For the first time in Nebraska, a federal judge has awarded court costs and attorney’s fees to an immigrant who prevailed in a lawsuit challenging his detention without bond, awarding $1,535.23 to Edgar Eduardo Cadillo Salazar. The ruling matters because it establishes that the government’s position on mandatory detention is not “substantially justified” under the Equal Access to Justice Act—a finding that could reshape fee-shifting litigation across the country.
What changed
Senior U.S. District Court Judge John Gerrard previously ruled that Salazar’s detention at the Cass County Jail without bond was unconstitutional and ordered the government to provide him with a bond hearing or release him from custody. When Salazar then moved to recover attorney’s fees under the federal EAJA, Gerrard ruled that the government’s position that all undocumented immigrants are ineligible for bond hearings was not substantially justified.
In his order, Gerrard stated that this “new understanding” of a decades-old statute has resulted in the government detaining hundreds of thousands of nonviolent individuals, often without due process or constitutional protections, and has sparked thousands of lawsuits where courts have ordered release of those wrongfully detained.
The issue of mandatory detention is currently under consideration by the 8th Circuit Court of Appeals, which covers Nebraska and other Midwest states.
Why it matters
Under the federal Equal Access to Justice Act, individuals and businesses that prevail in civil lawsuits against the federal government can file a motion to hold the government liable for attorney’s fees and court costs. The critical barrier has always been showing that the government’s position was not “substantially justified.”
This ruling breaks that barrier. By holding that the mandatory detention policy lacks substantial justification, Gerrard has signaled to practitioners nationwide that EAJA fee motions in wrongful detention cases have a realistic chance of success. That means:
- You can now pursue fees without facing the government’s first-line argument that its position is substantially justified.
- Federal courts have ruled against the mandatory detention policy more than 4,400 times, giving you substantial case law to cite.
- If you have a detained client released by a court order, an EAJA fee motion is worth filing—the calculus has shifted.
Way forward
- Review pending detention cases. If you have clients who were wrongfully detained and then released by court order, evaluate whether you filed or should file a supplemental EAJA motion. The Gerrard ruling strengthens your position.
- Flag EAJA fee recovery in new habeas filings. When you challenge detention, plan your prayer for relief to include EAJA fees from the outset. Gerrard’s decision shows the investment in pursuing them is justified.
- Monitor the 8th Circuit. The mandatory detention issue is pending before the 8th Circuit, which will bind Nebraska and the broader Midwest. Watch for a ruling that could solidify or expand Gerrard’s reasoning.
- Distinguish other judges’ reasoning. Judge Susan Bazis previously denied similar fee motions, finding the government’s position substantially justified. Be ready to argue why Gerrard’s reasoning should prevail over Bazis’s view in your circuit or district.
Disclaimer
This article is written by a software company, not a law firm, and does not constitute legal advice. Immigration policy and case law change without notice. Before relying on any statement here, verify it against the primary source linked above and consult a licensed immigration attorney about your specific situation.