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 compensation 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 authorized 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 Ahílan Nadarajah’s petition for a writ of habeas corpus under 28 U.S.C. § 2241. Nadarajah v. Gonzales, 443 F.3d 1069, 1084 (9th Cir.2006). We found that the alien was wrongfully detained by the United States Immigration 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 recommendation 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 Nadarajah’s team of immigration attorneys.
The Appellee filed a motion to reconsider the Commissioner’s recommendation, which, with slight modification, the court upholds today. I disagree only with the Commissioner’s recommended hourly fee award with regard to Nadarajah’s three main attorneys — Judy Rabinovitz, Ahílan Arulanantham, and Ranjana Natarajan— for whom the Commissioner recommends, and the majority now grants, enhanced fees at rates well in excess of hourly rates typically charged by immigration or habeas attorneys.
*927II. 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 qualified attorneys for the proceedings involved, justifies a higher fee.” Id.
In Love v. Reilly, 924 F.2d 1492 (9th Cir.1991), we delineated 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 elsewhere 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 specialize 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’ 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 enhancements in immigration cases, and these few previously rendered 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 ... possesses] 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, 108 S.Ct. 2541, 101 L.Ed.2d 490 (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, 108 S.Ct. 2541).
I could find no cases in which one of our panels definitively ruled that the attorney possessed the requisite specialization 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 “ ‘distinctive knowledge’ or ‘specialized skill’ necessary to litigating Thangaraja’s case.” Id. (quoting Rueda-Menicucci, 132 F.3d at 496).
*928While 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.”
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 “practiced 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 federal practice.” 2008 WL 1960838, at *5. Sworn affidavits convinced the Commissioner that an increase from the statutory maximum of $125 per hour to $250 per hour was warranted. 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 particular focus on district court habeas corpus petitions and adjustment of status involving an untimely death of the petitioning immediate relative.” Id. The Commissioner then moved on to the other prongs of the test.
*929In the instant case, the majority adopts the view that these attorneys have specialized knowledge in the field of constitutional 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 Natarajan have distinctive knowledge in a specialized area of immigration law warranting such extraordinary hourly rates.
The majority implicitly relies on the attorneys’ own declarations and two sworn affidavits by additional counsel, finding 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 considered 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 necessary 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, unpublished 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 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 governing detention. I remain unconvinced, however, that this case required such acute and specialized knowledge of detention and habeas corpus that it could be done by few other than these three attorneys.
*930C. 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 attorneys’ 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 make a meaningful objection to these statements,3 I find the reasoning defective.
First, in one of our previous orders, we stated that California has an overwhelming number of immigration attorneys. Freeman, 2008 WL 1960838, at *6 (“The government’s contention 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 practices 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 Arulanantham 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.
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, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). The Court in Blum stated that the “prevailing market rate” is “governed by the same standards which prevail in other types of equally complex Federal litigation,” and is based on “the customary fee for similar *931work in the community.” Id. at 893-94, 104 S.Ct. 1541 (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, 104 S.Ct. 1541 (“fees are based on the ‘prevailing market rates in the relevant community, regardless of whether plaintiff is represented 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 counsel perform legal services otherwise entitling them to the award of attorneys’ fees.” Blum, 465 U.S. at 895, 104 S.Ct. 1541 (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 attorneys. 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 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 comparison 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 *932sometimes means the difference between life and death.
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 Government in a legal dispute far outweigh those available to most Americans.” Id. However, when it enacted EAJA, Congress capped that rate at $125 per hour as the legislative determination of the amount which properly compensates attorneys who provide such legal assistance, unless there is some “special 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 immigration attorneys.
. 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 attorney had "a broad litigation practice.” Id. at 1156. There was "evidence in the record that he [had] experience in alternate dispute resolution and arbitration, appellate litigation, entertainment transactions, intellectual property litigation, and general litigation,” and he had been co-lead council in multiple environmental law cases. Id. The NRDC attorneys worked specifically on marine mammal protection and the effect of sonar on marine wildlife, issues both central to the litigation. Id.; see also id. at 1161.
. However, district courts within our circuit have found that the specialized 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).
. The government simply objects to the Affidavit as a whole, without citing 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.
. 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 Judicial 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.