Gomez–beleno v. Holder

• Decision Date: 07 July 2011
• Docket Number: Docket No. 07–0874–ag.
• Parties: Gilberto William GOMEZ–BELENO, Sandra Avila–Gaviria, a/k/a Sandra Avila–Gavaria, Petitioners,v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.*
• Court: U.S. Court of Appeals — Second Circuit

644 F.3d 139

Gilberto William GOMEZ–BELENO, Sandra Avila–Gaviria, a/k/a Sandra Avila–Gavaria, Petitioners,

v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.*

Docket No. 07–0874–ag.

United States Court of Appeals, Second Circuit.

Motion Submitted: May 3, 2011.Decided: July 7, 2011.

Anne Pilsbury, Central American Legal Assistance, Brooklyn, N.Y., for Petitioners.Gregory G. Katsas, Assistant Attorney General, Linda S. Wernery, Assistant Director, Walter Bocchini, Attorney,^† Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for Respondent (on the motion).Before: JOHN M. WALKER, JR., CALABRESI, and WESLEY, Circuit Judges.CALABRESI, Circuit Judge:

Gilberto William Gomez–Beleno and Sandra Avila–Gaviria (collectively “the Petitioners”) successfully sought review by this Court of a final order of removal. They now move for costs and fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). The Government opposes the motion, arguing that the Petitioners are not entitled to a fee award on the ground that the “position of the United States was substantially justified.” Id. § 2412(d)(1)(A). We find that the position of the United States was not substantially justified. We therefore grant the Petitioners' motion and award them $9,690.00 in fees and $751.04 in costs.

PROCEDURAL BACKGROUND

I. Application for Relief

The Petitioners are natives and citizens of Colombia. They entered the United States in September 2001, as nonimmigrant visitors with authorization to remain for three months. On May 7, 2002, Gomez–Beleno, along with Avila–Gaviria as a derivative applicant, filed an application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).

In his application, Gomez–Beleno alleged that in March 2000, while working for a mining company in Colombia, he began receiving phone calls from individuals identifying themselves as members of the Fuerzas Armadas Revolucionarias de Colombia (the “FARC”).¹ These individuals, he asserted, pressured him to leave his job, join the FARC, and provide the organization with information about his employer. He further asserted that, having refused these overtures, he was repeatedly threatened and harassed by individuals claiming allegiance to the FARC. Among other things, he alleged that these individuals assaulted him, made intimidating phone calls to him and his family, and sent him a written death threat, known in Colombia as a “sufragio.” ²

After a hearing on September 4, 2002, an Immigration Judge (“IJ”) denied the application for relief. The IJ found that Gomez–Beleno's testimony, “while consistent internally and consistent with [his wife's testimony], was not plausible and was not believable.” The IJ further found that the testimony, even if credible, did not “demonstrate that [the Petitioners] have suffered persecution in a manner, which would warrant an award of asylum or other relief in this case.” That was so, the IJ explained, because (1) the acts described were acts of a “terrorist criminal organization,” not the Colombian government; (2) the acts described were “acts of extortion or recruitment” and were therefore not related to Gomez–Beleno's political opinions; and (3) the Colombian government “appears to be willing and, to the extent possible, able to provide protection to [Gomez–Beleno] and his family.” The IJ thus denied all requested relief and ordered the Petitioners removed to Colombia.

The Petitioners timely appealed the IJ's decision to the Board of Immigration Appeals (“BIA”), which, on April 9, 2004, affirmed the IJ's decision and dismissed the appeal. The BIA did not address the IJ's adverse credibility finding, but it did “agree” with the IJ that “the FARC threatened [Gomez–Beleno] because he refused to work for them, rather than due to his actual or imputed political opinion.” The BIA therefore concluded that Gomez–Beleno had “failed to establish that he suffered past persecution or has a well-founded fear of future persecution on account of a protected ground.” Although the BIA mentioned that Gomez–Beleno had applied for CAT relief, it did not specifically address his CAT claim.

II. First Petition for Review

On May 7, 2004, the Petitioners timely petitioned this Court for review of the BIA's decision. In response, and in lieu of a brief, the Government filed a motion to vacate and remand the case back to the BIA, claiming that the BIA (1) should have addressed the IJ's adverse credibility finding, and (2) should have further considered whether “Gomez–Beleno was targeted by the FARC by imputation to him of a political opinion.” The Petitioners opposed the Government's motion as premature; they urged us to make findings “on credibility and on the Petitioners' eligibility for asylum” before remanding the case.

On March 8, 2006, we issued an order (the “March 8 Order”) granting the Government's motion to vacate and remand, and we instructed the BIA to make findings as to: “(1) whether Gomez–Beleno had a political opinion; (2) whether the [FARC] threatened Gomez–Beleno, in whole or in part, based on that political opinion or a political opinion the FARC imputed to Gomez–Beleno; and (3) whether Gomez–Beleno is entitled to CAT relief.” We further instructed the BIA to “issue findings on Petitioners' CAT claim.” We also noted that “in its discretion, the BIA may, but is not required to, issue findings on the Petitioners' credibility.”

III. Proceedings on Remand

Following our decision to vacate and remand, the Government asked the BIA to send the case back to the IJ for additional fact-finding on the questions identified in the March 8 Order, noting that “the only way to rectify this situation is to remand.” In the alternative, the Government argued that the BIA should deny relief on the record before it.

The BIA did not remand for further fact-finding and, on February 6, 2007, issued a decision (the “February 6 Decision”) affirming the IJ's denial of relief and dismissing the appeal. “[A]gain declin[ing] to address the Immigration Judge's adverse credibility determination,” the BIA held that Gomez–Beleno had not “adduced sufficient evidence to suggest that the FARC's threats were motivated on account of his political opinion, imputed or otherwise.” In support of this conclusion, the BIA cited to “the wording of the sufragio,” which, it claimed, “indicat[ed] that the death threats received were due to [Gomez–Beleno's] ‘unwillingness to collaborate without cause.’ ” Certified Administrative Record at 3 (emphasis added). This was, however, a misquotation of the translated sufragio in the record, which actually referenced Gomez–Beleno's “unwillingness to collaborate with our cause.” Certified Administrative Record at 296 (emphasis added).

The BIA also agreed with the IJ's conclusion that Gomez–Beleno had failed to establish eligibility for CAT relief, holding that “there is no evidence in the record to suggest that the government of Colombia acquiesces to the illegal activities of [the FARC].”

IV. Second Petition For Review

Gomez–Beleno timely petitioned this Court for review of the BIA's February 6 Decision, and the Government moved for a remand on Gomez–Beleno's CAT claim. In particular, the Government claimed that remand was necessary so that the BIA could (1) “consider whether the Columbian [sic] government has ‘control’ over the FARC, and, if not, whether Petitioners can obtain CAT protection based on feared violence from groups not under the government's control,” and (2) “reevaluate its finding that the record contains ‘no’ evidence of government acquiescence.” The Government did not ask for a remand on Gomez–Beleno's asylum and withholding-of-removal claims.

We denied the Government's motion, and the Government then filed a brief on the merits. Consistent with its earlier motion, the Government maintained that a remand was necessary on the CAT claim. But the Government defended the BIA's treatment of the asylum and withholding-of-removal claims, contending that the record supported the BIA's conclusion that the FARC did not threaten Gomez–Beleno on account of an actual or imputed political opinion.

On September 3, 2008, in an unpublished summary order, we granted the petition for review, vacated the BIA's decision in its entirety, and remanded the case to the BIA. Gomez–Beleno v. Mukasey, 291 Fed.Appx. 411 (2d Cir.2008) (summary order). In remanding on Gomez–Beleno's asylum and withholding-of-removal claims, we emphasized the BIA's misquotation of the sufragio and wrote:

In its decision, the BIA quoted the sufragio as stating that Gomez–Beleno would be killed due to his “unwillingness to collaborate without cause.” In fact, the translation in the record indicates that the sufragio stated that Gomez–Beleno would be killed due to his “unwillingness to collaborate with our cause.” This mischaracterization of the record warrants remand. Indeed, its significance is plain: “without cause” may suggest that the FARC did not know the reason for Gomez–Beleno's refusal to assist them, while “with our cause” implies that the FARC believed that Gomez–Beleno would not assist them because he did not support their cause. As Gomez–Beleno argues, the sufragio may well establish that the FARC changed its focus from recruiting him to punishing him “for his attitude.”

Id. at 413 (citation omitted). In addition, we agreed with both the Petitioners and the Government that a remand was necessary on the CAT claim, finding that the BIA had “failed to consider whether the term ‘government’ in the regulations implementing CAT applies to the FARC as the de facto government in parts of Colombia.” Id. at 414.V. EAJA Motion

On October 2, 2008, the Petitioners, through their attorney, Anne Pilsbury, filed a timely motion for an EAJA award, requesting $9,690.00 in attorney's fees and $751.04 in costs, incurred in connection with the First and Second Petitions...