Evelyn Victoria Zapon v. U.S. Department of Justice Immigration and Naturalization Service

Four members of the Zapon family — a husband and wife and their two elder children (collectively “Zapons”) appeal the denial of them application for an award of attorney’s fees against the United States under the Equal Access to Justice Act (“EAJA,” 28 U.S.C. § 2412 (d)(1)(A)). EAJA is not an automatic fee-shifting statute in favor of litigants who prevail against the government. Instead Section 2412(d)(1)(A) says that such a prevailing party is not entitled to an award if “the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.” That “substantially justified” concept has been fleshed out in Pierce v. Underwood, 487 U.S. 552, 565 , 108 S.Ct. 2541, 2550 , 101 L.Ed.2d 490 (1988), followed in Commissioner v. Jean, 496 U.S. 154 , 158 n. 6, 110 S.Ct. 2316 , 2319 n. 6, 110 L.Ed.2d 134 (1990).

In terms of the underlying substantive merits, both the magistrate judge and the district court were correct in concluding that the Board of Immigration Appeals abused its discretion in refusing to grant Zapons a stay of deportation: Under a then-recently-enacted amendment to the Immigration and Nationality Act (8…