The Denver-based federal appeals court ruled on Monday that the law allowing attorneys to recover their costs for prevailing against the government does apply to successful legal challenges to immigration detention.

A three-judge panel of the U.S. Court of Appeals for the 10th Circuit acknowledged a decision to the contrary would deter legal representation for detainees who face high hurdles to contest prolonged detentions on their own.

“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,” wrote Judge Richard E.N. Federico in the Nov. 3 opinion. “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.”

The 10th Circuit’s decision comes at a time when a wave of judges has ruled against the government’s expanded detention of noncitizens. POLITICO reported last week that judges have ruled more than 200 times that the government is unlawfully applying its detention authority. Multiple federal judges in Colorado have also ordered relief for those contesting their detentions in recent months.

The specific issue for the 10th Circuit was whether judges may award attorney’s fees in successful “habeas corpus” cases, a longstanding legal tool used to challenge one’s confinement. While the Equal Access to Justice Act provides a general mechanism to compensate prevailing attorneys “in any civil action,” the 10th Circuit had yet to answer the question: Is a habeas challenge a civil action?

Eva Daley, a citizen of Guatemala, filed a habeas petition in 2022. U.S. Immigration and Customs Enforcement detained her in November 2021, and Daley repeatedly sought release while her immigration proceedings unfolded. The requests were denied as Daley’s asylum and torture-protection claims were evaluated.

After 430 days in detention, U.S. District Court Senior Judge Raymond P. Moore ordered that the government bring Daley before an immigration judge to evaluate her suitability for release. He relied on a string of other decisions out of Colorado finding that prolonged immigration detention can amount to a constitutional violation at some point.

Daley’s counsel then sought attorney fees for prevailing. In a March 2024 order, Moore agreed with a recent decision from U.S. District Court Judge Charlotte N. Sweeney, who analyzed immigration-related habeas proceedings and found they qualified as civil actions.

“An immigration habeas proceeding, such as Petitioner’s, does not bear the hallmarks of a criminal proceeding,” Moore wrote.

On appeal to the 10th Circuit, the government conceded habeas proceedings are not criminal, but nor are they civil because they are “unique.”

“Looking at the dictionaries, both contemporary and current, they almost universally, do they not, draw a distinction between ‘civil means not criminal’?” asked Chief Judge Jerome A. Holmes during oral arguments. “And habeas proceedings are not criminal, right?”

Federico observed it matters why someone is confined in the first place and is seeking habeas relief.

“If someone is in custody pursuant to a criminal proceeding, that means they have a sentence,” he said. “Compared to someone, as here, Ms. Daley in immigration, she’s in detention until her proceedings expire. … Why isn’t that important when we consider the context?”

Multiple outside groups weighed in on the case. The Washington, D.C.-based Amica Center for Immigrant Rights told the 10th Circuit that it regularly files habeas petitions that are a “critical lifeline” for those seeking to litigate their immigration cases out of custody.

“Immigration detention can thus place detained noncitizens in a paradoxical negative feedback loop: being detained makes it harder for them to find an attorney, but being unrepresented likewise makes it harder for them to get out of detention,” wrote the center. Beyond nonprofit immigration law firms, the availability of attorney fees “motivates private attorneys to bring immigration habeas cases and fill a substantial void in legal representation for detained noncitizens.”

The 10th Circuit panel concluded habeas actions challenging immigration detention are “purely civil.” Therefore, attorneys who successfully bring such cases are entitled to their costs.

Federico noted that outcome aligned with the goal of the Equal Access to Justice Act, which is to reduce the costs of challenging the legality of governmental action.

“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,” he wrote. “It is also difficult for those in immigration detention to afford counsel because they are unable to work while detained.”

The attorney fee mechanism, Federico continued, could help fund organizations that already offer immigration-related representation and also incentivize other firms to take on cases. Otherwise, detainees without attorneys could potentially agree to deportation even if they had a strong case to remain in the country.

The financial incentive “is vital to preserving the individual’s ability to challenge her detention,” Federico concluded.

A spokesperson for the U.S. Attorney’s Office said the government had no comment on the decision.

Peter Alfredson, an attorney with the Amica Center for Immigrant Rights who submitted the center’s brief to the 10th Circuit, said the decision was important given the “ever-growing numbers of noncitizens (in) cruel, dangerous, and often unconstitutional immigration detention.”

The government’s data showed nearly 60,000 people in immigration detention as of Sept. 21, a roughly 58% increase over the prior year.

The case is Daley v. Ceja et al.