  EAJA  permits   a  prevailing  party  to   recover          reasonable counsel fees and expenses incurred in civil litigation          with  the  government, but  only if  the  government has  taken a          position  that is  not "substantially  justified" and  no special          circumstance  renders  a fee  award unjust.    See De  Allende v.                                                         ___ ___________          Baker, 891 F.2d 7, 8 (1st Cir. 1989); Sierra Club v. Secretary of          _____                                 ___________    ____________          the Army, 820 F.2d 513, 516-17 (1st Cir. 1987).          ________                    The threshold requirement  for access to EAJA  benefits          is  that a  party  prevail in  his  litigation with  the  federal          sovereign.    It is  unclear  whether  petitioner satisfies  this          benchmark:  it is problematic whether one is a "prevailing party"          within the meaning of the EAJA merely because he secures a remand          for  further agency action.   Several cases have  held or implied          that prevailing party status  is only conferred upon a  party who          wins at  least part of  the ultimate relief  sought.   See, e.g.,                                                                 ___  ____          Hanrahan  v.  Hampton, 446  U.S.  754,  758-59 (1980)  (rejecting          ________      _______          prevailing party status under 42 U.S.C.   1988 for one who merely          obtains vacation of  a directed verdict on  appeal); Escobar Ruiz                                                               ____________          v.  INS, 787  F.2d 1294,  1297 (9th  Cir. 1986), aff'd,  838 F.2d              ___                                          _____          1020,  1029 (9th  Cir.  1988) (en  banc);  see also  Texas  State                                                     ___ ____  ____________          Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-92          ______________    _________________________          (1989).   Here,  petitioner  has not  yet  obtained any  ultimate                                                                   ________          relief as the issue of his deportability remains unsettled.                    We are  hesitant to  decide the matter  on this  basis,                                          5          however, as the status  of these cases  has been drawn into  some          question by  the Court's recent  opinion in Shalala  v. Schaefer,                                                      _______     ________          113 S. Ct. 2625, 2631-32 (1993), which held that procurement of a          "sentence  four"  remand  in   the  context  of  social  security          litigation   qualifies  the   putative  benefit-recipient   as  a          prevailing  party.     And,  moreover,  the   record  reveals  an          independent basis on which the motion can be decided.  Because we          find  the   government's  position   in  the  present   case  was          substantially  justified, see  infra,  we  skirt the  challenging                                    ___  _____          legal  question  of  whether  petitioner  can  at  this  stage be          considered a prevailing party.                    The   question   of   what   constitutes   "substantial          justification" has proven to be a vexing one, best addressed on a          case by case basis.  In Pierce v. Underwood, 487 U.S. 552 (1988),                                  ______    _________          the  Court   noted  that   substantial  justification   does  not          necessarily  mean  justified  to  a  high  degree,  but,  rather,          requires  only  that  the  government's  stance  must  have  been          "justified to a  degree that could satisfy  a reasonable person."          Id. at  565.  Accordingly, the test  of substantial justification          ___          turns  on whether  the government's  position was  "reasonable in          both law  and fact."  United  States v. Yoffe, 775  F.2d 447, 449                                ______________    _____          (1st Cir. 1985).   What is  more, an  unfavorable outcome in  the          underlying litigation,  by itself, does not  create a presumption          that the government's  position was not substantially  justified.          See De Allende, 891 F.2d at 12; Sierra Club, 820 F.2d at 517.          ___ __________                  ___________                    Frequently,  the issue of  substantial justification is                                          6          bifurcated so that  an inquiring court  may consider, first,  the          reasonableness of the government's  agency position, and, second,          the reasonableness of its litigation position.  See, e.g., United                                                          ___  ____  ______          States v.  One Parcel of  Real Property, 960  F.2d 200, 209  (1st          ______     ____________________________          Cir. 1992).  We eschew such  a bifurcated approach in the instant          case.   In the first place,  the Supreme Court has  held that the          EAJA does not apply  to civil deportation proceedings  before the          INS,  see Ardestani  v.  INS, 112  S. Ct.  515,  521 (1991),  and                ___ _________      ___          petitioner, mindful of  this impediment, has not  sought fees for          proceedings prior to  those conducted  in this court.   Thus  our          analysis of substantial justification must focus primarily on the          INS's litigation position in this venue as opposed to its conduct          in bringing  the deportation  proceedings and in  considering the          petitioner's admissions during custodial interrogation.   Second,          and relatedly, we have  held that adjudicators, even though  part          of  the Executive Branch, are  exempt from the  provisions of the          EAJA.   See In  re Perry, 882  F.2d 534, 539-41  (1st Cir. 1989).                  ___ ____________          Consequently, our analysis of substantial justification must look          primarily  from the perspective of  the INS rather  than from the          perspective of the BIA.                                         III                                         III                    Applying the  standard we have described,  we find that          the  government has met its  burden of showing  that its position          was  substantially justified.  The law concerning the status of a          minor's  admissions  during  interrogation  at  the   border  was          tenebrous  before our decision  in the instant  case, and remains                                          7          somewhat murky.  There  was no precedent in this  court regarding          admissions  of   deportability  by  minors,  and   the  only  BIA          discussions of the issue were in unpublished opinions, which have          no  precedential value.  This lack of clarity in the law strongly          suggests substantial justification for the government's position.          See De  Allende, 891 F.2d  at 12-13; Mattson  v. Bowen,  824 F.2d          ___ ___________                      _______     _____          655, 657  (8th Cir. 1987); Martinez v. Secretary of HHS, 815 F.2d                                     ________    ________________          1381,  1383 (10th  Cir.  1987).    Put  another  way,  since  the          petitioner's statements  seemingly fell outside the  reach of the          only  applicable  regulation, there  was  a  significant lack  of          guidance  in  the  law,  and  the  government  was  substantially          justified  in adhering to  its position that  the IJ and  the BIA          properly relied upon the disputed statements.                    This  was especially  true  in the  situation at  hand.          After   all,  the  INS  had  good  reason  to  believe  that  the          circumstances surrounding the  petitioner's statements  supported          the veracity and reliablilty of the admissions; the transcript of          the hearings reveals  that petitioner was able  to understand and          articulate answers to the  relatively simple factual questions he          was asked.  Although  the BIA displayed regrettable inconsistency          in  its   decisions,  the  INS  could   realistically  hope  that          petitioner's statements  would prove admissible in  the end, even          if the statements became subject  to a consistent rule  governing          unaccompanied admissions made during custodial interrogation.                    We  think,  too, that  the posture  of the  case argues          cogently in favor of a finding of substantial justification.  The                                          8          INS prevailed initially, both  before the IJ and before  the BIA.          It did  not seek judicial  review, but  came to this  court as  a          respondent.     While  we  are  not  prepared  to  say  that  the          government,  qua respondent,  may never  be held  responsible for                       ___          fees  under the EAJA if the petitioner prevails, cf. Sierra Club,                                                           ___ ___________          820 F.2d at 519-20 (affirming EAJA award of reasonable attorneys'          fees  in  non-administrative  adjudication, despite  "evanescent"          government   victory  in   the   district   court,  because   the          government's legal position was so obviously contrary to existing          law), we are very reluctant to criticize the INS for opposing the          petition for review in this court, given that the BIA already had          decided the case in its favor.   Thus, we conclude that the INS's          position,  though ultimately  unsuccessful, was  reasonable under          the circumstances.                                            IV                                          IV                    We  need  go  no  further.   Because  the  government's          position was  substantially justified  within the meaning  of the          EAJA, petitioner's motion for attorneys' fees is           Denied.          ______                                          9
