Ramon-Sepulveda v. I.N.S.

• Decision Date: 20 December 1988
• Docket Number: P,RAMON-SEPULVED,No. 86-7536,86-7536
• Citation: 863 F.2d 1458
• Parties: Joseetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1458

863 F.2d 1458

Jose RAMON-SEPULVEDA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 86-7536.

United States Court of Appeals, Ninth Circuit.

Dec. 20, 1988.

Mark Rosenbaum, ACLU Foundation of Southern California, and Peter A. Schey, Nat. Center for Immigrants' Rights, Inc., Los Angeles, Cal., for petitioner.

Robert C. Bonner, U.S. Atty., Frederick M. Brosio, Jr., Asst. U.S. Atty., Chief, Civil Div., and Michael C. Johnson, Sp. Asst. U.S. Atty., Los Angeles, Cal., for respondent.

Before TANG, PREGERSON and NORRIS, Circuit Judges.

ORDER AND OPINION

Jose Ramon-Sepulveda seeks attorneys' fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. Sec. 2412(d)(1)(A) (Supp. III 1985). We grant his motion for fees; however, except for an inflationary adjustment, we decline to award fees in excess of the $75 statutory maximum.

I

The facts of this case are set forth in detail in our two previous opinions, Ramon-Sepulveda v. INS, 743 F.2d 1307 (9th Cir.1984) (Ramon-Sepulveda I ), and Ramon-Sepulveda v. INS, 824 F.2d 749 (9th Cir.1987) (Ramon-Sepulveda II ). The following facts are relevant here. In 1978, the INS unsuccessfully tried to prove that Ramon-Sepulveda was deportable. The immigration judge terminated the deportation proceeding after finding that the government had presented no evidence of deportability. Several months later, the INS moved to reopen the proceeding to present new evidence: a birth certificate that assertedly proved alienage. The immigration judge granted the motion, and the BIA affirmed. We held that the BIA abused its discretion in affirming the immigration judge's decision to reopen the proceedings. We reversed on the ground that the INS had failed to show that the birth certificate could not have been discovered before the initial hearing. Such a showing is required by the INS' regulations. Ramon-Sepulveda I, 743 F.2d at 1309-10 (applying 8 C.F.R. Sec. 242.22).

Undaunted by Ramon-Sepulveda I, the INS commenced a second deportation proceeding against Ramon-Sepulveda in 1986, using the same birth certificate as evidence of deportability. We granted mandamus and ordered that the second deportation proceeding be terminated. Ramon-Sepulveda II, 824 F.2d at 751. We held that, "[b]ecause the initial decision [was] res judicata, the INS at the very least is precluded from seeking to deport petitioner based on the same matters that were resolved in the earlier deportation proceedings." Id. at 750-51. Ramon-Sepulveda now seeks to recover attorneys' fees incurred in the prosecution of the mandamus action and the preparation of this motion.

II

Under the EAJA, we must award fees to a prevailing party unless the government can demonstrate that its position was "substantially justified" or that special circumstances would make a fee award unjust. 28 U.S.C. Sec. 2412(d)(1)(A) (Supp. III 1985). In making this assessment, we examine both the government's position during litigation and the agency action that led to the litigation. 28 U.S.C. Sec. 2412(d)(2)(D); Andrew v. Bowen, 837 F.2d 875, 878 (9th Cir.1988) (citing H.R.Rep. No. 99-120, Part I, 99th Cong., 1st Sess. 9, 16, reprinted in 1985 U.S.Code Cong. & Ad.News 132, 137, 144). A lack of judicial precedent adverse to the government's position does not preclude a fee award under the EAJA. See Oregon Environmental Council v. Kunzman, 817 F.2d 484, 498 (9th Cir.1987) (refusing to affirm the district court's denial of fees on the "broad ground" that the absence of adverse precedent rendered the government's position substantially justified).

"Substantial justification" is equated with "reasonableness." H.R.Rep. No. 1418, 96th Cong., 2d Sess. 10, reprinted in 1980 U.S.Code Cong. & Ad.News 4953, 4989. The government's position is "substantially justified" if it "has a reasonable basis in law and fact." Pierce v. Underwood, --- U.S. ----, 108 S.Ct. 2541, 2550 n. 2, 101 L.Ed.2d 490 (1988). Under this standard, the government has failed to show that its position was substantially justified.

A

The INS argued when opposing mandamus that " '[r]es judicata is inapplicable in deportation proceedings.' " Ramon-Sepulveda II, 824 F.2d at 750. This position was not only incorrect, see id. (quoting United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 1560, 16 L.Ed.2d 642 (1966)), but directly contradicted the position taken by the INS in an earlier deportation case. See Artukovic v. INS, 693 F.2d 894, 896, 898 (9th Cir.1982) (INS urged BIA to give res judicata effect to findings made in Artukovic's earlier deportation hearing).

The INS' position in Artukovic was premised on the uncontradicted notion that res judicata can apply in deportation proceedings; the INS argued here that it cannot. Compare Artukovic, 693 F.2d at 898 (INS sought to rely on res judicata effect of suspension of deportation hearing) with Ramon-Sepulveda II, 824 F.2d at 750 (INS "asserts that '[r]es judicata is inapplicable in deportation proceedings' "). When the government makes an argument in one case that is contrary to an argument it made in an earlier case, we hesitate to find its legal position substantially justified. See International Woodworkers of America, AFL-CIO v. Donovan, 792 F.2d 762, 765 (9th Cir.1986) (government's position not substantially justified when the government urged one interpretation of a regulation in one case and a contrary interpretation in another); see also Spencer v. NLRB, 712 F.2d 539, 561 (D.C.Cir.1983) ("[W]hen the government acts inconsistently, and subsequently loses a civil suit challenging its behavior, it should be obliged to make an especially strong showing that its legal arguments were substantially justified in order to avoid liability for fees under the EAJA.") (emphasis deleted), cert. denied, 466 U.S. 936, 104 S.Ct. 1908, 80 L.Ed.2d 457 (1984).

"Relitigation of a previously decided issue is a strong factor weighing against the government in determining substantial justification." Save Our Ecosystems v. Clark, 747 F.2d 1240, 1250 (9th Cir.1984). At the time the INS took its position, it was well established that res judicata could be applied to administrative decisions in which parties had adequate opportunity to litigate. United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 1560, 16 L.Ed.2d 642 (1966). We therefore find this position of the government substantially unjustified.

B

As an alternative to its argument that res judicata does not apply in deportation proceedings, the government argued here that res judicata is applied flexibly in the administrative sphere. This is correct as a general proposition. See Artukovic, 693 F.2d at 898. It does not follow, however, that the INS' position here is "substantially justified." Its position--that "the INS may institute new deportation proceedings in a situation where alienage was not demonstrated at a prior hearing and the INS is presently in possession of evidence demonstrating alienage"--is inconsistent with its own regulations.

In reaching this conclusion, we must read the regulations in context. We are guided by the recent admonition of the Executive Office for Immigration Review, made in connection with the adoption of new INS regulations: "[The] rules of procedure are not intended to be read in a vacuum.... [E]ach rule of procedure is intended to be construed harmoniously with existing regulations...." 52 Fed.Reg. 2931 (Jan. 29, 1987). We consider here the INS regulations as they existed in 1986, when the INS reinstituted deportation proceedings against Ramon-Sepulveda. Although the regulations have undergone some revision since that time, nothing in the current regulations suggests that our conclusion is incorrect.

As an initial matter, we note that the INS is correct in stating that its regulations do not expressly prohibit it from reinstituting deportation proceedings after an adverse judgment. ¹ Such a prohibition, however, is implicit in the regulatory scheme. The 1986 regulations provide that "[t]he order of the [immigration judge] shall be final except when the case is certified to the Board ... or an appeal is taken to the Board...." 8 C.F.R. Sec. 242.20 (1986) (emphasis added). ² The regulations allow the immigration judge to reconsider or reopen proceedings after the judge has rendered a final decision, as long as jurisdiction has not vested in the BIA. 8 C.F.R. Sec. 242.22 (1988). Whether to reopen proceedings is a matter entirely within the discretion of the immigration judge. See id., ("The immigration judge may ... reopen or reconsider any case in which he/she had made a decision....") (emphasis added). This discretion, however, is limited: an immigration judge may not reopen proceedings unless he or she is "satisfied that evidence sought to be offered is material and was not available and could not have been discovered or presented at the hearing...." Id.

This requirement--that the new evidence be material and previously not discoverable--ensures that final decisions will not be disturbed needlessly. It also encourages the parties to prepare their cases diligently, by precluding them from presenting at a later date evidence that could have been presented at the hearing. As the Supreme Court recently acknowledged, there is "a strong public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their respective cases." INS v. Abudu, --- U.S. ----, 108 S.Ct. 904, 913, 99 L.Ed.2d 90 (1988) (explaining why motions to reopen deportation proceedings are disfavored). The INS regulations quoted above advance that interest by ensuring that the immigration judge's decision will remain final unless appealed to the BIA, or unless the immigration judge--as a discretionary matter--chooses to reconsider or reopen the case.

Under the INS' approach in this case, the immigration judge's decision is...