Davila-Bardales v. INS, 1st Cir. (1995)

USCA1 Opinion
February 27, 1995
[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_________________________
No. 93-2124
IN RE:
RICARDO DAVILA-BARDALES.
_________________________
RICARDO DAVILA-BARDALES,
Movant,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
_________________________
ON MOTION FOR AN AWARD OF ATTORNEYS' FEES
_________________________
Before
Torruella, Chief Judge,
___________
Selya and Cyr, Circuit Judges.
______________
_________________________
Victoria Lewis
_______________
and
Greater Boston Legal

Services
_________________________________
on
memorandum for movant.

Frank W. Hunger, Assistant Attorney General, Civil Division,
_______________
Department of Justice, Priscilla McNeill Jones and Donald E.
________________________
__________
Keener,
Attorneys, Office of Immigration Litigation, Civil
______
Division, on memorandum for respondent.
_________________________
_________________________
SELYA,
SELYA,
Circuit Judge.
Circuit Judge.
_____________
Ricardo
Davila-Bardales seeks
attorneys'
fees under the Equal Access to Justice Act (EAJA), 28
U.S.C.
2412
(1988).
proceedings
in which
vacate
order
an
consideration.
1994).
He
he
of
bases
motion
on
successfully persuaded
deportation
and
See Davila-Bardales
___ _______________
Because we find
his
appellate
this court
remand
for
v. INS, 27 F.3d 1
___
that the government's
to
further
(1st Cir.
position in this
court was substantially justified, we deny the motion.

I
I
We
offer
referring the reader
succinct
summary of
who hungers
prior
for a meatier
proceedings,
account to
our
earlier opinion.
In
(INS)
1989,
the Immigration
issued an order
and
to show cause
Naturalization Service
why Davila-Bardales should
not be deported on the ground that he was a Peruvian national who

had
unlawfully entered
Applicable
from
INS
hearing
an
party
accompanied by an
C.F.R.
United
admission
under the
IJ asked
inspection.
an immigration
of
judge (IJ)
deportability
age of
adult guardian,
242.16(b) (1994).
the
States without
regulations prohibit
accepting
unrepresented
the
16
from
unless the
minor is
relative, or friend.
Nevertheless,
petitioner,
then
at the
age
15,
allegations in the rule to show cause were true.
an
See
___
show-cause
whether
The
the
petitioner
answered affirmatively.
The
constituting
IJ
a
also
record
reviewed
of
an
INS
Form
I-213,
officer's
document
interview
with
petitioner shortly
after petitioner's
attributed to petitioner
the later show-cause
statements
acknowledged
and
Form
the
The IJ asked
form were
that they were.
I-213
aforementioned
The form
admissions similar to those
hearing.
reported in
alleged entry.
itself,
regulation,
petitioner if
correct, and
His comments
arguably
8
statements were not made as part
the
petitioner
regarding the form,
escaped
C.F.R.
he made in
the
grasp
242.16(b),
of
the
because the
of the hearing, but, rather, in
custodial interrogation outside the IJ's presence.

The IJ
Immigration
found petitioner
Appeals (BIA) affirmed
with two unpublished

006-067,
slip op. (BIA Aug.
No. A29-988-097, slip

decisions
(1994),
BIA decisions.
lacked
they
Board of
despite an apparent conflict
See In re Garcia, NO. A70___ _____________
17, 1993); In re Hernandez-Jimenez,

_______________________
op. (BIA
precedential
suggested that
should have been excluded.
deportable, and the
Nov. 8, 1991).
force,
see 8
___
the evidence
Although
C.F.R.
related to
these
3.1(g)
the form
See Davila-Bardales, 27 F.3d at 4.

___ _______________
Petitioner sought
judicial
review.
We
vacated
the
order of deportation because the BIA had not adequately explained

the apparent inconsistency
Garcia
______
in
between its unpublished
and Hernandez-Jimenez, on the one

_________________
petitioner's
case, on
the
other
decisions in
hand, and its decision
hand.
See
___
id.
___
at 5-6.
Withal, we left open the possibility that the BIA might develop a
consistent and
introduction
principled rule
which would sometimes
of an unaccompanied
custodial interrogation.
allow the
minor's statements made during
See id.
___ ___
Shortly thereafter, petitioner
filed the instant motion.

II
II
The
EAJA
permits
prevailing
party
to
recover
reasonable counsel fees and expenses incurred in civil litigation

with
the
position
government, but
that is
circumstance
only if
not "substantially
renders
a fee
the
government has
justified" and
award unjust.
See De
taken a
no special
Allende v.
___ ___________
Baker, 891 F.2d 7, 8 (1st Cir. 1989); Sierra Club v. Secretary of

_____
___________
____________
the Army, 820 F.2d 513, 516-17 (1st Cir. 1987).
________
The threshold requirement
is
that a
party
sovereign.
prevail in
It is
benchmark:
unclear
for access to EAJA
his
litigation with
whether
benefits
the
federal
petitioner satisfies
this
it is problematic whether one is a "prevailing party"
within the meaning of the EAJA merely because he secures a remand

for
further agency action.
Several cases have
that prevailing party status

wins at
least part of
Hanrahan
________
v.
is only conferred upon a
the ultimate relief
Hampton, 446
_______
U.S.
754,
v.
INS, 787
___
1020,
a directed verdict on
F.2d 1294,
1029 (9th
Cir.
1297 (9th
1988) (en
sought.
party who
See, e.g.,
___ ____
758-59 (1980)
prevailing party status under 42 U.S.C.

obtains vacation of
held or implied
(rejecting
1988 for one who merely
appeal); Escobar Ruiz

____________
Cir. 1986), aff'd,

_____
banc);
see also
___ ____
838 F.2d
Texas State
____________
Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-92
______________
_________________________
(1989).
Here,
petitioner
has not
yet
obtained any
ultimate
________
relief as the issue of his deportability remains unsettled.

We are
hesitant to
decide the matter

5
on this
basis,
however, as the status

question by
of these cases
the Court's recent
has been drawn into
opinion in Shalala
_______
some
v. Schaefer,
________
113 S. Ct. 2625, 2631-32 (1993), which held that procurement of a

"sentence
four"
litigation
remand
qualifies
prevailing
party.
in
the
context
the
putative
And,
moreover,
of
social
benefit-recipient
the
record
the
government's
substantially
legal
position
justified, see
___
question
of
whether
in
infra,
_____
the
we
can
at
an
Because we
present
skirt the
petitioner
as
reveals
independent basis on which the motion can be decided.

find
security
case
was
challenging
this
stage be
considered a prevailing party.

The
question
of
what
constitutes
"substantial
justification" has proven to be a vexing one, best addressed on a

case by case basis.
the
Court
noted
necessarily
requires
mean
only
565.
that
substantial
justified
that
"justified to a
Id. at
___
In Pierce v. Underwood, 487 U.S. 552 (1988),

______
_________
the
to
justification
high
government's
degree,
stance
degree that could satisfy
Accordingly, the test
does
but,
must
not
rather,
have
been
a reasonable person."
of substantial justification
turns
on whether
both law
the government's
and fact."
(1st Cir. 1985).
position was
"reasonable in
United States v. Yoffe, 775

______________
_____
What is
underlying litigation,
that the government's
more, an
F.2d 447, 449
unfavorable outcome in
by itself, does not
the
create a presumption
position was not substantially
justified.
See De Allende, 891 F.2d at 12; Sierra Club, 820 F.2d at 517.
___ __________
___________
Frequently,
the issue of
substantial justification is
bifurcated so that
an inquiring court
reasonableness of the government's
may consider, first,
agency position, and, second,
the reasonableness of its litigation position.

States v.
______
Cir. 1992).
case.
One Parcel of Real Property, 960

____________________________
We eschew such
In the first place,
See, e.g., United

___ ____ ______
F.2d 200, 209
(1st
a bifurcated approach in the instant

the Supreme Court has
held that the
EAJA does not apply
to civil deportation proceedings
INS,
v.
see Ardestani
___ _________
the
INS, 112
___
S. Ct.
515,
before the
521 (1991),
and
petitioner, mindful of
proceedings prior to
this impediment, has not

those conducted
sought fees for
in this court.
Thus
our
analysis of substantial justification must focus primarily on the
INS's litigation position in this venue as opposed to its conduct

in bringing
the deportation
proceedings and in
considering the
petitioner's admissions during custodial interrogation.

and relatedly, we have
of
held that adjudicators, even though
the Executive Branch, are
EAJA.
Second,
See In re Perry, 882

___ ____________
part
exempt from the
provisions of the
F.2d 534, 539-41
(1st Cir. 1989).
Consequently, our analysis of substantial justification must look

primarily
from the perspective of
the INS rather
than from the
perspective of the BIA.

III
III
Applying the
standard we have described,
the
government has met its
was
substantially justified.
minor's
tenebrous
admissions
during
burden of showing
we find that
that its position
The law concerning the status of a

interrogation
before our decision
at
in the instant
7
the
border
was
case, and remains
somewhat murky.
There
admissions
deportability
of
was no precedent in this

by
minors,
court regarding
and
the
only
BIA
discussions of the issue were in unpublished opinions, which have

no
precedential value.
This lack of clarity in the law strongly
suggests substantial justification for the government's position.

See De Allende, 891 F.2d
___ ___________
655, 657
1381,
v. Bowen,
_____
824 F.2d
(8th Cir. 1987); Martinez v. Secretary of HHS, 815 F.2d

________
________________
1383 (10th
Cir.
1987).
petitioner's statements
only
at 12-13; Mattson
_______
applicable
guidance
in
justified
Put
way,
seemingly fell outside the
regulation, there
the
another
law,
and
in adhering to
the
was
since
the
reach of the
significant lack
government
its position that
was
of
substantially
the IJ and
the BIA
properly relied upon the disputed statements.

This
After
all,
was especially
the
INS
had
true
good
circumstances surrounding the
in the
reason
to
situation at
believe
hand.
that
the
supported
the veracity and reliablilty of the admissions; the transcript of

the hearings reveals
that petitioner was able
articulate answers to the

was asked.
in
its
Although
decisions,
to understand and
relatively simple factual questions he
the BIA displayed regrettable inconsistency

the
INS
could
realistically
would prove admissible in
if the statements became subject
hope
that
the end, even
to a consistent rule
governing
unaccompanied admissions made during custodial interrogation.

We
think,
too, that
the posture
of the
case argues
cogently in favor of a finding of substantial justification.
The
INS prevailed initially, both

It did
not seek judicial
respondent.
While
government,
fees
we
before the IJ and before
review, but
are
qua respondent,
___
not
came to this
prepared
may never
to
court as
say
be held
the BIA.
that
the
responsible for
under the EAJA if the petitioner prevails, cf. Sierra Club,

___ ___________
820 F.2d at 519-20 (affirming EAJA award of reasonable attorneys'

fees
in
non-administrative
government
victory
in
adjudication, despite
the
district
court,
"evanescent"
because
the
government's legal position was so obviously contrary to existing
law), we are very reluctant to criticize the INS for opposing the
petition for review in this court, given that the BIA already had
decided the case in its favor.
position,
though ultimately
Thus, we conclude that the INS's

unsuccessful, was
reasonable under
the circumstances.
IV
IV
We
need
go
no
further.
Because
the
government's
position was
substantially justified
within the meaning
EAJA, petitioner's motion for attorneys' fees is
Denied.
______
of the

Davila-Bardales v. INS, 1st Cir. (1995)

Uploaded by

Copyright:

Available Formats

Davila-Bardales v. INS, 1st Cir. (1995)

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Davila-Bardales v. INS, 1st Cir. (1995)

Uploaded by

Copyright:

Available Formats

USCA1 Opinion

February 27, 1995

[NOT FOR PUBLICATION]

Greater Boston Legal

memorandum for movant.

fees under the Equal Access to Justice Act (EAJA), 28

that the government's

court was substantially justified, we deny the motion.

referring the reader

why Davila-Bardales should

not be deported on the ground that he was a Peruvian national who

allegations in the rule to show cause were true.

that they were.

admissions similar to those

statements were not made as part

regarding the form,

of the hearing, but, rather, in

custodial interrogation outside the IJ's presence.

Appeals (BIA) affirmed

with two unpublished

slip op. (BIA Aug.

No. A29-988-097, slip

despite an apparent conflict

See In re Garcia, NO. A70___ _____________

17, 1993); In re Hernandez-Jimenez,

should have been excluded.

deportable, and the

See Davila-Bardales, 27 F.3d at 4.

order of deportation because the BIA had not adequately explained

between its unpublished

and Hernandez-Jimenez, on the one

hand, and its decision

which would sometimes

minor's statements made during

Shortly thereafter, petitioner

filed the instant motion.

reasonable counsel fees and expenses incurred in civil litigation

Baker, 891 F.2d 7, 8 (1st Cir. 1989); Sierra Club v. Secretary of

for access to EAJA

it is problematic whether one is a "prevailing party"

within the meaning of the EAJA merely because he secures a remand

further agency action.

Several cases have

that prevailing party status

is only conferred upon a

the ultimate relief

prevailing party status under 42 U.S.C.

1988 for one who merely

appeal); Escobar Ruiz

Cir. 1986), aff'd,

relief as the issue of his deportability remains unsettled.

decide the matter

however, as the status

the Court's recent

has been drawn into

113 S. Ct. 2625, 2631-32 (1993), which held that procurement of a

independent basis on which the motion can be decided.

considered a prevailing party.

justification" has proven to be a vexing one, best addressed on a

See In re Garcia, NO. A70_ ___________