Gomez Barco v. Witte, 65 F.4th 782

Appellants Brigith Dayana Gomez Barco and Sybreg Valentina Castro Balza are Venezuelan nationals who overstayed nonimmigrant admissions and were convicted of crimes; immigration judges ordered their removal to Venezuela.
Each was detained by DHS and DHS sought travel documents from Venezuela, representing removal was likely in the foreseeable future.
Both filed habeas petitions under 28 U.S.C. § 2241; the district courts granted the petitions and released them from removal orders.
After prevailing, each moved for attorney’s fees under the Equal Access to Justice Act (EAJA); magistrate judges recommended denial on the ground that EAJA does not apply to § 2241 actions.
District courts denied the fee motions on alternate grounds, finding the Government’s positions were substantially justified; appellants appealed.
The Fifth Circuit affirmed, holding the EAJA does not waive sovereign immunity for attorney’s fees in § 2241 habeas proceedings because habeas is a hybrid, not a purely civil, action; the court did not reach substantial-justification questions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether EAJA waives sovereign immunity to allow attorney’s fees for prevailing § 2241 habeas petitions	EAJA’s waiver for "civil actions" covers habeas, so prevailing habeas petitioners may recover fees	Habeas proceedings are hybrid (not purely civil); EAJA’s civil-action waiver does not unequivocally cover habeas	EAJA does not apply to § 2241 habeas; no waiver of sovereign immunity — affirmed
Whether the district courts erred in denying fees on the alternate ground that the Government’s position was substantially justified	Appellants: Government’s position was not substantially justified, so fees should be awarded	Government: its position was substantially justified	Court did not decide; unnecessary because EAJA inapplicable

Pierce v. Underwood, 487 U.S. 552 (establishes "substantially justified" standard for EAJA)
Lane v. Pena, 518 U.S. 187 (waiver of sovereign immunity must be express and unequivocal)
Ardestani v. I.N.S., 502 U.S. 129 (EAJA is a limited waiver allowing fees in specified civil actions)
United States v. Williams, 514 U.S. 527 (ambiguities in waiver construed in favor of the sovereign)
O’Brien v. Moore, 395 F.3d 499 (4th Cir.) (EAJA’s waiver does not extend to habeas; habeas is hybrid)
Ewing v. Rodgers, 826 F.2d 967 (10th Cir.) (treats habeas as a hybrid proceeding for EAJA purposes)
United States v. Johnston, 258 F.3d 361 (5th Cir.) (recognizes habeas as hybrid with civil and criminal characteristics)
In re Crittenden, 143 F.3d 919 (5th Cir.) (habeas proceedings are hybrid and not adequately described as purely civil)