*1 (9th Cir.2009); see also F.3d 858-62 proceed in an en banc instance first Gatimi, merits, “no (expressing on the F.3d at 616 Reserving judgment ing. rehearing en for four deny rejection banc of quarrel” proposed vote to with the First, panel while the Ramos-Lopez). principal reasons. social group in our precedential effect of overstated reasons, For I concur in these the denial the decision does not precedents, circuit rehearing en banc. opinions must be expressly panel hold that points on that are not binding considered The threat to uniformi
actually litigated. decisions is thus ty of this court’s rehearing warrant en sufficiently great Second, ap banc alone. basis pears regard that a conflict circuits validity of Matter will S-E-G- ing GARCIA, Y Hedelito TRINIDAD how this court exist no matter decides Petitioner-Appellee, question. Compare Valdiviezo-Galdamez v. (3d Holder, v. 663 F.3d 603-09 Cir. Holder, v. and Gatimi 2011), F.3d THOMAS,* Warden, Metropoli Linda (7th Cir.2009), Rivera-Bar 615-16 Ange tan Detention Center-Los Holder, v. rientos 666 F.3d 650-52 les, Respondent-Appellant. (10th Cir.2012). Third, courts No. 09-56999. Matter S-E-G- rejected have have done reasoning so on deficiencies based Appeals, United States Court Board, therefore, the agency. might Ninth Circuit. respond to these decisions with a new Argued and Submitted En change opinion that would the framework Banc June 2011. Valdiviezo-Gal litigation. for future Cf. damez, (Hardiman, J., F.3d at 615-18 Filed June Fourth, judgment). if the concurring matter, not revisit then Board does free to
this court remains consider Matter S-E-G- in a future validity approach case the Board’s seems when likely to affect the Peti more outcome. social proposed group (young tioner’s join particular who refused to males in El Salvador gang because of moral religious gangs) opposition and its vari rejected uniformly
ants been those have that have reached the mer courts ultimate 167; Zelaya, See Ortiz- its. 668 F.3d Puentes, 483; Mendez-Bar F.3d at Holder, (1st
rera 26-27 Holder, Ramos-Lopez v. Cir.2010); * 43(c)(2), respondent R.App. Fed. P. Benov in this action. Pursuant we sua sponte Linda substitute Thomas for Michael *3 Office, CA,
fender’s Los Angeles, for the petitioner-appellee.
Lee Gelernt Newell, and Jennifer Chang American Civil Liberties Union Founda- tion, York, NY, Francisco, New and San CA, for amicus American Civil Liberties Union. *4 KOZINSKI,
Before: ALEX Chief PREGERSON, Judge, HARRY SIDNEY THOMAS, GRABER, R. SUSAN P. KIM WARDLAW, McLANE WILLIAM A. FLETCHER, BERZON, MARSHA S. TALLMAN, RICHARD C. RICHARD R. CLIFTON, SMITH, JR., MILAN D. and IKUTA, SANDRA S. Judges. Circuit PER Opinion; CURIAM Concurrence THOMAS; by Judge by Dissent Judge TALLMAN; Partial Concurrence and BERZON; by Judge Partial Dissent Partial Concurrence and Partial Dissent by PREGERSON; Judge Partial Dissent Chief KOZINSKI.
OPINION
PER CURIAM: Douglas Neal (argued), Letter Lisa Ol- y Trinidad Garcia alleges that his extra- McIntosh, son and Scott R. United States Philippines dition to the would violate his Justice, Division, Department of Ap- Civil rights under the Against Convention Tor- Staff, D.C.; pellate Washington, Daniel (CAT)1 ture and the Fifth Amendment’s Scott Goodman Raphael, and Michael J. Due Process The treaty Clause. CAT is a Office of the Attorney, United States Los signed States, and ratified the United CA, Angeles, for the respondent-appellant. but is non-self-executing. Cong. Rec. (1990). 36,198
Craig Anthony Harbaugh (argued) however, Congress, has im- Sean Kevin Kennedy, plemented Federal Public De- treaty by statute part 39/46, Against 1. United Nations Assembly, Convention Torture G.A. Res. 39 U.N. GAOR Cruel, and Other Forms of Supp. Inhuman or De- No. U.N. Doc. A/RES/39/708 Punishment, grading (1984), adopted by Treatment or entered into force as to the United 20, 1994, agreement unanimous signed the U.N. General Apr. States Nov. as in it can be construed Restruc- ment” before Reform and Affairs Foreign (FARRA). 8 De repeal jurisdiction. U.S.C. tending of 1998
turing Act
it “the
Kim,
declares
That statute
1231 note.
more v.
538 U.S.
...
not to
States
(2003).
of the United
policy
if a
Even
155 L.Ed.2d
country
any person to
...
extradite
exists, courts
sufficiently clear statement
grounds for
there are substantial
which
whether “an alternative
must determine
danger
would be in
believing
person
‘fairly possi
of the statute
interpretation
”
The stat-
to torture.” Id.
being subjected
the law actu
concluding that
ble’ before
agencies
appropriate
that “the
requires
ute
Cyr,
St.
habeas relief.
ally repealed
implement
regulations
prescribe
...
2271(quoting
Ar-
States under
of the United
obligations
Benson,
22, 62, 52
Crowell
Nations Convention
ticle 3
United
(1932)).
285,
5. The before powers non-inquiry tion rule of no has com evidence that into inquiry block the substance of the plied procedure y with in Trinidad Secretary’s declaration. Lopez-Smith The State v. Department Garcia’s case. (9th Hood, 121 F.3d 1326-27 generic outlining submitted a declaration Cir. 1997). operates previ the basics of how extradition To the extent that have we acknowledging ously Department implied greater judicial review the Department’s obligations under the afore Secretary’s substance extradition treaty, regulations, mentioned statute and decision other compliance than her Department gives but no indication law, obligations e.g., under domestic Cor actually complied that it with those obli nejo-Barreto Seifert, gations in case. (9th Cir.2000), we that prec overrule *6 edent. Garcia’s interest un- y liberty
Trinidad
regula-
der the federal statute and federal
vacated,
7. The district court’s order is
compliance by
tions entitles him to strict
and the case
remanded to the district
is
procedure
the
of State
Secretary
with the
proceedings
court for
consistent with this
regulations.
outlined in
He
the
claims opinion.
procedure
complied
that the
has not been
VACATED AND REMANDED.
with,
provides
and the Constitution itself
jurisdiction
to
y
for Trinidad Garcia make
THOMAS,
Judge, concurring,
Circuit
claim in
process
due
federal court.
WARDLAW,
with whom
Judge,
Circuit
Agents
Bivens v. Six Unknown Named
BERZON,
joins
joins
Judge,
Circuit
Narcotics,
388,
Fed. Bureau
403 U.S.
91
as to Part I:
(1971).
1999,
Secretary of may augment State the rec- y pursuant Trinidad Garcia’s claims to 28 providing ord a declaration that she has § complied obligations. with her Counsel for 2241 and the Constitution of the U.S.C. government represented Sec- United States. 958 provisions of jurisdiction-stripping
A
Act
ju
REAL-ID
removed federal habeas
jurisdiction
court
over
had
The district
removal,
over final
risdiction
orders
28
pursuant
U.S.C.
action
petitions
for review.
favor
direct
Na
ha
2241(c)(3),
§
the writ of
which makes
1069,
Gonzales,
v.
F.3d
darajah
443
1075
“in
persons
available to all
corpus
beas
Cir.2006).
(9th
REAL-ID
But the
Act’s
or
in violation of the Constitution
custody
do
provisions
not re
jurisdiction-stripping
States.”
or treaties
United
laws
peti
move federal habeas
over
§ 2241
relief under
is
Federal habeas
directly challenge
that do not
tions
final
remedy
non-citizens chal
as a
available
1075-76;
removal.
order of
Id. at
see also
v.
detention.
INS
St.
lenging executive
708,
289, 301-03,
v.
F.3d
2271,
Mukasey,
Flores-Torres
548
121 S.Ct.
Cyr, 533 U.S.
(2001).
711(9th Cir.2008);
2241 also
347
Section
v. De
150 L.Ed.2d
Casas-Castrillon
persons,
relief to
provides an avenue of
Security,
Homeland
535 F.3d
partment of
Garcia,
chal
y
(9th Cir.2008).
who are
942,
such as Trinidad
946
proceed
legality
of extradition
lenging
purpose
ju-
of the REAL-ID Act’s
Reno,
1100,
Barapind v.
225 F.3d
ings.
was to
risdiction-stripping provisions
“con-
Cir.2000).
(9th
re
Although habeas
1110
judicial
immigration pro-
solidate
review of
historically narrow
may have been
view
ceedings into one action in the court of
context,
e.g.
the extradition
see
Fernandez
appeals.” St.
Cyr, 533 U.S.
Phillips,
v.
(internal quotation
S.Ct. 2271
marks omit-
(1925),
Supreme
Court
69 L.Ed.
ted)
section).
(discussing a related
In-
“[tjhere
recognized
long
no
deed, “the entire section is
focused
discretion
indi
[an
executive
to surrender
Gonzales,
Singh
orders of
v.
removal.”
foreign government,
unless
vidual]
(2007).
Uncodified sec-
granted by
law.” Valen
that discretion
tions of the
ID Act state
REAL
that the
Neidecker,
States ex rel.
tine United
legislation
apply
was
intended
(1936).
959 Therefore, the REAL-ID Act to proceeding. apply purporting statutes to divest jurisdiction, § courts of 2241 federal courts habeas does divest federal remiss if I would be did not underscore jurisdiction his habeas over claims. them. The elimination judi of all forms of 2 cial review executive detention would Magana-Pi violate the Constitution. See For- Similarly, nothing there is INS, (9th 603, zano 200 v. F.3d 608-09 Act Restructuring Affairs Reform and eign Cir.1999); I, 9,§ U.S. Const. art. cl. 2. 105-277, (FARRA), 1998 Pub. L. No. Suspension Given the constraints of the (codified G, XXII, Title 112 Stat. Div. 2681 Clause, strong presumption there is a note), § 8 fed- repeals at U.S.C. 1281 against to construing repeal statutes habe jurisdiction court eral habeas under as jurisdiction. Cyr, St. 533 U.S. at § government as the also claims. 2271; Gonzales, Ramadan v. 479 provides, part, FARRA in relevant that: (9th Cir.2007). F.3d 652 any provision other Notwithstanding Indeed, the Supreme required Court law, provided regu- as except (1) “a a statute contain particularly lations promul- State [the clear statement” before it can be construed Act], gates pursuant court no intending jurisdiction, as to repeal habeas reg- shall have review the Kim, Demore v. adopted implement ulations sec- this (2003) (2) L.Ed.2d 724 tion, nothing this section shall be exists, even if such statement courts are any providing juris- construed as court required to determine “an whether alter- diction to or consider review claims interpretation native of the statute is ‘fair- section, raised under or [CAT] this ly before possible’” concluding that other determination made actually relief, repealed law habeas St. respect application policy to the of the Cyr, U.S. at S.Ct. 2271 (a), part set forth in except subsection Benson, (quoting v. Crowell of the final review of a order of removal (1932)). L.Ed. § pursuant to 1252]. U.S.C. [8 Even if we were to the govern- credit (codified 2242(d) § FARRA at 8 U.S.C. language ment’s that the argument note). § 1231 REAL-ID Act and FARRA could be con- There is at all in nothing this section repeal an attempt strued as purports repeal ju federal habeas issue, jurisdiction for the claims at neither Rather, risdiction under sec satisfy demanding statute could stan- simply conferring juris tion states it is not Cyr. dards of St. FARRA lacks sufficient already We have diction. held that clarity survive “particularly clear provision does not divest federal courts requirement. statement” The construction jurisdiction. Singh Ashcroft, ID of the REAL Act earlier discussed (9th Cir.2003). 440-42 sis F.3d Our more sufficient than to demonstrate that *8 Ashcroft, agree. ter circuits Saint Fort v. statutory interpretation an alternate is (1st 191, Cir.2003); Wang 329 F.3d 200-02 Therefore, “fairly possible.” even if we 130, (2d Ashcroft, v. 320 140-42 F.3d Cir. were the government’s statutory to credit 2003). settled, This issue is and there is (and not), construction I do it would not reason to no revisit it. scrutiny Cyr. survive under St.
3 B Although, not the possessing jurisdiction we need resort In addition to un- 2241, statutory § special principles construction der the district court also had 960 Act, the Procedure the Administrative Al the Constitution. under cor- the role of habeas acknowledged court not ex does itself the Constitution
though before, “Now, he relief, as that: noting pus it jurisdiction, habeas federal grant pressly only by order deportation may attack Suspension through the the writ preserves 235, 603. Id. at 73 S.Ct. corpus.” Bush, habeas 553 v. Boumediene Clause.3 intend- Thus, legislation which under 41 even 2229, 171L.Ed.2d 743-46, 128 723, S.Ct. except as judicial review 75, all Bollman, ed to restrict 4 Cranch (2008); Parte Ex remedy of constitutionally required, (1807). Suspen The 94-95, 2 554 L.Ed. corpus remained. access designed to protect was sion Clause during those corpus writ of habeas to the govern- Thus, adopted if we even en legislative cycles of executive Congress foreclosed position ment’s Boumediene, 553 it. upon croachment habeas reme- statutory y Garcia’s Trinidad 745, 128 2229. S.Ct. atU.S. corpus dies, to federal his resort deten- legality of his challenge relief largely was Great Writ The “traditional under Consti- preserved tion would be detention.” executive remedy against 386, 372, tution. 430 U.S. Pressley, v. Swain (1977) (Burger, 1224, L.Ed.2d II Case, 3 C.J., concurring); see also Darnel’s (K.B. 1627). have There the district court Tr. 1 St. concluded Having
How.
history
in our
be-
question
numerous occasions
then
jurisdiction,
been
had
statutory ac
limited
available
Congress has
relief
scope
when
of habeas
comes the
immigration
federal
judicial
relief
Garcia. Once a
y
Trinidad
cess
See,
Act of
its
deter-
e.g.,
Immigration
completed
has
extradition
context.
court
3184,
874;
Act of
the Immigration
39 Stat.
under 18 U.S.C.
minations
898;
may
Act of
the Immigration
34 Stat.
in her discretion
of State
1084;
Exclusion
alien
26 Stat.
Chinese
should
whether
determine
However,
(1882).
the Su
Act,
custody
request-
of the
22 Stat. 58
to the
surrendered
rebuffed ar
1105.
repeatedly
225 F.3d at
preme
Barapind,
Court
ing state.
ha
statutes foreclosed
it is the Secre-
long
that these
held that
guments
We have
courts’,
Cyr,
role,
533 U.S.
relief. St.
to determine
corpus
tary’s
not
beas
2271;
v. Bar
304-08,
Heikkila
should be denied
extradition
“whether
234-35,
ber,
of the
or on account
grounds
345 U.S.
humanitarian
(1953);
Jung
v.
States
to re-
fugitive
United
L.Ed.
that the
treatment
621, 626-32, 8 S.Ct.
requesting
Lung,
Ah
his return to
upon
ceive
(1888).
Benov,
421 F.3d
Prasoprat
Although we cannot review the merits of
review,
her
in this
Secretary’s
complied
obligations
internal extradition
case.
*10
relatively
a
en banc to address
briefing
went
suggested
We
government
on the sur-
whether
Secretary’s signature
legal question:
the
straightforward
be considered
itself should
render warrant
may challenge
like Trinidad
an extraditee
that Trini-
of her determination
proof
to extra
Secretary
the
of State’s decision
be tortured.
is not
y
dad Garcia
he ex
him based on the conditions
dite
is not
surrender warrant
But the
requesting
upon return to the
pects to face
rely
purport-
a
we cannot
record. And
Court, I be
country.
Supreme
Like the
y Garcia’s coun-
by Trinidad
ed admission
straightfor
equally
answer to be
lieve the
issued. That
the warrant was
sel that
majority
A
of
I am not alone.
ward: no.
on an oral
solely
was
based
statement
Non-Inquiry
the Rule of
agree
us
offi-
Department
with a State
conversation
from
Trinidad
ob
applies
precludes
Thus,
in the unusual
placed
we are
cial.
taining judicial review of
substance
agency
a final
deci-
reviewing
position
And,
the ex
Secretary’s decision.
record.
part
not even
sion that is'
previously provided
have
for
tent we
alleged
has
his
y
Trinidad
Garcia
relief, e.g., Cornejo-Bar
greater review or
Secretary
that the
has not
petition
(9th
Seifert,
reto
implementing
with FARRA’s
complied
Cir.2000),
precedent.”
“we overrule that
right
his
to due
regulations and violated
Unfortunately, that
at 957.
Per Curiam
any evidence
In the absence of
process.
ends.
agreement
where our
complied with the
Secretary
that the
has
basis in the
regulation, we lack sufficient
Seizing on a concession the United
order
review the district court’s
record to
cases and
only
offered
for future
States
y Garcia’s release.
granting Trinidad
legally necessary,
if we
some
found
Therefore,
remedy is to
appropriate
to doubt
my colleagues
now find reason
court order and remand
vacate
district
undoubtable, worrying whether
the district court with di-
the case to
a
determina-
Secretary ever made
torture
government may
be af-
rections that
They
brush
tion at all. See id.
963-64.
supplement
opportunity
forded the
himself had no
the fact that Trinidad
aside
declaration
appropriate
with an
record
reality
of the Secre-
reason to doubt
Secretary
complied
with her
that the
prompt-
tary’s decision—the decision
non-discretionary statutory
regulatory
claim, the
bring
Trinidad to
his habeas
ed
duties.
it,
government
to rule on
district court
TALLMAN,
whom
Judge,
Circuit
with
separate panels of this
appeal,
and two
CLIFTON,
SMITH,
M.
Judges
Circuit
matter —recharacter-
court to consider the
join, dissenting:
and IKUTA
the outcome
izing
disagreement
his
process
Garcia,
dispute
as a
over the
her decision
y
Philippine
Hedelito Trinidad
Worse,
national,
Philippines
they ignore
Id.
employed.
stands accused
she
Philippine
After
kidnaping
legal princi-
ransom.
litany
firmly
established
his extradition so
requested
authorities
being
which
our
the least of
ples—not
trial
there for his
might
he
stand
officers
that constitutional
presumption
approved
request
crime—a
reviewed
legal
them
duties —to
properly discharge
by of State and Justice—
Departments
and further
achieve an unfathomable end
Angeles.
he
in Los
Five
was arrested
already lum-
that has
delay an extradition
later,
years
were denied
after his claims
along for close to decade.
bered
courts,
Secretary
two
then
different
the honor of
question
lightly
I cannot
so
ordered Trinidad
State Condoleeza Rice
readily from
depart
so
extradited.
*11
governing
case law. The
torture” at the
foreign govern-
hands of a
decision,
made her
and neither the
ment. Gov’t Brief at 65.
argues
Con
He
(“Convention”),
Supreme
yet
vention
Court has
Against Torture
address
“whether handing over an individual to a
Foreign
Affairs Reform and Restruc
country where he would face the
(“FARR
prospect
Act”),1
turing Act of 1998
nor the
of torture violates substantive
pro-
due
controlling regulations,
§§
22 C.F.R.
95.1-
cess,” but has intimated that it might.
Id.
95.4, give
inquire
us cause to
further. The
Alternatively,
he asserts that even
Rule of Non-Inquiry squarely applies, and
in the absence of a constitutionally protect-
inquiry
our
is at an end. As the Supreme
ed interest
to be free
specter
from the
Geren,
Court directed in
v.
Munaf
torture,
foreign
possesses
he
statutory
171 L.Ed.2d
right under the Convention and the FARR
(2008),
nothing
there is
left for us to do
precludes
Act that
the United States from
petition
but order Trinidad’s habeas
extraditing him to a country where torture
promptly
may
dismissed so that he
finally
is
“more
than not” to occur. Cf.
extradited,
be
I
dissent to the extent
§ 95.2.
argues
He
provisions
these
any differently.
we conclude
confer a non-discretionary, mandatory ob-
ligation upon the Executive to decline to
extradite him without first demonstrating
Though I write predominately
explain
to a court’s satisfaction that it is not “more
why
full detail
utterly
remand is so
likely than not” that he will face torture
unnecessary, I also believe we do the en there.
process
litigants
banc
and the
a disservice
Trinidad’s first claim
readily
dis
by
fully explaining why
not more
the Rule
patched. Contrary
suggestion,
to his
he is
Non-Inquiry precludes
us from accord-
not the first to
claim;
raise such a
nor
ing Trinidad relief
why
neither the
would he be the first to have that claim
1252(a)(4)
§
FARR Act nor 8 U.S.C.
de-
Henkel,
E.g.,
denied.
Neely v.
prives
jurisdiction.
us of
I therefore ad- 109, 123, 125,
A may traditees oppose their extraditions Trinidad raises two distinct rationales on the ground that the law of the receiving why may First, for he not be extradited. country provide does not them the full he contends that he “invoke the writ panoply rights guaranteed them the to challenge the Secretary’s decision to Constitution of the United Munaf, States. surrender him in violation (discuss of his substan- 696-97, 128 553 U.S. at S.Ct. 2207 tive process right due to be free from ing Neely). 105-277, G, XXII,
1. Pub. L. No.
Div.
Title
and the merits of Trinidad’s habe-
§
claim,
112 Stat.
2681-822-23
greater
as
the Act
set
forth in
detail
(codified
1231).
as a note to 8 U.S.C.
To
pages
6430-31.
infra
the extent it
questions
is relevant to the
of our
punishment
and to such
con-
trial
Neely,
example,
for
the Court
may prescribe
country
laws
guar-
though the Constitution
cluded that
for
a different mode
people,
its own
unless
range of
a broad
antees an individual
treaty stipulations
provided
immunities”
privileges,
“rights,
*12
country
that
United
between
in-
government,
the United States
against
States.
torture,
right
to be free from
cluding the
(em
123,
48,
power.
Id. at
966
only
treaty
that there be “a
or convention
preca-
...
from the
the writ
follows
issue
statute,
government
and for extradition between
tory language of the
Neely,
foreign gov
180
origins.”);
[the]
the United States and
from its common-law
authorizing
It is
when
and that the official
at
968
lofty
overcomes
either
mine whether
compliance.7
Executive’s
evaluating the
jurisdic-
precluding
standards
did
habeas review
(concluding that
Id.
in INS v. St.
by the Court
tion established
of the Executive’s
review
permit
extend
2271,
150
S.Ct.
Cyr, 533 U.S.
compliance
it was
that
determination
(2001).
L.Ed.2d 347
n with
“the evi-
that
requirement
§ 5270’s
charge
to sustain
that
lightly
sufficient
conclude
a
are not to
[was]
dence
Courts
Rather,
treaty”);
see
review.
provisions
precludes
statute
under
457, 460-63,
McMahon,
has directed
two
Supreme
127 U.S.
Court
Benson v.
(1888)
must be considered:
(noting
principles
L.Ed. 234
32
trea-
the relevant
§
limits of
5270
matter,
par-
a
“First,
when
general
as a
either of
may address
we
ty). Before
of a statute invokes
interpretation
ticular
however,
must consid-
we
questions,
these
Congress’ power, we
limits of
the outer
jurisdiction.
of our
matter
er the threshold
Congress
a clear
expect
indication
Cyr,
St.
533 U.S.
that result.”
intended
“[Wjhere
provision
a
2271.
two dif-
contends that
government
claimed to bar habeas
review is
precluding
negatively af-
statutory provisions
review,
required
particu-
a
ferent
Court
Trinidad’s claim:
that such is Con-
over
clear
larly
fect our
statement
Kim,
(d)
v.
538 U.S.
FARR Act and 8
intent.” Demore
gress’
of the
subsection
L.Ed.2d
1252(a)(4)(d).
must deter-
§
We
U.S.C.
Oteiza,
(noting
progression of
5270 and con-
Notwithstanding my
discussion
Fernandez,
sidering
effect on
Judge
progression’s
Neely,
Berzon errone-
review).
rely
scope
of its habeas
ously argues that I
Court’s
Moreover,
Non-Inquiry jurisprudence
critiquing my steadfast adher-
earliest Rule of
reality,
review in all extradi-
Concurrence at
conclude "that
ence to
Berzon
narrowly
compares apples
to ... a
circum-
tion cases is limited
Berzon
magistrate’s finding
equates judicial
examination of
review of
oranges
scribed
when she
juris-
extraditability
magistrate’s
judiciary’s
of the
with the
specific extradition order
finding.”
Con-
diction to enter such
longstanding power
Berzon
to review acts of Con-
Madison,
is not true.
I reiterate:
at 993. That
Marbury
currence
gress. Compare
jurisprudence
entirety
(1803),
Rule
Court’s
969
(2003)
gress
St.
(noting
infringe constitutionally
Court held
intended
308-09,
2271,
121
Cyr, 533
at
S.Ct.
protected
U.S.
liberties or usurp power consti-
“
”
titled
provision
that a
‘Elimination
(first
forbidden it.’
tutionally
alteration in
along
Custody
Corpus,’
Review Habeas
(quoting
original)
Edward
DeBartolo
J.
preclude
of intent to
broad statement
Bldg.
v. Fla.
&
Corp.
Coast
Constr.
Gulf
review, was not sufficient to bar review of
Council,
568, 575,
Trades
485 U.S.
108
533
corpus petitions”);
Cyr,
St.
(1988))).
1392, 99 L.Ed.2d
S.Ct.
645
298,
(citing
U.S. at
would
raise serious constitutional
Cyr,
S.Ct.
St.
lems,
interpreta-
an alternative
where
But
Cyr,
S.Ct. 2271.
see St.
533 U.S. at
‘fairly possible,’
tion of the statute is
see 327,
(Sealia, J.,
dissenting)
S.Ct.
Benson,
Crowell v.
285 U.S.
52 (arguing
specific
mention
“habeas”
(1932),
L.Ed. 598
S.Ct.
we are
2242(d)
Moreover,
required).
is not
can
obligated to
avoid
construe
statute to
interpreted
readily
jurisdiction-neu
so,
problems.”).
such
If
in-
courts are
providing
precluding ju
tral —neither
nor
interpretation
structed to effectuate that
It
risdiction.
thus falls far short of the
constitutionally
rather than the
al-
suspect
“particularly clear
necessary
statement”
ternative.
Id. at
300 n.
52 for us to conclude that Congress intended
(“
Hooper
S.Ct. 285
was
‘As
stated
Demore,
to bar habeas review.
California, 155 U.S.
517, 123
1708;
Cyr,
St.
533 U.S. at
(1895),
elementary
971
It was used to command
to habeas review of his claim to
statutes.
the extent
of
argues
he
that
Convention or the
statutory
discharge of seamen who had a
authority
FARR Act
bind
of the Exec-
exemption
into the
impressment
from
utive to
him—“a
pure question
extradite
slaves,
Navy,
emancipate
British
to
Munaf,
691-93,
law.” See
553
at
the freedom of
apprentices
to obtain
Valentine,
(discussing
128
2207
S.Ct.
299
inmates. Most
for
asylum
important,
100).
8-9,
Thus,
U.S. at
a serious
early
those
contain
purposes,
our
cases
question
constitutional
would arise were
suggestion
no
that habeas relief
cases
Congress to
our
preclude
habeas review as
involving
Executive
was
detention
statutory
to whether
provisions
those
actu-
available
constitutional error.
ally
Executive authority,
curtailed
unless
301-08,
(emphasis
Id.
121
2271
S.Ct.
some other forum or opportunity for re-
(footnotes
added)
omitted). Moreover, the
St. Cyr,
view existed. See
533 U.S. at
(“If
rejected the
argument
Court
INS’s
The threshold
1252)
that
(noting
§
serious con-
a note to
thus met —a
as
admonishment
(a) ...
were we to
would exist
made
subsection
question
“amendments
stitutional
1252(a)(4)
re-
precludes
§
final
that
in which the
apply
determine
to cases
shall
claim.
legal
removal,
Trinidad’s
view of
deporta-
order
administrative
before, on,
tion,
or
was issued
or exclusion
consider whether
we must
Accordingly,
this
the enactment of
after
the date of
“fairly pos-
interpretation
an alternative
itself,
division”).
title
Finally, the section
299-300, 121
at
Cyr,
sible.” St.
U.S.
removal,” and
orders of
review of
“Judicial
urge us to
and amici
2271. Trinidad
title,
only
“Immigration,”
1252(a)(4)
subchapter
is;
§
that one
conclude
of the sec-
cabining
further
reaffirm
limiting habeas
interpreted as
should be
Almendarez-Torres
immigration context —a
tion’s effect.
only in the
review
Cf.
States,
would be enti-
in which individuals
context
United
(1998) (“[T]he
their
for review on
petition
to file a
title
tled
L.Ed.2d 350
would re-
and therefore
claims
Convention
a section
heading
and the
of a statute
re-
of process
the modicum
ceive
for the resolution of
available
are tools
issue.
Suspension
Clause
quired to avoid
meaning of a statute.”
about
doubt
109-72,
(2005),
No.
H.R.Rep.
See
(citation
marks
quotation
and internal
240, 299.
reprinted in
U.S.C.C.A.N.
omitted)).
agree.
factors dis-
Cyr, and the
light
of St.
a number of indicators
There are
above,
I would conclude
cussed
1252(a)(4)
ap-
§
to be
Congress intended
1252(a)(4)
deprive
§
not
us of
does
context.
only
immigration
plicable
over Trinidad’s claim because
enacted
things, Congress
Among other
alternative in-
“fairly possible”
there is
Act,
1252(a)(4)
REAL ID
part
§
1252(a)(4)
applies
terpretation —that
have considered
of which we
the effect
seeking judicial review
only to those claims
See,
context.
immigration
to the
limited
removal.
of orders of
Gonzales, 499 F.3d
e.g., Singh v.
1252(a)(5)
Cir.2007) (“[B]oth
(9th
§§
1252(b)(9)
claims seek-
apply only to those
we have habeas
Having concluded that
removal.”);
review of orders
ing judicial
the first merits
I move to
jurisdiction,
(9th
Gonzales,
Puri v.
whether,
contends,
as Trinidad
question:
Cir.2006) (“[T]he
jurisdic-
REAL ID Act’s
to restrict
Congress actually intended
apply
...
provisions
tion-stripping
[do]
authority via the
extradition
Executive’s
not a
because
claim is
[the]
claim
[the]
Convention,
Act,
imple-
or the
the FARR
removal.”).
challenge
direct
to an order
To resolve
menting regulations.
And,
ex-
Report
House
as the
Committee
each in turn.
I consider
question,
states,
intend to
Congress did not
plicitly
challenges to
review over
“preclude habeas
i
of chal-
independent
that are
detention
long
I do not dwell
Convention
H.R.Rep. No.
lenges to removal orders.”
law
“are not domestic
its terms. Treaties
109-72,
reprinted
imple-
enacted
Congress has either
unless
in-
The bill was
U.S.C.C.A.N.
treaty itself con-
or the
menting statutes
review
tended to “eliminate habeas
‘self-executing’
intention that it be
Id.;
veys an
orders.”
challenges
over
to removal
Medellin,
B,
I,
on these terms.”
and is ratified
Div.
Title
accord Pub. L. No.
Suspension Clause concern.
for our
review of a final order of pursu- removal ii ant to section 242 of the Immigration (8 1252). Nationality § Act U.S.C. The FARR requires greater Act scruti- ny. detail, In relevant 2242. provides:
(a) Policy. shall be the policy of (a) argues Trinidad that subsection —It extradite, United States not to expel, dispositive. He echoes the erroneous con or otherwise effect the involuntary re- Cornejo-Barreto clusion in Seifert, turn of person to a country (9th in which Cir.2000) F.3d decision —a there are substantial grounds for believ- expressly we overrule today asserting —in ing the person would be in danger of that the FARR Act’s “poli articulation of being subjected torture, regardless of cy” confers a binding, non-discretionary whether the person physically present obligation Secretary. on the That cannot in the United States. be.14 important dispel think it very my colleague’s at the representation govern- that the my outset of FARR Act discussion the errone- asserted, emphatically ment has Con- Berzon ous my assertion made some of esteemed thereby currence that “the FARR Act colleagues my position is at odds with the 'prohibits person the extradition of a who government's. examples Two more than tortured, more than not will be and ... my point. demonstrate pertains The first with a view to read in their context and foremost, glean one cannot
First
statutory
overall
place
their
sentence
single
intent from a
congressional
Dep’t
v. Mich.
Trea
scheme,”
Davis
Rather,
mean
“[t]he
because
of a statute.
803, 809, 109
sury,
*21
certain words
ambiguity
ing
—of
—or
(1989).
fit, if
task is to
“[0]ur
891
L.Ed.2d
when
only
evident
become
phrases
an harmonious
parts
all
into
possible,
& Wil
FDA v. Brown
context,”
placed in
Bros., Inc., 359
v. Mandel
whole.” FTC
120, 132,
Corp., 529 U.S.
liamson Tobacco
818,
389,
385,
79
whether
1291;
Bros.,
Mandel
359 U.S. at
provision of U.S.C.
601016to
rights”
(b)
particular
S.Ct. 818. Sub-section
impose
rights”
“substantive
or to
confer
ly illuminating.
Its directive that “the
obligation on the States.” 451
“an
the appropriate agencies pre
heads of
pointed
1531. Plaintiffs
regulations
implement
scribe
the obli
explicitly spoke
out that
the statute
gations of the United
under
States
Article
“obligations”
“rights”
terms
3 of
the United Nations Convention
interpreted
con-
therefore could not
Torture,”
added),
Against
(emphasis
con
ferring
Id. at
anything less.
flicts with Trinidad’s assertion that
*22
disagreed.
empha-
It
1531.
Court
implements
FARR Act itself
the Conven
that
interpret
sized
courts cannot
a statute
tion
authority.
and binds Executive
Cf.
single
“a
by relying solely on
sentence
Sandoval,
Alexander
532 U.S.
sentence,”
of a
and that
member
the seem-
(2001)
L.Ed.2d
ingly clear
relied
the
provisions
upon by
(“The
provision
one
express
of
method of
ambiguous
the
plaintiffs
were rendered
a
enforcing
suggests
substantive rule
that
of the
of the
at
context
remainder
Act. Id.
others.”).
Congress intended to preclude
Considering
wisely delegated the task
those
surgical
an intent
precision,
regulations
could act with more
authorized
manifest
take
account
crafting regulations that
into
remedy;
anything,
if
private
create a
history of their
specific
the intricacies and
they
opposite.”).
suggest the
respective
expertise.17
areas of
(a)
nothing to
does
disturb
Subsection
(d)
supports
also
this view
Subsection
import
intended
interpretation
Congress
again,
Act. Here
focuses
at issue
of the Act. Similar
the statute
effect,
the Act’s
but on
effect
Pennhurst,
express
no
it “does more than
2242(d)
§
(noting
reg
that the
regulations.
preference
for certain
congressional
obligations
implement
ulations will
“simply
kinds
provides
of treatment” and
States).
addition,
as dis
the United
”
“jus-
general
‘findings’
statement
cussed,
jurisdiction-
provision
is at best
”
supports
tifies
decision to
Congress’
nor
providing
barring ju
neutral —neither
agency
promulgate
instruct
heads to
specifically declined
Congress
risdiction.
regulations
implement”
“to
the Conven-
provide
mechanism for “claims raised
2242(a),
§
tion.
Compare
Act,
“except
under the Convention” or
Pennhurst,
a final
part
review of
order
And,
if
were
obligations
inde-
*23
pursuant
section 242 of the
removal
to
conferred,
pendently
obligations
those
(8
Nationality
Immigration and
Act U.S.C.
immigration
were
to the
confined
context.
1252).”
added). This
(emphasis
Id.
[§ ]
2242(b)-(e); Munaf,
6,
§
n.
553
at 703
U.S.
Sandoval,
is telling.
582 U.S.
absence
Cf.
analyzed
128
Even
2207.
ab-
S.Ct.
290, 121
As the
noted
at
S.Ct. 1511.
Court
stract, Congress’ framing of its statement
it
Munaf,
suggests
Congress
in
that
did
“policy”
in
of
terms
undercuts Trinidad’s
obligation
intend to
an
the
impose
not
on
binding
that
it
obli-
assertion
confers a
removal
Executive outside the
context.
Pennhurst,
gation.
at
451 U.S.
101
at
n.
128
2207
553 U.S.
703
S.Ct.
Doe,
1531;
Gonzaga
S.Ct.
see
Univ.
536
(“[Cjlaims
FARR
under the
Act
122
U.S.
S.Ct.
153 L.Ed.2d
to
immigration proceedi
limited
certain
(2002). Certainly,
general
in
309
as used
(e)
2242(c),
§
ngs.”);18
(relying
see
term
connotes
language,
“policy”
a
provisions
Immigration
of the
and Nation
Sandoval,
import.
Act);
289, precatory
obligatory
rather
than
ality
532 U.S. at
cf.
(“Nor
(9th
Dictionary
embracing govern- especially] of a procedures able Finally, pro- reach those regulations we body”), http://www. mental available at mulgated implement obligations merriam-webster.com/dictionary/policy. the United States under the Convention: §§ 95.1-95.4. Notably, when C.F.R. not one
Similarly,
Congress,
used
interpreted
concern for
ef
could be
“aggregate”
limiting
demonstrates
Executive
fect,
any partic
“whether the
authority.
needs
To the contrary, each main-
person
ular
have been satisfied.” Gonza
practice
leaving
tains the historical
288, 122
(quoting
ga, 536 U.S.
S.Ct. 2268
ultimate extradition decision to the Execu-
Freestone,
329, 343-
Blessing v.
tive’s discretion:
(1997)
L.Ed.2d 569
the Secretary concerning
Decisions of
(“Far
creating an
entitle
from
individual
fugitives
surrender
extradition
for
services,
simply
ment to
standard is
are matters
executive discretion not
yardstick
for the
measure
subject
review. Further-
systemwide performance of a
Title
State’s
more,
2242(d)
pursuant to section
program.”)).
IV-D
Contra Berzon Con
Foreign Affairs Reform and Restructur-
(providing
support
currence at
no
ing Act of
P.L.
notwith-
contrary interpretation).
its
As the Court
law,
standing any
provision
other
no
“
Pennhurst,
some
‘Congress
stated
court shall have
to review
*24
innuendo,
making dec
legislates
times
regulations,
nothing
these
in section
policy
prefer
larations
and indicating a
of
2242
be
providing any
shall
construed as
that,
requiring
ence while
measures
court
to consider or review
though falling
goals,
short of
its
legislating
claims raised under the
or
Convention
a nudge
serve as
di
preferred
2242, or any
section
other determination
”
19,
States “not other or Act, regula- nor the involuntary implementing wise FARR effect return country in person historically recognized to which there are tions alter the dis- 978 demonstrates, precedent own this Secretary by Con Court’s to
cretion accorded
particular
whether
with
gress
Non-Inquiry
“to surrender Rule of
acts
to determine
State,
deny
requesting
to
fugitive to
context. Neely,
force in
extradition
[a]
or
fugitive,
of the
to surrender
302; Oteiza,
surrender
123, 21 S.Ct.
180 U.S. at
subject
to
conditions.”
fugitive
1031;
at
see Lopez-
U.S.
95.3(b);
at
see
U.S.
Smith,
(“[Generally, un
980 thing petitioners want is here the last history appli the Rule’s and
discussion of
release;
expose
that would
them
prior applica
simple
its
premised
was
cation
by Iraqi
E.g.,
apprehension
id. at 695-
authorities
in extradition cases.
tion
97,
(discussing Neely);
pe-
2207
id.
what
prosecution precisely
128 S.Ct.
criminal
—
704,
(discussing
2207
Valen
went to federal court to avoid.
at
titioners
). Finally,
day,
itself discussed
petitioners
tine
At the end of the
what
Munaf
might
implicated
concerns
be
really
requir-
what other
after is a court order
are
at
were
an extradition case.
Id.
them
ing the United States to shelter
Munaf
704-05,
thus no
seeking
Boumediene added) (citation omitted). dis- my colleagues (emphasis overlook three critical Cit Girard, 524, that Boumediene ing tinctions. The first is 354 77 Wilson U.S. (1957), scope judiciary’s 1409, ha- concerned a trans S.Ct. L.Ed.2d case, case, review in the executive detention con- Neely, beas an extradition fer in Rule of Non- text —a context which the thereafter concluded: “as the Court never Inquiry applied. clear, been foregoing cases make habeas is not a therefore did not consider what ef- Court compelling means of the United States might have fect the Rule on Boumediene’s justice fugitives harbor from the criminal applied rationale were to be extra- system sovereign of a with undoubted au dition context. thority prosecute Munaf, them.” 695-97, 128 U.S. at S.Ct. 2207.
Second, my colleagues overlook the fact
predominate
concern underlying
critically, my
most
Finally,
perhaps
conclusion,
Boumediene’s
indefinite execu-
colleagues fail to account for the fact that
detention,
implicated
tive
is not
the Boumediene itself never held that habeas
present context. See id. at
128 S.Ct. petitioners were entitled to
See 553
relief.
facing
2207. Rather than
a circumstance
that,
relief, Munaf,
though entitled
seek
Despite concluding that “[t]he doctrine
peti
553 U.S. at
the
powers
relief,
separation
the rule of
tioners were not entitled to obtain
negated
subjecting
any
block
any purpose
non-inquiry
inquiry
which
into the sub-
review,
the Executive’s decision
declaration,”
Secretary’s
stance of the
Per
(“We
id. at
First,
dispute
former
103
proof.”
there is no
that
“clearest
U.S.
(“And
trial,
progress
Rice made the determi-
at 263
if in the
of a
Secretary of State
extradition;
proof,
order Trinidad’s
by
nation to
either
admission or
a fact is
such
rather,
himself
much.
Trinidad
admits as
developed
necessarily put
which must
an
Corpus
of
action,
Petition for Writ Habeas
may,
Second
upon
end to
the court
its
¶¶ 2-9,
2at
No. 2:08-cv-07719-MMM
counsel,
motion,
upon
own
that of
act
(S.D.
2008),
17,
No. 1
Sept.
ECF
case.”).
Cal.
and close
We must treat them
(“[T]he
Rice, Secre-
Honorable Condoleeza
respect
with the
of
degree
same
that
State,
tary
warrant
of
issued
surrender
representations
Court accorded the
of the
Trinidad____
Date of surrender war- Solicitor
553
General
U.S.
Munaf
2008[.]”);
12,
Application
rant: September
on the
(relying
2207
Solicitor
S.Ct.
¶ 3,
Extradition
3
No.
Staying
for Order
representations concerning
General’s
(S.D.
16,
Sept.
Cal.
2:07-cv-06387-MMM
States).
policy
non-refouler
of the United
45(declaration
2008),
Craig
No.
of
ECF
having established
Accordingly,
Harbaugh,
attorney,
Trinidad’s
made un Secretary
requisite
determina
made
penalty
perjury,
der
tion, we
to the Supreme
must adhere
had
the decision to extradite Trini
made
that, “in
Court’s admonishment
the ab
dad).
are
These admissions
“conclusive
contrary,
to the
sence
clear evidence
Legal
Soc’y Chapter
case.” Christian
presume
[public
courts
have
officers]
—
Martinez,
v.
U.S.
the Univ. Cal.
their
properly discharged
official duties.”
-,
2971, 2983,
promptly (2) extradition; process, as a matter of due add (emphasis entered.” should have been required to con- Secretary of State is ed)). that he will be tor- sider Trinidad’s claim Philippines and to tured if returned to the II extraditing him if she finds refrain from straightforward presents This case will indeed likely than not” that he “more answer. straightforward question with (3) tortured; without a declaration to con- Though we have (or Secretary delegate) her from the claim, claim is Trinidad’s sider obligation, her has fulfilled by the entirely foreclosed squarely and in the record there is insufficient evidence 702-03, 128 Id. at Non-Inquiry. Rule of I has done so. whether she to determine remanding, the By needlessly S.Ct. 2207. in Parts 1-5 of agree. I therefore concur Supreme Court’s majority ignores both the majority opinion. id. at promptness, concern for however, cannot, major- with the agree I controlling litany as well as once the Secre- ity’s holding ultimate yet another legal principles. interjects It (or procedur- delegate) her meets tary from States impede obstacle to United submitting requirement by process al due damaging fulfilling treaty obligations, its declaration, courts under no a barebones undoubtedly sovereign reputation our authority to conduct have circumstances coop- obtain the undermining ability our Secretary’s review substantive when we need eration of other countries federal law. compliance with extradition assistance. Non-Inqui- departure the Rule of from into the ited” no need to wade And there is thus ry. "lim- unprecedented merits of Berzon's majority There is no reason for the even begin by outlining the basic building question. majority substantive, to reach this Once the blocks of Trinidad’s statute- based claim. determines that there proce- has been a
dural due process violation and that there-
First, we may grant a writ of habeas
fore “we lack
sufficient basis
the record
corpus
prisoner
where a
is “in custody in
to review the district
grant-
court’s order
violation of the Constitution or laws or
release,”
ing
y
Trinidad Garcia’s
Per cu-
treaties
the United States.” 28 U.S.C.
riam at
we should simply remand for
2241(c)(3).1
the submission of an appropriate declara-
Second, Article 3 of the Convention
tion.
If
subsequent
there is a
appeal, we
(CAT),
Against Torture
which entered into
*31
could then determine whether further sub-
states;
1994,
force for the United States in
and,
so,
stantive review is available
if
Party
(“re-
No State
expel,
shall
return
whether the record is adequate for that
”) or
person
extradite a
to another
fouter
purpose.
state where
there
are
substantial
grounds for believing that he would be
The majority nevertheless jumps the
danger
being subjected to torture.
gun and dismisses Trinidad’s substantive
United Nations
Against
Convention
Tor-
claims, holding, with little explanation, that
ture and
Cruel,
Other Forms of
Inhuman
they are
foreclosed
the Supreme
or Degrading
Punishment,
Treatment or
Geren,
Court’s decision in
v.
Munaf
adopted by unanimous agreement of the
674,
2207,
128 S.Ct.
tories’
policy,
enforce a
McMahon,
457,
pending
Those detained
extradition have
127 U.S.
8 S.Ct.
long been
custody”
understood to be "in
for
(1888);
Neuman,
L.Ed. 234
see also Gerald L.
purposes
of habeas relief. See Ornelas v.
Detention,
Corpus,
Habeas
Executive
and the
Ruiz,
161 U.S.
below,
invariably.
not
thing,
For one
the statute at issue in
Pennhurst was passed
pursuant
either
I. The FARR Act
Congress’s power
under
5 of the Four
so, however,
doing
Before
address
teenth Amendment or pursuant
to its
separate proposition put
by
forth
Judge
spending power.3 The Supreme Court has
Tallman but not
majori
addressed
held
passed
that statutes
pursuant
to ei
ty. Judge Tallman
despite
maintains that
ther
powers
of these
and intended
Con
the Government’s emphatic assertion to gress
impose obligations
on the states
contrary,
the FARR Act does not ac
clearly
intention,
must
state this
particu
tually restrict the Executive’s discretion to larly
obligation
where the
is the creation of
extradite, even
when it is more
than
an affirmative entitlement. See id. at 16-
not
that an individual will be tortured.
Act,
Pennhurst concerned whether the state- FARR Act contains no analogous specific ment congressional findings included in provisions. Developmentally federal Disabled As- sistance and Bill of Rights imposed Act fact, consistent with the Govern- upon obligation the states an par- to fund position, ment’s the text and structure of ticular kinds mental healthcare entitle- the FARR Act confirm that it does impose litigants disagreed 3. The in Pennhurst on this S.Ct. 1531. Pennhurst, point. See 451 U.S. at insists, obligations exist no such Secretary of Tallman obligation on the binding
a at all. likely to under U.S. law to extradite individuals State not (a) of the FARR Subsection face torture. (a) Further, assuming subsection does it- language CAT incorporates Act express general policy, no more than self, policy domestic enacting as U.S. (b) unques- of the FARR Act is subsection States obligation the United international Thus, disregard- tionably obligatory. even ratifying CAT. See U.S.C. undertook (b) (a), entirely subsection subsection ing of the Act note. The remainder Act the conclusion that the FARR compels implement the Executive “to then directs obligation Executive an imposes upon the States under” obligations United abide CAT. implementa- such specifies how CAT that the a fallback to his insistence As to occur. Id. the stat- ought tion Whereas and does simply precatory FARR Act is an in Pennhurst combined ute at issue all, Judge executive at Tall- not bind the for the ideal treatment aspirational vision that subsec- modestly proposes man more specif- with more people with disabilities (d) of the Act demonstrates tion mandates, nothing aspirational ic there an ob- “Congress impose did not intend to policy It about the FARR Act. states Executive outside the re- ligation on the policy. agencies implement directs Tallman dissent at 6435- moval context.” merely precatory, then all policy If this words, sug- Judge In other Tallman also be so. the FARR Act would duty gests cleavage the substantive Congress passed a stat- agree cannot Act between the Execu- created anyone’s rights to affect ute with no intent immigration remov- obligation tive’s obligations. applicable and that in all other al context however, Tallman, reads circumstances, including extradition. This differ- incorporation FARR Act’s of CAT more narrow contention fares no better Act’s direction ently, maintaining that the broader, Judge Tallman’s Pennhurst- than (b) of appro- that “the heads subsection grounded one. regulations priate agencies prescribe shall sug- problem with this alternative States’ “obli- implement” United is that there is no indication what- gestion id., CAT, “conflicts with gations” under soever in the statute that the substantive the FARR Act Trinidad’s assertion *34 vary by context. obligations imposes implements itself the Convention (d), Judge on which Tallman Subsection authority.” Executive Tallman dis- binds contrary proposition, for his de- relies assertion, however, at 975. Trinidad’s sent authority to review only scribes courts’ CAT, implements the FARR Act is that claims, Act not the substantive FARR States’ obli- and so makes the United underlying governmental obli- reach of the binding only not as a gations under CAT specifically FARR Act gation. That the they international law—as be- matter of jurisdiction for to review claims allows signed States came when the United review in the removal context but leaves a matter of law. The CAT—but as U.S. dependent pre-exist- any other context agencies they mandate to FARR Act’s (as recog- Tallman jurisdiction Judge ing obligations States’ “implement” the United analysis) does not jurisdictional nizes in his put prac- into under CAT is direction obligation of the alter the substance mandatory obligations tice the Article 3 obligation, imposi- Act creates. That incorpo- by signing undertaken CAT prohibiting “the policy of a uniform FARR Act. tion by rated into law U.S. any person to a coun- if, involuntary return of Judge as That mandate would be absurd try” the person likely where to face tor- terests at the time by would be served an ture, note, § affirmatively 8 U.S.C. extradition.” Secretary’s own inter generally applicable. stated and pretation regulation of the upon which Judge that, Tallman clearly relies is what If anything, provi- the inclusion of the ever discretion the Department State addressing sion courts’ to re- decisions, over extradition its discretion view FARR Act claims further supports does not extend ability to the to extradite the view that the obligations Act creates an individual likely out of to face torture. which claims could A This provi- arise. interpretation allowing sion for is controlling. the review of FARR Act “[W]e defer part agency’s claims as of the to an interpretation review final orders of its own meaningless removal would be if regulation, no brief, advanced in a legal un such claims could ever arise because the interpretation less that ‘plainly errone ” FARR Act created no governmental duty ous or inconsistent regulation.’ with the n — regard to expelling facing individuals USA, Chase Bank N.A. v. McCoy, torture. U.S. -, 871, 880, 178 L.Ed.2d (2011) Robbins, (quoting Auer v.
Judge Tallman’s last finding stab at 452, 461, that, L.Ed.2d declaring basis despite the (1997)). Act, Given the Secretary’s FARR con Government still has dis- view, trary cretion to extradite a detainee Tallman’s facing reading tor- ture is Department Department a State State regulation regulations pro as providing that the Secretary’s viding extradition discretion with regard to FARR decisions “are matters of executive discre- Act obligations cannot stand. tion not subject review.”4 22 Consistent with the Government’s un C.F.R. 95.4. parties, But the the Su- derstanding, Supreme Court, in Medel Court, preme and the courts of appeals Texas, lin v. cited the FARR Act as exem have all taken the view that the FARR plifying (CAT) statute which a treaty implements
Act
CAT
incorporating the
had been given “wholesale effect
...
obligations undertaken in
treaty
into through implementing legislation.” Me
law,
domestic
thereby eliminating any dis-
Texas,
dellin v.
Secretary
cretion the
of State might oth-
(2008).
Most was not an extra- I make this suggest distinction not to Munaf dition case. The petitioners were that there are Munaf not real foreign affairs and in Iraq, detained request of the international comity concerns in ordinary Iraqi government, by an international mili- extradition cases such as this one. See tary coalition by the commanded United Part IV But these concerns simply infra. charges States. The against them were do not rise to the level of those at issue in they violated Iraqi criminal law. While significant, the foreign af- Munaf. They sought not the traditional habeas comity fairs and concerns in present remedy of release from executive deten- circumstances are manageable through ap- but, rather, tion affirmative protection propriately deferential procedures from the reach of the Iraqi government. and limitations on the scope theAs Court explained: Munaf review, I suggest below. nature of the sought by [T]he relief Furthermore, petitioners’ Munaf petitioners suggests that habeas military claims raised and national security is not appropriate in these cases. Habe- concerns that Trinidad’s claims do not. At as is at remedy its core a for unlawful one petitioners least was Munaf executive detention. typical reme- charged with terrorism-related crimes. dy is, course, for such detention re- And the repeatedly Court emphasized that lease. But here the thing petition- last place the case took “in the context of ongo- release; ers want simple that would ing military operations.” Id. at expose apprehension them to by Iraqi S.Ct. 2207. authorities prosecution— criminal Moreover,
precisely
petitioners
critically
what
for present pur-
went to feder-
poses,
al court to avoid. At the
day,
affirmatively
open
end of the
left
Munaf
petitioners
what
are
really after is a
FARR Act issue but also the
court order requiring
question
the United States
of whether the result could be
to shelter them from the sovereign gov- different in “a more extreme case in which
seeking
ernment
to have them answer
the Executive has determined that a de-
for alleged crimes committed within that
tainee
to be tortured but decides
sovereign’s borders.
transfer him anyway.”
Id. at
Souter,
S.Ct. 2207. Justice
joined by
2207;
Jus-
Id.
see also id.
tices
(“Omar
Ginsburg
Breyer,
saw a
majority Rather, ruling a detainee opened, that once criminal defendants.5 extradited Munaf proce- position Trinidad’s is afforded has principle traditional that been Secretary has assurance that dural non-inquiry” developed the “rule of dubbed obligations, her there is CAT considered doctrine, under judge-made a which as avail- review whatsoever no substantive extraditing generally will not court “[a]n able, statutory, or no matter constitutional or inquire procedures into treatment underlying circumstances. what the fugitive a which await surrendered & refusal given Arnbjornsdottir I conclude requesting country.” Munaf case, presented in this question answer States, -Mendler v. United F.2d be- the substantial differences as well as (9th Cir.1983). cases, is of little use tween the two Munaf never Supreme The Court has used the here. non-inquiry,” term “rule of let alone ex proper application. its plicated scope or Non-Inquiry Rule III. The of Instead, developed “by impli the doctrine Tallman’s, majority’s, and cation,” interpreted as lower courts and the door on ground shutting basic for more expounded upon Supreme Court extradi any judicial consideration of Trinidad’s Semmelman, supra See precedents. tion non-inqui- claims is rule of substantive Costner, 1211-12; Mironescu background and ry. Consideration (4th Cir.2007); Parry, T. F.3d 664 John principle extradition role of that cases Extradition, the Rule International of apply not demonstrates does —at Problem Non-Inquiry, and the Sover of adjustment— substantial least without eignty, B.U.L. Rev. 1978-96 here, where, specific, as there is a manda- (2010). Branch tory directive the Executive to the treatment of extradition regard
with century, the late Since nineteenth extra- requests. process, dition been a bifurcated with extraditability of the initial determination no or statutory
There is constitutional see assigned by magistrate,6 to a statute non-inqui- of establishing command a rule is, final ry precluding any a rule substan- and the decision to the U.S.C. —that fact, Congress reject- setting procedures and 6. The statute forth the has considered legislation codify ed that would the rule of "any delegates extradition Justice of the Semmelman, non-inquiry. Jacques Court, See Feder- Supreme judge, judge, district circuit Courts, Constitution, the Rule al commissioner, by any to do so authorized Non-Inquiry in Extradition Pro- International States, judge the courts the United ceedings, 76 Cornell 1220-21 L. Rev. general jurisdiction of record of court Howard, (1991); also In re see Extradition of authority charge person state” the Cir.1993) ("The (1st n. 6 offense, having committed an extraditable is- government suggests the Constitution person’s apprehension, warrant sue a for that non-inquiry. the rule We mandates dis- make an initial assessment the suffi- agree. spring The rule did not from a belief ciency against person of the evidence courts, institution, as an lack either the certify extraditability. person’s U.S.C. foreign authority capacity or the to evaluate Although judicial § 3184. officers are in- Rather, legal systems. rule came into in this of extradit- volved initial determination interpret par- being judges, attempting ability, they acting are in their Article III treaties, that, concluded absent a con- ticular they capacity indeed, are often not Article instance, trary specific indication — judges. judi- III therefore refer will treaty ratification of an extradition mandated making extradition determina- cial officers non-inquiry as a matter of international comi- "magistrates.” tions in the instance as ty.”). first
993
diction, .
elaborating
charged
of State.
In
whether
the offence
is
and, by a
non-inquiry,
treaty
have relied on within the
somewhat
rule
courts
lib-
extension,
early
of late nineteenth and
eral
whether there was
two strands
evi-
warranting
finding
caselaw.
century extradition
dence
there
twentieth
ground
was reasonable
to believe the ac-
of non-inquiry
first strand of rule
guilty.”
cused
Id.
of a
arises out
series of
jurisprudence
Judge
Court
From this
Tallman
Supreme
language,
cases which
articu
con
subject
judicial
the extradition
to re
cludes that
review in all
lated
issues
extradi
examining
a habeas court when
tion cases is limited
such a narrowly
view
certifying
magistrate’s
magis
decision
extradita
circumscribed examination
See, e.g.,
extraditability
v.
bility.
Phillips,
finding
Fernandez
268 trate’s
and of the
311,
541,
(1925); magistrate’s
45
970
U.S.
S.Ct.
69 L.Ed.
to enter such a
Jacobus,
330,
v.
finding.
136
10 S.Ct.
This
rests on a
position
Oteiza
U.S.
misun
(1890);
34
derstanding
L.Ed. 464
Benson v.
earliest
Court’s
extradi
McMahon,
cases,
8
U.S.
S.Ct.
32 tion cases.
as I
Those
have ex
(1888).
At
in these early
plained,
solely
challenges
L.Ed.
issue
dealt
to the
procedure
proceedings
was the
and evidence
cases
of extradition
held before a mag
guilt required
magistrate
designed only
before a
could istrate and were
to ensure
extraditability.
a certificate of
there
issue
was some basis for the extradi
request.
tion
was no
There
claim in these
The Court’s
in this line
initial cases
es-
that,
cases
for
example,
Secretary of
proceeding
tablished that an extradition
is
State’s decision to extradite was contrary
trial,
analogous to a
“by
criminal
which
or,
law
particular,
petitioner
prisoner
acquit-
could be convicted
face
would
torture if extradited. Given
him,”
against
the crime charged
ted of
but
their narrow
this line
purview,
magis
hearing
more like a
“for
preliminary
is
trate review cases does not broadly limit
purpose of
a case
determining whether
kinds of
brought
claims that
out which will
justify
holding
made
contest extradition or delimit the scope of
Oteiza,
the accused” for trial.
136 U.S. at
respect
review with
to all such
1031;
Benson,
see also
Rather,
claims.
Fernandez and similar
scope
1240. The
scope
cases established the
of review for
by a
corresponding-
review
habeas court is
particular
claim—a
one
kind of
claim that
habeas,
ly
On
narrow:
courts need and
magistrate’s
certify
decision to
extra
error,”
not issue
ought
“a writ of
examin-
words,
ditability was
In other
improper.
ing
possible procedural
all
defects of an
recognized,
as the Seventh
Circuit
Oteiza,
proceeding,
extradition
136 U.S. at
“these references
limited review
[to
of ex
for
is not to be
“[f]orm
tradition
... have occurred in
decisions]
upon beyond
requirements
insisted
cases that have
challenges
involved
to the
Fernandez,
safety
justice,”
268 U.S. at
findings of
magistrate
magis
(internal
312,
Charles rights, his constitutional Agent abrogation Finance serving as lic funds while Cuba, extradi- upon chal- and immunities privileges, Posts Department the Cuba; the the statute are claims about constitutionality of both the tion to lenged statute, Neely face in The to an extraditee governing extradition. treatment accused, country. Importantly, to the requesting not secure argued, “d[id] country foreign however, for claim that he to a does not when surrendered Trinidad tribunals, rights, privi- all of the not in its under the U.S. Constitution right trial has a guaranteed that are by Philip- immunities leges Philippines and in the to be tortured charged persons Rather, by the Constitution Trinidad’s claim is pine officials. country of in this commission with the affirmative en- Congressional on an based States.” Id. against the United treaty obligation— crime enforces a actment that consequence, Nee- 302. As a subject may be Neely recognizes which maintained, courts had the federal ly that, as I have domestic enforcement —and to declare the authority responsibility shown, officials and government binds U.S. The order his release. statute invalid and extraditing persons them from prohibits argument, explaining rejected this Court So, case, the in this likely to be tortured. by provisions cited that the constitutional may foreign officials is not whether issue Neely, those norms, whether by or about be bound U.S. corpus,
relating to the writ of
than the Executive
judiciary, rather
laws,
attainder,
facto
trial
post
ex
Branch,
bills of
norms
constitutional
can enforce
crimes,
to the
generally
by jury for
In-
requests.
extradition
regard
with
life, liberty
guarantees
fundamental
stead,
the role
here concerns
question
relation to
have no
property....
statutory
enforcing
judiciary
jurisdic-
committed without
crimes
affirmatively
upon U.S.
placed
obligations
against
States
tion of the United
words,
by Congress.
In other
officials
country.
foreign
laws of a
notwithstand-
argument
Kozinski’s
or,
least,
American citizen commits
.... When an
ing, the claim not—
country he cannot
foreign
crime in a
extra-
rights
Trinidad’s
once
solely—about
if
to submit to such
complain
required
dited,
legitimate
rather about
but
punishment
par-
of trial and to such
authority and,
modes
scope of executive
—
may
country
pre-
ticular,
the laws of
lim-
Congressional
with
compliance
unless a
people,
for its own
to ensure
authority designed
scribe
its on that
differ-
treaty stip-
provided
be
ent mode
treaty obligations.
compliance
country and the
between that
ulations
merely
is not
semantic.
This difference
United States.
review
authority may
we
have to
Whatever
added).
(emphasis
Munaf,
(dis-
gress has
Judge
to be
I note that
this seems
Never-
extradition context.
review the
understanding as well. Thomas
Thomas’s
theless,
did not refuse
review
the Court
cone,
agrees
at 960-61. He
Thus,
Neely
while
holds
claims.
such
authority
limits the Executive’s
FARR Act
or laws
not violate the Constitution
it does
may enforce
extradite and that courts
someone
States to extradite
of the United
My dis-
through
limitation
habeas.
criminal
country that does not offer
to a
is in how
agreement with his concurrence
protec-
procedural
the same
defendants
States,
FARR Act
obligation
the case con-
construe the
tions as the United
we
that do
that extraditions
Judge
tains no indication
Thomas characterizes
imposes:
or laws of the
violate the Constitution
of State as a
obligation
Tallman
might,
United States
person
...
whether a
“duty
to consider
*41
contends,
to habeas re-
subject
not be
‘is more
facing extradition from the U.S.
indeed,
contrary.
suggests
it
view—
Thomas
likely than not’ to be tortured.”
cone,
extent of the
Valentine,
at 961. If this were the
by
does
also cited
So too
Act,
duty imposed by
agree
I would
respon
The
citizen
Judge Tallman.
U.S.
Secretary’s
claimed that because
compli-
dents in Valentine
that our review of the
treaty
the relevant
stated that
United
requiring
limited to
a declaration
ance was
its own
was not bound to extradite
had, indeed,
States
considered whether
that she
citizens, “the President had no constitu
upon
would be tortured
extradi-
Trinidad
them.
authority to surrender”
Val
tional
But,
explained
I have
as the
tion.
as
—and
entine,
The
In
these
S.Ct. 2229. Even where “all
parties
Supreme
recogni-
with the
Court’s
begin
...
diligence
involved
act with
good
and in
tion in Boumediene that “common-law ha-
faith, there is
risk of
considerable
error in
“
all,
was,
corpus
an adaptable
beas
above
findings,”
the tribunal’s
due to the ‘closed
”
remedy.
precise
Its
application
scope
proceed
and accusatorial’ nature of the
the circum-
changed depending upon
ing.
Id. at
(quoting
terminations, relating to torture are made or the explained, Boumediene was issue urgent” ordinary brought than of an is otherwise to the Depart- “more review Secretary’s evidence and ciency” of the attention, policy and appropriate
merit’s offices, is, That on habeas re- Id. analyze informa- conclusions. review and legal view, able to assess court must be preparing in the the case relevant to tion de- Secretary Secretary appropriately the whether the recommendation extradition, that, torture is upon sign the surrender termined or not whether not. A declaration likely more than not warrant. (or delegate) her such as (b) analysis of resulting Based on process on due majority requires information, Secretary may relevant De- than that the State grounds, stating fugitive to surrender decide may that a detainee partment determined State, deny surrender requesting be, with consistent CAT be extradited fugitive or to fugitive, surrender for that necessarily, sufficient but is not subject to conditions. depends, it is or not Whether purpose. 95.3. C.F.R. view, on what the remainder my Secretary’s tor of error The risk to the likelihood regard record shows with likely lower than that is ture determination upon extradition. of torture is determination tribunal —the of CSRT flows from the rec- (in approach This scaled accusatorial, general) nor is it judicial review of the Secre- ognition that by the national se directly affected to be should be tary’s determination substantive that underlie CSRT curity concerns the Govern- however, deferential. As is, extremely It a closed determinations. bet- Department the State argues, ment a neutral decisionmaker. without process seem, than the courts to determine lacks, any prescribed ter suited it would And it the likelihood of torture evidence the first instance present the detainee to way for governm negotiate foreign governments presented or to contest that Furthermore, Furthermore, consequence that likelihood. ent.8 to decrease significant, foreign policy con- indisputably sensitivity error —torture—is magnitude indistinguishable terms in extradition decisions implicated cerns harm, de suggest, lightly from indefinite in these would that courts tread requires determination, Secretary’s lightly tention. The take the State cases. I do not then, pro much more like the kind re- concerns about Department’s re characterized as ceeding Boumediene view of its torture determinations. Cf. *43 “the means to review with quiring Bank, 410 F.3d v. Vatican Alperin for which “habeas errors” than one Cir.2005) correct (9th that the State (stating 556 may be more circum corpus review a lawsuit views on whether Department’s 786, 128 S.Ct. 2229. scribed.” Id. doctrine political question implicated in decid- be taken into consideration would hold, therefore, in review- I would review). I judicial exercise ing whether to that an Secretary’s determination ing concerns, however, these would address consistent may be extradited individual entirely and by refusing judicial review CAT, court must be able a habeas circumstances, by ensur- but rather in all manner into the substance inquire some by which we review procedure ing to “assess suffi- of the determination However, the Govern- Department official.” was 8. that "Trinidad The Government states right "had no that Trinidad any ment also states given opportunities to submit multiple and, indeed, hearing,” under ... Department the State material he desired to regulations, it would seem Department fur- State claim” and that "he was support his claiming they likely are present individuals opportunity to evi- ther offered an rights prescribed at all. have no meeting face torture in-person with a State dence at an
999
Mironescu,
Secretary’s torture determination is
sified information. See
480
quite
to take
Quinn
these considerations
designed
673;
Robinson,
F.3d at
v.
783 F.2d
addition,
into account.
specifically
(9th
Wilkes,
Cir.1986);
788
Eain v.
Secretary’s
while
review of the
(7th
Cir.1981);
641 F.2d
514-15
see
determination
ought generally
torture
Boumediene,
also
Second, emphasizes the the Government in extradition of timeliness importance immigration. Delay our rela impede can
proceedings. Pointing to “obvious distinc- several may nations and tionships requesting with and extradi- immigration tions” between moot some cases to become even cause tion, judicial argues the Government This is a of limitations run out. statutes determina- competence to review torture concern, that, as in other one legitimate immigration in does not proceedings tions important, is in which timeliness cases in competence in fact indicate a similar expe implementing address by courts can the particular, extradition context. to do requested so where procedures dited trea- argues Government that extradition the avail appropriate. Given and where negotiated foreign state ties are “with le ability expedition, the Government’s norms,” meeting rights partners human cannot out interest timeliness gitimate relationship “an with a ongoing and that habeas relief if weigh right Trinidad’s torture, foreign creates incentives to specific his extradition would result state See Miro contrary therefore be to law. rights meet human commitments extra- nescu, F.3d at observation, situations.” Given this dition willing accept I am that torture less
Third, questions Government in the immi- likely in the extradition than whether an ability of courts determine assumption, context. gration But likely is more than not to be individual explains: strongly bearing showing tortured. The Government while on make in the face of a judges that a detainee must contemplate how It is difficult reliably prediction, FARR would make such Act governmental declaration communicate with lacking ability to majority such compliance as the one government weigh or to foreign complete requires, justify does not dis- there, including the bilateral situation authority with of all re- placement States, with relationship the United Act to substantive FARR enforce- gard comparable resources and expertise ment in a habeas case. Department of State. those of also seeks to Finally, Government determi judges routinely But review such distinguish immigration cases based on context, immigration In the nations. foreign policy implications extradi- that an frequently courts review claims explains The Government un- tion. individual, removed, likely if to be tor immigration proceedings, like extradition tured and therefore is entitled to withhold of a request foreign commences deferral of under CAT
ing or removal state, which commits substantial resources See, e.g., Delgado FARR Act. v. Hold proceeding. immigra- to the And unlike Cir.2011) (9th (en er, 648 F.3d obligations extradition proceedings, tion banc); INS, Al-Saker v. is, as the reciprocal: just are United Cir.2001). (9th adjudication agreed to extradite those who States these claims sometimes involves as committed crimes in certain coun- have diplomatic sessment assurances tries, depend we those countries to negotiated kind that also extra have committed extradite individuals who Gen., Att’y See ditions. Khouzam If our crimes here. fail to fulfill extra- we (3d Cir.2008). is no reason F.3d 235 There when obligations, it is we dition suddenly *45 to think courts would become extradition, countries will request other reviewing in torture deter competent less their simply they obligations. were fail to fulfill minations because made Cir.1979) (‘We (9th too, concerns, legitimate and less are are inclined to These are they largely But concerns review when individual significant. liberty withhold the United States relevant whether ... is implicated.”). likely to to extradite an individual ought considerations, all Given these I would that, torture, ratifying in a decision face a structure such as proceeding this Act, Congress passing and the FARR CAT one to minimize the on the burden State They do not the already made. concern has protect legitimate Department, its inter the difficulty or nature of determination affairs, conducting foreign est in to reveal likely. torture is This determina-
whether diplomatic only information even to courts the regardless is the same tion whether protected when and not essential when instigated has a government States United doctrines, applicable otherwise and to de a foreign government removal or person’s competence that fer to its in arena. We requested it. highly deferential, apply should therefore a end, the In the Government has inquiry principle limited to CAT claims in way in single which the actual identified context, the extradition even more defer likely a person determination of whether is in immigration ential than context. fundamentally tortured differs in the words, most, other would we reverse the extradition context from that in the immi- of the “only decision State if alone gration context—let differs in such is so compelling evidence that no rea uniformly in- way that would make courts sonable fact finder have failed could to find in in reviewing such determinations ept requisite likelihood of torture.” Lanza uniformly although the extradition context (9th Ashcroft, v. 389 F.3d Cir. competent immigration is where removal 2004) (quoting Singh Ashcroft, v. 351 F.3d at issue. (9th Cir.2003)). The detainee sure, Department To be the State has would demonstrating bear burden of diplomatic tools experience, expertise, credible, strong, through specific evi is for that that courts lack. It this reason likely not, torture dence that is more than here, suggest that our review even more no and that reasonable factfinder could immigration our review in the con- than If, if, find otherwise. such a text, ought But highly to be deferential. made, case prima facie is must the Secre State ad- Department’s comparative evidence, tary submit should she so choose vantage ascertaining in likelihood and in camera where demon appropriate, torture, foreign and in with negotiating strating basis for her determination governments against to ensure torture is torture not more than not. cases, not mean particular does that courts premature spell It ease to this out ought Department’s not ever review the applicable any greater standards decisions ensure Executive deten- that, detail, given as I stated at the out- law, is in tion accordance with the which set, do not we even know whether the majority pow- what holds. ‘Whatever procedural process require- minimal due er the United Constitution States envisions adopted majority ment has been in its exchanges Executive case, met. I can observe that ..., assuredly other nations it most envi- very strong showing Trinidad has made a sions role for all three when branches were tortured. But his co-defendants individual liberties are stake.” Hamdi also Rumsfeld, record demonstrates Khouzam, 2633; 250; judicial system recognized, so Philippine see 549 F.3d at Decker, prosecutions States v. 738 and that co-defen- United *46 jurisdiction to decide that we have agree not Under proceed. did therefore dants circumstances, corpus petition. have y Trinidad would Trinidad Garcia’s those credible, specific and I with the strong, disagree curiam at 955-57. provide Per if ex- however, would be tortured that he opinion, regarding evidence majority co- though the torture of his tradited even scope of our review. would direct the district court
while rounding for that proceedings consistent ble to do so ticularly defendants maintain the inquiry is not must find international legitimate mechanism end would affairs and beas review in But the cute Executive because doubt our role dence than of State in district court for the der detention. I concur in the Habeas powers preventing my approach requisite them the record addressing easy. review I judiciary cannot abandon its purpose, extradition, ways concerns. corpus and individual have to that the conducting foreign separation legally made it for preventing can prerogative interests are [*] Rather, regard declaration unlawful detention preserving suggest implicate majority’s and so I doubt that as it stands is the executive branch’s has asserting fulfilling in the provide majority requires. [*] impossible purpose and avoid I believe it is where case. The limited government long unlawful executive with this above powers negotiations liberty. Where Philippines. [*] serious implicated, ha- remand any more evi- our been possible, it states. provided, affairs, par- responsibly would both to conduct separation abdicating Secretary obligation concerns. adequate opinion. foreign a vital prose- to the possi- sur- role un- we If I I would be in Act of 1998 vention Per curiam at 957. interest: for fully vindicated that Trinidad Garcia’s pines, torture” involuntary try Trinidad has are her “the or treaties of the United our traditee Foreign Affairs expel, ger § (congressional U.S.C. § Thus, 2241(c)(3), 2242(a) meaningful believing in which there are substantial obligations made a non-frivolous claim that substantial CAT, statutory policy merely in violation of FARRA extradite, § 1231. Because Trinidad Garcia corpus majority being subjected Against I if y ... and thus disagree unequivocally Garcia’s he is extradited return of of the United States danger (FARRA), he has stated a possesses y review. claim in which he is entitled about under grounds Reform and legislation Torture if the believes person or otherwise regulatory Secretary comply in violation of the “laws with the liberty any person Article 3 of the Con- I process. Secretary being 8 U.S.C. States,” a narrow believe, however, liberty interest is would be (CAT)), states that that under the interest will be Restructuring to the torture[.]” believing implementing majority subjected to obligations.” cognizable effect the to a coun- 28 U.S.C. § “[a]n y of State FARRA grounds § in 2242(a) liberty not to Philip- “there it with dan- [he] ex-
augments the record with a declaration PREGERSON, Judge, Circuit Secretary offi- “signed by the or a senior dissenting part, concurring part and Secretary” properly designated by cial joins: with whom W. FLETCHER complied attesting that the regulatory obligations. Per cu- with her agree majority’s holding with the in all Supreme precedent aspects, parts Specifically, I riam at 957. Court except 4-6. 2681-761, (1998) (codi- Restructuring Stat. 2682-822-823 Foreign Reform Affairs (1991)). § a note to 8 U.S.C. fied as Act of Pub. L. No.
1003 counsels otherwise: where we have treaty found the provisions, certain includ- jurisdiction, our review ing consists of that “the terms of CAT were not af- fected, authority “some to assess the sufficiency of except that the grounds ‘substantial evidence))]” the Government’s Boume believing’ for basis was clarified to mean ‘if Bush, 723, 786, v. diene it is more than not that he would be ” (2008). Holder, L.Ed.2d 41 Because tortured.’ Edu 624 F.3d (9th Cir.2010) a such bare bones declaration from “the (citing 136 Cong. Rec. a S17486, (1990)). or senior official properly des S17492 Congress imple- ignated by the Secretary,” per curiam at mented our obligations CAT in the FAR- 957, does not allow us to “assess the suffi stating clearly RA that it is “the policy of ciency evidence,” of the Government’s the United States expel, extradite, not to Boumediene, otherwise effect the involuntary return join I cannot majority opinion any person to a country which there and therefore dissent. are grounds substantial believing for person would be in danger of being sub- stakes this case could not be torture,” jected 2242(a). § FARRA higher: y Trinidad Garcia alleged that his extra- right to [T]he be free from official tor- dition to the Philippines violates FARRA universal,
ture is fundamental and a CAT, and and presented compelling evi- right deserving highest stature dence that “there are grounds substantial law, under jus international a norm of believing would danger [he] be in cogens. The crack of whip, being subjected to torture” if the United screw, clamp of the thumb the crush of States transferred him to the Philippines. maiden, and, the iron in these more 2242(a). FARRA Specifically, Trinidad times, efficient modern shock y Garcia presented credible evidence in the prod electric cattle are forms of torture form of affidavits and court documents that the international order will not to- from Philippines revealing that subject lerate. To person a to such Philippine government horrors tortured almost all is to commit one of the most ’ co-accused, of his egregious numerous authorita- violations of the personal se- country tive reports curity detailing Philip- how dignity of a human being. pine law enforcement officials continue to Marcos, Hilao v. Estate torture and abuse suspects. (9th Cir.1994) (quoting Siderman de Blake v. Republic Argentina, 965 F.2d The Philippines sought y Trinidad Gar- (9th Cir.1992)). This international cia’s extradition to stand trial on a charge norm prohibiting torture has adopted been of kidnaping for ransom. Five of Trinidad by 149 countries2 that parties are y Garcia’s co-accused were tortured CAT.3 Article 3 of requires CAT Philippine that a government. The treatment of Party State riot return person co-accused, another two of these Gerilla and Villav- State where grounds er, there are “substantial is especially troubling. According to for believing that he danger would be in affidavit, Gerilla’s sworn police officers ab- being subjected to torture.” The United home, ducted him from his blindfolded CAT, signed States him, and the small, Senate ratified room, secluded him in cold 2. 1465 U.N.T.S. 85. agreement unanimous of the U.N. General 39/46, Assembly, G.A. Res. 39 U.N. GAOR Supp. Against 3. United No. 51 at Nations Convention U.N. Doc. Torture A/RES/39/708 Cruel, (1984), and Other Forms of Inhuman or De- entered into force as to the United Punishment, grading adopted by Treatment or signed Apr. States Nov. Philippine at the hands When accused suffered him and water. denied food officials, y nu- presented Trinidad Garcia officials’ Philippine denied the
Gerilla
demonstrat-
him,
supporting documents
police
officers merous
against
charges
head,
pervasiveness
Gerilla’s
of torture
plastic bag
ing
over
placed
*48
suffocate;
re-
The
Department’s
to
the officers
State
causing
Philippines.
him
minute. The
re-
bag
country report
Philippines
at the last
for the
moved the
—a
soft
poured
by
Secretary’s own
Philippine police officers
the
port prepared
nose, making it hard
security
down Gerilla’s
agency states,
drinks
“members
—
breathe,
him to
and then forced
have
police
alleged
for him to
to
and
were
forces
substance, causing him to
foul-tasting
eat a
tortured
routinely abused
sometimes
and
to maintain
As Gerilla continued
According
vomit.
to
and detainees.”
suspects
innocence, the
affixed electric
officers
country
his
re-
Amnesty International’s 2003
thighs, shocking
to Gerilla’s inner
wires
Philippines,
persists.”
the
“torture
port for
forced him
electricity,
and then
him
“Techniques of torture documented
by shov-
temperatures
extreme
to endure
include electro-
Amnesty International
Eventually
his
Gerilla
ing ice down
shirt.
suffo-
bags
the use of
to
plastic
shocks and
him after
charges against
to the
confessed
that “a
report
detainees.” The
finds
cate
rape
and
officers threatened to abduct
impunity
de
climate of
continuing
facto
judge found
A
trial
Philippine
his sisters.
of torture
the perpetrators
that shields
credible,
of
deemed
account
torture
grave
rights
human
violations”
and other
extrajudicial confession invalid
Gerilla’s
Philippines.
in the
exists
inadmissible,
all
and dismissed
and
his
y
presented
Garcia
CAT
Trinidad
charges against him.
But de-
Secretary
of State.
claim to
an affi-
y
presented
Trinidad Garcia also
evidence, Secretary of State
spite this
co-accused, Villaver,
from another
davit
to
Rice
a warrant
Condoleeza
authorized
torture, in-
similarly
physical
who
endured
y
Trinidad Garcia for extradi-
surrender
cluding suffocation and electric shocks.
im-
September
2008. Trinidad
tion on
any
Villaver refused to confess
When
stay
the extra-
mediately
request
filed
crime,
him to
Philippine
took
officers
of a habeas
resolution
pending
dition
restraints,
paddy,
remote rice
removed his
court
which the district
corpus petition,
him,
your
“Do
to save
something
told
and
24, 2009, Trinidad
On
granted.
November
life,
up
you.”
it is all
When Villaver
corpus
of
under
filed a writ
habeas
run,
shot him
attempted
the officers
being
he was
alleging that
U.S.C.
another bullet
twice
back and
extradition
unlawfully
pending
detained
taking
his chin.
Villaver
grazed
Instead
Secretary
surrender
under the
of State’s
him into their
hospital,
put
to a
officers
procedural
because he
denied
warrant
was
began
by holding
him
jeep
suffocating
extradition
process, and because his
due
over
piece
plastic
with cloth
Villaver’s
law,
deny
violate CAT and federal
will
lost bodi-
suffocating,
nose. While
Villaver
process rights.
him his substantive due
control, causing
defecate. Even-
ly
him to
Secretary
provide
State refused
tually,
pressure
the officer
released
for it
court with
evidence
the district
nose
The officers
and mouth.
Villaver’s
to sur-
Secretary’s
decision
to review
to a
where doctors
hospital
took Villaver
y
Trinidad
for extradition.
render
Garcia
Villaver
performed emergency surgery.
compelling
Trinidad Garcia’s
y
Because of
survived.
the likelihood
unrebutted evidence of
torture,
Trinidad
granted
the district court
specific
In addition to
and credible
these
petition.
y
y
Garcia’s co-
Garcia’s
accounts of torture Trinidad
claim
reviewing
interpretation’
Trinidad’s habeas
relevant
law.”
Id.
added)
submitted,
(emphasis
4. cannot be procedural read to In both Munaf impose substantive standards holding underlying used to deten- reasoning in Boume- terrorism, prevent proper tion to acts of diene. Both cases were decided the same political deference must be accorded to year, high- arguably 2008. Nor are the stakes branches____ charged daily Officials Boumediene, than er in which involved Munaf operational responsibility security for our significant security national The matters. Su- a consider discourse on preme noted in that even Court Boumediene history Corpus of the Habeas Act circumstances, high in such stakes it is criti- and like matters be far removed from the properly adjudicate cal for the courts to habe- concerns____ urgent present, Se- Nation's as claims: upon curity depends sophisticated intelli- seeking not were petitioners (2008), Rule of Non- and the L.Ed.2d Munaf they if were released release: performing simple our us from prevent Inquiry into the be arrested duty “inquir[ing] they would Iraq, constitutional Secretary’s decision.” forces, they were very event Iraqi substance curiam at 957. Per Id. at seeking to avoid. Thus, petitioners sought 2207. to cite Munaf majority appears Munaf they country where to another “transfer” executive decision that an proposition Id. torture. they suffer believed would of commit- accused detainee surrender relief requested that this noted The Court country should be crimes another
ting
claim:
proper
present
did not
executive.
solely by
But
addressed
nothing
seek is
petitioners
from
“the ‘release’
readily distinguishable
Munaf
commanding our forces
The facts of
are
an order
present case.
less than
Munaf
was clear
Supreme
Iraq.”
and the
Court
Id.
unique
smuggle them out
was circumscribed
holding
its
that case. See
circumstances
contrast,
y
Trinidad Garcia is
(“[I]n
present
1007 of removal or- our review to the petitions majority for review extent be- eating ders”)- lieves it does. Non-Inquiry The Rule of similarly does Moreover, Supreme explicitly Court not limit our scope review to such “expressed] no stated Munaf superficial majority level suggests. as the on whether relief opinion” was Non-Inquiry The Rule of is a rule the petitioner if a asserted a claim available imposed courts on themselves to preserve that his extradition violate the Sec- would “Executive discretion.” Emami v. United
retary’s obligations under FARRA. 553
Court,
834
States Dist.
F.2d
(“Nei-
703 & n.
1010
understanding articulated
light of the
extradition
review in the
of habeas
ries
Agents
Named
context);
History
v.
Parry,
T.
The Lost
Bivens
Six Unknown
John
388,
Litigation,
Narcotics,
Extradition
International
403 U.S.
Federal Bureau of
(same).
(2002)
93,
Int’l L.
97
1999,
(1971),
J.
43 Va.
29 L.Ed.2d
91 S.Ct.
provides jurisdiction
itself
the Constitution
authority support-
absolutely no
There’s
claims, it was rela
to raise constitutional
review is
claim that habeas
ing Trinidad’s
straightforward
for
tively
challenge the destination
available to
Munaf
jurisdiction
statutory
to find
habeas
extradited based Court
is to be
which a detainee
raising constitutional
as a vehicle for
treated there. As
might
how he
685-88,
facing
Munaf, 553
recently,
claims. See
U.S.
“[t]hose
noted
D.C. Circuit
2207;
have not been able
traditionally
Martin v. War
extradition
128 S.Ct.
see also
(11th Cir.1993) (ex
block transfer
824,
habeas claims to
den,
to maintain
receiving
coun-
conditions
that,
based on
the circumscribed
despite
plaining
Rather,
what has been
applying
try.
in the extradition
judicial
nature of
review
non-inquiry,
courts
known as the rule
context,
review still allows consid
habeas
into
inquire
have refused to
historically
“the constraints of
Constitu
eration of
might
an extradited individual
conditions
tion”).
“con
true that the Court has
It’s
v.
receiving country.” Omar
face in the
of a federal
broadly
power
strued]
(D.C.Cir.2011).
McHugh, 646 F.3d
constitutional
court
to consider
district
identify
single
a
case
doesn’t
Trinidad
for writ of
presented
petition
claims
a
challenge to
that an extraditee’s
holding
Stone,
478 n.
428 U.S. at
corpus.”
habeas
might
he
receive at his des-
the treatment
Trinidad’s
1013 statutory have no regulatory challenge. because extraditees free- That That’s their floating right challenge distinguishes extradition jurisdictional issue in this petition. If an extraditee isn’t and, via habeas already from as case I’ve Valentine — issues deemed challenging one of the few discussed, Munaf, from too. p. See 1010 Congress to be for by suitable supra. jurisdic- lacks a federal court
inspection, Judge acknowledges, As Tallman Tall- challenge that raises no tion over —and 8, man dissent at n. his approach 969 problem. constitutional produces a circuit even as split, he relies that, right Tallman is in Judge quite selectively on other circuits to bolster his v. United States ex rel. Nei Valentine portrays position conclusion. He his as decker, 299 U.S. 57 81 L.Ed. consistent with the First and Second Cir- (1936), Supreme “expressed 5 Court in finding cuits FARR Act doesn’t reviewing ... no hesitation ex- [the “bar habeas Id. at (citing review.” pow claims under its habeas traditees’] Ashcroft, Fort v. Saint F.3d 200- Tallman 964 n. 3. er.” dissent at But (1st Cir.2003); Wang v. Ashcroft, 320 that’s because the extraditees’ Valentine (2d Cir.2003)). F.3d 140-42 But both challenge squarely fell within the second those deciding immigration circuits were category traditional of habeas review of cases, cases; and, not extradition set out above: whether extradition context, extradition there’s no preexisting operating executive branch was under a Meanwhile, “habeas review” to “bar.” treaty authorizing valid the extradition in Judge casually contrary Tallman lists as question. Here’s how Valentine authority the Fourth Circuit’s decision framed the before it: Court issue “The Costner, v. Mironescu then, one question, is the narrow whether (4th Cir.2007), it tossing aside because “thé power respondents surrender Fourth Circuit explicitly disclaimed treaty in this instance is conferred Suspension consideration of the Clause’s Valentine, at itself.” 299 U.S. effect,” But, Tallman at 969 n. as dissent 8. question right 100. That fell explained, Suspension I’ve Clause has spot of sweet traditional extradition habe here, preexist- no effect because there’s no review, light-years away as but it’s from ing habeas review available to Trinidad Judge challenge. Trinidad’s Tallman’s that the FARR or REAL ID might Acts reliance heavy entirely on Valentine “suspend.” leaving no misplaced, support him with So, newfangled theory. for Judge approach his Tallman’s —and approach my colleagues in finding juris Judge fundamentally, More Tallman diction Trinidad’s CAT splits my “cabining criticizes of Trinidad’s claim claim— Circuit, with the Fourth all on the grounds strictly regulatory.” statutory Tall- that the Fourth didn’t Circuit consider the at That’s my man dissent 964 n. 3. provision of a constitutional effect claim— characterization Trinidad’s CAT bearing on our plainly has no case. Not it’s Trinidad’s. In his brief before this only does this create a approach split with court, he “statutory refers to his torture extradition, the Fourth Circuit on it also statutory claim” and the “federal mandate” Circuit, splits with the D.C. which em So, on the question which relies. unlike understanding the Fourth braced Circuit’s authority” “constitutional issue in Valentine, Valentine, ain decision on detainee transfers abroad. (quoting id. Omar, emphasis (citing added See F.3d Mirones cu, 674-76). Tallman), explicitly here we face an 480 F.3d at of our an exception views demonstrate extradition thoughtful note Circuit, and, Judge Grif on the transfers
colleague
general prohibition
D.C.
fith,
confronted
that have
on similar issues
accordingly, an
to the reviewa-
exception
Kiyemba
Obama
Starting
his court.
bility
petition.
such
via habeas
transfers
*57
(D.C.Cir.
II),
(Kiyemba
561 F.3d
at 1051.
Id.
2009),
in the
Judge Griffith has asserted
recently,
concurred
Judge
Most
Griffith
jurisdic
“that
context of detainee transfers
Omar,
he “dis-
in
where
petitioners’
against
claims
tion to hear
majority’s suggestion
with the
agree[d]
his
transfer —a fundamental and
unlawful
jurisdiction to consider
that we have no
protection
grounded in
toric habeas
—is
claim”
“the Con-
transferee’s]
because
[the
(Griffith,
523-34
Id. at
Constitution.”
guarantee
corpus
habeas
enti-
stitution’s
J.,
in
dissenting
part). What concerned
him to assert
claim that his deten-
tles
very-
was
Judge
Kiyemba
Griffith
II
is
Id. at 25
tion or transfer
unlawful.”
court: He
different from what’s before our
(Griffith, J., concurring
judgment).
transfer of the
whether
addressed
Judge Griffith thus
constitutional ha-
finds
“will
in continued deten
prisoners
result
claims. But
jurisdiction
beas
hear CAT
behalf of
States
a
tion on
the United
ha-
his assertion
there’s constitutional
Id.
where the
does not run.”
place
writ
jurisdiction
“any
claim” of unlaw-
beas
Judge Griffith’s concern
525.
ful detention or transfer suffers from
control over
States would maintain
United
analysis
flaw that
same
afflicts the
review
evading judicial
prisoners
while
Thomas and
here: It’s too
Judges
Tallman
case,
apply to
where the Unit
doesn’t
our
case law
Trinidad and broad. Centuries
extradition
ed States seeks
extradite
all
over him. Trinidad
out the
of chal-
relinquish
specific types
control
have carved
indeed, his moti
allege
doesn’t
lenges
may
an extraditee
raise on habeas
otherwise—
that he’ll
vating
precisely
concern
say
To
an extraditee can find
review.
longer
once
in Ameri
mistreated
he’s no
jurisdiction
the federal habeas statute to
custody and
in Filipino
can
instead
hands.
“any
depar-
raise
claim”
be a radical
would
those
of unbroken
ture from
centuries
his
Judge
expanded
Griffith
earlier
with his
in Abdah
position
precedent.
dissental
Obama,
(D.C.Cir.2011).
To that en that practice. They simply fail to take tirely convincing I answers. need not add that teaching logical to its conclusion. Tallman’s masterful discussion of therefore dissent as to superior judi how the executive is Trinidad’s to the CAT claim, ciary assessing detainee’s treat and would order the district court to foreign country ment in a in weighing dismiss that claim for jurisdiction. lack of *58 foreign policy implications pregnant every decision to extradite or not to extra
dite. Tallman dissent 978-79. Nor need I do more than echo Thomas’s
conclusion that “the surrender of a person foreign government to a is within the Ex powers ecutive’s foreign conduct affairs and the executive is Veil situated to con America, UNITED STATES ” sider sensitive foreign policy issues.’ Plaintiff-Appellee, cone, Thomas at 961 (quoting Munaf, 553 2207). Nor are BERRY, Ethan Allen Defendant- these new explained answers. We almost Appellant. that, century half a ago Supreme even as Court decisions broadened the scope of No. 10-10361. convictions, review of criminal United Appeals, States Court of believe such “[w]e to be inapposite case[s] Ninth Circuit. in the field of international extradition.” Marshal, Merino v. U.S. Argued July and Submitted 2011. (9th Cir.1963); Semmelman, see Federal Filed June Courts, supra, at (providing policy 1229-36 leaving reasons for extradition decisions to branch).
the executive International rela since, tions have become no less delicate we, judges, as federal have become no better diplomacy.
I’m a firm believer in robust federal
See,
habeas review where
appropriate.
it’s
(9th
Roe,
e.g., Gantt v.
(9th Cir.2004). But the federal habeas statute is not an open-ended invitation for judges join federal party whenever they’re invited someone who happens to (d). “in custody.” 2241(c), 28 U.S.C. Petitioning Writ, for the Great filing like lawsuits,
most requires cognizable cause