Ardestani v. U.S. Dept. of Justice, I.N.S.

Decision Date06 July 1990
Docket NumberNo. 89-8458,89-8458
Citation904 F.2d 1505
PartiesRafeh-Rafie ARDESTANI, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
CourtU.S. Court of Appeals — Eleventh Circuit

David N. Soloway, Carolyn F. Soloway, Frazier and Soloway, Atlanta, Ga., for petitioner.

Lory D. Rosenberg, Cambridge, Mass., Harvey Kaplan, Boston, Mass., for amicus.

David J. Kline, David V. Bernal, Dept. of Justice, Office of Immigration Litigation, Washington, D.C., for respondent.

Petition for Review of an Order of the Immigration and Naturalization Service.

Before FAY, Circuit Judge, RONEY *, Senior Circuit Judge, and PITTMAN **, Senior District Judge.

FAY, Circuit Judge:

This case presents the first impression issue for this circuit of whether or not the Equal Access to Justice Act (EAJA) applies to immigration deportation proceedings. Appellant Rafeh-Rafie Ardestani was awarded attorney fees under EAJA as the prevailing party in a deportation proceeding by an immigration judge. Appellee the Immigration and Naturalization Service (INS) appealed, arguing that EAJA was inapplicable to deportation proceedings. Upon review, the Board of Immigration Appeals (Board) vacated the decision of the immigration judge and concluded that deportation proceedings are not within the scope of EAJA. Ardestani appeals. Our examination of the relevant statutes has revealed no Congressional intent that EAJA apply to deportation proceedings. Accordingly, we affirm the Board's decision because we find no subject matter jurisdiction.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant Ardestani, an Iranian woman, entered the United States as a visitor on December 14, 1982. She remained in this country legitimately pursuant to authorized extensions until May 30, 1984. Fearing persecution upon her return to Iran, Ardestani applied for asylum in the United States on July 9, 1984. The United States Department of State informed INS that Ardestani's concern was well founded.

On February 15, 1985, INS notified Ardestani of its intention to deny her request for political asylum, but allowed her the opportunity to submit additional evidence in support of her application. Ardestani claims that she never received this notification. INS denied Ardestani's asylum application on February 12, 1986. This decision was based upon Ardestani's failure to disclose her previous safe haven in Luxembourg, a liberal country in granting residency to political refugees, and her attempt to use the political asylum process in order to disguise her original entry into the United States as an immigrant intending to stay permanently rather than as a refugee seeking asylum. Because her asylum application was denied, INS specified that Ardestani could not remain in the United States beyond February 27, 1986, without its permission. Ardestani's counsel informed INS that her client merely stayed at a hotel in Luxembourg for three days for the purpose of obtaining a visa from the American embassy in order to enter the United States and that she never applied for residency in Luxembourg.

On March 31, 1986, INS issued Ardestani an order to show cause why she should not be deported because she had entered the United States as a nonimmigrant and had remained longer than the time permitted by INS. Appellant's counsel concedes that notification of deportation proceedings was sent to Ardestani on May 29, 1986. Appellant's Brief at 3. Significantly, that notification contains the following notice:

NOTE: YOU MAY BE REPRESENTED IN THIS PROCEEDING, AT NO EXPENSE TO THE GOVERNMENT, BY AN ATTORNEY OR OTHER INDIVIDUAL AUTHORIZED AND QUALIFIED TO REPRESENT PERSONS BEFORE AN IMMIGRATION JUDGE. IF YOU WISH TO BE SO REPRESENTED, YOUR ATTORNEY OR REPRESENTATIVE SHOULD APPEAR WITH YOU AT THE HEARING.

R1-120 (emphasis added).

At the deportation hearing conducted on June 11, 1986, Ardestani conceded that she was deportable, but renewed her asylum application. Additionally, the immigration judge received into evidence the show cause order, the State Department letter regarding her asylum request, and a copy of her passport. On October 26, 1986, the immigration judge entered his decision and order, stating that Ardestani had established a well founded fear of persecution under the Immigration and Nationality Act and granting her asylum for one year. INS did not appeal this decision.

Achieving the relief sought in the deportation proceedings, Ardestani's counsel applied for attorney fees and expenses as the prevailing party under EAJA. The application included letters from the counsel to the INS district director and other documents which were not part of the record at the deportation hearing. INS did not respond to this application.

On January 27, 1989, the immigration judge issued his opinion in Ardestani's deportation proceedings. Recognizing that "EAJA provides for awards for attorney fees in adjudicatory proceedings before administrative agencies" under 5 U.S.C. section 504(a)(1), the immigration judge concluded that Ardestani was the prevailing party and that the opposition of INS was not substantially justified. R1-62. The immigration judge awarded attorney fees in the amount of $1,071.85.

On February 9, 1989, INS appealed this award of attorney fees to the Board of Immigration Appeals. INS contended that EAJA was inapplicable to deportation proceedings; therefore, the immigration judge was not authorized to award attorney fees. Alternatively, INS argued that its position was substantially justified because, as Ardestani conceded, deportation was warranted under the immigration statute. Ardestani responded that attorney fees were available under EAJA for a deportation proceeding and that the position of INS was not substantially justified.

On May 12, 1989, the Board vacated the award of attorney fees and costs by the immigration judge and denied the application. Disagreeing that deportation proceedings are encompassed by EAJA, the Board reasoned that the binding regulations of the United States Attorney General in 28 C.F.R. section 24.103, providing that deportation proceedings are not within the scope of EAJA, presented "a more fundamental reason" to vacate the decision of the immigration judge. R1-2. The Board, therefore, determined that the immigration judge had no authority to award attorney fees and costs under EAJA. Pursuant to 5 U.S.C. section 504(c)(2), Ardestani appealed to this court.

II. EXPLICATION
A. Standards of Review

When a decision by the Board of Immigration Appeals is supported by substantial evidence, "Congress has mandated that we defer to the Board and affirm." Blackwood v. INS, 803 F.2d 1165, 1168 (11th Cir.1986) (per curiam); 8 U.S.C. Sec. 1105a(a); Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951); Arauz v. Rivkind, 845 F.2d 271, 275 (11th Cir.1988); Chavarria v. United States Dep't of Justice, 722 F.2d 666, 670 (11th Cir.1984). As Arauz, Blackwood and Chavarria demonstrate, however, the substantial evidence standard applies to review of the factual evidence considered by the immigration judge and Board in a deportation decision and not a purely legal issue as we have in this case. Because there are no contested factual issues in this case and we decide solely a question of law, our review is plenary. Hamer v. City of Atlanta, 872 F.2d 1521, 1526 (11th Cir.1989); Bailey v. Carnival Cruise Lines, Inc., 774 F.2d 1577, 1578 (11th Cir.1985).

B. Statutory Analysis

To determine the applicability of EAJA to deportation proceedings, we must examine the interaction of the relevant statutes and regulations in order to maintain the integrity of Congressional intent. We are guided in this inquiry by principles of statutory interpretation established by the Supreme Court. "The starting point in statutory interpretation is 'the language [of the statute] itself.' " United States v. James, 478 U.S. 597, 604, 106 S.Ct. 3116, 3120, 92 L.Ed.2d 483 (1986) (quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 95 S.Ct. 1917, 1935, 44 L.Ed.2d 539 (1975) (Powell, J., concurring)); Newman v. Soballe, 871 F.2d 969, 971 (11th Cir.1989). Reviewing courts assume " 'that the legislative purpose is expressed by the ordinary meaning of the words used' " in the statute. American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534, 1537, 71 L.Ed.2d 748 (1982) (quoting Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 591, 7 L.Ed.2d 492 (1962)); Director, Office of Workers' Compensation Programs v. Drummond Coal Co., 831 F.2d 240, 245 (11th Cir.1987); see INS v. Cardoza-Fonseca, 480 U.S. 421, 431, 107 S.Ct. 1207, 1213, 94 L.Ed.2d 434 (1987). The "strong presumption" that the plain language of the statute expresses Congressional intent is rebutted only in " 'rare and exceptional circumstances,' " when contrary legislative intent is expressed clearly. Cardoza-Fonseca, 480 U.S. at 432 n. 12, 107 S.Ct. at 1213 n. 12 (citations omitted); Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 701, 66 L.Ed.2d 633 (1981); see Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980); United States v. Hurtado, 779 F.2d 1467, 1476-77 (11th Cir.1985); National Wildlife Fed'n v. Marsh, 721 F.2d 767, 773-74 (11th Cir.1983).

We also must consider the important principle of statutory construction concerning the waiver of sovereign immunity by the United States. The Supreme Court has held that "[i]n analyzing whether Congress has waived the immunity of the United States, we must construe waivers strictly in favor of the sovereign." Library of Congress v. Shaw, 478 U.S. 310, 318, 106 S.Ct. 2957, 2963, 92 L.Ed.2d 250 (1986); Ruckelshaus v. Sierra Club, 463 U.S. 680, 685-86, 103 S.Ct. 3274, 3277-78, 77 L.Ed.2d 938 (1983); McMahon v. United States, 342 U.S. 25, 27, 72 S.Ct. 17, 19, 96 L.Ed. 26 (1951); Loftin v. Rush, 767 F.2d...

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