Id. § 2412(d)(2)(D). Therefore, the government's position includes the underlying decisions of the IJ and the BIA as well as "the government's litigation position defending the agency action." W.M.V.C. v. Barr, 926 F.3d 202, 208 (5th Cir. 2019) (quoting Sylejmani v. Barr, 768 Fed. App'x 212, 218 (5th Cir. 2019)).
The government’s position thus includes the underlying decisions of the BIA and the IJ as well as "the government’s litigation position defending the agency action." Sylejmani v. Barr , No. 16-60556, 768 Fed.Appx. 212, 218, 2019 WL 1590905, at *4 (5th Cir. Apr. 12, 2019) (per curiam) (unpublished). "Substantially justified" does not mean " ‘justified to a high degree,’ but rather ‘justified in substance or in the main’—that is, justified to a degree that could satisfy a reasonable person."
W.M.V.C. v. Barr, 926 F.3d 202, 208 (5th Cir. 2019) (quoting Sylejmani v. Barr, 768 Fed. App'x 212, 218 (5th Cir. 2019)).
Substantial justification requires that the litigant's position have a "reasonable basis both in law and fact." Sylejmani v. Barr, 768 Fed.Appx. 212, 219 (5th Cir. 2019) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988). The Court finds that neither the Government's conduct nor its position in this litigation lacked a reasonable basis in law and fact, particularly given the novel and difficult circumstances involved in this case including the evolving COVID-19 pandemic and civil conflict in Venezuela.
Accordingly, a court must examine both the agency decision and the government's litigation position defending the agency action in resolving the substantial justification issue. See Sylejmani v. Barr, 768 Fed. App'x 212, 218 (5th Cir. 2019) In this case, the Commissioner has failed to show that either the agency's plain error in failing to apply the correct legal standard or the government's erroneous litigation position before this Court was substantially justified. Indeed, because the standard announced in Singletary v. Bowen, 798 F.2d 818 (5th Cir. 1986), has long been established in the Fifth Circuit, the ALJ's failure to apply it in view of her own finding that the claimant's condition "waxed and waned with treatment" and evidence of the claimant's cycling in and out of inpatient treatment, among other things, was not justified. But see Sylejmani, 768 Fed. App'x at 218 (finding the agency decision was substantially justified because at the time of its decision the law in the Fifth Circuit on the relevant issue was "unsettled and evolving").