Firstland International, Inc., Shao Zeng Chai v. U.S. Immigration & Naturalization Service

Plaintiffs-appellants Firstland International, Inc. and Shao Zeng Chai sued the U.S.
Immigration and Naturalization Service (the "INS"),2 seeking an award of attorneys' fees and
expenses under the Equal Access to Justice Act, 28 U.S.C. § 2412 ("EAJA"). We assume the
parties' familiarity with the facts, the proceedings below, and the specification of issues on
appeal.

Under the EAJA, "a court shall award to a prevailing party other than the United States fees
and other expenses . . . incurred by that party in any civil action . . . brought by or against the
United States . . . 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 bears the burden of showing that its position was "substantially justified," and to
meet that burden, it must show that its action was "justified to a degree that could satisfy a
reasonable person." Pierce v. Underwood, 487 U.S. 552, 565 (1988). "To be ‘substantially
justified' means, of course, more than merely undeserving of sanctions for frivolousness; that is
assuredly not the standard for Government litigation of which a reasonable person would
approve." Id. at 566. The Government's position includes 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); see also Comm'r, Immigration &
Naturalization Serv. v. Jean, 496 U.S. 154, 159 (1990).

We review the district court's determination that the Government's position was
substantially justified for abuse of discretion. See, e.g., Pierce, 487 U.S. at 562. A court abuses
or exceeds its discretion when its decision rests on an error of law or a clearly erroneous factual
findings, see, e.g., Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990), or, even if not
resulting from such an error, when it "cannot be located within the range of permissible
decisions," Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir. 2001).

Under the former 8 U.S.C. § 1155, "[t]he Attorney General may, at any time, for what he
deems to be good and sufficient cause, revoke the approval of any petition approved by him
under [8 U.S.C. §] 1154." See also 8 C.F.R. § 205.2(a) ("Any Service officer authorized to
approve a petition under [§ 1154] may revoke the approval of that petition upon notice to the
petitioner on any ground other than those specified in § 205.1 when the necessity for the
revocation comes to the attention of this Service."). Relying on various publications and
statements by INS officials, the plaintiffs argue that the INS could revoke its approval of the
petition at issue here only upon a showing of "gross error." We disagree. None of the
publications or statements upon which the plaintiffs rely creates legally enforceable rights of the
type that would require the INS to find "gross error" before it could revoke the approval of such
a petition. Cf. United States v. Ng, 699 F.2d 63, 71 (2d Cir. 1983) (holding that a Department of
Justice internal policy was not legally enforceable). Moreover, even assuming, arguendo, that
the INS was obligated to adhere to a "gross error" standard, the district court did not abuse its
discretion insofar as it held that the INS was "substantially justified" in concluding that the
In 2004, Congress amended § 1155, 3 striking this sentence. Intelligence Reform &

Terrorism Prevention Act of 2004, Pub. L. No. 108-458, § 5304(c), 118 Stat. 3638, 3736.

"gross error" standard was satisfied in this case.

When this case was before us last, we noted nostra sponte that the third sentence of former
§ 1155, which provided, "In no case, however, shall such revocation have effect unless . . .
notice of the revocation is communicated . . . to the beneficiary of the petition before such
beneficiary commences his journey to the United States," might deprive the INS of the authority
to revoke its approval of the visa petition of a beneficiary already in the United States.3 We
requested supplemental briefing on the issue, which the parties supplied. Subsequently we held
that the "plain language" of the third sentence of the former § 1155 contained "no ambiguity" in
imposing an "unequivocal[] limit[ation]" on the INS's authority to revoke its approval of a visa
petition when the beneficiary is already in the United States. Firstland Int'l, Inc. v. U.S.
Immigration & Naturalization Serv. ("Firstland I"), 377 F.3d 127, 131-32 (2d Cir. 2004). In so
holding, we explicitly considered and rejected the rationales of two cases that the government
cited to support the INS's position, to wit, ANA International, Inc. v. Way, 242 F. Supp. 2d 906,
916 (D. Or. 2002), and In re Vilos, 12 I. & N. Dec. 61, 64 (BIA 1967). To the extent that Vilos
ruled that the INS had discretion under § 1155 to revoke its approval of the visa petition of an
alien who was already in the United States, we concluded that the decision was "arbitrary,
capricious, or manifestly contrary to the statute." Firstland I, 377 F.3d at 131 (internal quotation
marks omitted). ANA International had held that § 1155 was facially ambiguous and deferred to
the BIA's view in Vilos. See 242 F. Supp. 2d at 916. The matter of whether a statute is
ambiguous is a question of law, see, e.g., Humanoids Group v. Rogan, 375 F.3d 301, 306 (4th
Cir. 2004), and we held in Firstland I that the pertinent language of § 1155, which stated that
"[i]n no case, however, shall revocation have effect unless . . . notice of the revocation is
communicated . . . to the beneficiary of the petition before such beneficiary commences his
journey to the United States," was "plain," "unequivocal[]," and held "no ambiguity." 377 F.3d
at 131-32.

The district court here, in finding that the government's position in the litigation was
substantially justified, stated that ANA International and Vilos supported the government's
position and "[i]t therefore appears that the INS's argument was quite reasonable." In Pierce v.
Underwood, however, the Supreme Court held that even though prior judicial decisions may be,
to some extent, relevant, "the fact that one other court agreed or disagreed with the Government
does not establish whether its position was substantially justified." 487 U.S. at 569; see also id.
at 568 (noting that views of other courts on the merits "can be relevant, [but] we do not think
they provide a conclusive answer[] in either direction").

The district court's conclusion in this case that the government's position was substantially
justified because it was consistent with ANA International and Vilos thus applied an erroneous
legal standard, and hence was an abuse of discretion. Given our conclusions in Firstland I that
the ANA International decision was erroneous as a matter of law in finding a "plain" and
"unequivocal[]" statute ambiguous and that the Vilos decision was "arbitrary, capricious, or
manifestly contrary to the statute," 377 F.3d at 131-32 (internal quotation marks omitted), the
district court could not properly find that the government's position in the litigation was
substantially justified.

Nonetheless, the EAJA provides that an award of attorneys' fees would be inappropriate if
"special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A). We have held that
an award of fees under the EAJA may be unjust "where all of the fees were expended on discrete
efforts that achieved no appreciable advantage, and where the claim of the prevailing parties
rests largely on a result to which the claimant made no contribution." United States v. 27.09
Acres of Land, 43 F.3d 769, 773 (2d Cir. 1994). As noted above, the dispositive issue in
Firstland I was one that we raised nostra sponte. In contrast, the claim initially advanced by
plaintiffs, to wit, that the INS had no authority to revoke its approval of Firstland's petition in the
absence of "gross error," was without merit and contributed nothing to the ultimate decision of
the appeal or to the decision of the district court on remand. We consider this to be a "special
circumstance" in that, if fees were awarded to Firstland in the full amount requested, such an
award would give Firstland a windfall for useless efforts. Plaintiffs' only contribution to their
ultimate victory in the underlying case was the supplemental brief they submitted at this Court's
request. We conclude that an award of fees for any amount greater than the cost of preparing
that supplemental brief would be unjust.

Accordingly, we reverse the judgment of the district court to the extent that it denied
plaintiffs' request for attorneys' fees and expenses in their entirety, and we remand for a
determination by that court of appropriate fees and expenses for preparation of their
supplemental brief to this Court in Firstland I, and for an award in the amount determined.

We have considered all of plaintiffs-appellants' other arguments and find them to be without
merit. Accordingly, for the foregoing reasons, the judgment of the district court is hereby

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AFFIRMED in part, REVERSED in part, and REMANDED.

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