Unreported / Non-Citable
Background
M.B., a former immigration detainee, entered the United States without inspection in June 2022 and was released under an order of supervision. Over roughly three years he reported to ICE as directed, applied for asylum, obtained employment authorization, and had no criminal record. When ICE asked him to report in November 2025, it detained him without notice or a hearing, and an immigration judge later denied bond for lack of jurisdiction under Matter of Yajure Hurtado.
He filed a habeas petition under 28 U.S.C. § 2241 in January 2026. The district judge granted a temporary restraining order and ordered release, then issued a preliminary injunction barring re-detention without seven days' notice and a pre-deprivation hearing at which the government must prove danger or flight risk by clear and convincing evidence. On March 20, 2026, the district judge adopted earlier findings and granted the petition on the Fifth Amendment due process claim, and judgment was entered. Respondents did not appeal.
Petitioner moved for fees and costs under the Equal Access to Justice Act on June 17, 2026. His request grew from $3,235.75 to $5,148.35 after a reply billing update: 19.9 attorney hours at $258.46 plus a $5.00 filing fee. Respondents argued that habeas is not a civil action under the EAJA and that their position was substantially justified, and alternatively asked the court to defer ruling until the Supreme Court decides Montoya Palacios v. Liggins, No. 25-1223. They did not dispute prevailing-party status, eligibility, timeliness, or reasonableness of the amount.
The Court’s Holding
This is a magistrate judge's findings and recommendations, not a final order; the assigned district judge must decide whether to adopt them after the 14-day objection period. The magistrate judge recommends denying the request to defer ruling. Construing it as a stay request, the findings conclude Respondents made only a one-sentence showing and identified no hardship, while a stay pending a Supreme Court decision that may not issue until mid-2027 would be long and indefinite and would leave counsel unpaid for work dating to January 2026. A grant of certiorari also does not change governing law in the meantime.
On the threshold question, the findings conclude that habeas is a civil proceeding and thus a civil action under the EAJA. They read the Schlanger footnote as addressing only a venue statute and rely on Ninth Circuit decisions in In re Hill and Nadarajah v. Holder. The findings acknowledge a circuit split, agreeing with the Second, Third, and Tenth Circuits over the Fourth and Fifth. They find the remaining requirements satisfied, including timeliness.
On substantial justification, where the government bears the burden, the findings conclude Respondents did not carry it. The government's position includes ICE's re-arrest, which Respondents never defended: no notice, no hearing, and no identified changed circumstances after years of compliance. Even a mandatory-detention reading of § 1225(b)(2) would not displace due process. The findings do not decide whether the statutory position alone was reasonable, noting the Ninth Circuit has since rejected it. They recommend awarding $5,143.35 in fees and $5.00 in costs, payable to Petitioner and subject to Treasury offset, with direct payment to counsel if no federal debt exists.
Key Takeaways
- The recommendation treats a habeas petition challenging immigration detention as a civil action under the EAJA, but it is a nonbinding magistrate judge recommendation and the circuits are divided.
- The government's loss on the merits alone does not defeat substantial justification, but here Respondents did not defend the agency's re-arrest without notice, a hearing, or changed circumstances.
- A request to defer a fee ruling pending a Supreme Court case failed because Respondents showed no hardship and the delay would be long and indefinite.
- The findings treated all 19.9 hours as reasonable, including 9.4 hours on the fee motion and reply.
- Fees for further briefing were deemed moot, though Petitioner may submit a supplemental time statement with any response to objections.
Why It Matters
The findings show how one judge in the Eastern District of California is handling government efforts to avoid EAJA fees in immigration habeas cases, particularly the stay request tied to Montoya Palacios and the argument that habeas is not a civil action. The analysis rests on the whole case, including the agency conduct that led to suit, rather than on the statutory question alone.
Nothing is final yet. The district judge may adopt, modify, or reject the recommendations after objections, the award remains unpaid, and the Supreme Court's pending decision could affect EAJA availability in immigration habeas generally. The document is unreported and carries no precedential weight.