     Case: 16-60556      Document: 00514913605         Page: 1    Date Filed: 04/12/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                      No. 16-60556                            FILED
                                                                          April 12, 2019
                                                                         Lyle W. Cayce
DRIN SYLEJMANI,                                                               Clerk

              Petitioner

v.

WILLIAM P. BARR, U.S. ATTORNEY GENERAL,

              Respondent




                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A097 682 016


Before JOLLY, COSTA, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       On April 12, 2018, this court resolved the above-captioned case by
granting the petitioner’s petition for review of the Board of Immigration
Appeals’s decision denying his untimely motion to reopen his removal
proceedings. The court remanded the case to the Board to reconsider the
petitioner’s motion in the light of this court’s recent holding in Lugo-Resendez
v. Lynch, 831 F.3d 337 (5th Cir. 2016), which established that untimely


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 16-60556
motions to reopen are subject to equitable tolling. See Sylejmani v. Sessions,
729 F. App’x 317 (5th Cir. 2018).      Although it acknowledged that Lugo-
Resendez had not yet been decided when the Board denied the petitioner’s
motion, the court determined that the Board abused its discretion by failing to
consider the petitioner’s argument that 8 U.S.C. § 1229a(c)(7)’s 90-day
deadline for the filing of motions to reopen removal proceedings should be
equitably tolled in his case. See id. at 320–22. After securing remand, the
petitioner moved for attorney’s fees under the Equal Access to Justice Act
(EAJA), which provides that federal courts shall award fees to the prevailing
private party “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). The panel that decided the merits of the underlying
appeal was unable to achieve consensus upon the petitioner’s EAJA motion
and therefore transferred the motion to this panel. Because we find that the
government’s position was substantially justified, we DENY the petitioner’s
motion for attorney’s fees under the EAJA.
                                       I.
      In the underlying case, the petitioner successfully appealed an order of
the Board of Immigration Appeals (BIA) denying his motion to reopen his
removal proceedings under 8 U.S.C. § 1229a(c)(7). See Sylejmani, 729 F. App’x
317. For ease of reference, we restate the facts of that case below:
            Sylejmani, a citizen of Kosovo, was admitted to the United
      States on a J-1 exchange visitor visa. The visa permitted him to
      remain in the country until September 30, 2012, but he stayed
      beyond that date without authorization. In September 2013,
      Sylejmani retained attorney Nicholas Nevarez, Jr., who assisted
      Sylejmani and Sylejmani’s then-wife (herself a U.S. citizen) with
      paperwork supporting Sylejmani’s application for adjustment to
      lawful permanent resident status.
           In February 2014, the Department of Homeland Security
      (DHS) initiated removal proceedings against Sylejmani, charging
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                            No. 16-60556
 that he failed to maintain his status as an exchange visitor student
 and had remained in the United States without authorization. An
 initial hearing was held before an immigration judge (IJ) in April
 2014. Because Sylejmani did not have an attorney at the hearing,
 the IJ continued the proceedings to afford him the opportunity to
 obtain one.
       Sylejmani and his first wife divorced on August 21, 2014.
 Sylejmani then married his second wife (also a U.S. citizen) on
 October 7, 2014. Nevarez witnessed and performed the marriage
 ceremony. On November 10, 2014, Sylejmani’s second wife filed a
 Form I-130 Petition for Alien Relative with United States
 Citizenship and Immigration Services (USCIS).
 The November 2014 Hearing
        The immigration court held a second hearing on November
 12, 2014. Sylejmani, who was represented by Nevarez at that
 hearing, conceded removability but sought relief from removal via
 adjustment of status. Nevarez told the IJ that “an I-130 has been
 filed and is pending.” The IJ observed that because the second
 marriage occurred while removal proceedings were pending, there
 was a presumption that it was not entered into in good faith, and
 that Sylejmani therefore needed to present evidence to rebut that
 presumption. The IJ referred to the BIA’s decision in In re Hashmi,
 24 I. & N. Dec. 785 (BIA 2009), which sets forth the factors that an
 IJ should consider when determining whether to grant a
 continuance of “removal proceedings pending final adjudication of
 an I-130 filed in conjunction with an adjustment application” (i.e.,
 a “Hashmi continuance”). Id. at 790.
        Nevarez requested a continuance so that he could gather
 evidence to support a request for a Hashmi continuance, telling the
 IJ that he had just been retained to represent Sylejmani in the
 case that same day. The IJ asked when Sylejmani had hired
 Nevarez, and Nevarez replied, “for the deportation, yesterday.”
 The Government’s attorney opposed a continuance. Nevarez
 provided a copy of the I-130 petition and an accompanying letter.
 The IJ stated there was no evidence that the I-130 had actually
 been filed, no copy of the couple’s marriage license, and no birth
 certificate or other evidence establishing that Sylejmani’s second
 wife was a U.S. citizen. In light of this lack of evidence, the IJ
 refused to grant a continuance.

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                            No. 16-60556
       Since Nevarez could not present any other basis for relief,
 the IJ asked whether Sylejmani wanted to request voluntary
 departure. The IJ advised Sylejmani that:
       The benefit to you of voluntary departure . . . is that if
       your I-130 is later filed and if it’s approved and you
       can adjust your status, voluntary departure does not
       prevent you from doing that. If you don’t take
       voluntary departure and you end up with a removal
       order, then of course you’ll be barred from adjusting
       your status for ten years.
 After consulting with Nevarez, Sylejmani accepted voluntary
 departure, which required him to leave the United States by
 March 10, 2015. The IJ’s written order granted Sylejmani “pre-
 conclusion voluntary departure . . . in lieu of removal” and included
 a provision stating that Sylejmani had “waived appeal of all
 issues.”
 Appeal to the BIA
        Within a month, Sylejmani retained a new attorney, Orlando
 Mondragon, who filed an appeal with the BIA. Mondragon argued
 that the IJ’s denial of a continuance to allow Nevarez to obtain
 evidence and familiarize himself with the case amounted to
 effective denial of Sylejmani’s right to counsel, and that the IJ
 erroneously denied a Hashmi continuance. On October 23, 2015,
 the BIA dismissed the appeal for lack of jurisdiction, finding that
 Sylejmani waived his right to appeal by accepting pre-conclusion
 voluntary departure.
 The Motion to Reopen
       On April 18, 2016, Sylejmani, having obtained new counsel,
 filed a motion to reopen his case with the BIA. His central
 contention was that Nevarez and Mondragon rendered ineffective
 assistance of counsel. Specifically, Sylejmani argued that he hired
 Nevarez over a year before the November 2014 hearing, that
 Nevarez’s unjustifiable failure to prepare for that hearing resulted
 in the denial of a Hashmi continuance, and that Nevarez’s
 subsequent advice to elect voluntary departure substantially
 limited Sylejmani’s ability to obtain other relief. Sylejmani further
 asserted that Mondragon provided ineffective assistance by filing
 an appeal he knew would be dismissed due to Sylejmani’s waiver,
 and by advising Sylejmani not to file a complaint against Nevarez,
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                                 No. 16-60556
      even though such a complaint would have allowed Sylejmani to
      reopen the proceedings based on Nevarez’s ineffectiveness.
      Sylejmani acknowledged that the motion to reopen had not been
      filed within 90 days of the BIA’s dismissal of his appeal but
      maintained that equitable tolling applied because (1) the
      ineffective assistance of both of his prior attorneys qualified as an
      extraordinary circumstance, and (2) he was diligent in pursuing
      his claims.
             Sylejmani attached a substantial amount of evidence to his
      motion to reopen, including: a sworn affidavit recounting his
      representation by Nevarez and Mondragon; correspondence with
      Nevarez and Mondragon regarding their allegedly deficient
      performance; grievances filed by Sylejmani against both attorneys
      with the State Bar of Texas, and responses thereto; various
      immigration forms, including the I-130 petition filed by
      Sylejmani’s second wife; tax returns, including a 2014 tax return
      jointly filed by Sylejmani and his second wife; and the second wife’s
      birth certificate, which shows that she was born in the United
      States.
      The BIA’s Denial of the Motion to Reopen
            On July 22, 2016, the BIA issued an order denying
      Sylejmani’s motion to reopen “as untimely filed.” The BIA’s only
      reference to equitable tolling appeared in a single sentence:
      “Moreover, we decline to equitably toll the applicable time limits
      based on the respondent’s alleged ineffective assistance of former
      counsel(s) claim.”
Sylejmani, 729 F. App’x at 318–20.
      On appeal, the petitioner argued that the Board abused its discretion in
declining to equitably toll 8 U.S.C. § 1229a(c)(7)’s 90-day deadline to file a
motion to reopen removal proceedings:
      In his motion to reopen [and on appeal], Sylejmani conceded that
      he had not met the 90-day deadline but urged the BIA to apply
      equitable tolling. First, he argued that the ineffective assistance
      provided by his two previous attorneys qualified as an
      “extraordinary circumstance.” In that connection, he contended
      that compliance with the “strict procedural framework” set forth
      by the BIA in In re Lozada, 19 I. & N. Dec. 637 (BIA 1988), entails
      “a lengthy, time-consuming process” that merits equitable tolling,
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                                 No. 16-60556
      particularly given “the challenges of discovering the ineffective
      assistance” in the first place. Second, Sylejmani argued that he
      “diligently pursued his claim” by: (1) promptly seeking new counsel
      after the BIA dismissed his appeal and he “realized the error of his
      previous counsel”; and (2) subsequently taking steps to comply
      with Lozada’s requirements by collecting the written records in his
      case, submitting his allegations to both of his previous attorneys,
      providing them a reasonable time to respond, and then filing a
      complaint with the Texas State Bar.
Id. at 320–21.
      In the earlier appeal, the government responded to the petitioner’s
arguments by acknowledging that this court’s opinion in Lugo-Resendez v.
Lynch subjected § 1229a(c)(7)’s deadline to equitable tolling. The government
stressed, however, that the petitioner bears the burden of establishing that
equitable tolling is warranted and that tolling is “only appropriate in ‘rare and
exceptional circumstances.’” See Stroman v. Thaler, 603 F.3d 299, 302 (5th
Cir. 2010)). The government argued that the petitioner did not carry his
burden of demonstrating that such circumstances existed. First, equitable
tolling was not appropriate because of the petitioner’s unclean hands—he
failed to voluntarily depart the United States after he promised to do so.
Second, the Board reasonably concluded that the petitioner’s counsel was not
ineffective, and he failed to demonstrate that he was prejudiced in his pursuit
of adjustment of status. Third, the Board did not abuse its discretion by
determining that the petitioner was ineligible for adjustment of status based
on his marriage, which he entered into after the commencement of removal
proceedings.     Finally, the government argued, based on the text of the
Immigration and Nationality Act, BIA decisions, and Supreme Court
precedent, that allowing tolling in this case would create a variety of
consequences not intended by Congress because “granting such motions too
freely will permit endless delay of deportation by aliens creative and fertile


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                                     No. 16-60556
enough to continually produce new and material facts to establish a prima facie
case.” See INS v. Abudu, 485 U.S. 94, 108 (1988).
      The earlier panel ultimately held that the BIA abused its discretion by
failing to “provide[] a reasoned explanation for rejecting Sylejmani’s equitable
tolling argument” because it did not discuss the “two key elements of equitable
tolling—‘diligence’ and ‘extraordinary circumstances.’”             Sylejmani, 729 F.
App’x at 321 (citing Lugo-Resendez, 831 F.3d at 344–45). Instead, the Board
considered other factors without adequately “explain[ing] how those
considerations are relevant to the motion’s timeliness.” Id. Although the
government made numerous other arguments defending the Board’s decision
under equitable tolling standards and the statutory scheme, the panel refused
to consider these justifications because they were not adequately addressed in
the BIA’s decision itself. Id. at 321 n.3. The court concluded by noting that
the “particular standard for assessing equitable tolling claims” the Board failed
to rely upon were set out in this court’s Lugo-Resendez decision, released only
after the Board issued its order. Id. at 322 (citing Lugo-Resendez, 831 F.3d at
344–45). This court therefore remanded the case for the Board to apply the
proper equitable tolling standard.         Id.   After procuring this remand, the
petitioner moved for attorney’s fees under the EAJA. That motion is before
this panel for resolution, and we now consider whether attorney’s fees under
the EAJA should be awarded to the petitioner. 1
                                           II.
      The petitioner argues that it necessarily follows from the court’s
holding—that the BIA abused its discretion—that the agency action and the
government’s litigation position were not substantially justified, requiring an


      1  As we noted above, the panel that considered the merits of this appeal was unable
to reach consensus on the petitioner’s EAJA motion and thus transferred the motion to this
panel.
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                                 No. 16-60556
award of attorney’s fees under the EAJA. We begin with the premise that at
the time it denied the petitioner’s motion to reopen his removal proceedings as
untimely under § 1229a(c)(7)’s 90-day deadline, the BIA failed to apply
equitable tolling principles. According to the petitioner, the BIA should have
known it was required to do so in the light of the Supreme Court’s recent
decision in Mata v. Lynch, 135 S.Ct. 2150, 2156 (2015). The petitioner further
argues that the Board could have discerned such principles from Supreme
Court precedent applying equitable tolling in other statutory contexts.
      The government responds that the Board’s decision was made prior to
this court’s holding in Lugo-Resendez that equitable tolling was applicable to
motions to reopen under § 1229a(c)(7)(A); it follows that no standards had been
set when considering such an equitable tolling argument. Furthermore, the
government argues that the Board’s attempt to adjudicate the petitioner’s
motion was reasonable considering that this circuit’s “jurisprudence regarding
equitable tolling sought in an untimely motion to reopen evolved from no
jurisdiction (Ramos-Bonilla [v. Mukasey, 543 F.3d 216 (5th Cir. 2008)]) to, after
the Board’s decision here, setting a standard for the first time to review such
motions (Lugo-Resendez[, 831 F.3d 337]).”            Finally, the government
emphasizes that this circuit has consistently held that an adverse holding on
the merits does not automatically deem the government’s position
substantially unjustified. Instead, the government’s position need only have a
reasonable basis in law and fact. Here, the government argues that its position
had a reasonable basis in law and fact considering this circuit’s rapidly
evolving jurisprudence regarding the availability of, and proper standards for,
equitable tolling under § 1229a(c)(7)(A).




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                                       No. 16-60556
                                             III.
                                              A.
      Under the EAJA, this court may not order the government to pay
attorney’s fees if it 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). 2          To meet its burden, the government must
demonstrate that its position was “justified to a degree that could satisfy a
reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). “This
standard is not overly stringent, however, and the position of the government
will be deemed to be substantially justified ‘if there is a genuine dispute . . . or
if reasonable people could differ as to the appropriateness of the contested
action.’” Davidson v. Veneman, 317 F.3d 503, 506 (5th Cir. 2003) (quoting
Pierce, 487 U.S. at 565). The mere fact that the government lost—even if the
reviewing court held it acted unreasonably or arbitrary and capriciously—does
not alone demonstrate that its position was not substantially justified. See
Spawn v. W. Bank-Westheimer, 989 F.2d 830, 840 (5th Cir. 1993); Griffon v.
U.S. Dep’t of Health & Human Servs., 832 F.2d 51, 52 (5th Cir. 1987) (“Merely
because the government’s underlying action was held legally invalid as being
‘arbitrary and capricious’ does not necessarily mean that the government acted


      2   As relevant here, the EAJA states that:
               Except as otherwise specifically provided by statute, a court
               shall award to a prevailing party other than the United States
               fees and other expenses, in addition to any costs awarded
               pursuant to subsection (a), incurred by that party in any civil
               action (other than cases sounding in tort), including proceedings
               for judicial review of agency action, brought by or against the
               United States in any court having jurisdiction of that action,
               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).

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                                       No. 16-60556
without substantial justification.”). To determine whether the government’s
position was substantially justified, we first look to the BIA’s decision to deny
the petitioner’s motion to reopen and then examine the government’s litigation
position defending the agency action. See 28 U.S.C. § 2412(d)(2)(D) (“‘[P]osition
of the United States’ means, in addition to the position taken by the United
States in the civil action, the action or failure to act by the agency upon which
the civil action is based.”).
                                              B.
       Turning first to the BIA’s decision to deny the petitioner’s motion to
reopen, we find that the Board’s decision was made when the law was unsettled
and evolving in this circuit regarding equitable tolling under § 1229a(c)(7).
When the BIA denied the petitioner’s motion to reopen under § 1229a(c)(7), it
was unclear in the Fifth Circuit whether the statute even allowed the BIA to
equitably toll § 1229a(c)(7)’s deadline. See Mata, 135 S.Ct. at 2155 n.3 (“We
express no opinion as to whether or when the INA allows the Board to
equitably toll the 90-day period to file a motion to reopen. Moreover, we are
not certain what the Fifth Circuit itself thinks about that question.”). It was
not until our holding in Lugo-Resendez—issued after the Board’s decision—
that we established that the BIA must apply equitable tolling principles to
§ 1229a(c)(7)’s deadline. 3 See Sylejmani, 729 F. App’x at 322 (“We recognize
that when the BIA issued its decision, we had not yet decided Lugo-Resendez




       3  Even in Lugo-Resendez we noted that “the doctrine of ‘equitable tolling does not lend
itself to bright-line rules.’ ‘Courts must consider the individual facts and circumstances of
each case in determining whether equitable tolling is appropriate.’” Lugo-Resendez, 831 F.3d
at 344–45 (first quote from Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999), second quote
from Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002) (per curiam)). It is also worth
noting that the petitioner did not cite Lugo-Resendez in his appellate briefing; he only raised
its equitable tolling standard in his application for EAJA fees.

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                                  No. 16-60556
and thus had not set forth a particular standard for assessing equitable tolling
claims.”).
      Thus, we cannot but conclude that the Board was substantially justified
in applying Fifth Circuit precedent as it existed at the time of its decision to
determine that the petitioner was ineligible to toll the statutory deadline. Cf.
Nalle v. C.I.R., 55 F.3d 189, 192 (5th Cir. 1995) (noting that under 26 U.S.C.
§ 7430’s identical standard, “courts have held that petitioners had failed to
show that the government’s position was not substantially justified when
judicial decisions on the issue left the status of the law unsettled, or when the
issue was difficult or novel”).   Since we find that the agency action was
substantially justified, we must now look to the government’s litigation
position to see if it was also substantially justified.          See 28 U.S.C.
§ 2412(d)(2)(D).
                                       C.
      Like the BIA’s decision not to equitably toll the statute, we must examine
whether the government’s litigation position defending the agency action was
itself substantially justified. To recap: the substantial justification standard
is not “overly stringent,” Davidson, 317 F.3d at 506, and we must find
substantial justification when the government’s litigation position has a
“reasonable basis both in law and fact.” Pierce, 487 U.S. at 565. Therefore, we
will briefly examine the government’s arguments on appeal to determine if its
position had a reasonable foundation in the shifting sands of this case’s legal
and factual circumstances.
      The government’s central argument was that the BIA did not abuse its
discretion because the petitioner had not met his high burden to establish that
he was entitled to equitable tolling. The government made a variety of points
throughout its brief and specifically addressed and distinguished Lugo-
Resendez. Two examples serve to demonstrate that the government’s position
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                                      No. 16-60556
had a basis in both law and fact. First, the government argued that allowing
tolling here would conflict with the Supreme Court’s conclusion in Dada v.
Mukasey that a motion to reopen based in equitable tolling should not interfere
with statutory penalties for an alien’s failure to meet his voluntary departure
deadline. 554 U.S. 1, 19 (2008); 8 U.S.C. § 1229c(d)(2); 72 Fed. Reg. 67674,
67680; In re Zmijewska, 24 I. & N. Dec. 87 (BIA 2007). Second, the government
argued that the BIA’s decision was supported by indicium of congressional
intent “to foreclose the Board and the courts from applying an open-ended
equitable exception to the penalties for failing to depart within the time for
voluntary departure” and that the Board’s interpretations of the relevant
statutory and regulatory provisions were entitled to substantial deference. 4
Granting the petitioner equitable tolling, the government contended, when he
came to the Board with unclean hands (his failure to voluntarily depart after
accepting such an arrangement previously before the Board) would undermine
Congress’s intent and conflict with BIA precedent. The government’s brief
reflects various arguments grounded in statutory structure, legislative intent,
the regulatory scheme, and the precedents of the Supreme Court, Fifth Circuit,
and BIA. 5
       Based on the foregoing, we find that the government presented an
argument with a reasonable basis in both law and fact addressing this “novel
and difficult” issue.        Griffon, 832 F.2d at 53.             In Lugo-Resendez we
acknowledged that we were setting out a new standard in this circuit and
recognized that “equitable tolling does not lend itself to bright-line rules.” 831



       4For this argument, the government cited, inter alia, INS v. Aguirre-Aguirre, 526 U.S.
415, 424 (1999); Auer v. Robbins, 519 U.S. 452, 461 (1997); Ruiz-Romano v. Reno, 205 F.3d
837, 838 (5th Cir. 2000).
       5Ultimately the panel declined to consider most of these arguments because they were
not contained within the BIA’s original decision. See Sylejmani, 729 F. App’x at 321 n.3.

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                                      No. 16-60556
F.3d at 343, 344 (internal quotation marks and citation omitted). We decline
here to penalize the government under the EAJA for presenting arguments
reasonably grounded in various sources of law attempting to aid the court in
working out how Lugo-Resendez’s new standard should apply moving forward.
See Griffon, 832 F.2d at 53 (“We are also mindful in this regard that the ‘special
circumstances’ provision of section 2412(d)(1)(A) was in part designed to
‘insure that the Government is not deterred from advancing in good faith . . .
novel but credible . . . interpretations of the law that often underlie vigorous
enforcement efforts.’ [] We think the same considerations may legitimately
influence to some extent our determination of whether the government is
‘substantially justified’ in respect to a res nova legal position, at least where,
as here, we conceive a contrary result to be unjust.” (quoting Russell v. Nat’l
Mediation Bd., 775 F.2d 1284, 1290 (5th Cir. 1985))). We thus conclude that
the government has met its burden to demonstrate that its litigation position—
though not sufficient to save the BIA’s decision—was “justified to a degree that
could satisfy a reasonable person.” Pierce, 487 U.S. at 565.
                                            IV.
       In the light of this evolving and uncertain legal landscape, the agency
action and the government’s litigation position had a reasonable basis.
Although the BIA’s action ultimately was held to be an abuse of discretion, the
court “recognize[d] that when the BIA issued its decision, we had not yet
decided Lugo-Resendez and thus had not set forth a particular standard for
assessing equitable tolling claims.”              Sylejmani, 729 F. App’x at 322.
Accordingly, we find that the BIA’s denial of the petitioner’s motion and the
government’s defense of the agency action were substantially justified. 6



       6Because we find that the government’s position was substantially justified we do not
consider whether special circumstances exist that would make an award unjust.

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                              No. 16-60556
     The petitioner’s opposed motion for attorney’s fees and other expenses
under the Equal Access to Justice Act is DENIED.




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