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Tchemkou v. Mukasey

February 22, 2008

MIREILLE TCHEMKOU, PETITIONER,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT.



Petition for Review of an Order of the Board of Immigration Appeals. No. A79 573 118.

The opinion of the court was delivered by: Ripple, Circuit Judge

ON MOTION FOR ATTORNEYS' FEES AND COSTS

Before RIPPLE, ROVNER and SYKES, Circuit Judges.

In a previous opinion, we granted a petition for review of an order of the Board of Immigration Appeals ("BIA") filed by Mireille Tchemkou, a native and citizen of Cameroon, who had been denied asylum, withholding of removal and relief under the Convention Against Torture ("CAT"). Tchemkou v. Gonzales, 495 F.3d 785 (7th Cir. 2007). We did so because we deter- mined that the record compelled a finding that Ms. Tchemkou had suffered past persecution and was likely to suffer further persecution and torture if she were returned to her native country. Ms. Tchemkou now seeks an award of attorneys' fees and costs. Presuming familiarity with our previous opinion, we now address the matter of attorneys' fees.

A.

A petitioner in an immigration case is eligible for attorneys' fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412, if she can establish the statutory grounds for an award. See Floroiu v. Gonzales, 498 F.3d 746, 748 (7th Cir. 2007). Specifically, a petitioner must show that:

(1) she was a prevailing party; (2) the Government's position was not substantially justified; (3) no special circumstances existed that would make an award unjust; and (4) she filed a timely and complete application for fees. 28 U.S.C. § 2412(d)(1)(A)-(B); Floroiu, 498 F.3d at 748; Muhur v. Ashcroft, 382 F.3d 653 (7th Cir. 2004). It is undisputed that Ms. Tchemkou is the prevailing party and that she timely filed her motion; the Government contends, however, that its position was substantially justified.

It is the Government's burden to prove that its position*fn1 was "substantially justified." Floroiu, 498 F.3d at 748; Golembiewski v. Barnhart, 382 F.3d 721, 724 (7th Cir. 2004). To be substantially justified, the Government's position must be "'justified in substance or in the main' or 'justified to a degree that could satisfy a reasonable person.' " Floroiu, 498 F.3d at 748 (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). The Government meets this burden if it shows that (1) it had a reasonable basis in truth for the facts alleged; (2) it had a reasonable basis in law for the theory propounded; and (3) there was a reasonable connection between the facts alleged and the theory propounded. Conrad v. Barnhart, 434 F.3d 987, 990 (7th Cir. 2006).

The Government contends that it has met this burden. Specifically, it maintains that it was substantially justified in arguing that Ms. Tchemkou had not suffered past persecution because: (1) she voluntarily returned to Cameroon after living in Benin; (2) the three incidents of abuse that she endured were the result of different political activities; and (3) she was unable to articulate with specificity what political opinion she held that would cause her harm.

The first rationale proffered by the Government was not part of its presentation to the court in its brief, nor was it a part of the agency's underlying decision. Consequently, it was not part of the "position" of the Government that we must evaluate.

With respect to the second of the Government's arguments, the Government offered no support for the proposition that each of the incidents of abuse should be considered in isolation. Indeed, as we set forth in our previous opinion, we have rejected a "compartmentaliz[ed]" approach to persecution and repeatedly have held that the BIA must look at the record "as a whole" in determining whether persecution has occurred. Tchemkou, 495 F.3d at 790-91 (quoting Gjerazi v. Gonzales, 435 F.3d 800, 807 (7th Cir. 2006)). Indeed, in its response to Ms. Tchemkou's fee request, the Government still fails to cite any support for the proposition that Ms. Tchemkou's incidents of abuse should be evaluated separately. Having failed to provide any support for this argument, the Government also has failed to show that its position was substantially justified. See Floroiu, 498 F.3d at 749.*fn2

We turn then to the Government's third argument that, it claims, rendered its position substantially justified: Ms. Tchemkou was unable to articulate a precise political opinion that would subject her to persecution if she were returned to Cameroon. This argument would be more compelling if Ms. Tchemkou had not suffered grievous persecution in the past. However, the question whether Ms. Tchemkou will suffer further persecution cannot be separated from the question whether Ms. Tchemkou has suffered past persecution. As we already have noted, there was no justification for considering her previous persecution as discrete incidents. Ms. Tchemkou's prior political activities, and the violence of her government's response, not only established Ms. Tchemkou's past persecution, but they also revealed that the Cameroonian government had identified Ms. Tchemkou as a troublemaker and someone whose voice it needed to quell. In light of these events, we cannot conclude that the Government's view of Ms. Tchemkou's political opinion as imprecise, and therefore unlikely to subject her to future persecution, was substantially justified.

B.

In addition to objecting to the petition on the ground that its position was substantially justified, the Government also submits that, even if we decide that an award is in order, the amount requested by Ms. Tchemkou is exorbitant. When calculating an EAJA award, we must exclude "hours that were not 'reasonably expended,' " Hensley v. Eckerhart, 461 U.S. 424, 434 ...


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