Escobar Ruiz v. I.N.S.

• Decision Date: 24 February 1988
• Docket Number: No. 83-7502,83-7502
• Parties: Jose Rolando ESCOBAR RUIZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1020

838 F.2d 1020

56 USLW 2409

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

No. 83-7502.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc Sept. 14, 1987.

Decided Jan. 11, 1988.

As Amended Feb. 24, 1988.

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

William Kanter, Washington, D.C., for respondent.

Lory D. Rosenberg and Harvey Kaplan, American Immigration Lawyers Association and National Immigration Project of the National Lawyers Guild, Boston, Massachusetts, for the amici.

Petition for Review of an Order of the Board of Immigration Appeals.

Before BROWNING, Chief Judge, GOODWIN, ANDERSON, NELSON, CANBY, REINHARDT, BEEZER, HALL, BRUNETTI, NOONAN and THOMPSON, Circuit Judges.

REINHARDT, Circuit Judge:

This case raises a critical question which we are apparently the first court to address: whether the Equal Access to Justice Act (EAJA) provides for awards of attorneys fees in deportation proceedings. This is our third opinion in this case; as we have twice before, we hold that the EAJA covers deportation proceedings before the administrative agency as well as court proceedings reviewing agency deportation decisions.

I. BACKGROUND

Escobar Ruiz is a citizen of El Salvador who allegedly entered this country without inspection in 1983. The immigration judge (IJ) found him deportable and he appealed to the Board of Immigration Appeals (BIA) and filed a motion to reopen. The BIA affirmed the IJ and denied the motion. Escobar Ruiz then filed a petition for review in this court. At the time the oral argument was conducted, we expressed strong concern regarding the INS's conduct throughout the proceedings below; it appeared that the INS had not given Escobar Ruiz proper notice of the various hearings and had failed to advise him of his rights, in violation of its own regulations. Shortly after the oral argument, the INS filed a motion before the BIA to reopen Escobar Ruiz's deportation proceedings. The BIA granted the motion, despite the fact that it had previously denied Escobar Ruiz's petition to reopen. We subsequently dismissed Escobar Ruiz's petition for review as moot. Escobar Ruiz then moved for attorneys fees and costs for the work his counsel performed both in the deportation proceedings before the BIA and on the petition for review before this court. His request for fees was made under the Equal Access to Justice Act (EAJA), 5 U.S.C. Sec. 504 and 28 U.S.C. Sec. 2412 (1982 & Supp. III 1985).

In our first opinion, Escobar Ruiz v. INS, 787 F.2d 1294 (9th Cir.1986) ("Escobar Ruiz I "), we held that the EAJA applies to immigration proceedings before the IJ and the BIA. We rejected the government's argument that section 292 of the Immigration and Nationality Act (INA), 8 U.S.C. Sec. 1362 (1982), precludes application of the EAJA to deportation proceedings. Section 292 provides that individuals have the privilege of being represented in deportation proceedings "at no expense to the Government." We concluded that that section only serves to relieve the government of the obligation to pay for the representation of indigent aliens in deportation proceedings. It does not, we held, bar the application of the subsequently-enacted fee-shifting provisions of the EAJA. Escobar Ruiz I, 787 F.2d at 1296-97.

The government then petitioned for rehearing and claimed, for the first time, that deportation proceedings are not covered by the EAJA because they are not "adversary adjudications" within the meaning of the statute. See 5 U.S.C. Sec. 504 (1982 & Supp. III 1985). We agreed to consider the question, despite the fact that the government had not raised it in its brief on appeal, because of the importance of the issue and the circumstances of the government's failure to raise it initially. In our second opinion, Escobar Ruiz v. INS, 813 F.2d 283 (9th Cir.1987) ("Escobar Ruiz II "), we concluded that deportation proceedings meet the EAJA's requirements for adversary adjudications. As a result, we denied the government's petition for rehearing. Escobar Ruiz II, 813 F.2d at 286-93. We subsequently granted rehearing en banc in order to determine whether the EAJA applies to deportation proceedings. We now affirm our earlier decisions.

II. ADVERSARY ADJUDICATIONS

The EAJA provides that:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action ... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

28 U.S.C. Sec. 2412(d)(1)(A) (1982 & Supp. III 1985). ¹ In addition, the court is directed to include in the award, to the extent authorized by section 504, attorneys fees for adversary adjudications conducted by administrative agencies. Id. Sec. 2412(d)(3).

Turning to section 504, that portion of the EAJA directs agencies that conduct adversary adjudications to award fees under the same standard applicable to civil actions. 5 U.S.C. Sec. 504(a)(1) (1982 & Supp. III 1985). "Adversary adjudication" means "an adjudication under section 554 of this title in which the position of the United States is represented by counsel or otherwise." Id. Sec. 504(b)(1)(C). The government contends that because deportation proceedings are not directly governed by section 554 of the Administrative Procedure Act (APA), 5 U.S.C. Sec. 554 (1982), they do not meet the definition of adversary adjudication. ² We disagree.

The dispute centers around the meaning of the phrase "an adjudication under section 554." The government asserts that "under" is the same thing as "conducted under" or "governed by." The petitioner contends that "under" means "as defined by" or "under the meaning of." Both interpretations are plausible; because the statutory language is unclear, we are justified in looking to the legislative history and purpose of the EAJA in order to ascertain the correct reading. See Blum v. Stenson, 465 U.S. 886, 896, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984); Catawba Indian Tribe of South Carolina v. South Carolina, 718 F.2d 1291, 1296 (4th Cir.1983), rev'd and remanded, 476 U.S. 498, 106 S.Ct. 2039, 90 L.Ed.2d 490 (1986). Moreover, even were we to agree with the government that the words of the statute are plain and unambiguous on their face, we may still look to the legislative history if the plain meaning of the words is at variance with the policy of the statute as a whole, see Church of Scientology of California v. United States Department of Justice, 612 F.2d 417, 421-22 (9th Cir.1979) (citing United States v. American Trucking Association, 310 U.S. 534, 543-44, 60 S.Ct. 1059, 1063-64, 84 L.Ed. 1345 (1940)), or to see if there is "clearly expressed legislative intention" contrary to the language, see INS v. Cardoza Fonseca, --- U.S. ----, 107 S.Ct. 1207, 1213 n. 12, 94 L.Ed.2d 434 (1987). Use of the legislative history is particularly appropriate where we are construing a statute in a case of first impression, as we are here. See United States v. Dadanian, 818 F.2d 1443, 1448 (9th Cir.1987). The legislative history and purpose of the EAJA support the petitioner's interpretation of "adversary adjudication."

A. The "Defined Under" Standard

The conference committee on the original EAJA clearly agreed with the position advanced here by the petitioner: in its joint explanatory statement, the committee declared that the statute "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., 2d Sess. 23 (1980), reprinted in 1980 U.S.Code Cong. & Admin.News 5003, 5012 (emphasis added). The APA defines "adjudication" for its purposes as an adjudication "required by statute to be determined on the record after opportunity for an agency hearing," with certain exemptions that do not apply here. 5 U.S.C. Sec. 554(a) (1982). ³ Under this standard, then, we look at the procedures by which deportation hearings are actually conducted, rather than determining whether such hearings are technically governed by the APA.

Other circuits have followed the "defined under" interpretation of section 504. The Eighth Circuit, for example, observed that "the EAJA covers only an 'adversary adjudication' " and then went on to declare: "An 'adversary adjudication' is defined as one which is 'determined on the record after an opportunity for an agency hearing,' 5 U.S.C. Sec. 554, where 'the position of the United States is represented by counsel.' 5 U.S.C. Sec. 504(b)(1)(C)." Cornella v. Schweiker, 728 F.2d 978, 988 (8th Cir.1984). ⁴ Similarly, the Seventh Circuit used the APA's definition of adjudication in deciding a claim for attorneys fees for labor certification proceedings before the Department of Labor. Smedberg Machine & Tool, Inc. v. Donovan, 730 F.2d 1089, 1092 (7th Cir.1984); ⁵ see also Bonanza Trucking Corp. v. United States, 664 F.Supp. 1453, 1461 (Ct.Int'l Trade 1987) (customs hearing "was an adjudication within the meaning of section 554" and was therefore covered by the EAJA).

The "defined under" interpretation is also supported by the model rules for agency implementation of the EAJA issued by the Administrative Conference of the United States (ACUS). 46 Fed.Reg. 32900 (1981). ⁶ The commentary to the model rules notes: "Exactly what proceedings are encompassed by [the language of the EAJA] has long been a difficult legal question, and we proposed a broad interpretation of the reference to adjudications 'under section 554' largely to avoid protracted debate about whether particular proceedings fall within its ambit." 46 Fed.Reg. at 32901. The commentary observes that "considering...