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). 2 Neither 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).
2 The 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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