Daley v. Choate: EAJA Fees Are Available in Immigration Habeas
- Citation
- Daley v. Choate, No. 24-1191 (10th Cir. Nov. 3, 2025) (Federico, J.)
- Court
- U.S. Court of Appeals for the Tenth Circuit
- Decided
- November 3, 2025
- Statute
- 28 U.S.C. § 2241; Equal Access to Justice Act, 28 U.S.C. § 2412(d)
- Holding
- § 2241 habeas actions challenging civil immigration detention are “civil actions” within the meaning of EAJA; prevailing petitioners may recover attorneys' fees and costs.
The Equal Access to Justice Act authorizes prevailing parties in certain civil litigation against the United States to recover attorneys’ fees when the government’s position was not substantially justified. For decades the question whether EAJA applied to immigration habeas brought under § 2241 was unsettled, with circuits divided on the threshold question of whether such a habeas action constituted a “civil action” under the Act.
The Tenth Circuit’s decision in Daley v. Choate takes the question off the table for the Tenth Circuit and aligns the court with the Second, Third, and Ninth Circuits. The petitioner had been detained for 450 days without a bond hearing. The District of Colorado granted habeas and ordered an IJ bond hearing; the IJ released her on bond. Her immigration attorney sought $18,553.92 in EAJA fees. The district court awarded the fees; the government appealed.
The opinion
Judge Federico, writing for the panel, worked through three principal questions. First, is § 2241 immigration habeas a “civil action” within EAJA? Yes — the case proceeded under the Federal Rules of Civil Procedure, sought civil relief against a civil detention, and bore none of the indicia (criminal proceedings, conviction review, sentence challenge) that have led some courts to treat habeas as a separate category for fee-shifting purposes. Second, was the petitioner the “prevailing party”? Yes — the habeas grant materially altered the legal relationship and led to her release. Third, was the government’s position “substantially justified”? On this record, no — the duration of the detention, the absence of meaningful agency review, and the prevailing weight of authority in the circuit all cut against the government.
“The vehicle by which the petitioner sought relief does not change the fundamentally civil character of the controversy.”
The circuit split, narrowing
The Fourth and Fifth Circuits have historically taken a contrary view, treating § 2241 habeas as outside EAJA’s scope. Those circuits’ positions are increasingly anomalous; the Tenth Circuit’s ruling, building on the Third Circuit’s 2024 decision, leaves the four-circuit majority firmly in favor of fee availability. As of this writing, no Supreme Court vehicle has emerged to resolve the remaining split, but practitioners in the majority circuits can now confidently incorporate fee recovery into their case strategy.
Significance
The practical effect of Daley is to materially expand the private bar’s capacity to take immigration habeas cases. With the average § 2241 immigration habeas representing many dozens of attorney hours and the typical detained client unable to pay even a fraction of the rate, fee recovery is often the difference between a case being viable for private counsel and not. Coming amid the 2025 surge in habeas filings — estimated at 8,000 in 2025, up from 222 in 2024 — the timing of the Tenth Circuit’s ruling could not be more consequential.
For the legal-services bar, Daley is also strategically important. EAJA recoveries supplement organizational budgets in ways grant funding cannot. Each EAJA-recovered dollar funds the next petition. In an environment where the demand for habeas representation vastly exceeds nonprofit capacity, that compounding effect matters.
Filed under Post-Removal Detention. Published November 3, 2025.