The Supreme Court is being asked to decide whether attorneys who challenge the Department of Homeland Security’s decision to detain a migrant can recover fees from the government. The case, Montoya Palacios v. Liggins, may upend attorneys’ willingness to pursue habeas cases on behalf of detained persons. A sharp circuit split now divides courts on whether habeas corpus challenges to immigration detention count as “civil actions” under federal fee-shifting law.
What changed
The Equal Access to Justice Act makes attorneys’ fees available to parties that successfully bring “any civil action (other than cases sounding in tort)” against the federal government unless the government’s position was “substantially justified.” Two courts of appeals – the U.S. Courts of Appeals for the 4th and 5th Circuits – have concluded that habeas challenges to immigration detention aren’t civil cases covered by EAJA. By contrast, the U.S. Courts of Appeals for the 2nd, 3rd, and 10th Circuits consider habeas a type of civil lawsuit that falls within EAJA’s broad attorneys’ fees language.
In April, Kevin Isaac Montoya Palacios, a citizen of El Salvador who received withholding of removal in September 2023, asked the court to intervene on his behalf. After living in the U.S. and meeting regularly with ICE officials for more than two years, ICE agents arrested him in December 2025. With the assistance of counsel, Montoya Palacios quickly filed a habeas petition, which U.S. District Judge George Russell granted. Despite having won, Russell denied Montoya Palacios’s request for attorneys’ fees under EAJA, citing the 4th Circuit’s position that habeas claims related to immigration detention are not a “civil action.”
Why it matters
If the Supreme Court sides with the 4th and 5th Circuits, attorneys’ fee recovery in immigration detention habeas cases would become unavailable across much of the country. Without the ability to recover attorneys’ fees, it will be much more difficult for migrants to find attorneys willing to bring lawsuits challenging the legal basis of their detention. And if lawyers do not challenge ICE in court, then judges will be unable to oversee the massive incarceration operation that the agency has built up.
For practitioners representing detained clients, the outcome will directly shape litigation strategy. In circuits that follow the 2nd, 3rd, or 10th Circuit view, you can advance fee requests in habeas victories; in circuits that follow the 4th or 5th Circuit, you cannot. A Supreme Court decision would likely settle this split nationwide and either expand or foreclose pro bono and fee-based habeas representation across the country.
Way forward
- Monitor the cert docket. Watch SCOTUS’s official docket for a decision on whether the justices will grant the petition in Montoya Palacios v. Liggins (likely in a coming order list).
- Review your local circuit’s current rule. Until the Supreme Court acts, apply your circuit’s precedent: 2d, 3d, 10th allow EAJA fees in habeas; 4th, 5th do not. Other circuits may not have a definitive answer yet.
- Document your work either way. If you are pursuing habeas relief for a detained client, preserve a fee request if your circuit allows it, or note for the record that EAJA fees are unavailable in your jurisdiction and adjust your client’s expectations about cost recovery accordingly.
Disclaimer
This article summarizes legal information and news reporting; it is not legal advice. The analysis reflects the current state of the circuit split as described in secondary sources. Immigration law and policy can change without notice, and the Supreme Court may decline to hear this case entirely. Always verify the current status of Montoya Palacios against the Supreme Court’s official docket and consult a licensed immigration attorney in your jurisdiction before making litigation decisions. The source article linked above contains additional context and analysis you should review.