Petition for Review of an Order of the Board of Immigration
KING, SMITH, and WILLETT, Circuit Judges.
E. SMITH, Circuit Judge:
and her daughter A.P.V. are Honduran immigrants who appealed
the dismissal of their applications for asylum and
withholding of removal. We granted the government's
motion to remand to allow the Board of Immigration Appeals
("BIA") to consider the issues raised in the
petitioners' opening brief. Petitioners seek to recover
attorneys' fees and expenses under the Equal Access to
Justice Act ("EAJA"). Because the government's
position as a whole was substantially justified, we deny the
petition for review.
1999, W.M.V.C. began work as a housekeeper for Angelica
Perez, who soon professed her love for W.M.V.C. and forcibly
insisted that they live together in a romantic relationship.
For the next sixteen years, Perez frequently raped and abused
W.M.V.C.-sometimes in front of W.M.V.C.'s two children.
Perez also regularly beat the children and threatened to kill
W.M.V.C.'s family if she attempted to leave. To prevent
the possibility of escape, Perez locked the door and windows
anytime she left the house. W.M.V.C. attempted to escape
twice, but her efforts incurred only greater mistreatment.
the continual violence, W.M.V.C. never contacted the police,
many of whom were close friends with Perez. As a retired
officer, Perez frequently invited her former colleagues to
her home for drinks. On those occasions, the police observed
Perez locking W.M.V.C. and the children in a backroom yet
failed to intervene. Once, when W.M.V.C.'s brother filed
a complaint against Perez for nearly hitting W.M.V.C.'s
sister with a car, the police took Perez into custody. But
they soon released her, advising her to kill W.M.V.C.'s
siblings if they continued to meddle in her affairs.
years passed, rumors began to percolate that Perez and
W.M.V.C. were romantically involved. Neighbors discussed
"how disgusting it was that [W.M.V.C.] lived with
another woman" and how "rape would fix her."
After a gang member threatened to kill W.M.V.C. in an effort
to extort money, she made one final attempt to escape. When
petitioners succeeded in fleeing to the United States in
2015, Perez created a fictitious Facebook account for her
unwilling lover, ostensibly professing W.M.V.C.'s
affections for Perez.
applied for asylum and withholding of removal. W.M.V.C.
maintained that she had a well-founded fear of future
persecution in Honduras based on her perceived homosexuality
and anti-gang political opinion. Moreover, she averred that
she had been persecuted on account of her membership in four
particular social groups: (1) Honduran women unable to leave
a domestic relationship; (2) Honduran women viewed as
property by virtue of their status in a domestic
relationship; (3) Honduran women without a male protector;
and (4) Honduran female business managers without a male
partner. Finally, W.M.V.C. sought protection under the
Convention Against Torture ("CAT"), alleging that
the Honduran police were willfully blind to Perez's
independent application, A.P.V. rehashed many of those same
claims. She also alleged persecution as a member of
W.M.V.C.'s nuclear family. All told, petitioners advanced
eight distinct grounds for asylum and withholding of removal.
immigration judge ("IJ") found petitioners
"generally credible" but denied their applications.
Though recognizing that homosexual individuals may constitute
a cognizable particular social group, the IJ concluded that
"[Perez's] abusive behavior was not motivated by any
alleged perception that [W.M.V.C.] was homosexual." The
IJ determined that petitioners' other proposed social
groups were not viable and that, even if they were,
petitioners had not demonstrated persecution on account of
their membership in those groups or imputed political
opinion. In denying CAT relief, the IJ reasoned that the
police were neither "aware of any torture" nor
"operating under color of law" during their social
visits to Perez's home. As a result, the IJ found no
proof that Honduran police acting in their official capacity
would participate or acquiesce in petitioners' alleged
affirmed. Without addressing whether the proposed social
groups were cognizable, the BIA determined that petitioners
had not encountered any past-and would not face any
future-harm based on their membership in those groups or
their political persuasion. The BIA further held that the
officers had observed no torture when visiting Perez's
home in their personal capacity.
granted petitioners' unopposed motion for a stay of
removal pending this petition for review. In their opening
brief, they contended that the agency had failed to respond
to the substance of the sexual-orientation claim and to
consider evidence offered in support thereof. Specifically,
petitioners highlighted that the agency never addressed
whether W.M.V.C. had a legitimate fear of violence from
others besides Perez. They also challenged the agency's
conclusion that because Perez's abuse had coincided with
her drinking and because "persons may commit
uncharacteristic acts and say uncommon things" when
inebriated, W.M.V.C. never faced persecution for being a
Honduran woman unable to leave a domestic partnership.
Lastly, petitioners urged that the BIA had ignored
significant evidence showing that the Honduran authorities
had been aware of the torture but had refused to intervene.
than file a brief in response, the government moved to remand
to consider the issues raised in petitioners' opening
brief. Yet the government insisted that its motion was not a
concession of error and asked that each party bear its own
fees and costs. We granted the motion but denied the request
that each party pay its own costs. Petitioners then applied
for attorneys' fees and expenses under the EAJA.
the "American Rule," each party ordinarily bears
its own attorneys' fees unless Congress has explicitly
authorized otherwise. Hensley v. Eckerhart, 461 U.S.
424, 429 (1983). The EAJA provides such authorization. It
awards attorneys' fees and other expenses to a prevailing
party in a civil action against the United States.
See 28 U.S.C. § 2412(d)(1)(A). As "a
partial waiver of sovereign immunity," the EAJA is
"strictly construed in favor of the United States."
Ardestani v. INS, 502 U.S. 129, 137 (1991). But once
an individual plaintiff establishes that he is a prevailing
party "whose net worth did not exceed $2, 000, 000 at
the time the civil action was filed," 28 U.S.C. §
2412(d)(2)(B), "the government must pay attorney's
fees unless it is able to prove that its position was
substantially justified or special circumstances make an
award unjust." Baker v. Bowen, 839 F.2d 1075,
1080 (5th Cir. 1988).
"position of the United States" encompasses both
"the position taken by the United States in the civil
action" and "the action or failure to act by the
agency upon which the civil action is based." 28 U.S.C.
§ 2412(d)(2)(D). The government's position thus
includes the underlying decisions of the BIA and the IJ as
well as "the government's litigation position
defending the agency action." Sylejmani v.
Barr, No. 16-60556, 2019 WL 1590905, at *4 (5th Cir.
Apr. 12, 2019) (per curiam) (unpublished).
justified" does not mean "'justified to a high
degree,' but rather '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. 552, 565 (1988). Although "[t]his standard is not
overly stringent," Sylejmani, 2019 WL 1590905,
at *4 (citation omitted), the government must do more than
show it is "merely undeserving of sanctions for
frivolousness," Underwood, 487 U.S. at 566.
Instead, it bears "the burden of showing that its
position in every stage of the proceedings . . . had a
reasonable basis both in law and fact." Baker,
839 F.2d at 1080. "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."
Sylejmani, 2019 WL 1590905, at *4. Especially where
the case involves a novel question on which there is little
precedent, courts are chary of finding the government's
government does not contest that petitioners are prevailing
parties whose net worth is under the statutory
Nor does it dispute that special circumstances make an EAJA
award unjust. See 28 U.S.C. § 2412(d)(1)(A).
Instead, the government maintains that petitioners are not
entitled to attorneys' fees because its position was
substantially justified. Without defending its stance on
W.M.V.C.'s sexual-orientation claim, the government
asserts the agency reasonably denied CAT protection and
rejected, under In re A-R-C-G-, 26 I. & N. Dec.
388 (BIA 2014), overruled by In re A-B-, 27 I. &
N. Dec. 316 (A.G. 2018), the proposed social group of
Honduran women unable to leave a domestic relationship.
Because its posture on those two issues was reasonable, the
government contends that its position, in toto, was
case requires us to decide whether the government's
position was substantially justified where the agency made
multiple determinations-some of which were reasonable and
others that were not. That question "has proved to be an
issue of considerable conceptual and practical
difficulty." Roanoke River Basin Ass'n v.
Hudson, 991 F.2d 132, 138 (4th Cir. 1993) (citation
omitted). The closest the Supreme Court has come to
addressing it was in Commissioner, INS v. Jean, 496
U.S. 154 (1990).
Jean, the government's position in the
underlying litigation lacked justification. But because its
opposition to the application for fees was reasonable, the
government posited that the prevailing party could not
recover fees incurred during the fee-determination phase.
Id. at 156-57. The Court disagreed. Noting that the
EAJA "refer[s] to 'the position of the United
States' in the singular," id. at 159
(quoting 28 U.S.C. § 2412(d)(1)(A)), the Court explained
that the statute "favors treating a case as an inclusive
whole, rather than as atomized line-items," id.
at 161-62. Hence, it concluded that fees may be awarded for
all phases of the case even though the government was
substantially justified in disputing the fee award.
Id. at ...