                            NOT RECOMMENDED FOR PUBLICATION
                                   File Name: 16a0510n.06
                                                                                                    FILED
                                                 No. 15-3328                                 Aug 26, 2016
                                                                                         DEBORAH S. HUNT, Clerk

                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT

RAMON AMEZOLA-GARCIA, aka Jose Rivera-                           )
Camarena,                                                        )
                                                                 )
        Petitioner,                                              )
                                                                 )        ON PETITION FOR REVIEW
v.                                                               )        FROM THE UNITED STATES
                                                                 )        BOARD OF IMMIGRATION
LORETTA E. LYNCH, U.S. Attorney General,                         )        APPEALS
                                                                 )
        Respondent.                                              )
                                                                 )



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

        ROGERS, Circuit Judge.            Ramon Amezola-Garcia (“Amezola”), a Mexican citizen

whose final removal order we recently upheld along with a remand for a voluntary-departure

determination, requests attorney 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.

        Amezola, 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

*
 The Honorable Judge Terrence Berg, United States District Judge for the Eastern District of Michigan, sitting by
designation.
No. 15-3328, Amezola-Garcia v. Lynch


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’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’s petition

was without merit. Amezola now applies for attorney fees under the EAJA, 28 U.S.C. § 2412.

       In order to recover attorneys’ 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 attorneys’ 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

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.


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No. 15-3328, Amezola-Garcia v. Lynch


       Amezola 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 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’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 had sufficient good moral character to merit voluntary departure.

Additionally, the question of whether Amezola 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



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No. 15-3328, Amezola-Garcia v. Lynch


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

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 United States v.

Heavrin, 330 F.3d 723 (6th Cir. 2003)). 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.




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