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govinfo:USCOURTS-flsd-1_25-cv-24121-0
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION
CASE NO. 1:25-cv-24121-EA
Dmytro Mokanu,
Petitioner,
v.
Warden Miami Federal Detention Center,
US Department of Homeland Security,
Respondents.
__________________________________/
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
This cause comes before the Court on the petitioner’s petition for the writ of habeas corpus
[ECF No. 1]. Having carefully considered the record and the parties’ arguments, the Court denies
the petition for the reasons stated below.
Background
The petitioner is a Ukrainian citizen who was allegedly granted humanitarian parole by
immigration officials in January 2024 and has been working as a commercial truck driver since
arriving in the United States . ECF No. 1 ¶ 19-20, 24, 27; ECF No. 1 -1 at 5. In August 2025, the
Broward County Sheriff’s Office arrested the petitioner on charges of (1) sexual battery on a victim
18 years or older by a person 18 years or older without physical force or violence and (2) battery.
ECF No. 16-2 at 1. This arrest stemmed from an incident occurring on January 1, 2025. ECF No.
16-3.
As alleged in the general affidavit and application for arrest warrant, during the early morning
hours of January 1, 2025, the petitioner was messaging a female acquaintance (“the alleged
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victim”) on Instagram. ECF No. 16- 3 at 6-7. While messaging on Instagram, they decided to go
out somewhere together, and the petitioner offered to pick her up, which she accepted. ECF No.
16-3 at 7.
After picking her up, the petitioner drove the alleged victim to his apartment, where she
eventually fell asleep. ECF No. 16-3 at 7. She woke up to the petitioner having sexual intercourse
with her by inserting his penis into her vagina. ECF No. 16- 3 at 7. She then told him that she did
not want to have sexual intercourse, and she attempted to leave. ECF No. 16-3 at 7. But he “pulled
her hair, threw her on the bed[,] and put a pillow over her face to keep her quiet as she was
screaming.” ECF No. 16 -3 at 7. Thereafter, he stopped having sexual intercourse with her and
drove her home. ECF No. 16-3 at 7.
When contacted by the police, the petitioner —through counsel —denied having had sexual
contact with her since “she was acting crazy” that night. ECF No. 16-3 at 9. DNA testing was then
conducted on two pieces of evidence, and the results showed that, for one piece of evidence, it was
62.9 sextillion times more likely that the DNA combination was from the petitioner and the alleged
victim than from the alleged victim and an unknown male and that, for the other piece of evidence,
it was 2.2 septillion times more likely that the DNA combination was from the petitioner and the
alleged victim than from the alleged victim and an unknown male. ECF No. 16-3 at 9-10.
After the Broward County Sheriff’s Office arrested the petitioner for the aforementioned state
charges stemming from these acts, the United States Department of Homeland Security (“DHS”)
commenced removal proceedings against him on the basis that “at the time of application for
admission, [the petitioner was] not in possession of a valid unexpired immigrant visa, reentry
permit, border crossing card, or other valid entry document required by the [I mmigration and
Nationality] Act, and a valid unexpired passport, or other suitable travel document, or document
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of identity and nationality as required under the regulations issued by the Attorney General under
section 211(a) of the [Immigration and Nationality] Act.” ECF No. 16-4 at 2-3. The petitioner was
then taken into the custody of United States Immigration and Customs Enforcement (“ICE”)
“pending removal proceedings.” ECF No. 16-4 at 3.
The petitioner then filed this petition , pursuant to 28 U.S.C. § 2241, for the writ of habeas
corpus. ECF No. 1. He seeks the writ for the “Court [to] issue an immediate show cause order to
the Respondents to bring the Petitioner to Court and show cause why he should not be immediately
released on a reasonable bond.” ECF No. 1 at 12. The petitioner argues that he is entitled to the
issuance of the writ because the Fifth Amendment’s Due Process Clause has been violated by the
revocation of his humanitarian parole without “any f orm of meaningful due process” and the
Eighth Amendment has been violated by being detained in ICE custody, which caused him to
cancel a previously scheduled back surgery , for an injury arising from a car accident he was in,
due to being detained in ICE custody. See ECF No. 1 ¶ 5-7, 21; ECF No. 1-1 at 1.
Later, the State of Florida filed a notice of no information filed as to the state charges against
him and declined to prosecute the case. ECF No. 5-1. Nevertheless, the petitioner remains in ICE’s
custody while his removal proceedings are ongoing. See generally ECF No. 5; ECF No. 16.
After the government was served with process, this Court issued an order for the parties to
brief the Court’s subject matter jurisdiction under 8 U.S.C. §§ 1252(b)(9) and/or (g). ECF No. 15.
Jurisdiction
“The right of a nation to expel or deport foreigners, who have not been naturalized or taken
any steps towards becoming citizens of the country, rests upon the same grounds, and is as absolute
and unqualified as the right to prohibit and prevent their entrance into the country.” Fong Yue Ting
v. United States , 149 U.S. 698, 707 (1893) (emphasis added). And “[t]he right to exclude or to
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expel all aliens, or any class of aliens, absolutely or upon certain conditions, in war or in peace,
being an inherent and inalienable right of every sovereign and independent nation, [is] essential to
its safety, its independence and its welfare[.]” Id. at 711. These principles of American law are
deeply rooted in the English common law. Id. at 709.
Indeed, “[i]n England, the only question that has ever been made in regard to the power to
expel aliens has been whether it could be exercised by the King without the consent of Parliament.”
Id. at 709. Originally, the King exercised sole authority in matters of immigration, though
Parliament “passed several acts on the subject between 1793 and 1848.” Id. And in 1891, the
Supreme Court of the Colony of Victoria explained that the English common law allowed an alien
to maintain an action for entry into the colony “only . . . if he can establish that [he] has a legal
right[] . . . to enter British territory.” Id. at 710 (quoting Musgrove v. Chun Teeong Toy, App. Cas.
(1891) 272, 282, 283)); see also Demore v. Hyung Joon Kim, 538 U.S. 510, 538 (2003) (O’Connor,
Scalia, and Thomas, JJ., concurring in part and concurring in the judgment) (“[H]istorical evidence
suggests that [an alien] would not have been permitted to challenge his temporary detention
pending removal until very recently.”).
It is within this historical context that our Constitution grants Congress the power “to expel”
or “to exclude aliens, or any specified class of aliens, from the country[.]” Fong Yue Ting, 149
U.S. at 713-14. In furtherance of this power, Congress may either (1) prohibit judicial review of
immigration-related actions and grant the President the exclusive authority to expel or exclude
aliens or (2) “call in the aid of the judiciary to ascertain any contested facts on which an alien’s
right to be in the country has been made by Congress to depend.” Id.
Pursuant to this power, Congress passed its first immigration-related law in 1875. Demore, 538
U.S. at 538 (2003) (O’Connor, Scalia, and Thomas, JJ., concurring in part and concurring in the
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judgment). Then, in 1952, Congress passed the Immigration and Nationality Act. This Act was
later amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“the
IIRIRA”), which includes 8 U.S.C. § 1252, the REAL ID Act of 2005, and, most recently, the
Laken Riley Act of 2025.
Prior to its amendment by the REAL ID Act, 8 U.S.C. § 1252(g) stated:
Except as provided in this section and notwithstanding any other provision of law,
no court shall have jurisdiction to hear any cause or claim by or on behalf of any
alien arising from the decision or action by the Attorney General to commence
proceedings, adjudicate cases, or execute removal orders against any alien under
this chapter.
In Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999), the Supreme
Court addressed the scope of § 1252(g)’s bar on jurisdiction in a non- habeas case. There, the
plaintiffs sued the defendants for allegedly violating the First and Fifth Amendments by “targeting
them for deportation because of their affiliation with a politically unpopular group.” Id. at 472-74.
In analyzing § 1252(g), the Supreme Court explained that this statute plainly deprives courts
of subject matter jurisdiction in cases regarding the “three distinct actions” listed in § 1252(g): “to
‘commence proceedings, adjudicate cases, or execute removal orders.’” Id. at 482. Thus, because
the lawsuit alleging constitutional violations arising from the decision to commence removal
proceedings, the Supreme Court concluded that “8 U.S.C. § 1252(g) deprive[d] the federal courts
of jurisdiction over [the] claims[.]” Id. at 492. Notably, “[n]owhere in [American-Arab Anti -
Discrimination Committee] did the Court suggest[] . . . that the statute’s jurisdictional limits might
not apply depending on the particular grounds raised by an alien challenging the Attorney
General’s decision in these three areas.” Demore, 538 U.S. at 537 (O’Connor, Scalia, and Thomas,
JJ., concurring in part and concurring in the judgment) (emphasis added).
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A few years later , in INS v. St. Cyr , 533 U.S. 289 (2001), the Supreme Court considered
whether the pre-2005 version of 8 U.S.C. § 1252(b)(9) applied to habeas petitions. This version of
§ 1252(b)(9) provided:
Judicial review of all questions of law and fact, including interpretation and
application of constitutional and statutory provisions, arising from any action taken
or proceeding brought to remove an alien from the United States under this
subchapter shall be available only in j udicial review of a final order under this
section.
The Supreme Court concluded that because “ § 1252(b)(9) [did] not clearly apply to actions
brought pursuant to the general habeas statute, and thus [could not] repeal that statute in part or in
whole[,]” because “‘judicial review’ and ‘habeas corpus’ have historically distinct meanings.” St.
Cyr, 533 U.S. at 312, 314 (citing Heikkila v. Barber, 345 U.S. 229 (1953)).
But, as Justice Scalia noted in dissent, the Heikkila opinion that the Supreme Court relied on
“simply assert[ed] that habeas corpus review is different from ordinary [Administrative Procedures
Act] review” and did “not assert that habeas corpus review is not judicial review at all.” Id. at 331
(Scalia, J., dissenting) (emphasis removed). And the Supreme Court’s interpretation of this version
of § 1252(b)(9) is inconsistent with the statutory text because Congress does not have to use
“magic words” to make a “clear statement” stripping courts of jurisdiction. Id. at 333-35 (Scalia,
J., dissenting) ; see also Nasrallah v. Barr , 590 U.S. 573, 594 (2020) (Thomas, J., dissenting)
(citing St. Cyr as an example of the Supreme Court “systematically chip[ping] away
at . . . jurisdictional limitations on immigration claims” over the course of “decades”). Indeed, the
statute “[u]nquestionably, unambiguously, and unmistakably, . . . supersede[d] [28 U.S.C.]
§ 2241’s general provision for habeas jurisdiction.” St. Cyr, 533 U.S. at 332 (Scalia, J., dissenting).
Nevertheless, the REAL ID Act amended both § 1252(b)(9) and § 1252(g) to specifically strip
courts of habeas jurisdiction when these statutes apply. See Nasrallah, 590 U.S. at 580 (majority
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opinion) (explaining that the REAL ID Act superseded St. Cyr and “clarified that final orders of
removal may not be reviewed in the district courts, even via habeas corpus, and may be reviewed
only in the courts of appeals”).
As amended, § 1252(g) now provides:
Except as provided in this section and notwithstanding any other provision of law
(statutory or nonstatutory), including section 2241 of title 28, United States Code,
or any other habeas corpus provision, . . . no other court shall have jurisdiction to
hear any cause or claim by or on behalf of any alien arising from the decision or
action by the Attorney General to commence proceedings, adjudicate cases, or
execute removal orders against any alien under this Act.
(Emphasis added).
Because § 1252(g)’s plain language uses the word “any” to modify the “cause[s] or claim[s]”
arising from the discretionary acts listed, it “makes no exception for” the types of causes or claims
that can be heard when the petitioner challenges a “decision or action” arising from one of the
three enumerated, discretionary acts. Camarena v. Dir., Immigr. & Customs Enf’t, 988 F.3d 1268,
1273 (11th Cir. 2021). This is true regardless of the theory raised because “a party may not dress
up a claim with legal or constitutional clothing to invoke [a court’s] jurisdiction[.]” Id. at 1274
(quoting Patel v. U.S. Att’y Gen., 971 F.3d 1258, 1272 (11th Cir. 2020) (en banc)).
Moreover, § 1252(g)’s use of the phrase “arising from” means that if any of the three
discretionary acts listed “is the basis of the claim[,]” federal courts lack subject matter jurisdiction
over the proceedings. Gupta v. McGahey , 709 F.3d 1062, 1065 (11th Cir. 2013) ; see also Arise,
Black’s Law Dictionary (12th ed. 2024) (defining to “arise [from]” as “[t]o originate” or “to stem
(from)”). As the Fifth Circuit has explained, a claim arises from the decision or action to commence
proceedings, adjudicate cases, or execute removal orders if the “claim[] [is] connected directly and
immediately” to the decision or action. Foster v. Townsley, 243 F.3d 210, 214 (5th Cir. 2001)
Case 1:25-cv-24121-EA Document 19 Entered on FLSD Docket 02/19/2026 Page 7 of 13
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(emphasis added) (quoting Humphries v. Various Fed. U.S. INS Emps., 164 F.3d 936, 943 (5th
Cir. 1999)).
Under binding Eleventh Circuit precedent, “[s]ecuring an alien while awaiting a removal
determination” is so directly and immediately connected to the decision to commence removal
proceedings that it “constitutes an action taken to commence proceedings.” Gupta, 709 F.3d at
1065; see also Jennings v. Rodrigues , 583 U.S. 281, 318 (2018) (Thomas, J., concurring in part
and concurring in judgment) (“[D]etention is an ‘action taken . . . to remove’ an alien.” (alteration
in original)); Mbutha v. U.S. Immigr. & Customs Enf’t , --- F. Supp. 3d ----, No. 1:25- cv-23593-
EA, 2025 WL 3550997, at *2 (S.D. Fla. Dec. 11, 2025) (“[D]etaining an alien undoubtedly ‘arises’
from the Attorney General’s ‘decision or action’ to commence proceedings against the alien, as
those terms plainly indicate.”). Indeed, courts have no jurisdiction to review “ICE’s decision to
take [aliens] into custody and to detain [them] during [their] removal proceedings” because
“[t]hese [actions] . . . arise from ICE’s d ecision to commence proceedings.” Alvarez v. U.S.
Immigr. & Customs Enf’t, 818 F.3d 1194, 1203 (11th Cir. 2016).
The decision either to grant or deny bond to an alien likewise arises from the decision to
commence removal proceedings because the common law considered release on bond to be a form
of detention and presents a question of the “method[] of retaining control over a defendant’s
person, not one between seizure and its opposite.” See Albright v. Oliver, 510 U.S. 266, 278 (1994)
(Scalia, J., concurring) (first citing 2 M. Hale, Pleas of the Crown *124; and then citing 4 William
Blackstone, Commentaries *290, *297); see also Bond, Black’s Law Dictionary (12th ed. 2024)
(“The effect of the release on bail bond is to transfer custody of the defendant from the officers of
the law to the surety on the bail bond[.]”).
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Applied here , § 1252(g) deprives the Court of subject matter jurisdiction to consider the
petition.
The petitioner asserts that because the State of Florida decline d to prosecute him, he must be
released from custody because, in his view, “there is no longer any rational basis for his continued
detention.” ECF No. 5 at 1-2. But his current detention is not due to the now-dropped state charges
because the United States is not using the arrest as the basis to remove him since it claims he is
removable for not having the necessary documentation when he entered the country. ECF No. 16-
4 at 2 -3. Indeed, the petitioner acknowledges that he is being detained “ pending removal
proceedings.” ECF No. 1 ¶ 2; see also ECF No. 16-4 at 3 ( “The [petitioner] will be held in I CE
custody pending removal proceedings.”).
Thus, by seeking release from custody “pending removal proceedings,” the “basis of his claim”
is a chal lenge to the decision to commence removal proceedings against him, which is plainly
barred by § 1252(g). Additionally, the petitioner’s request for bond is “directly and immediately
connected” to the decision to commence removal proceedings because granting release on bond is
a form of securing or detaining an alien, which arises from the decision to commence removal
proceedings.
Therefore, § 1252(g) deprives this Court of subject matter jurisdiction over this petition.
Merits
Under federal law, “if the examining immigration officer determines that an alien seeking
admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for
a proceeding under section 240.” 8 U.S.C. § 1225(b)(2)(A) (emphasis added). Subject to
exceptions, other aliens may either be detained or released on bond. 8 U.S.C. § 1226(a).
Case 1:25-cv-24121-EA Document 19 Entered on FLSD Docket 02/19/2026 Page 9 of 13
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Federal law defines an “applicant for admission” as “[a]n alien present in the United States
who has not been admitted or who arrives in the United States (whether or not at a designated port
of arrival and including an alien who is brought to the United States after having been interdicted
in international or United States waters)[.]” 8 U.S.C. § 1225(a)(1). For purposes of
§ 1225(b)(2)(A), an alien “seeking admission” is the same as an “applicant for admission” because
“[t]here is no material disjunction—by the terms of the statute or the English language —between
the concept of ‘applying’ for something and ‘seeking’ something.” Buenrostro-Mendez v. Bondi,
--- F.4th ----, No. 25- 20496, 2026 WL 323330, at *4 (5th Cir. Feb. 6, 2026) (quoting Garibay -
Robledo v. Noem, --- F. Supp. 3d ----, No. 1:25-CV-177-H, 2026 WL 81679, at *5 (N.D. Tex. Jan.
9, 2026)); see also Lopez v. Dir. of Enf’t and Removal Ops., --- F. Supp. 3d ----, No. 3:25-cv-1313-
JEP-SJH, 2026 WL 261938, at *2 (M.D. Fla. Jan. 26, 2026) (treating an alien “seeking admission”
as an “applicant for admission”); Morales v. Noem , --- F. Supp. 3d ----, No. 25- 62598-CIV-
Singhal, 2026 WL 236307, at *4 (concluding that an alien present in the United States without
being lawfully admitted is subject to mandatory detention) ; Weliton Lopes Costa v. Noem , No.
3:25-cv-1384-JEP-MCr, 2026 WL 456771, (M.D. Fla. Feb. 18, 2026) (applying Lopez to conclude
that an alien was an applicant for admission).
Additionally, an alien released into the United States on humanitarian parole is an alien seeking
admission because “such parole of such alien shall not be regarded as an admission of the alien
and when the purposes of such parole shall, in the opinion of the Secretary of Homeland Security,
have been served the alien shall forthwith return or be returned to the custody from which he was
paroled and thereafter his case shall continue to be dealt with in the same manner as that of any
other applicant for admission to the United States.” 8 U.S.C. § 1182(d)(5)(A) (emphasis added).
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Here, the petitioner is an alien “seeking admission” into the United States because, under
§ 1182(d)(5)(A), his alleged humanitarian parole does not constitute admission into the United
States, which makes him an alien present in the United States who has not been admitted, i.e. an
applicant for admission under § 1225(a)(1). Accordingly, the petitioner is subject to mandatory
detention under § 1225(b)(2)(A).
Moreover, contrary to the petitioner’s argument, there is no F ifth Amendment Due Process
Clause violation by the Secretary of Homeland Security’s decision to revoke his humanitarian
parole without a hearing or any other form of due process as the Constitution does not require
such. Fong Yue Ting, 149 U.S. at 728; see also Morales , 2026 WL 236307, at *9 (rejecting an
argument that mandatory detention under § 1225(b)(2)(A) violates the Fifth Amendment’s Due
Process Clause). Indeed, the Constitution grants Congress the authority to require aliens “to be
removed out of the country by executive officers, without judicial trial or examination, just as it
might have authorized such officers absolutely to prevent his entrance into the country.” Fong Yue
Ting, 149 U.S. at 728 (emphasis added).
Likewise, there is also no Eighth Amendment violation because he was detained pursuant to
federal law and there is no evidence that the government has actively tortured him. See id. at 730
(explaining that “the provisions of the Constitution[] . . . prohibiting . . . cruel and unusual
punishments[] have no application” to an order of deportation obtained “by appropriate and lawful
means”); In re Kemmler , 136 U.S. 436, 446 (1890) (explaining that the Eighth Amendment, as
properly and originally understood, prohibits punishments that are “manifestly cruel and unusual,
[such] as burning at the stake, crucifixion, breaking on the wheel, or the like”). In any event, the
petitioner has received treatment for his back injury since being detained by ICE, so this argument
is now moot . See ECF No. 16- 13 at 2; Chafin v. Chafin, 568 U.S. 165, 172 (2013) (“[A] suit
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becomes moot[] ‘when the issues presented are no longer “live” or the parties lack a legally
cognizable interest in the outcome.” (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013))).
Thus, even if there is jurisdiction over the petition, it appears from the petition and
supplemental briefing that the petitioner is not entitled to the issuance of the writ. See 28 U.S.C.
§ 2243 (“A court[] . . . entertaining an application for a writ of habeas corpus 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.” (emphasis added)).
Conclusion
Therefore, it is ORDERED AND ADJUDGED:
1. The petition [ECF No. 1] is DENIED.
2. This CASE IS CLOSED.
3. All pending motions are DENIED AS MOOT , and all pending deadlines are
TERMINATED.
ORDERED in Chambers in West Palm Beach, Florida, this 19th day of February 2026.
__________________________________________________________________________________________________________________________________________________________________________________________________
ED ARTAU
UNITED STATES DISTRICT JUDGE
Copies Served:
Michael A. Pizzi
Michael A Pizzi, Jr., P.A.
Suite 316
6625 Miami Lakes Drive East
Miami Lakes, FL 33014
305-777-3800
Fax: 305-777-3802
Email: mpizzi@pizzilaw.com
Case 1:25-cv-24121-EA Document 19 Entered on FLSD Docket 02/19/2026 Page 12 of 13
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Noticing 2241/Bivens US Attorney
Email: usafls-2255@usdoj.gov
Noticing INS Attorney
Email: usafls-immigration@usdoj.gov
Alicia Hayley Welch
DOJ-USAO
Civil Division
99 N.E. 4th Street
3rd Floor
Miami, FL 33132
305-961-9455
Email: Alicia.Welch@usdoj.gov
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