The immigration crisis at the border, since 2016, has seen children separated from parents, the detention of non-citizens increase, and record-breaking numbers of applicants denied entry into the United States. For individuals fleeing their home- countries because of persecution, the hardship has been particularly severe. To start, the chances of gaining asylum have dwindled significantly. For those who are successful, a subsequent and crucial question is whether the lawyers who represent them can recoup their legal fees from the government.

Since 1980, a federal statute known as the Equal Access to Justice Act (EAJA) has allowed for a “prevailing party” to gain such recovery – but only where the government’s position is deemed not to be “substantially justified.” What this phrase means, however, has split the federal courts. The 5th Circuit, for example, in a 2-1 decision, has recently ruled that the government’s opposition to an asylum petition will be seen as substantially justified – even if it loses – so long as the “totality” of its arguments are reasonable and believable. Yet, the dissent in this case, and other Circuit Courts of Appeal, have stated a more lucid principle: where the government loses on the central issue of an asylum application, it should pay the non-citizen’s legal fees. Period.

This article argues that the latter perspective is the more legally, analytically, and morally sound of the two. The 5th Circuit’s decision is currently on appeal, and the hope is that the Supreme Court will accept it and resolve the split in favor of the logically coherent interpretation of the EAJA. If this result does not occur, then Congress needs to intervene, because this lack of uniformity has a serious implication. Non-citizens in immigration proceedings do not have a right to counsel; they are often dependent upon the private bar for pro bono legal assistance. If the odds are low that lawyers will be able to recover fees within those circuits that narrowly interpret the EAJA, then it is likely that the incentive to take-up immigration cases in these jurisdictions will be correspondingly low as well. That some non-citizens would face greater difficulty in being able to access lawyers, because their case happens to be within an unfavorable circuit, is an outcome that offends the very core principles of equity and fairness.

KJ