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 …
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