Interim Decision #3106 

MATTER OF FEDE 

In Exclusion Proceedings 

A-28853270 

Decided by Board May 11, 1989 

(1) A regulation promulgated by the Attorney General has the force and effect of law as 

to immigration judges and the Board of Immigration Appeals. 

(2) As the Attorney General has determined by regulation that immigration proceedings 

do not come within the scope of the Equal Access to Justice Act, absent a regulatory 

change or controlling court order, neither an immigration judge nor the Board has 

authority to consider an application for attorney fees and costs under that Act. 

ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE 

Frank Murray, Esquire Elena R. Stinson 

8101 Biscayne Blvd., #200 General Attorney 

Miami, Florida 33138 

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members 

This matter arises as a result of exclusion proceedings held within 

the jurisdiction of the United States Court of Appeals for the Eleventh 

Circuit but solely concerns the applicant's application for attorney fees 

and costs pursuant to the Equal Access to Justice Act, 5 U.S.C. § 504 

(1982) ("EAJA"). By decision dated November 15. 1988, the immigration judge denied the application. The applicant appealed. For the 

reasons set forth below, the appeal will be dismissed. 

In his November 15, 1988, decision, the immigration judge 

concluded that he lacked jurisdiction to consider the fee request based 

on his finding that exclusion proceedings were not within the scope of 

the EAJA. While we agree with the immigration judge's conclusion in 

this regard, there is a more fundamental reason we find that the 

immigration judge had no authority to consider the request for 

attorney fees and costs. See Matter of Anselmo, Interim Decision 3105 

(BIA 1989). 

The Board and immigration judges (except as provided by statute) 

only have such authority as is created and delegated by the Attorney 

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Interim Decision #3106 

General.' See section 103 of the Immigration and Nationality Act, 

8 U.S.C. § 1103 (1982); 28 U.S.C. §§ 503, 509 and 510 (1982). 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 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 determined that immigration proceedings 

do not come within the scope of the EAJA. See 28 C.F.R. § 24.103 

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

request for public comment). 2Neither this Board nor an immigration 

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

determination in this regard. Thus, absent a regulatory change or 

controlling court order, an immigration judge has no authority under 

law or regulation to consider an application for attorney fees under the 

provisions of the EAJA. The United States Court of Appeals for the 

Ninth Circuit has held en bane that the EAJA does apply to 

deportation hearings before the immigration judges and the Board. 

Escobar Ruiz v. INS, 838 F.2d 1020 (9th Cir. 1988). But cf. Owens v. 

I Even 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. §§ 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 such regulations, not inconsistent with this Act, as the Attorney General 

shall prescribe." Section 242(b) of the Act, 8 U.S.C. § 1252(b) (1982). 

2The 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 comments received, including the "extensive comments" from the 

Administrative Conference of the United States, addressed the specific statement that 

the EAJA did not apply to deportation and exclusion hearings or commented un the 

express language of 28 C.F.R. § 24.103 (1981) ("adversary adjudications required by 

statute to be conducted by the Department under 5 U.S.C. 554"). See 47 Fed. Reg. 

15,774 (1982) (Supplementary Information). 

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Interim Decision #3106 

Brock, 860 F.2d 1363 (6th Cir. 1988). However, authority from one 

circuit is not binding in another. State of Ga. Dep't ofMedical Assist. v. 

Bowen, 846 F.2d 708, 710 (11th Cir. 1988); Generali v. D'Amico, 766 

F.2d 4-85, 489 (11th Cir. 1985). 

Thus, in view of the controlling Departmental regulations, we find 

that the immigration judge in this case had no authority to consider an 

application for attorney fees and costs under the EAJA. Accordingly, 

the appeal from the November 15, 1988, immigration judge's decision 

denying the application for fees and costs will be dismissed. 

ORDER: The appeal is dismissed. 

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