Martinez-Orellana v. Hagan et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 26-cv-0355-WJM
ALEX ARMANDO MARTINEZ-ORELLANA,
Petitioner,
v.
GEORGE VALDEZ, in his official capacity as Field Office Director, Denver
Field Office, Immigration and Customs Enforcement, et al.
Respondents.
ORDER GRANTING IN PART AND DENYING IN PART PETITIONER’S MOTION FOR
FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT
Before the Court is Petitioner Alex Armando Martinez-Orellana’s Motion for Fees
Pursuant to the Equal Access to Justice Act (“Motion”). (ECF No. 27). Respondents
George Valdez1, in his official capacity as Field Office Director of the Denver Field
Office of U.S. Immigration & Customs Enforcement (“ICE”); Juan Baltazar, in his official
capacity as Warden of the Denver Contract Detention Facility; Markwayne Mullin2, in his
official capacity as Secretary of the U.S. Department of Homeland Security (“DHS”); and
Todd Blanche3, in his official capacity as Attorney General of the United States
Department of Justice (collectively, “Respondents” or “the Government”), filed a
1 George Valdez replaced Robert Hagan as Field Office Director of the Denver Field
Office of U.S. Immigration and Customs Enforcement.
2 Markwayne Mullin replaced Kristi Noem as Secretary of the U.S. Department of
Homeland Security.
3 Todd Blanche replaced Pamela Bondi as Attorney General of the U.S. Department of
Justice.
Case No. 1:26-cv-00355-WJM Document 48 filed 10/02/26 USDC Colorado pg 1
of 9

2
response. (ECF No. 30.) Martinez-Orellana filed a reply. (ECF No. 31.)
For the following reasons, the Motion is granted in part and denied in part.
I. 	BACKGROUND
In January 2026, Martinez-Orellana filed a Petition for Writ of Habeas Corpus
(the “Petition”) pursuant to 28 U.S.C. § 2241 challenging the legality of his continued
civil immigration detention. (ECF No. 1.) The Court granted the Petition and ordered
his immediate release from detention. (ECF No. 14 at 11.) By the same Order, the
Court also granted Martinez-Orellana leave to file a motion for attorney’s fees to the
extent he believed that he had a good faith basis to seek them under the Equal Access
to Justice Act (“EAJA”), 28 U.S.C. § 2412. (Id.)
Final judgment entered in Martinez-Orellana’s favor. (ECF No. 18.)
Martinez-Orellana then filed a motion to enforce judgment in which he “reported that
Immigration and Customs Enforcement (ICE) only returned 12 of the 950 dollars that he
had in his wallet when he was apprehended.” (ECF No. 19 at 1.) After reviewing the
parties’ briefing on the motion to enforce, the Court denied the motion to enforce as
moot because Martinez-Orellana confirmed the Government eventually fully reimbursed
him for the missing amount. (ECF No. 47.)
After filing the motion to enforce judgment, he filed the Motion, seeking
$28,860.00 in attorneys’ fees incurred litigating the Petition under the EAJA. (ECF No.
27 at 15.) After filing the reply, Martinez-Orellana updated his request of the Court to
award $32,136.96, to account for time spent writing the reply. (ECF No. 31 at 10.)
Case No. 1:26-cv-00355-WJM Document 48 filed 10/02/26 USDC Colorado pg 2
of 9

3
II. ANALYSIS
A. 	EAJA’s Substantive Requisites
The EAJA prescribes that
a court shall award to a prevailing party . . . fees and other
expenses . . . incurred by that party in any civil action . . .
brought by or against the United States in any court having
jurisdiction of that action, unless the court finds that the
position of the United States was substantially justified.
28 U.S.C. § 2412(d)(1)(A) (emphasis added). The Tenth Circuit has held that “habeas
actions challenging immigration detention are unambiguously ‘civil actions.’ ” Daley v.
Ceja, 158 F.4th 1152, 1162 (10th Cir. 2025). Thus, Martinez-Orellana is entitled to
recover his attorneys’ fees incurred in these habeas proceedings “if (1) the petitioner is
a ‘prevailing party’; (2) the position of the United States was not ‘substantially justified’;
and (3) there are no special circumstances that make an award of fees unjust.” Morales
Lopez v. Baltazar, 834 F. Supp. 3d 1193, 1201 (D. Colo. 2026) (quoting 28 U.S.C.
§ 2412(d)(1)(A)).
The Government makes no arguments as to the EAJA’s substantive
requirements and notably fails to argue whether its position was substantially justified.
(See generally ECF No. 30.) It has thus waived this issue. See Wilburn v. Mid-South
Health Dev., Inc., 343 F.3d 1274, 1280 (10th Cir. 2003) (“An issue is waived if it was not
raised below in the district court.”). As the Court has held previously, the Government’s
position, namely its insistence on detaining Martinez-Orellana pursuant to 8 U.S.C.
§ 1225, was not substantially justified. See Morales Lopez, 834 F. Supp. 3d at 1202;
Pal v. Lyons, 2026 WL 2921074, at *2–*3 (D. Colo. Sept. 29, 2026); see also Santillan
Quiroz v. Mullin, 180 F.4th 1226, 1249 (10th Cir. 2026) (“Adopting the Government’s
interpretation of § 1225(b)(2)(A) would pose grave constitutional problems because
Case No. 1:26-cv-00355-WJM Document 48 filed 10/02/26 USDC Colorado pg 3
of 9

4
there is little justification, let alone a strong one, for detaining every one of the millions of
unadmitted noncitizens in our country.”). As none of the EAJA’s substantive requisites
are at issue, so the Court proceeds to consider the reasonableness of the fees to be
awarded.
B. 	Fee Amount
The EAJA permits an eligible prevailing party to recover “reasonable attorney
fees.” 28 U.S.C. § 2142(d)(2)(A) (emphasis added). The determination of attorneys’
fees is ultimately discretionary, especially given the district court’s close understanding
of the litigation and desire to avoid frequent appellate review of factual matters. Rocky
Mountain Wild v. Vilsack, 2013 WL 3233573, at *4 (D. Colo. 2013). Nevertheless, the
party seeking the award bears the burden of persuading the Court that the amount is
reasonable. Taylor v. Colvin, 2015 WL 2375907, at *2 (D. Colo. May 15, 2015).
As noted above, Martinez-Orellana requests that the Court award him
$32,136.96 in attorneys’ fees. For the following reasons, the Court finds the award
amount that Martinez-Orellana seeks to be grossly excessive.
Under the EAJA, fees ordinarily “shall not be awarded in excess of $125 per hour
unless the court determines that an increase in the cost of living or a special factor,
such as the limited availability of qualified attorneys for the proceedings involved,
justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A). The latter “special factor” exception
“refers to attorneys having some distinctive knowledge or specialized skill needful for
the litigation in question—as opposed to an extraordinary level of the general lawyerly
knowledge and ability useful in all litigation.” Pierce v. Underwood, 487 U.S. 552, 572
(1988). “Examples of the former” include “an identifiable practice specialty such as
patent law, or knowledge of foreign law or language.” Id. “Where such qualifications
Case No. 1:26-cv-00355-WJM Document 48 filed 10/02/26 USDC Colorado pg 4
of 9

5
are necessary and can be obtained only at rates in excess of the [statutory] cap,
reimbursement above that limit is allowed.” Id.
Importantly, “[i]ncomparable expertise, standing alone, will not justify the higher
rate.” Vibra-Tech Eng’rs v. United States, 787 F.2d 1416, 1420 (10th Cir. 1986).
“Rather, the statutory cap may be exceeded only in the ‘unusual situation’ where the
legal services rendered require specialized training and expertise unattainable by a
competent attorney through a diligent study of the governing legal principles.”
Chynoweth v. Sullivan, 920 F.2d 648, 650 (10th Cir. 1990) (quoting Vibra-Tech,
787 F.2d at 1420).
Martinez-Orellana argues the Court should depart from the statutory cap and
instead apply his attorneys’ $600 hourly rate based on his attorneys’ expertise in
immigration law. Martinez-Orellana argues that his counsel’s $600 per hour rate falls
within market rates, pointing to the declaration of an immigration attorney with
comparable experience to his own attorneys and several cases outside the Tenth
Circuit awarding fees awards at higher hourly rates. (ECF No. 27 at 13; see ECF No.
27-3.) But the cases he cites are distinguishable. For one, only one of the cases
involved a fee award in an immigration habeas action. Nadarajah v. Holder, 569 F.3d
906 (9th Cir. 2009). As the Court will explain in its calculation of the award amount
below, the Court need not consider Nadarajah because the Ninth Circuit there applied
an enhanced hourly rate, whereas the Court will employ a different calculation method
here.
He likewise argues
This case required a specialized skill, namely expertise in
both immigration law and procedure and federal habeas
Case No. 1:26-cv-00355-WJM Document 48 filed 10/02/26 USDC Colorado pg 5
of 9

6
litigation. Immigration detention litigation in federal court
requires mastery of a complex statutory and regulatory
framework under the Immigration and Nationality Act,
familiarity with rapidly developing detention jurisprudence,
and the ability to litigate emergency matters against DHS
and [the Executive Office for Immigration Review] on
compressed timelines.
(ECF No. 27 at 11.)
Martinez-Orellana’s attorneys in this matter, Jessica A. Dawgert and Sarah L.
Vuong, declared that they have specialized expertise in immigration law. (See ECF
Nos. 27-2 & 27-7.) 	And the Government does not appear to question their
qualifications. Specifically, Martinez-Orellana argues “Ms. Dawgert was on the forefront
of litigating the issue that has taken hold of many court dockets over the last several
months and involves the statutory interpretation of a rarely-before used statute.” (ECF
No. 27 at 12.) He also notes that “[t]he majority of the habeas litigation surrounding the
new immigration detention policies is conducted by a relatively small number of
attorneys with expertise, a group that includes Ms. Dawgert.” (ECF No. 27 at 13–14.)
But Dawgert’s and Vuong’s qualifications alone do not justify going above the
statutory rate. In its Order granting the Petition, the Court “join[ed] the many federal
courts across the country that have been faced with virtually identical challenges in
concluding that [Petitioner] is subject to detention only under § 1226(a)—not
§ 1225(b)(2)(A)—and his continued detention without an individualized custody
determination accordingly violates his constitutional right to due process.” (ECF No. 14
at 4) (emphasis added) (quoting Garcia Abanil v. Baltazar, 817 F. Supp. 3d 1148, 1155
(D. Colo. 2026)). Given that the Court and federal courts across the country had
already frequently encountered the key legal issue presented in the Petition, it
confounds the Court that Martinez-Orellana would argue “this case . . . involved
Case No. 1:26-cv-00355-WJM Document 48 filed 10/02/26 USDC Colorado pg 6
of 9

7
‘particular, esoteric nooks and crannies of immigration law’ that were critical to obtaining
the ultimate relief of immediate release . . . .” (ECF No. 27 at 11 (quoting Muhur v.
Ashcroft, 382 F.3d 653, 656 (7th Cir. 2004)).)
Martinez-Orellana also argues that the Form I-286 issue in the Petition makes
this case so unique as to justify his requested fee rate. Not so. Although the Court
acknowledged that the immigration judge’s decision “present[ed] yet another troubling
issue,” (ECF No. 14 at 7), the complexity of that issue does not rise to the level
warranting such a distant departure from the EAJA’s statutory cap. Indeed, in its
analysis of that issue, the Court noted that “[n]o reasonable person could have possibly
harbored any doubt that Respondents had already previously made an initial
determination that he was subject to detention,” (id. at 9), and that “Respondents have
clearly violated Martinez-Orellana’s due process rights by depriving him of the
administrative process to which he is entitled.” (Id. at 10.)
Moreover, the Court pauses to note that in the District of Colorado in 2026
immigration habeas petitioners have been represented by attorneys located throughout
the country. Thus, the question of the availability of other counsel experts in the field of
immigration law is not properly limited solely to members of the Colorado bar but
should, in the Court’s view, be considered in the context of what is, in effect, a
nationwide immigration bar. And though the Court recognizes Martinez-Orellana’s
attorneys’ experience in immigration law, in its discretion the Court will not award
attorneys’ fees in the amount sought in the Motion.
As noted above, the Government does not contest that the Motion meets the
EAJA’s substantive requisites. Instead, the Government argues “the Court should: (1)
Case No. 1:26-cv-00355-WJM Document 48 filed 10/02/26 USDC Colorado pg 7
of 9

8
reduce lead counsel’s rate to the statutory maximum rate; and (2) exercise its discretion
to reduce excessive or unnecessary hours for a total fee award of $7,460.74.” (ECF
No. 30 at 1.) The Court agrees somewhat with the Government. While the Court views
the requested amount to be excessive, the Court acknowledges that
Martinez-Orellana’s counsel are experienced immigration attorneys and that the
litigation over the motion to enforce judgment complicated some of the legal issues
presented. As such, the Court will not reduce the fee award to the amount the
Government recommends.
The Government notes the Court may consider factors, such as whether counsel
has exercised reasonable billing judgment, in determining fee awards. The point is well
taken, as it appears Petitioner’s attorneys have made no efforts here at exercising any
billing judgment, reasonable or otherwise. “The fee applicant should exercise billing
judgment with respect to the number of hours worked and billed. Billing judgment
consists of winnowing hours actually expended down to hours reasonably expended.”
Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1257 (10th Cir. 2005) (internal citations
omitted). Petitioner’s counsel have made no effort in exercising billing judgment,
instead asking for enhanced fees at their typical hourly rate for 57.25 hours. (ECF No.
31 at 4.)
As an objective cross-check against Petitioner’s fee request, the Court notes
that, to date, the average fee it has awarded in prior immigration habeas cases is
$6,182.74, with the average time expended in those cases by counsel for the prevailing
petitioner being 27.8 hours. By contrast, Petitioner here seeks an award amount of
Case No. 1:26-cv-00355-WJM Document 48 filed 10/02/26 USDC Colorado pg 8
of 9

9
$32,136.96 in fees, over 5 times the average fee amount, on the basis of time expended
of more than double the average cited above.
Accordingly, allowing for the additional time expended by counsel in her efforts to
recover the cash owed to Martinez-Orellana in litigating the motion to enforce judgment,
the Court, in its discretion, will reduce the fee request by 75%, resulting in a total fee
award of $8,034.24.
III. CONCLUSION
For all these reasons, the Court ORDERS as follows:
1. 	Petitioner’s Motion for Attorney Fee’s Pursuant to the Equal Access to
Justice Act (ECF No. 27) is GRANTED IN PART and DENIED IN PART;
2. Martinez-Orellana is AWARDED attorneys’ fees under the EAJA in the
total amount of $8,034.24; and
3. The Government is ORDERED to make such payment in full to
Martinez-Orellana by no later than November 6, 2026.
Dated this 2 nd day of October, 2026.
BY THE COURT:
______________________
William J. Martinez
Senior United States District Judge
Case No. 1:26-cv-00355-WJM Document 48 filed 10/02/26 USDC Colorado pg 9
of 9