IMMIGRATION AND NATURALIZATION SERVICE, PETITIONER V. PATRICIA RAMIREZ RIVAS No. 90-1223 In The Supreme Court Of The United States October Term, 1990 The Solicitor General, on behalf of the United States Immigration and Naturalization Service, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit TABLE OF CONTENTS Question Presented Opinions below Jurisdiction Statutes involved Statement Reasons for granting the petition Conclusion OPINIONS BELOW The order of the court of appeals granting attorneys fees (App., infra, 1a-2a) is not yet reported. The opinion of the court of appeals on the merits (App., infra, 3a-23a) is reported at 899 F.2d 864. JURISDICTION The order of the court of appeals was entered on October 10, 1990. On December 31, 1990, Justice O'Connor extended the time for filing a certiorari petition to and including February 7, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTES INVOLVED 5 U.S.C. 504 provides in pertinent part: (a)(1) 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. * * * * * * * * (b)(1) For the purpose of this section -- * * * * * (C) "adversary adjudication" means (i) an adjudication under section 554 of (5 U.S.C.) in which the position of the United States is represented by counsel or otherwise * * *. 28 U.S.C. 2412(d)(3) provides in pertinent part: In awarding fees and other expenses under this subsection (providing for fees in judicial proceedings) to a prevailing party in any action for judicial review of an adversary adjudication, as defined in subsection (b)(1)(C) of section 504 of title 5, United States Code, * * * the court shall include in that award fees and other expenses to the same extent authorized in subsection (a) of such section, unless the court finds that during such adversary adjudication the position of the United States was substantially justified, or that special circumstances make an award unjust. STATEMENT QUESTION PRESENTED Whether the Equal Access to Justice Act, 5 U.S.C. 504 and 28 U.S.C. 2412, permits the award of attorneys fees for work performed in connection with administrative deportation proceedings. Respondent is a 23-year-old native and citizen of El Salvador who entered the United States without inspection in 1983 and subsequently was placed in deportation proceedings. At her hearing before an immigration judge, she conceded deportability and applied for asylum and withholding of deportation. Respondent comes from a family with a history of active involvement in the guerrilla movement in El Salvador. Although she herself never engaged in anti-government activities, she contended in her request for asylum that the government of El Salvador would impute to her the political opinions of her brothers and cousins who were members of the guerrilla movement. She also contended that her visits to family members who were held as political prisoners increased her risk of persecution. App., infra, 4a-6a, 7a-8a, Gov't Mem. 2. /1/ The immigration judge found that respondent did not qualify for asylum or withholding of deportation, but in lieu of deportation granted her time in which to depart the United States voluntarily. Gov't Mem. 3-4. On respondent's appeal, the Board of Immigration Appeals (BIA) affirmed the denials of asylum and withholding of deportation. Id. at 4-5. Respondent filed a petition for review in the Ninth Circuit. The court concluded that she had established a clear probability of persecution which entitled her to withholding of deportation. App., infra, 22a-23a. The court of appeals accordingly remanded the case to the BIA with instructions to grant the withholding application and "with respect to the (respondent's) asylum application, to exercise its discretion under Section 208 of the Immigration and Nationality Act". Id. at 23a. The government did not seek further review of the appellate court's decision. On June 14, 1990, the BIA granted the asylum application and terminated proceedings. Gov't Mem. 7. Respondent applied to the court of appeals for an award of attorneys fees under the Equal Access to Justice Act, 28 U.S.C. 2412(d), in the amount of $43,491, which covered the work of her attorneys at both the administrative and judicial stages of the proceeding. Gov't Mem. 1. On October 10, 1990, the Court granted the application in the full amount requested. App., infra, 1a-2a. REASONS FOR GRANTING THE PETITION In awarding EAJA fees for the administrative deportation proceedings in this case, the court of appeals followed circuit precedent. Escobar Ruiz v. Immigration and Naturalization Service, 838 F.2d 1020 (9th Cir. 1988), concluded that EAJA fees are available for such proceedings, although the claimant in that case was denied an award. Id. at 1029. Since Escobar Ruiz, two other circuits have rejected the Ninth Circuit's analysis and held that administrative deportation proceedings are not "adversary adjudication(s)" as that term is defined in 5 U.S.C. 504 (b)(1)(C). Ardestani v. United States Dep't of Justice, INS, 904 F.2d 1505 (11th Cir. 1990); Clarke v. INS, 904 F.2d 172 (3d Cir. 1990). /2/ The EAJA claimant in Ardestani has recently filed a petition for certiorari, asking the Court to resolve the conflict in the circuits over the proper interpretation of Section 504(b)(1)(C). See Ardestani v. United States Dep't of Justice, INS, No. 90-1141. Because the conflict involves an important and recurring issue that seriously affects the operation of the Immigration and Naturalization Service, the Solicitor General has determined that the government will acquiesce in the granting of certiorari in Ardestani (in a response soon to be filed to the petition in that case). This case presents the same issue. Accordingly, it would be appropriate for the Court to hold this case pending the disposition of Ardestani. CONCLUSION The petition for a writ of certiorari should be held for disposition in accordance with this Court's determination in Ardestani v. United States Dep't of Justice, INS, No. 90-1141. Respectfully submitted. KENNETH W. STARR Solicitor General JANUARY 1991 /1/ "Gov't Mem." refers to the government's memorandum in opposition to the application for attorneys fees, filed in the court of appeals. /2/ In addition, the Ninth Circuit's construction of Section 504(b)(1)(C) enunciated in Escobar Ruiz has been rejected by the District of Columbia Circuit and the Sixth Circuit in non-immigration cases. St. Louis Fuel & Supply Co. v. FERC, 890 F.2d 446 (D.C. Cir. 1989); Owens v. Brock, 860 F.2d 1363 (6th Cir. 1988). APPENDIX