Tenth Circuit Holds EAJA Applies to Habeas Challenges to Immigration Detention: “Any Civil Action” Includes Immigration Habeas

Introduction

This published decision from the U.S. Court of Appeals for the Tenth Circuit addresses a recurring and consequential question at the intersection of immigration detention and attorney’s fee-shifting: whether a prevailing petitioner on a habeas challenge to immigration detention may recover fees against the United States under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). In Daley v. Choate, the court squarely holds that such habeas proceedings are “civil actions” within the meaning of EAJA, and therefore fall within the statute’s sovereign-immunity waiver.

The case arises from the detention of Eva Daley, a Guatemalan national who, after serving a lengthy state prison sentence (with a later-vacated murder conviction substituted with an assault conviction), was held by U.S. Immigration and Customs Enforcement (ICE) for 450 days without a bond hearing. She filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 seeking to challenge her continued detention. The district court granted relief and ordered an individualized bond hearing; an immigration judge then released Daley on a $1,500 bond. She subsequently moved for fees under EAJA, and the district court awarded $18,553.92. The government appealed only the fee award, not the underlying habeas relief, and did not argue on appeal that its position had been “substantially justified.”

The Tenth Circuit (Judge Federico, joined by Chief Judge Holmes and Judge Kelly) affirms. The panel’s thorough opinion undertakes a text-based, historical, and doctrinal analysis to conclude that habeas actions challenging immigration detention are unambiguously civil, and thus fall within EAJA’s fee-shifting regime. In doing so, the court distinguishes habeas petitions that attack criminal custody (addressed in the circuit’s earlier decision in Ewing v. Rodgers) and expressly disagrees with decisions from the Fourth and Fifth Circuits that treated immigration habeas as a civil-criminal “hybrid.”

Summary of the Opinion

Issue: Whether EAJA’s sovereign-immunity waiver for “any civil action” authorizes fee awards to prevailing petitioners in habeas corpus proceedings that challenge immigration detention.
Holding: Yes. Habeas petitions challenging immigration detention are “civil actions” under EAJA, and the statute’s sovereign-immunity waiver applies. The fee award is affirmed.
Method: The court applies traditional tools of statutory interpretation, including the ordinary meaning of “civil action” as a common-law term-of-art, historical judicial characterizations of habeas proceedings, and statutory context and purpose. The panel finds no ambiguity that would trigger an immunity-preserving construction.
Distinctions: The court distinguishes criminal-custody habeas (Ewing v. Rodgers), reaffirms that immigration proceedings and detention are civil (Demore; Lopez-Mendoza; Zadvydas), and rejects contrary “hybrid” analyses (Obando-Segura; Barco).
Standard of Review and Jurisdiction: The court exercises jurisdiction under 28 U.S.C. § 1291 and reviews de novo the legal question whether EAJA authorizes fees in this context.

Detailed Analysis

1) The Interpretive Framework: Sovereign Immunity, Text First, and “Any Civil Action”

The opinion begins with first principles. Because EAJA is a waiver of sovereign immunity, its terms must be strictly construed in favor of preserving immunity; courts apply the “clear statement” rule and will not extend a waiver beyond what the statutory text unmistakably covers. See FAA v. Cooper; Lane v. Peña; Lac du Flambeau Band v. Coughlin. But the panel emphasizes that courts must exhaust traditional interpretive tools before invoking the canon: they cannot adopt an immunity-preserving reading merely because it is “plausible” without first carefully parsing the text. See Cooper; Loper Bright; Richlin; Kirtz.

The key text is EAJA’s authorization of fees “in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action.” 28 U.S.C. § 2412(d)(1)(A) (emphasis added). The word “any,” as the Tenth Circuit later underscores, is expansive: it sweeps in civil actions “of whatever kind.” See Nelson v. United States.

2) The Meaning of “Civil Action” at Common Law and in American Usage

Because EAJA does not define “civil action,” the court looks to its ordinary meaning at enactment in 1980, treating “civil action” as a term-of-art carrying the “old soil” of its common-law pedigree. See Sekhar; Jarkesy; Hansen. The English common law drew a fundamental line between private wrongs (civil injuries) and public wrongs (crimes). Civil actions were the procedural vehicles to redress private injuries or vindicate private rights. See Blackstone (Books 1, 3, 4). American courts echoed this dichotomy across the nineteenth and twentieth centuries (Watson v. Mercer; Bessette; Doyle; Bradlie; and numerous state high courts), and legislatures codified it in procedural codes. Contemporary legal dictionaries at EAJA’s enactment (Black’s; Ballentine’s; Radin) defined a civil action as one to enforce or redress private rights and wrongs, encompassing all non-criminal proceedings.

Synthesizing these sources, the panel concludes that “civil action” unambiguously includes any proceeding brought to enforce a private or civil right or to redress a private wrong—an understanding Congress presumptively incorporated when it used the term in EAJA.

3) Habeas Corpus Is (and Long Has Been) Civil—With a Caveat for Criminal Custody

Applying that definition, the court turns to habeas corpus. The common law protected an individual’s private right to personal liberty—freedom from unlawful restraint—and habeas served as the remedy to vindicate that private right. See Blackstone. The Supreme Court repeatedly characterized habeas as a civil proceeding. See Ex parte Tom Tong (“the remedy for the enforcement of the civil right of personal liberty”); Cross v. Burke; Riddle v. Dyche; Borrego; and, by the time of EAJA’s enactment, Browder (“well settled” that habeas is civil).

The panel addresses two Supreme Court decisions frequently cited to suggest habeas is not purely civil: Harris v. Nelson (criticizing the label as “gross and inexact” for discovery purposes) and Schlanger v. Seamans (construing “civil action” in another statute using legislative history). The court distinguishes both. Harris dealt with procedural rules for discovery, not the civil/private-right nature of the action; EAJA’s inclusion of specialized review proceedings underscores that procedural deviations do not disqualify an action from being civil. Schlanger relied on legislative history and concerned a different statute; EAJA’s waiver must be construed by its text, not legislative history. See Kirtz; Stafford.

Critically, the Tenth Circuit acknowledges its own precedent in Ewing v. Rodgers, which held that a habeas petition “challenging confinement arising from a criminal judgment” is not a “civil action” under EAJA. Ewing’s reasoning turned on characteristics derivative of the underlying criminal judgment (e.g., appointed counsel rights and the “custodial incentive” to sue after conviction), not the nature of habeas per se. Thus, Ewing commands courts to look through the habeas label to the nature of the restraint being challenged.

4) Immigration Detention and Proceedings Are Civil, So Immigration Habeas Is Civil

The court then brings in immigration law’s baseline characterization. Immigration detention is an “aspect of the deportation process” (Demore v. Kim), deportation proceedings are “purely civil” (INS v. Lopez-Mendoza), and detention associated with them is civil (Zadvydas v. Davis). Because the underlying proceedings (removal/deportation and detention) are civil, and habeas itself is civil in function, a habeas petition challenging immigration detention is “purely civil.” Ewing—limited to criminal-custody habeas—does not preclude fees here. The panel cites the Second Circuit’s Vacchio v. Ashcroft to the same effect.

Result: Under EAJA, habeas actions challenging immigration detention are “civil actions,” and EAJA authorizes fee awards to prevailing petitioners in those actions.

5) Statutory Purpose Reinforces the Textual Conclusion

Although the text and history suffice, the court also consults the statute’s expressly stated purpose in the EAJA’s enacting public law: to “diminish the deterrent effect of seeking review of, or defending against, governmental action” by providing attorney’s fees in specified situations. See Pub. L. 96-481, § 202(c). This purpose is appropriately considered because it is itself statutory text, not legislative history. See West v. Gibson; Kirtz.

In practice, the costs of bringing habeas challenges to immigration detention are significant, and detainees typically cannot work while confined, intensifying the funding barrier. Fee availability—especially to pro bono counsel and legal services organizations—reduces those barriers and aligns with EAJA’s animating aim. The panel also addresses, and rejects, the government’s belated Criminal Justice Act argument (raised only in reply) and explains why the “custodial incentive” to sue does not operate in the same way as in criminal cases: many detainees can end custody by acquiescing to removal, so the lack of fee incentives can practically coerce surrender of rights. The court notes empirical support: roughly 38,000 civil detainees in FY 2024 versus 448 habeas petitions filed that year—suggesting significant deterrents persist absent fee-shifting.

6) Rejecting Contrary Circuit Approaches

The Fourth Circuit (Obando-Segura v. Garland) and Fifth Circuit (Barco v. Witte) had treated immigration habeas as civil-criminal “hybrid” proceedings, thereby denying EAJA fees. The Tenth Circuit respectfully disagrees. It finds those decisions relied heavily on Harris, Schlanger, and O’Brien v. Moore (a Fourth Circuit case about criminal-custody habeas), and did not conduct the kind of historical analysis the Tenth Circuit undertakes. O’Brien itself supports looking to the nature of the underlying custody; applying that approach here yields a civil characterization for immigration detention. Barco likewise extrapolated from criminal-custody habeas cases without analyzing immigration habeas on its own terms.

7) No Categorical Exclusion; “Any Civil Action” Means What It Says

Invoking McIntosh v. U.S. Parole Commission (a Prison Litigation Reform Act case using the phrase “a civil action”), the government proposed a categorical rule: because the category “habeas” includes some hybrids (criminal-custody challenges), all habeas should be excluded from EAJA. The panel rejects that approach for two reasons. First, EAJA’s text uses “any civil action,” a broader formulation than “a civil action,” and the Tenth Circuit has recognized that “any” broadens coverage. See Nelson v. United States. Second, EAJA contains only one categorical exception—“cases sounding in tort.” Courts may not invent others. See Freytag; Hallstrom. There is no “habeas” exception in the statute. Immigration-detention habeas fits comfortably within “any civil action,” regardless of what other habeas cases look like.

8) The Clear-Statement Rule Does Not Change the Outcome

Because the statute, read with traditional tools, unambiguously covers immigration-detention habeas, the sovereign-immunity canon does not compel adopting the government’s narrower view. Even under the government’s preferred standard—fees only for “wholly or purely civil” cases—immigration habeas qualifies.

Precedents and Authorities Discussed

EAJA and sovereign immunity: Ardestani v. INS; FAA v. Cooper; Lane v. Peña; Lac du Flambeau Band v. Coughlin; Dep’t of Agric. v. Kirtz; Richlin.
Common-law and historical meaning: Blackstone’s Commentaries; Sekhar; Jarkesy; Hansen; nineteenth- and early twentieth-century Supreme Court and state decisions; contemporary law dictionaries (Black’s, Ballentine’s, Radin).
Habeas as civil: Ex parte Tom Tong; Browder; Riddle; Cross; Borrego, among many others.
Contrary signals and why they don’t control: Harris (discovery mechanics, not nature); Schlanger (legislative history, different statute).
Immigration law’s civil character: Demore v. Kim; INS v. Lopez-Mendoza; Zadvydas v. Davis; Vacchio v. Ashcroft (2d Cir.).
Tenth Circuit guidance on criminal-custody habeas: Ewing v. Rodgers; Sloan v. Pugh (reiterating Ewing).
Statutory purpose: West v. Gibson; EAJA’s express purpose clause, Pub. L. 96-481, § 202(c).
Scope of “any”: Nelson v. United States.
No judicially-created exceptions: Freytag; Hallstrom.
Contrary circuit cases and disagreement: Obando-Segura (4th Cir.); Barco (5th Cir.).

Impact and Implications

A) For Immigration Detainees and Counsel

Prevailing petitioners in § 2241 challenges to immigration detention within the Tenth Circuit (and district courts therein) can seek EAJA fees against the United States, assuming the other statutory conditions are met (e.g., net worth limits, timely application, no substantial justification, no “special circumstances” making an award unjust).
The decision should catalyze increased representation, including by pro bono and nonprofit organizations, by making fee recovery available where the government’s position lacks substantial justification.
Litigation strategies will likely emphasize achieving relief that confers “prevailing party” status (e.g., court-ordered bond hearings leading to release), documenting hours and rates, and addressing substantial-justification issues in briefing even if the government does not contest them on appeal.

B) For the Government

Agencies and litigators must account for potential fee exposure in detention cases. This may encourage earlier provision of individualized bond hearings or reconsideration of detention decisions to avoid litigation postures unlikely to be deemed substantially justified.
The opinion’s careful textualist methodology limits reliance on legislative history and “hybrid” labels, focusing instead on the nature of the right and remedy. That analytical frame may influence government litigation strategies beyond immigration.

C) For District Courts and Other Circuits

Within the Tenth Circuit, district courts now have binding guidance: immigration-detention habeas is a “civil action” under EAJA. Courts must still apply EAJA’s other elements (prevailing party, substantial justification, timeliness, net-worth caps).
The decision deepens a circuit split with the Fourth and Fifth Circuits, increasing the likelihood of Supreme Court review. Its historically grounded approach may prove persuasive to other circuits considering the issue.

Complex Concepts Simplified

Sovereign immunity and EAJA: The U.S. cannot be ordered to pay fees unless Congress clearly says so. EAJA is that clear statement for “any civil action,” with specific exceptions (notably, torts).
“Civil action”: Historically, a lawsuit to vindicate a private right or redress a private wrong. It is contrasted with criminal prosecution (public wrong).
Habeas corpus: A suit to challenge unlawful custody and vindicate the private right to personal liberty. In general, habeas is civil; whether EAJA applies depends on the nature of the custody challenged. Criminal-custody habeas (post-conviction) has been treated differently in the Tenth Circuit (Ewing). Immigration detention is civil, so immigration habeas is civil.
“Any” versus “a” civil action: “Any” is expansive. Under EAJA, “any civil action” includes all kinds of civil cases unless expressly excluded; there is no textual habeas exclusion.
Clear-statement rule: Courts construe waivers of immunity strictly and will not infer coverage from ambiguity. But ambiguity is assessed only after using traditional interpretive tools; here, the meaning was clear.
Substantial justification: Even when a case is within EAJA, the government can avoid fees if its position was substantially justified. The government did not raise that defense on appeal in this case.

Practice Notes

Frame the relief to establish “prevailing party” status. Court-ordered bond hearings resulting in release, as here, are strong anchors.
Build the record on the government’s lack of substantial justification, even if not contested on appeal. EAJA awards turn significantly on that element.
Mind EAJA’s procedural requirements: timely fee applications and proof of eligibility (including net-worth limits), and documentation of reasonable hours and rates.
When opposing, the government should address substantial justification promptly; raising new arguments only in reply (e.g., CJA appointment) risks forfeiture.

Conclusion

Daley v. Choate sets a clear and consequential rule in the Tenth Circuit: habeas corpus petitions that challenge immigration detention are “civil actions” within EAJA’s fee-shifting regime. Anchored in the common-law understanding of civil actions, the Supreme Court’s longstanding characterization of habeas proceedings, and immigration law’s civil character, the panel rejects categorical exclusions and “hybrid” labels untethered from the nature of the underlying custody. The ruling not only affirms a fee award for a detainee who prevailed in securing a bond hearing and release; it also meaningfully reduces the financial barriers to contesting unlawful civil detention and aligns with EAJA’s express purpose of diminishing the deterrent effect of litigating against the government. In a landscape marked by a growing circuit split, the Tenth Circuit’s text-forward, historically grounded approach provides a robust model for future courts confronting the same question.