Li v. Keisler
| Decision Date | 27 September 2007 |
| Docket Number | No. 04-74457.,No. 04-73258.,No. 06-71068.,04-73258.,04-74457.,06-71068. |
| Citation | 505 F.3d 913 |
| Parties | Jianping LI, Petitioner, v. Peter D. KEISLER,<SMALL><SUP>*</SUP></SMALL> Acting Attorney General, Respondent. Rigoberto Mendoza-Aguilera, Petitioner, v. Peter D. Keisler, Acting Attorney General, Respondent. Naznin M.B. Janmohamed, Petitioner, v. Peter D. Keisler, Acting Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Patricia Vargas, Alhambra, CA, for the petitioners, Jianping Li and Rigoberto Mendoza-Aguilera.
Judith L. Wood, Los Angeles, CA, for the petitioner, Naznin M.B. Janmohamed.
Terri J. Scadron, Patricia A. Smith, Alison R. Drucker, Office of Immigration Litigation, United States Department of Justice, Washington, DC, for the respondent, Peter D. Keisler.
Before: ALEX KOZINSKI, RONALD M. GOULD and CONSUELO M. CALLAHAN, Circuit Judges.
We consider applications for attorney's fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d), in three immigration petitions for review. Because the applications present similar issues, we consider them together.
Petitioner Li, an asylum applicant from China, filed a motion to reopen following the Immigration Judge's ("IJ") in absentia order of removal in his case. Petitioner asserted that he failed to appear for the hearing due to "exceptional circumstances," consisting of a high fever, drainage from his ear, loss of balance, headache and dizziness. In the alternative, petitioner claimed that, pursuant to the Board of Immigration Appeals' ("BIA") decision in Matter of M-S, 22 I & N Dec. 349 (BIA 1998), he was not required to demonstrate exceptional circumstances where he did not challenge removability, but rather sought to reopen in order to apply for the discretionary relief of asylum. The IJ found that petitioner had not established exceptional circumstances and denied the motion to reopen without addressing Matter of M-S. On appeal to the BIA, petitioner argued that the IJ's failure to address Matter of M-S denied him a full and fair hearing and violated due process. The BIA affirmed the IJ's decision, finding that petitioner had not established exceptional circumstances and that the due process claim was groundless.
After petitioner filed his opening brief, respondent moved to remand to the BIA to permit the BIA to consider petitioner's Matter of M-S claim and other arguments petitioner raised on appeal. Our Circuit Mediator granted respondent's motion and filed a remand order on December 16, 2005. The mandate issued the same day.
Petitioner filed an application for attorney's fees under EAJA on March 16, 2006. Respondent opposed the application because (1) it was untimely, (2) petitioner was not the prevailing party, and (3) an award of attorney's fees would be unjust.
Petitioner Janmohamed is an Indian citizen of Kenya who feared torture — specifically, female genital mutilation ("FGM")— should she be returned to her native country. After petitioner filed her opening brief, respondent filed an unopposed motion to remand proceedings to the Agency. Without conceding any error in the underlying proceedings, respondent requested a remand to the BIA so that the Agency could reexamine the IJ's analysis of petitioner's application for relief under Article 3 of the United Nations Convention Against Torture. Additionally, respondent acknowledged that the IJ did not explain why, given the credible evidence of petitioner's fear of FGM, petitioner did not establish a well-founded fear of persecution for purposes of asylum under 8 U.S.C. § 1158(b)(1). The Circuit Mediator granted respondent's motion and filed a remand order on August 16, 2006. The mandate issued the same day.
Subsequently, on October 16, 2006 (sixty-one days after issuance of the court's mandate), petitioner filed an application for attorney's fees under the EAJA. Respondent opposed the application because (1) it was untimely, (2) petitioner was not the prevailing party, and (3) an award of attorney's fees would be unjust.
Petitioner Mendoza-Aguilera filed a motion to reopen before the BIA to apply for a waiver of deportation pursuant to 8 U.S.C. § 1182(c) ("212(c)") in April 2004. Petitioner asserted that he became eligible for this relief while his appeal had been pending before the BIA in 1996, that his departure from the United States was not pursuant to a legally executed deportation order, and that he was denied effective assistance of counsel when his prior counsel failed to move to reopen.
After petitioner filed his opening brief, respondent moved to remand to permit the BIA to consider whether petitioner became eligible for 212(c) relief while his appeal was pending, and, if so, whether the BIA erred in dismissing petitioner's appeal without providing him an opportunity to seek such relief. In addition, respondent stated that the remand would allow the BIA to address whether petitioner was denied effective assistance of counsel and whether petitioner's departure from the United States was pursuant to a legally executed deportation order under Wiedersperg v. INS, 896 F.2d 1179, 1181 (9th Cir.1990). The Circuit Mediator granted respondent's motion and filed a remand order on January 30, 2006. The mandate issued on the same day.
Petitioner filed an application for attorney's fees under EAJA on March 3, 2006. Respondent opposed the application because it was untimely, and because an award of attorney's fees would be unjust.
As an initial matter, we conclude that petitioners' fee applications are timely. The thirty-day deadline to file an application for attorney's fees under EAJA does not begin to run until after the ninety-day period during which a party may seek a writ of certiorari from the United States Supreme Court. See 28 U.S.C. § 2412(d)(1)(B); Al-Harbi v. INS, 284 F.3d 1080, 1082-84 (9th Cir.2002). Further, we held in Hoa Hong Van v. Barnhart, 483 F.3d 600, 612 (9th Cir.2007), that the applicable post-judgment appeal period applies for purposes of EAJA even if entry of the judgment was made pursuant to the government's request. Although Van was a Social Security disability benefits appeal and the entry of judgment in question was made at the district court, these differences are not material. Specifically, this situation poses the same dangers of uncertainty and inconsistency that this court resolved in Van, and which the statute and its interpretive case law seek to eliminate. See id. Thus, we conclude that the thirty-day EAJA fee application period does not begin to run until ninety days after an order remanding an immigration matter to the BIA, even if such an order is at the request of the government. See 28 U.S.C. § 2412(d)(1)(B); Van, 483 F.3d at 612; Al-Harbi, 284 F.3d at 1082-84.
In Li, the petitioner's application was timely filed because it was filed ninety-one days after this court's order and mandate issued, within the statutory period. Similarly, in Janmohamed, the petitioner's application was timely because it was filed sixty-one days after the issuance of this court's order and mandate, well within the statutory application period. Finally, in Mendoza-Aguilera, the petitioner's application was timely because it was filed thirty-two days after the issuance of this court's order and mandate, also within the statutory application period.
We also find that petitioners satisfy the prevailing party requirement of EAJA, and are therefore eligible for an award of reasonable attorney's fees under 28 U.S.C. § 2412(d)(1)(A). Petitioners have met the prevailing party standard set forth in Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources by establishing that these federal court actions resulted in a "material alteration of the legal relationship of the parties" and that the alteration was "judicially sanctioned." 532 U.S. 598, 604-05, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001); see Perez-Arellano v. Smith, 279 F.3d 791, 794 (9th Cir.2002) ().
First, we have previously held in Carbonell v. INS, 429 F.3d 894, 899 (9th Cir. 2005), that "litigants who achieve relief other than a judgment on the merits or a consent decree are prevailing parties." In that case, we observed that the petitioner's success in obtaining the desired relief from the federal court is critical to establishing prevailing party status under Buckhannon, regardless of whether the federal court's order addressed the merits of the underlying case. Id. at 900; see also Rueda-Menicucci v. INS, 132 F.3d 493, 495 (9th Cir.1997).
Petitioner Li's opening brief sought a reopened removal proceeding to apply for asylum and related relief. Our order remanded proceedings to the BIA. Similarly, in Janmohamed, the petitioner sought in her opening brief that which our order granted: a remand to the Agency. Finally, the petitioner in Mendoza-Aguilera sought a remand to the Agency for review of his 212(c) claim. Following our remand order, the BIA ordered the case remanded to the IJ for consideration of Mendoza-Aguilera's 212(c) application and for consideration of the issues raised by petitioner's opening brief. Thus, the Circuit Mediator's remand orders in all three petitions for review advanced the goals sought by petitioners, and constituted material alterations of the parties' legal relationships for purposes of Buckhannon.
Second, an order by a Circuit Mediator is sufficient to satisfy the judicial imprimatur requirement of Buckhannon. See 532 U.S. at 605, 121 S.Ct. 1835. Pursuant to Ninth Circuit Rule 27-7, the court has delegated the authority to enter orders resolving certain motions to deputized court staff, including Circuit Mediators. The authority for deputized court staff to enter orders,...
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