{"id":143196,"date":"2026-02-02T18:04:26","date_gmt":"2026-02-03T02:04:26","guid":{"rendered":"https:\/\/xira.com\/p\/2026\/02\/02\/it-just-got-a-lot-more-expensive-for-ice-to-wrongfully-detain-people\/"},"modified":"2026-02-02T18:04:26","modified_gmt":"2026-02-03T02:04:26","slug":"it-just-got-a-lot-more-expensive-for-ice-to-wrongfully-detain-people","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2026\/02\/02\/it-just-got-a-lot-more-expensive-for-ice-to-wrongfully-detain-people\/","title":{"rendered":"It Just Got A Lot More Expensive For ICE To Wrongfully Detain People"},"content":{"rendered":"

It\u2019s easy to get disheartened watching the Trump administration losing these habeas cases and yet nothing actually changing. The government seems content to take its lumps at the margins while continuing to tear ass around the country. For Homeland Security, it\u2019s a numbers game, and instilling a culture of permanent fear is worth a judicial scolding <\/a>every couple days.<\/p>\n

But this strategy might get expensive if the Third Circuit\u2019s view takes hold. Because according to an appellate decision earlier today, the Equal Access to Justice Act would cover successful habeas petitions, giving the victims of ICE\u2019s harassment access to fees and costs.<\/p>\n

\"\"<\/a>
<\/figcaption><\/figure>\n

The case, Michelin v. Warden Moshannon Valley Correctional Center<\/a><\/em>, consolidated two appeals involving immigrants detained for extended periods \u2014 one for over a year and the other for over 16 months \u2014 without bond hearings. Both won their habeas petitions and sought attorney\u2019s fees under the Equal Access to Justice Act. The government, in a move that should surprise absolutely no one, decided to fight that too.<\/p>\n

The government argued that habeas corpus isn\u2019t really a \u201ccivil action\u201d under the EAJA because it\u2019s some kind of \u201chybrid\u201d proceeding. This went about as well as you\u2019d expect when the court is sitting on literal centuries<\/em> of established law.<\/p>\n

\u201cA petition for a writ of habeas corpus has been a civil action since before our law was our law,\u201d begins the opinion. Even if the court were to indulge the government\u2019s argument as it applies to releasing people from criminal detention, \u201cwe are not reviewing habeas petitions for release from criminal detention. We are reviewing them for release from immigration detention. In that context, every element is civil.\u201d<\/p>\n

\n

A hybrid of a civil action and a civil action is a civil action.<\/p>\n<\/blockquote>\n

The opinion systematically dismantled the government\u2019s attempts to read exceptions into the statute\u2019s plain language. The EAJA covers \u201cany civil action (other than cases sounding in tort).\u201d The court took the revolutionary stance that \u201cany\u201d means\u2026 \u201cany.\u201d Congress knew how to exclude categories when it wanted to because it explicitly carved out torts<\/em>. If Congress had wanted to exclude habeas, it could have said so.<\/p>\n

That\u2019s the sort of ruling that should make immigration enforcement officials think twice before opposing habeas petitions in cases where they\u2019ve locked someone up for over a year without so much as a bond hearing. It won\u2019t, because they\u2019ll just move even more quickly to whisk people away to the Fifth Circuit where that body\u2019s deep respect for \u201ctextualism\u201d<\/em> has already decided that \u201cany\u201d means Congress probably had a secret list of exceptions that only the Fifth Circuit can divine.<\/p>\n

But it definitely, probably included not applying to immigrants they reckon.<\/p>\n

Though a win is still a win. The financial stakes aren\u2019t huge \u2014 Tom Homan could theoretically fit several in a single Cava bag<\/a> \u2014 but the thing about the government playing a numbers game is that volume adds up fast. Every successful immigration detainee in the Third Circuit forcing the government to pony up fees costs the government both money and time.<\/p>\n

And with a circuit split, the Supreme Court faces pressure to resolve the matter, something the Third Circuit opinion takes into account, concluding with a direct challenge to the justices:<\/p>\n

\n

We close by echoing the Supreme Court\u2019s recent reflections on the historic role of the writ of habeas corpus. \u201cWhen English monarchs jailed their subjects summarily and indefinitely, common-law courts employed the writ as a way to compel the crown to explain its actions\u2014and, if necessary, ensure adequate process . . . before allowing any further detention. The Great Writ was, in this way, no less than \u2018the instrument by which due process could be insisted upon.\u2019\u201d Brown v. Davenport, 596 U.S. 118, 128 (2022) (citation omitted) (quoting Hamdi v. Rumsfeld, 542 U.S. 507, 555 (2004) (Scalia, J., dissenting)). It remains so today. With this history in mind, we affirm.<\/p>\n<\/blockquote>\n

Will this shame the Supreme Court into respecting its own recent history, or will the majority embrace hypocrisy? <\/p>\n

\n

\"Headshot\"Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n

The post It Just Got A Lot More Expensive For ICE To Wrongfully Detain People<\/a> appeared first on Above the Law<\/a>.<\/p>\n

It\u2019s easy to get disheartened watching the Trump administration losing these habeas cases and yet nothing actually changing. The government seems content to take its lumps at the margins while continuing to tear ass around the country. For Homeland Security, it\u2019s a numbers game, and instilling a culture of permanent fear is worth a judicial scolding <\/a>every couple days.<\/p>\n

But this strategy might get expensive if the Third Circuit\u2019s view takes hold. Because according to an appellate decision earlier today, the Equal Access to Justice Act would cover successful habeas petitions, giving the victims of ICE\u2019s harassment access to fees and costs.<\/p>\n

\"\"<\/a>
<\/figcaption><\/figure>\n

The case, Michelin v. Warden Moshannon Valley Correctional Center<\/a><\/em>, consolidated two appeals involving immigrants detained for extended periods \u2014 one for over a year and the other for over 16 months \u2014 without bond hearings. Both won their habeas petitions and sought attorney\u2019s fees under the Equal Access to Justice Act. The government, in a move that should surprise absolutely no one, decided to fight that too.<\/p>\n

The government argued that habeas corpus isn\u2019t really a \u201ccivil action\u201d under the EAJA because it\u2019s some kind of \u201chybrid\u201d proceeding. This went about as well as you\u2019d expect when the court is sitting on literal centuries<\/em> of established law.<\/p>\n

\u201cA petition for a writ of habeas corpus has been a civil action since before our law was our law,\u201d begins the opinion. Even if the court were to indulge the government\u2019s argument as it applies to releasing people from criminal detention, \u201cwe are not reviewing habeas petitions for release from criminal detention. We are reviewing them for release from immigration detention. In that context, every element is civil.\u201d<\/p>\n

\n

A hybrid of a civil action and a civil action is a civil action.<\/p>\n<\/blockquote>\n

The opinion systematically dismantled the government\u2019s attempts to read exceptions into the statute\u2019s plain language. The EAJA covers \u201cany civil action (other than cases sounding in tort).\u201d The court took the revolutionary stance that \u201cany\u201d means\u2026 \u201cany.\u201d Congress knew how to exclude categories when it wanted to because it explicitly carved out torts<\/em>. If Congress had wanted to exclude habeas, it could have said so.<\/p>\n

That\u2019s the sort of ruling that should make immigration enforcement officials think twice before opposing habeas petitions in cases where they\u2019ve locked someone up for over a year without so much as a bond hearing. It won\u2019t, because they\u2019ll just move even more quickly to whisk people away to the Fifth Circuit where that body\u2019s deep respect for \u201ctextualism\u201d<\/em> has already decided that \u201cany\u201d means Congress probably had a secret list of exceptions that only the Fifth Circuit can divine.<\/p>\n

But it definitely, probably included not applying to immigrants they reckon.<\/p>\n

Though a win is still a win. The financial stakes aren\u2019t huge \u2014 Tom Homan could theoretically fit several in a single Cava bag<\/a> \u2014 but the thing about the government playing a numbers game is that volume adds up fast. Every successful immigration detainee in the Third Circuit forcing the government to pony up fees costs the government both money and time.<\/p>\n

And with a circuit split, the Supreme Court faces pressure to resolve the matter, something the Third Circuit opinion takes into account, concluding with a direct challenge to the justices:<\/p>\n

\n

We close by echoing the Supreme Court\u2019s recent reflections on the historic role of the writ of habeas corpus. \u201cWhen English monarchs jailed their subjects summarily and indefinitely, common-law courts employed the writ as a way to compel the crown to explain its actions\u2014and, if necessary, ensure adequate process . . . before allowing any further detention. The Great Writ was, in this way, no less than \u2018the instrument by which due process could be insisted upon.\u2019\u201d Brown v. Davenport, 596 U.S. 118, 128 (2022) (citation omitted) (quoting Hamdi v. Rumsfeld, 542 U.S. 507, 555 (2004) (Scalia, J., dissenting)). It remains so today. With this history in mind, we affirm.<\/p>\n<\/blockquote>\n

Will this shame the Supreme Court into respecting its own recent history, or will the majority embrace hypocrisy? <\/p>\n

\n

\"Headshot\"Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n

The post It Just Got A Lot More Expensive For ICE To Wrongfully Detain People<\/a> appeared first on Above the Law<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

It\u2019s easy to get disheartened watching the Trump administration losing these habeas cases and yet nothing actually changing. The government seems content to take its lumps at the margins while continuing to tear ass around the country. For Homeland Security, it\u2019s a numbers game, and instilling a culture of permanent fear is worth a judicial […]<\/p>\n","protected":false},"author":3,"featured_media":143197,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-143196","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/xira.com\/p\/wp-content\/uploads\/2026\/02\/Headshot-300x200-4ilduL.jpg?fit=300%2C200&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/143196","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=143196"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/143196\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/143197"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=143196"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=143196"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=143196"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}