FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HECTOR MEZA-VAZQUEZ,

Petitioner,

v.

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 15-72672

Agency No.

A205-711-242

ORDER

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”). MezaVazquez v. Barr, 806 F. App’x 593 (9th Cir. 2020). We did 

so after recognizing that this court’s decision in BringasRodriguez 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.