Pedro Diaz-Magana v. Richard K. Rogers, District Director

81 F.3d 167 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Pedro DIAZ-MAGANA, Petitioner-Appellant, v. Richard K. ROGERS, District Director, Respondent-Appellee. No. 95-55884. United States Court of Appeals, Ninth Circuit. Submitted March 4, 1996. * Decided March 20, 1996. Before: SKOPIL, CANBY, and LEAVY, Circuit Judges. 1 MEMORANDUM ** 2 Pedro Diaz-Magana appeals the district court's denial of his Equal Access to Justice Act (EAJA) request for attorney's fees. Although Diaz was successful in obtaining a remand on his motion to reopen proceedings before the INS, the district court denied his request for fees, reasoning that the EAJA does not apply to judicial review of exclusion orders, and if the EAJA does apply, Diaz is not yet a prevailing party. We conclude that the EAJA does apply. We affirm, however, on the ground that Diaz has not yet prevailed. DISCUSSION 3 The district court ruled that the EAJA does not apply to judicial actions brought pursuant to 8 U.S.C.…