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Immigrants Need Their Own Equal Access to Justice Act

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The Equal Access to Justice Act (EAJA) is a federal law that was enacted in 1980. This law allows individuals, businesses and small interest groups to obtain representation in cases against the federal government and not be held to attorney fees if they are successful. This act allows attorneys to be reimbursed for their fees by the government when they represent a client who successfully wins a case against the federal government. This act was not originally intended for immigration cases; however, the wording and design of the law allow immigration attorneys to receive reimbursement for their legal services in immigration cases. This has continued since the 1980s and has played a large role in the number of attorneys who take on pro bono immigration cases in the US. However, on May 28, 2021, the U.S. Court of Appeals for the Fourth Circuit issued an interpretation of the Equal Access to Justice Act which ruled that EAJA is inapplicable to habeas claims, or cases where a prisoner or criminal detainee's confinement is evaluated by a court (Obando-Segura v. Garland, No. 19-7736, 2021 WL 2171737). This ruling creates the danger of a large decrease in available legal representation for immigrants since many of their cases could be interpreted as habeas claims due to their detention status (see the operative definitions section for further explanation).

Operative Definitions:

  1. Habeas Claims: A claim involving a claimant who is detained or imprisoned and in connection with a criminal act rather than a civil matter. 

  2. Fourth Circuit: The United States Court of Appeals for the Fourth Circuit is a federal court located in Richmond, VA and has jurisdiction over the following states: West Virginia, Virginia, Maryland, the District of Columbia, North Carolina and South Carolina. 

  3. Equal Access to Justice Act (EAJA): Under the Equal Access to Justice Act (EAJA) (5 U.S.C. § 504; 28 U.S.C. § 2412), parties who prevail against the federal government in certain cases may be entitled to an award of attorney’s fees and other expenses. EAJA allows awards only in cases where the government’s position was not “substantially justified.” To show that its position was substantially justified, the government has the burden of proving that its position had a reasonable basis in law and fact.

Important Facts and Statistics:

  1. 1.6 million immigration cases are currently backlogged and waiting on a hearing in the US courts.

  2. Only 37% of all immigrants, and 14% of detained immigrants, obtain an attorney for their hearing. 

  3. Immigrants without legal counsel have only an 11 percent chance of obtaining citizenship. 

Three-Point Plan:

(1) Eliminate the application of habeas claims to immigrant cases in detention centers. The key factor in this part of the plan is to recognize that not all immigrants in detention centers are there for criminal charges. Many are there under civil matters and therefore should not fall under the habeas ruling. Once the habeas applicability is removed, the EAJA is once again applicable to the immigration claims and the pro bono attorney can be reimbursed for their fees. This would encourage more attorneys to take on additional pro bono immigration cases. 

(2) Allow pro bono attorneys to be first to have their cases heard at master calendar hearings. This would encourage more lawyers to take on immigration cases, as they would not be seen as time-consuming and lengthy cases. It could also encourage lawyers to take on multiple immigration cases since they could complete their cases quicker and be reimbursed on time. 

(3) Have immigration judges be more flexible when a pro bono attorney wishes to participate in an immigration court hearing over the phone or on video rather than in person. With the current state of technology and the protocols that have been proven to be secure in video court hearings, immigration judges must be willing to accommodate the new medium. Often, immigrant clients have difficulty attending the hearings due to the unstable nature of an immigrant’s living arrangements. Therefore, video and phone hearings would streamline the process and increase the appeal for attorneys to take on more pro bono immigration cases.  

Why This Initiative Is Important:

Pro bono legal programs are a lifeline for immigrants who are seeking refuge in the US. People at the border are often seeking asylum from violence and poverty with little to no money for expensive attorney fees. This vulnerable population depends on the pro bono programs that provide legal counsel and guide them through the complex immigration system in the US. Therefore, removing initiatives for attorneys to take on pro bono immigration cases is adding further instability to an already overwhelmed legal system. The number of immigrants waiting for a hearing is increasing every month, with immigration judges and lawyers overwhelmed by the number of cases. Special attention should be given to fee reimbursement for pro bono immigration attorneys and the EAJA requires immediate restructuring to ensure justice is served.  

Acknowledgment: The opinions expressed in this article are those of the individual author.

The following student worked on this nonpartisan proposal: Rachel Cole, Walden University.


“Access to Counsel.” National Immigrant Justice Center, 10 Dec. 2021. Retrieved on March 13, 2022, from,Immigration%20Council%20(AIC)%20study.  

Courson, Dalton. “The EAJA: Inapplicability to Habeas Claims.”, American Bar Association, 19 July 2021. Retrieved on March 13, 2022, from

Dyer, Jocelyn. “Department of Justice Urges Immigration Courts to Help Make pro Bono Representation Easier.” Immigration Impact, 11 Nov. 2021. Retrieved on March 13, 2022, from  

“Social Security.” SSA Open Data | Payments for Equal Access to Justice Act, 20 Jan. 2022. Retrieved on March 13, 2022, from  

 “What Is the Equal Access to Justice Act (EAJA)?” CCK Law, 20 Jan. 2022. Retrieved on March 13, 2022, from


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