Hernandez v. BondiHernandez v. Bondi
BACKGROUND
Petitioner initiated this action on October 24, 2025, seeking a writ of habeas corpus. See Petition, Dkt. 1. On November 19, 2025, the Court granted the Petition for
Petitioner now seeks attorney fees and other expenses pursuant to the EAJA,
LEGAL STANDARD
The EAJA provides for an award of attorney fees to private litigants who prevail in civil actions against the United States and timely file a petition for fees.
The EAJA provides for an award of “reasonable” attorney fees.
The prevailing party bears the burden to prove the fee amount requested is reasonable and must submit documentation in support of the fee request.
ANALYSIS
A. Substantial Justification
Respondents do not dispute that Petitioner is the prevailing party in this action, that his motion is timely, or that no special circumstances exist that would make a fee award unjust.1 Rather, they argue their legal position was substantially justified, even while acknowledging that “a number of district courts around the country, including this Court, have ruled squarely against [their] position.” Resp. Opp’n, p. 2, Dkt. 23. They contend that the emergence of “a national circuit split,” the absence of controlling Ninth Circuit authority, and their reliance on then-existing Board of Immigration Appeals precedent together made their position one a reasonable person
A position is substantially justified if it is “justified to a degree that could satisfy a reasonable person,” which requires a reasonable basis in both law and fact. Pierce v. Underwood, 487 U.S. 552, 565 (1988). The inquiry has two components. The Court considers both the underlying agency conduct that gave rise to the litigation and the government’s position during the litigation itself. Ibrahim v. U.S. Dep’t of Homeland Sec., 912 F.3d 1147, 1168 (9th Cir. 2019) (en banc); see
Respondents fail to carry this burden. Respondents’ decision to detain Petitioner without bond—and thousands more like him—represented an abrupt and “radical departure from the historical treatment of noncitizens who entered the United States without inspection.” Salazar v. Noem, No. 8:26-CV-44, 2026 WL 594606, at *1 (D. Neb. Mar. 3, 2026); see also Garro Pinchi v. Noem, 813 F. Supp. 3d 973, 997 (N.D. Cal. 2025) (citing Castañon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048, 1062 n.13 (7th Cir. 2025)). For the thirty years following the 1996 amendments to the Immigration and Nationality Act, and across five presidential administrations, the government treated noncitizens who entered without inspection and had since been living in the interior as detained under
The agency offered no contemporaneous explanation for that change. It gave no public rationale when the practice shifted. When courts asked for one, the answers were inconsistent. In some cases the agency pointed to the availability of detention beds, in others to expedited removal, and in others it offered no basis the court could identify. Garro Pinchi, 813 F. Supp. 3d at 996–97. Not until July 2025, two months after the practice had already changed, did Immigration and Customs Enforcement issue the internal memorandum announcing that the agency had “revisited its legal position” and would treat
Respondents’ reliance on Board of Immigration Appeals precedent does not help them. The Board adopted the new interpretation in Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (BIA 2025), in September 2025, after the agency had issued its guidance and after the Board itself had rejected the theory in unpublished decisions
Respondents’ remaining argument is that the division of authority among the courts of appeals shows their reading of the statute was one a reasonable person could adopt. The statutory question is not a simple one. The Ninth Circuit has since observed that “no reading of the complicated and interrelated textual provisions at issue here is without some shortcomings.” Rodriguez Vazquez, 2026 WL 2196424, at *3. The argument nonetheless fails for three reasons.
First, the decisions Respondents rely upon came too late. The Fifth Circuit decided Buenrostro-Mendez v. Bondi, 166 F.4th 494, on February 6, 2026, and the Eighth Circuit decided Avila v. Bondi, 170 F.4th 1128, on March 25, 2026. Both postdate Petitioner’s detention, this Court’s judgment, and Respondents’ notice of appeal. Respondents may rely on the reasoning of those decisions insofar as it bears on whether their position was reasonable when they took it. They may not rely on the existence of the decisions themselves, which supplied no justification for detaining Petitioner in October 2025 or for defending that detention in this Court the following month. See Merlo Puerto v. Leeper, --- F.Supp.3d ----, 2026 WL 1600665, at *5 (E.D.N.Y. June 4, 2026).
Second, the division among the circuits is lopsided, and it has now been resolved here. The Second, Sixth, Tenth, and Eleventh Circuits have rejected
Respondents point to authority treating a division among courts as itself strong evidence of substantial justification. See Kadidiatou D. v. Easterwood, No. 26-CV-1218, 2026 WL 969017, at *1 (D. Minn. Apr. 10, 2026). But the Ninth Circuit treats the novelty of a question as one factor among several. Ibrahim, 912 F.3d at 1168. A contrary rule would let an agency insulate almost any new position from EAJA liability by litigating widely enough to produce disagreement somewhere.
Third, the difficulty the Ninth Circuit described does not aid Respondents. That court found the statutory text imperfect on both sides, but it resolved the remaining doubt against the government because of the settled practice Respondents abandoned. That no administration in three decades had found the mandatory-detention duty Respondents now assert was, in the court’s words, “strong evidence that it does not exist.” Rodriguez Vazquez, 2026 WL 2196424, at *25 (quoting Learning Resources, Inc. v. Trump, 607 U.S. 229, 250 (2026)). That reasoning cuts against Respondents, not for them.
Respondents have not shown that either the agency’s conduct or their litigation position was substantially justified, and nothing in the record suggests special circumstances that would make an award unjust. Petitioner is entitled to an award of fees under
B. Reasonableness of Fees
Respondents ask the Court to measure this request against the fee awards entered in the related habeas petitions filed after the same enforcement operation, which have generally fallen near $5,000, and to cap the award here at that figure. Resp’ts’ Opp’n at 7–8, Dkt. 23. The Court declines to do so.
The question under the EAJA is whether the fees sought are reasonable on this record. Hensley, 461 U.S. at 433. What other petitioners’ counsel charged in other cases is not the measure, and Respondents cite no authority making it one. The related motions were unopposed, and Respondents filed notices of non-opposition in every
Petitioner has in any event offered an unrebutted explanation for the difference. Counsel who handled more than twenty of these petitions in parallel developed the research, the briefing architecture, the supporting exhibits, and the procedural checklists once, then adapted them across the group, so that the marginal cost of each additional petition was lower. See Decl. of Nikki Ramirez-Smith ¶¶ 4–9, Dkt. 24-1, Ex. C. Counsel here had no comparable inventory of cases across which to spread that work. That the related cases produced lower per-client fees reflects how those cases were litigated. It does not set a ceiling for a case handled on its own.
None of this relieves the Court of its independent obligation to review the rates charged and the hours claimed. That obligation exists whether or not a motion is opposed, and the reductions described below rest on the record in this case rather than on any comparison to the awards entered in the related matters.
1. Hourly Rates
Petitioner seeks enhanced rates of $490 per hour for Ms. Moss, $330 per hour for Ms. Renshaw, and $275 per hour for Ms. Vasquez, a paralegal. The EAJA caps attorney fees at $125 per hour unless the Court finds a higher rate justified by an increase in the cost of living or by a special factor such as the limited availability of
A specialty in immigration law can supply the special factor where the litigation demands expertise in the “esoteric nooks and crannies of immigration law . . . to give the alien a fair shot at prevailing.” Thangaraja v. Gonzales, 428 F.3d 870, 876 (9th Cir. 2005) (quoting Muhur v. Ashcroft, 382 F.3d 653, 656 (7th Cir. 2004)). The enhancement is available where counsel possesses distinctive knowledge developed through a practice specialty, those skills were needed in the litigation, and they were not available elsewhere at the statutory rate. Love v. Reilly, 924 F.2d 1492, 1496 (9th Cir. 1991).
Those conditions are satisfied here. The petition required working through the relationship between
The size of the enhancement is a separate question. An enhanced rate must still be tied to prevailing market rates for the kind and quality of the services furnished.
Petitioner’s market evidence consists of declarations from six Idaho immigration practitioners reporting rates of $500, $350, $350, $350, $300, and $250 per hour. See Dkt. 22-2, Ex. C. Each declaration states the practitioner’s standard rate, but none explains the kind of work to which the higher figures apply. Respondents observe, correctly, that most of the declarants charge $350 or less, and that Mr. Christensen, who referred this matter to undersigned counsel because he does not practice in federal court, charges $250. Resp’ts’ Opp’n at 5, Dkt. 23. The highest rate sought in any of the related petitions arising from the same enforcement operation was $300. On this record the Court finds that $300 per hour reflects the prevailing market rate for immigration habeas work in this district, and it will allow that rate for Ms. Moss.
Ms. Renshaw stands differently. The special factor turns on whether the
The requested paralegal rate presents a different problem. Paralegal time is recoverable at prevailing market rates. Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 590 (2008). But Petitioner’s market evidence is limited to attorney rates. Ms. Vasquez’s declaration describes her duties and her five years of immigration experience, Dkt. 22-4, and the Court does not doubt that her work required familiarity
2. Hours Expended
After the withdrawal of 1.9 hours of clerical time, Petitioner claims 68.30 hours, consisting of 18.90 hours for Ms. Moss, 39.20 hours for Ms. Renshaw, and 10.20 hours for Ms. Vasquez. Respondents identify 18.6 of those hours as non-compensable and sort them into three categories. Haws Decl. ¶ 7, Dkt. 23-1. Petitioner withdrew 1.9 hours and contests the remaining 16.7. The Court addresses each category.
The first is clerical work, which Respondents put at 4.9 hours. Purely clerical tasks are overhead and are not billable at a paralegal rate regardless of who performs them. Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989); Nadarajah v. Holder, 569 F.3d 906, 921 (9th Cir. 2009). Petitioner withdrew 1.9 hours and contests the remaining 3.0, all billed by Ms. Vasquez. Those entries describe filing documents through ECF, mailing copies to the United States Attorney, obtaining a notarization, uploading documents to the firm’s drive, and calendaring. Each is bundled in a single block with a passing reference to substantive work, which makes it impossible to determine how the time was divided. The burden of documentation rests with the applicant, Hensley, 461 U.S. at 433, 437, and the Court will exclude the remaining 3.0
The second is time spent on Mr. Torres Hernandez’s removal proceedings, which Respondents put at 6.2 hours. The EAJA authorizes fees incurred in the civil action against the United States,
The third is time Respondents describe as unrelated to either proceeding, which they put at 7.5 hours. Most of it is a single six-hour entry dated December 4, 2025, for continuing to draft a reply to the response to the temporary restraining order, work that postdates the Court’s ruling on the Petition by more than two weeks. Counsel acknowledges that the date is wrong, attributes it to the firm’s billing department, and cannot say when the work was performed. Whatever its cause, the entry cannot be placed in time, and the Court has no way to determine whether it duplicates the 8.9 hours Ms. Renshaw billed for that same briefing between November 3 and November
Excluding these entries leaves 51.9 hours, consisting of 18.4 hours for Ms. Moss, 27.9 hours for Ms. Renshaw, and 5.6 hours for Ms. Vasquez.
Respondents separately object to the time counsel devoted to the fee application itself. Counsel spent roughly 14 hours preparing the motion and another 10.9 preparing the reply, and Respondents calculate that Petitioner billed $5,087.50 on the fee motion against $3,185.00 on the habeas petition that produced his release. Haws Decl. ¶¶ 7.d–7.e, Dkt. 23-1. Fees incurred litigating an EAJA application are recoverable. Comm’r, INS v. Jean, 496 U.S. 154, 161–62 (1990). The comparison Respondents draw does not show that the hours were unreasonable. The two filings called for different work. The fee application required assembling and reviewing five months of billing records, establishing when the judgment became final after Respondents dismissed their appeal, gathering market-rate evidence from other practitioners in the district, and answering an opposition that contested entitlement, rates, hours, and the total award. The Court will not reduce these hours. The rates allowed above address the size of the request.
At the rates allowed above, the lodestar on the remaining hours is $5,520.00 for Ms. Moss (18.4 hours at $300) and $980.00 for Ms. Vasquez (5.6 hours at $175). Ms. Renshaw’s time divides between $2,868.91 for work performed in 2025 (11.1 hours at $258.46) and $4,416.05 for work performed in 2026 (16.8 hours at $262.86), for a subtotal of $7,284.96. The award is therefore $13,784.96. That figure falls between Respondents’ own calculation of a reduced award at the statutory rate, Haws Decl. ¶ 9, Dkt. 23-1 ($10,390.09), and Petitioner’s alternative calculation at that rate, Supp. Moss Aff., Dkt. 24-1 ($17,782.17).
Petitioner separately seeks $57 in expenses. A prevailing party may recover other expenses, including filing fees and postage, under the EAJA.
An EAJA award belongs to the litigant and is subject to offset against any federal debt he owes. Astrue v. Ratliff, 560 U.S. 586, 589 (2010). Mr. Torres Hernandez has assigned his right to the award to counsel and has attested that he owes no federal debt. See Torres Hernandez Decl., Dkt. 22-2, Ex. D. Subject to any applicable offset, the award may be sent directly to the law firm of Petitioner’s counsel.
IT IS ORDERED that:
- Petitioner’s Motion for Attorney Fees and Costs Under Equal Access to Justice Act (EAJA) (
28 U.S.C. § 2412(D) (Dkt. 22) is GRANTED in part and DENIED in part. - Petitioner is awarded attorney and paralegal fees in the amount of $13,784.96 and expenses in the amount of $57.00, to be paid by Respondents. Subject to any applicable offset for federal debt, the award may be sent directly to the law firm of Petitioner’s counsel.
DATED: August 4, 2026
_________________________
B. Lynn Winmill
U.S. District Court Judge