Escobar Ruiz v. I.N.S.

• Citation: 813 F.2d 283
• Decision Date: 25 March 1987
• Docket Number: No. 83-7502,83-7502
• Parties: Jose Rolando ESCOBAR RUIZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 283

813 F.2d 283

55 USLW 2537

Jose Rolando ESCOBAR RUIZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 83-7502.

United States Court of Appeals,

Ninth Circuit.

March 25, 1987.

Marc Van Der Hout, San Francisco, Cal., for petitioner.

Marc C. Walters, Washington, D.C., for respondent.

Petition for Review From I & NS Northern California.

Before SCHROEDER, ^* FLETCHER and REINHARDT, Circuit Judges.

OPINION ON REHEARING

REINHARDT, Circuit Judge:

I. INTRODUCTION

In Escobar Ruiz v. INS, 787 F.2d 1294 (9th Cir.1986), we decided that the former Equal Access to Justice Act (EAJA), codified at 5 U.S.C. Sec. 504 (1982) and 28 U.S.C. Sec. 2412 (1982), applies to immigration proceedings before the immigration judge and the Board of Immigration Appeals (BIA). ¹ We rejected the argument that Sec. 292 of the Immigration and Naturalization Act of 1952 (INA), 8 U.S.C. Sec. 1362 (1982), precludes the extension of the EAJA to such proceedings. Section 292 provides that "the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose."

In our previous opinion, we concluded that the parenthetical in section 292 means only that the government has no obligation to appoint and pay for the representation of aliens in deportation proceedings. Aliens have a right to representation but they must either retain counsel at their own expense or find voluntary representation. Section 292, we emphasized, says nothing about whether the government should or should not pay prevailing parties attorney's fees after the proceeding when the government's conduct is determined to have been unjustified. Finding no obstacle in section 292, we concluded that the EAJA covers immigration proceedings before the immigration judge and the BIA. ²

The government now presents us with a petition for rehearing with suggestion for rehearing en banc. On this occasion, the government claims that deportation proceedings are not adversary adjudications within the meaning of 5 U.S.C. Sec. 504 of the EAJA. The government brings to our attention subsection 504(a)(1), which states that fees and other expenses incurred by a prevailing party shall be awarded by agencies that conduct adversary adjudications. Subsection 504(b)(1)(C) provides that "adversary adjudication" means "an adjudication under section 554 [of the Administrative Procedures Act (APA) ] in which the position of the United States is represented by counsel or otherwise ..." The government's central claim is that immigration proceedings before the immigration judge or the BIA are not conducted under section 554 and, therefore, subsection 504(a)(1) does not cover them.

II. RAISING AN ISSUE FOR THE FIRST TIME IN A PETITION FOR REHEARING

The government raises the adversary adjudication argument for the first time in its petition for rehearing. It did not contend that the deportation proceeding was not an adversary proceeding when we confronted this case initially. Nor did it cite the statutory provisions it now says are controlling.

Courts of Appeals will ordinarily not consider for the first time on rehearing issues not presented by the parties in their briefs on appeal. Partenweederei, MS Belgrano v. Weigel, 313 F.2d 423, 425 (9th Cir.1962). A case must involve "extraordinary circumstances [to] justify our considering on petition for rehearing, issues which were not previously presented." United States v. Sutherland, 428 F.2d 1152, 1158 (5th Cir.1970) (citation omitted). See also Moore v. United States, 598 F.2d 439, 441-42 (5th Cir.1979). ³ The case before us meets that exception to the general rule.

Our initial decision that Escobar Ruiz may be entitled to attorney's fees is the first by any court to consider the question whether the EAJA applies to immigration proceedings, and it is likely that numerous claims will be made in reliance on the opinion we issued. The new legal issue raised by the government goes to the heart of our decision. If the government's argument regarding the term "adversary adjudication" in section 504 is correct, then the EAJA does not apply to immigration proceedings and all attorney's fees claims arising out of such proceedings should be dismissed. Under these circumstances, permitting an improper interpretation of the EAJA to stand as the controlling precedent in our circuit would constitute a disservice to all parties concerned.

In addition, the government set forth its initial position in a response to a motion by petitioner for attorney's fees and not in a full brief on the merits. We therefore treat the government's failure to raise a central argument with more leniency than we ordinarily might. Finally, we are convinced that the government's failure to present the issue at the proper time was inadvertent or negligent rather than willful. Unlike the court in Partenweederei, we have no reason to believe that the litigant "deliberately chose, for reasons of strategy," not to assert the claim at the appropriate time. 313 F.2d at 425. All in all, therefore, we have before us one of those "special situations [in which] a belatedly raised issue may be considered." Moore v. United States, 598 F.2d at 441.

III. ADVERSARY ADJUDICATIONS FOR PURPOSES OF THE EAJA

Subsection 504(a)(1) of the EAJA requires that agencies award attorney's fees to prevailing parties in adversary adjudications unless the government's position was substantially justified or there are special circumstances that would make an award unjust. "Adversary adjudication," according to 5 U.S.C. Sec. 504(b)(1)(C), means an adjudication (1) under section 554 of the APA (2) in which the position of the United States is represented by counsel or otherwise. A proceeding must meet these two requirements for the EAJA to apply. We consider the requirements in reverse order.

A. Representation of the Government's Position

Deportation hearings before the immigration judge and the BIA almost always satisfy the second requirement. In hearings before the immigration judge, trial attorneys represent the position of the government. ⁴ Gordon and Rosenfield report that "under current practice a trial attorney participates in virtually all current deportation hearings." 1A Gordon and Rosenfield, Immigration Law and Procedure, Sec. 5.7c, at 5.87. The federal regulations require the immigration judge to request a trial attorney in all contested deportation proceedings and in any non-contested proceeding in which issues of law or fact remain. 8 C.F.R. Secs. 242.16(b) & (c) (1986). ⁵

When the BIA holds an oral argument, an official representative from the Office of General Counsel stationed at the Board--the appellate trial attorney--appears and presents arguments on the government's behalf. Appleman, The Appellate Trial Attorney, 20 IN Reporter 1, 2 (1971); 1 Gordon and Rosenfield, Immigration Law and Procedure Sec. 1.10d(8), at 1-86, and Sec. 1.10e(1), at 1-87. In most cases, however, the BIA determines the issue on the basis of briefs submitted by respective counsel.

In the present case, the government's position was represented by counsel both in the initial hearing before the immigration judge and on the appeal to the BIA.

B. Adjudication Under Section 554

1. In General

(a) Introduction

Section 504(b)(1)(C) of the EAJA also imposes the requirement that the proceeding constitute an adjudication under section 554 of the APA. The government argues that this requirement means that unless an administrative proceeding is governed directly by section 554, the EAJA is inapplicable. The government cites Marcello v. Bonds, 349 U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107 (1955), to support its contention that the proceedings before the immigration judge and the BIA are not governed directly by 5 U.S.C. Sec. 554. Marcello holds that the hearing provisions of the APA do not apply to deportation hearings. Id., at 310, 75 S.Ct. at 761. The government reasons that because section 554 is a hearing provision, it does not apply directly to deportation proceedings and the first 504 requirement is, therefore, not met.

The government's argument finds considerable support in the literal language of the statute. Section 504 requires "an adjudication under section 554" which, at least at first blush, appears to mean an adjudication directly governed by section 554. Petitioner, however, contends that the EAJA only requires an adjudication as defined or described in section 554. An adjudication as defined in that section is, according to petitioner, one that is "required by statute to be determined on the record after an opportunity for an agency hearing." 5 U.S.C. Sec. 554(a) (1982). The EAJA applies, petitioner urges, as long as a proceeding comes within that definition or description, even if the proceeding is not directly subject to section 554.

In support of his position, petitioner points to the Joint Explanatory Statement of the Committee of Conference on the EAJA. The statement declares unequivocally that the Act "defines adversary adjudication as an agency adjudication defined under the Administrative Procedures Act where the agency takes a position through representation by counsel or otherwise." H.R.Conf.Rep. No. 1434, 96th Cong., 2nd Sess., Item 17, at 23 (1980) reprinted in 1980 U.S.Code Cong. & Ad.News, 4953, 5003, at 5012 (emphasis supplied). Petitioner, with considerable persuasiveness, argues that such Congressional language clearly indicates that the EAJA only requires that proceedings fall within the definition or description incorporated in section 554 of the APA.

We cannot say with any certainty that the Act is subject to only one interpretation. An examination of the statute persuades us that petitioner's reading of its language is not implausible. Moreover, petitioner claims that the purpose and legislative history of the EAJA support his interpretation. The government, in...