Angel Gerardo v. Todd Blanche, in his official capacity as Attorney General of the United States; Todd Lyons, in his official capacity as Acting Director, Immigration and Customs Enforcement; Rob Jeffreys, in his official capacity of Director of Nebraska Department of Corrections; and Department of Homeland Security
CourtDistrict Court, D. Nebraska
Date FiledOctober 9, 2026
Docket8:26-cv-00598
StatusUnknown
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Full Opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ANGEL GERARDO,
Petitioner, 8:26CV598
vs.
ORDER
TODD BLANCHE, in his official capacity as
Attorney General of the United States; TODD
LYONS, in his official capacity as Acting
Director, Immigration and Customs
Enforcement; ROB JEFFREYS, in his official
capacity of Director of Nebraska Department of
Corrections; and DEPARTMENT OF
HOMELAND SECURITY,
Respondents.
This matter is before the Court on Petitioner Angel Gerardo’s petition for a writ of habeas
corpus. (Filing No. 1). Gerardo, a noncitizen detained by U.S. Immigration and Customs
Enforcement, alleges that his detention is unlawful because he has not received a bond hearing.
But for the reasons set forth below, his petition will be denied.
BACKGROUND
Gerardo is a native and citizen of Mexico. (Filing No. 1 at 2). The Form I-831 indicates
that Gerardo is married and does not have any children.
On September 8, 2026, Nebraska State Patrol conducted a traffic stop on Interstate 80 of a
pickup truck for failing to move over for a semi-truck trailer that was parked on the side of the
road with reflective triangles displayed. (Filing No. 1 at 12). Inside the truck were six people,
including Gerardo. (Filing No. 1 at 12). The officers determined that Gerardo and three other
occupants of the vehicle lacked lawful immigration status and obtained immigration warrants.
(Filing No. 1 at 12). A Nebraska State Patrol Immigration and Customs Enforcement Task Force
officer served Gerardo with an I-200 immigration warrant and he was taken into immigration
custody and interviewed. (Filing No. 1 at 12). Immigrations and Customs Enforcement (ICE) then
served Gerardo with a Notice to Appear and held him without bond pending removal proceedings.
(Filing No. 1 at 13). Gerardo is currently detained at McCook Detention Center in McCook,
Nebraska. (Filing No. 1 at 4).
In response, Gerardo petitioned for habeas relief. He challenges his continued detention as
a violation of the Due Process Clause of the Fifth Amendment (Filing No. 1 at 8-10). He seeks
immediate release or, alternatively, an order directing the Respondents to provide him a bond
hearing within one week. (Filing No. 1 at 11).
STANDARD OF REVIEW
“Habeas is at its core a remedy for unlawful executive detention.” Munaf v. Green, 553
U.S. 674, 693 (2008). The Constitution guarantees that the writ of habeas corpus is available to
every individual detained within the United States. Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004)
(citing U.S. Const. Art. I, § 9, cl. 2). The Court’s jurisdiction to hear habeas challenges extends to
immigration-related detention. Zadvydas v. Davis, 533 U.S. 678, 687 (2001).
Under 28 U.S.C. § 2241, a district court can grant a writ of habeas corpus when the
petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.”
28 U.S.C. § 2241(c)(3). Gerardo bears the burden to show his custody is unlawful. 28 U.S.C.
§ 2241(c)(3); Walker v. Johnston, 312 U.S. 275, 286 (1941).
DISCUSSION
28 U.S.C. § 2243 provides that the Court “shall forthwith award the writ or issue an order
directing the respondent to show cause why the writ should not be granted, unless it appears from
the application that the applicant or person detained is not entitled thereto.” Here, the face of
Gerardo’s petition shows he is not entitled to habeas relief. For the reasons stated below, the Court
will deny his petition without requiring the Respondents to show cause.
The Court has previously found that due process challenges to immigration detention raised
by petitioners similarly situated to Gerardo fail. See, e.g., Crespo-Barragan, v. Mullin et al., 2026
WL 2056579 (D. Neb. July 16, 2026). It reaches the same conclusion here.
At the outset, Gerardo spends considerable time discussing the “legal framework”
governing his detention and argues that the government has applied the wrong statute to him.
(Filing No. 1 at 5); compare 8 U.S.C. § 1226(a) (providing that the government “may release” a
noncitizen on bond in certain circumstances) with 8 U.S.C. § 1225(b)(2)(A) (authorizing detention
without bond). However, the Eighth Circuit has already rejected those arguments. See Avila v.
Bondi, 170 F.4th 1128 (8th Cir. 2026). There, the Eighth Circuit held that noncitizens like Gerardo
are “applicants for admission” under that term’s statutory definition, so they are subject to
mandatory detention under 8 U.S.C. § 1225(b)(2). See id. at 1134.
Turning to Gerardo’s claims for relief, although Avila did not expressly foreclose Gerardo’s
due process arguments, other decisions from the Eighth Circuit and Supreme Court have. In
Banyee v. Garland, 115 F.4th 928 (8th Cir. 2024), the court reaffirmed the proposition that
“[d]etention during deportation proceedings [i]s . . . constitutionally valid.” Id. at 931 (quoting
Demore v. Kim, 538 U.S. 510, 523 (2003)). Because “Congress may make rules as to aliens that
would be unacceptable if applied to citizens,” the government “may constitutionally detain
deportable aliens during the limited period necessary for their removal proceedings.” Id. (quoting
Demore, 538 U.S. at 522). “In other words, the government has more flexibility when dealing with
immigration.” Id. “The overall point,” the Eighth Circuit reasoned, is that “[d]etention during
removal proceedings is a constitutionally permissible part of th[e] process.” Id. at 932. That is so
even if the statute authorizing detention does not allow for a bond hearing. See Demore, 538 U.S.
at 528 (“[W]hen the Government deals with deportable aliens, the Due Process Clause does not
require it to employ the least burdensome means to accomplish its goal.”).
Gerardo argues that his private interest in freedom from detention outweighs the
government’s interest in maintaining the current procedures, relying on relying on Mathews v.
Eldridge, 424 U.S. 319, 335 (1976) (Filing No. 1 at 8). However, Banyee also forecloses this
Mathews argument. Cases like Demore and Zadvydas v. Davis, 533 U.S. 678, 701 (2001) “leave
no room for a multi-factor ‘reasonableness’ test.” Banyee, 115 F.4th at 933. While it is true that
“deciding what process is due ordinarily requires a form of interest balancing,” those cases “have
already done whatever balancing is necessary” in the detention context. Id. See, e.g., Demore, 538
U.S. at 528 (explaining that “when the Government deals with deportable aliens, the Due Process
Clause does not require it to employ the least burdensome means,” so it is sufficient if “detention
necessarily serves the purpose of preventing deportable aliens from fleeing prior to or during their
removal proceedings”); Zadvydas v. Davis, 533 U.S. 678, 701 (2001) (linking a reasonable time
limitation for detention to “the likelihood of removal in the reasonably foreseeable future”). As the
Eighth Circuit noted, “the lead dissent in Demore advocated for the type of ‘individual
determination’ [Gerardo] now seeks, presumably under a Mathews-type inquiry.” Banyee, 115
F.4th at 933 (emphasis in original). Instead, the “bright-line rule” is that “the government can
detain an alien for as long as deportation proceedings are still pending.” Id. (citation modified)
(emphasis in original). For Gerardo, they are (Filing No. 1 at 4), so Mathews is of no help to him.
Further, the fact that Gerardo has not received an individualized custody determination
does not make his custody unlawful. The Supreme Court has repeatedly upheld the
constitutionality of categorical, mandatory detention of certain classes of noncitizens. See, e.g.,
Demore, 538 U.S. at 531; Carlson v. Landon, 342 U.S. 524, 541-42 (1952) (rejecting claims of
noncitizens deemed “deportable because of their participation in Communist activities” that they
were entitled to be released from detention if they did not pose a flight risk); Reno v. Flores, 507
U.S. 292, 313 (1993) (upholding mandatory detention of a class of noncitizen juveniles because
“reasonable presumptions and generic rules” are not necessarily impermissible exercises of
Congress’ traditional power to legislate with respect to noncitizens).
In those cases, the government could continue to hold the detainees simply “by reference
to the legislative scheme.” Banyee, 115 F.4th at 932. So too here. Even though Gerardo has not
been individually found to be a flight risk or a danger to the community, his detention is
constitutional. See Demore, 538 U.S. at 524 (emphasizing that “the aliens in Carlson were not
flight risks” and “had not been found individually dangerous”). Whether or not an immigration
judge would find Gerardo to be a danger or flight risk, § 1225(b)(2)(A) mandates his detention.
See Jennings v. Rodriguez, 583 U.S. 281, 297 (2018) (“Read most naturally, §§ 1225(b)(1) and
(b)(2) thus mandate detention of applicants for admission until certain proceedings have
concluded . . . And neither § 1225(b)(1) nor § 1225(b)(2) says anything whatsoever about bond
hearings.”). Gerardo therefore has no procedural right to prove facts at a bond hearing — like lack
of flight risk or dangerousness — that the law renders irrelevant to his detention. See Conn. Dep't
of Pub. Safety v. Doe, 538 U.S. 1, 7-8 (2003).
In sum, while Avila does not foreclose Gerardo’s constitutional claims, other Supreme
Court and Eighth Circuit precedent does. Thus, his petition for a writ of habeas corpus will be
denied.
Accordingly,
IT IS ORDERED:
1. Petitioner Angel Gerardo’s petition for a writ of habeas corpus (Filing No. 1) is denied.
2. A-separate judgment will be entered.
Dated this 9th day of October, 2026.
BY THE COURT:
Susan M. Bazis
United States District Judge