REINHARDT, Circuit Judge:
Escobar Ruiz, a citizen of El Salvador, allegedly entered this country without inspection in early 1983. On April 19, 1983, he was arrested and deportation proceedings were commenced. The immigration judge (IJ) found him to be deportable, and
On September 6, we filed an order dismissing Escobar Ruiz's petition for review as moot because the BIA had reopened the deportation proceedings. Escobar Ruiz then timely filed an application for attorney's fees for work his counsel performed before the BIA and this court, pursuant to the former Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d) (1982).
Respondent advances three arguments why Escobar Ruiz is not entitled to the attorney's fees requested: first, EAJA does not apply to proceedings before the IJ and the BIA, and thus no attorney's fees can be awarded for work performed before those entities; second, Escobar Ruiz was not a "prevailing party" within the meaning of former section 2412(d)(1)(A), and thus no attorney's fees can be awarded for any of the work performed, even if EAJA does apply to proceedings before the IJ and BIA; third, even if Escobar Ruiz was a prevailing party, his claim for attorney's fees is too high.
II. APPLICABILITY OF EAJA
Respondent points out that former section 2412(d)(1)(A) begins "Except as otherwise specifically provided by statute ..." and argues that section 292 of the Immigration and Naturalization Act of 1952, 8 U.S.C. § 1362 (1982), "otherwise specifically provide[s]." Section 292 states:
Respondent claims that the parenthetical language — "at no expense to the Government" — is an explicit directive that EAJA is not to apply.
An examination of the legislative history of EAJA makes it clear that the words "Except as otherwise specifically provided ..." in former section 2412(d)(1)(A) were not intended to refer to statutes such as section 292. In its report, the House Judiciary Committee stated that former section 2412(d) "applies to all civil actions except ... those already covered by existing fee-shifting statutes." H.R.Rep. No. 1418, 96th Cong. 2d Sess. 18 (1980), reprinted in 1980 U.S.Code Cong. & Ad.News 4953, 4984, 4997 (emphasis added). The Committee reiterated this important point, stating that former section 2412(d) "is not intended to replace or supercede any existing fee-shifting statutes....
The legislative history and the circumstances of enactment surrounding section 292 support this conclusion. The House Judiciary Committee described section 292 in part of its discussion of the rights aliens were to have in immigration proceedings. H.R.Rep. No. 1365, 82d Cong., 2d Sess. 57 (1952), reprinted in 1952 U.S.Code Cong. & Ad.News 1653, 1712. See also H.R.Rep. No. 1365 at 234 (comparing § 292 with prior law under Immigration Act of 1917). In other words, in section 292 Congress provided that while aliens have the right to be represented by counsel, indigent aliens do not have a right to appointed counsel at government expense. EAJA is not inconsistent: indigents do not have a right to have counsel appointed at government expense under that statute. Instead, litigants are entitled to attorney's fees, whether their counsel is retained or volunteer, only if they prevail against the government. Furthermore, it is self-evident that Congress in 1952 did not include the parenthetical language in section 292 in an attempt to ensure that EAJA, a statute that would not be enacted for another 28 years, would not be applied to immigration proceedings.
The parenthetical language in section 292 was designed to deal with the relationship between indigency and the right to counsel;
III. PREVAILING PARTY STATUS
Respondent argues that even though Escobar Ruiz's deportation proceedings were reopened, Escobar Ruiz is not a "prevailing party" within the meaning of former section 2412(d)(1)(A), and thus is not entitled to any attorney's fees at all. We addressed a similar issue in our brief order in NLRB v. Doral Building Services, 680 F.2d 647 (9th Cir.1982). We adopted the definition found in the Civil Rights Attorney's Fees Act of 1976, 42 U.S.C. § 1988, and held that in order to be a prevailing party under EAJA, a litigant must obtain at least some relief on "the merits of the underlying action." Doral, 680 F.2d at 647. We said that a remand to an administrative agency without more is not relief on the underlying merits. Id.
If we were to remand on some issues, but reach the merits of others, then the private litigant could be considered to
IV. PROCEDURAL PROBLEMS
The holding that is compelled by our prior order in Doral does create some potential jurisdictional complexities because an administrative agency, unlike a district court, cannot award attorney's fees for work done before this court. If Escobar Ruiz should prevail in the administrative proceedings, but the agency denies attorney's fees for work done before it, then he can petition us for leave to appeal the denial of fees pursuant to former 5 U.S.C. § 504(c)(2) (1982) and Ninth Circuit Rule 31(b).
However, if Escobar Ruiz prevails below, and the agency grants attorney's fees, then there is no immediately apparent established procedure for him to use in renewing his request for an award of attorney's fees for work done before us.
Escobar Ruiz's application for attorney's fees is denied at this time, because he is not a "prevailing party" within the meaning of former section 2412(d)(1)(A). The application may be renewed in the future in the manner described in part IV, supra. Pursuant to our order of September 6, 1984, any future petitions for review or for leave to appeal, or applications for fees or costs shall be assigned to the panel issuing this opinion.
DUNIWAY, Circuit Judge (concurring and dissenting):
I concur in parts I, II and III of Judge Reinhardt's opinion. I do not concur in