Ache v. Bondi et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Fonji Delphine Ache,
Petitioner,
v.
Pamela Bondi, et al.,
Respondents.
No. CV-26-00593-PHX-RM (MTM)
ORDER
Self-represented Petitioner Fonji Delphine Ache, who is detained in the Eloy
Detention Center, filed a Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241.
(Doc. 1.) Respondents filed a response to the Petition. (Doc. 9.) Petitioner filed a
subsequent Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241 (Doc. 13), which
was docketed as a Motion to Amend in order to facilitate the Court’s consideration of it,
and the Court ordered a response (Doc. 17). For the following reasons, the Court will deny
the Motion to Amend, grant Petitioner’s Petition for Writ of Habeas Corpus Under 28
U.S.C. § 2241, and order that Petitioner be given a bond hearing.
I. Background
Petitioner is a native and citizen of Cameroon. (Doc. 13 at 11.) Petitioner entered
the United States without inspection on December 28, 2024. (Id., Doc. 9 at 1-2.) Petitioner
was apprehended by U.S. Border Patrol near Sasabe, Arizona the same day, and was given
over to the custody of U.S. Immigration and Customs Enforcement. (Doc. 9 at 1-2.) She
was placed in removal proceedings, and an immigration judge issued an order of removal
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on May 28, 2025. (Doc. 13 at 4.) Petitioner appealed that order to the Board of Immigration
Appeals, and her appeal remains pending. (Id., Doc. 17 at 2.) Petitioner has remained
detained since entering the United States on December 28, 2024. (Id.)
II. Motion to Amend
In her subsequent § 2241 Petition, which was docketed as a Motion to Amend in
order to facilitate the Court’s consideration of it, Petitioner claims that her detention is
unconstitutionally prolonged due to the lack of “concrete steps” taken toward her removal,
and she adds several claims regarding the conditions of her detention and the physical and
psychological effects her detention has had upon her. (Doc. 13.) A court “assessing the
propriety of a motion for leave to amend” must consider five factors: “(1) bad faith; (2)
undue delay; (3) prejudice to the opposing party; (4) futility of amendment; and (5) whether
the plaintiff has previously amended his complaint.” Nunes v. Ashcroft, 375 F.3d 805, 808
(9th Cir. 2004). “Futility alone can justify the denial of a motion for leave to amend.” Id.
To the extent that Petitioner asserts a claim under Zadvydas v. Davis, 533 U.S. 678,
701 (2001), in her subsequent § 2241 petition, that claim is at present premature. After the
entry of a final removal order, there is a 90-day period during which the alien ordered
removed must be detained. 8 U.S.C. § 1231(a)(2)(A). If removal does not occur during the
90-day period, further detention is statutorily authorized under certain circumstances. 8
U.S.C. § 1231(a)(6). In Zadvydas, the Court held that detention beyond the 90-day removal
period is presumptively reasonable for 6 months; if an alien shows after the conclusion of
the 6-month period that there is no significant likelihood of his removal in the reasonably
foreseeable future, however, she should be released. Zadvydas v. Davis, 533 U.S. 678, 701
(2001). The Court’s holding in Zadvydas is confined to § 1231(a)(6). Jennings v.
Rodriguez, 583 U.S. 281, 298 (2018).
Here, Zadvydas is inapplicable to Petitioner because she lacks an order of removal
that is administratively final, and therefore she is not detained pursuant to § 1231(a)(6).
Petitioner’s order of removal is not administratively final because her appeal is still pending
before the BIA. 8 C.F.R. § 1241.1 (“An order of removal made by the immigration judge .
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. . shall become final . . . [u]pon dismissal of an appeal by the Board of Immigration
Appeals.”) Accordingly, Petitioner’s subsequent § 2241 Petition is futile to the extent she
asserts a Zadvydas claim.
Moreover, Petitioner’s subsequent § 2241 Petition is also futile to the extent she
challenges the conditions of her confinement. “Challenges to the validity of any
confinement or to particulars affecting its duration are the province of habeas corpus,”
whereas “requests for relief turning on circumstances of confinement” should be presented
in a separate civil rights action. Muhammad v. Close, 540 U.S. 749, 750 (2004) (per
curiam). Accordingly, Petitioner’s claims regarding the conditions of her confinement are
not cognizable in this habeas corpus action.
Given that the claims asserted in Petitioner’s subsequent § 2241 Petition are futile
for the reasons discussed above, the Court will deny Petitioner’s Motion to Amend.
III. The Petition
In her Petition, Petitioner states that “there is no dispute that Petitioner is an arriving
alien subject to mandatory detention under 8 U.S.C. § 1225(b).” (Doc. 1 at 4.) Rather than
challenging the statutory authority for her detention, Petitioner instead contends that she is
entitled to a bond hearing as a matter of constitutional due process. (Id.) Respondents argue
that “[a]liens detained under 8 U.S.C. § 1225(b)(2) may be detained through the completion
of their removal proceedings without bond,” and contend that “such detention is not
unconstitutionally indefinite.” (Doc. 9 at 4.)
IV. Discussion
Respondents assert that Jennings v. Rodriguez, 583 U.S. 281 (2018), stands for the
proposition that detention throughout the completion of removal proceedings pursuant to
§ 1225(b) is “not unconstitutionally indefinite.” (Doc. 9 at 4.) That argument must fail,
however, because in Jennings, the Supreme Court only addressed an issue of statutory
interpretation and expressly avoided constitutional questions. 583 U.S. at 312. As such, the
Court will proceed to a constitutional due process analysis.
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The Court’s due process analysis consists of two steps: “[F]irst[, the Court] ask[s]
whether there exists a liberty or property interest of which a person has been deprived, and
if so[, the Court] ask[s] whether the procedures followed by the [government] were
constitutionally sufficient.” Swarthout v. Cooke, 562 U.S. 216, 219 (2011).
a. Liberty Interest
“A liberty interest may arise from the Constitution itself . . . or it may arise from an
expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209,
221 (2005) (citations omitted). “Freedom from imprisonment—from government custody,
detention, or other forms of physical restraint—lies at the heart of the liberty that [the Fifth
Amendment’s Due Process] Clause protects.” Zadvydas, 533 U.S. at 690. Petitioner has a
liberty interest in freedom from detention.
b. Due Process Regarding Petitioner’s Prolonged Detention
If a liberty interest is found, the Court then determines whether the procedural
protections provided are sufficient considering the “particular situation.”1 Mathews v.
Eldridge, 424 U.S. 319, 334 (1976) (quoting Morrissey v. Brewer, 408 U.S. 471, 481
(1972)). Courts in this circuit and beyond have grappled over what test should be used to
determine whether procedural due process requires relief for a noncitizen held pursuant to
§ 1225(b). See Doe v. Andrews, 1:25-cv-00333-JLT-HBK, 2026 WL 797694, at *9–12
(E.D. Cal. Mar. 23, 2026) (applying the 3-factor Lopez test); see also Galkin v. Scott, No.
2:26-cv-00530-TLF, 2026 U.S. Dist. LEXIS 46838, at *7 (W.D. Wash. Mar. 6, 2026)
(applying the 6-part Banda test) (citing Banda v. McAleenan, 385 F. Supp. 3d 1099, 1118
(W.D. Wash. 2019)); Leonteva v. Noem, No. 4:26-cv-00043-SEB-KMB, 2026 U.S. Dist.
LEXIS 52217, at *22 (S.D. Ind. Mar. 13, 2026) (applying the same 6-factor test, but calling
it the Jamal A test) (citing Jamal A. v. Whitaker, 358 F. Supp. 3d 853, 858–59 (D. Minn.
2019)); L.S. v. Warden, Otay Mesa Det. Ctr., No. 25-cv-3598-LL-BJW, 2026 U.S. Dist.
1 The Court notes that due process is a flexible concept. This, however, “does not mean
that judges are at large to apply it to any and all relationships. Its flexibility is in its scope
once it has been determined that some process is due; it is a recognition that not all
situations calling for procedural safeguards call for the same kind of procedure.”
Morrissey, 408 U.S. at 481.
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LEXIS 10299, at *11–15 (S.D. Cal. Jan. 20, 2026) (applying the 3-part Mathews v.
Eldridge test) (citing Mathews, 424 U.S. at 335).
Out of the above-mentioned tests, the Court finds the Banda test the most
appropriate to the situation in this matter. Under the Banda test, the Court considers the
following factors:
(1) the total length of detention to date; (2) the likely duration of future
detention; (3) the conditions of detention; (4) delays in the removal
proceedings caused by the detainee; (5) delays in the removal proceedings
caused by the government; and (6) the likelihood that the removal
proceedings will result in a final order of removal.
Banda, 385 F. Supp. 3d at 1118.
The Court finds the Banda test more suitable than the Mathews2 and Lopez3 tests.
Beginning with Mathews, the Court concurs with other district courts that have found that
“while the Mathews factors may be well-suited to determining whether due process
requires a second bond hearing, they are not particularly dispositive of whether prolonged
mandatory detention has become unreasonable in a particular case.” Lopez, 631 F. Supp.
3d at 879. Put differently, the Mathews test is apt where the question is whether an
administrative procedure provided is “constitutionally sufficient,” but “[i]t does not resolve
the more fundamental issue of whether any procedure—such as a bond hearing—must be
provided.” Banda, 385 F. Supp. 3d at 1106–07.4
2 Under the Mathews test, the Court considers:
First, the private interest that will be affected by the official action; second, the risk
of an erroneous deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards; and finally,
the Government’s interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement
would entail.
Mathews, 424 U.S. at 335.
3 Under the Lopez test, “the Court will look to the total length of detention to date, the
likely duration of future detention, and the delays in the removal proceedings caused by
the petitioner and the government.” Lopez, 631 F. Supp. 3d at 879.
4 In any event, the outcome applying Mathews and Banda would be the same—i.e.,
Petitioner would be entitled to an individual bond hearing. Applying the first Mathews
element, the undersigned finds that Petitioner has a strong private interest in her liberty
from prolonged civil detention. See Hernandez v. Sessions, 872 F.3d 976, 993 (9th Cir.
2017) (“As to the first factor, the private interest at issue here is ‘fundamental’: freedom
from imprisonment is at the ‘core of the liberty protected by the Due Process Clause.’”)
(quoting Foucha v. Louisiana, 504 U.S. 71, 80 (1992)).
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Turning next to the Lopez test, the Court notes that this test “concern[s] due process
challenge[s] to mandatory detention under § 1226(c), [and is], in essence, a truncated
version of the factors enumerated in Banda[.]” Andrews, 2026 WL 797694, at *10. Because
the six-factor Banda test is more detailed than Lopez and is better suited for noncitizens
held pursuant to § 1225(b), the Court accordingly elects to apply it.
i. Length of Detention.
The first Banda factor is the length of detention, “which is the most important
factor.” Banda, 385 F. Supp. 3d at 1118. “It is important to bear in mind the context: The
detention that is being examined here is the detention of a human being who has never been
found to pose a danger to the community or to be likely to flee if released.” Id. (quoting
Jamal A., 358 F. Supp. 3d at 859).
Petitioner has been held in ICE custody for approximately 17 months. Under the
first Banda factor, where a petitioner’s current detention exceeds a six-month threshold the
“detention[] become less and less reasonable.” Haidari v. Immigr. & Customs Enf’t Field
Off. Dir., No. 2:26-cv-00039-TL, 2026 U.S. Dist. LEXIS 56882, at *8 (W.D. Wash. Mar.
18, 2026) (quoting L.B.O.M. v. Hermosillo, No. 2:25-cv-02695-GJL, 2026 U.S. Dist.
LEXIS 21291, at *8 (W.D. Wash. Feb. 2, 2026)). Petitioner has been detained for
Turning to the second element, considering the prolonged nature of Petitioner’s detention,
the Court finds a large risk of erroneous deprivation in the absence of an individualized
bond hearing. See Rodriguez v. Robbins, 715 F.3d 1127, 1144 (9th Cir. 2013) (noting that
the discretionary parole system envisioned under the Immigration and Naturalization Act
is insufficient “to overcome the constitutional concerns raised by prolonged mandatory
detention”). Hence, an individualized bond hearing would greatly mitigate the risk of a
continued constitutional violation.
Finally, regarding the third Mathews factor, the government interest in detaining Petitioner
without an individualized bond hearing is low. First, “[p]roviding petitioner with a bond
hearing would not impede respondents’ interest in effecting removal or protecting the
public, as the purpose of the bond hearing is to determine whether petitioner is a danger or
flight risk.” Jensen v. Garland, No. 5:21-CV-01195-CAS (AFM), 2023 WL 3246522, at
*6 (C.D. Cal. May 3, 2023). Second, the fiscal burden of providing an individualized bond
hearing is low. See Abduraimov v. Andrews, No. 1:25-CV-00843-EPG-HC, 2025 WL
2912307, at *7 (E.D. Cal. Oct. 14, 2025) (“Courts generally have found that the cost of
providing a bond hearing is relatively minimal, and there is nothing in the record before
this Court demonstrating that providing Petitioner with a bond hearing would be fiscally
or administratively burdensome.”). Therefore, the third factor minimally favors the
government. Accordingly, applying the Mathews test to Petitioner’s 17-month detention,
the undersigned concludes that due process requires Petitioner be provided with an
individualized bond hearing.
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approximately 17 months. This is well beyond the six-month threshold, and well beyond
the length of confinement other courts have found to be prolonged. See, e.g., Kadir v.
Larose, No. 25cv1045-LL-MMP, 2025 U.S. Dist. LEXIS 203614, at *13 (S.D. Cal. Oct.
15, 2025) (noting that 13 months without a bond hearing is prolonged); cf. Banda, 385 F.
Supp. 3d at 1118 (“Petitioner has been in detention for approximately 17 months, which is
a very long time.”). In light of these decisions, and based upon the facts of the instant
action, the Court finds the length of Petitioner’s detention strongly favors granting relief.
ii. Likely Duration of Future Detention
The second factor requires the Court to “consider[] how long the detention is likely
to continue absent judicial intervention; in other words, the anticipated duration of all
removal proceedings—including administrative and judicial appeals.” Banda, 385 F. Supp.
3d at 1119 (citation omitted). “When the alien’s removal proceedings are unlikely to end
soon, this suggests that continued detention without a bond hearing is unreasonable.”
Akmal v. Warden of Cal. City Det., No. 1:25-CV-01921-DC-DMC-HC, 2026 WL 657606,
at *7 (E.D. Cal. Mar. 9, 2026) (quoting German Santos v. Warden Pike Cnty. Corr.
Facility, 965 F.3d 203, 211 (3d Cir. 2020)).
While the length of future detention is uncertain considering Petitioner’s pending
appeal before the BIA, the Court finds that the likely duration of future detention is
sufficiently lengthy for this factor to favor Petitioner. See Kadir, 2025 U.S. Dist. LEXIS
203614, at *8 (“Petitioner’s future detention can last several more months or even years
during the adjudication of Respondents’ appeal to the BIA.”).
iii. Conditions of Detention
The third factor requires the Court to consider the conditions of confinement.
Banda, 385 F. Supp. 3d at 1119. “The more that the conditions under which the [noncitizen]
is being held resemble penal confinement, the stronger his argument that he is entitled to a
bond hearing.” Id. (citation omitted). In Petitioner’s Motion to Amend, Petitioner details
serious physical and psychological effects resulting from poor detention conditions. (Doc.
13 at 6-7.) She describes being given water that is not potable, food that does not comport
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with her dietary needs, and medications that are ineffective to address her health conditions,
which include diabetes and hypertension. (Id.) She also describes constant exposure to light
and noise. (Id.) Petitioner states that this has caused her stomach issues, sleep issues, and
exacerbated her high blood pressure, and that the overall fact of her prolonged detention
has caused constant anxiety, stress, and depression. (Id.) The Court finds that this factor
weighs strongly in favor of Petitioner.
iv. Delays in Removal Proceedings
Next, the Court shall analyze the “fourth and fifth [Banda] factors—both which
consider delays caused by the parties—together.” Maliwat v. Scott, No. 2:25-CV-00788-
TMC, 2025 WL 2256711, at *6 (W.D. Wash. Aug. 7, 2025).
The fourth factor requires the Court to consider the nature and extent of any delays
caused by Petitioner. “Courts should be sensitive to the possibility that dilatory tactics by
the removable noncitizen may serve not only to put off the final day of deportation, but
also to compel a determination that the noncitizen must be released because of the length
of his incarceration.” Banda, 385 F. Supp. 3d at 1119 (cleaned up). Respondents do not
contend Plaintiff has caused any delays in this action. Consequently, this factor is neutral.
The fifth factor considers the delays in removal caused by the government. Banda,
385 F. Supp. 3d at 1120. “[I]f immigration officials have caused delay, it weighs in favor
of finding continued detention unreasonable . . . Continued detention will also appear more
unreasonable when the delay in proceedings was caused by the immigration court or other
non-ICE government officials.” Galkin, 2026 U.S. Dist. LEXIS 46838, at *11 (quoting
Sajous v. Decker, No. 18-CV-2447 (AJN), 2018 WL 2357266, at *10–11 (S.D.N.Y. May
23, 2018)). It is unclear to what extent the delay is caused by the BIA’s delay in resolving
Petitioner’s appeal. Therefore, the fifth factor is also neutral.
v. Likelihood of Removal
The final Banda factor requires the Court to consider “the likelihood that the final
proceedings will culminate in a final order of removal.” Banda, 385 F. Supp. 3d at 1120
(citation omitted). “[W]here a noncitizen has asserted a good faith challenge to removal,
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‘the categorical nature of the detention will become increasingly unreasonable.’” Id.
(quoting Sajous, 2018 WL 2357266, at *11). Based on the current record, Petitioner has
not established she is likely to prevail in her appeal before the BIA. Therefore, the sixth
factor favors Respondents.
vi. Conclusion
Three factors favor Petitioner, including two that strongly favor her; two factors are
neutral; and one factor favors Respondents. Based on these factors, the Court concludes
that Petitioner’s continued detention under § 1225(b)(2) has become unreasonable.
Therefore, Petitioner is entitled to relief.
V. Remedy.
Where a noncitizen’s detention under § 1225(b)(2) has become unreasonable, the
proper remedy is an individualized bond hearing before a neutral immigration judge. See
Galkin, 2026 U.S. Dist. LEXIS 46838, at *12 (finding that “there is no authority”
supporting relief in the form of immediate release, but there is authority supporting relief
in the form of a bond hearing) (cleaned up); see also Lopez, 631 F. Supp. 3d at 882 (“The
Court finds, consistent with other post-Jennings cases, that the appropriate remedy is a
bond hearing before an immigration judge rather than immediate release.”); Kaur v. Lyons,
2:26-cv-00217-KML, at *1 (D. Ariz. Apr. 9, 2026) (adopting the magistrate judge’s
recommendations for a 1225(b)(2) petitioner and granting a bond hearing). At the bond
hearing, Respondents bear the burden of proving that Petitioner is a danger or flight risk
by clear and convincing evidence. Singh v. Holder, 638 F.3d 1196, 1203–05 (9th Cir.
2011).
Accordingly,
IT IS ORDERED that the reference to Magistrate Judge Michael T. Morrissey is
withdrawn.
IT IS FURTHER ORDERED that Eric Rokosky, Warden of the Eloy Detention
Center is substituted for Unknown Party, Warden of the Eloy Detention Center.
IT IS FURTHER ORDERED that the Petition (Doc. 1) is granted as to
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Petitioner’s request for a bond hearing.
IT IS FURTHER ORDERED that Petitioner shall receive a bond hearing within
seven (7) days of the date this Order is filed. The bond hearing shall comport with the
procedural requirements of Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011). There must be
a contemporaneous record of the hearing, and the Government bears the burden of proving
by clear and convincing evidence that Petitioner is a flight risk or danger to the community.
In the alternative, the Government shall immediately release Petitioner under appropriate
conditions of release.
IT IS FURTHER ORDERED that Respondents shall file a notice of compliance
within two (2) days of Petitioner’s bond hearing or release.
IT IS FURTHER ORDERED that all pending motions (Docs. 3, 13) are denied,
and the Clerk of Court is directed to enter judgment in Petitioner’s favor and close this
case.
Dated this 2nd day of June, 2026.
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