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W.M.V.C. v. Barr

United States Court of Appeals, Fifth Circuit

June 7, 2019

W.M.V.C.; A.P.V., Petitioners,
v.
WILLIAM P. BARR, U.S. Attorney General, Respondent.

          Petition for Review of an Order of the Board of Immigration Appeals

          Before KING, SMITH, and WILLETT, Circuit Judges.

          JERRY E. SMITH, Circuit Judge:

         W.M.V.C. 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.

         I.

         In 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.

         Despite 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.

         As the 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.

         Petitioners 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 abuse.

         In her 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.

         The 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 torture.

         The BIA 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.

         We 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.

         Rather 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.

         II.

         Under 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).

         The "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).

         "Substantially 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 position unreasonable.[1]

         The government does not contest that petitioners are prevailing parties whose net worth is under the statutory cap.[2] 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 substantially justified.

         A.

         This 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).

         In 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 ...


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