Thangaraja v. Gonzales
Decision Date | 03 November 2005 |
Docket Number | No. 02-73970.,02-73970. |
Citation | 428 F.3d 870 |
Court | U.S. Court of Appeals — Ninth Circuit |
Parties | Saluja THANGARAJA, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent. |
Visuvanathan Rudrakumaran, Law Office of Visuvanathan Rudrakumaran, New York, NY, for the petitioner.
Michael L. Tingle, Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, for the respondent.
Before: B. FLETCHER, LEAVY, and BERZON, Circuit Judges.
When this case was last before us, petitioner Saluja Thangaraja's petition for review was granted with respect to her asylum and withholding of removal claims. We remanded the matter to the Board of Immigration Appeals ("BIA") for further proceedings. See Thangaraja v. Ashcroft, 2004 WL 1922161 (9th Cir. Aug.25, 2004) (unpublished memorandum). On November 26, 2004, Thangaraja filed a timely motion for attorney's fees and costs, which was opposed by the respondent. We now grant the motion and award fees at the rates prescribed by the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412.
Thangaraja is a Tamil native and citizen of Sri Lanka. She attempted to enter the United States in October 2001 at the San Ysidro border crossing. After an interview with an asylum officer, Thangaraja was found to have "demonstrated a credible fear of persecution or torture." She was placed in detention and issued a Notice to Appear in Immigration Court.
In January 2002, Thangaraja submitted an asylum application and appended a declaration describing her claim. The declaration detailed two incidents of prolonged detention by the Sri Lankan Army, during which Thangaraja was taken from her home, interrogated, accused of being a member of the Liberation Tigers of Tamil Eelam ("LTTE"), and physically abused. "I was neither taken to a court nor allowed to seek any legal help."
At Thangaraja's removal hearing on April 10, 2002, she testified similarly, noting that she was never an LTTE member and that she was not politically active in Sri Lanka. No evidence was presented that Thangaraja was the subject of a legitimate criminal prosecution.
The Immigration Judge ("IJ") denied Thangaraja's applications for relief. The IJ made an adverse credibility determination on two grounds: aspects of Thangaraja's testimonial demeanor, and her inability to answer questions about her trip to the United States
The IJ also made an alternative merits determination. Assuming Thangaraja's testimony to be credible, the IJ found that she had not met her burden of demonstrating that the alleged persecution was on account of imputed political opinion. The IJ concluded that the "two incidents where she may have been [taken] into custody [were] for questioning on the basis of a legitimate investigation" into whether or not she was an LTTE member. In addition, the IJ determined
On appeal, the BIA summarily affirmed without opinion pursuant to its streamlining regulation, 8 C.F.R. § 1003.1(e)(4).
Our memorandum disposition concluded that all aspects of the IJ's decision concerning Thangaraja's asylum and withholding of removal claims were unsupported by substantial evidence.
We begin by addressing the Attorney General's argument, contained in his opposition to Thangaraja's fees request, that the IJ's decision in this case is not relevant to our analysis under EAJA of whether "the position of the United States was substantially justified." 28 U.S.C. § 2412(d)(1)(A). According to the Attorney General, "[t]he agency . . . bore the same relationship to the Board in administrative proceedings as executive departments and agencies bear to courts in judicial proceedings." As a result, the Department of Homeland Security (DHS) is the only relevant actor whose position matters: "It is . . . the agency's defense of the Board's decision before this Court, and not the decision itself, that constitutes the `position of the United States' for EAJA purposes."
We reject this contention, which completely lacks justification. Pursuant to EAJA, the BIA and IJ decisions we review are as much the "position of the United States" as is the DHS's litigation position. See 28 U.S.C. § 2412(d)(2)(D) ( ); Al-Harbi v. INS, 284 F.3d 1080, 1084 (9th Cir.2002) (order) ; Gutierrez v. Barnhart, 274 F.3d 1255, 1259 (9th Cir.2001) (). The IJ's decision in this case, summarily affirmed without opinion by the BIA, is "the action . . . by the agency upon which the civil action is based," which the statute requires us to consider in determining whether the "position of the United States" was substantially justified. 28 U.S.C. § 2412(d)(2)(D).
Moreover, the DHS's analogy to judicial proceedings is misplaced. Both the Executive Office for Immigration Review (EOIR), to which the BIA and the Immigration Court belong, and the DHS are part of the executive branch of the United States government, despite their mutual independence. The BIA's decision in this case was rendered before the March 1, 2003 effective date of the Homeland Security Act of 2002, Pub.L. 107-296, § 471, 116 Stat. 2135 (2002), which assigned former Immigration and Naturalization Service functions to the DHS while leaving the adjudicative functions of IJs and the BIA within the Department of Justice. See generally Lagandaon v. Ashcroft, 383 F.3d 983, 987 n. 3 (9th Cir.2004). Nothing in that reorganization, however, affects our conclusion that the "position of the United States" as defined by EAJA encompasses both the DHS's litigation position and the underlying agency decision rendered by the BIA or an IJ, as the manner in which responsibilities are divided within the executive branch is immaterial to determining what the statutory language requires.
"The government bears the burden of demonstrating substantial justification." Gonzales v. Free Speech Coalition, 408 F.3d 613, 618 (9th Cir.2005). Our determination that the IJ's decision was not supported by substantial evidence applied a deferential standard of review, which precludes relief absent a conclusion that "no reasonable factfinder" could have reached the agency's result. See, e.g., Hasan v. Ashcroft, 380 F.3d 1114, 1119 (9th Cir.2004). In the context of attorney's fees determinations, we have held that: Ramon-Sepulveda v. INS, 863 F.2d 1458, 1459 (9th Cir.1988) (quoting Pierce v. Underwood, 487 U.S. 552, 566 n. 2, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988)); see also Al-Harbi, 284 F.3d at 1085 (). Our holding that the agency's decision of Thangaraja's case was unsupported by substantial evidence is therefore a strong indication that the "position of the United States" in this matter was not substantially justified. Indeed, it will be only a "decidedly unusual case in which 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." Al-Harbi, 284 F.3d at 1085.
Aside from the lack of substantial evidence supporting the IJ's grounds of decision, which we enumerated in our disposition, an examination of the Attorney General's chosen litigation position confirms that the "position of the United States" was not substantially justified. At the time the respondent submitted his brief, on March 13, 2004, our most relevant precedents concerning the central issues in this case, demeanor-based credibility determinations and imputed political opinion in the context of Sri Lankan investigations of suspected LTTE members, were available. See Arulampalam v. Ashcroft, 353 F.3d 679 (9th Cir.2003); Ratnam v. INS, 154 F.3d 990 (9th Cir.1998). Yet, neither was cited in the Attorney General's brief. See Rueda-Menicucci v. INS, 132 F.3d 493, 495 (9th Cir.1997) ( ).
Instead, the Attorney General defended the IJ's credibility findings without reference to Arulampalam's controlling discussion of demeanor-based determinations. Moreover, the Attorney General's defense of the IJ's finding concerning the level of detail provided by Thangaraja about her journey to the United States consisted of two unsupported sentences of assertion: ...
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