Unreported / Non-Citable
Background
Than Min, a lawful permanent resident since 1986, was convicted in 1995 of attempted robbery and false imprisonment and later placed in removal proceedings. An immigration judge ordered his removal in 2001, but he was released under an order of supervision that December. The fee order recounts that he complied with immigration check-ins for years before ICE informed him in October 2025 that he would be re-detained. He was taken into custody at his November 15, 2025 check-in. The court expressly noted that this factual background came from Min’s petition and declaration and that it was not then making a final determination of those facts’ veracity.
Min filed a habeas petition under 28 U.S.C. § 2241 on November 14, 2025. On November 20, 2025, he filed an amended petition and an ex parte application for a temporary restraining order and preliminary injunction. The court granted interim relief in part on November 26 and granted a preliminary injunction on December 23. On March 9, 2026, a magistrate judge issued a Report and Recommendation recommending that the court grant the amended petition and permanently restrain respondents from re-detaining Min without following applicable procedures. The district court adopted that recommendation and entered judgment on April 22, 2026. Min filed this unopposed fee motion on August 4, 2026.
The Court’s Holding
The court granted the motion under the Equal Access to Justice Act, which requires a fee award to an eligible prevailing party in a qualifying civil action against the federal government unless the government’s position was substantially justified or special circumstances make an award unjust. It found Min eligible because he declared that his net worth never exceeded $2 million. It also found him to be a prevailing party because the April 22 judgment granted his habeas petition and barred re-detention without compliance with applicable procedural guidelines, materially altering the parties’ legal relationship.
The court approved $47,681.06 in attorney fees for Willkie Farr & Gallagher LLP and Immigrant Defenders Law Center. It held that their pro bono representation did not preclude recovery under Ninth Circuit precedent. Their itemized statements, work descriptions, qualifications, and use of the $258.46 statutory maximum hourly rate supported the request. The court calculated the requested components as $40,681.06 for Willkie and $7,025.30 for ImmDef, and noted that the request excluded paralegal, legal-assistant, and other staff time.
On substantial justification, the court relied on its earlier findings that the government’s custody determination was unreasonable and that Min had not received requisite due process when re-detained. It also rejected the significance of respondents’ earlier mootness position and observed that they had not attempted to establish that the detention was lawful. Because respondents filed no opposition, the court deemed them to have conceded that their position was not substantially justified. It likewise found no special circumstances making an award unjust, emphasizing that the government bore that burden and identified none.
Key Takeaways
- A judgment granting habeas relief and restricting future re-detention without required procedures established Min as a prevailing party for EAJA purposes.
- Pro bono representation by a private law firm and a nonprofit immigrant-rights organization did not prevent recovery of reasonable attorney fees.
- The court accepted the statutory maximum hourly rate because counsel supplied itemized records and declarations supporting their hours and qualifications.
- The government’s failure to oppose the motion left its substantial-justification and special-circumstances burdens unmet, while the court also relied on the earlier due-process rulings.
- The operative award was $47,681.06 in attorney fees, and this order did not revisit or alter the underlying April 22 judgment.
Why It Matters
The order shows how a successful due-process challenge to immigration re-detention can support an EAJA fee award after final judgment. The court treated the government’s underlying custody decision and its litigation position as relevant to substantial justification, rather than limiting the inquiry to the fee motion itself.
It also confirms that detailed billing records and the EAJA rate cap can substantiate fees even where nonprofit and private attorneys represented the petitioner without charge. The decision is a fee ruling following completed habeas relief, not a new adjudication of Min’s removal or detention claims.