Order of Supervision: Tenth Circuit Limits ICE Re-Detention

The Tenth Circuit ruled that if ICE releases someone because they cannot be deported, the agency must follow its own rules to revoke that release before locking them up again.

On Oct. 21, the U.S. Court of Appeals for the Tenth Circuit ruled that the government broke its own regulation by re-detaining an Iranian man without the prompt informal interview the rule promises. In a published 2-1 decision in Abedi v. Carter, the court also held that a Kansas federal judge was wrong to treat the first six months of the man’s renewed detention as presumptively reasonable, and it refused to dismiss the appeal as moot even though he has since been released. The decision binds federal courts in Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

The question keeps recurring. Many people with old removal orders were freed years ago because their home countries would not take them or a judge barred removal there, and some now face new detention tied to talk of a third country; the opinion cites recent re-detention cases in Colorado, Arizona and Iowa.

Two decades of check-ins, then a notice about “a country other than Iran”

Kaveh Abedi fled Iran in 1991 at age 10 with his family, who were granted asylum, according to the opinion. A California drug-possession conviction led to removal proceedings, and on Sept. 30, 2002, an immigration judge granted him deferral of removal under the Convention Against Torture, which blocks return to Iran but leaves the removal order in place. ICE released him that year because it had been unable to remove him, and he complied with his supervision conditions for more than 20 years, the court said.

Weeks after moving to Kansas with ICE’s approval, he was detained on June 23, 2025, with a notice saying removal “to a country other than Iran is now a possibility.” The government did not dispute that he never got the informal interview the regulation requires. A Kansas federal judge denied his first habeas petition, granted a second in February 2026, and he was released on Feb. 25 after 247 days in custody, a figure calculated from the dates in the opinion.

What the order of supervision rules demand of ICE

Release after a final removal order runs on two regulations. The general one, 8 C.F.R. 241.4, sets periodic custody reviews; 8 C.F.R. 241.13 applies when ICE has found no significant likelihood of removal in the reasonably foreseeable future, and it limits how that finding can be undone. ICE may revoke release only if, “on account of changed circumstances,” it determines removal has become significantly likely; it must tell the person why; and it must hold an informal interview “promptly” after the arrest so the person can answer with evidence.

Judge Carolyn McHugh, writing for herself and Judge Gregory Phillips, held that Abedi’s 2002 release fell under section 241.13 and that the government “cannot move a noncitizen from the § 241.13 category to the § 241.4 category without first following the process set forth in § 241.13(i).” Skipping the prompt interview violated the regulation’s due process protections, the court said.

The second holding concerns Zadvydas v. Davis, the 2001 Supreme Court decision limiting post-order detention under 8 U.S.C. 1231(a)(6) to what is reasonably necessary for removal, with six months presumptively reasonable. The government argued that the six-month period starts over with each re-arrest, The Epoch Times reported. The majority told the district court to reconsider the claim “without the benefit of any presumption.”

Judge Allison Eid dissented, arguing that Abedi’s release mooted the appeal. The majority found the case “capable of repetition yet evading review” because his removal order stands and “he cannot avoid recurrence of his claimed injury through good conduct.” It also revived his request to bar removal while the habeas case continues.

How far the ruling reaches

In these six states, ICE cannot cancel a long-standing section 241.13 release at will: it must identify changed circumstances and give the person a prompt chance to rebut them, and a re-detained person need not wait out six months before a court asks whether removal is actually foreseeable. The mootness holding also means releasing a petitioner will not necessarily end an appeal.

The decision does not bar re-detention. ICE can still re-arrest someone if it follows the regulation and has a realistic removal plan, and a named third country could supply the required changed circumstances, which ties this case to the fight over third-country deportation agreements now before the Supreme Court. Elsewhere, district judges are reaching their own conclusions, as a Boston judge did in ordering the release of a Cuban man ICE could not deport, and a pending petition asks the justices where detention challenges belong. The government can seek rehearing by the full Tenth Circuit or Supreme Court review; meanwhile the Kansas court must reconsider Abedi’s claims under the panel’s standards.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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