Clarke v. I.N.S.

• Decision Date: 24 May 1990
• Docket Number: 90-3125,Nos. 89-3477,s. 89-3477
• Parties: Earle CLARKE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

Page 172

904 F.2d 172

58 USLW 2709

Earle CLARKE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Nos. 89-3477, 90-3125.

United States Court of Appeals, Third Circuit.

Argued Jan. 19, 1990.

Decided May 24, 1990.

Lawrence H. Rudnick (argued), Steel, Rubin and Rudnick, Philadelphia, Pa., for petitioner.

Joseph F. Ciolino, David J. Kline, Lori L. Scialabba (argued), Office of Immigration Litigation, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for respondent.

Before HIGGINBOTHAM, Chief Judge, BECKER and NYGAARD, Circuit Judges.

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Chief Judge.

Petitioner Earle Clarke is a Jamaican citizen who prevailed in deportation proceedings brought by the respondent Immigration and Naturalization Service ("INS"). He now petitions for review of a decision by the Board of Immigration Appeals ("BIA") denying his request for attorneys' fees under the Equal Access to Justice Act ("EAJA"), 5 U.S.C. Sec. 504. Because we conclude that the EAJA does not apply to deportation proceedings before the INS, we will deny Clarke's consolidated petitions for review. ¹

I. Background

The INS commenced deportation proceedings against the petitioner on August 10, 1988, with the issuance of an Order to Show Cause charging that Clarke was deportable under 8 U.S.C. Sec. 1251(a)(11) as an alien who had been convicted of knowingly and intentionally possessing a controlled substance. On January 10, 1989, an immigration judge dismissed the deportation proceedings after a hearing because the INS did not present a certified record of Clarke's conviction, and because of the agency's apparent concession at the hearing that his conviction under Pennsylvania's Accelerated Rehabilitative Disposition Program was an insufficient basis for deportation under section 1251(a)(11). Administrative Record ("A.R.") at 40-41.

On January 17, 1989, Clarke submitted an application to the immigration judge for attorneys' fees and costs under the EAJA. In his July 10, 1989 decision denying this application, the immigration judge found that Clarke met the basic requirements for an EAJA award, but concluded that the BIA's holdings in Matter of Anselmo, Interim Decision 3105 (BIA 1989), and Matter of Fede, Interim Decision 3106 (BIA 1989), ² and the Attorney General's regulation on the EAJA's coverage in Department of Justice proceedings, 28 C.F.R. Sec. 24.103, ³ required him to dismiss Clarke's EAJA application for lack of jurisdiction.

Clarke appealed the immigration judge's decision to the BIA. Replying on Matter of Fede and 28 C.F.R. Sec. 24.103, the BIA determined that "absent a regulatory change or controlling court order, an immigration judge has no authority under law or regulation to consider an application for attorney fees under the provisions of the EAJA." A.R. at 3. Accordingly, the BIA dismissed Clarke's appeal and denied his application for attorneys' fees.

II. Discussion

This case requires us to determine whether the Equal Access to Justice Act applies to deportation proceedings. We have plenary review over the agency's determination of this question of law. See INS v. Cardoza-Fonseca, 480 U.S. 421, 445-48, 107 S.Ct. 1207, 1220-22, 94 L.Ed.2d 434 (1987).

Under the Equal Access to Justice Act, parties in certain adversary administrative proceedings may recover attorneys' fees and costs from the government. In pertinent part, 5 U.S.C. Sec. 504(a)(1) provides that "[a]n agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust." Under 5 U.S.C. Sec. 504(b)(1)(C)(i), an "adversary adjudication" is defined as "an adjudication under section 554 of this title [5 U.S.C. Sec. 554] in which the position of the United States is represented by counsel or otherwise...." Section 554 of Title 5 defines the scope and coverage of the Administrative Procedure Act ("APA"). The dispositive issue in this case is whether deportation proceedings are adversary adjudications "under section 554" of the APA and are thus covered by the EAJA. ⁴

If an adjudication "under section 554" means an adjudication "governed by" or "conducted under" section 554 of the APA, then the EAJA clearly does not apply to deportation proceedings. In section 242(b) of the Immigration and Nationality Act of 1952, 8 U.S.C. Sec. 1252(b), Congress provided that the regulations governing deportation proceedings promulgated under that Act "shall be the sole and exclusive procedure for determining the deportability of an alien under this section." In Marcello v. Bonds, 349 U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107 (1955), the Supreme Court interpreted this provision to mean that the APA's hearing procedures do not apply to deportation proceedings before INS hearing officers. The Court noted that although the APA served as a "model" for the hearing provisions of the immigration statute, the Immigration and Nationality Act is the governing enactment in deportation matters:

[W]e cannot ignore the background of the 1952 immigration legislation, its laborious adaptation of the Administrative Procedure Act to the deportation process, the specific points at which deviations from the Administrative Procedure Act were made, the recognition in the legislative history of this adaptive technique and of the particular deviations, and the direction in the statute that the methods therein prescribed shall be the sole and exclusive procedure for deportation proceedings. Unless we are to require the Congress to employ magical passwords in order to effectuate an exemption from the Administrative Procedure Act, we must hold that the present statute expressly supersedes the hearing provisions of that Act.

Id. at 310, 75 S.Ct. at 762. Following Marcello, this court has held that the review of adjustment of status and deportation orders by the Board of Immigration Appeals is also exempt from APA requirements. Giambanco v. INS, 531 F.2d 141, 144 (3d Cir.1976). See also Cisternas-Estay v. INS, 531 F.2d 155, 158-59 (3d Cir.) (APA does not apply to BIA review of order denying suspension of deportation), cert. denied, 429 U.S. 853, 97 S.Ct. 145, 50 L.Ed.2d 127 (1976); Ho Chong Tsao v. INS, 538 F.2d 667, 669 (5th Cir.1976) (APA does not apply to BIA review of deportation order), cert. denied, 430 U.S. 906, 97 S.Ct. 1176, 51 L.Ed.2d 582 (1977).

Clarke concedes that the exclusive hearing procedures of 8 U.S.C. Sec. 1252(b) supersede the hearing provisions of the APA, and thus that section 554 does not govern INS deportation proceedings. However, he argues that, for the purposes of the EAJA, an adjudication "under section 554" does not mean an adjudication "governed by" section 554. Clarke asserts that the phrase "an adjudication under section 554" encompasses adjudications that are conducted consistent with the substantive requirements of section 554, even if they are not directly governed by that provision. Because the procedures governing deportation hearings under the Immigration and Nationality Act are similar to the procedures described in section 554, Clarke contends, deportation proceedings are "adversary adjudications" within the meaning of 5 U.S.C. 504(b)(1)(C).

In support of his position, Clarke cites Escobar Ruiz v. INS, 838 F.2d 1020 (9th Cir.1988) (en banc), in which the United States Court of Appeals for the Ninth Circuit held that the EAJA applies to deportation proceedings. That court stated that the phrase "an adjudication under section 554" was ambiguous as the language could mean either an adjudication "governed by" the APA or an adjudication "as defined by" the APA. It considered that both constructions were "plausible," but that the broader reading was supported by the EAJA's legislative history, its remedial purposes, and the interpretation given the statute by the Administrative Conference of the United States ("ACUS"). Id. at 1023-26.

Although we share the concern of the court in Escobar Ruiz about the difficulties faced by unrepresented aliens in deportation proceedings, see id. at 1026, we cannot legitimately act on our concern by applying the EAJA to deportation proceedings. Given the Supreme Court's admonishment that statutes waiving the government's general immunity from attorneys' fee claims must be "construed strictly in favor of the sovereign" and not "[e]nlarged ... beyond what the language requires," Ruckelshaus v. Sierra Club, 463 U.S. 680, 685-86, 103 S.Ct. 3274, 3278, 77 L.Ed.2d 938 (1983) (quoting McMahon v. United States, 342 U.S. 25, 27, 72 S.Ct. 17, 19, 96 L.Ed. 26 (1951), and Eastern Transportation Co. v. United States, 272 U.S. 675, 686, 47 S.Ct. 289, 291, 71 L.Ed. 472 (1927)), Escobar Ruiz 's interpretation of "an adjudication under section 554" strikes us as strained and untenable.

In our view, Escobar Ruiz was justifiably criticized in Owens v. Brock, 860 F.2d 1363 (6th Cir.1988), and St. Louis Fuel and Supply Co., Inc. v. FERC, 890 F.2d 446 (D.C.Cir.1989), for its expansive statutory interpretation. ⁵ In Owens, the United States Court of Appeals for the Sixth Circuit held that workers' compensation hearings conducted pursuant to the Federal Employees' Compensation Act ("FECA"), 5 U.S.C. Sec. 8101 et seq., are not adversary adjudications under the EAJA, since FECA explicitly excludes such proceedings from section 554. ⁶ The court rejected Escobar Ruiz 's view that EAJA's legislative history showed that the statutory phrase "under section 554" meant "as defined by section 554." The court noted that a 1980 House Conference report described an "adversary adjudication" as "an agency adjudication defined under the Administrative Procedure[ ] Act where the agency takes a position through representation by counsel or...