Nkenglefac v. Garland ( 2023 )

United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 28, 2023
No. 19-60647 Lyle W. Cayce
Clerk
Giscard Nkenglefac,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review from an Order of the
the Board of Immigration Appeals
BIA No. A216 591 99
PUBLISHED ORDER
Before Higginson, Willett, and Ho, Circuit Judges.
Stephen A. Higginson, Circuit Judge:
On May 18, 2022, this court granted Giscard Nkenglefac’s petition for
review of the Board of Immigration Appeals’s (BIA) dismissal of petitioner’s
appeal from the immigration judge’s (IJ) denial of his application for relief
from removal. See Nkenglefac v. Garland, 34 F.4th 422, 430 (2022). Because
the IJ’s adverse credibility determination was not supported by evidence in
the record, we determined that the BIA erred in affirming it and remanded
No. 19-60647
the case to the BIA. The petitioner filed a timely application for attorneys’
fees under the Equal Access to Justice Act (EAJA). We find that petitioner is
entitled to attorneys’ fees under the EAJA and award $56,169.79.
I.
The EAJA provides that federal courts shall award fees to the
prevailing private party “unless the court finds that the position of the United
States was substantially justified or that special circumstances make an award
unjust.” 28 U.S.C. § 2412(d)(1)(A). The government does not contest that
Nkenglefac was the prevailing party, nor does it argue that special
circumstances exist that would make the award of EAJA fees unjust.
Therefore, only the application of the “substantially justified” condition is
at issue in this case.
Under the EAJA, 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.”
Id. § 2412(d)(2)(D). Therefore, the government’s position includes the
underlying decisions of the IJ and the BIA as well as “the government’s
litigation position defending the agency action.” W.M.V.C. v. Barr, 926 F.3d
202, 208 (5th Cir. 2019) (quoting Sylejmani v. Barr, 768 Fed. App’x 212, 218
(5th Cir. 2019)).
The government bears the burden in demonstrating that its position
was “justified to a degree that could satisfy a reasonable person.” Pierce v.
Underwood, 487 U.S. 552, 565 (1988). We must evaluate the government’s
position under the totality of the circumstances, meaning that “if the
government’s position as a whole was reasonable, a prevailing party may not
recover EAJA fees even though some of the government’s actions or
arguments were without merit.” W.M.V.C, 926 F.3d at 210.
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As explained in our decision, binding precedent provides that “an
adverse credibility determination . . . ‘must be supported by specific and
cogent reasons derived from the record.’” 34 F.4th at 428-29 (quoting Singh
v. Sessions, 880 F.3d 220, 225 (5th Cir. 2018)) (emphasis added).
Here, the IJ made an adverse credibility determination based on
summaries of the petitioner’s Custom and Border Patrol (CBP) and credible
fear interviews, which were neither referred to during the immigration
hearing nor entered into evidence during the hearing. The BIA affirmed the
IJ’s adverse credibility determination based on alleged inconsistencies in
Nkenglefac’s credible fear interview, despite finding that Nkenglefac’s
interviews with asylum officers and border patrol officers were not
introduced into the record. The positions of the IJ and BIA, which were
dispositive of their decisions, were in contravention of BIA and Fifth Circuit
case law and therefore not substantially justified.
On appeal to our court, the government modified its position in part
and argued that while the interviews were not entered into the evidentiary
record during the merits hearing, DHS had previously submitted them to the
immigration court and they were thus part of the agency’s physical record.
This position contradicted the BIA panel’s finding that Nkenglefac’s
interviews with asylum officers and border patrol officers were not
introduced into the record.
Because we find that the government’s position was not substantially
justified at each stage of this litigation, the petitioner is entitled to attorneys’
fees and costs under the EAJA.
II.
We now turn to the rates sought by petitioner.
A.
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The EAJA provides that an attorney’s rate shall not exceed “$125 per
hour unless the court determines that an increase in the cost of living or a
special factor, such as the limited availability of qualified attorneys for the
proceedings involved, justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A).
Petitioner requests both a cost-of-living adjustment and an additional $200
an hour above the inflation-adjusted statutory rate, arguing that “special
factors” exist to justify a higher hourly rate.
We first address petitioner’s argument that the statutory rate,
amended to $125/hr in 1996, should be adjusted to match increases in the
national Consumer Price Index-Urban (CPI-U), which he posits would be
$205.25 for 2019, $207.78 for 2020, and $230.21 for 2022. The government
argues that counsel is not entitled to an adjusted statutory rate but contends
that if the rate is to be adjusted, counsel is only entitled to an increase that
matches regional cost-of-living increases. Using the U.S. Bureau of Labor
Statistic’s CPI-U database for the South, the government calculates the
inflation-adjusted rates as follows: $194.36 for 2019, $196.37 for 2020, and
$220.66 for 2022.
In Baker v. Bowen, our court explained that while the EAJA does not
require a cost-of-living adjustment to the hourly rate, “if there is a significant
difference in the cost of living since [enactment of the statute] in a particular
locale that would justify an increase in the fee, then an increase should be
granted.” 839 F.2d 1075, 1084 (5th Cir. 1988); see also Washington v.
Barnhart, 93 F. App’x 630, 631 (5th Cir. 2004) (per curiam) (“[E]xcept in
unusual circumstances, if there has been a significant increase in
the cost of living that would justify an increase in the fee, the increase should
be granted even though the ultimate award need not track the cost-of-
living index.”). As petitioner concedes in his brief, our court has not adopted
the national CPI-U as the appropriate standard and has rejected even the
proposition that a uniform cost-of-living adjustment should exist within each
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judicial district. Yoes v. Barnhart, 467 F.3d 426, 427 (5th Cir. 2006) (per
curiam).
Consistent with Yoes and Baker, we decline to utilize the national CPI-
U and, in the absence of more specific data, we apply the CPI-U for the South
as calculated by the government relying upon U.S. Bureau of Labor statistics:
$194.36 for 2019, $196.37 for 2020, and $220.66 for 2022.1
We now turn to petitioner’s argument that “a special factor, such as
the limited availability of qualified attorneys for the proceedings involved,
justifies a higher fee.” In Pierce v. Underwood, the Supreme Court explained
that “qualified attorneys for the proceedings” refers to attorneys who have
“distinctive knowledge or specialized skill needful for the litigation in
question,” such as patent law or knowledge of a foreign language. 487 U.S.
552, 572 (1988). Our court has explained that the special factor inquiry
involves:
(1) whether the attorneys had a specialized skill that was
necessary to the litigation; (2) whether the number of attorneys
with such skill was so limited that litigants with potentially
valid claims were unable to obtain counsel; and (3) whether an
increased fee award would have reduced this shortage.
Est. of Cervin v. Comm’r, 200 F.3d 351, 353–54 (5th Cir. 2000).
Petitioner claims that counsel’s specialized skill in immigration law—
namely his focus on the representation of detained immigrants, his teaching
1
The database is available at U.S. Bureau of Labor Statistics, Databases, Tables &
Calculators by Subject, CPI for Urban Consumers, Southern Region
https://data.bls.gov/timeseries/CUURN300SA0?amp%%20253bdata_tool=XGtable&out
put_view=data&include_graphs=true (last visited January 11, 2023) (extrapolating rates
based on inflation rate over same period).
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No. 19-60647
experience, and other bar recognitions—paired with the limited availability
of attorneys to represent detained immigrants in Louisiana, justify a higher
rate.
Our court has previously declined to treat skill in immigration law as
a special factor that warrants an upward departure from the EAJA statutory
rate. Perales v. Casillas, 950 F.2d 1066, 1078–79 (5th Cir. 1992). While
petitioner notes that that the Ninth Circuit has held that a specialty within
immigration law could qualify as a special factor, see Rueda-Menicucci v.
I.N.S., 132 F.3d 493, 496 (9th Cir. 1997) and Nadarajah v. Holder, 569 F.3d
906, 914 (9th Cir. 2009), we need not to reach that question here because
petitioner has not shown that counsel’s immigration expertise in detention
law was “needful for the litigation in question.” This case boiled down to
whether the BIA erred in making an adverse credibility determination.
Counsel is only entitled to EAJA fees because the government’s position was
not substantially justified in light of settled BIA and Fifth Circuit case law.
Because counsel has failed to demonstrate a “distinctive knowledge or
specialized skill” that was necessary for this litigation, we do not reach the
second and third factors relating to the availability of qualified attorneys. We
therefore find that the EAJA statutory rate, adjusted for regional cost of living
increases, adequately compensates counsel for the work performed.
B.
Petitioner also seeks fees for work performed by paralegal Emma
Morley. In Richlin Sec. Serv. Co. v. Chertoff, the Supreme Court held that “a
prevailing party that satisfies EAJA’s other requirements may recover its
paralegal fees from the Government at prevailing market rates.” 553 U.S.
571, 590 (2008). Petitioner argues that Morley is entitled to the statutory rate
for attorneys, adjusted for inflation, because of her qualifications and the
substantive work she performed, such as drafting the initial brief. The
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government recommends an hourly rate of $75/hr, citing two Louisiana
Western district court cases.
Because the Supreme Court has established that paralegals are
entitled to prevailing market rates, petitioner’s argument that Morley is
entitled to the statutory attorney rate, which is not supported by any cited
caselaw, is unpersuasive. Petitioner also fails to provide information
regarding prevailing market rates for paralegals within Louisiana. A review of
district court cases analyzing the prevailing rate for paralegals in Louisiana
under the EAJA reveals a range of $75/hr to $100/hr.2 In light of Morley’s
experience and qualifications, a rate of $100/hr appears appropriate.
III.
2
Most of the case law surrounding the prevailing market rates for paralegals under
the EAJA originate in the social security context, where the range in Louisiana federal
courts is between $75/hr and $100/hr. See, e.g., Bellard v. Astrue, No. 09-CV-1603, 2011
WL 1868796, at *5 (W.D. La. May 16, 2011) (finding that the prevailing market rate for
paralegals is $60/hr to $80/hr); Phillips v. Astrue, No. 6:10-CV-01523, 2012 WL 1867267,
at *1 (W.D. La. May 21, 2012) (finding $75/hr a reasonable paralegal rate); Craig v. Colvin,
No. CV 15-583-JJB-EWD, 2016 WL 4689044, at *1 (M.D. La. Sept. 6, 2016) (approving
$75/hr for paralegal time); Rogers on behalf of Rogers v. Comm'r of Soc. Sec. Admin., No. 6:20-
CV-00488, 2021 WL 3355555, at *4 (W.D. La. Aug. 2, 2021) (stating that $100/hr is the
prevailing rate for a paralegal in that market).
In other civil cases where district courts have recently assessed the prevailing
market rates for paralegals, the rate ranges between $75/hr and $125/hr. See, e.g., Nelson v.
Constant, No. CV 17-14581, 2021 WL 76407, at *5 (E.D. La. Jan. 8, 2021) (approving
$100/hr for an investigative paralegal); United States ex rel. McNeil v. Jolly, 451 F. Supp. 3d
657, 675 (E.D. La. 2020) (awarding $125/hr for the work of a paralegal); Smith v. Bd. of
Commissioners of Louisiana Stadium & Exposition Dist., No. CV 17-7267, 2019 WL 7580771,
at *6 (E.D. La. Sept. 5, 2019), report and recommendation adopted, No. CV 17-7267, 2019 WL
7580772 (E.D. La. Oct. 1, 2019) (approving an hourly rate of $100/hr); Mark v. Sunshine
Plaza, Inc., No. CV 16-455, 2018 WL 1282414, at *4 (E.D. La. Mar. 12, 2018), report and
recommendation adopted, No. CV 16-455, 2018 WL 1960022 (E.D. La. Apr. 26, 2018)
(awarding the requested $75/hr for the work of a paralegal).
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As we have determined that petitioner is entitled to attorneys’ fees
and costs under the EAJA and have set hourly rates for work performed by
counsel and his paralegal, we turn to the reasonableness of time claimed.3
We first express concerns regarding the accuracy of the time claimed
by counsel and Morley, who work for a pro bono legal organization,
Immigration Services and Legal Advocacy (“ISLA”). 4 Counsel and Morley
acknowledge in their affidavits in support that their claimed hours are “a best
estimate based on [their] recollection[s] as well as contemporaneous progress
notes and logs.” The entries, especially Morley’s, lack detail and are often
not broken down by day. Nevertheless, we have reviewed the record,
including the submitted affidavits, and find the time claimed by counsel and
Morley reasonable.
3
In opposition, the government argues that counsel should only be compensated
for time expended on the single argument for which he prevailed: the BIA’s reliance on the
CBP and credible fear interviews that were not entered into the record. We disagree with
the government’s assertion that petitioner’s other arguments were so distinct from the
argument for which we granted relief that they should be excised from a fee award.
4
Petitioner was represented by ILSA, the pro bono immigration organization for
which counsel and Morley worked. Under the EAJA, a party can only recover attorneys’
fees once they have been incurred, see 28 U.S.C. § 2412(d)(1)(A); however, the statute does
not define “incurred.” In United States v. Claro, our court grappled with the definition,
finding that “incurred” generally means “when the litigant has a legal obligation to pay
them.” 579 F.3d 452, 464 (5th Cir. 2009). However, in Claro, we noted favorably that other
courts have recognized exceptional circumstances in which the award of attorneys’ fees
was not contingent on the obligation to pay counsel, such as when the prevailing party is
represented by a pro bono or legal services organization. Id. at 465. Our court explained
that both the legislative intent and policy justifications support extending EAJA awards to
pro bono organizations. Id. Consistent with Claro, the government does not challenge
petitioner’s eligibility to recover fees when work was performed by a pro bono organization.
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Therefore, we award $33,819.79 for work performed by counsel5 and
$22,350 for work performed by Emma Morley (223.50 hours at $100/hr).
IV.
We GRANT in part Nkenglefac’s application for attorneys’ fees and
enter an award in the amount of $56,169.79.
5
Consistent with the approved rate and the reductions outlined above, counsel’s
fees award is broken down as follows:
Year Approved Rate Approved Hours Total
2019 $194.36 29.4 hours $5,714.18
2020 $196.37 3.9 hours $765.84
2022 $220.66 123.9 hours $27,339.77
9