UNITED STATES DISTRICT COURT                             
                   DISTRICT OF MINNESOTA                                


Nyabuay Biel Gach,                 Case No. 24-CV-583 (JWB/JFD)         

              Petitioner,                                               

v.                                       REPORT AND                     
                                      RECOMMENDATION                    
Marcos Charles, ICE Field Office                                        
Director; Merrick Garland, U.S.                                         
Attorney General; Alejandro                                             
Mayorkas, Secretary of U.S.                                             
Department of Homeland                                                  
Security,                                                               

              Respondent.                                               


   This case comes before the Court on Petitioner Nyabuay Biel Gach’s Petition for a 
Writ of Habeas Corpus under 

, claiming that she is unconstitutionally 
being detained by United States Immigration and Customs Enforcement (“ICE”). (Pet. at 
1–2, Dkt. No. 1.) The case has been referred to the undersigned United States Magistrate 
Judge for a Report and Recommendation pursuant to Title 

 and District of 
Minnesota Local Rule 72.1. The Eighth Circuit recently decided, in Banyee v. Garland, — 
F.4th —, No. 22-2252, 

 (8th Cir. Sept. 17, 2024), that people in the 
United States who are confined pending a decision on a final order of removal are not 
entitled to habeas relief, even if their confinement exceeds one year. 

. In fact, 
the Eighth Circuit’s decision holds that “[d]ue process imposes no time limit on detention 
pending deportation.” 

 In light of this recent decision from the Eighth Circuit, the Court 
recommends that Ms. Gach’s Petition for a Writ of Habeas Corpus be denied.  
                        BACKGROUND                                      

   Ms. Gach was born in 1991 in a refugee camp in Ethiopia to Sudanese parents who 
had fled the civil war in Sudan. (U.S. Resp. to Pet. for Writ of Habeas Corpus (“U.S. 
Resp.”) 4, Dkt. No. 5; Pet.’s Aff. in Supp. of Reply, Ex. E. 1–7, Dkt. No. 9.). She entered 
the United States with her family as a child refugee in 1994 and gained Lawful Permanent 
Resident status in 1996. (U.S. Resp. at 4.) Since 2010, Ms. Gach has been convicted of 

several crimes in Iowa, Minnesota, and South Dakota, the most recent of which was a 
Second-Degree Felony Robbery conviction in February 2022 in South Dakota. (Id. at 5.) 
Shortly after her conviction, ICE officials submitted an immigration detainer to the South 
Dakota Women’s Penitentiary, and ICE arrested her upon her release on November 1, 
2023. (Id.) She was arrested pursuant to a warrant charging that she was subject to 

deportation under 

(a)(2)(A)(ii) because she had been convicted of two 
crimes involving moral turpitude. (Id.)  After her arrest, two additional grounds for her 
removal  were  added,  both  under  

(a)(2)(A)(iii):  1)  conviction  of  an 
aggravated felony as defined in 

(a)(43)(G) (i.e., “a theft offense including 
receipt of stolen property) or burglary offense for which the term of imprisonment [is] at 

least one year”) and 2) conviction of an aggravated felony as defined in 

(a)(43)(F) (i.e., “a crime of violence … for which the term of imprisonment [is] at 
least one year”). (Id. at 6.)                                             
   Ms. Gach has participated extensively in the proceedings regarding her pending 
deportation, but she has been largely unsuccessful at every stage. (See id.) On January 2, 
2024, her Motion to Terminate removal proceedings was denied, and on February 24, the 
immigration court ordered her to be removed to either Sudan or South Sudan. (Id.) She 

then applied for deferral of removal to both countries under the Convention Against 
Torture, and the immigration court granted her application as to Sudan but denied it as to 
South Sudan. (Id.) The decision to deny her application for deferral of removal to South 
Sudan is currently pending appeal. (Letter to Mag. J. 1, Dkt. No. 7.)     
                          ANALYSIS                                      
   Ms. Gach makes many compelling arguments regarding the fairness and correctness 

of  the  proceedings  in  the  immigration  court  regarding  her  removal,  and  the  Court 
recognizes  those  arguments  as  potentially  valid.  But  the  Court  cannot  address  those 
arguments in a petition for habeas corpus relief.  The only question before the Court is 
whether Ms. Gach’s detention violates “the Constitution or laws or treaties of the United 
States.” 

(c)(3). Under the Eighth Circuit’s decision in Banyee and 

(c)(1)(B),  Ms.  Gach’s  detention  is  both  constitutionally  permitted  and 
statutorily mandated. 

.                                       
   In  Banyee,  a  District  Judge  in  this  District  accepted  the  Magistrate  Judge’s 
recommendation and ordered the immigration judge assigned to the case to hold a bond 
hearing to determine whether the petitioner was dangerous or posed a flight risk, the same 

relief  requested  by  Ms.  Gach.  

  at  *1–2.  After  the  bond  hearing  in  Banyee,  the 
immigration judge found that the petitioner was neither dangerous nor a flight risk and 
ordered him to be released on bond. 

 On appeal of that decision, the Eighth Circuit found 
that the detention from which the petitioner sought relief did not “violate[] his rights in the 
first place” and reversed the decision of the District Court to award him a bond hearing. 

.                                                                    

   The facts in this case are, in relevant part, indistinguishable from those in Banyee. 
Here, as in Banyee, the petitioner is a long-time legal permanent resident of the United 
States who came to the country as a child to escape civil war, Mr. Banyee in 2004 and Ms. 
Gach  in  1994.  Nyynkpao  B.  v.  Garland,  No.  CV  21-1817  (WMW/BRT),  

, at *1 (D. Minn. Dec. 2, 2021) (hereinafter Banyee R&R); (U.S. Resp. 4.) Mr. 
Banyee had become a legal permanent resident in 2005, Ms. Gach in 1996. Banyee R&R 

at *1; (U.S. Resp. 4.) Mr. Banyee’s first conviction came in 2016, Ms. Gach’s in 2010. 
Banyee R&R at *1; (U.S. Resp. 5.) Mr. Banyee’s final conviction before being detained by 
ICE was in 2018, Ms. Gach’s in 2022. Banyee R&R at *1; (U.S. Resp. 5.) Both petitioners 
had convictions for robbery offenses which led to ICE issuing warrants for their arrest 
under 

(a)(2)(A)(iii) (crime of violence), and 

(a)(2)(A)(ii) (two 

crimes involving moral turpitude after admission upon completing their sentences.) Banyee 
R&R at *1; (U.S. Resp. 5.) Both petitioners commenced their habeas corpus proceedings 
while their applications for cancellation of removal were on appeal to the Board of 
Immigration Appeals. Banyee R&R at *1; (U.S. Resp. 7.)                    
   Their arguments for relief are also similar. Both Mr. Banyee and Ms. Gach sought 

or are seeking a bond hearing to determine the permissibility of their detention. Both Mr. 
Banyee and Ms. Gach advanced or are advancing, as their primary argument, that the courts 
should apply the factors identified in Muse v. Sessions, 

, 715 (D. Minn. 
2018), to determine whether the petitioner’s detention was or is reasonable and warranted 
or warrants habeas corpus relief. Those factors include:                  

   (1) the total length of detention to date; (2) the likely duration of future 
   detention;  (3)  the  conditions  of  detention;  (4)  delays  of  the  removal 
   proceedings caused by the detainee; (5) delays of the removal proceedings 
   caused  by  the  government;  and  (6)  the  likelihood  that  the  removal 
   proceedings will result in a final order of removal.                 
Muse v. Sessions, 

, 715 (D. Minn. 2018). Both the Muse approach and 
a reasonableness inquiry into habeas corpus determinations related to detentions pending 
removal were explicitly rejected by the Eighth Circuit in Banyee. 

 (“These 
cases leave no room for a multi-factor ‘reasonableness’ test. It is true, as Banyee has 
pointed out, that deciding what process is due ordinarily requires a form of interest 
balancing.  …  But  Zadvydas  and  Demore  have  already  done  whatever  balancing  is 
necessary.”) (citing Zadvydas v. Davis, 

, 701 (2001); Demore v. Kim, 

 (2003).)                                                    
   The Eighth Circuit was clear and categorical: “The rule has been clear for decades: 
detention during deportation proceedings is constitutionally valid.” 

 at *2 (quoting 
Demore v. Kim, 538 at 523) (cleaned up). The Eighth Circuit held that “no individualized 
findings of dangerousness [are] necessary. … [T]he government c[an] continue to hold 
detainees simply by reference to the legislative scheme.” 

 (quoting Carlson v. Landon, 

 (1952).) The Eighth Circuit said that because detention pending removal 
proceedings is guaranteed to end when the decision is made regarding whether a petitioner 
will be deported, either by release or by removal, it is constitutional. Id. at *3 (“[N]othing 
suggests that length determines legality. To the contrary, what matters is that detention 
pending deportation ‘ha[s] a definite termination point’—deporting or releasing the alien—
making it ‘materially different’ from the ‘potentially permanent’ confinement authorized 

by other statutes.”) (quoting Demore, 538 U.S. at 528–29). In short, “the government can 
detain an alien for as long as deportation proceedings are still pending.” Id. (citing Demore, 

).                                                         
   Under Banyee, the Court is not permitted, in ruling on a petition for a writ of Habeas 
Corpus, to evaluate the proceedings in the immigration court. It is permitted to ask only 
one question: Are deportation proceedings ongoing? If so, the petitioner’s detention is per 

se constitutional, and the petition must be denied. (Id.) As in Banyee, removal proceedings 
are still pending for Ms. Gach, so the Court recommends that her petition be denied.  
                     RECOMMENDATION                                     
   Based upon the foregoing, and on all of the files, records, and proceedings herein, 
IT IS HEREBY RECOMMENDED that Ms. Gach’s Petition for a Writ of Habeas    

Corpus (Dkt. No. 1) be DENIED.                                            

Dated: October 23, 2024                                s/  John F. Docherty       
                                                                        JOHN F. DOCHERTY 
                                                                        United State Magistrates Judge 



                           NOTICE                                       

Filing Objections: The Report and Recommendation is not an order or judgment of the 
District Court and is not appealable directly to the Eighth Circuit Court of Appeals. 
Under Local Rule 72.2(b)(1), “a party may file and serve specific written objections to a 
magistrate judge’s proposed findings and recommendations within 14 days after being 
served  a  copy”  of  the  Report  and  Recommendation.  A  party  may  respond  to  those 
objections within 14 days after being served a copy of the objections. See Local Rule 
72.2(b)(2). All objections and responses must comply with the word or line limits set forth 
in Local Rule 72.2(c).                                                    

               UNITED STATES DISTRICT COURT                             
                   DISTRICT OF MINNESOTA                                


Nyabuay Biel Gach,                 Case No. 24-CV-583 (JWB/JFD)         

              Petitioner,                                               

v.                                       REPORT AND                     
                                      RECOMMENDATION                    
Marcos Charles, ICE Field Office                                        
Director; Merrick Garland, U.S.                                         
Attorney General; Alejandro                                             
Mayorkas, Secretary of U.S.                                             
Department of Homeland                                                  
Security,                                                               

              Respondent.                                               


   This case comes before the Court on Petitioner Nyabuay Biel Gach’s Petition for a 
Writ of Habeas Corpus under 

, claiming that she is unconstitutionally 
being detained by United States Immigration and Customs Enforcement (“ICE”). (Pet. at 
1–2, Dkt. No. 1.) The case has been referred to the undersigned United States Magistrate 
Judge for a Report and Recommendation pursuant to Title 

 and District of 
Minnesota Local Rule 72.1. The Eighth Circuit recently decided, in Banyee v. Garland, — 
F.4th —, No. 22-2252, 

 (8th Cir. Sept. 17, 2024), that people in the 
United States who are confined pending a decision on a final order of removal are not 
entitled to habeas relief, even if their confinement exceeds one year. 

. In fact, 
the Eighth Circuit’s decision holds that “[d]ue process imposes no time limit on detention 
pending deportation.” 

 In light of this recent decision from the Eighth Circuit, the Court 
recommends that Ms. Gach’s Petition for a Writ of Habeas Corpus be denied.  
                        BACKGROUND                                      

   Ms. Gach was born in 1991 in a refugee camp in Ethiopia to Sudanese parents who 
had fled the civil war in Sudan. (U.S. Resp. to Pet. for Writ of Habeas Corpus (“U.S. 
Resp.”) 4, Dkt. No. 5; Pet.’s Aff. in Supp. of Reply, Ex. E. 1–7, Dkt. No. 9.). She entered 
the United States with her family as a child refugee in 1994 and gained Lawful Permanent 
Resident status in 1996. (U.S. Resp. at 4.) Since 2010, Ms. Gach has been convicted of 

several crimes in Iowa, Minnesota, and South Dakota, the most recent of which was a 
Second-Degree Felony Robbery conviction in February 2022 in South Dakota. (Id. at 5.) 
Shortly after her conviction, ICE officials submitted an immigration detainer to the South 
Dakota Women’s Penitentiary, and ICE arrested her upon her release on November 1, 
2023. (Id.) She was arrested pursuant to a warrant charging that she was subject to 

deportation under 

(a)(2)(A)(ii) because she had been convicted of two 
crimes involving moral turpitude. (Id.)  After her arrest, two additional grounds for her 
removal  were  added,  both  under  

(a)(2)(A)(iii):  1)  conviction  of  an 
aggravated felony as defined in 

(a)(43)(G) (i.e., “a theft offense including 
receipt of stolen property) or burglary offense for which the term of imprisonment [is] at 

least one year”) and 2) conviction of an aggravated felony as defined in 

(a)(43)(F) (i.e., “a crime of violence … for which the term of imprisonment [is] at 
least one year”). (Id. at 6.)                                             
   Ms. Gach has participated extensively in the proceedings regarding her pending 
deportation, but she has been largely unsuccessful at every stage. (See id.) On January 2, 
2024, her Motion to Terminate removal proceedings was denied, and on February 24, the 
immigration court ordered her to be removed to either Sudan or South Sudan. (Id.) She 

then applied for deferral of removal to both countries under the Convention Against 
Torture, and the immigration court granted her application as to Sudan but denied it as to 
South Sudan. (Id.) The decision to deny her application for deferral of removal to South 
Sudan is currently pending appeal. (Letter to Mag. J. 1, Dkt. No. 7.)     
                          ANALYSIS                                      
   Ms. Gach makes many compelling arguments regarding the fairness and correctness 

of  the  proceedings  in  the  immigration  court  regarding  her  removal,  and  the  Court 
recognizes  those  arguments  as  potentially  valid.  But  the  Court  cannot  address  those 
arguments in a petition for habeas corpus relief.  The only question before the Court is 
whether Ms. Gach’s detention violates “the Constitution or laws or treaties of the United 
States.” 

(c)(3). Under the Eighth Circuit’s decision in Banyee and 

(c)(1)(B),  Ms.  Gach’s  detention  is  both  constitutionally  permitted  and 
statutorily mandated. 

.                                       
   In  Banyee,  a  District  Judge  in  this  District  accepted  the  Magistrate  Judge’s 
recommendation and ordered the immigration judge assigned to the case to hold a bond 
hearing to determine whether the petitioner was dangerous or posed a flight risk, the same 

relief  requested  by  Ms.  Gach.  

  at  *1–2.  After  the  bond  hearing  in  Banyee,  the 
immigration judge found that the petitioner was neither dangerous nor a flight risk and 
ordered him to be released on bond. 

 On appeal of that decision, the Eighth Circuit found 
that the detention from which the petitioner sought relief did not “violate[] his rights in the 
first place” and reversed the decision of the District Court to award him a bond hearing. 

.                                                                    

   The facts in this case are, in relevant part, indistinguishable from those in Banyee. 
Here, as in Banyee, the petitioner is a long-time legal permanent resident of the United 
States who came to the country as a child to escape civil war, Mr. Banyee in 2004 and Ms. 
Gach  in  1994.  Nyynkpao  B.  v.  Garland,  No.  CV  21-1817  (WMW/BRT),  

, at *1 (D. Minn. Dec. 2, 2021) (hereinafter Banyee R&R); (U.S. Resp. 4.) Mr. 
Banyee had become a legal permanent resident in 2005, Ms. Gach in 1996. Banyee R&R 

at *1; (U.S. Resp. 4.) Mr. Banyee’s first conviction came in 2016, Ms. Gach’s in 2010. 
Banyee R&R at *1; (U.S. Resp. 5.) Mr. Banyee’s final conviction before being detained by 
ICE was in 2018, Ms. Gach’s in 2022. Banyee R&R at *1; (U.S. Resp. 5.) Both petitioners 
had convictions for robbery offenses which led to ICE issuing warrants for their arrest 
under 

(a)(2)(A)(iii) (crime of violence), and 

(a)(2)(A)(ii) (two 

crimes involving moral turpitude after admission upon completing their sentences.) Banyee 
R&R at *1; (U.S. Resp. 5.) Both petitioners commenced their habeas corpus proceedings 
while their applications for cancellation of removal were on appeal to the Board of 
Immigration Appeals. Banyee R&R at *1; (U.S. Resp. 7.)                    
   Their arguments for relief are also similar. Both Mr. Banyee and Ms. Gach sought 

or are seeking a bond hearing to determine the permissibility of their detention. Both Mr. 
Banyee and Ms. Gach advanced or are advancing, as their primary argument, that the courts 
should apply the factors identified in Muse v. Sessions, 

, 715 (D. Minn. 
2018), to determine whether the petitioner’s detention was or is reasonable and warranted 
or warrants habeas corpus relief. Those factors include:                  

   (1) the total length of detention to date; (2) the likely duration of future 
   detention;  (3)  the  conditions  of  detention;  (4)  delays  of  the  removal 
   proceedings caused by the detainee; (5) delays of the removal proceedings 
   caused  by  the  government;  and  (6)  the  likelihood  that  the  removal 
   proceedings will result in a final order of removal.                 
Muse v. Sessions, 

, 715 (D. Minn. 2018). Both the Muse approach and 
a reasonableness inquiry into habeas corpus determinations related to detentions pending 
removal were explicitly rejected by the Eighth Circuit in Banyee. 

 (“These 
cases leave no room for a multi-factor ‘reasonableness’ test. It is true, as Banyee has 
pointed out, that deciding what process is due ordinarily requires a form of interest 
balancing.  …  But  Zadvydas  and  Demore  have  already  done  whatever  balancing  is 
necessary.”) (citing Zadvydas v. Davis, 

, 701 (2001); Demore v. Kim, 

 (2003).)                                                    
   The Eighth Circuit was clear and categorical: “The rule has been clear for decades: 
detention during deportation proceedings is constitutionally valid.” 

 at *2 (quoting 
Demore v. Kim, 538 at 523) (cleaned up). The Eighth Circuit held that “no individualized 
findings of dangerousness [are] necessary. … [T]he government c[an] continue to hold 
detainees simply by reference to the legislative scheme.” 

 (quoting Carlson v. Landon, 

 (1952).) The Eighth Circuit said that because detention pending removal 
proceedings is guaranteed to end when the decision is made regarding whether a petitioner 
will be deported, either by release or by removal, it is constitutional. Id. at *3 (“[N]othing 
suggests that length determines legality. To the contrary, what matters is that detention 
pending deportation ‘ha[s] a definite termination point’—deporting or releasing the alien—
making it ‘materially different’ from the ‘potentially permanent’ confinement authorized 

by other statutes.”) (quoting Demore, 538 U.S. at 528–29). In short, “the government can 
detain an alien for as long as deportation proceedings are still pending.” Id. (citing Demore, 

).                                                         
   Under Banyee, the Court is not permitted, in ruling on a petition for a writ of Habeas 
Corpus, to evaluate the proceedings in the immigration court. It is permitted to ask only 
one question: Are deportation proceedings ongoing? If so, the petitioner’s detention is per 

se constitutional, and the petition must be denied. (Id.) As in Banyee, removal proceedings 
are still pending for Ms. Gach, so the Court recommends that her petition be denied.  
                     RECOMMENDATION                                     
   Based upon the foregoing, and on all of the files, records, and proceedings herein, 
IT IS HEREBY RECOMMENDED that Ms. Gach’s Petition for a Writ of Habeas    

Corpus (Dkt. No. 1) be DENIED.                                            

Dated: October 23, 2024                                s/  John F. Docherty       
                                                                        JOHN F. DOCHERTY 
                                                                        United State Magistrates Judge 



                           NOTICE                                       

Filing Objections: The Report and Recommendation is not an order or judgment of the 
District Court and is not appealable directly to the Eighth Circuit Court of Appeals. 
Under Local Rule 72.2(b)(1), “a party may file and serve specific written objections to a 
magistrate judge’s proposed findings and recommendations within 14 days after being 
served  a  copy”  of  the  Report  and  Recommendation.  A  party  may  respond  to  those 
objections within 14 days after being served a copy of the objections. See Local Rule 
72.2(b)(2). All objections and responses must comply with the word or line limits set forth 
in Local Rule 72.2(c).