Supreme Court may decide important case on immigration detention regarding attorneys’ fees | SCOTUSblog Search SCOTUSblog Search articles and cases ESC Type to search articles, cases, and authors. Press ↵ to view all results. Skip to main content Immigration Matters Commentary Supreme Court may decide important case on immigration detention regarding attorneys’ fees By César Cuauhtémoc García Hernández / Jun 17, 2026 (Mehmet Eser/Middle East Images/AFP via Getty Images) The Trump administration has made detention a key part of its hardline approach to migrants. Through aggressive enforcement tactics and changes to longstanding policies, the Immigration and Customs Enforcement agency is detaining more people than ever before. Immigration lawyers have been pushing back on an equally unprecedented scale, challenging the legality of detention by filing habeas corpus lawsuits with eye-catching frequency. And now, a case that the Supreme Court has been asked to add to its calendar, Montoya Palacios v. Liggins , may upend attorneys’ willingness to pursue habeas cases on behalf of such persons. ICE, which operates a network of approximately 200 immigration detention facilities, is using an infusion of funding to detain tens of thousands of migrants daily. The One Big Beautiful Bill Act, which President Donald Trump signed on July 4, 2025, gives ICE almost $30 billion to hire enforcement officers and support staff, plus another $45 billion to pay for immigration detention facilities, through the end of September 2029. Relying on this funding, the agency has increased the number of people it detains. In January 2025, President Joe Biden’s last month in office, ICE held approximately 40,000, on average, each day. ICE now regularly detains more than 60,000 people per day, a drop from almost 72,000 individuals who were detained, on average, in January. As ICE has detained more people, advocates for migrants have turned to federal courts to obtain their clients’ release. Attorneys have filed more than 52,000 petitions for writs of habeas corpus, which allows people who are detained to challenge the legal basis for their confinement, in federal district courts around the country. In the midst of this, the Supreme Court is being asked to decide whether attorneys who challenge the Department of Homeland Security’s decision to detain a migrant can recover fees from the government. The Equal Access to Justice Act makes attorneys’ fees available to parties that successfully bring “any civil action (other than cases sounding in tort)” against the federal government unless the government’s position was “substantially justified.” Two courts of appeals – the U.S. Courts of Appeals for the 4th and 5th Circuits – have concluded that habeas challenges to immigration detention aren’t civil cases covered by EAJA. In their view, habeas is instead a “hybrid” criminal proceeding and civil action. Three circuits disagree. Relying on a long history of courts describing habeas as a “civil” action, the U.S. Courts of Appeals for the 2nd , 3rd , and 10th Circuits consider habeas a type of civil lawsuit that falls within EAJA’s broad attorneys’ fees language (although the 2nd Circuit determined the government’s position to be “substantially justified” in that case). The justices are currently considering whether to hear arguments in a case challenging the 4th Circuit’s position. In April, Kevin Isaac Montoya Palacios asked the court to intervene on his behalf. A citizen of El Salvador, Montoya Palacios received withholding from removal, a form of humanitarian protection from deportation, in September 2023. He then lived in the U.S. and states that he met regularly with ICE officials for more than two years, until December 2025, when ICE agents arrested him during a routine appointment. With the assistance of counsel, Montoya Palacios quickly filed a habeas petition, which U.S. District Judge George Russell granted . Despite having won, Russell denied Montoya Palacios’s request for attorneys’ fees under EAJA, citing the 4th Circuit’s position that habeas claims related to immigration detention are not a “civil action.” Last month, the U.S. Solicitor General, representing the federal government, also asked the justices to get involved. Like Montoya Palacios, the solicitor general acknowledges that the federal courts of appeals are divided on whether EAJA permits attorneys to recover fees in cases challenging the legality of a migrants’ confinement. Both parties also agree that there is little chance that the lower courts will settle on a single interpretation of EAJA’s attorneys’ fees provision that is applicable nationwide. The justices are scheduled to consider the parties’ request during their June 18 private conference, though it’s possible they won’t act on it then. If they grant the request, the court will likely hear arguments in the term beginning in October. The existing disagreement among the circuits creates a split-screen effect. In some parts of the country, attorneys can request fees when they take on habeas immigration cases, whereas attorneys in other parts of the country can’t. Since federal district courts have jurisdiction over habeas claims based on the physical location in which a person is detained, attorneys whose clients are held in the 4th and 5th Circuits can’t hope to recover fees no matter how flagrant the government’s conduct. The inability to recover fees from the federal government when ICE illegally detains someone in the those circuits matters because almost half of detained migrants are detained there. Housing more than 500 people, Virginia’s Farmville Detention Center is the largest of five facilities in the 4th Circuit, although it’s small in comparison to facilities in the 5th Circuit. Louisiana, Mississippi, and Texas – the three states within the 5th Circuit – are home to several of the largest prisons in ICE’s network. Of the 40 facilities that the agency uses in these three states, 11 held at least 1,000 people as of early April, the last date for which ICE has released data . Two housed more than 2,000 people: the Adams County Correctional Center in Mississippi and the East Montana Camp near El Paso, Texas. Combined, ICE held almost 47 percent of its total detained population – 28,180 of 60,311 – in 5th Circuit facilities in April. If the court agrees to add Montoya Palacios to its calendar, its decision is likely to have a substantial impact on ICE’s detention operations. Without the ability to recover attorneys’ fees, it will be much more difficult for migrants to find attorneys willing to bring lawsuits challenging the legal basis of their detention. And if lawyers do not challenge ICE in court, then judges will be unable to oversee the massive incarceration operation that the agency has built up. César Cuauhtémoc García Hernández Recurring Columnist César Cuauhtémoc García Hernández is the author of three books about immigration law and policy. Recommended Citation: César Cuauhtémoc García Hernández , Supreme Court may decide important case on immigration detention regarding attorneys’ fees , SCOTUSblog ( Jun. 17, 2026, 9:30 AM ), https://www.scotusblog.com /2026/06/supreme-court-may-decide-important-case-on-immigration-detention-regarding-attorneys-fees/ Share Copy Twitter Email Cases Mentioned Montoya Palacios v. Liggins 25-1223 Related Articles An immigration law error in the court’s asylum decision threatens immigration courts By César Cuauhtémoc García Hernández / Jul 2, 2026 The Supreme Court’s long history of shaping race By César Cuauhtémoc García Hernández / Jun 4, 2026 In immigration cases, the court doesn’t just settle disagreements By César Cuauhtémoc García Hernández / May 20, 2026 The extraordinary power sought by the Trump administration in the TPS case isn’t anything new in immigration law By César Cuauhtémoc García Hernández / May 7, 2026 Why the Supreme Court’s birthright-citizenship decision may depend on the meaning of “domicile” By César Cuauhtémoc García Hernández / Apr 20, 2026 Each weekday, we present news articles and commentary related to the Supreme Court in a smart, approachable way. Welcome Tell us a bit about yourself and choose what you’d like to hear from us. You can change any of it any time in your account. First name * Last name * Job title (optional) Select your job title Law firm associate Law firm partner Law firm other Professor/educator In-house counsel Judge Law student Government lawyer Lawyer, other Non-lawyer Journalist Company (optional) Save and continue Not now