Interim Decision #3105 

MATTER OF ANSELMO 

In Deportation Proceedings 

A-27529931 

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 

BAJA attorney fee requests filed in conjunction with deportation procccdings arising 

within the jurisdiction of the Ninth Circuit. 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Mark Vanderhout, Esquire David M. Dixon 

3689 18th Street Appellate Counsel 

San Francisco, California 94110 

Karen Z. Bovarnick, Esquire 

345 Grove Street 

San Francisco, California 94102 

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 1"), was 

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Interim Decision #3105 

there any ruling that the EAJA applied to deportation proceedings.' In 

that decision, the Ninth Circuit held that the EAJA "does apply to 

immigration proceedings before the [immigration judges] and the 

Elk" 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 bans 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 HI left its ruling on the applicability of the BAJA to deportation 

proceedings in an "unappealable posture" because, the court having 

denied attorney fees to the respondent, the Service technically 

We are not aware of any applications for such fees being submitted administratively 

in conjunction with immigration proceedings prior to Escobar Ruiz I. In fact, there had 

been no request for fees in Escobar Ruiz /under the provisions of 5 U.S.C. § 504 (1982). 

Both the request before the court and the specific holding in Escobar Ruiz I concerned 

an application for fees under 28 U.S.0 § 2412(d)(1982). Escobar Rutz I, supra, at 1296- 

98. In Escobar Ruiz v. INS, 813 F.2d 283 (9th Cir. 1987), however, the court stated that 

it had decided that the EAJA, "codified at 5 U.S.C. § 504 (1982) and 28 U.S.C. § 2412 

(1982), applies to immigration proceedings before the immigration judge and the 

[Board]." Id. at 284. 

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Interim Decision #3105 

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. 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 

2In Owens, the Sixth Circuit concludes that the "Escobar Ruiz court ignores this rule." 

Owens v. Brock, supra, at 1366. 
Interim Decision #3105 

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 HI, supra, that the treatment of the relationship between 

the Immigration and Nationality Act and the Administrative Procedure Act is "somewhat ambiguous" and that "Marcella [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)) 4applied 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. 

3We note that Shaughnessy v. Pedreiro, 349 U.S. 48 (1955), and Wong Wing Hang v. 

INS, 360 F.2d 715, 717 (2d Cir. 1966), which are cited in Escobar Ruiz III, are not 

relevant to the issue of whether deportation proceedings are exempt from the hearing 

procedures of the APA. Both cases involved section 10 of the APA of 1946, which 

concerned judicial review of agency action. 

4 5 U.S.C. § 554 (1982) derives from 5 U.S.C. § 1004 (originally enacted as Act of 

June 11, 1946, ch. 324, § 5, 60 Stat. 239). 
Interim Decision #3105 

§ 1252(b) (1982). It was with this background that the Supreme Court 

ruled in Marcella 

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, el Shaughnessy v. Pedreiro, [349 U.S. 48, 99 L. Ed. 1074, 75 S. Ct. 591]. But 

we 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. 

Marcell v. Bonds, supra, at 309-10. 

There would appear to be nothing ambiguous about this language. 

In fact, until Escobar Ruiz III, the only subsequent issue in this regard 

was whether the Board is subject to the hearing procedures of the APA. 

The two circuits to specifically address this issue held that the Board 

"is also exempt from APA requirements." Giambanco v. INS, 531 F.2d 

141, 144 (3d Cir. 1976) (emphasis added); see also Ho Chong Tsao v. 

INS, 538 F.2d 667, 669 (5th Cir. 1976), cert. denied, 430 U.S. 906 

(1977); Cisternas-Estay v. INS, 531 F.2d 155, 158-59 (3d Cir.), cert. 

denied, 429 U.S. 853 (1976). 

Thus, because deportation proceedings are not adjudications "under section 554 of [title 5]," we agree with the position of the Service 

that the EAJA does not apply to these proceedings. 5Even more 

fundamentally in this regard, however, we note that the Board and 

immigration judges (except as to the specific authority provided by 

statute) only have such authority as is created and delegated by the 

5 Immigration proceedings involve distinct policy considerations. The vast majority of 

these proceedings involve individuals who are neither citizens nor lawful permanent 

residents of the United States. Congress' balancing of the relationship between hearing 

rights and governmental costs is evidenced by section 292 of the Act, 8 U.S.C. § 1362 

(1982), which provides: 

In any exclusion or deportation proceedings before a special inquiry officer and in any 

appeal proceedings before the Attorney General from any such exclusion or 

deportation proceedings, the person concerned shall have the privilege of being 

represented (at no expense to the Government) by such counsel, authorized to practice 

in such proceedings, as he shall choose. (Emphasis added.) 

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Interim Decision #3105 

Attorney General. 6 See section 103 of the Act, 8 U.S.C. § 1103 (1982); 

28 U.S.C. §§ 503, 509, 510 (1982); Matter of Medina, 19 I&N Dec. 

734 (BIA 1988). Under section 103(a) of the Act, the Attorney General 

has the authority to issue regulations, and his determinations with 

respect to all questions of law are controlling. A regulation promulgated by the Attorney General has the force and effect of law as to this 

Board and immigration judges, and neither has any authority to 

consider challenges to regulations implemented by the Attorney 

General, any more than there is authority to consider constitutional 

challenges to the laws we administer. See sections 103(a), 236(a), 

242(b) of the Act, 8 U.S.C. §§ 1103(a), 1226(a), 1252(b) (1982); 8 

C.F.R. § 3.0 (1988); 28 C.F.R. Part 24 (1988); Matter of Valdovinos, 

18 I&N Dec. 343 (BIA 1982); Matter of Bilbao-Bastida, 11 I&N Dec. 

615 (BIA 1966), aff'd, Bilbao-Bastida v. INS, 409 F.2d 820 (9th Cir.), 

cert. dismissed, 396 U.S. 802 (1969); Matter of Tzimas, 10 I&N Dec. 

101 (BIA 1962). 

The Attorney General has determined that immigration proceedings 

do not come within the scope of the RAJA. gee 28 C.F.R. § 24.103 

(1988); see also 46 Fed. Reg. 48,921, 48,922 (1981) (interim rule with 

request for public comment).' Neither this Board nor an immigration 

judge has authority to consider a challenge to the Attorney General's 

determination in this regard. Thus, under existing law, absent a 

regulatory change or controlling court order, neither the Board nor an 

immigration judge has authority to consider an application for 

attorney fees under the provisions of the EAJA. 8 

The federal courts of course are under no such restraints. We are 

now faced with the en bane rulings by the Ninth Circuit in Escobar 

6Even the specific grants of statutory authority to immigration judges in the Act (i.e., 

to conduct exclusion and deportation proceedings) are subject to limitations. For 

example, exclusion proceedings must be conducted in accordance with sections 235, 

236, and 287(b) of the Act, 8 U.S.C. ft§ 1225, 1226. and 1357(b) (1982), and "such 

regulations as the Attorney General shall prescribe." Section 236 of the Act. In 

deportation proceedings, the immigration judge may only make determinations "as 

authorized by the Attorney General" and the proceedings themselves must "be in 

accordance with snob regulations, not inconsistent with this Act, as the Attorney General 

shall prescribe." Section 242(b) of the Act. 

7The supplemental information published with the 1981 interim rule made clear that 

the omission of deportation and exclusion proceedings from the rule was intentional. 

None of the three public comments, including the extensive comments from the 

Administrative Conference of the United States, addressed this specific aspect of the 

interim rule. See 47 Fed. Reg. 15,774 (1982) (Supplementary Information). 

8By separate decisions entered on May 12, 1989, we find for this reason that, absent 

regulatory change or court order, neither immigration judges nor the Board have 

authority either to find that the BAJA applies to any immigration proceedings outside 

the jurisdiction of the Ninth Circuit or that the RAJA applies to other than deportation 

proceedings (i.e., exclusion or rescission proceedings) arising within the Ninth Circuit. 

30 
Interim Decision #3105 

• 

Ruiz III, both that EAJA covers deportation proceedings before the 

immigration judges and the Board and that the Justice Department 

regulations are "misguided," "inconsistent with congressional intent," 

and based on a "mistaken" belief that deportation hearings are exempt 

from the requirements of the APA. The Service states that it has 

adopted a "posture of nonacquiescence" with the decision in Escobar 

Ruiz III within the Ninth Circuit. However, as noted by respondents' 

counsel, the Board has not followed a practice of nonacquiescence in 

decisions of a circuit court in cases arising within the jurisdiction of 

that circuit. We are not required to accept an adverse determination by 

one circuit court of appeals as binding throughout the United States. 

State of Ga. Dep't of Medical Assist. v. Bowen, 846 F.2d 708, 710 (11th 

Cir. 1988); Ry. Labor Executives' Ass'n v. I.C.C., 784 F.2d 959, 964 

(9th Cir. 1986); Generali v. D'Amico, 766 F.2d 485, 489 (11th Cir. 

1985). Where we disagree with a court's position on a given issue, we 

decline to follow it outside the court's circuit. But, we have historically 

followed a court's precedent in cases arising in that circuit. Matter of 

Torres, 19 I&N Dec. 371 (BIA 1986); Matter of Herrera, 18 I&N Dec. 

4 (BIA 1981); Matter of Patel, 17 I&N Dec. 597 (BIA 1980); Matter of 

Bonnette, 17 I&N Dec. 587 (BIA 1980); Matter of Bowe, 17 I&N Dec. 

488 (BIA 1980, 1981); Matter of Kondo, 17 I&N Dec. 330 (BIA 1980); 

Mauer of Cienfuegos, 17 I&N Dec. 184 (BIA 1979); Matter of Anwo, 

16 I&N Dec. 293 (BIA 1977); Matter of Gonzalez, 16 I&N Dec. 134 

(BIA 1977); see also Matter of Amado and Montiero, 13 I&N Dec. 179 

(BIA 1969). 

The only instance in which we declined to follow a circuit court's 

precedent in a subsequent case within the circuit arose in an unusual 

factual setting. In Matter of Mangabat, 14 I&N Dec. 75 (BIA 1972), 

aird, 477 F.2d 108 (9th Cir.), cert. denied, 414 U.S. 841 (1973), the 

Ninth Circuit position the Board declined to apply represented a 

minority position among the circuits; the position had been challenged 

by the Solicitor General in a petition for certiorari; the Supreme Court 

had granted the petition for certiorari; but, the case in which certiorari 

had been granted was terminated "inconclusively" when the alien left 

the United States during the appeal process. The Board stated: 

In declining to apply the cited Ninth Circuit decisions in this and other cases 

reviewable in that circuit, we mean no disrespect for that court. Since the issues have 

already been crystallized, briefed and defined in the cited cases, our action now 

should pave the way for prompt decision in that court and prompt review in the 

Supreme Court. The construction of section 241(f) which we here apply is one which 

the Attorney General has approved, and his decision is binding on us. The Ninth 

Circuit's view represents a minority position among the circuits. The Solicitor 

General's challenge to it in petitioning for certiorari in Males [v. INS, 443 F.2d 343 

(9th Cir. 1971),] negates any notion of administrative acquiescence. The Supreme 

Court's action in granting certiorari indicates that a substantial question is presented. 

31 
Interim Decision #3105 

Matter of Mangabat, supra, at 78. That Mangabat represented an 

unusual situation tied to its particular facts was made clear by the 

Board in Matter of Bowe, supra, and Matter of Gonzalez, supra. The 

fact that the Service disagrees with the Ninth Circuit's holding does 

not leave the Board or immigration judges free to decline to apply that 

precedent to cases arising within the circuit. See Lopez v. Heckler, 725 

F.2d 1489 (9th Cir. 1984) (concerning an "announced" policy of 

nonacquiescence by the Secretary of Health and Human Services). On 

the record before us, we find that the decision of the Ninth Circuit that 

the EAJA does apply to deportation proceedings must be followed in 

deportation cases arising within the Ninth Circuit. 

The remaining question is what procedures should be followed in 

considering fee requests in deportation cases arising within the Ninth 

Circuit in order to comply with the court's holding. The Service has 

presented no position on this issue, other than stating that immigration judges have no authority to consider such requests. Respondents' 

counsel submit that fee motions under the EAJA should follow existing 

procedures in 8 C.F.R. Part 3 (1988) regarding the exercise of 

jurisdiction over deportation and related matters and that fee motions 

should follow the procedures of the "model rules" for the implementation of the EAJA in agency proceedings (1 C.F.R. Part 315 (1988)). 

In our view, the most appropriate and practical resolution of this 

issue, particularly in view of the Ninth Circuit's finding that the 

Department of Justice regulations are "inconsistent with congressional 

intent," is to read the court's order as including deportation cases 

within the scope of the existing Department of Justice EAJA regulations. Accordingly, we find that the procedures of 28 C.F.R. Part 24 

(1988) should be applied to EAJA fee requests filed in conjunction 

with deportation proceedings arising in the Ninth Circuit. These are 

the regulations that apply to all other EAJA fee requests before the 

Department and the regulations that will apply if the position of the 

Ninth Circuit is ultimately given nationwide effect through departmental, judicial, or congressional action. 

The Department regulations provide that filings and service of 

documents shall be made -in the same manner as other pleadings in 

the proceedings," that the determination will be made by the official 

who presided at the adversary adjudication, and that the decision of 

the adjudicative officer will be reviewed to the extent permitted by law 

by the Department in accordance with the Department's procedures 

for the type of proceedings involved. 28 C.F.R. §§ 24.301, 24.306, 

24.307 (1988). 

Under the provisions of 8 C.F.R. Part 3 (1988) and 28 C.F.R. Part 

24 (1988), we find that the fee application in this case should be 

considered by the immigration judge. As the Service withdrew its 

32 
Interim Decision #3105 

appeal on the merits in this case, the initial decision of the immigration judge is "final to the same extent as though no appeal had been 

taken." 8 C.F.R. § 3.4 (1988). Any further substantive motion in this 

case would be within the jurisdiction of the immigration judge to 

consider. See 8 C.F.R. §§ 3.2, 242.22 (1988); Matter of Mladineo, 14 

I&N Dec. 591 (BIA 1974). Accordingly, considering the provisions of 

28 C.F.R. §§ 24.301 and 24.306 (1988), we find that the application is 

properly filed with the Office of the Immigration Judge and that the 

immigration judge is the "adjudicative officer" who should issue a 

decision on the application. Therefore, the record in this case is 

returned to the immigration judge for her decision whether the 

application satisfies the requirements of law and regulations. 

ORDER: The record is returned to the Office of the Immigration Judge for consideration of and a decision on respondent's request 

for attorney fees and costs. 

CONCURRING IN PART AND DISSENTING IN PART: James P. 

Morris, Board Member 

I concur in the decision of the majority except insofar as it finds 

that immigration judges and the Board have authority to consider 

requests for attorney fees and costs under the Equal Access to Justice 

Act ("EAJA") resulting from deportation proceedings held within the 

jurisdiction of the United States Court of Appeals for the Ninth 

Circuit. I respectfully dissent as to this latter aspect of the majority's 

decision. 

As the majority properly finds, the Board and immigration judges 

(except as to the specific authority provided by law), only have such 

authority as is created and delegated by the Attorney General. 

Regulations promulgated by the Attorney General have the force and 

effect of law as to this Board and immigration judges. See sections 

103(a), 236(a), 242(b) of the Immigration and Nationality Act, 8 

U.S.C. §§ 1103(a), 1226(a), 1252(b) (1982); 8 C.F.R. § 3.0 (1988); 28 

C.F.R. Part 24 (1988); Matter of Medina, 19 I&N Dec. 734 (BIA 

1988); Matter of Valdovinos, 18 I&N Dec. 343 (BIA 1982); Matter of 

Bilbao-Bastida, 11 I&N Dec. 615 (BIA 1966), affd, Bilbao-Bastida v. 

INS, 409 F.2d 820 (9th Cir.), cert. dismissed, 396 U.S. 802 (1969); 

Matter of Tzimas, 10 I&N Dec. 101 (BIA 1962). The Attorney General 

has expressly determined that immigration proceedings do not come 

within the scope of the EAJA and has implemented a regulation to that 

effect. See 28 C.F.R. § 24.103 (1988). Thus, under present law, absent 

a change to this regulation or a final court order directing an 

immigration judge or the Board to consider and adjudicate an 

application for attorney fees under EAJA, I would find no statutory or 

33 
Interim Decision #3105 

regulatory authority giving jurisdiction to an immigration judge or the 

Board to do so. 

Here, the pertinent regulations governing the immigration judges 

and the Board remain in force and effect and there is no court order 

clearly directing either an immigration judge or the Board to consider 

and adjudicate an application for attorney fees and costs under the 

EAJA. The Ninth Circuit's orders in Escobar Ruiz v. INS, 787 F.2d 

1294 (9th Cir. 1986), reh'g denied, 813 F.2d 283 (9th Cir. 1987), affd, 

838 F.2d 1020 (9th Cir. 1988) (en bane), do not specify that the Board 

and immigration judges have authority to award attorney fees under 

the EAJA, although that conclusion might be inferred from the 

decisions. However, this issue was not specifically addressed and 

discussed in any of the three Escobar Ruiz decisions. The argument of 

respondent that the regulations authorize the immigration judge to 

award such fees is based upon ambiguous language of a general nature, 

which does not overcome the clear failure of the regulations to delegate 

this authority to the immigration judges and the Board. While the 

Ninth Circuit decisions hold that the EAJA applies to deportation 

proceedings, they do not circumscribe the power of the Attorney 

General to make provision for the method by which such awards may 

be determined. Accordingly, I would hold that the Board and 

immigration judges lack authority to make such awards, and I would 

certify the decision of the Board to the Attorney General under 8 

C.F.R. § 3.1(h) (1988) so that he could decide as a matter of policy 

how this matter should be resolved. 

CONCURRING OPINION: Fred W. Vacca, Board Member 

I concur in the foregoing opinion. 

34