Order of Supervision: Tenth Circuit Limits ICE Re-Detention

People living under an ICE order of supervision gained a real procedural protection in six Western states this week. In a 2-1 decision issued Oct. 21 in Abedi v. Carter, the U.S. Court of Appeals for the Tenth Circuit held that when ICE re-arrests someone who has a final removal order but has been living freely under supervision, the government cannot treat the first six months of the new detention as automatically reasonable, and it must promptly give the person the informal interview its own regulations promise.

The ruling binds federal courts in Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming. It lands as ICE re-arrests people it could not deport for years, often while it looks for a third country to take them.

Two decades of supervision, then no interview

Kaveh Abedi’s family fled Iran in 1991, when he was 10, and was granted asylum. A later California drug possession conviction put him in removal proceedings, and in September 2002 an immigration judge granted him deferral of removal under the Convention Against Torture, which bars sending him to Iran. ICE released him under supervision, and the court found he complied with its terms for more than two decades.

After moving to Kansas with ICE’s approval, he was detained outside his home on June 23, 2025. The revocation notice said removal “to a country other than Iran is now a possibility” and promised a prompt informal interview. The government did not dispute that none took place for more than six months. A second habeas petition won his release on Feb. 25, 2026.

Judge Carolyn McHugh, joined by Judge Gregory Phillips, held the appeal was not moot because the removal order stands and ICE is still pursuing a third-country removal. The majority found ICE violated 8 C.F.R. § 241.13(i), which says the agency “will conduct an initial informal interview promptly” after a person returns to custody, and treated the lapse as prejudicial in itself. Quoting another circuit, it wrote that “Habeas can be at most a backstop.” Judge Allison Eid dissented, arguing the case became moot once Abedi was released.

The six-month clock ICE wanted to restart

In Zadvydas v. Davis (2001), the Supreme Court read the post-order detention statute, 8 U.S.C. § 1231(a)(6), to allow detention only as long as reasonably necessary to carry out removal, and treated six months as presumptively reasonable. After that, a detainee who shows good reason to believe removal is not likely in the reasonably foreseeable future shifts the burden to the government to prove otherwise.

The government argued that the presumption starts over each time ICE releases and then re-arrests someone, as both Newsweek and the Kansas Reflector reported. The panel disagreed. The district court, it wrote, erred by “holding that the first six months of Mr. Abedi’s re-detention were presumptively reasonable,” and on remand must decide the claim “without the benefit of any presumption.” Both outlets reported that the court tied the presumption to the first six months after the original removal period begins.

The practical effect is that, for someone whose removal period ended years ago, ICE gets no fresh six-month cushion; from the first day of re-detention, a judge can ask whether removal is actually foreseeable. The decision does not cancel removal orders or bar re-arrest. ICE can still detain a supervised person once removal becomes realistic, for example when a third country agrees to accept him, but it must be ready to show that.

Who the order of supervision ruling reaches

The pool is large. ICE’s non-detained docket held 7.3 million people as of Feb. 26, 2026, an estimated 1.6 million of them with final removal orders, according to a Congressional Research Service report. Many with final orders live under supervision because their home countries will not take them back or because, like Abedi, they are protected from return. The same report describes a February 2025 ICE directive telling officers to “carefully review for removal all cases reporting on the non-detained docket,” the instruction behind many check-in arrests.

Elsewhere, the fight continues case by case. A Boston federal judge this month freed a Cuban man ICE could not deport, rejecting a different theory for stopping the clock. The Abedi ruling is also distinct from the Fifth Circuit’s Oct. 23 decision that people never admitted have no due process right to a bond hearing; that case concerned detention while removal proceedings are pending, not after a final order. What links them is the government’s push for third-country deportation deals, which turns long-dormant supervision cases into arrests amid about 980,000 deportations in 18 months, by the Migration Policy Institute’s count.

What comes next

Rehearing window: Because federal officials are parties, the government has 45 days from the Oct. 21 judgment to ask the full Tenth Circuit to rehear the case, and could later seek Supreme Court review.
Remand in Kansas: The district court must reweigh Abedi’s detention claim without the presumption and reconsider his request to block his removal under the correct All Writs Act standard.
Use elsewhere: The decision binds only the six states, but detainees in other circuits are likely to cite it in habeas petitions.

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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