                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-25-2005

Johnson v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 03-1931




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                                           PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                        No. 03-1931


                    JIMMY JOHNSON,

                                  Petitioner

                             v.

      *ALBERTO R. GONZALES, Attorney General
               of the United States,

                                  Respondent


               On Motion for Attorneys’ Fees


                  Argued October 28, 2004

Before: NYGAARD, AMBRO, and GARTH, Circuit Judges

               (Opinion filed: July 25, 2005)

      * Substituted pursuant to Federal Rule of Appellate
Procedure 43(c)(2).
Visuvanathan Rudrakumaran, Esquire (Argued)
875 Avenue of the Americas
New York, NY 10001

      Attorney for Petitioner

Peter D. Keisler
  Assistant Attorney General
United States Department of Justice
Civil Division
Donald Keener
  Assistant Director
Alison Marie Igoe
  Senior Litigation Counsel
Douglas E. Ginsburg, Esquire
John M. McAdams, Jr., Esquire
Janice K. Redfern, Esquire
Norah A. Schwarz, Esquire (Argued)
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, DC 20044

      Attorneys for Respondent




                OPINION OF THE COURT


AMBRO, Circuit Judge


                                2
      Jimmy Johnson moves for attorneys’ fees pursuant to the
Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412(d)(1)(A). For the reasons that follow, we grant his
motion.

                        I. Background

       Johnson petitioned our Court for review of the decision
of the Board of Immigration Appeals (“BIA”) denying his
asylum application. Johnson is a native of Liberia who fled that
country after being forcibly recruited into and then deserting the
army of the National Patriotic Front of Liberia (“NPFL”)—a
group associated with Charles Taylor, who later became the
President of Liberia (and subsequently abdicated that position).
The BIA determined that Johnson “ha[d] failed to show that he
was persecuted on account of his political opinion, and that his
‘persecution’ was not solely the result of the guerillas’ aim in
seeking to fill their ranks in order to carry out the war with the
government and pursue their political goal, their political motive
being irrelevant.”

      We granted Johnson’s petition for review, holding that
the BIA’s decision was not supported by substantial evidence
when it failed even to consider Johnson’s testimony from his
second asylum hearing (which the Immigration Judge (“IJ”)
determined credible in a finding not disturbed by the BIA) in




                                3
reviewing the IJ’s decision resulting from that hearing.1 See
Johnson v. Ashcroft, No. 03–1931, 2004 WL 2966435, at *3 (3d
Cir. Dec. 23, 2004).2

       Johnson’s motion for attorneys’ fees relating to his
petition for review is now before us.

                        II. Jurisdiction

       Under the EAJA, a motion for attorneys’ fees must be
filed “within thirty days of final judgment in the action.” 28
U.S.C. § 2412(d)(1)(B). In this context, “‘final judgment’
means a judgment that is final and not appealable . . . .” 28
U.S.C. § 2412(d)(2)(B). We have held that “the thirty day cut-
off for EAJA petitions begins when the government’s right to


      1
     At that hearing Johnson testified, inter alia, that (1) he
believed the Liberian civil war was unjust, and (2) the NPFL
forces that had forcibly recruited him and had since gained
power in Liberia would impute an anti-NPFL (and therefore
anti-Charles Taylor) political opinion to him based on his
desertion. He testified that the NPFL acted on the principle that
“if you do not follow them, they view you as supporting other
groups.”
  2
   We also held that Johnson had waived his claim that the BIA
erred in reversing the IJ’s grant of relief on his withholding of
removal claim because he referred to that claim only in passing
in his brief before this Court. Id. at *1 n.1.

                               4
appeal the order has lapsed.” Taylor v. United States, 749 F.2d
171, 174 (3d Cir. 1984) (per curiam).

        The Government’s time to petition for a writ of certiorari
in this case expired on March 22, 2005. Johnson, however, filed
his motion on March 18, 2005. This technicality need not
concern us, as we have noted that “[t]he EAJA establishes only
a deadline after which . . . petitions may not be filed; earlier
filing is possible.” Id. at 175 n.8. Johnson’s motion for
attorneys’ fees thus is properly before us, and we now turn to the
merits of that motion.

                        III. Discussion

        “[T]he essential objective of the EAJA [is] to ensure that
persons will not be deterred from seeking review of, or
defending against, unjustified governmental action because of
the expense involved in the vindication of their rights . . . .”
Clarke v. INS, 904 F.2d 172, 178 (3d Cir. 1990) (internal
quotation omitted). The EAJA thus provides, in pertinent part,
as follows:

              Except as otherwise specifically
              provided by statute, a court shall
              award to a prevailing party other
              than the United States fees and
              other expenses . . . incurred by that
              p a rty in any civil a c tio n

                                5
              . . . 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) (emphases added).

       Accordingly, we must first determine whether Johnson
was the “prevailing party” in this action under the EAJA. If we
conclude that he is, we must then consider whether the position
of the United States in this case was “substantially justified.” 3

       A.     Prevailing Party

        The question we are faced with here—whether an alien
who prevails on his/her petition for review before us but whose
case is remanded to the BIA for further proceedings (and who
therefore may not ultimately prevail in his/her immigration


       3
       The Government does not contend that “special
circumstances” exist in this case, and so we do not discuss this
element of the statute.

                                 6
proceedings) is a “prevailing party” for EAJA purposes—is one
of first impression in our Circuit. The Court of Appeals for the
Ninth Circuit, in a decision later adopted by the Court of
Appeals for the Seventh Circuit, has answered that question in
the affirmative. See Rueda-Menicucci v. INS, 132 F.3d 493, 495
(9th Cir. 1997) (rejecting Government argument that
“petitioners [were] not prevailing parties within the meaning of
the EAJA because they merely secured a remand for further
agency action, and did not obtain affirmative relief on the merits
of their underlying claims for asylum and withholding of
deportation”); see also Muhur v. Ashcroft, 382 F.3d 653, 654
(7th Cir. 2004) (agreeing with Rueda-Menicucci and holding
that “when a court of appeals, as in this case, reverses a denial
of asylum because the denial was erroneous, and sends the case
back to the immigration service for further proceedings, the
applicant is a prevailing party”).

       Both Courts held that this result was dictated by the
Supreme Court’s decision in Shalala v. Schaefer, 509 U.S. 292
(1993). Muhur, 382 F.3d at 654; Rueda-Menicucci, 132 F.3d at
494, 495. In Schaefer, the Court’s opinion explained that “[i]n
cases reviewing final agency decisions on Social Security
benefits, the exclusive methods by which district courts may
remand to the Secretary are set forth in sentence four and
sentence six of [42 U.S.C.] § 405(g) . . . .” 509 U.S. at 296.
The Court ruled that a Social Security claimant who secured a
“sentence-four” remand to the agency—as opposed to a
“sentence-six” remand—for further proceedings was a

                                7
prevailing party under the EAJA because such a remand
“terminate[d] the litigation with victory for the plaintiff.” Id. at
300–02.

        In reaching this conclusion, the Court emphasized that a
“sentence-four” remand results in the immediate entry of
judgment (and relinquishment of jurisdiction) by the District
Court, whereas in the “sentence-six” remand context judgment
is not entered (and the District Court retains jurisdiction) until
post-remand agency proceedings are complete. Id. at 297.
Thus, a “sentence-four” remand terminates federal court
litigation in favor of the plaintiff, but a “sentence-six” remand
does not. The Court further reasoned that a person who
obtained a “sentence-four” remand reversing the Secretary of
Health and Human Services’s denial of benefits “certainly” met
its description of a prevailing party—someone who has
“‘succeeded on any significant issue in litigation which
achieve[d] some of the benefit . . . sought in bringing suit.’” Id.
at 302 (quoting Texas State Teachers Ass’n v. Garland Indep.
Sch. Dist., 489 U.S. 782, 791–92 (1989)).

        The Seventh and Ninth Circuits determined that a remand
to the BIA in an immigration case is essentially the same as a
“sentence-four” remand in a Social Security case. See Muhur,
382 F.3d at 654 (holding that the Court could not “see any
difference” between a remand to the BIA and the “sentence-
four” remand at issue in Schaefer); Rueda-Menicucci, 132 F.3d
at 495 (holding that both “sentence-four” remands and remands

                                 8
to the BIA “terminate[] judicial proceedings and result[] in the
entry of final judgment”).4 We agree with this conclusion. As
the Seventh Circuit stated, the Social Security claimant in
Schaefer

              who persuade[d] the court of
              appeals to set aside the Social
              Security Administration’s denial of
              benefits [was] a prevailing party in
              the judicial proceeding because
              nothing remain[ed] to be done by
              the court, which having found error
              ha[d] finished with the case and
              relinquished jurisdiction.

Muhur, 382 F.3d at 654 (emphasis added).

       We have the same situation here. Johnson secured the
setting aside of an erroneous BIA decision in his case. We
entered judgment in his favor and relinquished jurisdiction.


  4
    In Rueda-Menicucci, the Ninth Circuit explicitly overruled
its prior case law on this issue in light of Schaefer. Rueda-
Menicucci, 132 F.3d at 495 (“We conclude that
Schaefer effectively overrules our [previous] holdings . . . that
the entry of judgment remanding a case to the BIA for further
consideration does not constitute a final judgment in favor of the
petitioner.”).

                                9
Thus, pursuant to the reasoning of Schaefer, he is the prevailing
party in this proceeding for EAJA purposes regardless whether
he ultimately prevails in his underlying immigration
proceeding.5

        Accordingly, we join our sister Circuit Courts in holding
that an alien whose petition for review of a BIA decision is
granted by our Court and whose case is then remanded to the
BIA is a prevailing party under the EAJA, and may therefore be
entitled to attorneys’ fees. Having determined that Johnson is a
prevailing party, we turn to whether the Government’s position
in this litigation was “substantially justified,” a second leg of
analysis in Johnson’s quest for fees.


  5
   We note that the Government merely points out that whether
an alien in Johnson’s situation is a prevailing party is an issue of
first impression in our Circuit and does not argue that we should
not adopt the position taken by other courts. The Government
does assert, in the context of arguing that its litigation position
was substantially justified, that Johnson did not prevail on his
withholding of removal claim. However, Johnson clearly
prevailed on the main issue in this case—his asylum claim. Cf.
Schaefer, 509 U.S. at 302 (noting that litigant who had
succeeded on a significant issue in the litigation was a prevailing
party). Moreover, the fact that he did not succeed on one of his
claims is relevant to the determination of the amount of fees that
should be awarded, see Section IV below, not to the
determination of whether Johnson is entitled to fees under the
EAJA.

                                10
       B.      Substantially Justified

       The Supreme Court has held that, as used in the EAJA,
“substantially justified” does not mean “justified to a high
degree” but instead means “justified in substance or in the
main—that is, justified to a degree that could satisfy a
reasonable person.” Pierce v. Underwood, 487 U.S. 553, 565
(1988). Put another way, substantially justified means having a
“reasonable basis in both law and fact.” Id. (internal quotation
omitted).    Thus, “[a] court must not assume that the
government’s position was not substantially justified simply
because the government lost on the merits.” Kiareldeen v.
Ashcroft, 273 F.3d 542, 554 (3d Cir. 2001).

         We have held that, in immigration cases, the Government
must meet the substantially justified test twice—once with
regard to the underlying agency action and again with regard to
its litigation position in the proceedings arising from that action.
See id. at 545 (“First, [the Government] must independently
establish that the agency action giving rise to the litigation was
substantially justified. Second, it must establish that its
litigation positions were substantially justified.”). In our
analysis of the first threshold, we ask whether the government
had a reasonable basis to begin the agency proceeding and
litigate before the IJ. Id. at 554.

       Other courts have applied similar tests in making the
“substantially justified” determination in an immigration

                                11
context. In particular, the Court of Appeals for the Second
Circuit—noting that “[t]he EAJA defines ‘position of the United
States’ as ‘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’”—has held that courts must look
at the Government’s position in both the underlying agency
proceeding as well as in the federal court proceeding in
determining whether that position was substantially justified.
Vacchio v. Ashcroft, 404 F.3d 663, 675 (2d Cir. 2005) (quoting
28 U.S.C. § 2412(d)(2)(D)); see also Al-Harbi v. INS, 284 F.3d
1080, 1084–85 (9th Cir. 2002) (per curiam) (holding that “[i]n
making a determination of substantial justification, the court
must consider the reasonableness of both the underlying
government action at issue and the position asserted by the
government in defending the validity of the action in court”
(internal quotation omitted)).

       Thus, as the Ninth Circuit has emphasized, “when we
decide whether the government’s litigation position is
substantially justified, the EAJA . . . favors treating a case as an
inclusive whole rather than as atomized line items . . . .” Al-
Harbi, 284 F.3d 1084–85 (internal quotation omitted) (also
stating that it “is the decidedly unusual case” where “there is
substantial justification under the EAJA even though the
agency’s decision was reversed as lacking in ‘reasonable,
substantial and probative evidence in the record’” (quoting Al-
Harbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001))). With these
standards in mind, we consider whether the Government’s

                                12
position was substantially justified in our case.

              1.     The Agency Action

        It is the Government’s burden to prove that its position
at the agency level was substantially justified. However, the
Government’s response to Johnson’s motion makes no reference
to its position during the underlying proceedings (focusing
instead on the proceedings in our Court), and it has thus waived
any argument on this ground. See Laborers’ Int’l Union of N.
Am. v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994).
Even if we were to reach this issue, we would conclude that the
Government’s position in Johnson’s immigration proceedings
was not substantially justified.

        During Johnson’s removal proceedings, the
Government’s main legal argument appears to have been the
same one it made before us—that Johnson was not entitled to
relief because his asylum claim was solely based on his forcible
recruitment into the NPFL, which the Supreme Court held in
INS v. Elias-Zacarias, 502 U.S. 478 (1992), is insufficient to
demonstrate persecution on account of political opinion. Id. at
483. The Government’s reliance on Elias-Zacarias at the outset
of Johnson’s removal proceedings had a reasonable basis in law
and fact because, in his asylum application, Johnson stated only
that the NPFL killed deserters to teach them a lesson and did not
mention anything from which a conclusion could be drawn that
the persecution he feared suffering if returned to Liberia was

                               13
due to his political opinion.

        However, at his second asylum hearing—the hearing that
gave rise to the BIA decision reviewed by our Court—Johnson
testified that the NPFL would attribute an anti-Charles Taylor
political opinion to him based on his desertion and that he feared
being persecuted as a result of that imputed political opinion if
removed to Liberia. We have held that an asylum claim may be
based on imputed political opinion. See Lukwago v. Ashcroft,
329 F.3d 157, 181 (3d Cir. 2003) (recognizing that an alien may
be eligible for asylum if the persecution he suffered, or has a
well-founded fear of suffering, is “‘on account of a political
opinion the applicant actually holds or on account of one the
foreign government has imputed to him’” (quoting
Balasubramanrim v. INS, 143 F.3d 157, 165 n.10 (3d Cir.
1998))). The BIA has also recognized the availability of asylum
relief for aliens who were persecuted, or feared persecution,
based on imputed grounds since at least 1996, long before the
Government’s appeal of the IJ’s grant of relief to Johnson. See
In re S-P-, 21 I. & N. Dec. 486, 489 (BIA 1996) (“Persecution
for ‘imputed’ grounds (e.g., where one is erroneously thought to
hold particular political opinions . . . ) can satisfy the ‘refugee’
definition.”).

       In addition, both our Court and the BIA have used the
“mixed motive” mode of analysis in asylum cases. Under that
jurisprudence, an alien may be eligible for asylum even if the
persecution he or she suffered, or fears suffering in the future,

                                14
is only partially based on a ground enumerated in the
Immigration & Nationality Act (“INA”), 8 U.S.C.
§ 1101(a)(42). See, e.g., Singh v. Gonzales, 406 F.3d 191, 196
(3d Cir. 2005) (holding that an applicant for asylum need not
prove that the persecution he or she suffered occurred solely on
account of one of the five grounds enumerated in the INA but
rather could demonstrate eligibility for asylum by showing that
the persecution occurred at least in part on account of one of
those grounds); Amanfi v. Ashcroft, 328 F.3d 719, 727 (3d Cir.
2003) (noting that the BIA’s decision in In re S-P- “held that an
alien need only prove that the persecutor was motivated in
significant part by a protected characteristic”); In Re S-P, 21 I &
N Dec. at 497.

        Once the Government knew that Johnson had credibly
testified that he feared persecution at least in part on account of
an imputed political opinion, its continued reliance on Elias-
Zacarias to argue that the IJ erred in granting Johnson relief was
no longer reasonable. Accordingly, Johnson is entitled to
attorneys’ fees under the EAJA because (1) the Government has
waived any argument that its litigation position at the agency
level was substantially justified, and (2) even if it did not we
would conclude that the Government’s position before the
agency did not have a reasonable basis in law and fact. For the
sake of completeness, however, we briefly address the second
prong of the substantially justified test—whether the
Government had a reasonable basis for defending the BIA’s
action before our Court.

                                15
              2.      The Government’s Position in Opposing
                      Johnson’s Petition for Review

        As stated earlier, we held that the record in this case
compelled the conclusion that the BIA erred in denying
Johnson’s asylum claim because (1) Elias-Zacarias does not
foreclose an asylum claim based on forcible recruitment into a
guerilla group if another factor (i.e., an enumerated ground
under the INA) is present, and (2) the BIA erred in failing even
to mention Johnson’s testimony from his second asylum hearing.
Johnson, 2004 WL 2966435, at *2.              The Government
nonetheless contends it was “substantially justified in arguing
that [Johnson] feared punishment as a deserter and that his fears
were unrelated to a statutorily protected ground.” It relies on
Johnson’s statement in his asylum application that the NPFL
killed deserters “to give a sanguinary lesson to other warriors”
and Johnson’s testimony in his first hearing before the IJ that
deserters were killed to teach a lesson to others who had been
forcibly recruited into NPFL service.

        This argument is doubly flawed. First, the Government,
like the BIA, ignores Johnson’s credible testimony from his
second asylum hearing. Second, the Government’s assertion
that its position was substantially justified ignores our (and the
BIA’s) “mixed motive” case law. See Section III.B.1, supra.
Under that line of cases, Johnson may be eligible for asylum so
long as the persecution he fears suffering if returned to Liberia
is based in significant part on imputed political opinion. The

                               16
Government’s apparent position to the contrary—that the
portions of Johnson’s testimony that the NPFL killed deserters
for reasons other than political opinion foreclose Johnson’s
asylum claim—does not comport with the mixed motive mode
of analysis and is therefore not substantially justified.6 Cf.
Rueda-Menicucci, 132 F.3d at 495 (holding that the
Government’s position that petitioner was not entitled to asylum
was not substantially justified when the Government defended
a BIA decision that was “contrary to agency and circuit
precedent”).



  6
     We note that our case is quite different from those in which,
despite the alien’s success on his or her petition for review, the
Government was held to have had a substantially justified
litigation position. For example, in Vacchio and Kiareldeen, the
Government’s position was determined to be substantially
justified because it was defending the constitutionality of a
statute (in those cases, provisions of the INA). Vacchio, 404
F.3d at 674; Kiareldeen, 273 F.3d at 550–51. Our case, by
contrast, presented no constitutional issues. Our Kiareldeen
decision also emphasized that the Government’s position (in
favor of detaining the petitioner, who was suspected of being
involved in the 1993 World Trade Center attack, throughout his
removal proceeding) was substantially justified in light of the
passage of the USA Patriot Act and the Government’s
compelling interest in investigating potential terrorist activity.
273 F.3d at 555–56.              There is no such national
security/investigatory interest implicated here.

                               17
                            *****

        In sum, we conclude that an alien in Johnson’s
position—one whose petition for review before our Court has
been successful and whose case is remanded to the BIA for
further proceedings—is a prevailing party under the EAJA.
Because the Government’s position was not substantially
justified at the agency level or before us, Johnson is, as the
prevailing party in this action, entitled to attorneys’ fees. Our
final inquiry is the appropriate amount of the fee award.



                    IV. Amount of Award

       The EAJA provides that “attorney fees shall not be
awarded in excess of $125 per hour unless the court determines
that an increase in the cost of living or a special factor, such as
the limited availability of qualified attorneys for the proceedings
involved, justifies a higher fee . . . .”                28 U.S.C.
§ 2412(d)(2)(A)(ii). Johnson’s counsel argues that he is entitled
to reimbursement at a rate of $200 per hour because immigration
cases require specialized expertise and because there were a
limited number of qualified attorneys who would have taken
Johnson’s case. We disagree.

        This case primarily raised the issue of whether the BIA
had failed to consider Johnson’s testimony regarding the
political opinion that might be imputed to him by the NPFL.

                                18
Although Johnson’s counsel is an experienced attorney who
specializes in immigration, he was here faced with a case of
straightforward application of the substantial evidence and
asylum standards. It was not a case that required research into
little-known areas of immigration law or particular knowledge
of Johnson’s Liberian culture—factors that might justify an
award above the statutory cap. Cf. Rueda-Menicucci, 132 F.3d
at 496 (holding that “[w]hile . . . a specialty in immigration law
could be a special factor warranting an enhancement of the
statutory rate[,] . . . counsel’s specialized skill was not needful
for the litigation in question” (internal quotation and citations
omitted)). We also note that Johnson’s counsel offers no
evidentiary support for his assertion that there were a limited
number of qualified attorneys available who would take on this
case at the statutory rate. For the reasons above, we find no
reason to pierce the statutory ceiling, and thus we award
attorneys’ fees to Johnson’s counsel at the statutorily prescribed
rate of $125 per hour.

       The number of hours counsel spent on Johnson’s case is
reasonable, and the Government does not argue otherwise.7


   7
    The Government’s argument that Johnson should not be
awarded fees for any work on his withholding of removal claim
(because he did not prevail on that claim) is rendered moot by
Johnson’s reply brief, which clarifies that his counsel has not
requested any fees for work done in furtherance of the
withholding of removal claim and requests reimbursement solely

                                19
Therefore, we award Johnson fees for his counsel’s claimed 82
hours of work, at the statutory rate, plus $549.89 in costs,
resulting in a total award of $10,799.89.




for work done on Johnson’s asylum claim.

                             20
