Wang et al v. Kaiser et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
JIANQIANG WANG, MEIKUN ZHENG,
BAILIN WANG, BAIFENG WANG, and
BAISHEN WANG,
Petitioners,
vs.
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY, U.S.
IMMIGRATION AND CUSTOMS
ENFORCEMENT, FIELD OFFICE
DIRECTOR, ICE ENFORCEMENT AND
REMOVAL OPERATIONS, Honolulu, HI,
in an official capacity,
Respondents.
Civil No. 26-00009 MWJS-KJM
ORDER DENYING EMERGENCY
MOTION FOR TEMPORARY
RESTRAINING ORDER AND MOTION
FOR PRELIMINARY INJUNCTION
INTRODUCTION
This is a habeas case brought by Petitioners who are natives of the People’s
Republic of China and were admitted into the United States for conditional permanent
residence as alien entrepreneurs. In early 2024, their efforts to remove the conditions on
their permanent residence were unsuccessful. A year later, the government began
removal proceedings, which are still ongoing.
In their habeas petition, Petitioners explain that they fear immigration agents will
arrest them before their ongoing removal proceedings have concluded. Alongside their
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habeas petition, they have filed an emergency motion for a temporary restraining order
and a motion for a preliminary injunction, both seeking to enjoin various federal
agencies from executing an immigration-related arrest. Although initially filed on
behalf of all, Petitioners have since clarified that their motions seek interim relief only
for Petitioner Jianqiang Wang.
The court recognizes the seriousness of Petitioners’ contentions. But it cannot
grant them the interim relief they seek on Petitioner Jianqiang Wang’s behalf. The
habeas jurisdiction of federal courts is limited to petitioners who are unlawfully “in
custody.” 28 U.S.C. § 2241(c)(3). While the phrase “in custody” has been given a broad
and flexible interpretation, the court is not persuaded—on the current record—that the
phrase is capacious enough to extend to the factual circumstances presented here.
Finding no basis to exercise habeas jurisdiction over the underlying habeas petition, at
least on the present record, the court cannot grant Petitioner Jianqiang Wang the
interim relief he seeks. His motions are, therefore, DENIED and the parties’ stipulated
order preserving the status quo is now LIFTED.
This ruling strongly suggests that the petition itself should be dismissed. But
because the ruling on the motions for interim relief is based solely on the existing
record, the court will defer decision on the petition and hold a status conference with
the parties to discuss whether there might be any appropriate remaining steps in this
case.
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BACKGROUND
1. “Even once inside the United States, aliens do not have an absolute right to
remain here.” Jennings v. Rodriguez, 583 U.S. 281, 288 (2018). Consistent with that
principle, Congress has authorized the Attorney General to “issue a warrant for the
arrest and detention of an alien ‘pending a decision on whether the alien is to be
removed from the United States.’” Id. (quoting 8 U.S.C. § 1226(a)). At the same time,
Congress has recognized that the detention of a noncitizen after their arrest may not be
appropriate; it therefore has also authorized the Attorney General to “‘release’ an alien
detained under § 1226(a) ‘on . . . bond’ or ‘conditional parole.’” Ibid.; see also Rodriguez
Diaz v. Garland, 53 F.4th 1189, 1196 (9th Cir. 2022) (recognizing that § 1226 “provides the
general process for arresting and detaining aliens who are present in the United States
and eligible for removal”).
Under governing regulations, “[w]hen an alien is detained under Section 1226(a),
his initial custody determination is made by an ICE officer.” Rico-Tapia v. Smith,
— F. Supp. 3d —, 2025 WL 2950089, at *5 (D. Haw. Oct. 10, 2025). Those same
regulations provide that “[a]n alien will be released if he proves to the satisfaction of the
officer that such release would not pose a danger to property or persons, and that the
alien is likely to appear for any future proceeding.” Id. (cleaned up). If release is
denied, a noncitizen may then request a hearing before an immigration judge at which
they may be represented by counsel and present evidence; “[a]t this hearing, the
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immigration judge will order the alien’s release if the alien proves, by a preponderance
of the evidence, that he is not a threat to national security, a danger to the community at
large, likely to abscond, or otherwise a poor bail risk.” Id. (cleaned up). Given these
“several layers of review of the agency’s initial custody determination, an initial bond
hearing before a neutral decisionmaker, the opportunity to be represented by counsel
and to present evidence, the right to appeal, and the right to seek a new hearing where
circumstances materially change,” the Ninth Circuit has observed that § 1226(a) “stands
out from other immigration detention provisions.” Rodriguez Diaz, 53 F.4th at 1202
(cleaned up).
2. Petitioners in this habeas proceeding were admitted into the United States in
April 2016 for conditional permanent residence as alien entrepreneurs under § 216 of
the Immigration and Nationality Act, 8 U.S.C. § 1186a. See Dkt. No. 20-1, at PageID.95.
They sought to remove the conditions on their permanent resident status, but that
request was denied in January 2024. Id. This denial may have come about because of
what Petitioners describe as the “failure of the Regional Center project” in which they
had sought to invest. Dkt. No. 6, at PageID.18. Whatever the case, in early 2025, the
government began immigration removal proceedings to altogether terminate their
conditional lawful status.
After Petitioner Jianqiang Wang failed to appear before U.S. Immigration and
Customs Enforcement (ICE) in September 2025, an administrative arrest warrant was
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issued for him on December 1, 2025. Dkt. No. 20-9. About three weeks later, ICE agents
appeared at a property owned by Petitioners—which they rent out—and after a
significant amount of time waiting outside of the property, the agents questioned the
tenant about Petitioner Jianqiang Wang’s whereabouts. Petitioners represent that they
have been ensconced in their residence (which is in a different part of Honolulu,
Hawai‘i) ever since the ICE agents’ appearance at their rented property, out of fear that
they might be arrested. Dkt. No. 11-2, at PageID.42-43. There is no evidence in the
record that any Petitioner other than Jianqiang Wang is subject to an administrative
warrant or otherwise facing the prospect of an immigration-related arrest.
The pending habeas petition was filed in January of this year. Given that
Petitioners are not in physical custody, they unsurprisingly do not name any custodian
as a respondent. But the petition does not name any public official at all. It instead
names the “United States Department of Homeland Security, U.S. Immigration and
Customs Enforcement, Field Office Director, ICE Enforcement and Removal Operations,
Honolulu, HI, in an official capacity.” Dkt. No. 6, at PageID.16; see also Dkt. No. 14
(notice of appearance by AUSA on behalf of “Defendants United States Department of
Homeland Security, United States Immigration and Customs Enforcement, Field Office
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Director, ICE Enforcement and Removal Operations, Honolulu, HI, in their official
capacities”).1
Invoking this court’s habeas jurisdiction, the petition asserts that a “credible
threat of arrest or detention by immigration authorities satisfies the custody
requirement.” Dkt. No. 6, at PageID.20. And the petition contends that if Petitioners
are arrested and then detained without bond, that detention would be unlawful for two
reasons. First, Petitioners “have not absconded, and neither do they present a flight risk
or danger to the community.” Id. at PageID.19. Second, “[d]etention would
substantially impair their ability to prepare for their merits hearing [in their ongoing
removal proceedings], access documents and witnesses, and consult meaningfully with
counsel.” Id. at PageID.21-22.
1 	Respondents correctly note that a habeas petition cannot name government
agencies as respondents, but must instead name the custodian (in the case of a “core”
habeas jurisdiction) or (at least in some non-core cases) the Attorney General. See Dkt.
No. 20, at PageID.71 n.1. Petitioners have accordingly moved to amend the caption to
include the Attorney General, whom they represent has been served with all the
relevant filings in this case. See Dkt. No. 23.
Although the failure to name the proper custodian or the Attorney General
would be a proper basis on which to deny the petition and motions for interim relief,
any such denial likely would be without prejudice, especially in light of Petitioners’
pending motion to correct the petition. The court has instead concluded that, on the
present record, it is not persuaded that it possesses jurisdiction. In light of that
jurisdictional conclusion, the court need not resolve Petitioners’ motion to correct the
petition before denying the motions for interim relief, and that motion will be held in
abeyance until the next status conference.
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Alongside the habeas petition, Petitioners have moved for a temporary
restraining order and preliminary injunction. They initially moved for an ex parte
temporary restraining order, Dkt. No. 1, but the court denied that motion on the ground
that the motion did not meet the demanding standards governing ex parte relief, Dkt.
No. 12. The court separately instructed Petitioners to supplement their motions for
interim relief to address the question of why habeas jurisdiction would exist here,
despite the fact that Petitioners are not physically in custody, Dkt. No. 5, and Petitioners
filed such supplementation, Dkt. Nos. 11 and 11-2. The court therefore ordered
Petitioners to serve their petition and motions on Respondents. Dkt. No. 12.
The court thereafter held a status conference at which it set a briefing schedule
for Respondents to respond to the petition and motions. Dkt. No. 17. Given that
Respondents’ requested schedule extended past the deadlines set in 28 U.S.C. § 2243,
Respondents agreed to a temporary status quo order precluding the immigration-
related arrest of any Petitioner while the motions for interim relief remained pending.
Dkt. Nos. 17-19. Respondents have also represented that if any Petitioner were arrested
based on the ongoing revocation proceedings, they would be entitled to a bond hearing
at which they could argue for their release on conditions.
No party requested an evidentiary hearing for the pending motion for
preliminary injunction; nor did any party identify any disputes of material fact. But the
court heard arguments from counsel at a hearing on February 12, 2026. Dkt. No. 22.
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DISCUSSION
When a noncitizen is detained for immigration-related reasons, they generally
may invoke a federal district court’s habeas jurisdiction to test the legality of that
detention. See Zadvydas v. Davis, 533 U.S. 678, 687-88 (2001). But federal habeas
jurisdiction has an important limit: a petitioner must be “in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3) (emphasis
added). And even when it would otherwise apply, Congress has further limited habeas
jurisdiction in a number of ways; to take just one example, 8 U.S.C. § 1252(b)(9)
precludes judicial review of any claim “arising from any action taken or proceeding
brought to remove an alien from the United States.”
In support of their habeas petition and motions for interim relief, Petitioners
emphasize that they “do not seek review of removal proceedings or any final order of
removal.” Dkt. No. 21, at PageID.139. That is true, and it is the reason why their
petition is not barred by § 1252(b)(9)’s limit on habeas jurisdiction. But it is insufficient
to show that Congress has not stripped the court of habeas jurisdiction that it would
otherwise have. Petitioners must also show that habeas jurisdiction exists in the first
place.
To make that latter showing, Petitioners must establish that they are “in custody”
within the meaning of § 2241(c)(3). The Supreme Court has broadly and flexibly
defined the phrase “in custody” as extending to “both physical detention and ‘other
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restraints on a man’s liberty, restraints not shared by the public generally.’” Veltmann-
Barragan v. Holder, 717 F.3d 1086, 1088 (9th Cir. 2013) (quoting Jones v. Cunningham, 371
U.S. 236, 240 (1963)). But the phrase is not unbounded. For example, the Ninth Circuit
has acknowledged that “individuals are ‘in custody’ for purposes of § 2241 if they are
‘subject to a final order of deportation.’” Id. (quoting Nakaranurack v. United States, 68
F.3d 290, 293 (9th Cir. 1995)). But it also has held that a person who is at one time
subject to a removal order, and who is in fact removed from the United States, does not
qualify as being “in custody” once again if she returns to the United States. That is
because, the Ninth Circuit reasoned, “[r]einstatement of a prior order of removal is not
automatic;” the government “must take various affirmative steps before it can reinstate
a removal order.” Id. (cleaned up). Analogizing a final order of removal to a
“conviction” in the criminal context, the Ninth Circuit pointed to the Supreme Court’s
admonition that the phrase “in custody,” while “very liberally construed,” has never
been extended “to the situation where a habeas petitioner suffers no present restraint
from a conviction.” Id. (quoting Maleng v. Cook, 490 U.S. 488, 492 (1989)).
In this case, Petitioners are not currently suffering any present restraint from a
final order of removal. While removal proceedings are ongoing, they have not yet
concluded—let alone concluded unfavorably. Petitioners therefore cannot, at this stage,
avail themselves of precedent supporting the existence of habeas jurisdiction in the face
of a final order of removal. Indeed, they are even less favorably situated than the
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petitioner in Veltmann-Barragan; a final order of removal had previously been entered in
that case and could fairly easily have been reinstated, whereas no final order of removal
has ever been entered against Petitioners here.
Petitioners also argue that this court may exercise habeas jurisdiction based on
their fears of an imminent immigration-related arrest. On the present record, that
argument could not benefit any Petitioner other than Jianqiang Wang, as Petitioner’s
counsel acknowledged at the hearing on these motions. That is because only Jianqiang
Wang is subject to an administrative arrest warrant; only he was ordered to appear
before ICE in September 2025 and then failed to do so; and ICE agents only asked about
his whereabouts when they approached the tenant at Petitioners’ rental property. So
even if an imminent arrest was a valid basis for the exercise of habeas jurisdiction, that
jurisdiction would at most be validly exercised on behalf of Jianqiang Wang.
At least on the present record, the court is not persuaded that the administrative
warrant against Jiangqiang Wang suffices to support habeas jurisdiction. This
conclusion is based not only on the record as it currently exists, but on a careful
assessment of the substance of Petitioners’ argument. Petitioners do not distinctly
argue that the Attorney General lacks the statutory authority to arrest Jianqiang Wang;
nor does it appear they could plausibly make any such argument, given the Attorney
General’s clear authority under § 1226(a) to “issue a warrant for the arrest and detention
of an alien ‘pending a decision on whether the alien is to be removed from the United
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States.” Jennings, 583 U.S. at 288 (quoting 8 U.S.C. § 1226(a)). Petitioners’ argument is,
instead, that Jianqiang Wang’s detention following an arrest would be unlawful, both
because he asserts he is neither a flight risk nor a danger to the community (and so there
is no basis for detention), and because his detention would impair his ability to
represent himself in the ongoing removal proceedings (and so detention would
unlawfully harm his due process rights). They further contend that because a post-
arrest detention would be unlawful, an arrest is not appropriate because of their
prediction that it would lead to a detention.
But while it might be possible to conclude that an arrest of Jianqiang Wang is
reasonably likely here, the court on this record cannot similarly predict that he is likely
to be detained following any such arrest. For the harm of detention to come about—the
harm that is truly the driving force of the petition here—Jianqiang Wang would not
only need to be arrested on the administrative warrant; he would also then need to
either be deprived of a bond hearing (despite the government’s recognition that he
would be entitled to one under § 1226, see Dkt. No. 20, at PageID.74, 75, 79-80, 83-84), or
he would need to be denied release on bond after that hearing (despite his insistence
that there is no basis to conclude that he is a flight risk or a danger to the community).
And if he were denied release on bond, he would need to be correct in his prediction
that there would be no evidentiary basis to conclude that he is a flight risk or otherwise
properly detainable (despite, for instance, his failure to appear before ICE in September
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2025). There are simply too many contingencies between the constitutional deprivation
Jianqiang Wang fears and the present state of the record. Under these circumstances,
the court cannot conclude that he is “in custody” within the meaning of § 2241(c)(3).
That is not to say that a petitioner could never invoke this court’s habeas
jurisdiction based on the threat of an arrest. If, for example, the government were to
take the position that a petitioner is subject to mandatory detention, there would be a
stronger argument that habeas jurisdiction is available to scrutinize a planned arrest
that would inevitably lead to that detention. Or there could be situations in which the
government had already found or committed itself to the position that a petitioner does
not present a flight risk or danger to the community, in which case a threatened
immigration arrest could more readily be viewed as threatening even a brief detention
(of whatever time is needed to conduct a bond hearing before an immigration judge)
that is unwarranted and therefore unlawful. Accord Valencia Zapata v. Kaiser, 801 F.
Supp. 3d 919 (N.D. Cal. 2025) (involving a petitioner who had previously been found
not to present a flight risk or danger to the community and against whom the
government sought mandatory detention and expedited removal), appeal docketed, No.
25-7472 (9th Cir. Nov. 26, 2026). Another conceivable situation could be one in which
the arrest itself is unlawful—for instance, if the government were ever to issue an
immigration arrest warrant for a U.S. citizen or for an unconstitutional purpose.
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None of those kinds of circumstances are presented here. Although Petitioners
suggest that Respondents are motivated by a desire to impede Petitioners’ ability to
defend themselves in the ongoing removal proceedings, there is no evidence to
substantiate that assertion. Rather than compare favorably with any of the above
hypothetical cases in which habeas jurisdiction might conceivably lie pre-arrest, the
present facts are more akin to a situation in which law enforcement agents have
determined, based on their own assessment of probable cause, that a person should be
arrested on federal criminal charges. Federal law allows law enforcement agents in
those circumstances to make the arrest and then file an affidavit in support of a criminal
complaint promptly after the fact. See Fed. R. Crim. P. 5(b) (“If a defendant is arrested
without a warrant, a complaint meeting Rule 4(a)’s requirement of probable cause must
be promptly filed in the district where the offense was allegedly committed.”). The
most expansive interpretation of the phrase “in custody” would not, at least under
ordinary circumstances, reach so far as to allow a federal court to enjoin agents from
conducting such an arrest (let alone allow a petitioner to use a habeas petition as a tool
to probe whether such an arrest is forthcoming). And while the present circumstances
are different, they are similar enough to support the conclusion that this court lacks
habeas jurisdiction to enjoin immigration-related arrests in the manner Petitioners here
request.
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Petitioners do offer a backup argument: they contend that “[i]ndependent of
habeas jurisdiction, this Court possesses authority under the All Writs Act, 28 U.S.C.
§ 1651(a), to issue orders necessary to preserve its jurisdiction and the integrity of
related adjudicative proceedings.” Dkt. No. 16, at PageID.51. That is true, but it does
not support finding jurisdiction here. As the Supreme Court has explained, “[w]hile the
All Writs Act authorizes employment of extraordinary writs, it confines the authority to
the issuance of process ‘in aid of’ the issuing court’s jurisdiction.” Clinton v. Goldsmith,
526 U.S. 529, 534 (1999). In that way, the All Writs Act empowers this court to issue
writs in the service of otherwise-existing jurisdiction, but “does not enlarge that
jurisdiction.” Id. at 535; see also United States v. Denedo, 556 U.S. 904, 914 (2009) (“The
authority to issue a writ under the All Writs Act is not a font of jurisdiction.”). Thus
Petitioners’ All Writs Act argument is not truly an alternative basis for jurisdiction; it
instead is wholly dependent upon their principal argument that habeas jurisdiction
exists. Because the court has not accepted Petitioners’ arguments for habeas
jurisdiction, it must also reject their request that the court rely on the All Writs Act
instead.2
2 	Petitioners’ reliance on Nken v. Holder, 556 U.S. 418, 428-29 (2009), and Leiva-Perez
v. Holder, 640 F.3d 962, 968-70 (9th Cir. 2011), is misplaced for similar reasons. The
Supreme Court in Nken did not, as Petitioners suggest, hold that habeas jurisdiction
exists whenever a court concludes that it must “enjoin executive action that threatens to
moot pending adjudications or to deprive courts of the ability to grant effective relief.”
Dkt. No. 21, at PageID.140. There unquestionably was jurisdiction in that case—the
petitioner in that case did not invoke habeas jurisdiction, but instead the jurisdiction of
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For these reasons, the court concludes that Petitioners cannot show a likelihood
of success on the merits of their petition, or even a serious question going to the merits.
And because they have not done so, the court cannot grant them their requested interim
relief. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011).
The same reasons would require the court to dismiss the petition itself. But
because the court denies the motions for interim relief based solely on the record
currently before it, the court will defer decision on the petition and hold a status
conference with the parties to discuss whether there might be any appropriate steps
remaining in this case.
CONCLUSION
For the foregoing reasons, the emergency motion for a temporary restraining
order and motion for a preliminary injunction are DENIED. Furthermore, because the
court has now resolved these motions for interim relief, the parties stipulated order
preserving the status quo, Dkt. No. 19, is hereby LIFTED.
//
//
the federal courts of appeals to review the decisions of the Board of Immigration
Appeals—and the question was whether Congress had stripped appellate courts of
their ordinary power to enter stays of removal orders pending appeal in these
circumstances. The Ninth Circuit in Leiva-Perez, in a similar procedural posture, simply
abided by Nken and granted a stay of a removal order pending an appeal of a Board of
Immigration Appeals decision.
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IT IS SO ORDERED.
DATED: February 17, 2026, at Honolulu, Hawai‘i.
Civil No. 26-00009 MWJS-KJM; Jianqiang Wang, et al. v. United States Department of
Homeland Security, et al.; ORDER DENYING EMERGENCY MOTION FOR
TEMPORARY RESTRAINING ORDER AND MOTION FOR PRELIMINARY
INJUNCTION
/s/ Micah W.J. Smith
Micah W.J. Smith
United States District Judge
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