Fee Retrenchment in Immigration Habeas

March 4, 2022

For noncitizens facing removal, habeas corpus provides one of very few avenues for Article III review. For decades, habeas proceedings have been interpreted as falling under the ambit of the Equal Access to Justice Act (EAJA), which provides for the award of attorneys’ fees to prevailing parties in suits against the federal government. But this understanding is being challenged, threatening the judicial backstop to executive and legislative overreach in immigration. Reducing the ability of lawyers to recover their fees in these circumstances will reduce the number and quality of habeas challenges by individuals being detained while they await removal—a particularly salient worry given the aggressive enforcement and misconduct by U.S. Immigration and Customs Enforcement over the past few years.

This Article demonstrates that reading out habeas proceedings from the EAJA is best understood as an example of the federal courts’ jurisprudential shift against the private enforcement of civil rights—that is, the rights retrenchment movement. This case study also shows how nonacquiescence permits agencies to selectively tee up issues for retrenchment and magnify the structural power differences between them and the individuals they face in litigation. This Article then applies a procedural justice lens to normatively assess whether the EAJA should cover immigration habeas. Using the Mathews v. Eldridge framework for this inquiry, this Article identifies the strong private interests at stake, the value of the process, and the government’s interest, mapping these factors to the accuracy, efficiency, and participation norms.

March 2022

No. 4