He v. Albarran

Background

Qiong-Ling He, a 33-year-old native and citizen of China, entered the United States without inspection in 2019. Immigration officials apprehended and detained her and referred her for a credible-fear interview. An asylum officer found that she had a reasonable possibility of past or future persecution because of her Christian faith. On February 4, 2020, an Immigration Judge issued a removal order that He did not appeal.

Immigration and Customs Enforcement later released He under an order of supervision. For approximately six years, she complied with the order, including its periodic check-in requirement. The opinion states that she is married to a United States citizen with a serious health condition who relies on her for full-time care and financial support. He also works part-time at a Chinese restaurant under approved employment authorization.

On December 12, 2025, He received a text message directing her to report to Immigration and Customs Enforcement three days later. Her lawyer asked the agency whether it planned to detain her at the appointment but received no response. He then filed this petition and sought an order preventing detention without advance notice and a hearing. The court first issued a temporary restraining order and then a preliminary injunction requiring at least seven days’ notice and a hearing before detention.

Jurisdiction

The respondents argued that He was not “in custody” for purposes of federal habeas jurisdiction and that her requested relief concerned only a speculative future detention. The court rejected both arguments. It concluded that an order of supervision imposed restraints that did not apply to the general public, making He sufficiently in custody for purposes of her petition. The court also concluded that the risk of detention while she remained at liberty could support emergency relief, so she did not have to wait until a future appointment or actual detention to seek judicial review.

Procedural Due Process Claim

The court granted the petition based on its earlier preliminary-injunction reasoning, which it adopted. The court found that He’s lengthy community ties and the government’s decision not to detain her during the six years she had been released under supervision created a protected liberty interest in remaining out of immigration custody. That interest could be taken away only through procedures meeting constitutional due-process requirements.

The court next found a high risk of an erroneous deprivation because He had never received a bond or custody-redetermination hearing. It explained that civil immigration detention is intended to be nonpunitive and is permitted to prevent flight or protect the community. The respondents offered no evidence that He’s detention would serve either purpose.

The court found little government interest in detaining He without a hearing because bond hearings are routine and impose minimal costs. It also noted that the respondents had not identified a legitimate reason to arrest her without first providing a hearing. The opinion states that the respondents presented no new merits arguments.

Disposition

The court granted He’s petition. Before detaining her, the respondents must provide no fewer than seven days’ notice and hold a pre-deprivation bond hearing before a neutral decision-maker at which her eligibility for bond must be considered. The court stated that it would enter a separate judgment and close the file.