Jose Rolando Escobar Ruiz v. Immigration and Naturalization Service

838 F.2d 1020 56 USLW 2409 Jose Rolando ESCOBAR RUIZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 83-7502. United States Court of Appeals, Ninth Circuit. Argued and Submitted En Banc Sept. 14, 1987. Decided Jan. 11, 1988. As Amended Feb. 24, 1988. Marc Van Der Hout, San Francisco, Cal., for petitioner. William Kanter, Washington, D.C., for respondent. Lory D. Rosenberg and Harvey Kaplan, American Immigration Lawyers Association and National Immigration Project of the National Lawyers Guild, Boston, Massachusetts, for the amici. Petition for Review of an Order of the Board of Immigration Appeals. Before BROWNING, Chief Judge, GOODWIN, ANDERSON, NELSON, CANBY, REINHARDT, BEEZER, HALL, BRUNETTI, NOONAN and THOMPSON, Circuit Judges. REINHARDT, Circuit Judge: This case raises a critical question which we are apparently the first court to address: whether the Equal Access to Justice Act (EAJA) provides for awards of attorneys fees in deportation proceedings. This is our third opinion in this case; as we have twice before, we hold that the EAJA covers deportation proceedings before the administrative agency as well as court proceedings reviewing agency…

This case raises a critical question which we are apparently the first court to address: whether the Equal Access to Justice Act (EAJA) provides for awards of attorneys fees in deportation proceedings. This is our third opinion in this case; as we have twice before, we hold that the EAJA covers deportation proceedings before the administrative agency as well as court proceedings reviewing agency deportation decisions.

*1022 I. BACKGROUND

Escobar Ruiz is a citizen of El Salvador who allegedly entered this country without inspection in 1983. The immigration judge (IJ) found him deportable and he appealed to the Board of Immigration Appeals (BIA) and filed a motion to reopen. The BIA affirmed the IJ and denied the motion. Es-cobar Ruiz then filed a petition for review in this court. At the time the oral argument was conducted, we expressed strong concern regarding the INS’s conduct throughout the proceedings below; it appeared that the INS had not given Escobar Ruiz proper notice of the various hearings and had failed to advise him of his rights, in violation of its own regulations. Shortly after the oral argument, the INS filed a motion before the BIA to reopen Escobar Ruiz’s…

dissenting,

I dissent. This case fails to satisfy the threshold requirement imposed by U.S. Const. Article III, § 2 that those who seek to invoke the power of the federal courts must allege an actual case or controversy. Jenkins v. McKeithen, 395 U.S. 411, 421-25 , 88 S.Ct. 1843 , 1848-51, 23 L.Ed.2d 404 (1969); Flast v. Cohen, 392 U.S. 83, 94-101 , 88 S.Ct. 1942, 1949-53 , 20 L.Ed.2d 947 (1968). A case arises within the meaning of Article III, § 2, if it involves “[a] declaration on rights as they stand ... not on rights which may arise in the future ... an actual controversy over an issue, not a desire for an abstract declaration of the law.” In re Summers, 325 U.S. 561, 567 , 65 S.Ct. 1307, 1311 , 89 L.Ed. 1795 (1945). 1 Plaintiffs in the federal courts “must allege some threatened or actual injury resulting from the putatively illegal action before a federal court may assume jurisdiction.” Linda R.S. v. Richard D., 410 U.S. 614, 617 , 93 S.Ct. 1146, 1148 , 35 L.Ed.2d 536 (1973). There must be a “personal stake in the outcome” such as to “assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of…