                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 19-2682
                       ___________________________

                              Edgar Gallegos Garcia

                      lllllllllllllllllllllPetitioner - Appellant

                                          v.

William P. Barr, United States Attorney General; Kenneth T. Cuccinelli, Acting
   Director, United States Citizenship & Immigration Services; United States
   Citizenship and Immigration Service; Kevin McAleenan, Secretary of the
Department of Homeland Security; Leslie Tritten, District Director, United States
                      Citizenship & Immigration Services

                     lllllllllllllllllllllRespondents - Appellees
                                       ____________

                   Appeal from United States District Court
                        for the District of Minnesota
                                ____________

                             Submitted: June 18, 2020
                              Filed: August 20, 2020
                                    [Published]
                                  ____________

Before KELLY, ERICKSON, and STRAS, Circuit Judges.
                           ____________

PER CURIAM.
       Following a one-day bench trial, the district court granted Edgar Gallegos
Garcia’s application for naturalization. Garcia then moved for attorney’s fees and
costs under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 (2019). The
district court denied his motion, and Garcia appeals. We affirm the district court’s
order with the modification that Garcia is awarded costs.

                                          I.

       In May 2013, Garcia, then a citizen of Mexico and lawful permanent resident
of the United States, was hired by the City of Hopkins, Minnesota, as a police cadet.
In August 2014, after Garcia completed the cadet course, the City offered him his
“dream job,” a position as a Minnesota peace officer. Then-captain Brent Johnson
filled out a Certification Form to request a peace officer license for Garcia, without
input from Garcia. He provided the Certification Form for both Garcia and then-
police chief Michael Reynolds to sign. Minnesota does not require its police cadets
to be U.S. citizens but does require its peace officers to be U.S. citizens. As such,
above the signature line, the Certification Form asked Garcia to affirm that he was “a
citizen of the United States.” Garcia signed the Certification Form without reading
it. He knew that some states required its officers to be citizens, but he did not
research whether Minnesota had such a requirement.

        Garcia’s request for a peace officer license was granted, and he began working
as a full-time patrol officer. Several months later, he resigned for reasons unrelated
to his immigration status. He then applied for police officer positions in Texas, where
his brother had been a police officer for more than twenty years, and was told that
Texas required its police officers to have U.S. citizenship.

      Garcia subsequently applied for naturalization and was denied. The
naturalization application asked, “Have you ever claimed to be a U.S. citizen (in
writing or any other way)?” Under penalty of perjury, Garcia checked the “no” box.


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During the in-person naturalization interview, Garcia affirmed under oath the
accuracy of his naturalization application, including the answer “no” to whether he
had ever claimed to be a U.S. citizen. The government denied his application on the
grounds that Garcia lacked good moral character because he falsely stated that he had
never claimed to be a U.S. citizen. The government affirmed its denial after a re-
hearing, and Garcia filed a petition in federal court for a de novo review of his
application.

       After completing discovery, including the depositions of Garcia, Reynolds, and
Johnson, the parties proceeded to trial. Johnson testified that he filled out the
Certification Form without Garcia’s input. By way of deposition,1 Reynolds testified
that in his view, Garcia lacked an incentive to lie about his citizenship because the
peace officer position could have been held open for him until he was naturalized.
Garcia also testified, telling the court that he did not know he had falsely claimed to
be a U.S. citizen on the Certification Form until after his naturalization application
was denied. He further stated that, had he known of the citizenship requirement, he
would have waited to accept the peace officer position until he was naturalized. The
district court found Garcia credible and determined that he “did not have the
subjective intent of falsely testifying to obtain naturalization benefits.” As such, the
district court granted Garcia’s naturalization application.

       Following his success at trial, Garcia moved for attorney’s fees and costs under
the EAJA. The district court denied both fees and costs because it determined the
government’s position was “substantially justified.” The court noted that the question
at trial was “primarily one of Gallegos Garcia’s credibility” because “his case
depended on him showing the district court de novo that he had a credible explanation
for making a false statement on his naturalization application.” And although the


      1
       Reynolds was unavailable for trial, and his deposition testimony was admitted
without objection.

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government “did not ultimately prevail, it was not unjustified in its position or in
disputing Gallegos Garcia’s credibility.” Garcia appeals the denial of fees and costs.

                                           II.

       Under the EAJA, a prevailing party other than the United States may be
awarded costs, and attorney’s fees and expenses. 28 U.S.C. § 2412. A party seeking
attorney’s fees and expenses must, within thirty days of final judgment, file a fee
application that (1) demonstrates the applicant is the prevailing party and eligible to
receive an award; (2) shows the amount sought, including an itemized statement of
the actual time expended and the rate at which fees and other expenses were
computed; and (3) alleges the “position of the United States” was not substantially
justified. Id. § 2412(d)(1)(B).

        The government bears the burden of showing that its position, including its pre-
litigation conduct, was substantially justified. Bah v. Cangemi, 548 F.3d 680, 684
(8th Cir. 2008); 28 U.S.C. § 2412 (d)(2)(D) (defining “position of the United States”
to include its pre-litigation conduct). “Substantially justified” means “justified in the
substance or in the main—that is, justified to a degree that could satisfy a reasonable
person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (cleaned up). The
government’s position must have “a reasonable basis both in law and fact.” Id.; see
U.S. v. Hurt, 676 F.3d 649, 652 (8th Cir. 2012). We review for abuse of discretion
a district court’s determination that the government’s position was substantially
justified. Bah, 548 F.3d at 683 (citing Pierce, 487 U.S. at 559–60).

      Garcia argues the district court erred by denying fees and costs because the
government’s position was not substantially justified. According to Garcia, the
government’s position was not substantially justified because the pre-trial discovery
evidence so strongly supported the conclusion that he had simply made a mistake



                                          -4-
when claiming U.S. citizenship, and not that he knowingly made a false statement in
his naturalization application or interview.

       The government concedes Garcia is entitled to costs in the amount he requests
because he is the prevailing party and, unlike for attorney’s fees, there is no
“substantially justified” requirement for costs under the EAJA. See 28 U.S.C.
§ 2412(a). However, it argues that its position was substantially justified for purposes
of attorney’s fees because evidence indicated Garcia lacked good moral
character—that is, he “ha[d] given false testimony for the purpose of obtaining
immigration or naturalization benefits.” Kungys v. United States, 485 U.S. 759, 779
(1998) (cleaned up). In particular, Garcia testified that being a police officer was his
“dream job,” and evidence showed he was not truthful in his naturalization
application and interview about whether he had previously claimed to be a U.S.
citizen on the Certification Form. Garcia explained that he had not read the
Certification Form before signing it, and thus did not know he had claimed U.S.
citizenship. But the government contends sufficient evidence existed to doubt
Garcia’s credibility and to question his motives, so its position was substantially
justified. It also notes that, although Garcia believes pre-trial evidence clearly
showed he was credible, he failed to move for summary judgment at the close of
discovery.

       We conclude the district court did not abuse its discretion by determining the
government’s position was substantially justified. See Bah, 548 F.3d at 683. As the
court noted, the crucial issue in this case was Garcia’s credibility. The government
presented evidence that Garcia made a false representation on the Certification Form
to obtain a peace officer license, another false representation in his naturalization
application, and a false statement during his naturalization interview. Although
Reynolds and Johnson testified that they completed the Certification Form for Garcia,
their testimony did not conclusively show what Garcia knew or what his intent was
when he signed it. Nor did either testify as to whether Garcia knew that peace

                                          -5-
officers in Minnesota had to be U.S. citizens, whether Garcia read the citizenship
statement at the bottom of the form, or whether he knew at the time of his
naturalization interview that he had previously claimed to be a U.S. citizen. The
district court ultimately found Garcia credible and concluded he made an “isolated,
innocent mistake of falsely claiming United States citizenship.” Based on the
evidence, however, and the importance of the court’s credibility finding on the end
result, the government’s position that Garcia lacked good moral character because he
had given false testimony for the purpose of obtaining immigration or naturalization
benefits was substantially justified.

                                           III.

        Finally, Garcia moves to supplement the record with his and Johnson’s
deposition transcripts. Recognizing our general rule against considering new
evidence on appeal, Garcia contends we should make an exception in the interests of
justice because the district court “impliedly contemplated” them, it would be fair and
equitable to consider them because they were available to the government, and they
would assist us in deciding the legal issues on appeal. But here, the statute states:
“Whether or not the position of the United States was substantially justified shall be
determined on the basis of the record . . . made in the civil action for which fees and
other expenses are sought.” 28 U.S.C. § 2412(d)(1)(B). The deposition transcripts
are not part of the record made below, and Garcia points to no exception to this
limitation on what a court shall consider when deciding whether the government’s
position was “substantially justified.” Cf. United States v. 1,378.65 Acres of Land,
794 F.2d 1313, 1319 (8th Cir. 1986). Even if an “interests of justice” exception could
apply in this context, however, it would not apply here, where both deponents
testified at trial and Garcia does not allege their testimony at trial differed from their
deposition testimony.




                                           -6-
       Accordingly, we deny Garcia’s motion to supplement the record, and affirm the
district court’s order with the modification that costs in the amount of $1,074.18 be
awarded to Garcia.
                        ______________________________




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