Zapon v. U.S. Dept. of Justice

• Decision Date: 01 May 1995
• Docket Number: No. 93-56189,93-56189
• Citation: 53 F.3d 283
• Parties: Evelyn Victoria ZAPON, et al., Plaintiffs-Appellants, v. U.S. DEPARTMENT OF JUSTICE; Immigration and Naturalization Service, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 283

53 F.3d 283

Evelyn Victoria ZAPON, et al., Plaintiffs-Appellants, v. U.S. DEPARTMENT OF JUSTICE; Immigration and Naturalization

Service, Defendants-Appellees.

No. 93-56189.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 9, 1995.

Decided May 1, 1995.

Ana Maria Herrera-Murray, Pasadena, CA, for plaintiffs-appellants.

John B. Bartos, Asst. U.S. Atty., Los Angeles, CA, for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before: BRUNETTI and KOZINSKI, Circuit Judges, and SHADUR, ^* Senior District Judge.

SHADUR, Senior District Judge.

Four members of the Zapon family--a husband and wife and their two elder children (collectively "Zapons") appeal the denial of their application for an award of attorney's fees against the United States under the Equal Access to Justice Act ("EAJA," 28 U.S.C. Sec. 2412(d)(1)(A)). EAJA is not an automatic fee-shifting statute in favor of litigants who prevail against the government. Instead Section 2412(d)(1)(A) says that such a prevailing party is not entitled to an award if "the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." That "substantially justified" concept has been fleshed out in Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 2550, 101 L.Ed.2d 490 (1988), followed in Commissioner v. Jean, 496 U.S. 154, 158 n. 6, 110 S.Ct. 2316, 2319 n. 6, 110 L.Ed.2d 134 (1990).

In terms of the underlying substantive merits, both the magistrate judge and the district court were correct in concluding that the Board of Immigration Appeals abused its discretion in refusing to grant Zapons a stay of deportation: Under a then-recently-enacted amendment to the Immigration and Nationality Act (8 U.S.C. Sec. 1252b(c)(3)(B)), the filing of a motion to reopen deportation proceedings where the alien had not been given notice of such proceedings automatically stays deportation. In this instance the Immigration Judge had conducted a deportation hearing in absentia without realizing that Zapons had not received notice of that hearing (something that obviously explained their failure to appear). Then, despite the pendency of a motion to reopen, the immigration authorities actively pursued Zapons with a view toward deporting them.

But Zapons' difficulty in recovering under EAJA stems from their having gone fugitive in the face of a still-outstanding (though wrongfully issued) deportation order. ¹ They complain that the deportation order created a Catch-22 dilemma because surrendering would have triggered their immediate deportation, mooting their meritorious attack on the order's validity. But federal courts regularly grant emergency relief against arbitrary rulings in immigration procedures (which, judging by the reported cases and by judicial experience, do seem to produce far more than their share of arbitrariness), and Zapons did not immediately attempt to avail themselves of that opportunity rather than going fugitive. ²

Only in the rarest of situations do federal courts countenance a party's disregard of an existing court order because it was mistakenly issued--a clearly invalid prior restraint in the First Amendment context, "where the injunction was transparently invalid or had only a frivolous pretense to validity," is the only example that comes to mind. Walker v. City of Birmingham, 388 U.S. 307, 315, 87 S.Ct. 1824, 1829, 18 L.Ed.2d 1210 (1967). In all other situations obedience to even an assertedly void (not merely voidable) order is required unless and until it has been vacated or reversed. Walker, id. at 320-21, 87 S.Ct. at 1832; United...