Justice Department Lawyers Take Unacceptable Litigation Positions in Immigration Case

Lawyers for the Department of Justice recently received a sharp rebuke from the Ninth Circuit for taking unacceptable litigation positions in an immigration appeal.

A basic rule is that if you raise an argument and know that the court has already rejected that theory, you have an obligation to inform the court of the prior decision. You can still argue that the first decision was poorly decided, but you must let the court know about it.

The Ninth Circuit criticized lawyers for the Department of Justice for raising the exact argument that the same court had been squarely rejected by the same court just two years earlier. The Ninth Circuit correctly lectured the Justice Department that "it is not acceptable to repeat an argument already rejected without acknowledging the case that rejected it" and went on to point out that the Justice Department was part of the earlier case so they definitely knew about it. The Ninth Circuit gave the Justice Department a reprieve this time, though, giving a light warning that if the Justice Department does it again, the court will consider it sanctionable behavior.

The rejected argument is that under the Equal Access to Justice Act (EAJA), if an immigrant wins an immigration appeal in a circuit court, the government must pay the legal fees and costs unless the government's position was substantially justified. It is well-settled that to show the government was substantially justified, the government must show that its arguments on appeal and the underlying BIA decision were both justified. Justice Department lawyers were rehashing already-rejected arguments that their position should be substantially justified even if the BIA's decision was obviously indefensible.