Gach v. Marcos

Background

Nyabuay Biel Gach filed a petition under 28 U.S.C. § 2241 challenging her detention by United States Immigration and Customs Enforcement. She sought relief based on her claim that the detention was unconstitutional, including the type of bond hearing requested in a recent Eighth Circuit case.

Gach entered the United States with her family as a child refugee in 1994 and became a lawful permanent resident in 1996. The opinion states that she had several convictions in Iowa, Minnesota, and South Dakota, including a second-degree felony robbery conviction in South Dakota in February 2022. ICE detained her on November 1, 2023, after she was released from the South Dakota Women’s Penitentiary. The immigration authorities charged that she was subject to removal based on convictions for two crimes involving moral turpitude and aggravated-felony convictions.

The immigration court denied her motion to terminate the removal proceedings and later ordered her removed to either Sudan or South Sudan. The immigration court granted her application for deferral of removal to Sudan under the Convention Against Torture but denied it as to South Sudan. The denial concerning South Sudan was pending appeal when this recommendation was issued.

Analysis

The court explained that a petition under § 2241 could address only whether Gach’s detention violated the Constitution, federal laws, or treaties. It said the petition could not be used to review the fairness or correctness of the underlying immigration-court proceedings.

The court relied on the Eighth Circuit’s decision in a prior related proceeding, which held that people detained while awaiting a decision in removal proceedings are not entitled to habeas relief merely because detention lasts more than one year. That decision rejected using a multi-factor reasonableness test based on detention length, likely future detention, detention conditions, responsibility for delays, and the likelihood of removal. It also held that individualized findings of dangerousness or flight risk were not required under the governing detention scheme.

The court treated Gach’s circumstances as materially similar to those in that earlier proceeding. Because Gach’s removal proceedings were still pending, it concluded under the Eighth Circuit’s rule that her detention was constitutionally permitted and required by statute.

Recommendation and procedure

Magistrate Judge John F. Docherty recommended that Gach’s petition for a writ of habeas corpus—that is, her petition challenging the legality of her detention—be denied. The document is a Report and Recommendation, not a final order or judgment of the District Court, and it is not directly appealable to the Eighth Circuit. The notice stated that a party could file specific written objections within 14 days after being served with the recommendation.