Abedi v. Carter

majority opinion

Appellate Case: 25-3179 Document: 50 Date Filed: 10/21/2026 Page: 1

FILED

United States Court of Appeals

PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS October 21, 2026

Christopher M. Wolpert

FOR THE TENTH CIRCUIT Clerk of Court

KAVEH ABEDI 1,

Petitioner - Appellant,

v. No. 25-3179

CRYSTAL CARTER, Warden, FCILeavenworth; MARKWAYNE MULLIN,

Secretary, Department of Homeland

Security 2; CHRISTOPHER

CHAMBERLIN, Acting Assistant Field

Office Director, UNITED STATES

DEPARTMENT OF HOMELAND

SECURITY, 3

Respondents - Appellees.

------------------------------ROCKY MOUNTAIN IMMIGRANT

ADVOCACY NETWORK,

Amicus Curiae.

Petitioner-Appellant Kaveh Abedi’s first name is misspelled as “Kavah” on

the docket. We direct the Clerk to update the docket to reflect the correct spelling of Mr. Abedi’s first name.

Pursuant to Federal Rule of Appellate Procedure 43(c)(2), the current

Secretary of the Department of Homeland Security, Markwayne Mullin, is automatically substituted for former Secretary Kristi Noem.

The U.S. Department of Homeland Security was named as a respondent in the district court proceedings and has participated as an appellee, but it is not listed on the docket for this appeal. We direct the Clerk to update the docket to include the U.S. Department of Homeland Security as a Respondent–Appellee.

Appellate Case: 25-3179 Document: 50 Date Filed: 10/21/2026 Page: 2

Appeal from the United States District Court

for the District of Kansas

(D.C. No. 5:25-CV-03141-JWL)

Rekha Sharma-Crawford, Sharma-Crawford, Attorneys at Law, LLC, Kansas City, Missouri, for Petitioner-Appellant.

Russell J. Keller, Assistant United States Attorney (Ryan A. Kriegshauser, United States Attorney, with him on the brief), District of Kansas, Kansas City, Kansas, for Respondents-Appellees.

Virginia M. Creighton, Blaire Bayliss and Iva Velickovic, Wheeler Trigg O’Donnell LLP, Denver Colorado, filed an amicus curiae brief for the Rocky Mountain Immigrant Advocacy Network in support of the Petitioner-Appellant.

Before PHILLIPS, McHUGH, and EID, Circuit Judges.

McHUGH, Circuit Judge.

Petitioner-Appellant Kaveh Abedi, a native and citizen of Iran, filed a habeas

petition to challenge the legality of his immigration detention. The district court

denied his habeas petition, and he filed this appeal. While the appeal was pending,

Mr. Abedi filed a second habeas petition in which he sought release based on the

length of his detention and the unlikelihood that he will be removed from the United

States in the reasonably foreseeable future. The district court granted the second

habeas petition, and Mr. Abedi was therefore released from detention.

Respondents-Appellees Crystal Carter, Markwayne Mullin, Christopher

Chamberlain, and the U.S. Department of Homeland Security (collectively, “the

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Government”) argue that Mr. Abedi’s release from detention mooted this appeal.

However, we conclude that this case falls within the mootness exception for wrongs

capable of repetition yet evading review. And on the merits, we conclude that the

district court committed various legal errors in assessing Mr. Abedi’s claims for

relief. We therefore reverse and remand for further proceedings consistent with this

opinion.

I. BACKGROUND

Mr. Abedi was born in Iran. In 1991, when he was ten years old, his family

fled Iran and entered the United States, where they were granted asylum. Shortly

after Mr. Abedi turned twenty-one, however, he was convicted in a California state

court on a single drug possession count. He was accordingly placed in removal

proceedings. See 8 U.S.C. § 1227(a)(2)(B)(i) (“Any [noncitizen] who at any time

after admission has been convicted of a violation of . . . any law or

regulation . . . relating to a controlled substance . . . , other than a single offense

involving possession for one’s own use of 30 grams or less of marijuana, is

deportable.”).

On September 30, 2002, an immigration judge granted Mr. Abedi’s request for

deferral of removal under the Convention Against Torture (“CAT”). Mr. Abedi was

thereafter released under an order of supervision. See 8 C.F.R. § 241.13 (setting forth

the procedures governing the release of noncitizens subject to a final order of

removal who are unlikely to be removed from the United States in the reasonably

foreseeable future). Over the next twenty-plus years, Mr. Abedi complied with all

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requirements imposed by immigration officials as part of the conditions of his

release, including attending check-in meetings as required and seeking advance

permission before traveling outside of the state where he resided.

In 2016, Mr. Abedi married a U.S. citizen who had been his high school

classmate. Since 2020, Mr. Abedi has been the primary provider and caretaker for his

wife, whose chronic health conditions prevent her from continuing to work in her

prior profession as a chef.

Around May 2025, Mr. Abedi and his wife decided to relocate from California

to Kansas for financial reasons. The Immigration and Customs Enforcement (“ICE”)

office in San Diego approved their move, and they relocated to Kansas at the

beginning of June 2025.

On the morning of June 23, 2025, Mr. Abedi and his wife encountered ICE

officers in their front yard. The officers handcuffed and detained Mr. Abedi. One

officer told Mr. Abedi’s wife that Mr. Abedi was being deported to Iran. Mr. Abedi’s

wife responded that he had his papers and that he would be killed if he was sent to

Iran. But the officers loaded Mr. Abedi in an unmarked van and drove away.

The officers initially took Mr. Abedi to a county jail. They informed

Mr. Abedi that they intended to deport him to Iran despite the immigration judge’s

order deferring removal under the CAT, but they did not give him any other

explanation or information about his detention. And they did not accuse him of

violating any of the terms of his order of supervision.

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While Mr. Abedi was in detention, immigration officials allegedly provided

him with a Notice of Revocation of Release. The Notice of Revocation stated that

Mr. Abedi’s order of supervision had been revoked because “[r]emoval to a country

other than Iran is now a possibility.” App. Vol. I at 93. The Notice of Revocation

promised that Mr. Abedi would “promptly be afforded an informal interview at which

[he] w[ould] be given an opportunity to respond to the reasons for the revocation.”

Id.; see also 8 C.F.R. § 241.13(i)(3) (setting forth various procedures, including the

requirement for a prompt informal interview, that govern the revocation of release for

a noncitizen who was released pursuant to § 241.13 based on the unlikelihood of

removal in the reasonably foreseeable future). Mr. Abedi asserts, and the Government

does not dispute, that—as of the time of briefing in this appeal—he had never

received the promised informal interview. 4

On July 21, 2025, four weeks after he was re-detained, Mr. Abedi filed the

instant habeas petition under 28 U.S.C. § 2241, challenging the legality of his

detention on several grounds. Among other arguments, Mr. Abedi contended that ICE

had violated its own regulations, as well as his due process rights, by revoking his

As discussed in more detail below, Mr. Abedi filed a second habeas petition on January 16, 2026. We take judicial notice of relevant documents filed in the second habeas proceeding, see Bunn v. Perdue, 966 F.3d 1094, 1096 n.4 (10th Cir. 2020), and we note that certain documents filed in that case suggest that the Government may have finally provided Mr. Abedi with an informal interview sometime in January 2026, more than six months after he was re-detained. However, whether an interview occurred more than six months after the revocation of Mr. Abedi’s release or never occurred at all, we would reach the same conclusion in this appeal, and we therefore need not resolve any possible disputes on this point.

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release without notice or an opportunity to be heard. He also argued that his detention

was impermissible under the Supreme Court’s decision in Zadvydas v. Davis, 533

U.S. 678 (2001), because it lacked a reasonable relationship to any legitimate

purpose.

Mr. Abedi requested habeas relief and a declaratory judgment on the legality

of his detention. He also sought a preliminary injunction to prevent the Government

from transferring him outside the jurisdiction of the District of Kansas pending the

resolution of this case, as well as an award of costs and attorneys’ fees. The district

court denied the request for a preliminary injunction in August 2025, then denied the

habeas petition in October 2025. In its order denying habeas relief, the court invited

Mr. Abedi to file a new habeas petition seeking relief under Zadvydas if his detention

extended for more than six months. The district court entered final judgment on

October 6, 2025, and Mr. Abedi filed his notice of appeal on that same day.

On January 16, 2026, shortly before the appellate briefing in this case was

complete, Mr. Abedi filed a second habeas petition in the district court, asserting that

he had now been detained for more than six months with no real likelihood of

imminent removal and that he was therefore entitled to relief under Zadvydas. See

Abedi v. Carter (Abedi II), No. 26-3012-JWL, 2026 WL 482329, at *1 (D. Kan. Feb.

20, 2026). The district court granted the second habeas petition in February 2026. See

id. Mr. Abedi was accordingly released under an order of supervision on February 25,

2026. The Government then filed a motion to dismiss this appeal as moot based on

Mr. Abedi’s release from detention.

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II. DISCUSSION

We first address the Government’s motion to dismiss for mootness, concluding

that this appeal is not moot. Turning then to the merits of the appeal, we consider

Mr. Abedi’s challenge to the district court’s denial of his request for a preliminary

injunction, which we affirm in part and reverse in part. We next consider Mr. Abedi’s

argument that immigration officials violated the regulations applicable to his redetention, and we conclude that he is entitled to declaratory and habeas relief on this

basis. Finally, we address Mr. Abedi’s argument that he was separately entitled to

declaratory and habeas relief pursuant to the Supreme Court’s decision in Zadvydas.

We conclude that the district court evaluated this claim under the wrong standard,

incorrectly holding that the first six months of Mr. Abedi’s re-detention were

presumptively reasonable, and we remand for the district court to reconsider the issue

without the benefit of any presumption.

A. Mootness

1. Legal Background

“Courts recognize two kinds of mootness: constitutional mootness and

prudential mootness.” Rio Grande Silvery Minnow v. Bureau of Reclamation, 601

F.3d 1096, 1121 (10th Cir. 2011). A case becomes constitutionally moot “when the

issues presented are no longer live or the parties lack a legally cognizable interest in

the outcome,” causing there to no longer be the constitutionally required “case or

controversy.” Chafin v. Chafin, 568 U.S. 165, 172 (2013) (internal quotation marks

omitted) (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013)). This occurs,

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however, only “when it is impossible for a court to grant any effectual relief

whatever” to a litigant if that litigant prevails in the action. Id. (quoting Knox v. Serv.

Emps., 567 U.S. 298, 307 (2012)). “As long as the parties have a concrete interest,

however small, in the outcome of the litigation, the case is not moot.” Id. (quoting

Knox, 567 U.S. at 307).

The prudential mootness doctrine applies when, although the case is not

constitutionally moot, “the benefit of injunctive (or declaratory) relief is too slight or

speculative to justify granting such relief.” Eaves v. Polis, 167 F.4th 1304, 1311

(10th Cir. 2026). In such circumstances, the court “may rely on its remedial

discretion” to deny prospective relief. Id.

“Under both Article III and prudential mootness doctrines, the central inquiry

is essentially the same: have circumstances changed since the beginning of litigation

that forestall any occasion for meaningful relief.” Rio Grande Silvery Minnow, 601

F.3d at 1122 (quotation marks omitted). The burden of proof does not apply in the

same way under these two doctrines, however. See Eaves, 167 F.4th at 1312. When a

defendant seeks dismissal of a plaintiff’s claims for prospective relief under the

constitutional mootness doctrine, “[the] defendant bears the burden of establishing

that a grant of at least some meaningful relief to [the] plaintiff is not possible,

because the prospect that the wrong(s) about which [the] plaintiff complained will

recur is highly unlikely.” Id. (citation omitted). “But to avoid dismissal [of these

claims] on the basis of prudential mootness, [the] plaintiff bears the burden of

establishing a recurrent violation of the wrongs about which he complained is more

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than an abstract possibility, such that the court may grant him some meaningful

relief.” Id. (citation omitted).

When the district court addresses mootness in the first instance, we review its

evaluation of constitutional mootness de novo but review its prudential mootness

determination for an abuse of discretion. See Jordan v. Sosa, 654 F.3d 1012, 1023

n.14 (10th Cir. 2011). But when, as in this case, the question of mootness arises after

the district court proceedings have terminated, “we necessarily undertake the

mootness inquiry in the first instance” and therefore “operate on a clean slate as to

both our constitutional and prudential mootness analyses.” Id.

Although “mootness has often been characterized as standing set in a time

frame . . . [,] that characterization is not totally accurate.” Ajaj v. Fed. Bureau of

Prisons, 25 F.4th 805, 811 (10th Cir. 2022) (internal quotation marks omitted).

Specifically, mootness differs from standing in that “(1) there is at least one

exception to mootness (when the terminated action is capable of repetition yet

evading review) that has no counterpart in standing doctrine,” “(2) the defendant has

the burden of proving mootness while the plaintiff must establish standing,” and

(3) “the likelihood of future action by the defendant may be too speculative for

standing but not to overcome mootness.” Id.; see also Friends of the Earth, Inc. v.

Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 190 (2000) (“[T]here are

circumstances in which the prospect that a defendant will engage in (or resume)

harmful conduct may be too speculative to support standing, but not too speculative

to overcome mootness.”); WildEarth Guardians v. Pub. Serv. Co., 690 F.3d 1174,

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1183 (10th Cir. 2012) (“[S]ometimes mootness relies on contested facts, particularly

where the likelihood of future harm is at issue. In such cases, the defendant may be

unable to show mootness, even if the facts . . . would not have been sufficient for the

plaintiff to demonstrate standing at the start of the case.” (citation omitted)).

We have recognized four types of circumstances that we have referred to as

“exceptions to the mootness doctrine,” Riley v. INS, 310 F.3d 1253, 1256 (10th

Cir. 2022), although they might more accurately be viewed as situations in which the

court retains the ability to grant meaningful relief despite the apparent resolution of

the primary injury alleged by the plaintiff. See Chafin, 568 U.S. at 172 (“[A] case

‘becomes moot only when it is impossible for a court to grant any effectual relief

whatever to the prevailing party.’” (quoting Knox, 567 U.S. at 307)); Brown v.

Buhman, 822 F.3d 1151, 1166 (10th Cir. 2016) (“Courts recognize [certain]

‘exceptions’ to the mootness doctrine—situations in which a case remains subject to

federal court jurisdiction notwithstanding the seeming extinguishment of any live

case or controversy.”). Under these so-called mootness exceptions, we may resolve a

seemingly moot case on the merits if (1) “secondary or ‘collateral’ injuries survive

after resolution of the primary injury”; (2) the matter before the court “is deemed a

wrong capable of repetition yet evading review”; (3) “the defendant voluntarily

ceases an allegedly illegal practice but is free to resume it at any time”; or (4) “it is a

properly certified class action suit.” Riley, 310 F.3d at 1257 (quoting Chong v. Dist.

Dir., INS, 264 F.3d 378, 384 (3d Cir. 2001)). The plaintiff bears the burden of

persuasion with respect to the first, second, and fourth mootness exceptions. See Ind

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v. Colo. Dep’t of Corr., 801 F.3d 1209, 1215 (10th Cir. 2015); Spencer v. Kemna,

523 U.S. 1, 14, 18 (1998); Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 78

(2013). On the other hand, a defendant who has voluntarily ceased an allegedly

wrongful practice “bears the heavy burden of persuading the court that the challenged

conduct cannot reasonably be expected to start up again.” Ind, 801 F.3d 1209 at 1214

(quotation marks omitted); see also id. at 1215. We may consider these mootness

exceptions as “an important component of the overall analysis with respect to both

constitutional and prudential mootness.” Rio Grande Silvery Minnow, 601 F.3d

at 1122.

a. Wrongs capable of repetition yet evading review

We conclude that this appeal is not moot based on the mootness exception for

wrongs capable of repetition yet evading review. We therefore address only this

mootness exception and do not reach the parties’ arguments regarding the other

mootness exceptions.

The mootness exception for wrongs capable of repetition yet evading review

applies when “(1) the challenged action is in its duration too short to be fully litigated

prior to cessation or expiration, and (2) there is a reasonable expectation that the

same complaining party will be subject to the same action again.” Brown, 822 F.3d

at 1166 (quotation marks omitted).

Our analysis of this exception is guided by the Supreme Court’s decision in

Turner v. Rogers, 564 U.S. 431 (2011). The petitioner in that case, Michael Turner,

was held in contempt several times based on his repeated failure to pay his court11

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ordered child support. Id. at 436. “The first four times he was sentenced to [ninety]

days’ imprisonment, but he ultimately paid the amount due (twice without being

jailed, twice after spending two or three days in custody).” Id. “The fifth time he did

not pay but completed a 6–month sentence.” Id. When Mr. Turner still failed to pay

his child support after his latest release from jail, the family court judge found him in

willful contempt and sentenced him to twelve months of incarceration. Id. at 437.

Mr. Turner appealed this decision, contending that he was denied his constitutional

right to counsel at his contempt hearing. Id. at 438. The South Carolina Supreme

Court rejected this argument, holding that Mr. Turner was not entitled to counsel in a

civil contempt hearing. Id. Mr. Turner then sought certiorari from the U.S. Supreme

Court. Id. By this point, he had already been released from custody. Id.

Despite Mr. Turner’s release from custody, the Supreme Court held that his

case was “not moot because it falls within a special category of disputes that are

‘capable of repetition’ while ‘evading review.’” Id. at 439 (quoting S. Pac. Terminal

Co. v. ICC, 219 U.S. 498, 515 (1911)). The Court explained that “[a] dispute falls

into that category, and a case based on that dispute remains live, if ‘(1) the

challenged action is in its duration too short to be fully litigated prior to its cessation

or expiration, and (2) there is a reasonable expectation that the same complaining

party will be subjected to the same action again.’” Id. at 439–40 (quoting Weinstein

v. Bradford, 423 U.S. 147, 149 (1975)).

The Court then concluded that both of these prongs were met in Mr. Turner’s

case. See id. at 440. On the first prong, the Court held that its “precedent makes clear

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that the ‘challenged action,’ [Mr.] Turner’s imprisonment for up to [twelve] months,

is ‘in its duration too short to be fully litigated’ through the state courts (and arrive

here) prior to its ‘expiration.’” Id. (quoting Weinstein, 423 U.S. at 149). On the

second prong, the Court reasoned that there was “a more than ‘reasonable’ likelihood

that [Mr.] Turner w[ould] again be ‘subjected to the same action.’” Id. (quoting

Weinstein, 423 U.S. at 149). He had “frequently failed to make his child support

payments” and had “been the subject of several civil contempt proceedings,” for

which he was imprisoned several times. Id. And the Court concluded that “[t]hese

facts bring this case squarely within the special category of cases that are not moot

because the underlying dispute is ‘capable of repetition, yet evading review.’” Id.

(quoting Neb. Press Ass’n v. Stuart, 427 U.S. 539, 546–47 (1976)).

2. Analysis

Applying this test to Mr. Abedi’s circumstances, we conclude that he has

shown both that the challenged action is in its duration too short to be fully litigated

and that there is a reasonable expectation he will be subjected to the same action

again. We therefore conclude this appeal falls within the mootness exception for

wrongs capable of repetition yet evading review, thus defeating the Government’s

constitutional and prudential mootness arguments. See id.; see also Eaves, 167 F.4th

at 1312.

a. Evading review

Mr. Abedi was detained from June 23, 2025, to February 25, 2026. His

immigration detention thus lasted for eight months, four months less than the twelve13

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month imprisonment that the Turner Court held was “clear[ly] . . . ‘in its duration too

short to be fully litigated’ . . . prior to its ‘expiration.’” 564 U.S. at 440 (quoting

Weinstein, 423 U.S. at 149)

Nevertheless, the Government contends that Mr. Abedi has not satisfied this

prong of the mootness exception for disputes capable of repetition yet evading review

because the detention that Mr. Abedi challenges in this appeal “would have been long

enough to fully litigate the matter if [he] had not filed a Second Habeas Petition and

obtained a release order from the district court in Abedi II.” Mot. to Dismiss at 15.

But the Government cites no authority for the proposition that the first prong of this

mootness exception requires courts to consider how long an alleged injury could have

continued if the injured party had not taken steps to stop the injury, and we see no

basis for adopting such a requirement. Cf. FCC v. Consumers’ Rsch., 606 U.S. 656,

671 n.1 (2025) (holding that litigation decisions such as declining to request

preliminary relief do not prevent a party from availing itself of this mootness

exception).

Accordingly, because Mr. Abedi was detained for a significantly shorter period

of time than the twelve-month period of imprisonment that the Supreme Court held

was too short to be fully litigated prior to its expiration in Turner, we hold that

Mr. Abedi has satisfied this prong of the mootness exception for wrongs capable of

repetition yet evading review. See Turner, 564 U.S. at 440.

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b. Capable of repetition

We turn then to “[t]he second prong of the ‘capable of repetition’

exception[, which] requires a ‘reasonable expectation’ or a ‘demonstrated

probability’ that ‘the same controversy will recur involving the same complaining

party.’” FEC v. Wis. Right to Life, 551 U.S. 449, 463 (2007) (quoting Murphy v.

Hunt, 455 U.S. 478, 482 (1982) (per curiam)). “[T]he same controversy [is]

sufficiently likely to recur when a party has a reasonable expectation that it ‘will

again be subjected to the alleged illegality,’ or ‘will be subject to the threat of

prosecution’ under the challenged law.” Id. (first quoting City of Los Angeles v.

Lyons, 461 U.S. 95, 109 (1983), then quoting First Nat’l Bank v. Bellotti, 435 U.S.

765, 774–75 (1978)).

This standard does not require the plaintiff to “demonstrate[] that a recurrence

of the dispute [i]s more probable than not.” Honig v. Doe, 484 U.S. 305, 318 n.6

(1988). To the contrary, courts may find a matter to be “capable of repetition based

on expectations that, while reasonable, [a]re hardly demonstrably probable.” Id.

Thus, this standard may be satisfied by evidence that would have been too

speculative to demonstrate standing at the onset of the litigation. See Friends of the

Earth, Inc., 528 U.S. at 190 (“[T]here are circumstances in which the prospect that a

defendant will engage in (or resume) harmful conduct may be too speculative to

support standing, but not too speculative to overcome mootness.”); WildEarth

Guardians, 690 F.3d at 1183 (“[S]ometimes mootness relies on contested facts,

particularly where the likelihood of future harm is at issue. In such cases, the

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defendant may be unable to show mootness, even if the facts . . . would not have been

sufficient for the plaintiff to demonstrate standing at the start of the case.” (citation

omitted)).

Applying this test here, we find guidance in other cases in which the plaintiffs’

injuries were allegedly inflicted by government officials. In this context, courts have

held that a plaintiff cannot establish a reasonable expectation that the same

controversy is likely to recur if (1) the claimed reinjury will not occur unless the

plaintiff engages in future misconduct, and (2) the plaintiff has the ability not to

engage in this misconduct. In Ind v. Colorado Department of Corrections, for

instance, a state prisoner in administrative segregation filed suit to challenge a policy

preventing inmates in administrative segregation from possessing more than two

books. 801 F.3d at 1211. While the case was pending, however, he was transferred

out of administrative segregation and into the general population. Id. We concluded

that this transfer mooted the case, reasoning in part that the prisoner did not have a

reasonable expectation that the injury would recur because the book policy would

only apply to him if he repeated his misconduct and thus ended up in administrative

segregation again, which we “decline[d] to assume” he would do. Id. at 1216. In

reaching this conclusion, we cited to the Fourth Circuit’s decision in Incumaa v.

Ozmint, 507 F.3d 281 (4th Cir. 2007), which involved very similar facts. See Ind, 801

F.3d at 1216. As we explained, the Fourth Circuit reasoned in Incumaa that the

inmate in that case “had not carried his burden of establishing there was a reasonable

expectation he would be subject to the publications ban again in the future because

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‘assignment to the [Maximum Security Unit] is directly tied to an inmate’s bad

behavior, so [the inmate] thus “holds the keys” to his remaining free from the unit.’”

Ind, 801 F.3d at 1216 (quoting Incumaa, 507 F.3d at 289).

However, the same reasoning does not apply if the conditions that led to the

prior alleged injury have remained intact and the plaintiff cannot readily prevent

recurrence of the injury by choosing not to engage in misconduct. For instance, the

Supreme Court has explained that the plaintiff’s imprisonment in Turner was capable

of repetition due to his “inability, for reasons beyond [his] control, to prevent

[himself] from transgressing and avoid recurrence of the challenged conduct.” United

States v. Sanchez-Gomez, 584 U.S. 381, 393 (2018). Specifically, the Court

explained, Mr. Turner’s “large outstanding debt made him effectively incapable of

satisfying his imminent support obligations,” creating a reasonable expectation that

he would again be held in contempt for failing to make his child support payments.

Id.; see also Turner, 564 U.S. at 437, 440–41.

The claimed injury in Honig v. Doe, 484 U.S. 305 (1988), was likewise

capable of repetition due to the plaintiff’s inability to avoid running afoul of

government authorities by simply choosing not to engage in misconduct. See

Sanchez-Gomez, 584 U.S. at 393; see also Honig, 484 U.S. at 317–22. In Honig, a

disabled student named Jack Smith brought a claim under the Education of the

Handicapped Act (“EHA”) against local and state school officials after he was

expelled from a public school “for violent and disruptive conduct related to [his]

disabilities.” 484 U.S. at 312; see also id. at 314–15. At the time of the Supreme

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Court’s decision, Mr. Smith was “not faced with any proposed expulsion or

suspension proceedings,” and he no longer resided within the same school district. Id.

at 318. Indeed, Mr. Smith was no longer attending a public school, whether in his

former school district or his current one, and “his counsel was unable to state

affirmatively during oral argument that [Mr. Smith] would seek to reenter the state

school system.” Id. at 318 n.6. Nonetheless, the Court held that the case was not moot

based on the mootness exception for issues capable of repetition yet evading review.

Id. at 317–20. “Given [Mr.] Smith’s continued eligibility for educational services

under the EHA, the nature of his disability, and [the State Superintendent of Public

Instruction’s] insistence that all local school districts retain residual authority to

exclude disabled children for dangerous conduct,” the Court had “little difficulty

concluding that there [wa]s a ‘reasonable expectation’ that [Mr.] Smith would once

again be subjected to a unilateral ‘change in placement’ for conduct growing out of

his disabilities.” Id. at 318–20 (footnote and citation omitted).

The Court reasoned that Mr. Smith had a “prior history of behavioral

problems” caused by his disability, and the record was void of “any suggestion that

[he] ha[d] overcome his earlier difficulties.” Id. at 320. Thus, the Court could not

“assume that [his] future placement w[ould] satisfactorily prevent any further

dangerous conduct on his part.” Id. at 321. And because the State Superintendent of

Public Instruction “urge[d the Court] to hold that local school districts retain

unilateral authority under the EHA to suspend or otherwise remove disabled children

for dangerous conduct,” the Court had “every reason to believe that . . . [Mr. Smith]

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would be faced with a real and substantial threat of such action in any California

school district in which he enrolled.” Id. at 321–22. Accordingly, the Supreme Court

held that Mr. Smith had established a reasonable expectation that his claimed injury

would recur in the future, even if he had not shown that recurrence of his injury was

“more probable than not.” Id. at 318 n.6; see also id. at 318–23.

Applying the reasoning of these cases to the facts of this case, we conclude

that Mr. Abedi has established a reasonable expectation that his injury will recur. As

Mr. Abedi notes, his “removal order remains in effect,” and “ICE continues to pursue

removal to a third country.” Resp. to Mot. to Dismiss at 18. Given the nature of a

removal order, Mr. Abedi cannot avoid recurrence of his claimed injury through good

conduct. Indeed, the Government does not dispute Mr. Abedi’s assertion that he has

consistently complied with all terms of his order of supervision since he was first

released in 2002, nor does the Government dispute that his release was revoked based

on the unilateral decision of ICE officials rather than anything he did. Moreover, as

Mr. Abedi points out, “[t]he Government has not disclaimed its authority to revoke

his current [order of supervision]” in the same manner in the future. Id. at 18.

Thus, unlike the plaintiffs in Ind and Incumaa, Mr. Abedi does not “‘hold[] the

keys’ to his remaining free,” Ind, 801 F.3d at 1216 (quoting Incumaa, 507 F.3d

at 289), from a recurrence of the injury he alleges here. Rather, as in Turner and

Honig, the conditions that led to his prior injury remain intact, and he is unable, “for

reasons beyond [his] control,” to “avoid recurrence of the challenged conduct.”

Sanchez-Gomez, 584 U.S. at 393; see also Turner, 564 U.S. at 437, 440–41; Honig,

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484 U.S. at 317–22. And, as in Honig, the Government’s litigation position gives us

“every reason to believe” that Mr. Abedi is “faced with a real and substantial threat”

of government officials inflicting the same injury upon Mr. Abedi again in the future.

484 U.S. at 321–22.

The Government resists this conclusion, arguing that Mr. Abedi cannot

establish a reasonable expectation of re-detention because he argued in Abedi II “that

certain United States Immigration and Customs Enforcement employees had

determined the chances of removal were slim and he should not be detained.” Mot. to

Dismiss at 11. However, the Government does not suggest that these ICE employees’

determinations will be binding on other government officials or will otherwise

prevent Mr. Abedi’s re-detention. 5 Indeed, the Government has repeatedly

emphasized in both this appeal and in the Abedi II litigation that this determination

The dissent argues that “a binding recommendation (or court order) is not required,” contending that “[t]o hold otherwise would improperly flip the burden onto the government.” Dissent at 2. This argument misses the point. Based on the facts and circumstances of this case, we hold that Mr. Abedi has met his burden of showing a reasonable expectation that he will be re-detained in similar circumstances again. And we hold that the Government cannot defeat this showing by relying on the non-binding recommendation of “certain” local ICE officials whom the Government repeatedly argues lack the authority to make a final decision on Mr. Abedi’s detention status or removability. Mot. to Dismiss at 11. Ultimately, the Government’s own litigation position demonstrates that the two local ICE officials’ recommendation bears little importance in assessing whether Mr. Abedi has a reasonable expectation of being re-detained in similar circumstances in the future. We therefore give this non-binding recommendation little weight in evaluating whether, under all of the circumstances of this case, Mr. Abedi has met his burden of showing a reasonable expectation that he will suffer a similar injury in the future.

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was made solely by “certain” local ICE employees. 6 Id.; see also Oral Arg.

Recording at 16:25–16:48; Resp. to Second § 2241 Habeas Petition at 2, 6, 14–15,

Abedi II (D. Kan. Feb. 17, 2026). And the Government has asserted that these local

employees lack final authority to decide Mr. Abedi’s detention status. Moreover,

although the district court relied on these local officials’ determination in Abedi II to

find that Mr. Abedi was not likely to be removed in the reasonably foreseeable

future, thus warranting his release under Zadvydas, the order granting habeas relief

did not foreclose either these local officials or any other ICE officials from making a

contrary determination later. Thus, as in Honig, Mr. Abedi continues to face “a real

and substantial threat,” 484 U.S. at 322, that government officials will inflict the

same injury upon him in the future, regardless of the determination on removability

made by “certain” local ICE employees, Mot. to Dismiss at 11. See Honig, 484 U.S.

at 321–22 (holding that “it matters not that [Mr.] Smith no longer resides within the

[school district that expelled him],” as the State Superintendent of Public

Instruction’s litigation position created a reasonable expectation that the same injury

might be inflicted “in any California school district in which he enrolled”).

The Government further asserts that re-detention is unlikely because the

district court granted Mr. Abedi’s release in Abedi II. However, the district court’s

order granting Mr. Abedi’s release did not prohibit his re-detention, and the

Government has presented no evidence that the district court’s decision has caused

We take judicial notice of relevant documents filed in Abedi II. See Bunn, 966 F.3d at 1096 n.4.

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ICE officials to abandon their repeatedly expressed intentions of pursuing

Mr. Abedi’s removal. Nor has the Government indicated that it has changed its stance

on the appropriateness of detention pending this intended removal.

Moreover, Mr. Abedi has identified several recent cases in which a noncitizen

was re-detained shortly after a district court granted the noncitizen habeas relief

based on a finding—similar to the district court’s finding in this case—that the

noncitizen was unlikely to be removed in the reasonably foreseeable future. See, e.g.,

Mot. to Enforce, I.F.M. v. Baltazar, No. 1:25-cv-03475-RMR (D. Colo. Mar. 17,

2026); Order, Bedoya v. Bondi, 2:26-cv-00035 (D. Ariz. Apr. 15, 2026) (explaining

that the court ordered the noncitizen’s “immediate release from immigration custody”

in February 20, 2026, and that the noncitizen “was redetained six weeks later without

any change in circumstances and without a hearing”); Order Denying Pet’r’s Mot. to

Enforce, Yugar-Cruz v. McCleary, 3:25-cv-00136-SHL-HCA (S.D. Iowa Apr. 27,

2026) (explaining that the court ordered the noncitizen’s release on December 23,

2025, and that he was re-detained on April 8, 2026); Order, Aedo Sanchez v. Joyce,

No. 2:26-cv-00402-DWL-MTM (D. Ariz. Feb. 11, 2026) (order granting habeas

release under Zadvydas); Pet. for Writ of Habeas Corpus, Aedo Sanchez v. Joyce,

2:26-cv-04836-CCC (N.D.N.J. Apr. 9, 2026) (second habeas case filed to challenge

re-detention less than two months after the noncitizen’s release).

We therefore reject the Government’s assertion that the district court’s order

granting habeas relief has removed any real likelihood that the Government will redetain Mr. Abedi in the future. Based on the Government’s litigation position in this

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appeal and in Abedi II, as well as the Government’s demonstrated pattern of redetaining other similarly situated noncitizens who have been granted habeas relief,

we conclude that Mr. Abedi has shown “a real and substantial threat,” Honig, 484

U.S. at 322, of experiencing a repetition of the same injury.

Finally, we are unpersuaded by the Government’s argument that Mr. Abedi has

not shown a reasonable expectation “that any future detention or removal efforts will

be based on the same facts, statutory provisions, regulatory provisions, and case

authorities.” Mot. to Dismiss at 16. The Government’s authority to revoke

Mr. Abedi’s release is constrained by the statutes, regulations, and precedents that are

at issue in this appeal. Thus, any future detention or removal efforts are quite likely

to implicate the same legal authorities. And based on the Government’s litigation

position in this appeal, we have a reasonable expectation that any future detention is

likely to implicate the same material facts and legal issues. See Honig, 484 U.S.

at 321–22. Thus, as in Honig, Mr. Abedi has demonstrated “a sufficient likelihood

that he will again be wronged in a similar way,” id. at 323 (quoting Lyons, 461 U.S.

at 99), thereby satisfying the second prong of the mootness exception for disputes

capable of repetition yet evading review.

We accordingly hold that Mr. Abedi’s allegedly unlawful detention in this case

is an injury capable of repetition yet evading review, and we therefore deny the

Government’s motion to dismiss the appeal as constitutionally and prudentially moot.

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B. Preliminary Injunction

In his appellate brief, Mr. Abedi first challenges the district court’s denial of

his request for a preliminary injunction to prevent his transfer outside of Kansas

pending the district court’s resolution of his habeas case. The Government argues

that this issue is moot and that Mr. Abedi is not entitled to relief on the merits. We

conclude that this issue is not moot. On the merits, we affirm in part and reverse in

part the district court’s denial of preliminary injunctive relief.

1. Mootness

The Government contends that this appellate issue was mooted by the district

court’s resolution of the habeas petition. Specifically, the Government contends that

any error in the denial of a preliminary injunction was superseded by the district

court’s entry of final judgment on the merits of the habeas case. Accordingly, the

Government argues, reversing the district court’s decision on this issue would have

no effect in the real world.

Our resolution of this argument depends on our resolution of the merits of

Mr. Abedi’s habeas claims. If we were to affirm the district court’s final judgment on

the merits of those claims, we would agree that the entry of final judgment had

mooted Mr. Abedi’s request for a preliminary injunction while the case was pending.

However, for the reasons discussed later in this opinion, we conclude that the district

court erred in denying Mr. Abedi’s request for habeas relief, and we therefore remand

this case for further proceedings in accordance with this decision. Mr. Abedi’s habeas

petition will thus be pending again before the district court on remand. And an order

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enjoining the Government from removing Mr. Abedi from the District of Kansas

while the habeas case is pending will have an effect in the real world by preventing

such an action from occurring. We therefore reject the Government’s mootness

challenge to this issue and proceed to address it on the merits.

2. Merits

We review the district court’s denial of injunctive relief for an abuse of

discretion. See Bailey v. State Farm Fire & Cas. Co., 414 F.3d 1187, 1189 (10th

Cir. 2005). A district court abuses its discretion when it “applies the wrong legal

standard or relies on clearly erroneous fact findings.” Id. (internal quotation marks

omitted).

Mr. Abedi sought an injunction under the All Writs Act, which authorizes

federal courts to “issue all writs necessary or appropriate in aid of their respective

jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a).

Specifically, he asked the court to “issue an order preventing the transfer or removal

of [Mr. Abedi] during the pendency of these proceedings to preserve the [c]ourt’s

authority to resolve the underlying legal questions.” ROA Vol. I at 115.

The district court interpreted Mr. Abedi’s request for injunctive relief to

include two separate requests: a request to enjoin Mr. Abedi’s transfer to a detention

facility in a different state, and a request to prevent his removal from the country.

The court denied the first request based on its conclusion that it “would retain

jurisdiction in the event of an ordinary transfer to another facility,” so “an injunction

against a mere transfer” would not be “necessary to preserve the [c]ourt’s

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jurisdiction.” Id. at 117. As for the request to prevent his removal from the country

while the habeas petition was pending, the district court concluded that it could only

issue the requested injunction if the legal rights at issue were “indisputably clear,”

and the court concluded that Mr. Abedi had not satisfied this demanding standard. Id.

at 119.

We hold that the district court did not abuse its discretion in denying

Mr. Abedi’s request for an injunction to prevent his transfer to another facility, but

we reach the opposite conclusion with respect to Mr. Abedi’s request for an

injunction to prevent his removal from the country.

a. Transfer

On appeal, Mr. Abedi contends that the district court should have granted an

injunction to prevent his transfer to a different detention facility because “all

witnesses and evidence were within the [district c]ourt’s geographic location when

the habeas petition was filed,” and, if the court were to hold an evidentiary hearing,

“allowing [Mr. Abedi] to remain in the [c]ourt’s vicinity would indeed be beneficial

to the [c]ourt in conducting and resolving all issues before it.” Appellant’s Br. at 21.

Whatever the merits of this argument, however, it is not properly before us, as

Mr. Abedi did not raise it before the district court and does not make a plain error

argument on appeal. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th

Cir. 2011).

Mr. Abedi’s only argument before the district court was that the injunction was

necessary to preserve the court’s jurisdiction. On appeal, however, he does not

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dispute the district court’s conclusion that it would retain jurisdiction over the case

even if Mr. Abedi were transferred to a different detention facility elsewhere in the

United States. See Santillanes v. U.S. Parole Comm’n, 754 F.2d 887, 888 (10th Cir.

1985) (“It is well established that jurisdiction attaches on the initial filing for habeas

corpus relief, and it is not destroyed by a transfer of the petitioner and the

accompanying custodial change.”).

Therefore, because Mr. Abedi does not contest the district court’s resolution of

the only argument that he raised before the court, we cannot conclude that the district

court “applie[d] the wrong legal standard or relie[d] on clearly erroneous fact

findings,” Bailey, 414 F.3d at 1189 (internal quotation marks omitted), in denying his

request for injunctive relief as it related to a potential transfer. We accordingly affirm

the district court’s denial of this aspect of Mr. Abedi’s request for injunctive relief. 7

b. Removal

As for Mr. Abedi’s request for the district court to temporarily enjoin his

removal to Iran or a third country, however, we conclude that the district court

abused its discretion by applying the wrong legal standards.

In denying relief, the district court reasoned: “A court’s authority under the All

Writs Act is to be used ‘sparingly and only in the most critical and exigent

circumstances,’ and the legal rights at issue must be ‘indisputably clear.’” App. Vol. I

In so doing, we express no opinion as to whether Mr. Abedi may file another motion for a preliminary injunction on remand or what arguments he could raise in such a motion.

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at 118 (quoting Wis. Right to Life, Inc. v. FEC, 542 U.S. 1305, 1306 (2004)

(Rehnquist, C.J., in chambers)). The authority the district court relied on for this

point was an in-chambers opinion 8 in which Chief Justice Rehnquist rejected a

litigant’s request for him, in his capacity as a Circuit Justice, to issue “[a]n injunction

pending appeal barring the enforcement of an Act of Congress” that the Supreme

Court had “recently held [to be] facially constitutional.” Wis. Right to Life, 542 U.S.

at 1305–06. Chief Justice Rehnquist noted in his in-chambers decision that “a

unanimous three–judge” panel had already considered and denied the litigant’s

request for a preliminary injunction to prevent the enforcement of this facially

constitutional law. Id. at 1306. Under these circumstances, Chief Justice Rehnquist

concluded that the requested injunction “would be an extraordinary remedy” that he

should only grant if (1) the requested injunction was “[n]ecessary or appropriate in

aid of [the Court’s] jurisdiction,” and (2) “the legal rights at issue [we]re

‘indisputably clear.’” Id. (first quoting 28 U.S.C. § 1651(a); then quoting Brown v.

Gilmore, 533 U.S. 1301, 1303 (2001) (Rehnquist, C.J., in chambers)).

“An ‘in chambers’ opinion is an opinion written and issued by a single judge of a multi-judge court, pursuant to a court rule allowing a lone judge to address certain secondary matters without obtaining concurrence from the full court or a panel thereof.” Bongo Prods., LLC v. Lawrence, 548 F. Supp. 3d 666, 686 n.12 (M.D. Tenn. 2021). As relevant here, “[t]he Supreme Court allows a single justice, serving in his or her capacity as Circuit Justice, to deny requests for interim relief, such as stays, in chambers.” Id. Importantly,“[t]he lone opinion” of one Supreme Court Justice “does not carry the precedential weight of a United States Supreme Court opinion.” Stanfield v. Brookshire Grocery Co., 761 F. Supp. 29, 30 (W.D. La. 1991); see also Hunt v. Polk Cnty., Iowa, 551 F. Supp. 339, 343 n.2 (S.D. Iowa 1982) (“It cannot, of course, be presumed that [Chief] Justice Rehnquist’s in-chambers opinion represented the views of anyone but himself.”).

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On appeal, the Government amplifies the district court’s overbroad reading of

Wisconsin Right to Life, asserting that “the Supreme Court has ‘consistently stated’

that the power to issue an injunction under 28 U.S.C. § 1651 ‘is to be used

sparingly.’” Appellees’ Br. at 17 (quoting Hobby Lobby Stores, Inc. v. Sebelius, 568

U.S. 1401, 1403 (2012) (Sotomayor, J., in chambers)). The Government supports this

argument with a citation to four cases that it characterizes as decisions by the

Supreme Court. In fact, however, each cited case is an in-chambers opinion issued by

a single Supreme Court Justice to deny a request for an injunction brought by a nonprevailing party whose request for an injunction pending appeal had already been

denied by a lower court. See Hobby Lobby, 568 U.S. at 1403 (Sotomayor, J., in

chambers); Wis. Right to Life, 542 U.S. at 1306 (Rehnquist, C.J., in chambers);

Brown v. Gilmore, 533 U.S. 1301, 1301–02 (2001) (Rehnquist, C.J., in chambers);

Turner Broad. Sys., Inc. v. FCC, 507 U.S. 1301, 1301 (1993) (Rehnquist, C.J., in

chambers).

As Justice Sotomayor explained in the Hobby Lobby case the Government

relies on here, the requested injunctive relief at issue in those in-chambers opinions

would not simply preserve the status quo but would instead “grant[] judicial

intervention that has been withheld by lower courts.” 568 U.S. at 1403 (quoting

Respect Me. PAC v. McKee, 562 U.S. 996, 996 (2010)). Justice Sotomayor explained

that a single Circuit Justice considering a request for an injunction in these

circumstances will do so sparingly and will only grant the requested injunction if the

legal rights at issue are indisputably clear. See id.

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However, the in-chambers opinions cited by the Government do not set forth a

universally applicable standard for courts to consider in evaluating a request for an

injunction under the All Writs Act. As we have explained, “[t]he All Writs Act, 28

U.S.C. § 1651, grants a district court expansive authority to issue ‘all writs

necessary.’” Tooele Cnty. v. United States, 820 F.3d 1183, 1186 (10th Cir. 2016)

(quoting § 1651(a)). This expansive authority may be limited by other statutes or by

policy considerations, particularly when granting the requested relief would implicate

the decisions or authority of other courts. See, e.g., id. at 1186 (holding that the All

Writs Act’s expansive authority is limited by the Anti-Injunction Act, 28 U.S.C.

§ 2283, which “generally prohibits federal courts from enjoining state-court suits”);

Hobby Lobby, 568 U.S. at 1403 (Sotomayor, J., in chambers) (explaining that a single

Supreme Court Justice considering a request to “grant[] judicial intervention that has

been withheld by lower courts,” should exercise this power sparingly (quoting

Respect Me. PAC, 562 U.S. at 996)); J. Publ’g. Co. v. Mechem, 801 F.2d 1233, 1235

(10th Cir. 1986) (holding that we “ha[ve] jurisdiction to issue a writ of mandamus

pursuant to the All Writs Act, 28 U.S.C. § 1651(a)” but “will not issue mandamus

against a district court unless it has clearly abused its discretion”). But different

standards apply in different contexts, and a court’s authority to grant an injunction

under the All Writs Act is likely to be at its most expansive when such an injunction

will not implicate the authority or decisions of other courts.

In Werner v. State of Utah, 32 F.3d 1446 (10th Cir. 1994) (per curiam), for

instance, we considered two different issues that both arose under the All Writs Act.

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Id. at 1447–49. First, the petitioner appealed from the district court’s denial of his

request for a writ of mandamus under the All Writs Act. See id. at 1447–48. In

resolving this issue, we explained that a litigant must meet a demanding standard to

receive a writ of mandamus under the All Writs Act, and we affirmed the district

court’s decision to deny relief based on our conclusion that the petitioner had not

satisfied this standard. See id. at 1447–48; see also J. Publ’g Co., 801 F.2d at 1235.

Second, we considered sua sponte whether “to impose restrictions on future filings in

this court by [the] petitioner commensurate with our inherent power to enter orders

necessary or appropriate in aid of our jurisdiction under § 1651.” Werner, 32 F.3d at

1448 (internal quotation marks omitted). In evaluating this second issue, which did

not implicate the district court’s authority and was not governed by the stricter

standards applicable to requests for mandamus relief, we simply asked whether the

proposed injunction satisfied the statutory standard of necessity or appropriateness.

See id. at 1448–49. Thus, even though both of these issues arose under the All Writs

Act, we did not apply the same standards to evaluate them. See id. at 1447–49.

Rather, based on the different contexts in which these issues arose, our analysis of

them was governed by different standards. See id.

We accordingly agree with the Eastern District of New York’s persuasive

explanation in In re Stabile, 436 F. Supp. 2d 406 (E.D.N.Y. 2006), that the standard

discussed in Wisconsin Right to Life and similar in-chambers opinions is “misplaced”

in the context of a district court’s decision to issue an injunction under the All Writs

Act. Id. at 416. A single Supreme Court Justice sitting alone in his or her capacity as

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a Circuit Justice and considering a request for “an injunction pending appeal barring

the enforcement of an Act of Congress” has the authority to grant such an injunction

under the All Writs Act, but a Justice should do so “only in the most critical and

exigent circumstances.” Id. (quoting Wis. Right to Life, 542 U.S. at 1306). However,

a district court’s authority to grant an injunction under the All Writs Act, although

“derived from the same [statute],” involves “an entirely different context.” Id. There

is no basis in either the statute or caselaw to conclude that the district court’s

consideration of a request for an All Writs Act injunction is “subject to the same

stringent standard enunciated in Wisconsin Right to Life.” Id.; see also Monaghan v.

Sebelius, 931 F. Supp. 2d 794, 804 n.2 (E.D. Mich. 2013) (explaining that “the

Supreme Court’s extraordinary writ standard . . . is much more stringent than that

used for a preliminary injunction”). Rather, the generally applicable “legal standard

is simply whether the order is ‘necessary or appropriate in aid of jurisdiction’ and

‘agreeable to the usages and principles of law.’” In re Stabile, 436 F. Sup. 2d at 416

(quoting Sheet Metal Contractors Ass’n v. Sheet Metal Workers’ Int’l Ass’n, 157 F.3d

78, 84 (2d Cir. 1998)); see also 28 U.S.C. § 1651(a) (“The Supreme Court and all

courts established by Act of Congress may issue all writs necessary or appropriate in

aid of their respective jurisdictions and agreeable to the usages and principles of

law.”); Werner, 32 F.3d at 1448–49 (applying this general statutory standard to

decide whether to enjoin an abusive litigant from proceeding pro se in this court

without advance permission).

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The district court therefore erred in holding that Mr. Abedi had the “burden to

show that the law indisputably permits” the injunctive relief he requested. ROA Vol.

I at 119. The district court should instead have evaluated whether the injunction

requested by Mr. Abedi was “necessary or appropriate in aid of [the court’s]

jurisdiction[] and agreeable to the usages and principles of law,” 28 U.S.C. § 1651(a),

which is all that is required in this context. See In re Stabile, 436 F. Supp. 2d at 416.

The district court’s explanation for denying this request for injunctive relief

also implicated another issue that is likely to arise again on remand. Therefore,

although we remand for the district court to reevaluate this request under the correct

legal standard, we briefly pause to provide further guidance on this issue.

Specifically, the district court reasoned that it likely lacked jurisdiction to

temporarily enjoin Mr. Abedi’s removal from the country based on 8 U.S.C. § 1252,

which provides in part that “a petition for review filed with an appropriate court of

appeals in accordance with this section shall be the sole and exclusive means for

judicial review of an order of removal entered or issued under any provision of this

chapter.” 8 U.S.C. § 1252(a)(5). The district court cited our holding in GonzalezAlarcon v. Macias, 884 F.3d 1266 (10th Cir. 2018), that § 1252’s jurisdictionstripping provisions “apply to ‘indirect challenges to the merits of a removal order.’”

App. Vol. I at 119 (quoting Gonzalez-Alarcon, 884 F.3d at 1274). And the court

concluded that “an injunction prohibiting the government from removing [Mr. Abedi]

would effectively constitute a challenge to the government’s authority to remove

[him].” Id.

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However, § 1252 is not implicated by a request for a temporary injunction to

stay a detainee’s removal during the pendency of a habeas proceeding challenging the

legality of the detention without contesting the underlying removal order.

Importantly, we did not hold in Gonzalez-Alarcon that district courts cannot consider

any issues related to a removal order whatsoever; rather, we held that a district court

cannot consider issues that either directly or indirectly challenge the “merits” of a

removal order. 884 F.3d at 1274. But Mr. Abedi is not seeking to challenge the merits

of his removal order. His claims are grounded in “some inherent problem with the

detention itself,” not in the removal order. Id. at 1275 (quotation marks omitted). His

request for a temporary injunction to maintain the status quo while the legality of his

detention is litigated would thus say nothing about the merits of his removal order.

Accordingly, § 1252 does not bar the district court from granting the requested relief.

We therefore reverse and remand the district court’s denial of Mr. Abedi’s

request for an injunction to prevent his removal from the United States while his

habeas petition is pending. On remand, the district court should reconsider this

request in accordance with the legal standards set forth in this opinion.

C. Regulatory Violations

On the merits of the case, Mr. Abedi seeks habeas relief and a declaratory

judgment on the grounds that the Government violated its regulations governing the

revocation of release for a noncitizen who has been ordered removed from the

country and then released under an order of supervision. Specifically, he contends the

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Government violated 8 C.F.R. §§ 241.4(l) and 241.13(i) by failing to provide him

with an informal interview at which he could contest the revocation of his release.

In response, the Government argues that Mr. Abedi’s release was revoked

solely pursuant to 8 C.F.R. § 241.4 and that this regulation did not require the

Government to provide Mr. Abedi with an informal interview. The Government also

argues that any regulatory violation was harmless because Mr. Abedi was not

prejudiced by the lack of an interview.

For the reasons discussed below, we conclude that Mr. Abedi’s release from

detention was governed by 8 C.F.R. § 241.13 and that the Government violated the

due process protections established in this regulation by failing to provide Mr. Abedi

with a prompt informal interview when it revoked his release. We further conclude

that this due process violation entitled Mr. Abedi to declaratory and habeas relief. We

therefore reverse the district court’s denial of relief to Mr. Abedi on this issue.

1. Legal Background

The statute relevant to Mr. Abedi’s habeas claims, 8 U.S.C. § 1231, establishes

a ninety-day “removal period” for the government to remove noncitizens subject to

an order of removal from the United States. 8 U.S.C. § 1231(a)(1)(A). The statute

provides that the removal period will begin on the latest of the following dates:

(i) The date the order of removal becomes administratively final.

(ii) If the removal order is judicially reviewed and if a court orders a stay

of the removal of the [noncitizen], the date of the court’s final order.

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(iii) If the [noncitizen] is detained or confined (except under an

immigration process), the date the [noncitizen] is released from

detention or confinement.

§ 1231(a)(1)(B).

During the ninety-day removal period, the government is required to detain the

noncitizen. See § 1231(a)(2)(A). Following the expiration of the removal period, “the

Government ‘may’ detain only four categories of people,” specifically: “(1) those

who are ‘inadmissible’ on certain specified grounds; (2) those who are ‘removable’

on certain specified grounds; (3) those it determines ‘to be a risk to the community’;

and (4) those it determines to be ‘unlikely to comply with the order of removal.’”

Johnson v. Arteaga-Martinez, 596 U.S. 573, 578–79 (2022) (quoting 8 U.S.C.

§ 1231(a)(6)). “Individuals released after the removal period remain subject to terms

of supervision.” Id.

The regulatory framework governing the release of noncitizens subject to

§ 1231(a)(6) is set forth in 8 C.F.R. § 241. Two different subsections of this

regulation define the circumstances in which a noncitizen subject to an order of

removal may be released after the removal period expires. Subsection 241.4 provides

that a noncitizen may be released under an order of supervision if either the Director

of the Headquarters Post-order Detention Unit (“HQPDU”) or “a majority of the

Review Panel members” make favorable findings on several specified factors, such

as the likelihood that the noncitizen will remain nonviolent if released. 8 C.F.R.

§ 241.4(e); see also § 241.4(f). However, a noncitizen may instead be released based

on a determination “that there is no significant likelihood that [the noncitizen] can be

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removed in the reasonably foreseeable future.” 8 C.F.R. § 241.4(b)(4). In such cases,

the decision to release the noncitizen will not be conducted according to the custody

review procedures set forth in 8 C.F.R. § 241.4; instead, this decision will be carried

out “pursuant to the procedures provided in 8 [C.F.R. §] 241.13.” Id. Thus, although

§ 241.4 establishes one mechanism by which a noncitizen may be released after the

removal period has expired, the separate mechanism established in § 241.13 applies

when the decision to release a noncitizen is specifically based on the unlikelihood of

the noncitizen’s removal in the reasonably foreseeable future.

If the determination has been made under § 241.13 that the noncitizen is

unlikely to be removed from the country in the reasonably foreseeable future, then

the specific provisions of this subsection will govern that noncitizen’s release. Thus,

§ 241.4 is inapplicable to a noncitizen who has been granted release under § 241.13.

See § 241.4(b)(4) (“The custody review procedures in this section do not apply after

the Service has made a determination, pursuant to the procedures provided in 8

[C.F.R. §] 241.13, that there is no significant likelihood that [a noncitizen] under a

final order of removal can be removed in the reasonably foreseeable future.”);

§ 241.13(b) (“Section 241.4 shall continue to govern the detention of [noncitizens]

under a final order of removal, including [noncitizens] who have requested a review

of the likelihood of their removal under this section, unless the Service makes a

determination under this section that there is no significant likelihood of removal in

the reasonably foreseeable future.” (emphasis added)).

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Subsection 241.13 accordingly sets forth its own procedures for revoking a

release granted under this subsection, which are distinct from the procedures that

govern the revocation of release under § 241.4. When a noncitizen is released

pursuant to § 241.4, the following provisions govern the revocation of that release:

(1) Violation of conditions of release. Any [noncitizen] described in

paragraph (a) or (b)(1) of this section who has been released under an order

of supervision or other conditions of release who violates the conditions of

release may be returned to custody. Any such [noncitizen] who violates the

conditions of an order of supervision is subject to the penalties described in

[8 U.S.C. § 1253(b)]. Upon revocation, the [noncitizen] will be notified of

the reasons for revocation of his or her release or parole. The [noncitizen]

will be afforded an initial informal interview promptly after his or her return

to Service custody to afford the [noncitizen] an opportunity to respond to the

reasons for revocation stated in the notification.

(2) Determination by the Service. The Executive Associate

Commissioner shall have authority, in the exercise of discretion, to revoke

release and return to Service custody [a noncitizen] previously approved for

release under the procedures in this section. A district director may also

revoke release of [a noncitizen] when, in the district director’s opinion,

revocation is in the public interest and circumstances do not reasonably

permit referral of the case to the Executive Associate Commissioner. Release

may be revoked in the exercise of discretion when, in the opinion of the

revoking official:

(i) The purposes of release have been served;

(ii) The [noncitizen] violates any condition of release;

(iii) It is appropriate to enforce a removal order or to commence

removal proceedings against [a noncitizen]; or

(iv) The conduct of the [noncitizen], or any other circumstance,

indicates that release would no longer be appropriate.

(3) Timing of review when release is revoked. If the [noncitizen] is not

released from custody following the informal interview provided for in

paragraph (l)(1) of this section, the HQPDU Director shall schedule the

review process in the case of [a noncitizen] whose previous release or parole

from immigration custody pursuant to a decision of either the district

director, Director of the Detention and Removal Field Office, or Executive

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Associate Commissioner under the procedures in this section has been or is

subject to being revoked. The normal review process will commence with

notification to the [noncitizen] of a records review and scheduling of an

interview, which will ordinarily be expected to occur within approximately

three months after release is revoked. That custody review will include a final

evaluation of any contested facts relevant to the revocation and a

determination whether the facts as determined warrant revocation and further

denial of release. Thereafter, custody reviews will be conducted annually

under the provisions of paragraphs (i), (j), and (k) of this section. 8 C.F.R. § 241.4(l).

But when a noncitizen is released from detention following a determination

that the noncitizen is not significantly likely to be removed within the reasonably

foreseeable future, the provisions of § 241.13(i) apply instead. This subsection is

similar to § 241.4(l), but it differs in some key respects and is more tailored to the

specific situation at issue in a § 241.13 release: the likelihood of removal within the

reasonably foreseeable future. Specifically, this subsection provides:

(1) Violation of conditions of release. Any [noncitizen] who has been

released under an order of supervision under this section who violates any of

the conditions of release may be returned to custody and is subject to the

penalties described in [8 U.S.C. § 1253(b)]. In suitable cases, the HQPDU

shall refer the case to the appropriate U.S. Attorney for criminal prosecution.

The [noncitizen] may be continued in detention for an additional six months

in order to effect the [noncitizen]’s removal, if possible, and to effect the

conditions under which the [noncitizen] had been released.

(2) Revocation for removal. The Service may revoke [a noncitizen]’s

release under this section and return the [noncitizen] to custody if, on account

of changed circumstances, the Service determines that there is a significant

likelihood that the [noncitizen] may be removed in the reasonably

foreseeable future. Thereafter, if the [noncitizen] is not released from custody

following the informal interview provided for in paragraph (h)(3) of this

section, the provisions of § 241.4 shall govern the [noncitizen]’s continued

detention pending removal.

(3) Revocation procedures. Upon revocation, the [noncitizen] will be

notified of the reasons for revocation of his or her release. The Service will

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conduct an initial informal interview promptly after his or her return to

Service custody to afford the [noncitizen] an opportunity to respond to the

reasons for revocation stated in the notification. The [noncitizen] may submit

any evidence or information that he or she believes shows there is no

significant likelihood he or she be removed in the reasonably foreseeable

future, or that he or she has not violated the order of supervision. The

revocation custody review will include an evaluation of any contested facts

relevant to the revocation and a determination whether the facts as

determined warrant revocation and further denial of release.

8 C.F.R. § 241.13(i). 9

Subsection 241.13(i) thus establishes the mechanism by which the agency can

reverse its earlier determination that the noncitizen is unlikely to be removed in the

reasonably foreseeable future. And this mechanism specifically requires the

government to notify a noncitizen in these circumstances “of the reasons for

revocation of his or her release” and to “promptly” provide the noncitizen with “an

Section 241.13(i)(2) seems to contain a drafting or scrivener’s error. It refers to “the informal interview provided for in paragraph (h)(3) of this section.” 8 C.F.R. § 241.13(i)(2). However, paragraph (h)(3) consists in its entirety of the following sentence: “The Service may, in the exercise of its discretion, grant employment authorization under the same conditions set forth in § 241.5(c) for [noncitizens] released under an order of supervision.” Id. § 241.13(h)(3). On the other hand, paragraph (i)(3) specifically defines how the government should conduct informal interviews for noncitizens who were released pursuant to this subsection. Id. § 241.13(i)(3). Based on the language and context of these provisions, we conclude that the reference to paragraph (h)(3) is a scrivener’s error, and we construe it as a reference to paragraph (i)(3) instead. See Lexington Ins. Co. v. Precision Drilling Co., 830 F.3d 1219, 1223 (10th Cir. 2016) (explaining that courts may invoke the scrivener’s error doctrine when a “seemingly clearly worded statute[]” contains an error that “is so ‘unthinkable’ that any reasonable reader would know immediately both (1) that it contains a ‘technical or ministerial’ mistake, and (2) the correct meaning of the text” (quoting Antonin Scalia & Bryan A. Garner, Reading Law 235, 237–38 (2012))); see also Mitchell v. Comm’r of Internal Revenue, 775 F.3d 1243, 1249 (10th Cir. 2015) (“In interpreting the relevant regulations, we apply the same rules we use to interpret statutes.”).

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initial informal interview” at which the government must allow the noncitizen to

present any evidence or information pertinent to the government’s stated reasons for

the revocation of release. Id.

If the government determines at the conclusion of this required review process

“that there is a significant likelihood that the [noncitizen] may be removed in the

reasonably foreseeable future,” then at that point “the provisions of § 241.4 shall

govern the [noncitizen’s] continued detention pending removal.” § 241.13(i)(2); see

also § 241.4(b)(4) (“[I]f the Service subsequently determines, because of a change of

circumstances, that there is a significant likelihood that the [noncitizen] may be

removed in the reasonably foreseeable future . . . , the [noncitizen] shall again be

subject to the custody review procedures under [§ 241.4].” (emphasis added)). But

§ 241.4 does not come into play again unless this determination has been made

following the required revocation review procedures established in § 241.13(i)(2).

Thus, 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). See

§ 241.13(i)(2).

2. Applicable Regulation

We first consider the parties’ arguments regarding which regulation or

regulations apply to the Government’s revocation of Mr. Abedi’s order of supervised

release. Mr. Abedi argues that the Government violated both 8 C.F.R. §§ 241.4(l) and

241.13(i) by failing to provide him with an informal interview at which he could

contest his re-detention. He notes that the Notice of Revocation states that he was re41

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detained pursuant to “8 C.F.R. § 241.4/8 C.F.R. § 241.13,” and he thus treats both

sections as applying to his situation. App. Vol. I at 93. In response, the Government

argues that Mr. Abedi’s release was revoked solely under 8 C.F.R. § 241.4 and that

this regulation requires an informal interview only when the noncitizen has violated

the conditions of his release.

The record makes clear that Mr. Abedi was released in 2002 under the special

review procedures of § 241.13 rather than the separate process established in § 241.4.

He was released without a formal custody review and without any agency findings on

the § 241.4 factors. Instead, the explanation given for his release was that

immigration officials had “been unable to remove [him] from the United States.”

App. Vol. I at 35. Thus, his release could only have been legally authorized under

§ 241.13. Compare § 241.4(e) to § 241.13(g). Moreover, the Government’s June

2025 Notice of Revocation, which refers to a change in the possibility of removal to a

third country, is consistent with the understanding that he was released under

§ 241.13 rather than § 241.4. We accordingly conclude that Mr. Abedi was released

pursuant to § 241.13 rather than § 241.4.

Therefore, pursuant to the regulatory scheme described above, Mr. Abedi’s

release could be revoked only under the process established in § 241.13(i) for the

revocation of a release granted under this subsection. See § 241.13(i)(2). The separate

review process for the revocation of a release granted under § 241.4 is simply

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inapplicable to a release granted under § 241.13. 10 See § 241.4(l)(2) (“The Executive

Associate Commissioner shall have authority, in the exercise of discretion, to revoke

release and return to Service custody [a noncitizen] previously approved for release

under the procedures in this section.” (emphasis added)); § 241.4(b)(4) (“The

custody review procedures in this section do not apply after the Service has made a

determination, pursuant to the procedures provided in 8 [C.F.R. §] 241.13, that there

is no significant likelihood that [a noncitizen] under a final order of removal can be

removed in the reasonably foreseeable future.”); § 241.13(i)(2) (setting forth the

mechanism by which the government “may revoke [a noncitizen’s] release under this

section . . . if, on account of changed circumstances, the [government] determines

that there is a significant likelihood that the [noncitizen] may be removed in the

reasonably foreseeable future.” (emphasis added)).

The Government quotes certain language from §§ 241.4 and 241.13 out of

context to argue that the revocation of any order of supervision—whether the

noncitizen was released pursuant to § 241.4 or § 241.13—is initially governed by

§ 241.4(l) and that the revocation review process set forth in § 241.13(i) applies only

after the noncitizen makes an affirmative showing that he or she remains unlikely to

be removed in the reasonably foreseeable future. But this argument is inconsistent

Because we conclude that § 241.4’s separate review process is inapplicable to the revocation of Mr. Abedi’s release under § 241.13, we do not address the parties’ arguments regarding whether § 241.4(1)(2) also requires the government to provide an informal interview to noncitizens whose supervised release is revoked under this subsection.

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with the full text of these subsections and with the regulatory structure as a whole. As

discussed above, each subsection sets forth its own procedures for the revocation of a

release granted under that subsection, and the Government cannot move a noncitizen

released under § 241.13 from the § 241.13 category to the § 241.4 category without

following the specific procedural mechanisms established in § 241.13(i).

Moreover, the Government’s interpretation of the regulation would effectively

nullify § 241.13(i). According to the Government, § 241.13(i)’s mechanism by which

immigration authorities can reverse an earlier determination regarding the

unlikelihood of removal is triggered only after the noncitizen has somehow already

shown—without the procedural protections provided in § 241.13(i)—that the

noncitizen remains unlikely to be removed in the reasonably foreseeable future. If the

noncitizen already made this showing, however, then the procedural framework

established in § 241.13 would be unnecessary. And the Government does not explain

why the specific procedural process by which a noncitizen can make this showing

would not be invoked until after the noncitizen has already made this showing by

some other unknown means. Thus, if we were to accept the Government’s reading

that § 241.13(i)’s revocation procedures apply only after the noncitizen has already

refuted the Government’s position that removal is now likely to occur in the

reasonably foreseeable future, the procedure set forth in § 241.13(i) would be

rendered superfluous. We therefore reject this argument and instead read the

provisions so that each has practical effect. See Time Warner v. Everest Midwest

Licensee, 381 F.3d 1039, 1050 (10th Cir. 2004) (“As with statutory construction, in

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interpreting regulations, we strive to construe the text so that all of its provisions are

given effect and no part is rendered superfluous.”).

In sum, based on the regulatory structure, text, and purpose of §§ 241.4 and

241.13, we conclude that because Mr. Abedi was released under § 241.13, his release

could be revoked only pursuant to the procedural framework established in

§ 241.13(i). We therefore hold that § 241.13(i) is the pertinent regulation for

purposes of this appeal, and we do not further address the parties’ arguments

regarding § 241.4.

3. Prompt Interview Requirement

When the government revokes a release that was granted under § 241.13, it

must “promptly” conduct an informal interview at which the noncitizen can present

information and evidence relevant to the revocation of release. See § 241.13(i). Here,

the Government does not dispute that it did not conduct an informal interview of

Mr. Abedi until, at a minimum, more than six months after revoking his order of

supervision. Nevertheless, the Government argues that Mr. Abedi could not establish

a violation of § 241.13(i)’s prompt interview requirement because he filed his habeas

petition after only four weeks of detention, and there was no basis for concluding

after “less than a month” that the Government would never “promptly” interview

him. 11 Appellees’ Br. at 28.

Mr. Abedi was detained on the morning of Monday, June 23, 2025, and he filed his habeas petition on Monday, July 21, 2025. Thus, although it is technically correct to characterize the length of his detention as “less than a month,” Appellees’

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As an initial matter, the Government provides no explanation or support for its

contention that the district court could consider only the time that elapsed before

Mr. Abedi filed his habeas petition, rather than the entire time in which Mr. Abedi

went without an interview. But even assuming without deciding that the

Government’s timeframe were correct, we nevertheless hold that the Government

violated § 241.13(i) by failing to provide Mr. Abedi with the prompt interview

required by this regulation.

The word “promptly” is not defined in the regulation. We therefore interpret it

“as taking [its] ordinary, contemporary, common meaning.” Sunnyside Coal v. Dir.,

Off. of Workers’ Comp., 112 F.4th 902, 910 (10th Cir. 2024) (quoting Perrin v.

United States, 444 U.S. 37, 42 (1979)).

Merriam-Webster defines “promptly” to mean “in a prompt manner,” “without

delay,” and “very quickly or immediately.” Promptly, Merriam-Webster.com,

https://www.merriam-webster.com/dictionary/promptly (last accessed Aug. 7, 2026).

Black’s Law Dictionary defines “promptly” as “Quickly; without delay,” and “As

soon as practicable.” Promptly, Black’s Law Dictionary (12th ed. 2024). Black’s Law

Dictionary then notes that “[c]ontext is all-important,” with courts particularly

focusing on avoiding the “loss of rights” through their interpretation of this term. Id.

Here, we must decide what the word “promptly” means in the context of the

procedural process required for the government to revoke a noncitizen’s release and

Br. at 28, the record reflects that he had been detained for a full four weeks when he filed his habeas petition.

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hold the noncitizen in immigration detention. In deciding this issue, we take guidance

from the Supreme Court’s decision in County of Riverside v. McLaughlin, 500 U.S.

44 (1991), in which the Court considered what the word “promptly” means in the

context of the procedural process required for the government to arrest an individual

without a warrant and hold the individual in pretrial detention.

The Court’s decision in McLaughlin flowed from an earlier Supreme Court

case, Gerstein v. Pugh, 420 U.S. 103 (1975), in which the Court “held that the Fourth

Amendment requires a prompt judicial determination of probable cause as a

prerequisite to an extended pretrial detention following a warrantless arrest.”

McLaughlin, 500 U.S. at 47. As the Court explained in McLaughlin, its decision in

Gerstein was an “attempt[] to reconcile important competing interests.” Id. at 52.

“On the one hand, States have a strong interest in protecting public safety by taking

into custody those persons who are reasonably suspected of having engaged in

criminal activity, even where there has been no opportunity for a prior judicial

determination of probable cause.” Id. But “[o]n the other hand, prolonged detention

based on incorrect or unfounded suspicion may unjustly ‘imperil a suspect’s job,

interrupt his source of income, and impair his family relationships.’” Id. (quoting

Gerstein, 420 U.S. at 114). The Court in Gerstein “sought to balance these competing

concerns by holding that [s]tates ‘must provide a fair and reliable determination of

probable cause as a condition for any significant pretrial restraint of liberty, and this

determination must be made by a judicial officer either before or promptly after

arrest.’” Id. (quoting Gerstein, 420 U.S. at 125). The Court further reasoned that state

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governments should be prepared to satisfy this prompt hearing requirement, as the

police cannot permissibly arrest a suspect without probable cause and thus there will

ordinarily be “no need for further investigation before the probable cause

determination can be made.” Gerstein, 420 U.S. at 120 n.21.

In McLaughlin, however, the Court concluded that Gerstein’s “vague”

standard of promptness had “not provided sufficient guidance.” 500 U.S. at 56. The

Court therefore granted certiorari to resolve a circuit split “as to what constitutes a

‘prompt’ probable cause determination under Gerstein.” Id. at 50.

The McLaughlin Court “answer[ed] that question by recognizing that Gerstein

struck a balance between competing interests.” Id. at 55. Taking these competing

interests into account, the Court concluded that “a jurisdiction that provides judicial

determinations of probable cause within [forty-eight] hours of arrest will, as a general

matter, comply with the promptness requirement of Gerstein.” Id. at 56. The Court

explained that a hearing that takes place within forty-eight hours may nonetheless

violate Gerstein’s promptness requirement “if the arrested individual can prove that

his or her probable cause determination was delayed unreasonably,” but the Court

cautioned courts to “allow a substantial degree of flexibility” in evaluating whether a

delay of less than forty-eight hours was unreasonable. Id. at 56.

“Where an arrested individual does not receive a probable cause determination

within [forty-eight] hours,” however, then “the calculus changes.” Id. at 57. “In such

a case, the arrested individual does not bear the burden of proving an unreasonable

delay.” Id. Instead, “the burden shifts to the government to demonstrate the existence

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of a bona fide emergency or other extraordinary circumstance.” Id. And neither an

intervening weekend nor the need to consolidate various pretrial proceedings will

qualify as an extraordinary circumstance under this test. Id.

The promptness requirement at issue in this case arises from a similar context

and raises similar concerns to the promptness requirement at issue in Gerstein and

McLaughlin. Like the pretrial detention procedures at issue in Gerstein and

McLaughlin, the revocation-of-release procedure set forth in § 241.13(i) seeks to

balance important competing interests. On one hand, the government has an interest

in detaining noncitizens who have violated the conditions of their release or who

have a significant likelihood of being removed from the country in the reasonably

foreseeable future. See § 241.13(i). On the other hand, the re-detention of a

noncitizen who did not violate the conditions of his release and is unlikely to be

removed in the reasonably foreseeable future “may unjustly ‘imperil [his] job,

interrupt his source of income, and impair his family relationships,’” McLaughlin,

500 U.S. at 52 (quoting Gerstein, 420 U.S. at 114). Thus, like the Supreme Court’s

Gerstein decision, this regulation seeks to balance these competing interests by

mandating a prompt proceeding at which the detained individual may challenge the

basis for his detention. See § 241.13(i)(3); Gerstein, 420 U.S. at 118–20, 123–25.

Furthermore, just as the police cannot permissibly arrest a suspect unless they

have reason to believe they have probable cause, see Gerstein, 420 U.S. at 120 n.21,

immigration officials cannot permissibly revoke a release granted under § 241.13

unless they have reason to believe either that the noncitizen violated the conditions of

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his release or “that there is a significant likelihood that the [noncitizen] may be

removed in the reasonably foreseeable future.” § 241.13(i). Thus, in both cases the

government should be prepared to conduct the procedural process to allow the

detainee to contest his detention “without delay” and “very quickly or immediately,”

consistently with the generally understood meaning of the term “promptly.” See

Promptly, Merriam-Webster.com, https://www.merriamwebster.com/dictionary/promptly (last accessed Aug. 7, 2026); Promptly, Black’s

Law Dictionary (12th ed. 2024); see also Gerstein, 420 U.S. at 120.

While we recognize important differences between these scenarios, our

interpretation of the term “promptly” in § 241.13(i)(3) takes guidance from the

Supreme Court’s interpretation of the identical term in a similar context in

McLaughlin. And although we do not decide in this appeal whether § 241.13(i)(3)’s

requirement for an interview to be conducted “promptly” would trigger the same

forty-eight-hour test that the Supreme Court adopted for prompt probable cause

determinations in McLaughlin, we are confident that the time that expired here easily

establishes that the Government did not promptly conduct Mr. Abedi’s interview. 12

Thus, “the burden shifts to the government to demonstrate the existence of a bona

We reach the same conclusion whether we measure the elapsed time based on the Government’s requested calculation (considering only the four weeks that elapsed between Mr. Abedi’s re-detention and his filing of this habeas petition), the three months that elapsed before the district court entered its order denying habeas relief, or the six-plus months that actually elapsed before an interview seems to have eventually occurred.

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fide emergency or other extraordinary circumstance” justifying the delay. See

McLaughlin, 500 U.S. at 57.

Here, the Government has made no attempt to justify the lengthy delay. It

provides no explanation as to why it could not have interviewed Mr. Abedi within the

four weeks that elapsed before he filed his habeas petition or the three months that

elapsed before the district court ruled on the petition. Instead, the Government simply

asks this court not to hold it to any “particular time frame” for compliance with the

important procedural safeguards set forth in 8 C.F.R. § 241.13. Appellees’ Br. at 27.

But accepting this argument would render the promptness requirement meaningless

and would effectively insulate the agency’s administrative action from judicial

review, contrary to our “presumption in favor of judicial review of administrative

action,” Kobach v. U.S. Election Assistance Comm’n, 772 F.3d 1183, 1189 (10th Cir.

2014) (quoting Block v. Cmty. Nutrition Inst., 467 U.S. 340, 348 (1984)); see also

Dekovic v. Rubio, 169 F.4th 1002, 1013 (10th Cir. 2026) (“[T]his result would vitiate

the Administrative Procedure Act, which establishes mechanisms for judicial review

of agency decisions and further requires courts to compel agency action that has been

unlawfully withheld or unreasonably delayed.” (internal quotation marks omitted)).

Accordingly, we hold that the Government violated its regulations by failing to

“promptly” provide Mr. Abedi with an informal interview and opportunity to be

heard on its reasons for revoking his release. See § 241.13(i)(3).

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4. Prejudice

The district court concluded that Mr. Abedi was not entitled to relief based on

any violation of the pertinent regulations because he had “not explained how such

violations prolonged his detention or caused him any other prejudice.” App. Vol. II

at 224. The court reasoned that “[t]his litigation of the habeas petition has afforded

[Mr. Abedi] ample opportunity to state his position and to learn the Government’s

position in return.” Id. Thus, because Mr. Abedi was able to hire an attorney and file

a habeas petition, the court held that the Government’s violation of his due process

rights was harmless.

As we now explain, however, the Government’s failure to comply with

§ 241.13(i) was per se prejudicial, thus warranting habeas relief without the need for

an additional showing of prejudice. And even if Mr. Abedi was required to make a

showing of prejudice, the fact that he was denied his due process rights while he

remained in detention is enough to show prejudice. His ability to contest his unlawful

detention through litigation does not render harmless his detention without due

process.

a. Per se prejudice

An agency’s regulations are legally binding on the agency, “as [the agency] is

‘expected to render a decision in accord with its own collective belief.’” Ramos v.

Bondi, 155 F.4th 1154, 1165 (10th Cir. 2025) (quoting United States ex rel. Accardi

v. Shaughnessy, 347 U.S. 260, 266 (1954), superseded by statute on other grounds as

stated in DHS v. Thuraissigiam, 591 U.S. 103 (2020)); see also Steenholdt v. FAA,

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314 F.3d 633, 639 (D.C. Cir. 2003) (“The Accardi doctrine requires federal agencies

to follow their own rules, even gratuitous procedural rules that limit otherwise

discretionary actions.”).

When an agency fails to comply with regulations that establish procedural

protections for individuals, this failure may constitute per se prejudice, negating the

need for the plaintiff to make any additional showing of prejudice to be entitled to

relief. In Accardi, for instance, the Supreme Court reversed the lower courts’ denial

of a habeas petition brought by a noncitizen who alleged that the government failed

to apply the proper procedures in deciding to deport him. 347 U.S. at 266–68. In so

holding, the Court indicated that no showing of prejudice was required for the

immigrant to receive habeas relief. See id. To the contrary, the Court specifically

noted that the petitioner might on remand “still fail to convince the Board [of

Immigration Appeals] or the Attorney General, in the exercise of their discretion, that

he is entitled to suspension [of deportation proceedings].” Id. at 268. Nevertheless,

the Court held that the petitioner was entitled to habeas relief. Id. The Court

explained that even if the petitioner failed on remand to convince the agency of the

merits of his arguments, “at least he will have been afforded that due process

required by the regulations in such proceedings.” Id.

The Supreme Court likewise indicated in Vitarelli v. Seaton, 359 U.S. 535

(1959), that an individual may be entitled to relief based solely on the government’s

failure to comply with regulatory procedures established to protect individuals’ due

process rights. In Vitarelli, the government terminated the plaintiff from federal

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employment for purported national security reasons. Id. at 536–37. Based on the

plaintiff’s job position and status, the government could have summarily terminated

his employment without explanation, and in such a case it would not have been

required to provide him with any process to contest his termination. Id. at 539. But

because the government chose to terminate him for security reasons, it was required

to comply with the procedural standards established in the pertinent regulations for

such a termination. Id. As the Court explained, the government, “[h]aving chosen to

proceed against [the plaintiff] on security grounds, . . . was bound by the regulations

which [it] had promulgated for dealing with such cases, even though without such

regulations [it] could have discharged [the plaintiff] summarily.” Id. at 539–40. And

because the proceedings provided to the plaintiff “fell substantially short of the

requirements of the applicable departmental regulations,” the Court concluded that

the plaintiff was entitled to reinstatement of his employment. Id. at 545. In so

holding, the Vitarelli Court rejected the government’s argument that “even if the

dismissal of September 10, 1954, was invalid, [the plaintiff was] not entitled to

reinstatement by reason of the fact that he was at all events validly dismissed in

October 1956.” Id. Based on the government’s “departures from departmental

regulations,” which went beyond mere “procedural irregularities,” the plaintiff was

entitled to reinstatement even if the government’s compliance with the procedural

regulations would not have saved his employment. Id. at 540; see also id. at 545–46.

The Supreme Court has clarified in subsequent cases “that not every

promulgated regulation is of such a nature that a violation should invalidate agency

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action.” Leslie v. Att’y Gen. of U.S., 611 F.3d 171, 176 (3d Cir. 2010) (citing Am.

Farm Lines v. Black Ball Freight Serv., 397 U.S. 532 (1970)). But the Court has

explained that, “[w]here the rights of individuals are affected, it is incumbent upon

agencies to follow their own procedures. This is so even where the internal

procedures are possibly more rigorous than otherwise would be required.” Morton v.

Ruiz, 415 U.S. 199, 235 (1974). And “[a] court’s duty to enforce an agency

regulation is most evident when compliance with the regulation is mandated by the

Constitution or federal law.” United States v. Caceres, 440 U.S. 741, 749 (1979).

Thus, for example, the Court has “held invalid a deportation ordered on the basis of

statements which did not comply with the Immigration Service’s rules requiring

signatures and oaths, finding that the rules were designed ‘to afford [the noncitizen]

due process of law’ by providing ‘safeguards against essentially unfair procedures.’”

Id. (quoting Bridges v. Wixon, 326 U.S. 135, 152–53 (1945)).

Accordingly, “when an agency promulgates a regulation protecting

fundamental statutory or constitutional rights of parties appearing before it, the

agency must comply with that regulation.” Leslie, 611 F.3d at 180. And in such

cases, “[f]ailure to comply will merit invalidation of the challenged agency action

without regard to whether the alleged violation has substantially prejudiced the

complaining party.” Id.

The Government does not contest that its failure to comply with a regulation

that establishes due process safeguards may be per se prejudicial. Instead, the

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Government argues only that Mr. Abedi waived this argument because he “failed to

raise and develop an Accardi claim.” Appellees’ Br. at 32.

We conclude, however, that Mr. Abedi sufficiently raised this argument before

the district court. The Government’s argument relies on the fact that Mr. Abedi did

not mention Accardi by name in the district court proceedings. As Mr. Abedi argues,

however, “Accardi is not a pleading trap; it is the basic rule that agencies must follow

their own binding procedures.” Reply Br. at 15. And although Mr. Abedi’s habeas

petition did not refer to Accardi by name, he invoked the “operative Accardi point”

that “agencies may not promise process and then withhold it when liberty is at stake.”

Id. at 15–16. Mr. Abedi argued in his habeas petition that “[w]hen the government

fails to comply with its own federal regulations, as it did when it revoked

Mr. Abedi’s release in violation of its own procedures, the action should be found

invalid.” App. Vol. I at 23. He supported this argument with citations to two different

cases in which courts recognized the general principle that, “[i]n cases where the

immigration agency failed to adhere to its own regulations, and the regulations in

question were derived from and intended to bolster constitutional

principles, . . . relief is automatically warranted, and the [noncitizen] need not show

prejudice.” Ying Fong v. Ashcroft, 317 F. Supp. 2d 398, 403 (S.D.N.Y. 2004); see

also Rombot v. Souza, 296 F. Supp. 3d 383, 388 (D. Mass. 2017) (“[W]here an

immigration ‘regulation is promulgated to protect a fundamental right derived from

the Constitution or a federal statute,’ like the opportunity to be heard, ‘and ICE fails

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to adhere to it, the challenged action is invalid.’” (quoting Waldron v. INS, 17 F.3d

511, 518 (2d Cir. 1993))).

Moreover, in his reply to the Government’s argument that he was not

prejudiced by any alleged due process violation, Mr. Abedi responded that a violation

by the Government of its own regulations “is not harmless.” App. Vol. II at 11. He

cited several cases in support of this proposition, and he specifically quoted one

court’s holding that “these regulations are intended to provide due process in that

they are fairly construed to be part of a procedural framework designed to ensure the

fair processing of an action affecting an individual, such that when they are not

followed, prejudice is presumed.” Id. at 16 (emphasis added) (quoting Santamaria

Orellana v. Baker, No. 25-1788-TDC, 2025 WL 2444087, at *6 (D. Md. Aug. 25,

2025)).

We accordingly hold that Mr. Abedi did not waive his argument that the

Government’s violation of its regulations was presumptively prejudicial. And we

further hold that the Government’s failure to abide by the procedural requirements of

§ 241.13 “involve[d] more than mere . . . procedural irregularities,” Vitarelli, 359

U.S. at 540. Rather, the Government failed to comply with “a regulation protecting

fundamental statutory or constitutional rights of parties appearing before it.” Leslie,

611 F.3d at 180; see also Caceres, 440 U.S. at 749 (noting that the Court had

previously invalidated a deportation order because the government failed to comply

with regulatory “rules [that] were designed ‘to afford [the noncitizen] due process of

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law’ by providing ‘safeguards against essentially unfair procedures’” (quoting

Bridges, 326 U.S. at 152–53)).

The Government’s failure to comply with a regulation protecting Mr. Abedi’s

due process rights thus “merit[s] invalidation of the challenged agency action without

regard to whether the alleged violation has substantially prejudiced [him].” Leslie,

611 F.3d at 180; see also Ceesay v. Kurzdorfer, 781 F. Supp. 3d 137, 166 (W.D.N.Y.

2025) (“In sum, because ICE did not follow its own regulations in deciding to redetain Ceesay, his due process rights were violated, and he is entitled to release. And

even if that were not so, he still would be released because he was not afforded even

the minimal due process that protects everyone—citizens and noncitizens—in the

United States.”).

b. Prejudice in fact

Moreover, even if the Government’s failure to comply with the procedural due

process safeguards established in § 241.13(i)(3) were not per se prejudicial, we

would nevertheless hold that Mr. Abedi was prejudiced because he was held for

months in detention without the ability to contest the basis for his detention or to

otherwise be heard. The lack of process was itself an injury. See Rector v. City &

Cnty. of Denver, 348 F.3d 935, 943 (10th Cir. 2003) (“Parties may suffer injury in

fact from defective procedures even if, at the end of the day, they would not have

prevailed on the merits.”).

We are unpersuaded by the district court’s conclusion that Mr. Abedi’s ability

to file a habeas petition cured any prejudice flowing from the Government’s failure

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to provide him with the administrative process to which he was entitled. As our sister

circuits have explained, “[t]he bare existence of optional habeas corpus review does

not, of itself, alleviate due process concerns.” Doe v. Gallinot, 657 F.2d 1017, 1023

(9th Cir. 1981). “Habeas can be at most a backstop—a failsafe mechanism, not the

sole process available.” J.R. v. Hansen, 803 F.3d 1315, 1326 (11th Cir. 2015).

“[T]his makes good sense because habeas review occurs only if a petitioner asks for

it; it is in no way the type of [consistent] review that due process requires.” Id. And

as a practical matter, it is unrealistic to expect detained noncitizens—many of whom

cannot afford an attorney, lack legal backgrounds, and “speak English as a second

language or not at all”—to file habeas petitions when their due process rights are

denied. Br. for Rocky Mountain Immigr. Advoc. Network as Amicus Curiae

Supporting Petitioner at 24; see also Gallinot, 657 F.2d at 1023 (“No matter how

elaborate and accurate the habeas corpus proceedings . . . may be once undertaken,

their protection is illusory when a large segment of the protected class cannot

realistically be expected to set the proceedings into motion in the first place.”).

Indeed, although “there were approximately 38,000 immigrants in detention at the

end of fiscal year 2024[,] . . . court statistics show that just 448 habeas petitions were

filed on behalf of [immigration] detainees in calendar year 2024.” Daley v. Ceja, 158

F.4th 1152, 1164 (10th Cir. 2025). The remote possibility of habeas review in the

weeks, months, or years after a noncitizen’s release has been revoked under § 241.13

thus cannot conceivably cure the harm caused by the agency’s failure to “promptly”

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provide the noncitizen with the immediate administrative due process required by this

regulation.

Moreover, as Mr. Abedi argues, the district court’s reasoning, if accepted,

would “convert protective regulations into aspirational suggestions and would

incentivize noncompliance by shifting the burden and cost of the process to federal

courts and incarcerated petitioners.” Reply Br. at 17. It “would hollow out the

protections [the agency] itself codified and would predictably increase federal habeas

litigation by making the courthouse the first place a detainee can be heard.” Id. And

“[a] post-hoc opportunity to submit briefs in federal court is not the same as a prompt

administrative interview designed to test the factual basis for detention before months

of liberty are lost.” Id. As Mr. Abedi contends, “[p]rocess delivered months later is

not ‘process’ in the constitutional sense; it is a retrospective justification attempt.” Id.

at 18.

We therefore hold that the existence of a possible remedy in habeas corpus did

not render harmless the Government’s failure to comply with § 241.13(i)’s

requirement of a prompt informal interview at which Mr. Abedi could contest the

basis for the revocation of his release. The district court therefore erred in dismissing

Mr. Abedi’s requests for declaratory and habeas relief based on this regulatory

violation.

D. Zadvydas

In his habeas petition, Mr. Abedi additionally sought declaratory and habeas

relief pursuant to the Supreme Court’s decision in Zadvydas, which discussed the

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limits of permissible detention under 8 U.S.C. § 1231(a)(6). See 533 U.S. at 684–86.

The district court denied Mr. Abedi’s Zadvydas claims in its order denying habeas

relief, and Mr. Abedi challenges that ruling on appeal. We agree that the district court

applied the wrong legal standard in evaluating these claims, and we therefore reverse

and remand for further proceedings in the district court.

1. Legal Background

In Zadvydas, the Court considered how long a noncitizen subject to a final

order of removal may be detained under 8 U.S.C. § 1231(a)(6). 533 U.S. at 684–86.

The government there argued that the statute permitted it to indefinitely detain

noncitizens following the expiration of their removal periods. Id. at 689. The

Supreme Court rejected this argument, however, holding that “the statute, read in

light of the Constitution’s demands, limits [a noncitizen’s] post-removal-period

detention to a period reasonably necessary to bring about that [noncitizen’s] removal

from the United States.” Id. Thus, if a noncitizen’s detention “exceeds a period

reasonably necessary to secure removal,” this detention is “no longer authorized by

statute,” and the noncitizen must be released under an order of supervision. Id.

at 699–700. Likewise, “once removal is no longer reasonably foreseeable, continued

detention is no longer authorized by statute.” Id. at 699. The Court explained that any

other interpretation of the statute would risk “a serious constitutional threat.” Id.

The Court further concluded that federal courts have the authority pursuant to

their habeas jurisdiction to decide “[w]hether a set of particular circumstances

amounts to detention within, or beyond, a period reasonably necessary to secure

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removal,” which “is determinative of whether the detention is, or is not, pursuant to

statutory authority.” Id. “[I]f removal is not reasonably foreseeable, the court should

hold continued detention unreasonable and no longer authorized by statute.” Id.

at 699–700. “And if removal is reasonably foreseeable, the habeas court should

consider the risk of the [noncitizen] committing further crimes as a factor potentially

justifying confinement within that reasonable removal period.” Id. at 700.

To make it easier for habeas courts to determine when a noncitizen’s detention

is “no longer authorized by statute,” the Court adopted a six-month “presumptively

reasonable period of detention,” analogous to the forty-eight-hour period of

presumptively reasonable pretrial detention that it adopted in McLaughlin to resolve

the question of how “promptly” a prompt probable cause determination must be

made. Id. at 699, 701; see also McLaughlin, 500 U.S. at 56–58. The Court considered

adopting a ninety-day presumption—coterminous with the current statutory removal

period—but the Court ultimately concluded that a longer presumptive period was

appropriate because not “all reasonably foreseeable removals could be accomplished

in [ninety days].” Zadvydas, 533 U.S. at 701. On the other hand, the Court concluded

that the presumptively reasonably period of detention should not extend beyond six

months—the length of the former statutory removal period—because “Congress

previously doubted the constitutionality of detention for more than six months.” Id.

The Court explained that this six-month presumption of reasonable detention

did “not mean that every [noncitizen] not removed must be released after six

months.” Id. But the Court explained that a noncitizen may not be detained under

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§ 1231(a)(6) if “there is no significant likelihood of removal in the reasonably

foreseeable future.” Id. “And for detention to remain reasonable, as the period of

prior postremoval confinement grows, what counts as the ‘reasonably foreseeable

future’ conversely would have to shrink.” Id.

2. Analysis

The primary dispute in this case revolves around the question of how to

calculate Zadvydas’s six-month period of presumptively reasonable detention. As the

Government notes in its appellate brief, “district courts are split on which time

should ‘count’ when calculating the presumptively reasonable six-month period.”

Appellees’ Br. at 41. “Three competing approaches focus on (1) only the time spent

in the most recent period of detention (the ‘latest detention’ approach); (2) the time

spent in the most recent period of detention plus any time previously spent in

detention (the ‘aggregated detention’ approach);” and (3) the time that has elapsed

since the removal period was triggered. Id. The Government urges us, like the district

court, to follow the first approach, which it contends “best fits with the reasoning of

Zadvydas.” Id. at 47. Notably, in accepting this argument, the district court reasoned

that each re-detention must trigger a new six-month presumption of reasonableness

because any other interpretation of the Zadvydas presumption “would automatically

make any re-detention of a previously-released [noncitizen] unreasonable.” App. Vol.

II at 223.

We conclude, however, that the third approach identified in the Government’s

brief is most consistent with Zadvydas and that this approach, properly understood,

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does not trigger the concern raised by the district court. Therefore, for the reasons

discussed below, we hold that Zadvydas’s six-month presumption applies only to the

first six months that elapse after the removal period is triggered.

The Government effectively asks us to treat Zadvydas as establishing a

resettable six-month grace period that applies to any period of immigration detention,

permitting the Government to detain a noncitizen for any number of repeated sixmonth stints so long as these periods of detention are separated by some moment of

freedom. But the Supreme Court in Zadvydas did not describe the six-month

presumption as a standalone rule that applies to any period of immigration detention.

See 533 U.S. at 700–01. Rather, the Court adopted the six-month presumption to

address the question of how long the government may reasonably detain a noncitizen

after the noncitizen’s removal order becomes final. See id. And we see no basis in the

Court’s reasoning for adopting a new six-month presumption of reasonableness

applicable to any period of detention that occurs after the removal period has expired.

As discussed above, the Zadvydas Court first considered adopting a

presumptively reasonable detention period of ninety days, coterminous with the

current statutory removal period, but it ultimately settled on a six-month presumption

in recognition of the reality that not “all reasonably foreseeable removals could be

accomplished in [ninety days].” Id. at 701. Notably, the Court derived this six-month

presumption from an earlier version of the removal statute that included a six-month

removal period. See id. at 698, 701; see also 8 U.S.C. § 1252(c) (1982). This earlier

six-month removal period—like the current removal period—applied only to the

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initial time period after an order of removal became final, without any provision for

tolling or retriggering. See 8 U.S.C. §§ 1252(c) and (d) (1982); see also 8 U.S.C.

§ 1231. Nothing in the Court’s explanation of its reasons for recognizing this sixmonth period of presumptively reasonable detention suggests that this six-month

period, unlike the six-month removal period on which it was based, would be

retriggered every time a noncitizen was detained. See 533 U.S. at 700–01.

Moreover, the primary reason for the six-month Zadvydas presumption—the

reality that arranging a noncitizen’s removal may take longer than the current ninetyday removal period—does not apply to periods of re-detention that occur months,

years, or decades after the removal order has become final. See id. at 701. The Court

in Zadvydas “sought to balance the length of time a noncitizen would be held in

detention against the need to afford the Government some time immediately

following the issuance of the removal order to make and execute arrangements for

removal.” Zavvar v. Scott, Civil Action No. 25-2104-TDC, 2025 WL 2592543 (D.

Md. Sept. 8, 2025) (citing Zadvydas, 533 U.S. at 701). But “some if not most of those

arrangements, such as securing approval from a foreign country to remove an

individual to that nation, can likely be pursued even while the noncitizen is on

release.” Id. Thus, the balance that the Court struck in Zadvydas would be

dramatically different “in circumstances where, before the period of detention began,

the Government had a period of time”—indeed, more than two decades in

Mr. Abedi’s case—“to make the arrangements for removal.” Id.

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The Government contends, however, that Zadvydas requires us to recognize a

new six-month period of presumptively reasonable detention every time a redetention occurs because any contrary holding would cause a noncitizen to be

deemed “instantly subject to unreasonable and indefinite detention” when the

government revokes the noncitizen’s release. Appellees’ Br. at 47 (quoting Roe v.

Oddo, No. 3:25-cv-128, 2025 WL 3030692, at *7 n.8 (W.D. Pa. Oct. 30, 2025)). The

district court agreed with this argument, reasoning that treating the six-month

presumption as applying only to the first six months after the removal period is

triggered “would automatically make any re-detention of a previously-released

[noncitizen] unreasonable” and thus “prohibit the eventual removal of [a noncitizen]

once released.” App. Vol. II at 223.

However, this conclusion rests on a misunderstanding of both the Court’s

decision in Zadvydas and the nature of rebuttable presumptions. Zadvydas does not

establish a bright-line rule under which the first six months of immigration detention

are always acceptable and any detention after that point is automatically

impermissible. Instead, Zadvydas holds that federal courts should exercise their

habeas jurisdiction to decide whether a noncitizen is being detained “within, or

beyond, a period reasonably necessary to secure removal.” 533 U.S. at 699. Because

the reasonableness of detention under § 1231(a)(6) is measured “primarily in terms of

the statute’s basic purpose, namely, assuring the [noncitizen’s] presence at the

moment of removal,” a habeas court should hold that “continued detention [is]

unreasonable and no longer authorized by statute” whenever the court determines that

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“removal is not reasonably foreseeable.” Id. at 699–700. “And if removal is

reasonably foreseeable, the habeas court should consider the risk of the [noncitizen’s]

committing further crimes as a factor potentially justifying confinement within that

reasonable removal period.” Id. at 700. This inquiry “will often call for difficult

judgments,” and Zadvydas therefore established a presumption of reasonableness for

detention during the first six months after a removal order becomes final. Id. at 700–

01. But “the [six]-month presumption [the Court] described in Zadvydas is just that—

a presumption.” Clark v. Martinez, 543 U.S. 371, 387 (O’Connor, J., concurring)

(citation omitted).

Indeed, the Court specifically analogized the six-month presumption of

reasonableness in Zadvydas to the forty-eight-hour presumption of reasonableness in

McLaughlin. See Zadvydas, 533 U.S. at 701; see also McLaughlin, 500 U.S. at 56–

57. As discussed above, the forty-eight-hour McLaughlin presumption does not

establish a bright-line rule under which the first forty-eight hours of pretrial detention

are always acceptable and any subsequent detention is automatically impermissible.

See 500 U.S. at 56–57. Instead, McLaughlin establishes a presumption of

reasonableness when an arrested individual receives a probable cause determination

within forty-eight hours of the arrest. Id. The detainee may rebut this presumption by

“prov[ing] that his or her probable cause determination was delayed unreasonably,”

but the timing of a probable cause determination that occurs within forty-eight hours

will be presumed reasonable in the absence of such a showing. Id. at 56. After fortyeight hours have elapsed without a probable cause determination, however, “the

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calculus changes.” Id. at 57. The burden then “shifts to the government to

demonstrate the existence of a bona fide emergency or other extraordinary

circumstance,” and detention for longer than forty-eight hours without a probable

cause determination will be deemed unreasonable unless the government satisfies this

burden. Id. Thus, McLaughlin’s forty-eight-hour presumption period does not

instantly and automatically invalidate any pretrial detention that extends beyond this

period; instead, the expiration of the forty-eight-hour period simply shifts the burden

from the detainee to the government to establish the reasonableness of the delay. See

id. at 56–57.

The six-month presumption in Zadvydas operates similarly, although not

identically. See 533 U.S. at 701. During the first six months after an order of removal

becomes final, the noncitizen’s detention is presumed reasonable. See id. The

noncitizen may rebut this presumption by showing that “removal is not reasonably

foreseeable” and thus “continued detention [is] unreasonable and no longer

authorized by statute,” but the detention is presumed reasonable in the absence of

such a showing. Id. at 699–700. After six months have elapsed, however, the calculus

changes. See McLaughlin, 500 U.S. at 57. Detention after this point is no longer

presumed reasonable, and a federal habeas court may therefore no longer rely on this

presumption of reasonableness in determining whether the “circumstances amount[]

to detention within, or beyond, a period reasonably necessary to secure removal.”

Zadvydas, 533 U.S. at 699. Instead, the district court must conduct a case-specific

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analysis to conclude whether the detention meets the Zadvydas reasonableness

standard absent this presumption.

The six-month presumption period therefore does not instantly and

automatically invalidate any immigration detention that extends longer than six

months or that begins more than six months after the removal period has become

final. See id. at 701. The government is simply no longer entitled to a presumption of

reasonableness for any detention that occurs outside of the initial six-month period

following the removal order becoming final. See id.

The district court consequently erred in interpreting Zadvydas to create a new

six-month period of presumptively reasonable detention every time a noncitizen is

detained. And because the district court relied on this incorrectly applied presumption

of reasonableness to deny Mr. Abedi’s Zadvydas claims, it did not conduct the

required case-specific analysis to determine whether Mr. Abedi’s re-detention was

reasonably necessary to secure his removal or whether his removal was reasonably

foreseeable. We therefore remand for the district court to conduct this analysis in the

first instance.

III. CONCLUSION

For the foregoing reasons, we DENY the Government’s motion to dismiss the

appeal as moot. We AFFIRM in part and REVERSE and REMAND in part the

district court’s order denying temporary injunctive relief to Mr. Abedi. And we

REVERSE and REMAND the district court’s order denying Mr. Abedi’s requests for

declaratory and habeas relief for further proceedings in accordance with this opinion.

Appellate Case: 25-3179 Document: 50 Date Filed: 10/21/2026 Page: 70

No. 25-3179, Abedi v. Carter, et al.

EID, J., dissenting.

Kaveh Abedi has been released from immigration detention. His habeas

petition is therefore moot, and no mootness exception applies. Accordingly, I would

dismiss this appeal.

The majority holds that this appeal survives Abedi’s release because it falls

within the mootness exception for wrongs capable of repetition yet evading review. I

disagree. Abedi bears the burden of establishing that exception, and he cannot carry

it.

As the name implies, this exception has two requirements: (1) the case must

“‘evade review’ because ‘the duration of the challenged action is too short to be fully

litigated prior to its cessation or expiration,’” and (2) the case must be “‘capable of

repetition,’ such that ‘there is a reasonable expectation that the same complaining

party will be subjected to the same action again.’” Fleming v. Gutierrez, 785 F.3d

442, 445–46 (10th Cir. 2015) (quoting Chihuahuan Grasslands All. v. Kempthorne,

545 F.3d 884, 892 (10th Cir. 2008)). The exception is “narrow,” and it “is only to be

used in exceptional situations.” Jordan v. Sosa, 654 F.3d 1012, 1034–35 (10th Cir.

2011) (quotations omitted). And “[t]o avail himself of the exception, a plaintiff must

Appellate Case: 25-3179 Document: 50 Date Filed: 10/21/2026 Page: 71 No. 25-3179, Abedi v. Carter, et al.

establish” both requirements. Ind v. Colo. Dep’t of Corr., 801 F.3d 1209, 1215 (10th

Cir. 2015).

II.

Abedi has not established that his re-detention is capable of repetition. His

release was based, in part, upon the recommendation of “two local immigration

officials . . . [who] did not believe the petitioner’s removal was imminent.” Abedi v.

Carter (Abedi II), No. 26-3012, 2026 WL 482329, at *3 (D. Kan. Feb. 20, 2026); see

also id. (noting that immigration officials “were unable to remove petitioner to

[Turkey or the United Arab Emirates],” the only third-country destinations identified

during this litigation). This recommendation strongly cuts against Abedi’s argument

that there is “a reasonable expectation” that he will be re-detained, as a prerequisite

for revoking his current order of supervision is a determination by immigration

officials that there “is a significant likelihood that the [noncitizen] will be removed in

the reasonably foreseeable future.” 8 C.F.R. § 241.13(i)(2) (2026). 1 True, the

recommendation is not “binding on other government officials.” Maj. Op. at 20. But

a binding recommendation (or court order) is not required. To hold otherwise would

improperly flip the burden onto the government.

While the majority invokes Turner v. Rogers, 564 U.S. 431 (2011), the facts of

Turner are remarkably different from those in the case at hand. In Turner, the

Abedi’s order of supervision could also be revoked if he violates the conditions of his release. 8 C.F.R. § 241.13(i)(1). But such a revocation would be due to Abedi’s own misconduct, which “we decline to assume” will occur. Ind, 801 F.3d at 1216.

Appellate Case: 25-3179 Document: 50 Date Filed: 10/21/2026 Page: 72 No. 25-3179, Abedi v. Carter, et al.

proponent of the exception had been subjected to civil contempt proceedings five

times prior to the contempt proceeding that was litigated up to the Supreme Court;

and he was further subjected to two additional proceedings by the time the Court

handed down its ruling. See id. at 436, 440. Here, by contrast, Abedi’s order of

supervision was not revoked in the twenty-plus years prior to this appeal; he has not

been re-detained in the six months since his release from immigration detention; and

there is no evidence before us suggesting that the government plans to re-detain him

any time soon.

The majority also relies on a handful of cases where noncitizens were redetained after obtaining habeas relief. But the operative question is whether “there is

a reasonable expectation that the same complaining party will be subjected to the

same action again.” Fleming, 785 F.3d at 445 (emphasis added) (quotation omitted).

Re-detentions of other petitioners, in different postures and on different removal

records, shed little light on whether Abedi will be subject to the same action again.

Cf. Reply in Support of Mot. to Dismiss at 5 (noting that Abedi has only identified

eight re-detentions out of the “thousands of [ ] immigration [habeas] actions filed

over the past few years”).

Appellate Case: 25-3179 Document: 50 Date Filed: 10/21/2026 Page: 73 No. 25-3179, Abedi v. Carter, et al.

II.

Abedi’s release from immigration detention mooted his appeal, and Abedi has

not shown that the exception for wrongs capable of repetition yet evading review

applies. I therefore respectfully dissent. 2

Because Abedi has not shown that this action is capable of repetition, I do not consider whether it evades review, nor do I address the merits.

Abedi v. Carter

Authorities cited

Opinion · public domain