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Keywords

tortlitigationattorneyappealasylum
tortlitigationattorneyappealasylum

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Tchemkou v. Mukasey

Facts

Mireille Tchemkou, a native and citizen of Cameroon, was denied asylum, withholding of removal, and relief under the Convention Against Torture by the BIA. After successfully appealing this decision, she sought an award of attorneys' fees and costs under the EAJA. The government contended that its position was substantially justified, arguing that the incidents of abuse Tchemkou suffered were due to different political activities and that she could not articulate a precise political opinion that would subject her to persecution.

Mireille Tchemkou, a native and citizen of Cameroon, was denied asylum, withholding of removal, and relief under the Convention Against Torture by the BIA. After successfully appealing this decision, she sought an award of attorneys' fees and costs under the EAJA. The government contended that its position was substantially justified, arguing that the incidents of abuse Tchemkou suffered were due to different political activities and that she could not articulate a precise political opinion that would subject her to persecution.

Issue

Whether the government showed that its litigation position was substantially justified in denying Tchemkou's application for asylum and other relief.

Whether the government showed that its litigation position was substantially justified in denying Tchemkou's application for asylum and other relief.

Rule

A petitioner in an immigration case is eligible for attorneys' fees under the EAJA if she can establish that she was a prevailing party, the Government's position was not substantially justified, no special circumstances existed that would make an award unjust, and she filed a timely and complete application for fees.

A petitioner in an immigration case is eligible for attorneys' fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. 2412, if she can establish the statutory grounds for an award. See Floroiu v. Gonzales, 498 F.3d 746, 748 (7th Cir. 2007). Specifically, a petitioner must show that: (1) she was a prevailing party; (2) the Government's position was not substantially justified; (3) no special circumstances existed that would make an award unjust; and (4) she filed a timely and complete application for fees. 28 U.S.C. 2412(d)(1)(A)-(B); Floroiu, 498 F.3d at 748; Muhur v. Ashcroft, 382 F.3d 653 (7th Cir. 2004).

Analysis

The court found that the government failed to provide adequate support for its arguments that Tchemkou's incidents of abuse should be considered in isolation and that her inability to articulate a precise political opinion justified its position. The court emphasized that the BIA must look at the record as a whole in determining whether persecution occurred, and noted that Tchemkou had suffered grievous persecution in the past, undermining the government's claims.

The court found that the government failed to provide adequate support for its arguments that Tchemkou's incidents of abuse should be considered in isolation and that her inability to articulate a precise political opinion justified its position. The court emphasized that the BIA must look at the record as a whole in determining whether persecution occurred, and noted that Tchemkou had suffered grievous persecution in the past, undermining the government's claims.

Conclusion

The court granted Tchemkou's petition for fees and costs, awarding her $41,716 in attorneys' fees and $1,179 in costs.

The court granted Tchemkou's petition for fees and costs, awarding her $41,716 in attorneys' fees and $1,179 in costs.

Who won?

Mireille Tchemkou prevailed in the case because the court determined that the government's position was not substantially justified.

Mireille Tchemkou prevailed in the case because the court determined that the government's position was not substantially justified.

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