## In the 

# United States Court of Appeals
For the Seventh Circuit

____________

No. 06-1333

D ANUTF LOROIU , A LINA F LOROIU , and D ANIA F LOROIU , Petitioners
, v.

A LBERTO R. G ONZALES , Respondent.

____________ Petition for Review of an Order of the Board of Immigration Appeals. Nos. A95-920-814, A95-920-813, and A95-920-815

____________ O N M OTION FOR A TTORNEY ’ S F EES A ND C OSTS

____________ A UGUST 22, 2007

____________

Before R IPPLE , R OVNERand W ILLIAMS , Circuit Judges

. P ERC URIAM . In a previous opinion, we granted thepetition for review filed by Mr. and Mrs. Floroiu, Seventhday Adventists from Romania who, along with their daughter Dania, had been denied asylum, withholding of removal and relief under the Convention Against Torture. Floroiu v. Gonzales , 481 F.3d 970, 971 (7th Cir. 2007). We remanded the case and recommended that it2 No. 06-1333

be assigned to a different immigration judge (“IJ”); we did so because we concluded that the original IJ in the Floroius’ case had manifested a clear bias against them that had denied them due process of law. Id. at 971, 973. The petitioners have now moved for an award of attorney’s fees and costs. They seek reimbu rsement of $7,600 in attorney’s fees, which represents 47.50 hours at a rate of $160 per hour. They also request $324 in costs, which includes the filing fee and the cost of making copies. The total award sought is $7,924. For purposes ofthis opinion, we presume familiarity with our previous opinion. Private litigants in immigrat ion cases are eligible for attorneys’ fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”), if they can establish the statutory grounds for an award. See Muhur v. Ashcroft , 382 F.3d 653 (7th Cir. 2004). To prevail on a motion for fees under the EAJA, a party must show that: (1) he was a prevailingparty; (2) the Government’s position was not substantially justified; (3) there ex isted no special circumstances that would make an award unjust; and (4) he filed a timely and complete applic ation for fees. 28 U.S.C. § 2412(d)(1)(A)-(B); Cunningham v. Barnhart , 440 F.3d 862, 863 (7th Cir. 2006). It is undi sputed that the Floroius are prevailing parties, but the Government contends that its position was substantially ju stified and that the application for attorney’s fees is incomplete.

The Government bears the burdenof establishing that its position on appeal was “substantially justified.” Golembiewski v. Barnhart , 382 F.3d 721, 724 (7th Cir. 2004). A position that is substantia lly justified is one that is “justified in substance or in the main” or “justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood , 487 U.S. 552, 565 (1988).No. 06-1333 3

In its memorandum in opposition to the fee request, the Government does not attempt to justify in the slightest its prior position to this court that the IJ may have been “rude and impatient,” Respondent’s Br. at 41, but remained “impartial[],” id. at 42. Indeed, the Government concedes that the IJ’s characterization ofthe petitioners as “religious zealots” was “inappropriate.” Respondent’s Mem. at 5. Instead, the Government argu es that it was substantially justified in defending the IJ’s decision on the ground that the petitioners had not established past persecution or a well-founded fear of future persecution. In short, despite the due process violation, th e Government contends that it was substantially justified in defending the agency action on the basis of what it contends is the Floroius’ ultimate failure to establis h statutory eligibility for the relief sought. The Government’s position on this matter rests on a fundamental misunderstanding of the decision of this court. The reason that we were required to remand this case was not that the IJ had made an “inappropriate”
comment. Id. at 5. Instead, the comment, alongside the other improprieties in the conduct of the hearing that we discussed in our opinion, were evidence of the clear bias of the IJ. That bias “tai nt[ed] the proceedings, erode[d] the appearance of fairness and create[d] substantial uncertainty as to whether the record below was fairly and reliably developed ,” consequences so severe that they amounted to a deprivation of due process of law. Floroiu , 481 F.3d at 974 (emphasis added). The Government’s contention that the Floroius’ claim fails on the merits does not recognize that, until the taint of bias is removed, there is no basis for any conclusion whatsoeverabout the merits of the Floroius’ claim. Therefore, not only was the position of the United States4 No. 06-1333

regarding the due process issue itself not substantially justified, so too is any position that argues from the record developed in those proceedings —before a biased decisionmaker—lacking in substantial justification. The Government’s position, therefore, was not simply incorrect; it was unreasonable. See Marcus v. Shalala , 17 F.3d 1033, 1036 (7th Cir. 1994) (stating that a position is substantially justified if a reasonable person could believe it correct and citing Pierce , 487 U.S. at 566 n.2); see also Golembiewski , 382 F.3d at 725 (noting that our recommended reassignment of a case to a different Administrative Law Judge and firm condemnation of the agency’s position, as occurred in this case, both support the conclusion that the Government’s position lacks substa ntial justification).
Moreover, as we have noted, it is the Government’s burden to establish that its position was substantially justified. In its response, th e Government does not cite a single authority in support of its position. As outlined above, our independent review of this case, in light of the EAJA standards, confirms to us that this is an appropriate circumstance for an award of fees.

The Government also argues that, if fees are awarded, the petitioners should not recover their fees at the $160 per hour rate requested because that rate exceeds the statutory maximum. The maximum statutory rate for a fee award under the EAJA is $125 per hour, 28 U.S.C. § 2412(d)(2)(A)(ii), but the stat ute does permit a court to award higher rates; a higher rate may be appropriate only when “the court determines that an increase in the cost of living or a special fact or, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.” Id. ; see also Raines v. Shalala , 44 F.3d 1355, 1360-61 (7th Cir. 1995).No. 06-1333 5

In support of his request for a higher fee, the petitioners’ attorney states that he has twenty years of experience in immigration law and is a me mber of an association of immigration lawyers. Petitio ners’ Mtn. at 4. We have endorsed the view that attorn eys with specialized immigration experience may be entitled, in certain cases, to an award in excess of the statutory maximum. We have suggested such an award may be appropriate when a petitioner demonstrates that his attorney brought “relevant expertise to a case, such as knowledge of foreign culturesor of particular, esoteric nooks and crannies of immigration law, in which such expe rtise is needed to give the alien a fair shot at prevailing .” Muhur , 382 F.3d at 656. Here, we have only counsel’s statement of his years of experience in immigration law and a conc lusory statement that this case involved “complexities” and extensive “research [of] procedural rule s, substantive and constitutional law.” Aff’t. at 1. We do not consider this blanket statement of the difficulty of the issues presented and the years of experience of the practitioner involved sufficient to justify piercing the statutory ceiling. See Johnson v. Gonzales , 416 F.3d 205, 213 (3d Cir. 2005) (noting that a case involving straightforwar d application of established standards, rather than “little-known areas of immigrationlaw or particular knowledge of [the petitioner’s] culturefactors” did not justify a fee enhancement). As in Muhur v. Ashcroft , 382 F.3d 653 (7th Cir. 2004), this request is unaccompanied by sufficient information regarding the particularqualifications of the attorney involved, the manner in which those qualifications were brought to bear on this litigation or in formation regarding the availability of attorneys with qua lifications that would permit them to pursue adequately this case. Id. at 214 (denying a fee enhancement to one of the petitioner’s attorneys6 No. 06-1333

who had not supported the request with relevant information regarding her qualifications). We therefore recalculate the award at a rate of $125 per hour, which, multiplied by 47.50 hours—a block of time the Government does not challenge and we think reasonable—yields $5,937.50. Adding in the uncontested b ill of costs of $324, we award petitioners $6,261.50.

I T I S S O O RDERED

A true Copy:

Teste:

_____________________________ Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—8-22-07