On Petition for Review of an Order of the Board of Immigration Appeals; BIA Docket No. A31-376-864.
A. Leon Higginbotham, Jr., Chief Judge, Becker and Nygaard, Circuit Judge.
HIGGINBOTHAM, Chief Judge.
Petitioner Earle Clarke is a Jamaican citizen who prevailed in deportation proceedings brought by the respondent Immigration and Naturalization Service ("INS"). He now petitions for review of a decision by the Board of Immigration Appeals ("BIA") denying his request for attorneys' fees under the Equal Access to Justice Act ("EAJA"), 5 U.S.C. §§ 504. Because we conclude that the EAJA does not apply to deportation proceedings before the INS, we will deny Clarke's consolidated petitions for review.*fn1
The INS commenced deportation proceedings against the petitioner on August 10, 1988, with the issuance of an Order to Show Cause charging that Clarke was deportable under 8 U.S.C. §§ 1251(a)(11) as an alien who had been convicted of knowingly and intentionally possessing a controlled substance. On January 10, 1989, an immigration judge dismissed the deportation proceedings after a hearing because the INS did not present a certified record of Clarke's conviction, and because of the agency's apparent concession at the hearing that his conviction under Pennsylvania's Accelerated Rehabilitative Disposition Program was an insufficient basis for deportation under section 1251(a)(11). Administrative Record ("A.R.") at 40-41.
On January 17, 1989, Clarke submitted an application to the immigration judge for attorneys' fees and costs under the EAJA. In his July 10, 1989 decision denying this application, the immigration judge found that Clarke met the basic requirements for an EAJA award, but concluded that the BIA's holdings in Matter of Anselmo, Interim Decision 3105 (BIA 1989), and Matter of Fede, Interim Decision 3106 (BIA 1989),*fn2 and the Attorney General's regulation on the EAJA's coverage in Department of Justice proceedings, 28 C.F.R. §§ 24.103,*fn3 required him to dismiss Clarke's EAJA application for lack of jurisdiction.
Clarke appealed the immigration judge's decision to the BIA. Relying on Matter of Fede and 28 C.F.R. §§ 24.103, the BIA determined that "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." A.R. at 3. Accordingly, the BIA dismissed Clarke's appeal and denied his application for attorneys' fees.
This case requires us to determine whether the Equal Access to Justice Act applies to deportation proceedings. We have plenary review over the agency's determination of this question of law. See INS v. Cardoza-Fonseca, 480 U.S. 421, 445-48, 94 L. Ed. 2d 434, 107 S. Ct. 1207 (1987).
Under the Equal Access to Justice Act, parties in certain adversary administrative proceedings may recover attorneys' fees and costs from the government. In pertinent part, 5 U.S.C. §§ 504(a)(1) provides that "[an] agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust." Under 5 U.S.C. §§ 504(b)(1)(C)(i), an "adversary adjudication" is defined as "an adjudication under section 554 of this title [5 U.S.C. §§ 554] in which the position of the United States is represented by counsel or otherwise . . ." Section 554 of Title 5 defines the scope and coverage of the Administrative Procedure Act ("APA"). The dispositive issue in this case is whether deportation proceedings are adversary adjudications "under section 554" of the APA and are thus covered by the EAJA.*fn4
If an adjudication "under section 554" means an adjudication "governed by" or "conducted under" section 554 of the APA, then the EAJA clearly does not apply to deportation proceedings. In section 242(b) of the Immigration and Nationality Act of 1952, 8 U.S.C. §§ 1252(b), Congress provided that the regulations governing deportation proceedings promulgated under that Act "shall be the sole and exclusive procedure for determining the deportability of an alien under this section." In Marcello v. Bonds, 349 U.S. 302, 99 L. Ed. 1107, 75 S. Ct. 757 (1955), the Supreme Court interpreted this provision to mean that the APA's hearing procedures do not apply to deportation proceedings before INS hearing officers. The Court noted that although the APA served as a "model" for the hearing provisions of the immigration statute, the Immigration and Nationality Act is the governing enactment in deportation matters:
[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 ...