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 Mezas application for relief to the Board of Immigration Appeals (“BIA”). Meza-Vazquez v. Barr, 806 F. Appx 593 (9th Cir. 2020). We did so after recognizing that this courts decision in Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017) (en banc), may have called into question the BIAs decision in his case. Meza-Vazquez, 806 F. Appx 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 governments 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 Mezas 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 Judges (“IJ”) decision and the BIAs decision must have been substantially justified. Li v. Keisler, 505 F.3d 913, 918 (9th Cir. 2007).
To be substantially justified, the governments 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, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988)). In other words, its position must “ha[ve] a reasonable basis in law and fact.” Pierce, 487 U.S. at 566 n.2, 108 S.Ct. 2541. 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 Mezas case back to the BIA. Meza-Vazquez, 806 F. Appx 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 IJs and BIAs 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 governments 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. Appx at 595. We accordingly granted the governments request for remand. Id. Given that intervening case law, so long as the IJs and BIAs decisions were not contrary to controlling law at the time that they were made, the governments position is substantially justified. Li, 505 F.3d at 919–20.
B.
Meza draws the courts 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 governments 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 IJs and BIAs 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 Mezas 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.
Second, Meza faults the use of Mexican LGBT antidiscrimination laws in the IJs and BIAs 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 Mexicos 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 governments 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 Mezas 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 aliens 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 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 Mezas report of his sexual assault.
But the IJ and BIA did, in fact, consider Mezas 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 Mezas 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 Mezas 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 governments 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.
Petitioners motion for attorneys’ fees is DENIED.