Fee Retrenchment in Immigration Habeas

For noncitizens facing removal, habeas corpus provides one of a very few avenues for Article III review. And, decades, proceedings have been interpreted as falling under the ambit Equal Access to Justice Act (EAJA), which award attorneys’ fees prevailing parties in suits against federal government. But this understanding is being challenged, threatening judicial backstop executive and legislative overreach immigration. Reducing ability lawyers recover their these circumstances will reduce number quality challenges by individuals detained while they await removal—a particularly salient worry given recent history aggressive enforcement misconduct U.S. Immigration Customs Enforcement. The demonstrates that reading out from EAJA best understood an example courts’ jurisprudential shift private civil rights—that is, rights retrenchment movement. This case study also shows how non-acquiescence permits agencies selectively tee up issues magnify structural power differences between them face litigation. The then applies procedural justice lens normatively assess whether should cover immigration habeas. Using Mathews v. Eldridge framework inquiry, identifies strong interests at stake, value process, government’s interest, mapping factors accuracy, efficiency, participation norms.