OPINION OF THE COURT
Jimmy Johnson moves for attorneys’ fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A). For the reasons that follow, we grant his motion.
I. Background
Johnson petitioned our Court for review of the decision of the Board of Immigration Appeals (“BIA”) denying his asylum application. Johnson is a native of Liberia who fled that country after being forcibly recruited into and then deserting the army of the National Patriotic Front of Liberia (“NPFL”) — a group аssociated with Charles Taylor, who later became the President of Liberia (and subsequently abdicated' that position). The BIA determined that Johnson “ha[d] failed to show that he was persecuted on account of his political opinion, and that his ‘persecution’ was not solely the result of the guerillas’ aim in seeking to fill their ranks in order to carry out the war with the government and pursue their political goal, their political motive being irrelevant.”
We granted Johnson’s petition for review, holding that the BIA’s decision was not supported by substantial evidence when it failed even to consider Johnson’s testimony from his second asylum hearing (which the Immigration Judge (“IJ”) determined credible in a finding not disturbed by the BIA) in reviewing the IJ’s decision resulting from that hearing.
1
See Johnson v. Ashcroft,
*208 Johnson’s motion for attorneys’ fees relating to his petition for review is now before us.
II. Jurisdiction
Under the EAJA, a motiоn for attorneys’ fees must be filed “within thirty days of final judgment in the action.” 28 U.S.C. § 2412(d)(1)(B). In this context, “ ‘final judgment’ means a judgment that is final and not appealable.... ” 28 U.S.C. § 2412(d)(2)(B). We have held that “the thirty day cut-off for EAJA petitions begins when the government’s right to appeal the order has lapsed.”
Taylor v. United States,
The Government’s time to petition for a writ of certiorari in this case expired on March 22, 2005. Johnson, however, filed his motion on March 18, 2005. This technicality need not concern us, as we have noted that “[t]he EAJA establishes only .a deadline after which ... petitions may not be filed; earlier filing is possible.” Id. at 175 n. 8. Johnson’s motion for attorneys’ fees thus is properly before us, and we now turn to the merits of that motion.
III. Discussion
“[T]he essential objective of the EAJA [is] to ensure that persons will not be deterred from seeking review of, or defending against, unjustified governmental action because 'of the expense involved in the vindication of their rights.... ”
Clarke v. INS,
Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action . •.. including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the pоsition of the United States was substantially justified or that special circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A) (emphases added).
Accordingly, we must first determine whether Johnson was the “prevailing party” in this action under the EAJA. If we conclude that he is, we must then consider whether the position of the United States in this case was “substantially justified.” 3
A. Prevailing Party
The question we are faced with here— whether an alien who prevails on his/her petition for review before us but whose case is remanded to the BIA for further proceedings (and who therefore may not ultimately prevail in his/her immigration proceedings) is a “prevailing party” for EAJA purposes — is one of first impression in our Circuit. The Court of Appeals for the Ninth 'Circuit, in a decision later adopted by the Court of Appeals for the Seventh Circuit, has answered that question in the affirmative.
See Rueda-Menicucci v. INS,
Both Courts held that this result was dictated by the Supreme Court’s decision in
Shalala v. Schaefer,
In reaching this conclusion, the Court emphasized that a “sentence-four” remand results in the immediate entry of judgment (and relinquishment of jurisdiction) by the District Court, whereas in the “sentence-six” remand context judgment is not entered (and the District Court retains jurisdiction) until post-remand agency proceedings are complete.
Id.
at 297,
The Seventh and Ninth Circuits determined that a remand to the BIA in an immigration case is essentially the same as a “sentence-four” remand in a Social Security case.
See Muhur,
who persuade[d] the court of appeals to set aside the Social Security Administration’s denial of benefits [was] a prevailing party in the judiсial proceeding because nothing remainfed] to be done by the court, which having found error ha[d] finished with the case and relinquished jurisdiction.
Muhur,
We have the same situation here. Johnson secured the setting aside of an erroneous BIA decision in his case. We entered judgment in his favor and relinquished *210 jurisdiction. Thus, pursuant to the reasoning of Schaefer, he is the prevailing party in this proceeding for EAJA purposes regardless whether he ultimately prevails in his underlying immigration proceeding. 5
Accordingly, we join our sister Circuit Courts in holding that an alien whose petition for review of a BIA decision is granted by our Court and whose case is then remanded to the BIA is a prevailing party under the EAJA, and may therefore be entitled to attorneys’ fees. Having determined that Johnson is a prevailing party, we turn to whether the Government’s position in this litigation was “substantially justified,” a second leg of analysis in Johnson’s quest for fees.
B. Substantially Justified
The Supreme Court has held that, as used in the EAJA, “substantially justified” does not mean “justified to a high degree” but instead means “justified in substance or in the main — that is, justified to a degree that could satisfy a reasonable person.”
Pierce v. Underwood,
We have held that, in immigration cases, the Government must meet the substantially justified test twice — once with regard to the underlying agency action and again with regard to its litigation position in the proceedings arising from that action. See id. at 545 (“First, [the Government] must independently establish that the agency action giving rise to the litigation was substantially justified. Second, it must establish that its litigation positions were substantially justified.”). In our anаlysis of the first threshold, we ask whether the government had a reasonable basis to begin the agency proceeding and litigate before the IJ. Id. at 554.
Other courts have applied similar tests in making the “substantially justified” de-terminátion in an immigration context. In particular, the Court of Appeals for the Second Circuit — noting that “[t]he EAJA defines ‘position of the United States’ as ‘in addition to the position taken by the United States in the civil actiоn, the action or failure to act by the agency upon which the civil action is based’ ” — has held that courts must look at the Government’s position in both the underlying agency proceeding as well as in the federal court proceeding in determining whether that position was substantially justified.
Vacchio v. Ashcroft,
Thus, as the Ninth Circuit has emphasized, “when we decide whether the government’s litigation position is substantially justified, the EAJA ... favors treating a case as an inclusive whole rather than as atomized line items.... ”
Al-Harbi,
1. The Agency Action
It is the Government’s burden to prove that its position at the agency level was substantially justified. However, the Government’s response to Johnson’s motion makes nо reference to its position during the underlying proceedings (focusing instead on the proceedings in our Court), and it has thus waived any argument on this ground.
See Laborers’ Int’l Union of N. Am. v. Foster Wheeler Corp.,
During Johnson’s removal proceedings, the Government’s main legal argument appears to have been the same one it made before us — that Johnson was not entitled to relief because his asylum claim was solely based on his forcible recruitment into the NPFL, which the Supreme Court held in
INS v. Elias-Zacarias,
However, at his second asylum hearing — the hearing that gave rise to the BIA decision reviewed by our Court — Johnson testified that the NPFL would attribute an anti-Charles Taylor political opinion to him based on his desertion and that he feared being persecuted as a result of that imputed political opinion if removed to Liberia. We have held that an asylum claim may be based on imputed political opinion.
See Lukwago v. Ashcroft,
*212
In addition, both our Court and the BIA have used the “mixed motive” mode of analysis in asylum cases. Under that jurisprudence, an alien may be eligible for asylum even if the persecution he or she suffered, or fears suffering in the future, is only partially based on a ground enumerated in the Immigration & Nationality Act (“INA”), 8 U.S.C. § 1101(a)(42).
See, e.g., Singh v. Gonzales,
Once the Government knew that Johnson had credibly testified that he feared persecution at least in part on account of an imputed political opinion, its continued reliance on Elias-Zacarias to argue that the IJ erred in granting Johnson relief was no longer reasonable. Accordingly, Johnson is entitled to attorneys’ fees under the EAJA because (1) the Government has waived any argument that its litigation position at the agency level was substantially justified, and (2) even if it did not we would conclude that the Government’s position before the agency did not have a reasonable basis in law and fact. For the sake of completeness, however, we briefly address the second prong of the substantially justified test — whether the Government had a reasonable basis for defending the BIA’s action before our Court.
2. The Government’s Position in Opposing Johnson’s Petition for Review
As stated earlier, we held that the record in this case compelled the conclusion that the BIA erred in denying Johnson’s asylum claim because (1)
Elias-Zacarias
does not foreclose an asylum claim based on forcible recruitment into a guerilla group if another factor (i.e., an enumerated ground under the INA) is present, and (2) the BIA erred in failing even to mention Johnson’s testimony from his second asylum hearing.
Johnson,
This argument is doubly flawed. First, the Government, like the BIA, ignores Johnson’s credible testimony from his second asylum hearing. Second, the Government’s assertion that its position was substantially justified ignores our (and the BIA’s) “mixed motive” case law. See Section III.B.1, supra. Under that line of cases, Johnson may be eligible for asylum so long as the persecution he fears suffering if returned to Liberia is based in significant part on imputed political oрinion. The Government’s apparent position to the contrary — that the portions of Johnson’s testimony that the NPFL killed deserters for reasons other than political opinion foreclose Johnson’s asylum claim — does not comport with the mixed motive mode of analysis and is therefore not substantially justified. 6 Cf. Ruedar-Menicucci, 132 *213 F.3d at 495 (holding that the Government’s position that petitioner was not entitled to asylum was not substantially justified when the Government defended a BIA decision that was “contrary to agency and circuit precedent”).
* * * * *
In sum, we conclude that an alien in Johnson’s position — one whose petition for review before our Court has been successful and whose case is remanded to the BIA for further proceedings — is a prevailing party under the EAJA. Because the Government’s position was not substantially justified at the agency level or bеfore us, Johnson is, as the prevailing party in this action, entitled to attorneys’ fees. Our final inquiry is the appropriate amount of the fee award.
IV. Amount of Award
The EAJA provides that “attorney fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.... ” 28 U.S.C. § 2412(d)(2)(A)(ii). Johnson’s counsel argues that he is entitled to reimbursement at a rate of $200 per hour because immigration cases require specialized expertise and because there were a limited number of qualified attorneys who would have taken Johnson’s case. We disagree.
This case primarily raised the issue of whether the BIA had failed to consider Johnson’s testimony regarding the political opinion that might be imputed to him by the NPFL. Although Johnson’s counsel is an experienced attorney who specializes in immigration, he was here faced with a case of straightforward application of the substantial evidence and asylum standards. It was not a case that required research into little-known areas of immigration law or particular knowledge of Johnson’s Liberian culture — factors that might justify an award abovе the statutory cap.
Cf. Rueda-Menicucci,
The number of hours counsel spent on Johnson’s case is reasonable, and the Government does not argue otherwise. 7 *214 Therefore, we award Johnson fees fоr his counsel’s claimed 82 hours of work, at the statutory rate, plus $549.89 in costs, resulting in a total award of $10,799.89.
Notes
. At that hearing Johnson testified, inter alia, that (1) he believed the Liberian civil war was unjust, and (2) the NPFL forces that had forcibly recruited him and had since gained power in Liberia would impute an anti-NPFL (and therefore anti-Charles Taylor) political opinion to him based on his desertion. He testified that the NPFL acted on the principle that "if you do not follow them, they view you as supporting other groups.”
. We also held that Johnson had waived his claim that the BIA erred in'reversing the IJ's grant of relief on his withholding of removal claim because he referred to that claim only *208 in passing in his brief before this Court. Id. at 849 n. 1.
. The Government does not contend that "special circumstances” exist in this case, and so we do not discuss this element of the statute.
. In
Rueda-Menicucci,
the Ninth Circuit explicitly overruled its prior case law on this issue in light of
Schaefer. Rueda-Menicucci,
. We note that the Government merely points out that whether an alien in Johnson's situation is a prevailing party is an issue of first impression in our Circuit and does not argue that we should not adopt the position taken by other courts. The Government does assert, in the context of arguing that its litigation position.was substantially justified, that Johnson did not prevail on his withholding of removal claim. However, Johnson clearly prevailed on the main issue in this case' — his asylum claim.
Cf. Schaefer,
. We note that our case is quite different from those in which, despite the alien’s success on
*213
his or her petition for review, the Government was held to have had a substantially justified litigation position. For example, in
Vacchio
and
Kiareldeen,
the Government's position was determined to be substantially justified because it was defending thе constitutionality of a statute (in those cases, provisions of the INA).
Vacchio,
. The Government’s argument that Johnson should not be awarded fees for any work on his withholding of removal claim (because he did not prevail on that claim) is rendered moot by Johnson's reply brief, which clarifies that his counsel has not requested any fees for work done in furtherance of the withholding *214 of removal claim and requests reimbursement solely for work done on Johnson's asylum claim,