Hector Meza-Vazquez v. Merrick Garland ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HECTOR MEZA-VAZQUEZ, No. 15-72672
Petitioner,
Agency No.
v. A205-711-242
MERRICK B. GARLAND, Attorney
General, ORDER
Respondent.
Filed April 1, 2021
Before: Richard A. Paez, Consuelo M. Callahan, and
Patrick J. Bumatay, Circuit Judges.
Order
2 MEZA-VAZQUEZ V. GARLAND
SUMMARY *
Immigration / Attorney’s Fees
In a published order, the panel denied a motion for
attorneys’ fees pursuant to the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412(d), in a case in which the panel
had previously remanded Hector Meza-Vasquez’s
application for relief from removal to the Board of
Immigration Appeals for reconsideration in light of the en
banc court’s intervening decision in Bringas-Rodriguez v.
Sessions, 850 F.3d 1051 (9th Cir. 2017) (en banc).
The panel concluded that the government’s position was
substantially justified and that Meza was therefore not
entitled to attorney’s fees. The panel wrote that when the
government seeks a voluntary remand, which was the case
here, the court evaluates substantial justification based on
whether the request was motivated by “subsequent, novel
considerations,” which undercut a previously justified
agency action. In other words, if the IJ’s and Board’s
decisions were not contrary to controlling law at the time the
decisions were rendered, and intervening case law has
undercut the basis for those decisions, the government’s
position was and is substantially justified.
Noting that it had already recognized that the en banc
decision in Bringas-Rodriguez acted as intervening case law,
the panel addressed Meza’s arguments that three aspects of
the IJ’s and Board’s decisions were contrary to controlling
law.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
MEZA-VAZQUEZ V. GARLAND 3
First, Meza argued that under Afriyie v. Holder, 613 F.3d
924 (9th Cir. 2010), overruled by Bringas-Rodriguez, he was
not required to report persecution to local authorities in order
to meet the unable or unwilling to protect from persecution
standard. The panel observed that while this was true, the IJ
explicitly recognized that there was no per se requirement
that a withholding applicant have reported the abuse. The
panel further wrote that under Afriyie, the absence of a police
report left a gap in proof about how the government would
respond to the crime, and that gap had to be filled in by other
methods to show the government was unable or unwilling to
act. The panel concluded that the IJ’s and Board’s analysis
regarding the gap in proof did not conflict with clearly
established law.
Second, Meza argued that under Vitug v. Holder, 723
F.3d 1056 (9th Cir. 2013), the agency erred in relying on
Mexican LGBT antidiscrimination laws in assessing
whether the government was unable or unwilling to act. The
panel noted that Vitug concerned only a single local
ordinance and evidence of local activism, whereas the IJ and
Board here also relied on national anti-discrimination laws
and public acceptance of LGBT individuals. The panel
concluded that the IJ and Board therefore did not violate
clearly established law by finding that the State Department
report Meza submitted provided mixed support for his case,
and concluding that he had failed to meet his burden of
proof.
Third, Meza argued that the IJ and Board acted contrary
to controlling law when in considering the likelihood of
torture they failed to recognize that Mexican authorities had
ignored Meza’s report of his sexual assault. The panel
observed that the IJ and Board did, in fact, consider Meza’s
claim that he attempted to report his sexual assault, and that
4 MEZA-VAZQUEZ V. GARLAND
the IJ merely found the claim not credible. The panel noted
that Meza did not argue that this credibility finding was not
substantially justified. The panel also noted that IJ and
Board weighed other facts, including Meza’s previous safe
relocation within Mexico, the lack of prior harm rising to the
level of torture, and country conditions reports failing to
show that the government would acquiesce to Meza’s
torture. The panel concluded that the determination that
Meza was not eligible for protection under the CAT was
therefore not contrary to controlling law.
Because the panel concluded that the government’s
position was substantially justified, it did not decide whether
Meza was a prevailing party, or whether there were special
circumstances rendering an award unjust.
COUNSEL
Jean E. Reisz and Niels W. Frenzen, University of Southern
California, Gould School of Law, Immigration Clinic, Los
Angeles, California, for Petitioner.
Emily Anne Radford, Assistant Director; Nehal H. Kamani,
Attorney; Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C.; for
Respondent.
MEZA-VAZQUEZ V. GARLAND 5
ORDER
We consider a motion for attorneys’ fees pursuant to the
Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d).
I.
On April 14, 2020, we remanded Meza’s application for
relief to the Board of Immigration Appeals (“BIA”). Meza-
Vazquez v. Barr, 806 F. App’x 593 (9th Cir. 2020). We did
so after recognizing that this court’s decision in Bringas-
Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017) (en
banc), may have called into question the BIA’s decision in
his case. Meza-Vazquez, 806 F. App’x at 594–95.
Following our decision, Meza filed a timely motion under
the EAJA for $17,580.01 in attorneys’ fees and costs.
To be awarded attorneys’ fees under the EAJA, (1) the
party seeking fees must be a prevailing party, (2) the
government’s position must not have been substantially
justified, and (3) there must not be special circumstances
rendering an award unjust. 28 U.S.C. § 2412(d)(1)(A); see
Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013).
Because the government was substantially justified in its
position, we deny Meza’s motion.
II.
The government bears the burden of showing that it was
substantially justified in “both [its] litigation position and the
underlying agency action giving rise to the civil action.”
Meier, 727 F.3d at 870. Here, that means both the
Immigration Judge’s (“IJ”) decision and the BIA’s decision
must have been substantially justified. Li v. Keisler,
505 F.3d 913, 918 (9th Cir. 2007).
6 MEZA-VAZQUEZ V. GARLAND
To be substantially justified, the government’s position
must have been “justified to a degree that could satisfy a
reasonable person.” Meier, 727 F.3d at 870 (quoting Pierce
v. Underwood, 487 U.S. 552, 565 (1988)). In other words,
its position must “ha[ve] a reasonable basis in law and fact.”
Pierce, 487 U.S. at 566 n.2. The test is not whether the
government was correct, but whether it was “for the most
part” justified in taking the position that it did. Id. A
position that “was not contrary to clearly established law” is
thus substantially justified. See Li, 505 F.3d at 919–20.
A.
The government voluntarily moved to remand Meza’s
case back to the BIA. Meza-Vazquez, 806 F. App’x at 595.
When the government seeks a voluntary remand, we
evaluate substantial justification based on whether the
request was motivated by “subsequent, novel
considerations,” which undercut a previously justified
agency action. Li, 505 F.3d at 919. In other words, if the
IJ’s and BIA’s decisions were not contrary to controlling law
at the time the decisions were rendered, and intervening case
law has undercut the basis for those decisions, the
government’s position was and is substantially justified. Id.This rule ensures that the government is not punished for
seeking remand when “intervening case law or new facts
have legitimately rendered the underlying result legally
suspect or otherwise unjust.” Id. at 920.
We have already recognized that the en banc decision in
Bringas-Rodriguez acted as intervening case law here.
Meza-Vazquez, 806 F. App’x at 595. We accordingly
granted the government’s request for remand. Id. Given that
intervening case law, so long as the IJ’s and BIA’s decisions
were not contrary to controlling law at the time that they
MEZA-VAZQUEZ V. GARLAND 7
were made, the government’s position is substantially
justified. Li, 505 F.3d at 919–20.
B.
Meza draws the court’s attention to three aspects of the
decisions by the IJ and BIA which Meza contends were
contrary to controlling law.
First, Meza asserts that the IJ and BIA erred when they
held that Meza failed to show the Mexican government was
“unable or unwilling” to protect Meza from persecution. A
government’s inability or refusal to protect against
persecution is a core requirement for withholding of
removal. Rahimzadeh v. Holder, 613 F.3d 916, 920 (9th Cir.
2010). Key to the IJ’s and BIA’s holding was that Meza had
failed to give Mexican government authorities a chance to
act by reporting his sexual assault.
Meza argues that, under Afriyie v. Holder, 613 F.3d 924(9th Cir. 2010), overruled by Bringas-Rodriguez, 850 F.3d
at 1056, 1069–72, he was not required to report persecution
to local authorities in order to meet the “unable or unwilling”
standard. That is true. Id. at 931. Indeed, the IJ explicitly
recognized that “there is no per se requirement that a
withholding applicant have reported the abuse.” But that is
not the end of the inquiry; under Afriyie, the absence of a
police report left “a gap in proof about how the government
would respond” to the crime, and that gap must be filled in
“by other methods” to show the government was unable or
unwilling to act. Id. Thus, contrary to Meza’s contention,
the IJ and BIA did not hold that reporting persecution was
strictly necessary, and their analysis regarding the gap in
proof did not conflict with clearly established law.
8 MEZA-VAZQUEZ V. GARLAND
Second, Meza faults the use of Mexican LGBT
antidiscrimination laws in the IJ’s and BIA’s decisions. In
analyzing whether Meza filled in the “gap in proof,” the IJ
and BIA reviewed a State Department report submitted by
Meza. The IJ and BIA noted that the report relayed some
instances of police inaction and discrimination, but also
discussed Mexico’s LGBT anti-discrimination laws,
growing public acceptance of LGBT individuals, local
LGBT marriage and adoption rights, and local governmental
promotion of tolerance and respect. The IJ and BIA
concluded that Meza had failed to meet his burden of
proving the Mexican government would have failed to act.
Meza relies on Vitug v. Holder, 723 F.3d 1056 (9th Cir.
2013), to argue that this position was contrary to controlling
law. There, we held that the existence of LGBT activism
and a local anti-discrimination ordinance “do[] not indicate
that there is any less violence against gay men or that police
have become more responsive to reports of antigay hate
crimes.” Id. at 1066. Thus, Meza asserts that the
government’s position violated clearly established law. But
Vitug concerned only a single local ordinance and evidence
of local activism, whereas the IJ and BIA here also relied on
national anti-discrimination laws and public acceptance of
LGBT individuals. The IJ and BIA did not violate clearly
established law by finding that Meza’s report provided
mixed support for his case and concluding that he had failed
to meet his burden of proof. See Castro-Martinez v. Holder,
674 F.3d 1073, 1081 (9th Cir. 2011) (holding that an alien’s
country-reports evidence was insufficient to establish past
persecution), overruled by Bringas-Rodriguez, 850 F.3d at
1056, 1069–72.
Third, Meza argues that the IJ and BIA acted contrary to
controlling law when they concluded that Meza failed to
MEZA-VAZQUEZ V. GARLAND 9
show under the Convention Against Torture (“CAT”) that he
would be tortured upon removal to Mexico. Zheng v.
Ashcroft, 332 F.3d 1186, 1194 (9th Cir. 2003). Specifically,
he asserts that the IJ and BIA failed to recognize that
Mexican authorities had ignored Meza’s report of his sexual
assault.
But the IJ and BIA did, in fact, consider Meza’s claim
that he attempted to report his sexual assault. The IJ merely
found the claim not credible, and Meza does not argue that
this credibility finding was not substantially justified. See
Shrestha v. Holder, 590 F.3d 1034, 1048–49 (9th Cir. 2010)
(discussing adverse credibility determinations in the CAT
context). In concluding Meza was unlikely to be tortured
upon his return to Mexico, the IJ and BIA also weighed other
facts. Specifically, the IJ and BIA found that Meza had
previously safely relocated within Mexico, that Meza’s
complaints of prior discrimination did not rise to the level of
torture, and that the country conditions reports had not
shown the government would acquiesce to Meza’s torture.
See Tamang v. Holder, 598 F.3d 1083, 1095 (9th Cir. 2010)
(holding that, when evaluating a CAT claim, “evidence of
relevant country conditions is extremely important, as is the
ability of [the alien] to safely relocate to another part of his
country of origin.”) Thus, the determination that Meza was
not eligible for protection under the CAT was not contrary
to controlling law.
* * *
Because the government’s position was substantially
justified, EAJA fees are not appropriate, and we need not
decide whether Meza was a prevailing party, or whether
there are special circumstances rendering an award unjust.
Petitioner’s motion for attorneys’ fees is DENIED.