Xiao v. FCI Berlin, Warden et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
DAOFA XIAO,
Petitioner,
v.
FCI BERLIN, WARDEN; DAVID
WESLING; ACTING DIRECTOR
TODD LYONS; and KRISTI NOEM,
Respondents.
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No. 26-cv-082-JJM-AEM
MEMORANDUM AND ORDER
JOHN J. MCCONNELL, JR., United States District Court Chief Judge.
Daofa 	Xiao 	is 	currently 	in 	the 	custody 	of 	Immigration 	Customs 	and
Enforcement 	(“ICE”) 	at 	the 	Federal 	Correctional 	Institution 	in 	Berlin, 	New
Hampshire. ECF No. 1. Mr. Xiao has filed a Petition for a Writ of Habeas Corpus
Ad
Prosequendum 1 or, in the alternative, a Writ of Habeas Corpus
Ad Testificandum, 2
requesting that the Court order the Government to bring Mr. Xiao to Rhode Island so
that he can be present for and assist in his defense of pending criminal charges filed
against him in Rhode Island Superior Court.
Id. at 1.
1 “
Habeas corpus ad prosequendum” is a Latin phrase meaning “you should
have 	the 	body 	for 	prosecuting.”
	Habeas 	Corpus, 	Merriam-Webster,
https://www.merriam-webster.com/dictionary/habeas%20corpus#legalDictionary
(last visited Feb. 12, 2026).
2 “
Habeas corpus ad testificandum” is a Latin phrase translating to “you should
have 	the 	body 	for 	testifying.”
	Habeas 	Corpus, 	Merriam-Webster,
https://www.merriam-webster.com/dictionary/habeas%20corpus#legalDictionary
(last visited Feb. 12, 2026).
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The Government has in turn moved to transfer this case to the U.S. District
Court for the District of New Hampshire. 	ECF No. 6. 	The Government primarily
argues that this Court lacks jurisdiction to grant Mr. Xiao the relief he seeks.
Id. at
1. Mr. Xiao opposes the Government’s motion. ECF No. 7.
For the reasons that follow, the Court GRANTS Mr. Xiao’s habeas petition and
DENIES the Government’s Motion to Dismiss.
I. 	BACKGROUND
Mr. Xiao is a native of China who entered the United States on a B-2 visa 3 in
November 2015. ECF No. 1 at 1, 4. He has filed an asylum application with the U.S.
Citizenship and Immigration Services (“USCIS”), contending that he fled his home
country after the Chinese government persecuted him on account of his religion.
Id.
at 4.
Since arriving in the United States, Mr. Xiao claims that he “has never resided
or maintained an address in Rhode Island.”
	Id. Nevertheless, in or about February
2019, the State of Rhode Island initiated criminal proceedings against Mr. Xiao in
Rhode Island Superior Court.
Id.
Mr. Xiao is charged with three counts: (1) manufacturing, delivering, or
possessing with intent to manufacture or deliver a controlled substance in violation
of R.I. Gen. Laws § 21-28-4.01(a)(4)(i); (2) manufacturing, selling, or possessing with
3 “A ‘B-2 visa’ is available, for example, to ‘tourists and those coming for social
visits, 	health 	reasons, 	or 	participation 	in 	amateur 	music 	and 	sports 	events.’”
Adeyanju v. Garland, 27 F.4th 25, 31 n.1 (1st Cir. 2022) (quoting 1 Charles Gordon
et al., Immigration Law and Procedure § 1.03 (2021)).
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intent to manufacture or sell 1-5 kilograms of marijuana in violation of R.I. Gen. Laws
§ 21-28-4.01.1(a)(5); and (3) conspiracy in violation of R.I. Gen. Laws § 11-1-6.
Id. at
4;
see also ECF No. 1-1 at 1 (displaying case information as produced by the Rhode
Island Superior Court).
The State of Rhode Island seems to be of the view that Mr. Xiao, in collusion
with others, rented a private property in Narragansett, Rhode Island under his name
and cultivated marijuana plants on the property. ECF No. 1 at 5. However, Mr. Xiao
maintains his innocence and asserts that he was erroneously charged for actions that
he did not commit.
Id. Specifically, he believes that an unknown individual stole his
identification and financial information and used it to carry out the drug trafficking
operation that the State of Rhode Island alleges.
Id.
The Rhode Island Superior Court scheduled an arraignment and mailed a
notice of a hearing to Mr. Xiao at the Narragansett property address.
	Id. However,
Mr. Xiao claims that the notice never reached him because he never resided at or had
any connection with the Narragansett address.
	Id. Because of his failure to appear
at the arraignment, there is a pending bench warrant against Mr. Xiao at the Rhode
Island Superior Court.
Id.
Still unaware of the criminal proceedings against him, Mr. Xiao appeared for
an asylum interview at the USCIS field office in Boston, Massachusetts on December
9, 2025.
Id. While in attendance, ICE officers detained Mr. Xiao, issued him a Notice
to Appear, and placed him in removal proceedings.
Id. at 1, 5.
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Since his arrest, ICE has transferred Mr. Xiao to various detention facilities
around New England. ICE first held Mr. Xiao at the Plymouth County Correctional
Facility in Plymouth, Massachusetts.
	Id. at 2. 	ICE later moved Mr. Xiao to the
Cumberland County Jail in Portland, Maine.
	Id. 	ICE then moved Mr. Xiao a third
time to the Federal Correctional Institution in Berlin, New Hampshire (“FCI Berlin”),
where he currently remains detained.
Id.
On February 3, 2026, the Rhode Island Superior Court issued a writ of habeas
corpus, ordering ICE officials and the Warden of FCI Berlin to produce Mr. Xiao at
the Washington County courthouse in Wakefield, Rhode Island so that he may appear
for his arraignment scheduled on February 19, 2026.
	Id. at 6; ECF No. 1-2 at 1
(displaying 	Rhode 	Island 	Superior 	Court’s 	writ 	of 	habeas 	corpus
	ad
prosequendum/testificandum).
Mr. Xiao filed the instant habeas petition on February 9, 2026. ECF No. 1. He
contends that neither ICE nor FCI Berlin will transport Mr. Xiao to his arraignment
unless the Court orders them to do so.
Id. at 7. In response to this petition, the Court
entered a text order that prohibits the Government from moving Mr. Xiao from FCI
Berlin “without providing the Court with at least 72 hours advance notice of the move
and the reason therefore.”
See Amended Text Order (Feb. 9, 2026).
Since then, the Government has moved to transfer this case to the U.S. District
for the District of New Hampshire, claiming that this Court lacks jurisdiction to grant
Mr. Xiao’s petition. ECF No. 6 at 1-2.
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II. 	LEGAL STANDARD
Under 28 U.S.C. § 2241(c)(5), “[a] writ of habeas corpus may be issued by a
district court and extended to a prisoner ‘[i]f it is necessary to bring [him] into court
to testify or for trial.’”
Soriano Neto v. Choate, No. 25-cv-00425-MSM-AEM, 2025 WL
2969178, at *1 (D.R.I. Oct. 21, 2025) (quoting 28 U.S.C. § 2241(c)(5)). 	“The writ is
‘issued directly by a court of the jurisdiction where an indictment, information, or
complaint has been lodged against the prisoner.’”
	United States v. Kelly, 661 F.3d
682, 686 (1st Cir. 2011) (quoting
Stewart v. Bailey, 7 F.3d 384, 389 (4th Cir. 1993)).
“It operates as ‘a court order requesting the prisoner’s appearance to answer charges
in the summoning jurisdiction.’”
Id. (quoting
Stewart, 7 F.3d at 389). “Moreover, this
authority has extraterritorial application.” 4
	Soriano Neto, 2025 WL 2969178, at *1
(citing
Carbo v. United States, 364 U.S. 611, 611-12, 620 (1961) (holding that a federal
court in California had authority to order a New York City prison official to produce
a prisoner so that the individual could be brought to California to stand trial in
federal court)).
A writ of habeas corpus
ad prosequendum “allows the issuing court to ‘obtain
temporary custody of the prisoner.’”
Kelly, 661 F.3d at 686 (quoting
United States v.
Mauro, 436 U.S. 340, 360 (1978)). Indeed, “[t]he nature of the writ is such that ‘the
4 The Supreme Court has not had a chance to rule on whether a writ of habeas
corpus
ad testificandum has extraterritorial application, as
Carbo only concerned the
writ of habeas corpus
ad prosequendum. 364 U.S. at 611-12. However, many courts
have recognized that the analysis used in
Carbo “applies equally to the writs
of
habeas 	corpus 	ad 	testificandum and
habeas 	corpus 	ad 	prosequendum.”
Muhammad v. Warden, Baltimore City Jail, 849 F.2d 107, 114 (4th Cir. 1988);
see
also Greene v. Prunty, 938 F. Supp. 637, 638-39 (S.D. Cal. 1996) (collecting cases).
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sending state retains full jurisdiction over the prisoner since the prisoner is only “on
loan” to the prosecuting jurisdiction.’”
Id. (quoting
Flick v. Blevins, 887 F.2d 778, 781
(7th Cir. 1989));
see also Stewart, 7 F.3d at 389;
Crawford v. Jackson, 589 F.2d 693,
695-96 (D.C. Cir. 1978).
III. 	DISCUSSION
Mr. Xiao wishes to have his custodians transport him to Rhode Island so that
he may be present for and assist in his defense of the criminal charges filed against
him in Rhode Island state court. ECF No. 1. The Government claims that there are
several reasons why this Court cannot honor Mr. Xiao’s request. 	ECF No. 6. 	None
of its arguments are persuasive.
First, the Government contends that, because Mr. Xiao was not present in the
District of Rhode Island at the time he filed his habeas petition, this Court lacks
jurisdiction over the matter. ECF No. 6 at 1-2. That is not the case. The Government
cites
Rumsfeld v. Padilla in support of its position, but that case is inapposite because
it involved the “Great Writ,”5 codified at 28 U.S.C. § 2241(a). 542 U.S. 426, 442. By
contrast, Mr. Xiao invokes the writs of habeas corpus
ad prosequendum and
ad
testificandum, which have “extraterritorial application” and “suffer[ ] no geographical
limitations.”
Kelly, 661 F.3d at 686 n.4 (citing
Carbo, 364 U.S. at 618, 620);
see also
5 The “Great Writ” is often referred to by its Latin name, which is “
habeas
corpus ad subjiciendum.”
	Habeas Corpus, Merriam-Webster, https://www.merriam-
webster.com/dictionary/habeas%20corpus#legalDictionary 	(last 	visited 	Feb. 	12,
2026).
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Soriano Neto, 2025 WL 2969178, at *1;
Muhammad, 849 F.2d at 114.6 As such, it is
not necessary for Mr. Xiao to have been in the District of Rhode Island at the time his
petition was filed in order for the Court to issue the writ he requests.
Next, the Government claims that the writs invoked by Mr. Xiao are used to
“order a person already in custody in its jurisdiction to be transferred out of state.”
ECF No. 6 at 3. According to the Government, Mr. Xiao has it backwards: he has to
be in custody in Rhode Island in order for this Court to order him transferred outside
of Rhode Island. This too is incorrect.
The court that issues the writ is a court of the jurisdiction where an indictment
has been lodged against the prisoner.
	Kelly, 661 F.3d at 686 (citing
Stewart, 7 F.3d
at 389). The issuing court merely obtains “temporary custody” of the prisoner because
the prisoner is “on loan” to the state where he is being prosecuted on the criminal
charge.
	Id. (citing
Mauro, 436 U.S. at 362;
Flick, 887 F.2d at 781). While this plays
out, the sending state retains “full jurisdiction over the prisoner,” and the “sending
state’s jurisdiction over the accused continues uninterruptedly.”
	Id. (first quoting
Flick, 887 F.2d at 781; then quoting
Crawford, 589 F.2d at 695-96). “A prisoner is not
even 	‘in 	custody’ 	[of 	the 	summoning 	jurisdiction] 	when 	he 	appears 	in 	[that]
jurisdiction’s court pursuant to an
ad prosequendum writ.”
	Stewart, 7 F.3d at 389.
Accordingly, Mr. Xiao need not be “in custody” in Rhode Island at all. It is sufficient
6 By contrast, the “Great Writ” has territorial limitations, as it is “issuable only
in the district of confinement.”
	Kelly, 661 F.3d at 686 n.4 (citing
Carbo, 364 U.S. at
618).
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that he is detained in New Hampshire, and that Rhode Island is the jurisdiction
where a criminal indictment has been lodged against him.
The Government also contends that 28 U.S.C. § 2241(c)(5) limits courts to
authorizing detainee transfers only for the purpose of “bring[ing] [the petitioner] to
testify or for trial.” ECF No. 6 at 2. The Government seems to argue that Mr. Xiao’s
arraignment will not involve testimony and is not a trial, so the habeas statute does
not authorize the transfer of Mr. Xiao so that he can attend his arraignment.
Id. The
Court disagrees. Courts across the country have issued the writ of habeas corpus
ad
prosequendum to prisoners so that they can attend their arraignments in prosecuting
jurisdictions.
See, e.g.,
Arizona v. Bondi, No. CV-25-00468-TUC-RM (MAA), 2025 WL
2800075, at *4 (D. Ariz. Oct. 2, 2025);
Jake v. Herschberger, 173 F.3d 1059, 1061 n.1
(7th Cir. 1999) (noting that the writ of habeas corpus
ad prosequendum permits “the
receiving sovereign” to temporarily “borrow” a person for the purposes of “indicting,
arraigning, trying, and sentencing the person”) (emphasis added).
Arguably, the arraignment is one of the most significant aspects of a criminal
proceeding. 	Indeed, the Supreme Court has recognized, under federal law, that an
arraignment is “a sine qua non7 to the trial itself,” because it is “the preliminary stage
where the accused is informed of the indictment and pleads to it, thereby formulating
the issue to be tried.”
Hamilton v. Alabama, 368 U.S. 52, 54 n.4 (1961) (citing
Crain
v. United States, 162 U.S. 625, 644 (1896)). 	Recognizing the importance of the
7
	Sine qua non is another Latin phrase meaning “something absolutely
indispensable or essential.”
Sine Qua Non, Merriam-Webster, https://www.merriam-
webster.com/dictionary/sine%20qua%20non (last visited Feb. 12, 2026).
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arraignment, Rhode Island law provides that a criminal defendant is entitled to be
present at this particular proceeding.
See State v. LaChappelle, 424 A.2d 1039, 1045
(R.I. 1981) (observing that Rule 43 of the Superior Court Rules of Criminal Procedure
“expressly requires the presence of defendant at his arraignment, at the imposition
of sentence, and at every ‘stage of trial,’ including the impaneling of the jury and the
return of the verdict”).
In 	any 	event, 	Mr. 	Xiao 	does 	not 	seek 	the 	writs 	of 	habeas 	corpus
	ad
prosequendum or
ad testificandum just so that he can attend his arraignment; he
also seeks to be present at “any other proceedings subsequent to the arraignment,
which may very well involve testimony and trial.” ECF No. 7 at 3;
see also ECF No.
1 at 8 (describing Mr. Xiao’s prayer for relief). The Court finds that Mr. Xiao has the
right to attend every single one of these proceedings, including his arraignment.
The Government’s final argument is that, in order for the writs to issue, “state
prosecutorial authorities” have to be the ones seeking Mr. Xiao’s appearance in Rhode
Island. ECF No. 6 at 3. The Government seems to suggest that it is not enough that
the Rhode Island Superior Court—and not state prosecutors—requested Mr. Xiao’s
presence in Rhode Island.
	Id. at 2-3. To be sure, the Supreme Court has held that,
with regard to the writ of habeas corpus
ad testificandum, federal courts have the
power to issue the writ “at the request of state prosecutorial authorities.”
	Barber v.
Page, 390 U.S. 719, 724 (1968) (citing 28 U.S.C. § 2241(c)(5)). The Court did not say
whether this power also extended to the writ of habeas corpus
ad prosequendum.
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Nevertheless, 	some 	courts 	have 	construed 	this 	holding 	to
	require 	state
prosecutors to seek the writ of habeas corpus
ad testificandum or
ad prosequendum
in order for courts to be empowered to grant it.
See, e.g.,
Malool v. Castro, No. 25-cv-
11222, 2025 WL 1424434, at *3 (D. Mass. May 16, 2025);
Cortez Rivera v. Hyde, No.
1:25-cv-12390, 2025 WL 2977900, at *3 (D. Mass. Oct. 22, 2025).
On the other hand, other courts have found it sufficient for the state court itself
to request the prisoner’s presence in the state via a writ of habeas corpus
ad
prosequendum or
ad testificandum.
See, e.g.,
Soriano Neto, 2025 WL 2969178, at *1
(granting petitioner’s request that she be transferred to Rhode Island for her state
criminal proceedings where the Rhode Island Superior Court also requested her
presence by issuing a “writ of
ad prosequendum/testificandum”);
Vidal-Martinez v.
Acuff, No. 21-cv-224-NJR, 2021 WL 1784948, at *2 n.2 (S.D. Ill. May 5, 2021)
(recognizing that an Indiana state court was empowered to issue a writ of habeas
corpus
ad prosequendum so that petitioner detained by ICE could attend his state
criminal proceedings);
Abraham v. Decker, No. 18-cv-3481 (CBA), 2018 WL 3387695,
at *1 (E.D.N.Y. July 12, 2018) (recognizing that a New York state court was
empowered to issue a writ of habeas corpus
ad prosequendum so that petitioner
detained by ICE could attend his state criminal proceedings).
The Court finds it sufficient that the Rhode Island Superior Court requested
Mr. Xiao’s presence in Rhode Island via the writ of
ad prosequendum/testificandum.
See ECF No. 1-2 at 1. 	As Judge McElroy aptly put it, this action by the state court
“implicates the long-standing principal of reciprocal comity between sovereigns in our
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dual system of justice.”
Soriano Neto, 2025 WL 2969178, at *1. “[T]he power to ‘lend’
a prisoner from one sovereign to another arises from mutual respect and cooperation
in the administration of justice.”
Id. (citing
Ponzi v. Fessenden, 258 U.S. 254, 260-62
(1922)). 	Accordingly, “[t]he Superior Court’s 	writ 	here 	functions 	as 	a 	formal
invocation 	of 	that 	comity 	and 	does 	not 	diminish 	federal 	authority; 	rather, 	it
exemplifies the cooperative accommodation that the
Ponzi Court deemed essential to
ensuring that each sovereign may vindicate its own laws without undue interference
from the other.”
Id.
IV. 	CONCLUSION
The Court therefore GRANTS Mr. Xiao’s petition for a writ of habeas corpus
ad prosequendum, permitting him to attend his criminal proceedings in Rhode Island
state court, as well as his arraignment. 	ECF No. 1. 	The Court also GRANTS Mr.
Xiao’s petition for a writ of habeas corpus
ad testificandum, permitting him to attend
the proceedings should he choose to invoke his right to testify at his criminal trial.
Id. The Court DENIES the Government’s Motion to Transfer. ECF No. 6.
The Court’s previous text order, prohibiting the Government from moving Mr.
Xiao from FCI Berlin without providing the Court with at least 72 hours advance
notice, is amended as follows.
The Government is ORDERED to ensure that Mr. Xiao is transported and
produced before the Washington County Superior Court in Wakefield, Rhode Island
in sufficient time to appear at his scheduled arraignment on February 19, 2026, at
9:30 AM.
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Following the arraignment, the Government is also ORDERED to ensure that
Mr. Xiao is transported to each and every hearing, trial, or other court date
calendared in case number W2-2019-0094B by the Washington County Superior
Court. 	The Government is ORDERED to file a status report with the Court within
15 days in which it will provide logistics on how Mr. Xiao shall be transported to
ensure his appearance at his criminal proceedings.
In the alternative, if the Government cannot arrange for such transportation,
the Government shall release Mr. Xiao no later than February 17, 2026, to permit
him to make his own travel arrangements and to be personally present at his criminal
proceedings.
Further, while Mr. Xiao’s criminal proceedings are ongoing, the Government
is prohibited from removing Mr. Xiao from Rhode Island or New Hampshire without
providing the Court with at least 72 hours advance notice of the move and the reason
therefore.
IT IS SO ORDERED.
s/John J. McConnell, Jr.
_________________________________
JOHN J. MCCONNELL, JR.
Chief Judge
United States District Court
DATE: 13 February 2026
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