Matter of Anselmo

• Decision Date: 11 May 1989
• Docket Number: Interim Decision Number 3105,A-27529931
• Citation: 20 I&N Dec. 25
• Parties: MATTER OF ANSELMO In Deportation Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

20 I&N Dec. 25

MATTER OF ANSELMO

In Deportation Proceedings

Interim Decision Number 3105

A-27529931

Board of Immigration Appeals.

Decided by Board May 11, 1989.

(1) The United States Court of Appeals for the Ninth Circuit has held that the Equal Access to Justice Act ("EAJA") "covers deportation proceedings before the administrative agency as well as court proceedings reviewing deportation decisions." Escobar Ruiz v. INS, 838 F.2d 1020 (9th Cir. 1988) (en banc).

(2) Although the Board of Immigration Appeals disagrees with the court's holding, the decision of the Ninth Circuit that the EAJA applies to deportation proceedings must be followed in deportation proceedings arising within the jurisdiction of the Ninth Circuit.

(3) The Department of Justice regulations implementing the EAJA should be applied to EAJA attorney fee requests filed in conjunction with deportation proceedings arising within the jurisdiction of the Ninth Circuit.

ON BEHALF OF RESPONDENT: Mark Vanderhout, Esquire 3689 18th Street San Francisco, California 94110

Karen Z. Bovarnick, Esquire 345 Grove Street San Francisco, California 94102

ON BEHALF OF SERVICE: David M. Dixon Appellate Counsel

BY: Milhollan, Chairman; Dunne and Heilman, Board Members. Concurring in part and dissenting in part: Morris and Vacca, Board Members.

This matter arises as a result of deportation proceedings held within the jurisdiction of the United States Court of Appeals for the Ninth Circuit but solely concerns respondent's request for attorney fees and costs pursuant to the Equal Access to Justice Act, 5 U.S.C. § 504 (1982). For the reasons set forth below, the record will be returned to the immigration judge to consider and decide the application for attorney fees and costs.

Although the Equal Access to Justice Act ("EAJA") was initially enacted in 1980, not until the Ninth Circuit's 1986 decision in Escobar Ruiz v. INS, 787 F.2d 1294 (9th Cir. 1986) ("Escobar Ruiz I"), was there any ruling that the EAJA applied to deportation proceedings.¹ In that decision, the Ninth Circuit held that the EAJA "does apply to immigration proceedings before the [immigration judges] and the BIA." Id. at 1297. Thereafter, in Escobar Ruiz v. INS, 813 F.2d 283 (9th Cir. 1987) ("Escobar Ruiz II"), the court denied the Government's petition for rehearing, noting that the "conclusion that subsection 504(a) of the EAJA applies to deportation hearings remains unchanged." Id. at 293. The Ninth Circuit subsequently granted rehearing en banc and in Escobar Ruiz v. INS, 838 F.2d 1020 (9th Cir. 1988) ("Escobar Ruiz III"), held that "the EAJA covers deportation proceedings before the administrative agency as well as court proceedings reviewing agency deportation decisions." Id. at 1021. The Government did not seek further review of Escobar Ruiz III.

Subsequent to the Ninth Circuit's decision in Escobar Ruiz I, various requests for attorney fees were submitted administratively, principally in conjunction with deportation proceedings arising within the jurisdiction of the Ninth Circuit. Among the requests was the present application, which was filed seeking recovery of fees and costs incurred in preparation of the opposition to an Immigration and Naturalization Service appeal that was subsequently withdrawn by the Service. The motion for fees and costs was filed both with the Office of the Immigration Judge and this Board as respondent's counsel understandably was "not absolutely certain which office has jurisdiction."

On July 11, 1988, the Board requested the Service and counsel for the four respondents with EAJA fee requests then before the Board to provide their positions on the "threshold procedural and jurisdiction issues raised by these requests in view of the Ninth Circuit's decision ... and the absence of controlling regulations." The Government submitted its position in August 1988 and respondents' counsel submitted a consolidated brief to the Board in October 1988.

The Service position is that the Ninth Circuit's decision in Escobar Ruiz III left its ruling on the applicability of the EAJA to deportation proceedings in an "unappealable posture" because, the court having denied attorney fees to the respondent, the Service technically prevailed in the matter. The Service further states that it is in the "strongest disagreement" with the court's ruling; that it will not comply with the ruling even in the Ninth Circuit; that "the Service has adopted a posture of nonacquiescence to bring the matter before the Supreme Court at the earliest possible moment"; that immigration judges are "without authority to do anything unless specifically authorized by statute or regulation"; and, that neither the law nor the regulations grant immigration judges the authority "to consider the award of attorney's fees under the EAJA." Respondents' counsel strongly object to the Service position, which is characterized as "anarchistic and [in] extra-legal disregard of the rule of law." Respondents' counsel submit that stare decisis requires the Board to follow Ninth Circuit precedent; that nonacquiescence should not be permitted as certiorari was available to the Service and it chose not to pursue it; and, in any event, that nonacquiescence is unconstitutional as it "violates the separation of powers doctrine fundamental to our form of government."

We initially note that we agree with the substantive position of the Service that deportation proceedings are not covered by the EAJA because they are not "adversary adjudications" within the definition of section 504(b)(1)(C) of that Act.

The EAJA, by permitting the recovery of attorney fees from the United States, constitutes a waiver of the Government's sovereign immunity. As the Supreme Court has reiterated, "[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 (1986); see also Ruckelshaus v. Sierra Club, 463 U.S. 680, 685-86 (1983); McMahon v. United States, 342 U.S. 25, 27 (1951). Under this rule, the courts have found that the provisions of the EAJA must be construed strictly in favor of the United States. Owens v. Brock, 860 F.2d 1363, 1366 (6th Cir. 1988);² Adamson v. Bowen, 855 F.2d 668, 671 (10th Cir. 1988); Long Island Radio Co. v. N.L.R.B., 841 F.2d 474, 477 (2d Cir. 1988); Campbell v. United States, 835 F.2d 193, 195 (9th Cir. 1987).

The EAJA in relevant part defines an "adversary adjudication" to mean "an adjudication under section 554 of [title 5] in which the position of the United States is represented by counsel or otherwise, but excludes an adjudication for the purpose of establishing or fixing a rate or for the purpose of granting or renewing a license." 5 U.S.C. § 504(b)(1)(C) (1982). Under its plain meaning, particularly if construed strictly in favor of the Government, the phrase "an adjudication under section 554 of [title 5]" would connote an adjudication subject to the authority of or controlled by section 554 of title 5. And, in fact, this language has been interpreted by the Department of Justice and, most recently, by the United States Court of Appeals for the Sixth Circuit to apply to adjudications required by statute to be conducted under 5 U.S.C. § 554 (1982), rather than to proceedings "merely conducted in a similar manner." Owens v. Brock, supra, at 1366; see also 28 C.F.R. § 24.103 (1988).

Deportation proceedings are not subject to or controlled by section 554 of the Administrative Procedure Act, 5 U.S.C. §§ 551-59, 701-06 (1982) ("APA"). In fact, we find rather extraordinary the conclusion in Escobar Ruiz III, supra, that the treatment of the relationship between the Immigration and Nationality Act and the Administrative Procedure Act is "somewhat ambiguous" and that "Marcello [v. Bonds, 349 U.S. 302 (1955),] did not hold that deportation proceedings are excluded or exempted from section 554." Id. at 1025. This has been a settled question of law for over 30 years.³

In 1950, the Supreme Court held that section 5 of the Administrative Procedure Act (previously 5 U.S.C. § 1004 (1946))⁴ applied to deportation proceedings. Wong Yang Sung v. McGrath, 339 U.S. 33 (1950). This ruling, however, was shortly "negated by a specific legislative exemption, apparently impelled by a finding by Congress that application of APA [hearing] requirements to deportation hearings would be too costly and cumbersome." 2 C. Gordon and H. Rosenfield, Immigration Law and Procedure, § 5.7a, at 5-77 (rev. ed. 1988) (footnotes omitted); see also Clardy v. Levi, 545 F.2d 1241 (9th Cir. 1976). This legislative exemption was included in the Supplemental Appropriation Act of 1951, Pub. L. No. 843, 1950 U.S. Code Cong. & Ad. News (64 Stat. 1052) 1038, 1042, and provided that "[p]roceedings under law relating to the exclusion or expulsion of aliens shall hereafter be without regard to the provisions of sections 5, 7, and 8 of the Administrative Procedure Act (5 U.S.C. 1004, 1006, 1007)."

When the Immigration and Nationality Act of 1952 was enacted, Congress prescribed specific procedures for deportation hearings and directed that they be the "sole and exclusive" procedures for determining the deportability of aliens. See section 242(b) of the Act, 8 U.S.C § 1252(b) (1982). It was with this background that the Supreme Court ruled in Marcello:

Section 242(b) expressly states: "The procedure [herein prescribed] shall be the sole and exclusive procedure for determining the deportability of an alien under this section." That this clear and categorical direction was meant to exclude the application of the Administrative Procedure Act is amply demonstrated by the legislative history of the Immigration Act.

and

Exemptions from the terms of the Administrative Procedure Act are not lightly to be presumed in view of the statement in § 12 of the Act that modifications must be express, cf. Shaughnessy v. Pedreiro, [349 U.S....