                  FOR PUBLICATION
         UNITED STATES COURT OF APPEALS

                FOR THE NINTH CIRCUIT


AHILAN NADARAJAH,                            No. 05-56759
                Petitioner-Appellant,            D.C. No.
                  v.
                                            CV-04-1939-LAB
                                            Southern California
ERIC HOLDER JR., Attorney
General; et al.,                               (San Diego)
            Respondents-Appellees.
                                                ORDER

                      Filed June 9, 2009

      Before: Sidney R. Thomas, Richard A. Paez, and
            Richard C. Tallman, Circuit Judges.

                          Order;
 Partial Concurrence and Partial Dissent by Judge Tallman


                           ORDER

   The government’s motion for reconsideration of the Appel-
late Commissioner’s September 29, 2008 order is denied. The
attached Appellate Commissioner’s September 29, 2008 order
awarding attorneys’ fees in the amount of $156,778.68 in
favor of appellant Ahilan Nadarajah and against appellees
Eric H. Holder Jr., et al., is approved and remains in effect.




                             6859
6860                 NADARAJAH v. HOLDER

                       ATTACHMENT

                  Filed September 29, 2008

       Before: Peter L. Shaw, Appellate Commissioner

                                I

                          Background

   Ahilan Nadarajah, a native of Sri Lanka, was detained upon
arrival in the United States in October 2001. Nadarajah ini-
tially was granted parole but was unable to pay the $20,000
bond. Nadarajah filed applications for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”), based on his membership in the Tamil ethnic minor-
ity. Twice Immigration Judges (“IJs”) granted Nadarajah asy-
lum, but the government appealed, and Nadarajah remained in
detention. In August 2004, Nadarajah’s counsel attempted to
pay the bond, but the government refused to parole Nadarajah
according to the 2001 terms. In September 2004, Nadarajah’s
requests for parole were denied on the ground that he no lon-
ger met the bond criteria, and Nadarajah filed this petition for
a writ of habeas corpus in the district court.

   After the district court habeas corpus petition was pending
more than one year, Nadarajah filed a Ninth Circuit petition
for a writ of mandamus to compel a disposition. The manda-
mus petition was assigned docket number 05-75841. After the
mandamus petition was filed, the district court denied Nadara-
jah’s petition for a writ of habeas corpus, and Nadarajah with-
drew the mandamus petition as moot.

   Nadarajah filed this appeal, number 05-56759, from the
district court’s denial of the petition for a writ of habeas cor-
pus. This court reversed the district court’s decision, deter-
mining that the immigration agency abused its discretion by
                     NADARAJAH v. HOLDER                    6861
denying Nadarajah’s request for parole. See Nadarajah v.
Gonzales, 443 F.3d 1069, 1082-84 (9th Cir. 2006). The court
also granted Nadarajah’s motion for release pending appeal
and ordered his immediate release from detention. Id.

   Nadarajah filed a motion and an amended motion for attor-
neys’ fees under the Equal Access to Justice Act (“EAJA”),
28 U.S.C. § 2412(d)(1)(A). The government opposed the
amended motion, and Nadarajah filed a reply. The court
granted Nadarajah’s request for attorneys’ fees, and referred
to the Appellate Commissioner the determination of the
amount of the fee award. See 9th Cir. R. 39-1.9. Nadarajah
filed a motion to correct the calculation of the requested attor-
neys’ fees, which the government did not oppose. Nadarajah’s
motion to correct the calculation is granted, and the corrected
calculation shall be employed here. The parties subsequently
stipulated to the submission of breakdowns of Nadarajah’s fee
request by forum and hourly rates.

                               II

                           Analysis

   The amount of attorneys’ fees awarded under EAJA must
be reasonable. See 28 U.S.C. § 2412(d)(1)(A), (2)(A). “The
most useful starting point for determining the amount of a rea-
sonable fee is the number of hours reasonably expended on
the litigation multiplied by a reasonable hourly rate.” Hensley
v. Eckerhart, 461 U.S. 424, 433-34 (1983). Nadarajah
requests fees for the representation in all forums totalling
$195,959.33. This represents 861.5 hours of work by private
attorney, Judy Rabinovitz, Esq., and by five attorneys, three
paralegals, and three law student interns from the American
Civil Liberties Union of Southern California (“ACLU”). The
requested hourly rates range from $75 to $500.

   Nadarajah’s ACLU counsel, Ahilan T. Arunalantham, Esq.
states in a declaration that he reduced by 5 percent the hours
6862                 NADARAJAH v. HOLDER
billed by ACLU attorneys and paralegals and by 20 percent
the hours billed by ACLU law student interns. (The across-
the-board reduction was not applied to Rabinovitz’s work.)
On the ACLU’s computerized time sheets, however, the 5
percent and 20 percent reductions were applied to the hourly
rates, not to the hours. In addition, Arulanantham applied a 20
percent, not a 5 percent, reduction to his hourly rate for the
fee reply. This determination of the reasonable fees uses the
hours actually reflected in the time sheets, which are the hours
actually requested by Nadarajah.

  Nadarajah has not submitted Ninth Circuit Form 9. See 9th
Cir. R. 39-1.6. Instead, Nadarajah requests fees as follows:
NADARAJAH v. HOLDER   6863
6864                  NADARAJAH v. HOLDER




A.     Hourly Rates

   EAJA provides that fees may be awarded based upon pre-
vailing market rates for the kind and quality of the services
furnished, except that attorney fees shall not be awarded in
                     NADARAJAH v. HOLDER                    6865
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. See 28 U.S.C.
§ 2412(d)(2)(A).

   Nadarajah requests an hourly rate of $500, based on the
special factor of the limited availability of qualified attorneys
for the proceedings involved, for 49.7 hours of work by pri-
vate immigration attorney Rabinovitz.

   Nadarajah requests hourly rates of $300 for 2004, $315 for
2005, and $335 for 2006, based on the special factor of the
limited availability of qualified attorneys for the proceedings
involved, for 494 hours of work by ACLU immigration attor-
neys Arulanantham and Ranjana Natarajan, Esq.

  Nadarajah requests the statutory maximum hourly rate,
adjusted for increases in the cost of living, of $162.50 for 9.5
hours of work in 2006, on oral argument preparation, by
ACLU non-immigration attorneys Catherine Lhamon, Esq.,
Clare Pastore, Esq., and Mark Rosenbaum, Esq.

  Nadarajah requests hourly rates of $100 for 129.2 hours of
work by ACLU paralegals and $75 per hour for 179.1 hours
of work by ACLU law student interns.

   Nadarajah’s requested hourly rates do not reflect the 5 per-
cent and 20 percent reductions in the hourly rates included in
the calculation of the total fees requested and in the document
entitled Nadarajah’s Market Rate Totals.

  The government objects to the award of fees at the prevail-
ing market hourly rates requested for Rabinovitz, Arula-
nantham, and Natarajan, contending that the statutory
maximum hourly rate adjusted for cost-of-living increases
should be awarded for all attorneys.
6866                  NADARAJAH v. HOLDER
  1.    Special Factor Enhancement

   Enhanced hourly rates based on the special factor of “the
limited availability of qualified attorneys for the proceedings
involved may be awarded under EAJA where the attorneys
possess “distinctive knowledge” and “specialized skill” that
was “needful to the litigation in question” and “not available
elsewhere at the statutory rate.” Thangaraja v. Gonzales, 428
F.3d 870, 876 (9th Cir. 2005); Love v. Reilly, 924 F.2d 1492,
1498 (9th Cir. 1991); see also Pierce v. Underwood, 487 U.S.
552, 572 (1988) (“Examples . . . would be an identifiable
practice specialty such as patent law, or knowledge of foreign
law or language.”).

       a. Distinctive Knowledge and Specialized Skill

   Nadarajah demonstrates, and the government does not dis-
pute, that Rabinovitz, Arulanantham, and Natarajan have dis-
tinctive knowledge and specialized skill in immigration law
and, in particular, constitutional immigration law and litiga-
tion involving the rights of detained immigrants.

   Rabinovitz’s declaration states that she is a 1985 graduate
of New York University Law School and, since 1988, a staff
attorney at the ACLU Immigration Rights Project in New
York. Nadarajah contends that Rabinovitz is “the leading
attorney in the nation litigating cases involving the rights of
detained immigrants [and] has litigated numerous cases
involving the prolonged detention of immigrants throughout
the federal judiciary.” Nadarajah cites four significant immi-
gration detention cases where Rabinovitz was lead counsel
and achieved favorable outcomes.

  Arulanantham’s declaration states that he is a 1999 Yale
Law School graduate who clerked for a Ninth Circuit judge,
has specialized in the rights of detained immigrants as an
ACLU staff attorney for more than four years, and repre-
sented detained immigrants in criminal proceedings as a fed-
                     NADARAJAH v. HOLDER                    6867
eral public defender for two years. Nadarajah cites eight
important cases in which Arulanantham represented the immi-
grant or appeared on behalf of amicus curiae.

   Nadarajah contends that Natarajan has represented non-
citizens detained under the immigration laws for four years,
citing four immigration cases in which Natarajan has
appeared. Nadarajah also contends that Natarajan was named
one of the top 100 women lawyers in California by California
Lawyer magazine in 2005. According to the internet, Natara-
jan is a 1999 graduate of Columbia Law School.

   Nadarajah’s contentions are corroborated by the declara-
tions of a San Francisco immigration specialist, Marc Van
Der Hout, Esq., and a Los Angeles attorney and former
ACLU Senior Staff Counsel, Carol A. Sobel, Esq. Van Der
Hout states that he is familiar with the experience and exper-
tise of all three attorneys and, in his opinion, they all possess
“discrete and complex knowledge.” He has been aware of
Rabinovitz’s work for nearly 20 years, and she is one of the
leading immigrants’ rights lawyers in the country. He has
been aware of Arulanantham’s and Natarajan’s work for the
past several years and is very familiar with their work over
the past two years, during which they have successfully liti-
gated several cases involving the prolonged detention of
immigrants. Van Der Hout has co-counseled several complex
immigration cases involving national security issues with
Arulanantham and Natarajan, and therefore he is familiar with
the excellent quality of their written work and advocacy.

   Sobel states that she is very familiar with Arulanantham’s
and Natarajan’s skill, experience, and reputation, having
worked with them as co-counsel on a number of cases during
the past several years. In her opinion, both Arulanantham and
Natarajan enjoy exceptional reputations as attorneys and dis-
play skills and experience far beyond those of most attorneys
who have been practicing for seven years. As a former ACLU
staff attorney, Sobel is also familiar with Rabinovitz.
6868                 NADARAJAH v. HOLDER
Although Sobel has never worked with Rabinovitz on a case,
Sobel is aware that Rabinovitz “enjoys an exceptional reputa-
tion in the area of immigration law.”

   To the extent that Nadarajah contends that the three attor-
neys’ immigration law expertise, by itself, justifies the award
of enhanced hourly rates, without a showing that the attorneys
possess distinctive knowledge or specialized skill necessary to
this litigation, that contention lacks merit. See Thangaraja,
428 F.3d at 876 (“We decline to adopt counsel’s proposed per
se rule that ‘the practice of immigration law should be classi-
fied as a specialty similar to practicing patent law.’ ”); see
also Perales v. Casillas, 950 F.2d 1066, 1078-79 (5th Cir.
1992) (holding that immigration practice, unlike patent prac-
tice, is not a specialty for the purpose of awarding an
enhanced rate).

    b. Needful For Litigation In Question

   The Seventh Circuit has awarded enhanced rates in a pub-
lished immigration case where counsel established that
“knowledge of foreign cultures or of particular, esoteric nooks
and crannies of immigration law . . . [was] needed to give the
alien a fair shot at prevailing.” Thangaraja, 428 F.3d at 876
(quoting Muhur v. Ashcroft, 382 F.3d 653, 655-56 (7th Cir.
2004)). The Third and Ninth Circuits have recognized that a
specialty in immigration law can warrant enhanced rates if
“distinctive knowledge” or “specialized skill” is “needful for
the litigation in question,” but have not held in a published
case that the movant had established that such knowledge or
skill was necessary to the litigation. See Thangaraja, 428 F.3d
at 876; Gwaduri v. INS, 362 F.3d 1144, 1147 (9th Cir. 2004);
Rueda-Menicucci v. INS, 132 F.3d 493, 496 (9th Cir. 1997);
Ramon-Sepulveda v. INS, 863 F.2d 1458, 1462-63 (9th Cir.
1988); see also Johnson v. Gonzales, 416 F.3d 205, 213 (3d
Cir. 2005). The Ninth Circuit has awarded enhanced rates in
unpublished immigration cases where the movants have dem-
                     NADARAJAH v. HOLDER                    6869
onstrated that distinctive knowledge or specialized skill was
necessary.

   Here, Nadarajah contends his case required Rabinovitz’s,
Arulanatham’s, and Natarajan’s specialized expertise in con-
stitutional immigration law and litigation involving the rights
of detained immigrants. Nadarajah also provides Van Der
Hout’s declaration stating that the three attorneys’ “discrete
and complex knowledge was required for the successful reso-
lution of this case” and their “distinctive knowledge and
exemplary skills in statutory and constitutional immigration
law . . . were absolutely necessary to the successful resolution
of this litigation.”

   The government contends that, like Thangaraja, this litiga-
tion required no special knowledge or skill, and therefore pre-
vailing market rates are not justified. The government argues
that this case involved the application of the immigration
detention statutes, Supreme Court precedent, and an under-
standing of constitutional law, but turned on statutory inter-
pretation and did not involve the application of complex
statutes or regulations. The government’s objection lacks
merit.

   Nadarajah’s case involved more than established principles
of law with which the majority of attorneys are familiar. See
Ramon-Sepulveda, 863 F.2d at 1462-63. This was an unusual
and complex case which required a 58-page brief and resulted
in a significant 15-page published decision that is cited thus
far in more than 70 other cases and 20 treatises or articles. See
Nadarajah, 443 F.3d at 1069. The court took the fairly
unusual step of ordering the immediate release of Nadarajah,
who had been detained more than four years despite being
granted withholding of removal at the administrative level.
An amicus curiae brief in support of Nadarajah, addressing
the international prohibition on prolonged and arbitrary deten-
tion, was filed by Yale Law School’s Allard K. Lowenstein
6870                 NADARAJAH v. HOLDER
International Human Rights Clinic. The oral argument was
video-taped for broadcast by C-SPAN.

   Like Muhur and the cases cited there, Nadarajah’s case did
not involve merely a “straightforward application” of the rules
of immigration law and appellate practice. Thangaraja, 428
F.3d at 876 (quoting Johnson, 416 F.3d at 213) (declining to
award enhanced rate to experienced immigration specialist
who successfully contended that the government failed to
consider the asylum petitioner’s testimony regarding imputed
political opinion, because the case did not require research
into little-known areas of immigration law or particular
knowledge of the petitioner’s Liberian culture). As Van Der
Hout states, Nadarajah’s case:

    raised unique issues of statutory and constitutional
    immigration law in the detention context. Under-
    standing the doctrinal background in this case
    required knowledge of a large body of historical
    material concerning immigration detention, detailed
    treatment of new and relatively obscure statutory
    provisions governing the detention of people alleged
    to be threats to national security, and familiarity with
    the growing body of modern case law concerning
    prolonged detention in the immigration context.

In particular, the court applied existing case law and statutory
analysis regarding the indefinite detention of admissible
aliens to the indefinite detention of an inadmissible alien, con-
cluding that the general immigration statutes permit such
detention only while removal remains reasonably foreseeable
and that, after a presumptively reasonable six-month deten-
tion, if the alien provides good reason to believe there is no
significant likelihood of removal in the reasonably foresee-
able future, the government must respond with evidence to
rebut that showing. Id. at 1078.

  Nadarajah demonstrates and a review of the briefs and
opinion confirms that here, unlike in Thangaraja, “knowledge
                      NADARAJAH v. HOLDER                    6871
of . . . particular, esoteric nooks and crannies of immigration
law . . . [was] needed to give the alien a fair shot at prevail-
ing.” Thangaraja, 428 F.3d at 876 (quoting Muhur, 382 F.3d
at 656). In particular, Nadarajah states that although he first
won asylum before the IJ in April 2003, he remained detained
without filing a habeas petition for more than one year after
that victory. His present counsel began to represent him in
June 2004, helped him prevail before the IJ a second time in
September 2004, and filed this ultimately successful habeas
corpus action when Nadarajah still was not granted parole.
The specialized knowledge of these particular attorneys was
needed to obtain Nadarajah’s release as result of this litiga-
tion. Id.

   Nadarajah’s case also is distinguishable from Gwaduri,
which involved a claim of ineffective assistance of counsel
before the immigration agency. See Gwaduri, 362 F. 3d at
1147, 1149. Although the Gwaduri court did not discuss the
reasons that fees were reduced to the statutory cap, the dissent
suggested that it was because no special legal expertise was
required to litigate such a claim. Here, on the other hand,
Nadarajah has established and the record shows that
Rabinovitz, Arulanantham, and Natarajan possessed “distinc-
tive knowledge” and “specialized skill” that was “needful to
the litigation in question.” Thangaraja, 428 F.3d at 876.

    c. Qualified Counsel Not Available At Statutory Rate

   Nadarajah also establishes that qualified counsel was not
available for this litigation at the statutory maximum hourly
rate. See United States v. Real Prop. Known as 2224 Dol-
orosa Street, 190 F. 3d 977, 984 (9th Cir. 1999) (“while
claimants have submitted evidence that the market rates for
similarly experienced counsel exceed the statutory rate, they
have not demonstrated that no suitable counsel would have
taken on claimants’ case at the statutory rate”); Love v. Reilly,
924 F.2d 1492, 1496-97 (9th Cir. 1991) (remanding for fur-
ther findings as to availability of attorneys in area with similar
6872                 NADARAJAH v. HOLDER
skills who would take case at statutory rate, where only evi-
dence in record was affidavit of attorney seeking fees stating
that there were few other lawyers in Oregon with his expertise
in pesticide litigation and the district court had made no find-
ings on the issue).

  Van Der Hout states that:

    the vast majority of the immigration bar of this coun-
    try does not engage in federal court litigation, and of
    those that do, only a very small number would be
    willing to take on a case of this complexity. There
    are no qualified attorneys to my knowledge who
    would have undertaken such litigation at the EAJA
    statutory rate of $125, even adjusted for inflation.

The government objects to Van Der Hout’s affidavit, without
citing legal authority, because Van Der Hout does not state
whether he, or immigration practitioners in general, normally
bill hourly or receive a flat fee.

   The government’s objection lacks merit. In Atlantic Fish
Spotters Ass’n v. Daley, 205 F.3d 488, 492-93 (1st Cir. 2000),
the First Circuit discussed the showing that is necessary to
establish that qualified counsel was not available:

    What the declaration needed to say, with at least
    modest support, is that as a practical matter the
    plaintiffs would be unable to find a fisheries law
    expert for $125 (assuming arguendo that one was
    required). We say “modest support” because of prac-
    tical realities. No one expects the plaintiffs to con-
    duct statistical surveys on a collateral matter like
    attorney’s fees, and the antitrust laws do not encour-
    age counsel to spend much time discussing fee levels
    with competing lawyers.

Id. at 493. According to Atlantic Fish Spotters, Van Der
Hout’s declaration satisfactorily demonstrates that no other
                     NADARAJAH v. HOLDER                   6873
counsel was available to take Nadarajah’s case at the adjusted
statutory maximum hourly rate. Moreover, the government
has failed to rebut Nadarajah’s showing that qualified counsel
was not available.

    d. Prevailing Market Rates

       i. Non-Profit Representation

   The government contends that Nadarajah should not be
awarded prevailing market rates, or any fees at all for that
matter, because he was represented by the ACLU, a non-
profit organization, rather than by private counsel. The gov-
ernment objects that Nadarajah did not submit his retainer
agreement with the ACLU, or evidence of the ACLU employ-
ees’ hourly salaries, and therefore the court cannot evaluate
the appropriateness of the fee request. The government argues
that “there are substantial and compelling economic reasons
for allowing private firms to obtain EAJA payments at market
rates where appropriate,” but that non-profit organizations “do
not operate on these same market principles” and therefore
should not obtain prevailing market rates.

   The government’s contentions are not supported by legal
authority and lack merit. The United States Supreme Court
clarified long ago that the award of attorneys’ fees under civil
rights fee-shifting statutes is not cost-based, and that the
award of prevailing market rates — regardless whether the
claimant is represented by private counsel or a non-profit
legal services organization — should not be viewed as an
unjustified “windfall” profit to the attorney. See Blum v. Sten-
son, 465 U.S. 886, 892-95 (1984); Hensley, 461 U.S. at 433
n.7 (standards applicable to § 1988 awards “are generally
applicable in all cases where Congress has authorized an
award of fees to a ‘prevailing party’ ”); see also INS v. Jean,
496 U.S. 154, 161 (1990) (applying Hensley to EAJA award).

  “It is well-settled that an award of attorneys fees [under
EAJA] is not necessarily contingent upon an obligation to pay
6874                 NADARAJAH v. HOLDER
counsel . . . . The presence of an attorney-client relationship
suffices to entitle prevailing litigants to receive fee awards.”
Ed A. Wilson, Inc., v. GSA, 126 F.3d 1406, 1409 (11th Cir.
1997). The government does not dispute that Nadarajah and
the ACLU counsel have an attorney-client relationship. In
addition, in response to the government’s contentions,
Nadarajah’s counsel submitted a declaration stating that there
is a retainer agreement, that the agreed-upon representation is
at no charge to Nadarajah, and that Nadarajah has agreed to
remit to the ACLU any attorneys’ fees that are recovered. The
ACLU’s representation of Nadarajah at no charge, pursuant to
the retainer agreement, does not preclude awarding reasonable
attorneys’ fees under EAJA, including the requested prevail-
ing market rates.

   The government’s argument that the expenses associated
with private representation “would far exceed those expended
by a non-for-profit group,” including the inference that the
fees awarded should not exceed the legal workers’ salaries, is
unavailing. “Important public policy considerations dictate
that [the court] should not punish an ‘undercharging’ civil
rights attorney,” but instead must award attorneys’ fees based
on prevailing market rates (or, under EAJA, where applicable,
the adjusted statutory maximum hourly rates). See Reiter v.
MTA New York City Transit Auth., 457 F.3d 224, 233 (2d Cir.
2006).

    ii. Evidence

   Although Nadarajah has established his entitlement to
enhanced rates under EAJA, he must also show that the
requested enhanced rates are “in line with those [rates] pre-
vailing in the community for similar services by lawyers of
reasonably comparable skill, experience and reputation.”
Blum, 465 U.S. at 895 & n.11. Nadarajah requests an hourly
rate of $500 for 2004 to 2006 work by Rabinovitz, a 1985
graduate. Nadarajah requests the hourly rates of $300 for
                     NADARAJAH v. HOLDER                       6875
2004 work, $315 for 2005 work, and $335 for 2006 work by
Arulantham and Natarajan, who are 1999 graduates.

  In support of the requested enhanced rates, Nadarajah sub-
mits the declaration of Sobel, a 1978 graduate, that:

    My hourly billing rate for 2006 is $590 per hour . . . .
    During the time that I was Senior Staff Counsel at
    the ACLU, I was responsible for preparing many of
    the fee motions . . . . I was required to obtain infor-
    mation to establish reasonable market rates for the
    ACLU lawyers. It was my practice to obtain current
    billing rates for lawyers of comparable skill and
    experience at several firms throughout the City [of
    Los Angeles] . . . . Since entering private practice, I
    have continued to survey firms each year to obtain
    relevant comparisons for billing rates . . . . In addi-
    tion to speaking with partners at various law firms,
    I have also become familiar with the market rates
    charged by attorneys in the Los Angeles area by
    reviewing attorney fee applications and decisions
    awarding fees under fee-shifting statutes . . . . Based
    on my knowledge and experience, these rates
    [sought for Rabinovitz, Arulanantham, and Natara-
    jan] are below comparable market rates in Los Ange-
    les.

Attached to Sobel’s declaration are copies of fee awards
involving Los Angeles law firms. The district court awarded
2004 hourly rates of $340 to a 1997 graduate and $320 to a
1998 graduate. See McClure v. City of Long Beach, No. CV-
92-2776 (C.D. Cal. Sept. 20, 2005) (Memorandum Opinion
And Order Regarding Fees And Expenses). Another district
court awarded 2005 hourly rates of $450 to a 1991 graduate
and $305 to a 2000 graduate. See Comite de Jornaleros de
Glendale v. City of Glendale, CV-04-3251 (Aug. 19, 2005)
(Order Granting Motion For Attorneys’ Fees And Costs).
6876                 NADARAJAH v. HOLDER
   Sobel states that she is familiar with the work of the 1997
and 1998 graduates and, based on her experience, they do not
have the skill, experience, or reputation of Arulanantham or
Natarajan. Sobel also states that “based on my experience
over the past 28 years of working at the ACLU and with the
pro bono bar, the skill, experience, and reputation of the law-
yers at the ACLU is usually greater than that of many lawyers
in large firms with comparable years of practice.”

   Sobel notes that, in Comite de Jornaleros, the district court
stated that the hourly rates awarded there were well below
market rate. Sobel states that 2005 hourly rates for attorneys
at Loeb & Loeb who graduated in 1985, 1998, and 2000 were
$485, $390, and $375, respectively. Sobel also provides a
2005 Skadden, Arps, Slate, Meagher & Flom declaration in
support of requested hourly rates of not less than $560 for a
pre-1998 graduate and $530 for a 1998 graduate.

  Nadarajah also submits Van Der Hout’s declaration that:

    I am familiar with the billing practices and rates of
    law firms in the San Francisco Bay Area. The $500
    per hour rate requested for Ms. Rabinovitz and the
    $335 requested for Mr. Arulanantham and Ms.
    Natarajan are below the prevailing market rate for
    attorneys of their respective experience and exper-
    tise.

The government objects again that Van Der Hout does not
state whether he, or immigration attorneys in general, nor-
mally bill hourly or receive a flat fee and, therefore, the evi-
dence submitted in support of the requested prevailing market
rates is inadequate and insufficient.

  The government’s objection is not supported by legal
authority and lacks merit. Moreover, the government offers no
evidence to rebut Sobel’s and Van Der Hout’s declarations
and the accompanying evidence showing that the requested
                     NADARAJAH v. HOLDER                   6877
rates for Rabinovitz, Arulanantham, and Natarajan are below
prevailing market rates for attorneys of comparable skill,
experience, and reputation. See Camacho v. Bridgeport Fin.,
Inc., 523 F.3d 973, 980 (9th Cir. 2008) (quoting Gates v.
Deukmejian, 987 F.2d 1392, 1397-98 (9th Cir. 1992) (“The
party opposing the fee application has a burden of rebuttal
that requires submission of evidence . . . challenging the accu-
racy and reasonableness of the . . . facts asserted by the pre-
vailing party in its submitted affidavits.”))

   Nadarajah’s evidence regarding the prevailing market rates
is corroborated by the Appellate Commissioner’s review of
many other fee applications. Accordingly, Nadarajah is
awarded the requested hourly rates for Rabinovitz, Arula-
nantham, and Natarajan, subject to the 5 percent and 20 per-
cent reductions applied to Arulanantham’s and Natarajan’s
hourly rates in Nadarajah’s calculation of the total fees
requested.

  2.   Adjusted Statutory Maximum Hourly Rate

   Nadarajah requests compensation at the adjusted statutory
maximum hourly rate of $162.50 for 2006 work by the
remaining attorneys, Lhamon, Pastore, and Rosenbaum. The
government does not object to the requested adjusted statutory
maximum hourly rate, and Nadarajah has calculated the rate
correctly. See Thangaraja, 429 F.3d at 876-77 (cost-of-living
increases are calculated by multiplying the $125 statutory
maximum hourly rate by the annual average consumer price
index figure for all urban consumers (“CPI-U”) for the years
in which the attorney’s work was performed and dividing by
the CPI-U figure for March 1996 (155.7), the effective date
of the statutory maximum hourly rate); see also Dept. of
Labor, Bureau of Labor Statistics, Table 1A. CPI-U: U.S. city
average at http://data.bls.gov/cgi-bin/surveymost; Notice Re:
Statutory     Maximum        Rates      Under    EAJA       at
www.ca9.uscourts.gov. Accordingly, Nadarajah is awarded
the requested $162.50 hourly rate for Lhamon, Pastore, and
6878                 NADARAJAH v. HOLDER
Rosenbaum, subject to the 5 percent reduction applied to
these hourly rates in Nadarajah’s calculation of the total fees
requested.

  3.    Paralegal And Intern Rates

   Nadarajah requests hourly rates of $100 per hour for par-
alegals and $75 per hour for law student interns. The govern-
ment does not object. Based on the Appellate Commissioner’s
experience, the requested paralegal and law student intern
rates are “in line with those [rates] prevailing in the commu-
nity for similar services by [paralegals] of reasonably compa-
rable skill, experience and reputation.” Blum, 465 U.S. at 895
& n.11. The requested hourly rates for the paralegals and
interns are awarded, subject to the 5 percent and 20 percent
reductions applied to the respective hourly rates in Nadara-
jah’s calculation of the total fees requested. See Richlin Sec.
Serv. v. Chertoff, 128 S. Ct. 2007, 2013, 2019 (2008) (under
EAJA, paralegal fees may be awarded at prevailing market
rates; recovery of paralegal fees is not limited to attorney’s
cost for services).

B.     Number Of Hours

   Nadarajah requests 861.5 hours for the representation
before the IJ, Board of Immigration Appeals (“BIA”), district
court, and Ninth Circuit. There are discrepancies among
Nadarajah’s and the government’s breakdowns of the number
of hours incurred before each forum. The document entitled
“Nadarajah Market Rate Totals,” submitted by stipulation of
the parties and reproduced above, is used in determining the
reasonable hours.

   The government objects generally that the hours requested
for the ACLU legal workers are “excessive, such as dupli-
cated time for multiple attorneys to conduct the same task or
review the same document.” The government does not object
to Rabinovitz’s time entries or requested hours.
                      NADARAJAH v. HOLDER                    6879
   Arulanantham’s declaration states that he exercised billing
judgment to ensure that the requested hours are reasonable.
He eliminated a number of entries he thought were duplica-
tive or not essential to the litigation. Where the three lead
attorneys’ time entries were inconsistent, he applied the
shorter of the times in the different entries. In addition, Arula-
nantham reduced the hourly rates by 5 percent and 20 percent,
as discussed above. This across-the-board reduction was not
applied to Rabinovitz’s fees, but Rabinovitz states in her dec-
laration that “I exercised billing judgment by significantly
reducing the number of hours I spent consulting with co-
counsel. Although I believe the fees I eliminated were com-
pensable, I nevertheless chose not to seek compensation for
that work, out of an abundance of caution to ensure we were
not billing excessively.”

   A review of the record and the ACLU and Rabinovitz time
sheets reveals no unreasonable duplication of effort. Except
for the hours disallowed below, pursuant to the government’s
specific objections, the requested hours were reasonably
expended and are awarded. See Hensley, 461 U.S. at 433-34.

  1.   Agency Representation

   Nadarajah requests 151.5 hours and $28,164.34 in fees for
the representation before the IJ by Arulanantham, Natarajan,
paralegals, and interns. Nadarajah also requests 40.6 hours
and $9,976.31 in fees for the representation before the Board
of Immigration Appeals (“BIA”) by Arulanantham, Natarajan,
and the paralegals.

   The government correctly objects to Nadarajah’s request
for fees for representation before the IJ and the BIA. See
Ardestani v. INS, 502 U.S. 129, 136 (1991) (administrative
deportation proceedings are not adversary adjudications under
Administrative Procedure Act and therefore do not fall within
category of proceedings for which EAJA award is autho-
rized).
6880                 NADARAJAH v. HOLDER
   Nadarajah argues that he may recover fees for the adminis-
trative agency representation because this work was “inti-
mately connected” to the habeas corpus litigation before the
district court and this court, on which he prevailed, and there-
fore that EAJA fees are authorized. This argument fails.

    Nadarajah relies on pre-Ardestani cases holding that EAJA
fees may be awarded for administrative proceedings “inti-
mately tied to the resolution of the judicial action and neces-
sary to the attainment of the results Congress sought to
promote by providing for fees.” Pollgreen v. Morris, 911 F.2d
527, 534-36 (11th Cir. 1990) (citing Sullivan v. Hudson, 490
U.S. 877, 888 (1989)). Since Ardestani, Hudson’s holding has
been narrowly applied and limited to post-litigation situations
like Pollgreen, where there was a court-ordered remand for
further administrative proceedings and the agency representa-
tion was necessary to carrying out the court’s order. See
Friends of Boundary Waters Wilderness v. Thomas, 53 F.3d
881, 887-88 (8th Cir. 1995) (collecting cases). “[P]re-
litigation administrative proceedings do not have the requisite
ancillary relationship with the judicial action,” to permit an
award of fees under Hudson. Id. at 887.

   In contrast, Nadarajah claims fees for counsel’s efforts in
building the evidentiary record before the administrative
agency during the IJ and BIA removal proceedings, before the
district court action or the appeal to this court were filed.
Nadarajah contends that because counsel submitted the
removal proceeding record to the district court, in lieu of
requesting an evidentiary hearing, Nadarajah should be
awarded EAJA fees for the administrative proceedings. In
support of this argument, Nadarajah cites Webb v. Bd. of
Educ. of Dyer County, 471 U.S. 234, 243 n.19 (1985), and
Lambert v. Fulton County, 151 F.Supp.2d 1364, 1372 (N.D.
Ga. 2000) (citing Pennsylvania v. Del. Valley Citizens Coun-
cil for Clean Air, 478 U.S. 546, 561 (1986)). None of the
cited cases involve EAJA or administrative removal proceed-
ings. Webb and Delaware Valley are pre-Ardestani, and Lam-
                        NADARAJAH v. HOLDER                 6881
bert is not binding authority in the Ninth Circuit. The cases
cited by Nadarajah are not dispositive here.

   Nadarajah argues that he submitted the administrative
record in lieu of an evidentiary hearing to “conserv[e] the
resources of all concerned,” and that “reading EAJA to effec-
tively punish counsel for this choice creates a perverse incen-
tive to waste judicial resources . . . in the hope of recovering
fees.” Nadarajah invokes language from Hudson‘s language
regarding avoiding anomalous results and frustrating the pur-
poses of EAJA. The Hudson court reasoned that barring
EAJA fees for mandatory, court-ordered administrative pro-
ceedings on remand would “throw the Social Security claim-
ant a lifeline that was too short” and create an “incentive . . .
for attorneys to abandon claimants after judicial remand.”
Hudson, 490 U.S. at 890.

    Counsel’s efforts to avoid a duplicative evidentiary hearing
are commendable, and they are relevant to the determination
of the reasonable fee for the district court proceedings. Never-
theless, the Hudson rationale does not justify an award of fees
for the pre-litigation administrative removal proceedings here,
which were not undertaken pursuant to a court order. The pre-
litigation administrative proceedings here did not involve “the
requisite degree of direct interaction between a federal court
and an administrative agency to justify an award of fees”
under EAJA. Friends of Boundary Waters Wilderness, 53
F.3d at 887.

   Nadarajah’s request for 192.1 hours and $38,140.65 in fees
for the IJ and BIA representation by Arulanantham, Natara-
jan, and the paralegals is denied.

  2.   District Court

  For the district court habeas corpus proceedings, Nadarajah
requests 13.45 hours and $6,725 in fees for Rabinovitz and
153.5 hours and $38,045.80 in fees for Arulanantham, Natara-
6882                  NADARAJAH v. HOLDER
jan, and the paralegals. The district court proceedings were
pending from September 24, 2004 to October 28, 2005. The
government does not object to the hours requested by
Rabinovitz. In a chart, attached as Exhibit A to the govern-
ment’s opposition, the government objects to specific hours
billed by the others for the district court proceedings, but does
not state the reasons for the objections. Nadarajah has not
responded to the specific objections, arguing that they are
without basis or authority. Indeed, “[i]f opposing counsel can-
not come up with specific reasons for reducing the fee request
that the . . . court finds persuasive, [the court] should normally
grant the award in full, or with no more than a haircut [that
is, a small, 10 percent reduction].” Moreno v. City of Sacra-
mento, 534 F.3d 1106, 1112, 1116 (9th Cir. 2008). Neverthe-
less, the rationales for some of the objections are apparent,
and some of the objections have merit.

       a. Clerical

   The government objects to the following entries by a par-
alegal:

  1.85 hours (of a total 3.7 hours) on August 17, 2004 (ID
No. 23630) for research and an email to Natarajan regarding
habeas corpus petitions, filing procedures, and attorney
admission, and for requesting checks for the filing and attor-
ney admission fees;

   2.7 hours from August 19 to September 21, 2004 (ID Nos.
23633, 23635, 23722, 23750 & 24012) for obtaining tran-
scripts of the immigration court proceedings for submission to
the district court, which involved telephone calls and follow-
up correspondence to the immigration court, memos to Arula-
nantham and Natarajan, and purchase of and sending blank
tapes to the immigration court;

  0.5 hour on March 18, 2005 (ID No. 24747) for “prepare
cover ltr for return of cashiers check”;
                     NADARAJAH v. HOLDER                  6883
  0.2 hour on March 25, 2005 (ID No. 24748) for “track
package”; and

   0.8 hour on February 16, 2005 (ID No. 24557) for “Assem-
ble and organize documents pertaining to exclusion of evi-
dence; correspondence to J. Silk and H. Forden of the
Lowenstein Human Rights Clinic forwarding same.”

   Apparently, the government contends that the filing, tran-
script, and document organization time was clerical in nature
and should have been subsumed in firm overhead rather than
billed at paralegal rates. This contention has merit. See Davis
v. City & County of San Francisco, 976 F.2d 1536, 1543 (9th
Cir. 1992) (citing Missouri v. Jenkins, 491 U.S. 274, 288 n.10
(1989)); see also Keith v. Volpe, 644 F. Supp. 1312, 1316
(C.D. Cal. 1986). When clerical tasks are billed at hourly
rates, the court should reduce the hours requested to account
for the billing errors. See Davis, 976 F.2d at 1543; see also
Action on Smoking & Health v. CAB, 724 F.2d 211, 222-23
(D.C. Cir. 1984).

   To account for the paralegal’s billing of clerical work, the
district court fee request is reduced by 6.05 hours at the par-
alegal’s $100 hourly rate, reduced 5 percent by Nadarajah’s
counsel to $95. Accordingly, the district court fees are
reduced by a total of $574.50 on this ground.

      b. Unnecessary/Staffing

  The government objects to the following entries by Arula-
nantham:

  1.1 hours on September 30, 2004 (ID No. 27078) for “PC
on habeas petition with Ranjana and Judy, research on other
habeas petitions to challenge parole denials”;

  2.35 hours on September 23, 2004 (ID No. 27082) for “dis-
cussion w/ Ranjana and Judy on brief”;
6884                NADARAJAH v. HOLDER
   1.8 hours on January 26, 2005 (ID No. 27100) for “Calls
to get amicus help on confrontation arguments”;

   0.7 hour on January 27, 2005 (ID No. 27101) for “Letter to
client with documents, pictures, etc. Also call to opposing
counsel regarding trip to Sri Lanka”;

  1.1 hours on April 11, 2005 (ID No. 27274) for “Review
of Lowenstein Clinic materials on secrecy and due process”;

  1.7 hours on April 12, 2005 (ID No. 27274) for “Review
of Lowenstein materials on secrecy and due process”;

   1.1 hours on May 2, 2005 (ID No. 27277) for “Confronta-
tion Clause research”; and

  0.7 hour on August 16, 2005 (ID No. 27288) for “review
of legislative history memo.”

   The government apparently contends that the case was
overstaffed, or objects to as unnecessary Arulanantham’s con-
ferencing with two other attorneys, consultation with amicus
curiae, and, while the habeas corpus petition was pending,
continuing to research and develop certain issues. This court
recently addressed whether a civil rights attorney’s time was
unnecessary:

    Lawyers are not likely to spend unnecessary time on
    contingency fee cases in the hope of inflating their
    fees. The payoff is too uncertain, as to the result and
    the amount of the fee. It would therefore be the
    highly atypical civil rights case where plaintiff ’s
    lawyer engages in churning. By and large, the court
    should defer to the winning lawyer’s professional
    judgment as to how much time he was required to
    spend on the case; after all, he won, and might not
    have, had he been more of a slacker.
                      NADARAJAH v. HOLDER                    6885
Moreno, 534 F.3d at 1112. Moreover, “the . . . court may not
set the fee based on speculation as to how other firms would
have staffed the case.” Id. at 1114. “Modeling law firm eco-
nomics drifts far afield of the Hensley calculus and the statu-
tory goal of sufficiently compensating counsel in order to
attract qualified attorneys to do civil rights work.” Id. at 1115.
Based on the Appellate Commissioner’s review of fee appli-
cations in similar cases, Arulanantham reasonably expended
the contested hours, and the hours are awarded.

       c. Other

   The time sheets submitted in support of Nadarajah’s fee
request are coded by forum, but some time entries do not have
a forum code. The government’s objection chart, attached as
Exhibit A to its opposition, employs Nadarajah’s timesheet’s
coding. Some of the objections on the chart, therefore, are not
coded by forum. Thus, the government’s objections for the
period the district court proceedings were pending include
uncoded entries not discussed above. The government appar-
ently objects to these entries because they involve time spent
before the administrative agency and on the Ninth Circuit
mandamus petition. The government’s objections to time
spent before the administrative agency and on the Ninth Cir-
cuit mandamus petition are addressed elsewhere, and the
hours requested for the district court proceedings are not
reduced further on this ground.

   Counsel’s efforts to avoid a duplicative evidentiary hearing
in the district court, by submitting the transcripts of the
administrative hearings, are taken into account in awarding
reasonable fee for the district court proceedings.

  3.   Ninth Circuit Mandamus Petition (No. 05-75841)

  For the Ninth Circuit Mandamus petition, Nadarajah
requests 20.1 hours and $4,013.16 in fees for Arulanantham,
Natarajan, and the paralegals, and 119.7 hours and $7,182 in
6886                 NADARAJAH v. HOLDER
fees for the law student interns. The mandamus petition was
pending from October 11 to December 7, 2005.

    a. Entitlement

   The government objects to Nadarajah’s request for EAJA
fees for filing the Ninth Circuit petition for a writ of manda-
mus, which sought to compel the district court to decide
Nadarajah’s pending habeas corpus petition. The government
argues that the government was not a party to the mandamus
petition and that Nadarajah did not prevail on the mandamus
petition. After the district court decided the habeas corpus
petition, Nadarajah withdrew the mandamus petition and this
court did not have an opportunity to address its merits.

   The government’s objection is not supported by legal
authority and lacks merit. The government was a real party in
interest to the mandamus petition, which was a reasonable
step in the habeas corpus litigation against the government in
which Nadarajah ultimately prevailed. See Cabrales v. County
of Los Angeles, 935 F.2d 1050, 1053 (1991) (Henley estab-
lishes the general rule allowing attorneys’ fees for services
that contribute to the ultimate victory in the lawsuit); Del.
Valley, 478 U.S. at 561 (attorneys’ fees may be awarded for
work that is useful and of a type ordinarily necessary to
secure the final result obtained from the litigation); see also
Moore v. Jas. H. Matthews & Co., 682 F.2d 830, 839 (9th Cir.
1982) (standard is whether work “would have been
undertaken by a reasonable and prudent lawyer to advance or
protect [the] client’s interest in the pursuit of a successful
recovery”).

   When Nadarajah filed the district court habeas corpus peti-
tion, he had been in detention for four years, since October
2001, despite twice winning asylum. Nadarajah was denied
parole while the government appealed the IJ decisions. When
Nadarajah filed the Ninth Circuit mandamus petition, the
habeas corpus petition seeking his release had been pending
                     NADARAJAH v. HOLDER                   6887
one year without a decision. In these circumstances, Nadara-
jah’s counsel reasonably believed that mandamus relief was
necessary to secure Nadarajah’s timely release or obtain
denial of the petition so that Nadarajah could appeal to the
Ninth Circuit. According to the mandamus petition, Nadara-
jah’s counsel already had telephoned the district court regard-
ing the status of the case and filed a request for a decision or
status conference.

   Nadarajah’s mandamus petition may well have been the
catalyst for the district court’s habeas corpus decision,
although this court ‘s intervention was unnecessary. This is
not an atypical occurrence when a mandamus petition is filed
to compel district court action. Nadarajah filed the mandamus
petition on October 11, 2005, and the district court issued its
decision on the habeas corpus petition on October 27, 2005.
Once Nadarajah obtained the district court’s ruling on the
habeas corpus petition, he filed and prevailed in his Ninth Cir-
cuit appeal, securing all the relief he sought against the gov-
ernment in the habeas corpus litigation — his immediate
release in March, 2006, after five years of detention.

   Therefore, this court determined that Nadarajah was a pre-
vailing party entitled to an award of EAJA fees for the habeas
corpus litigation. Because Nadarajah’s mandamus petition
was a reasonable step in the habeas corpus litigation, in which
Nadarajah ultimately prevailed, Nadarajah is entitled to EAJA
fees for his attorneys’ work on the mandamus petition. See
Cabrales, 935 F.2d at 1053.

    b. Reasonableness

   Besides objecting generally to awarding fees for the man-
damus petition, the government does not state other reasons
for objecting to the time entries regarding the mandamus peti-
tion. Notably, Nadarajah’s counsel does not appear to have
billed for filing the motion to withdraw the mandamus peti-
tion, after the district court issued a decision. The use of law
6888                 NADARAJAH v. HOLDER
student interns for the majority of the work was cost-effective.
But a review of the time entries shows that some paralegal
time was spent on impermissible clerical activities, as fol-
lows:

   4.5 hours on September 30, 2005 (ID No. 25765) for “As-
semble and organize exhibits to Petition for Writ of Manda-
mus; revisions to Petition; prepare certificate of compliance
and statement of related cases; t/c w/ court clerk re procedure
for mandamus; prepare check request for filing fee”;

   0.2 hour (ID No. 25779) on October 13, 2005 for “Check
docket to confirm receipt of mandamus petition; email to AA
re same”; and

  0.2 hour (ID No. 25829) on October 24, 2005 for “Check
docket for briefing schedule or order re: Petition for Writ of
Mandamus; email to AA, RN re: same.”

   To account for the paralegal’s billing of clerical work, the
mandamus petition fee request is reduced by 4.9 hours at the
paralegal’s $100 hourly rate, reduced 5 percent by Nadara-
jah’s counsel to $95. Accordingly, the district court fees are
reduced by a total of $465.50 on this ground.

  4.    Ninth Circuit Appeal (No. 05-56759)

  For the Ninth Circuit appeal, other than the fee litigation,
Nadarajah requests 36.25 hours and $18,125 in fees for
Rabinovitz, 266.4 hours and $70,167.12 in fees for Arula-
nantham, Natarajan, and the paralegals, and 3.4 hours and
$204 for law student interns. The notice of appeal was filed
November 10, 2005. The government does not object to the
Ninth Circuit hours requested for Rabinovitz.

       a. Client Communication

  The government contends, without citing specific time
entries or legal authority, that Arulanantham should not have
                      NADARAJAH v. HOLDER                    6889
spent 17 hours visiting and briefing Nadarajah, because on
appeal the client needs no preparation and the attorney needs
little or no client input. In Exhibit A to the government’s
opposition, however, the government objects to the following
time entries by Arulanantham that relate to client communica-
tion, without providing reasons for the objections: 0.5 hour of
total 1 hour on November 2, 2005 (ID No. 27295) for “Work
on strategy and review of opinion after district court denied
habeas. Also drafted letter to client, along with articles for his
review concerning situation in Sri Lanka”; and

   4.35 hours on November 12, 2005 (ID No. 27303) for
“Visit to client, long discussion of case status with habeas and
its interaction with removal proceedings. Travel to and from
Otay Mesa.”

   Nadarajah responds that the detention center’s distant loca-
tion and cumbersome telephone visitation procedures justified
spending so many hours for client visiting and briefing during
the appeal. Moreover, Nadarajah is not fluent in English and
Arulanantham is not fluent in Tamil. Under the circum-
stances, all hours requested for client communication were
reasonably expended. See Hensley, 461 U.S. at 433-34.

    b. Oral Argument

   The government contends, without citing specific time
entries or legal authority, that Arulanantham should not have
required 40 hours to prepare for oral argument, because
Arulanantham already had spent more than 40 hours briefing
the appeal. This contention lacks merit. As discussed above,
this was a significant case because of its importance to
Nadarajah, who had been detained for more than four years,
and its impact on the law regarding indefinite detention. The
case also was complex, presenting unique statutory and con-
stitutional questions that required a 58-page brief, warranted
an amicus curiae brief, and resulted in a 15-page opinion.
6890                 NADARAJAH v. HOLDER
   To prepare for oral argument, Arulanantham states that he
reviewed the voluminous record, researched the opinions of
the panel judges, organized two moot court arguments with
experienced ACLU and outside counsel, and researched sev-
eral unbriefed issues, one of which arose at argument.
Nadarajah does not request fees for the outside counsel who
participated in oral argument preparation. Based on the
Appellate Commissioner’s review of fee applications in simi-
larly complex appeals, Arulanantham reasonably spent 40
hours to prepare for oral argument. See Hensley, 461 U.S. at
433-34.

    c. Other

   The government also objects to the following Ninth Circuit
time entries by Arulanantham, without explaining the reasons
for the objections:

  0.5 hour on November 4, 2005 (ID No. 27296) for “talk w/
Judy regarding Njdjh habeas”;

   5 hours on November 8, 2005 (ID No. 27299) for “case law
research on various issues concerning interim reliefs, drafting
motion to expedite and release pending appeal”;

   1.8 hours on November 10, 2005 (ID No. 27300) for “long
conversation and email with AUSA concerning attempt at set-
tlement”;

  2.3 hours on November 11, 2005 (ID No. 27301) for “long
conversation w/ Judy about edits to mtn for interim release”;

  5.5 hours on November 14, 2005 (ID No. 27302) for “final
work on motion to expedite — researching gaps (e.g. Sri Lan-
kan CAT cases), talk w/ Judy Rabinovitz about strategy,
inputting changes to statutory and constitutional section”;

   2.1 hours on December 4, 2005 (ID No. 26991) for “edito-
rial changes to brief (reply on mtn for interim release) dis-
                     NADARAJAH v. HOLDER                   6891
cussed w/ Adam and Judy, research on standard for stays”;
and

  2.6 hour on January 6, 2006 (ID No. 27000) for “Review
of BIA Decision and AG certification papers, strategic
thought about next move for habeas litigation.”

   The reasons for the government’s objections are not clear,
but they appear to be based on concerns about staffing and
necessity discussed above regarding the district court litiga-
tion. A fair amount of conferencing among the attorneys was
reasonable for an appeal of this complexity, and none of the
cited time entries appears unreasonable. See Hensley, 461
U.S. at 433-34. Given Nadarajah’s lengthy detention, Nadara-
jah’s counsel reasonably sought interim relief or an expedited
appeal, which the court granted. See Del. Valley, 478 U.S. at
561; Moore, 682 F.2d at 839. The requested appellate hours
are awarded.

  5.    Fees

   For the fee litigation, Nadarajah requests 56.6 hours and
$13,356.60 in fees for Arulanantham and the paralegals.
Although Pastore assisted with the fee reply, Nadarajah does
not request fees for her work. Arulanantham applied a 20 per-
cent reduction, rather than a 5 percent reduction, to his hourly
rate for the reply.

   The government does not object to specific time entries
concerning the fee litigation. A review of the fee submissions
reveals that the requested time was reasonably expended, and
the time is awarded in full.

C.     Summary

   As discussed above, 203.05 hours and $39,180.65 in fees
are disallowed for the administrative proceedings and for cler-
6892                NADARAJAH v. HOLDER
ical work on the district court and mandamus proceedings.
Fees and hours are awarded as follows:




                             III

                        Conclusion

   Attorneys’ fees in the amount of $156,778.68 are awarded
in favor of appellant Ahilan Nadarajah and against appellee
Michael B. Mukasey. This order sent to the agency shall serve
to amend the court’s mandate.
                    NADARAJAH v. HOLDER                  6893
TALLMAN, Circuit Judge — Concurring in part; dissenting
in part:

   Today the court approves fees well in excess of the amount
Congress deemed appropriate when enacting the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. While I
agree that Nadarajah is entitled to a fee award, and I concur
in the number of hours approved as to each attorney, I believe
the court should follow the legislatively imposed compensa-
tion guidelines for public legal counsel. While this was
undoubtedly a complex immigration case, I do not think it
warrants fees that dwarf not only the congressionally autho-
rized EAJA fees, but also those awarded from the public fisc
to lawyers handling the most complicated cases in the circuit
—i.e., capital habeas corpus appeals. I respectfully dissent.

                      I.   Background

   In 2006, we granted Ahilan Nadarajah’s petition for a writ
of habeas corpus under 28 U.S.C. § 2241. Nadarajah v. Gon-
zales, 443 F.3d 1069, 1084 (9th Cir. 2006). We found that the
alien was wrongfully detained by the United States Immigra-
tion and Naturalization Service during the pendency of his
asylum, withholding of removal, and protection under the
Convention Against Torture immigration proceedings. Id.

   After our decision issued, Nadarajah sought attorney’s fees
under EAJA. The parties briefed the issue and we referred the
claim to our Appellate Commissioner (the “Commissioner”)
for further consideration on the merits and his recommenda-
tion on an appropriate fee award. Once the parties failed to
negotiate an agreed-upon fee award, the Commissioner
entered an order granting $156,778.68 in legal fees to Nadara-
jah’s team of immigration attorneys.

   The Appellee filed a motion to reconsider the Commission-
er’s recommendation, which, with slight modification, the
court upholds today. I disagree only with the Commissioner’s
6894                  NADARAJAH v. HOLDER
recommended hourly fee award with regard to Nadarajah’s
three main attorneys—Judy Rabinovitz, Ahilan Arula-
nantham, and Ranjana Natarajan—for whom the Commis-
sioner recommends, and the majority now grants, enhanced
fees at rates well in excess of hourly rates typically charged
by immigration or habeas attorneys.

                II.   Enhanced Hourly Fees

   The EAJA provides that fees may be awarded “based upon
prevailing market rates for the kind and quality of the services
furnished” so long as those fees do not exceed $125 per hour.
28 U.S.C. § 2412(d)(2)(A). A court may decide that this
amount should be modified if a cost-of-living increase or
some “special factor, such as the limited availability of quali-
fied attorneys for the proceedings involved, justifies a higher
fee.” Id.

    In Love v. Reilly, 924 F.2d 1492 (9th Cir. 1991), we delin-
eated a three-part test that governs what a petitioner must
show in order to receive an award of enhanced attorneys fees
above the statutory maximum: (1) “the attorney must possess
distinctive knowledge and skills developed through a practice
specialty”; (2) “those distinctive skills must be needed in the
litigation”; and (3) “those skills must not be available else-
where at the statutory rate.” Id. at 1496. We most recently
reaffirmed the three-pronged inquiry in Natural Resources
Defense Council, Inc. v. Winter, 543 F.3d 1152, 1158 (9th
Cir. 2008).

   While neither Love nor Winter dealt with a specialization
in immigration, we have recognized that an attorney can spe-
cialize in that field. In Rueda-Menicucci v. INS, 132 F.3d 493
(9th Cir. 1997), we found that “a speciality in immigration
law could be a special factor warranting an enhancement of
the statutory rate.” Id. at 496 (citing Pirus v. Bowen, 869 F.2d
536, 542 (9th Cir. 1989)). However, the Rueda-Menicucci
panel did not grant an enhancement based on the attorneys’
                     NADARAJAH v. HOLDER                    6895
specialization. Instead, we found that there was a need to
adjust the statutory maximum amount—at that time $75 per
hour—to account for inflation. Id.

  We have rarely decided to grant special factor enhance-
ments in immigration cases, and these few previously ren-
dered decisions have eluded publication. See Freeman v.
Mukasey, No. 04-35797, 2008 WL 1960838, at *4 (9th Cir.
Feb 26, 2008); Fang v. Gonzales, No. 03-71352, 2006 WL
5669901, at * 3 (9th Cir. Oct. 30, 2006).

                   A.    Practice Specialty

   The first prong of the three-part test is to determine whether
“the attorney . . . possess[es] distinctive knowledge and skills
developed through a practice specialty.” Love, 924 F.2d at
1496. On this point, the statute contemplates that attorneys be
“qualified . . . in some specialized sense, rather than just in
their general legal competence.” Pierce v. Underwood, 487
U.S. 552, 572 (1988). Distinctive knowledge, in turn, may be
“an identifiable practice specialty such as patent law, or
knowledge of foreign law or language.” Id. “Although a court
may find that other ‘special factors’ counsel in favor of an
enhanced fee award, these special factors may not be ‘of
broad and general application.’ ” Winter, 543 F.3d at 1158
(quoting Pierce, 487 U.S. at 573).

   I could find no cases in which one of our panels defini-
tively ruled that the attorney possessed the requisite special-
ization in immigration, though cases have noted that such a
specialization could exist. See Thangaraja v. Gonzales, 428
F.3d 870, 876 (9th Cir. 2005); Rueda-Menicucci, 132 F.3d at
496. In Thangaraja, the panel “decline[d] to adopt counsel’s
proposed per se rule that ‘the practice of immigration law
should be classified as a specialty similar to practicing patent
law.’ ” 428 F.3d at 876. It found that generalized experience
in the area of immigration law did not evidence some “ ‘dis-
tinctive knowledge’ or ‘specialized skill’ necessary to litigat-
6896                     NADARAJAH v. HOLDER
ing Thangaraja’s case.” Id. (quoting Rueda-Menicucci, 132
F.3d at 496).

   While we have said that immigration law may have its own
specializations, we have never explained what those might be,
or what prerequisites one must possess to specialize in the field.1

   Two non-published orders determined that the attorneys
had the requisite specialization. The analysis within those
Ninth Circuit orders is premised on a Seventh Circuit case
indicating when one might have “distinctive knowledge” or
“specialized skill” in immigration law. In Muhur v. Ashcroft,
382 F.3d 653 (7th Cir. 2004), the Seventh Circuit concluded,
as we have, that immigration attorneys are not “ipso facto
entitled to fees above the statutory ceiling.” Id. at 656. But,
it added, “the cases pierce the ceiling for immigration lawyers
who bring relevant expertise to a case, such as knowledge of
foreign cultures or of particular, esoteric nooks and crannies
of immigration law, in which such expertise is needed to give
the alien a fair shot at prevailing.” Id. Our two non-published
orders find these “esoteric nooks and crannies of immigration
law.”
  1
    We have stated when an attorney might have a specialization in
another field. Recently, Winter gave some guidance on when one might
possess specialized skill in an environmental case. The junior attorneys
claimed that they had specialized skill in the case because they had
worked on the companion case, worked under time pressures, and were
matched against a gaggle of government attorneys. Winter, 543 F.3d at
1160. We found that none of these indicated that the attorneys were more
specialized in, or possessed distinctive knowledge of, environmental law.
Id. On the other hand, the senior attorney on the case and attorneys from
the Natural Resources Defense Council (“NRDC”) were found to have the
requisite experience for them to have “specialized skill.” The senior attor-
ney had “a broad litigation practice.” Id. at 1156. There was “evidence in
the record that he [had] experience in alternate dispute resolution and arbi-
tration, appellate litigation, entertainment transactions, intellectual prop-
erty litigation, and general litigation,” and he had been co-lead council in
multiple environmental law cases. Id. The NRDC attorneys worked specif-
ically on marine mammal protection and the effect of sonar on marine
wildlife, issues both central to the litigation. Id.; see also id. at 1161.
                     NADARAJAH v. HOLDER                    6897
   First, in Fang, the Commissioner recommended that the
lead attorney in the case, Ms. Smith, should receive an
enhancement above the statutory maximum of $125 per hour.
2006 WL 5669901. Smith’s affidavit stated she had “prac-
ticed all aspects of Immigration law in Montana for the past
11 years,” and was “an adjunct professor of, [and lecturer on,]
immigration law.” Id. at *3. The Commissioner based most of
his decision on the location of the case, Montana, and not on
Smith’s specialization. See discussion infra. However, he at
the very least believed that Smith’s affidavit showed she met
the first prong of the test because she received the requested
enhancement in hourly fees.

   Also, in Freeman, the Commissioner recommended an
increase because “[l]ike Muhur and the cases cited there,
Freeman’s case did not involve merely a ‘straightforward
application’ of well-known rules of immigration law or fed-
eral practice.” 2008 WL 1960838, at *5. Sworn affidavits
convinced the Commissioner that an increase from the statu-
tory maximum of $125 per hour to $250 per hour was war-
ranted. These affidavits stated that the attorney in question
had “more than nine years of distinctive, specialized expertise
in immigration law study, practice, and teaching, with a par-
ticular focus on district court habeas corpus petitions and
adjustment of status involving an untimely death of the peti-
tioning immediate relative.” Id. The Commissioner then
moved on to the other prongs of the test.

   In the instant case, the majority adopts the view that these
attorneys have specialized knowledge in the field of constitu-
tional immigration law and litigation involving the rights of
detained immigrants, and then concludes that their years of
experience in immigration law and the number of cases they
have dealt with concerning detention constitutes special
knowledge. Even though the government does not challenge
Nadarajah’s argument that his attorneys possess “specialized
skill” or “distinctive knowledge,” I find it problematic that the
majority holds attorneys Rabinovitz, Arulanantham, and
6898                     NADARAJAH v. HOLDER
Natarajan have distinctive knowledge in a specialized area of
immigration law warranting such extraordinary hourly rates.

   The majority implicitly relies on the attorneys’ own decla-
rations and two sworn affidavits by additional counsel, find-
ing these three attorneys to possess “distinctive knowledge”
and “specialized skill.” However, we have never explained
what evidence is needed to show that one’s attorneys have a
specialized skill which warrants enhancement of fees. Nor
have we said which areas of immigration law can be consid-
ered a specialization or require some type of “specialized
skill.” It has only been found that generalized “immigration
law” is not such a specialty.

                  B.    Needful in this Litigation

   Though we have embraced this second prong of the test, we
have never held in a published immigration case that the
movant had established that such knowledge or skill was nec-
essary to the litigation. See Thangaraja, 428 F.3d at 876;
Gwaduri v. INS, 362 F.3d 1144, 1147 (9th Cir. 2004); Rueda-
Menicucci, 132 F.3d at 496; Ramon-Sepulveda v. INS, 863
F.2d 1458, 1462-63 (9th Cir. 1988). However, again, unpub-
lished orders have found that specialized skill was needed in
an immigration case. See Freeman, 2008 WL 1960838, at *4
(where the case involved “ ‘matters of first impression’ . . .
involving ‘the interplay between the adjustment of status
regime and the visa waiver program,’ particularly with regard
to surviving spouses, and ‘the text and purpose of [a] complex
statute’ ”) (quoting Freeman v. Gonzales, 444 F.3d 1031,
1033 (9th Cir. 2006)); Fang, 2006 WL 5669901.2

  In the instant case, the majority finds that the attorneys’
specialized knowledge—assuming, arguendo, they possess
  2
   However, district courts within our circuit have found that the special-
ized skill or distinctive knowledge was needful. See, e.g., Lazli v. CIS, No.
05-cv-1680-BR, 2007 WL 2156659 (D. Or. July 25, 2007).
                     NADARAJAH v. HOLDER                    6899
some extraordinarily specialized skill in immigration law—
was necessary for this litigation because it was not a typical
immigration case. The government objects to this finding,
arguing that “[n]ot unlike Thangaraja, this case involved the
application of the immigration detention statutes, Supreme
Court precedent, and an understanding of Constitutional law,
but it turned on statutory interpretation. It did not involve the
application of complex statutes or regulations.” I agree with
the government. At heart, this was a habeas corpus case, no
more complex than most of our death penalty habeas corpus
cases.

   Our decision in Nadarajah required an understanding of the
Tamil Tigers, and statutes and constitutional provisions gov-
erning detention. I remain unconvinced, however, that this
case required such acute and specialized knowledge of deten-
tion and habeas corpus that it could be done by few other than
these three attorneys.

             C.   Availability of Other Counsel

   The EAJA also requires that, for a fee enhancement based
on this special factor, there must be a “limited availability of
qualified attorneys for the proceedings involved.” 28 U.S.C.
§ 2412(d)(1)(D)(2)(A). “[T]he burden rests on Plaintiffs to
demonstrate their entitlement to higher fees” based on the
unavailability of qualified counsel. Winter, 543 F.3d at 1161.
In Love, we declined to decide the proper amount of attor-
neys’ fees until “the district court [made] a further finding as
to the availability of attorneys in the area with similar skills
who would take the case at the statutory rate.” 924 F.2d at
1496-97.

  For Nadarajah, the majority relies on an affidavit from an
immigration attorney in California, swearing that there are
few lawyers in the country who could and would work on a
case such as this; and none who would do it for the statutory
maximum of $125 per hour. While the government fails to
6900                     NADARAJAH v. HOLDER
make a meaningful objection to these statements,3 I find the
reasoning defective.

   First, in one of our previous orders, we stated that Califor-
nia has an overwhelming number of immigration attorneys.
Freeman, 2008 WL 1960838, at *6 (“The government’s con-
tention that Renison practices in California, where this court
has stated that there is no shortage of attorneys qualified to
practice in immigration law, is incorrect. Renison practices in
Oregon.”) (emphasis added).

   Second, both Freeman and Fang focus on the fact that
there were not qualified immigration attorneys in Oregon and
Montana, respectively, so the adjustment was reasonable. As
I read these cases, a significant factor is that the qualified
attorney should be in reasonably close proximity to the client.
In this case, one of the attorneys, Rabinovitz, actually prac-
tices in New York—some 2800 miles from the ACLU in Los
Angeles, California, and even further from the location of
Nadarajah’s southern California detention. It is a bit hard to
believe that there was no qualified attorney anywhere between
the Pacific and Atlantic Oceans. Also, while attorneys Arula-
nantham and Natarajan both practice in Los Angeles, that is
still some distance from where Nadarajah was actually
detained in Otay Mesa, California—located about five miles
from the United States border with Mexico.

   There being “no shortage of attorneys qualified to practice
immigration law” in California, juxtaposed with the fact that
none of Nadarajah’s attorneys are located close to him, I
question the majority’s conclusion that there was no qualified
attorney able to represent Nadarajah at the statutorily imposed
fee ceiling.
  3
   The government simply objects to the Affidavit as a whole, without cit-
ing legal authority, because the affiant, Marc Van Der Hout, does not state
whether he, or immigration practitioners in general, normally bill hourly
or charge a flat fee.
                     NADARAJAH v. HOLDER                    6901
                D.   Prevailing Market Rate

    While this is not a prong of the test we delineated in Love,
the prevailing market rate is the amount to be applied if that
test is satisfied. The EAJA states that “[t]he amount of fees
awarded under this subsection shall be based upon prevailing
market rates for the kind and quality of the services furnished
. . . ,” 28 U.S.C. § 2412(d)(1)(D)(2)(A), if there has been a fee
enhancement due to a special factor. See Blum v. Stenson, 465
U.S. 886 (1984). The Court in Blum stated that the “prevailing
market rate” is “governed by the same standards which pre-
vail in other types of equally complex Federal litigation,” and
is based on “the customary fee for similar work in the com-
munity.” Id. at 893-94 (internal citation and quotation marks
omitted). It does not matter whether the attorneys are typically
private or public-interest counsel. See Sorenson v. Mink, 239
F.3d 1140, 1145 (9th Cir. 2001) (quoting Blum, 465 U.S. at
895 (“fees are based on the ‘prevailing market rates in the rel-
evant community, regardless of whether plaintiff is repre-
sented by private or nonprofit counsel’ ”). The Supreme Court
stated that, regarding the ACLU, “[i]t is in the interest of the
public that such law firms be awarded reasonable attorneys’
fees to be computed in the traditional manner when its coun-
sel perform legal services otherwise entitling them to the
award of attorneys’ fees.” Blum, 465 U.S. at 895 (quoting
Davis v. County of Los Angeles, No. 73-63-WPG, 1974 WL
180 (C.D. Cal. June 5, 1974)).

   Even though it makes no difference whether the client is
represented by private or public interest counsel, a fee award
under the EAJA should not result in a windfall for the attor-
neys. The majority determined the market rate by considering
affidavits from both Rabinovitz and Arulanantham, as well as
supplemental affidavits in support by other attorneys—Marc
Van Der Hout, Carol Sobel, and Michael Lawson. It also
compared the requested hourly rates to those of associates and
partners at private firms like Loeb & Loeb, working in public
6902                    NADARAJAH v. HOLDER
interest, and Skadden, Arps, Slate, Meagher & Flom, a large,
private firm.

  However, after this study, the majority concludes that
Rabinovitz should be awarded a staggering $500 per hour,
four times the statutory maximum to be awarded in EAJA
cases. It also awards both Arulanantham and Natarajan $300
per hour for work in 2004, $315 per hour for 2005, and $335
per hour for 2006. While the award to the latter two attorneys
was reduced by five percent, these amounts are still well in
excess of what we pay attorneys in the most complex cases
before this circuit—i.e., death penalty habeas litigation.

   During the years Nadarajah was represented by Rabinovitz,
Arulanantham, and Natarajan, our most complicated cases
paid far less in hourly rates than these three attorneys are now
awarded.4 The maximum hourly fee permitted for capital
habeas attorneys was $125 per hour in 2004, $160 per hour
in 2005, and $163 per hour in 2006. These amounts, while
higher than those permitted by the EAJA, still pale in compar-
ison to the generous fees awarded today by the majority. I
cannot join the majority opinion in approving this amount to
Nadarajah’s attorneys when equally competent attorneys
working on our most difficult habeas corpus appeals were
paid so much less for work which sometimes means the dif-
ference between life and death.
  4
    The Criminal Justice Act (“CJA”) provides attorney’s fees for
appointed federal criminal defense counsel in death penalty habeas
appeals. See 18 U.S.C. §§ 3006A, 3599. Under the Antiterrorism and
Death Penalty Act (“AEDPA”), 110 Stat. 1214, the court may appoint
attorneys in death penalty habeas cases. See 28 U.S.C. §§ 2254, 2255.
These attorneys are paid through funds allotted by the CJA, and the Judi-
cial Conference has the power to determine the guidelines for the fee
schedule. 18 U.S.C. § 3599(g)(1); see also 28 U.S.C. §§ 2254(h), 2255(g).
The Judicial Conference may increase the maximum hourly payment
based on the adjustments to rates of pay within the General Schedule. See
5 U.S.C. § 5305, 18 U.S.C. § 3599(g). The Judicial Council of the Ninth
Circuit then releases an annual policy incorporating those capital habeas
rates in our circuit.
                     NADARAJAH v. HOLDER                    6903
                       III.   Conclusion

   The EAJA was enacted to “level the playing field” when a
private individual successfully disputes governmental action.
Testimony of Sen. Russ Feingold, 151 Cong. Rec. S12950-02,
2005 WL 3071105, at *S12951 (Nov. 16, 2005). The “EAJA
acknowledges that the resources available to the Federal Gov-
ernment in a legal dispute far outweigh those available to
most Americans.” Id. However, when it enacted EAJA, Con-
gress capped that rate at $125 per hour as the legislative deter-
mination of the amount which properly compensates attorneys
who provide such legal assistance, unless there is some “spe-
cial factor” leading to a fee enhancement. I believe we should
find these “special factors” in the rare instance, where they
are warranted by complex case material, specialized attorney
skill, or where there is a documented inability to find willing
counsel at the statutory rate. Because the amounts awarded
here are substantially in excess of reasonable hourly rates
Congress says we may pay comparable habeas corpus counsel
in complex death penalty litigation, I respectfully dissent from
the excessive rates approved today for Nadarajah’s immigra-
tion attorneys.
                             PRINTED FOR
                   ADMINISTRATIVE OFFICE—U.S. COURTS
                BY THOMSON REUTERS/WEST—SAN FRANCISCO

The summary, which does not constitute a part of the opinion of the court, is copyrighted
                          © 2009 Thomson Reuters/West.
