Appellate Case: 24-1191 Document: 96-1 Date Filed: 11/03/2025 Page: 1 FILED United States Court of Appeals Tenth Circuit PUBLISH November 3, 2025 UNITED STATES COURT OF APPEALS Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
EVA DALEY,
Petitioner - Appellee,
v. No. 24-1191
DAWN CEJA, in her official capacity as Warden of the Aurora Contract Detention Facility owned and operated by GEO Group, Inc.; ROBERT GUADIAN, in his official capacity as Acting Field Office Director, Denver, U.S. Immigration & Customs Enforcement; KRISTI NOEM, in her official capacity as Secretary, U.S. Department of Homeland Security; TODD M. LYONS, in his official capacity as Acting Director of Immigration & Customs Enforcement; PAMELA J. BONDI, in her official capacity as Attorney General, U.S. Department of Justice,
Respondents - Appellants.
------------------------------
HABEAS AND IMMIGRATION LAW SCHOLARS; AMICA CENTER FOR IMMIGRANT RIGHTS; THE NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD; ROBERT F. Appellate Case: 24-1191 Document: 96-1 Date Filed: 11/03/2025 Page: 2
KENNEDY HUMAN RIGHTS; THE CENTER FOR CONSTITUTIONAL RIGHTS; THE NATIONAL IMMIGRANT JUSTICE CENTER; THE AMERICAN IMMIGRATION COUNCIL; THE AMERICAN IMMIGRATION LAWYERS ASSOCIATION,
Amici Curiae. _________________________________
Appeal from the United States District Court for the District of Colorado (D.C. No. 1:22-CV-03043-RM) _________________________________
Kyle W. Brenton, Assistant United States Attorney, Denver, Colorado (Matthew T. Kirsch, Acting United States Attorney, Denver, Colorado; Brian M. Boynton, Principal Deputy Assistant Attorney General, William C. Peachey, Director, and Alexa S. White, Trial Attorney, Civil Division, Department of Justice, Washington, D.C., with him on the briefs), for Respondents-Appellants.
John V. Hoover of Arnold & Porter Kaye Scholer LLP, Washington, D.C. (Sean A. Mirski, R. Stanton Jones, Andrew T. Tutt, and Casey Corcoran of Arnold & Porter Kaye Scholer LLP, Washington, D.C.; William T. Sharon and Nicole L. Masiello of Arnold & Porter Kaye Scholer LLP, New York, New York; Laura P. Lunn and Laura L. Shoaps of Rocky Mountain Immigrant Advocacy Network, Westminster, Colorado, with him on the brief), for Petitioner-Appellee.
Jeremy M. Christiansen, Matt Gregory, and Hayley N. Lawrence of Gibson, Dunn & Crutcher LLP, Washington, D.C., filed an amicus curiae brief for Habeas and Immigration Law Scholars.
Peter Cameron Alfredson and Amelia Christine Dagen of Amica Center for Immigrant Rights, Washington, D.C., filed an amicus curiae brief for Amica Center for Immigrant Rights.
Charity E. Lee and Sarah E. Libowsky of Cleary Gottlieb Steen & Hamilton LLP, New York, New York, filed an amicus curiae brief for The National
2 Appellate Case: 24-1191 Document: 96-1 Date Filed: 11/03/2025 Page: 3
Immigration Project of the National Lawyers Guild, Robert F. Kennedy Human Rights, The Center for Constitutional Rights, The National Immigrant Justice Center, The American Immigration Council, and The American Immigration Lawyers Association. _________________________________
Before HOLMES, Chief Judge, KELLY, and FEDERICO, Circuit Judges. _________________________________
FEDERICO, Circuit Judge. _________________________________
After Eva Daley successfully petitioned for habeas relief from her
immigration detention, she moved for attorneys’ fees under the Equal
Access to Justice Act (EAJA), 28 U.S.C. § 2412. The district court granted
Daley’s fee motion. Respondents (the Government) now appeal that order.
The Government’s appeal presents a single question 1: Does the EAJA
authorize – and therefore waive sovereign immunity for – the award of fees
in habeas actions challenging immigration detention?
Answering that question is a matter of statutory interpretation. The
EAJA authorizes fees in “any civil action.” 28 U.S.C. § 2412(d)(1)(A). We
must therefore decide if habeas actions challenging immigration detention
1 The Government does not appeal the district court’s decision on the
underlying habeas petition. See Op. Br. at 9. Nor does the Government argue on appeal that fees were unwarranted because it was “substantially justified” in opposing Daley’s habeas petition. 28 U.S.C. § 2412(d)(1)(A); Op. Br. 12 n.2. Those issues are therefore not before us. 3 Appellate Case: 24-1191 Document: 96-1 Date Filed: 11/03/2025 Page: 4
are “civil actions.” We conclude they are, so we exercise our jurisdiction
under 28 U.S.C. § 1291 to affirm.
I
Daley is a Guatemalan national. At the age of twelve, she entered the
United States without inspection or admission. Later, as an adult, Daley
was convicted of second-degree murder in California state court. Although
her murder conviction was ultimately vacated and substituted with a
reduced conviction for assault with a deadly weapon, Daley served nearly
fifteen years in prison.
While in state custody, Daley interviewed with U.S. Immigration and
Customs Enforcement (ICE), during which she declined a stipulated order
of removal. In the absence of a stipulated order, ICE decided to immediately
detain Daley upon her release from state prison on November 1, 2021. ICE
then transferred her to a facility in Aurora, Colorado. Roughly three months
later, Daley applied for asylum, withholding of removal, and protection
under the Convention Against Torture.
On November 22, 2022, having spent over a year in immigration
detention without receiving a timeline for release or a bond hearing, Daley
filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241. Through
her petition, Daley sought to challenge her detention. The district court
granted habeas relief and ordered the Government to provide an
4 Appellate Case: 24-1191 Document: 96-1 Date Filed: 11/03/2025 Page: 5
individualized bond hearing to Daley. On January 25, 2023, an immigration
judge held a bond hearing as ordered and released Daley on a $1,500 bond.
Daley had spent 450 days in ICE custody.
Subsequently, Daley moved for attorneys’ fees under the EAJA. The
district court ruled that Daley was entitled to fees and awarded $18,553.92.
This appeal followed.
II
“‘[W]e review the decision to award attorney fees, and the amount
awarded, for abuse of discretion,’ though any legal analysis underlying the
award is reviewed de novo.” First Am. Title Ins. Co. v. Nw. Title Ins. Agency,
906 F.3d 884, 900 (10th Cir. 2018) (quoting Xlear, Inc. v. Focus Nutrition,
LLC, 893 F.3d 1227, 1233 (10th Cir. 2018)). Here, our review is de novo
because only interpretation of the EAJA, a legal question, is at issue.
III
Unless waived, sovereign immunity generally shields the
Government, including agencies and officers in their official capacity, from
suit. Normandy Apartments, Ltd. v. U.S. Dep’t of Hous. & Urb. Dev., 554
F.3d 1290, 1295 (10th Cir. 2009). This includes shielding the Government
from claims for attorneys’ fees. Adamson v. Bowen, 855 F.2d 668, 670 (10th
Cir. 1988) (citing Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 (1983)).
Congress waived that immunity for certain types of fees when it enacted
5 Appellate Case: 24-1191 Document: 96-1 Date Filed: 11/03/2025 Page: 6
the EAJA. Ardestani v. INS, 502 U.S. 129, 137 (1991). The harder question,
and the one we must confront in this appeal, is how to determine which fees
fall within the EAJA’s scope.
When interpreting the scope of a sovereign immunity waiver, we
strictly construe the relevant statutory language in favor of maintaining
immunity. Under this canon of interpretation – sometimes referred to as a
clear statement rule – waivers of immunity encompass only those claims for
which there is “an unmistakable statutory expression of congressional
intent to waive the Government’s immunity.” FAA v. Cooper, 566 U.S. 284,
291 (2012); see also Lane v. Peña, 518 U.S. 187, 192 (1996) (similar). An
unmistakable intent need not be expressed using “magic words” or “in any
particular way.” Dep’t of Agric. Rural Dev. Rural Hous. Serv. v. Kirtz, 601
U.S. 42, 48 (2024) (quoting Cooper, 566 U.S. at 291). No matter how
Congress makes its intent clear, so long as its intent is clear, sovereign
immunity is waived. But if there is any ambiguity in the text of a waiver,
meaning that there is a “plausible” interpretation “preserv[ing] sovereign
immunity,” we must adopt that “plausible” interpretation. Lac du Flambeau
Band of Lake Superior Chippewa Indians v. Coughlin, 599 U.S. 382, 388
(2023) (quoting Cooper, 566 U.S. at 290).
That said, we may not resort to the sovereign immunity canon at the
first sign of any potential ambiguity in the text as this would abdicate our
6 Appellate Case: 24-1191 Document: 96-1 Date Filed: 11/03/2025 Page: 7
responsibility to interpret the statutes in front of us. Cf. Loper Bright
Enters. v. Raimondo, 603 U.S. 369, 385 (2024). Before turning to the canon,
we must exhaust all “traditional tools of statutory construction.” Cooper,
566 U.S. at 291 (quoting Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571,
589 (2008)). After scrutinizing the language “in light of traditional
interpretive tools,” we may discover that what originally appeared
ambiguous has a clear meaning. See id. Put differently, we cannot
reflexively apply the sovereign immunity canon to adopt an immunity-
preserving interpretation simply because that interpretation appears
plausible on preliminary review. We apply the canon only after analyzing
the statutory language and finding it ambiguous.
With these principles in mind, we now proceed to interpret the EAJA.
A
The statutory text is the core of our inquiry, so we start there. See
Kirtz, 601 U.S. at 49. The EAJA authorizes fees against the Government “in
any civil action (other than cases sounding in tort), including proceedings
for judicial review of agency action,” subject to exceptions not applicable
here. 28 U.S.C. § 2412(d)(1)(A). The key question we must answer is
whether habeas petitions challenging immigration detention are “civil
actions.” Since the EAJA does not define “civil action,” we look to the term’s
ordinary meaning at the time of the EAJA’s enactment. M.S. v. Premera
7 Appellate Case: 24-1191 Document: 96-1 Date Filed: 11/03/2025 Page: 8
Blue Cross, 118 F.4th 1248, 1266 (10th Cir. 2024) (citing Food Mktg. Inst.
v. Argus Leader Media, 588 U.S. 427, 433–34 (2019)).
When Congress passed the EAJA in 1980, the notion of a “civil action”
had already existed for at least two hundred years. See Pub. L. 96-481 tit.
II, 94 Stat. 2321, 2325–30 (1980). “Civil action” was a common law “term[]
of art in which [was] accumulated the legal tradition and meaning of
centuries of practice.” Sekhar v. United States, 570 U.S. 729, 733 (2013)
(quoting Morissette v. United States, 342 U.S. 246, 263 (1952)). Congress’s
decision to use “civil action” in the EAJA therefore brought the “old soil” of
that term’s history into the statute. SEC v. Jarkesy, 603 U.S. 109, 125
(2024) (quoting United States v. Hansen, 599 U.S. 762, 778 (2023)). So as “a
settled principle of interpretation,” we must presume that Congress
incorporated the common law understanding of “civil action” into the EAJA.
Sekhar, 570 U.S. at 732.
The concept of a civil action has its roots in the English common law
tradition. Common law recognized civil actions as a distinct category of
legal proceeding based on the division of wrongs into “private wrongs” and
“public wrongs.” 3 William Blackstone, Commentaries *2. Private wrongs
stemmed from the “infringement or privation of the private or civil rights
belonging to individuals . . . and [were] thereupon frequently termed civil
injuries.” Id. To remedy a civil injury, individuals made “application to the[]
8 Appellate Case: 24-1191 Document: 96-1 Date Filed: 11/03/2025 Page: 9
courts of justice; that is, by civil suit or action.” Id. at *3 (emphasis added).
By contrast, public wrongs were those stemming from “a breach and
violation of public rights and duties, which affect the whole community . . .
and are distinguished by the harsher appellation of crimes and
misdemeanors.” Id. at *2; see also 4 Blackstone, supra, at *5 (similar).
Of course, “every public offence is also a private wrong” because “it
affects the individual, and it likewise affects the community.” 4 Blackstone,
supra, at *5. Yet, commentators like Blackstone still considered the
“distinction of crimes from civil injuries [to be] very apparent.” Id. at *6.
Blackstone illustrated this distinction through the example of battery.
Battery has a criminal (public) component since it “disturb[s] the public
peace.” Id. But it also has a separate civil (private) component because the
injured individual could seek a “private remedy . . . for the injury, which he
in particular sustains, and recover a civil satisfaction in damages.” Id.
In sum, English common law defined “civil actions” as actions that
seek redress for an individual’s private injury, or vindication of an
individual’s private right. And to determine if an action satisfies that
definition, the common law focused on the remedy being sought, not the
conduct being challenged.
American courts picked up on this thread and adopted it. For example,
the Supreme Court recognized that civil proceedings are those “which affect
9 Appellate Case: 24-1191 Document: 96-1 Date Filed: 11/03/2025 Page: 10
private rights” in multiple contexts. Watson v. Mercer, 33 U.S. (8 Pet.) 88,
110 (1834); see also Doyle v. London Guarantee & Accident Co., 204 U.S.
599, 605 (1907) (civil contempt is distinguished from criminal contempt
because civil contempt is “chiefly concerned” with protecting individuals’
“private rights and remedies”); Bessette v. W.B. Conkey Co., 194 U.S. 324,
328 (1904) (similar); Bradlie v. Maryland Ins. Co., 37 U.S. (12 Pet.) 378, 402
(1838) (“proceedings of a [] civil nature” are those “to enforce private
rights”).
So too did other courts around the country. The Circuit Court of the
District of Columbia observed that a “civil action” is one “to try a private
right.” United States v. Columbian Ins. Co. of Alexandria, 25 F. Cas. 585,
588 (C.C.D.C. 1821) (No. 14,840). The Kentucky Court of Appeals wrote, “In
general, the enforcement of a private right, or the redress of a private
wrong, is attainable, in a court of justice, only through the instrumentality
of a civil action.” Jones v. Hoffman, 57 Ky. (18 B. Mon.) 656, 656 (1857). And
the Minnesota Supreme Court noted that “the ordinary civil action” is one
that seeks “to redress private wrongs or enforce private rights.” True v.
10 Appellate Case: 24-1191 Document: 96-1 Date Filed: 11/03/2025 Page: 11
True, 6 Minn. 458, 465 (1861). 2 Some states even codified this
understanding, expressly defining civil actions as those based on private
rights or wrongs. E.g., Idaho Const. art. V, § 1 (adopted 1889); Cal. Civ.
Proc. Code § 307 (enacted 1872); Civil Practice Act, § 1, 1871 Mont. Laws
28; 3 N.C. Const. of 1868, art. IV, § 1; Ga. Code § 3177 (1861); 1848 N.Y.
Laws 497, 510.
Legal dictionaries from the time of the EAJA’s passage also accord
with this common law understanding. See Food Mktg. Inst., 588 U.S. at 434
(consulting contemporary dictionaries). One defined “civil action” as an
“[a]ction brought to enforce, redress, or protect private rights,”
encompassing “all types of actions other than criminal proceedings.” Civil
Action, Black’s Law Dictionary (5th ed. 1979). Another likewise defined
“civil action” as one “brought to enforce a civil right” or “for the enforcement
or protection of a private right.” Civil Action, Ballentine’s Law Dictionary
2 See also, e.g., State ex rel. Kochtitzky v. Riley, 101 S.W. 567, 569 (Mo.
1907) (“[T]he phrases, ‘civil case’ and ‘civil suit’ refer to the legal means by which the rights and remedies of private individuals are enforced or protected[.]”); Fenstermacher v. State, 25 P. 142, 142 (Or. 1890) (“A civil action is instituted for the purpose of enforcing a private or civil right, or to redress a private wrong[.]”); Hobbs v. Inhabitants of Lowell, 36 Mass. (19 Pick.) 405, 415 (1837) (Morton, J., dissenting) (tying “civil actions” to “individual injury”). 3 In 1871, Montana was still a territory, but it maintained its definition of “civil action” once it was admitted as a state. Mont. Code Civ. Proc., Part II, tit. I, § 460 (1895). 11 Appellate Case: 24-1191 Document: 96-1 Date Filed: 11/03/2025 Page: 12
(3d ed. 1969). It, too, observed that a civil action “comprehend[ed] every
conceivable cause of action . . . except such as are criminal.” Id. And a third
did the same, defining “civil action” as one “brought to enforce a civil right
or obtain redress for its violation.” Civil Action, Radin Law Dictionary (2d
ed. 1970).
Given the fact that multiple sources – commentators, courts, statutes,
and dictionaries – across such a long period of time have consistently
defined “civil action,” we construe the EAJA in line with that definition. As
used in the EAJA, “civil action” unambiguously refers to any legal action
brought to enforce a private or civil right, or to redress a private wrong.
B
Now that we have defined “civil action,” our next task is to apply that
definition to habeas actions challenging immigration detention.
Again, common law tradition provides a starting point. See Sekhar,
570 U.S. at 732. The common law recognizes a right of “personal liberty,”
defined as the right to be free from “imprisonment or restraint, unless by
due course of law.” 1 Blackstone, supra, at *130. That right is a private one
because it attaches to an individual’s person rather than to the public at
large. Id. at *118. And since a wrong is “nothing else but a privation of
right,” 3 Blackstone, supra, at *2, the violation of personal liberty through
12 Appellate Case: 24-1191 Document: 96-1 Date Filed: 11/03/2025 Page: 13
unlawful detention is a private wrong. Id. at *127. Any action that seeks to
redress this private wrong is a civil action under our construction of the
EAJA. Following this logic, the writ of habeas corpus is a civil action: it is
the common law mechanism used to challenge the legality of detention and
therefore to redress unlawful detentions. Id. at *133; see also 1 Blackstone,
supra, at *131.
The Supreme Court has said as much. A full century before Congress
passed the EAJA, the Court explained that “[t]he writ of habeas corpus is
the remedy which the law gives for the enforcement of the civil right of
personal liberty.” Ex parte Tom Tong, 108 U.S. 556, 559 (1883). For that
reason, “[s]uch a proceeding . . . is, in [the Court’s] opinion, a civil
proceeding.” Id. at 560. In the years that followed, the Court repeatedly and
consistently affirmed this holding. E.g., Santa Clara Pueblo v. Martinez,
436 U.S. 49, 60 (1978) (“Congress clearly has power to authorize civil
actions against tribal officers, and has done so with respect to habeas corpus
relief[.]”); Fay v. Noia, 372 U.S. 391, 423 (1963) (acknowledging “the
traditional characterization of the writ of habeas corpus as an original . . .
civil remedy”), overruled on other grounds by Coleman v. Thompson, 501
U.S. 722 (1991); Riddle v. Dyche, 262 U.S. 333, 335–36 (1923) (“The writ of
habeas corpus is . . . an independent civil suit[.]”); Borrego v. Cunningham,
164 U.S. 612, 618 (1896) (“[A] proceeding in habeas corpus [is] a civil . . .
13 Appellate Case: 24-1191 Document: 96-1 Date Filed: 11/03/2025 Page: 14
proceeding[.]”); Cross v. Burke, 146 U.S. 82, 88 (1892) (“[A] proceeding in
habeas corpus is a civil . . . proceeding.”). 4 These decisions were so extensive
that, by the time the EAJA was enacted in 1980, it was “well settled” under
Supreme Court precedent “that habeas corpus is a civil proceeding.”
Browder v. Dir., Dep’t of Corr. of Ill., 434 U.S. 257, 269 (1978).
Moreover, every federal circuit court existing at the time of the
EAJA’s passage had held that habeas was civil. 5 See, e.g., Mercado v. United
States, 183 F.2d 486, 487 (1st Cir. 1950) (“[H]abeas corpus [] has always
4 See also, e.g., Schlanger v. Seamans, 401 U.S. 487, 490 n.4 (1971)
(“[H]abeas corpus is technically ‘civil[.]’”); Heflin v. United States, 358 U.S. 415, 418 n.7 (1959) (“[A] petition for a writ of habeas corpus is . . . an independent civil suit.” (internal citation omitted)); In re Pirinsky, 70 S. Ct. 232, 232 (1949) (Jackson, J., in chambers) (“[H]abeas corpus always has been regarded as a civil proceeding.”); Fisher v. Baker, 203 U.S. 174, 181 (1906) (“The proceeding is in habeas corpus, and is a civil, and not a criminal, proceeding.”); United States v. Pridgeon, 153 U.S. 48, 59 (1894) (“The habeas corpus proceeding [is] a collateral attack of a civil nature[.]”); Ex parte Lennon, 150 U.S. 393, 397 (1893) (“[A] proceeding in habeas corpus is a civil and not a criminal proceeding[.]”); Ex parte Frederich, 149 U.S. 70, 76 (1893) (“[A] habeas corpus proceeding is a collateral attack, of a civil nature[.]”); Farnsworth v. Montana, 129 U.S. 104, 113 (1889) (“[The] writ of habeas corpus . . . has [been] held to be a civil, and not a criminal, proceeding[.]”); Kurtz v. Moffitt, 115 U.S. 487, 488 (1885) (“A writ of habeas corpus . . . is a civil suit[.]”).
5 The Eleventh Circuit was not established until October 1981, after
the EAJA was enacted. Pub. L. 96-452, 94 Stat. 1994 (1980). The Federal Circuit was similarly established after the EAJA’s enactment, Pub. L. 97- 164, 96 Stat. 25 (1982), and in any event does not have jurisdiction over habeas proceedings. See 28 U.S.C. § 1295; Judd v. Fox, 315 F. App’x 240, 241 (Fed. Cir. 2008). 14 Appellate Case: 24-1191 Document: 96-1 Date Filed: 11/03/2025 Page: 15
been regarded as a civil proceeding[.]”); United States ex rel. Meadows v.
New York, 426 F.2d 1176, 1183 n.9 (2d Cir. 1970) (“Since habeas corpus
proceedings are civil in nature, they are subsumed under the phrase ‘any
civil action.’”); United States ex rel. Thomas v. New Jersey, 472 F.2d 735,
741 (3d Cir. 1973) (“Habeas corpus is a civil proceeding.”); Long v. Robinson,
436 F.2d 1116, 1119 (4th Cir. 1971) (describing habeas corpus as a “civil
process”); Estep v. United States, 251 F.2d 579, 581 (5th Cir. 1958) (“Habeas
corpus petitions . . . are, of course, civil proceedings[.]”); Bowdidge v.
Lehman, 252 F.2d 366, 368 (6th Cir. 1958) (“Habeas corpus is a civil
proceeding[.]”); United States ex rel. Rebenstorf v. Pate, 417 F.2d 1222, 1225
(7th Cir. 1969) (“[T]he federal habeas corpus remedy[] is civil in nature.”);
Burgess v. King, 130 F.2d 761, 762 (8th Cir. 1942) (“Habeas corpus is in its
nature a civil rather than a criminal proceeding[.]”); Collins v. Heinze, 217
F.2d 62, 62 (9th Cir. 1954) (“A habeas corpus proceeding is in the nature of
a civil action[.]”); Hunter v. Thomas, 173 F.2d 810, 812 (10th Cir. 1949)
(“Habeas corpus is a civil proceeding.”); Jackson v. United States, 353 F.2d
862, 865 n.4 (D.C. Cir. 1965) (“Of course, habeas corpus is considered a civil
proceeding[.]”).
To be sure, there are some cases suggesting that habeas is not purely
civil. For instance, in Harris v. Nelson, the Supreme Court accepted that
“habeas corpus proceedings are characterized as ‘civil’” but cast doubt on
15 Appellate Case: 24-1191 Document: 96-1 Date Filed: 11/03/2025 Page: 16
the appropriateness of that characterization. 394 U.S. 286, 293–94 (1969).
The Harris court criticized the “civil” label as “gross and inexact,” and it
opined that habeas “is unique.” Id. at 293–94. Later in Schlanger v.
Seamans, the Court construed the term “civil action” in an unrelated
statute to not include habeas. 401 U.S. at 490 n.4. Both Harris and
Schlanger, however, are readily distinguishable.
Harris dealt narrowly with whether the Federal Rules of Civil
Procedure governing and authorizing discovery applied to habeas actions.
394 U.S. at 289–90. In answering that question, the Harris court focused on
how habeas practice differed from general civil practice. Id. at 294. But
practice and procedure offer little insight into whether an action is civil in
nature in the sense that it is geared to redressing private wrongs. After all,
there are several specialized civil actions that have unique procedures not
applicable to the more typical or classic civil action. Admiralty claims are
one example because they are subject to supplemental rules that no other
civil claims are subject to. See Fed. R. Civ. P., Supp R. for Admiralty.
In fact, the EAJA itself makes clear that its waiver of sovereign
immunity extends to actions that do not follow the normal rules of civil
procedure. The EAJA expressly includes “proceedings for judicial review of
agency action” within the broader umbrella of “civil action.” 28 U.S.C.
§ 2412(d)(1)(A). These proceedings include social security appeals. And
16 Appellate Case: 24-1191 Document: 96-1 Date Filed: 11/03/2025 Page: 17
social security appeals are governed by unique procedural rules. See Fed.
R. Civ. P., Supp. R. for Soc. Sec. The EAJA also extends its waiver to cases
brought in the United States Court of Appeals for Veterans Claims. 28
U.S.C. § 2412(d)(2)(F). But that court does not have procedures resembling
the Federal Rules of Civil Procedure. See U.S. Vet. App. R.,
https://perma.cc/FVD2-7BZF (posted Feb. 24, 2025). Statutory context,
then, demonstrates that differences in procedure do not inform our
assessment of whether habeas is a “civil action” under the EAJA.
Meanwhile, Schlanger construed the meaning of “civil action” by
applying legislative history. 401 U.S. at 490 n.4; see also Stafford v. Briggs,
444 U.S. 527, 542–43 (1980) (discussing Schlanger). When construing
waivers of sovereign immunity, though, we focus on the meaning of the text
and cannot attempt to divine Congress’s intentions through legislative
history. Kirtz, 601 U.S. at 49. In any case, Schlanger construed another
statute, not the EAJA, so its analysis of legislative history has no bearing
on the question before us now.
More fundamentally, there is still an overwhelming judicial
consensus that habeas actions are civil actions even when considering
Harris and Schlanger. There need not have been unanimity among the
courts for us to find that habeas is unambiguously a “civil action.” It is
enough that “‘nearly all[] of the’ relevant judicial decisions have given a
17 Appellate Case: 24-1191 Document: 96-1 Date Filed: 11/03/2025 Page: 18
term or concept a consistent judicial gloss.” Bruesewitz v. Wyeth LLC, 562
U.S. 223, 243 (2011) (emphasis added) (quoting Merck & Co. v. Reynolds,
559 U.S. 633, 659 (2010) (Scalia, J., concurring)). That is true here, where
courts have given a “consistent judicial gloss” to the idea that habeas is
civil. Id. We can safely presume that Congress intended to incorporate that
judicial gloss into the EAJA. Id.; see also Davis v. Mich. Dep’t of Treasury,
489 U.S. 803, 813 (1989). Combining that judicial perspective with common
law history shows that habeas is unambiguously civil, at least in the
abstract.
The preceding conclusion does not fully resolve the issue before us.
After all, petitioners do not file habeas actions in the abstract. They file
habeas actions to challenge particular restraints on their freedom. Our
precedent teaches that the nature of the challenged restraint matters.
In Ewing v. Rodgers, 6 we held that “a habeas petition challenging
confinement arising from a criminal judgment is not a ‘civil action’” within
the meaning of the EAJA. 826 F.2d 967, 971 (10th Cir. 1987) (footnote
omitted). We reached that conclusion because petitioners in such habeas
6 We reiterated Ewing’s holding in Sloan v. Pugh, 351 F.3d 1319, 1322–23 (10th Cir. 2003), but did not expand upon its reasoning. We therefore do not separately address Sloan. 18 Appellate Case: 24-1191 Document: 96-1 Date Filed: 11/03/2025 Page: 19
cases have access to appointed counsel, and their criminal imprisonment
creates a “custodial incentive” to sue. Id. at 971 & n.5. Neither point is
inherent to habeas; they are both characteristics that stem from the
underlying criminal judgment. As such, Ewing requires us to consider the
underlying proceedings when deciding if a habeas action is civil under the
EAJA. 7
With that foundation established, we can resolve the issue raised by
this appeal. For the reasons explained above, habeas is civil. So too are the
underlying proceedings being challenged. Immigration detention is an
“aspect of the deportation process.” Demore v. Kim, 538 U.S. 510, 523 (2003).
In turn, a deportation proceeding itself is “a purely civil action.” INS v.
Lopez-Mendoza, 468 U.S. 1032, 1038 (1984). As a result, immigration
detention is civil. Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Because both
habeas and the underlying immigration proceedings are civil, habeas
actions challenging immigration detention are purely civil. Ewing, which
addressed criminal habeas rather than immigration habeas, does not
require that we hold otherwise. See Vacchio v. Ashcroft, 404 F.3d 663, 672
7 To the extent the Government argues that Ewing holds habeas to be
categorically non-civil, it is incorrect. Ewing held only that habeas actions are not civil “in all instances,” and it identified habeas actions challenging criminal imprisonment to be one such instance. 826 F.2d at 969. 19 Appellate Case: 24-1191 Document: 96-1 Date Filed: 11/03/2025 Page: 20
(2d Cir. 2005) (finding that precedent excluding criminal habeas from the
EAJA did not control the question of whether immigration habeas fell
within the EAJA’s scope).
We therefore hold that, under the EAJA, habeas actions challenging
immigration detention are unambiguously “civil actions.” The EAJA
authorizes the award of attorneys’ fees to petitioners who prevail against
the Government in such actions.
C
Because text, common law, and judicial history so strongly
characterize immigration habeas actions as civil, we need not turn to any
other tools of statutory interpretation. Nonetheless, we also observe that
the EAJA’s stated statutory purpose supports our conclusion.
As a threshold matter, statutory purpose is relevant to our
interpretation of sovereign immunity waivers. The Supreme Court has
previously endorsed the consideration of statutory purpose. West v. Gibson,
527 U.S. 212, 222 (1999). While the Court has subsequently disavowed
legislative history when interpreting waivers, Kirtz, 601 U.S. at 49, it has
not rejected the use of purpose. Certainly, the Court’s instructions to
disregard legislative history prevents us from using such history to discern
purpose. But here, Congress included an express statement of purpose in
the bill enacting the EAJA. Pub. L. 96–481, § 202(c), 94 Stat. 2321, 2325.
20 Appellate Case: 24-1191 Document: 96-1 Date Filed: 11/03/2025 Page: 21
There is no need to guess at purpose through legislative history. The
purpose is right there in the text, passed by both chambers of Congress and
signed by the President.
The EAJA’s stated purposes are twofold: firstly “to diminish the
deterrent effect of seeking review of, or defending against, governmental
action by providing in specified situations an award of attorney fees, expert
witness fees, and other costs against the United States”; and secondly “to
insure [sic] the applicability in actions by or against the United States of
the common law and statutory exceptions to the ‘American rule’ respecting
the award of attorney fees.” Id. The parties do not address the second
purpose, so we focus on the first.
Habeas petitions play an important role in challenging – and
deterring – unlawful detention. Yet, the high cost of retaining an attorney
to file a petition can dissuade many people from doing so. That cost barrier
is especially high in the immigration detention context. Immigration is a
sprawling and complicated area of law that can be difficult to navigate
without the aid of counsel. It is also difficult for those in immigration
detention to afford counsel because they are unable to work while detained.
See Ingrid V. Eagly & Steven Shafer, A National Study of Access to Counsel
in Immigration Court, 164 U. Pa. L. Rev. 1, 35 (2015). The availability of
21 Appellate Case: 24-1191 Document: 96-1 Date Filed: 11/03/2025 Page: 22
EAJA fees in habeas actions challenging immigration detention therefore
plays an important role in lowering financial barriers to filing such actions.
Permitting fees would incentivize private counsel to accept
representation of indigent, immigration detainees. It would also boost the
availability of pro bono services in this area. Although pro bono counsel are
willing to represent clients free of charge, their services are not costless.
Instead, pro bono counsel must secure their funding from sources other than
their clients. For legal services organizations that already offer pro bono
immigration services, EAJA fees would supplement their funding streams
and provide an opportunity for them to expand their services. See Amica
Ctr. Am. Br. at 20–23. For organizations that did not previously offer
immigration services due to lack of funding, the availability of fees could
enable them to offer immigration services for the first time. Id.
The Government suggests that the EAJA’s fee incentives are
unnecessary in the context of habeas challenges to immigration detention,
so statutory purpose does not favor permitting such fees. For one, the
Government claims that the Criminal Justice Act authorizes district courts
to appoint counsel for indigent individuals challenging their immigration
detention through habeas. Reply Br. at 25 (citing 18 U.S.C.
§ 3006A(a)(2)(B)). However, that proposition is both contested and
underdeveloped since the Government raised it for the first time in reply,
22 Appellate Case: 24-1191 Document: 96-1 Date Filed: 11/03/2025 Page: 23
so we do not consider the argument. See United States v. Wells, 739 F.3d
511, 530 n.27 (10th Cir. 2014).
The Government separately contends that detention status gives
individuals a “custodial incentive” to challenge their immigration detention.
It is true that we considered “custodial incentives” in the past when we held
that EAJA fees were not available in habeas actions challenging criminal
imprisonment. Ewing, 826 F.2d at 971 & n.5. But we also explicitly
distinguished the custodial incentive in cases of criminal imprisonment
from the incentive in cases involving immigration. Id. Once a criminal
judgment is affirmed on appeal, the only way to seek release from the courts
is to file a habeas petition. There is no other choice.
When it comes to immigration detention, though, an individual can
avoid continued confinement by agreeing to removal. See 8 U.S.C § 1226(a)
(authorizing immigration detention “pending a decision on whether the
alien is to be removed from the United States”). Thus, if that individual
does not have the means to hire an attorney to challenge her detention, she
may be forced to accept deportation in exchange for being released from
custody, even if she has a right not to be detained and to remain in the
United States. The availability of EAJA fees in that circumstance is vital to
preserving the individual’s ability to challenge her detention.
23 Appellate Case: 24-1191 Document: 96-1 Date Filed: 11/03/2025 Page: 24
Experience, too, illustrates the difference between criminal and
immigration habeas. As the Ewing court observed, “[t]he volume of habeas
petitions processed in the federal courts . . . suggests that there is little, if
any, economic deterrent in seeking review of the legality of criminal
confinement.” Ewing, 826 F.2d at 971. The volume of habeas petitions
challenging immigration detention is not so high. According to ICE’s own
statistics, there were approximately 38,000 immigrants in detention at the
end of fiscal year 2024. U.S. Immigration and Customs Enforcement, FY
2024 Detention Statistics, https://perma.cc/FA4X-FZ7S. But court statistics
show that just 448 habeas petitions were filed on behalf of alien detainees
in calendar year 2024. U.S. Courts, Statistical Tables for the Federal
Judiciary C-2 (Dec. 31, 2024 reporting period), https://perma.cc/E4E3-
JHJF. Interpreting the EAJA to allow fees in immigration habeas actions
therefore furthers its statutory purpose.
IV
We next address the Government’s remaining arguments, which we
find to be unpersuasive.
The thrust of the Government’s position is that habeas is not a civil
action because, by its inherent nature, habeas is a special form of hybrid
action with both civil and criminal characteristics. According to the
24 Appellate Case: 24-1191 Document: 96-1 Date Filed: 11/03/2025 Page: 25
Government, that hybrid nature exists regardless of whether the
underlying proceedings being challenged are civil or criminal. This position
cannot square with the history of the term “civil action” that we catalogued
above, nor with the text of the EAJA.
First, the Government’s support for its hybrid thesis comes almost
exclusively from cases recognizing that habeas is procedurally distinct from
the average civil case. Op. Br. at 19–23. As we already explained earlier in
this opinion, though, the fact that the EAJA includes “proceedings for
judicial review of agency action” renders procedural differences irrelevant.
Supra Section III.B.1.
Second, the Government argues that all habeas actions are of the
same nature because “the essence or function of the habeas application [is]
to seek release.” Reply Br. at 17 (quoting Obando-Segura v. Garland, 999
F.3d 190, 194 (4th Cir. 2021)). That argument is correct as far as it goes.
But it cuts against the Government’s position. The act of seeking release
from unlawful custody is civil because unlawful custody is a private wrong.
See 1 Blackstone, supra, at *130; 3 Blackstone, supra, at *127. So, if the
Government’s argument about the essential nature of habeas controlled,
that argument would support the conclusion that all habeas actions are
civil, not that all habeas actions are hybrid.
Third, the Government takes issue with the fact that many of the
25 Appellate Case: 24-1191 Document: 96-1 Date Filed: 11/03/2025 Page: 26
cases in which courts have held habeas to be civil took place in contexts
other than sovereign immunity. To the contrary, the fact that habeas has
been held to be civil in so many diverse contexts strengthens our conclusion
that habeas is civil in this context, too. Given that habeas has uniformly
been understood as civil in virtually every area of law, it would be unusual
for Congress to implicitly single out the attorneys’ fees context as the sole
area in which habeas is not civil.
Finally, the Government encourages us to follow the Fourth and Fifth
Circuits in finding that habeas is a hybrid proceeding no matter the nature
of the underlying detention. See Obando-Segura, 999 F.3d 190 (4th Cir.
2021); Barco v. Witte, 65 F.4th 782 (5th Cir. 2023). However, neither the
Fourth nor Fifth Circuits conducted the type of close historical analysis that
undergirds our conclusion here, and we respectfully disagree with the path
that each took to conclude that immigration habeas actions are civil-
criminal hybrids.
In Obando-Segura, the Fourth Circuit primarily relied on three cases
to reach its holding: the Supreme Court’s decisions in Harris and Schlanger,
and the Fourth Circuit’s own decision in O’Brien v. Moore, 395 F.3d 499 (4th
Cir. 2005). We have already explained why Harris and Schlanger do not
establish that habeas is hybrid under the EAJA. Supra Section III.B.1. And
O’Brien dealt with habeas actions challenging criminal imprisonment, not
26 Appellate Case: 24-1191 Document: 96-1 Date Filed: 11/03/2025 Page: 27
immigration detention. O’Brien held that habeas actions challenging
criminal imprisonment were hybrid specifically because those actions
“assume[] part of the underlying case’s criminal nature.” 395 F.3d at 505.
Its focus on the nature of the underlying detention is therefore consistent
with our reasoning here.
Obando-Segura declined to apply this aspect of O’Brien because
O’Brien did not specifically differentiate habeas actions challenging
criminal detention from those challenging civil detention. Obando-Segura,
999 F.3d at 194. Apart from O’Brien’s silence on the issue, Obando-Segura
identifies no other source of non-civil character in habeas actions
challenging immigration detention. Perhaps the Obando-Segura court
thought itself bound by O’Brien’s silence. We certainly are not, and we do
not find it persuasive to read so much into O’Brien’s silence, as the panel
there may not have had occasion to draw any distinction between the two
types of habeas. See In re Cox Enters., Inc. Set-top Cable Television Box
Antitrust Litig., 835 F.3d 1195, 1212 (10th Cir. 2016).
We find the Fifth Circuit’s decision in Barco to be of limited assistance
as well. The extent of Barco’s analysis was to cite four cases (including
O’Brien and Ewing, which we have discussed above) in which courts held
that habeas petitions challenging criminal imprisonment were civil-
criminal hybrid actions. Barco, 65 F.4th at 785 & n.1. Barco did not consider
27 Appellate Case: 24-1191 Document: 96-1 Date Filed: 11/03/2025 Page: 28
how habeas petitions challenging immigration detention might be different.
For this reason, we do not find Barco to be compelling.
In a variation of its main argument, the Government suggests that
our decision interpreting the Prison Litigation Reform Act in McIntosh v.
U.S. Parole Commission, counsels in favor of interpreting the EAJA to avoid
“case-by-case” adjudication of different types of habeas petitions. Reply Br.
at 15 (citing McIntosh, 115 F.3d 809 (10th Cir. 1997)). Essentially, the
Government advocates for a categorical approach. That is, if a category
contains both purely civil cases and civil-criminal hybrid cases, EAJA fees
are unavailable in all the cases in that category. Were we to adopt that
approach, all habeas would be beyond the EAJA’s reach because habeas
actions challenging criminal imprisonment are not purely civil. See Ewing,
826 F.2d at 971.
The problem is that this approach depends on McIntosh’s analysis of
the Prison Litigation Reform Act, which uses the phrase “a civil action.” 115
F.3d at 811 (emphasis added). The EAJA uses the phrase “any civil action.”
28 U.S.C. § 2412(d)(1)(A) (emphasis added). This difference is meaningful.
As we have held, the use of the modifier “any” before a term in the EAJA
“broadens the scope of” that term. Nelson v. United States, 40 F.4th 1105,
1113 (10th Cir. 2022). The term “any civil action” refers to civil actions of
28 Appellate Case: 24-1191 Document: 96-1 Date Filed: 11/03/2025 Page: 29
“whatever kind.” Id. at 1115 (collecting cases). That includes immigration
habeas actions, which are purely civil, even if they are grouped in the same
category as criminal habeas actions, which are not.
What is more, “courts ‘are not at liberty to create an exception where
Congress has declined to do so.’” Freytag v. Comm’r, 501 U.S. 868, 874,
(1991) (quoting Hallstrom v. Tillamook Cnty., 493 U.S. 20, 27 (1989)).
Congress included just one categorical exception in the EAJA: “cases
sounding in tort.” 28 U.S.C. § 2412(d)(1)(A). The EAJA contains no other
categorical exception, much less one for habeas. In fact, the word “habeas”
does not even appear in its text. See id. We cannot read exceptions into the
EAJA that are unsupported by the text. Accordingly, we reject the
categorical approach proposed by the Government.
Lastly, the sovereign immunity canon or clear statement rule, which
would instruct us to adopt the Government’s preferred interpretation due
to ambiguity in the text, does not compel a different result. Because we
conclude that habeas actions challenging immigration detention
unambiguously fall within the EAJA’s ambit, we are not required to accept
the Government’s interpretation. Regardless, under the Government’s
preferred construction of the EAJA – that fees are available “only [in] those
cases that are wholly or purely civil in nature,” Op. Br. at 24 – fees would
29 Appellate Case: 24-1191 Document: 96-1 Date Filed: 11/03/2025 Page: 30
still be available in immigration habeas since such habeas actions are
purely civil.
V
The EAJA may be a broad statute, but a statute is not ambiguous just
because it is broad. Here, we read the EAJA’s broad language to
unambiguously authorize fees in habeas actions challenging immigration
detention.
AFFIRMED.