Petru MIRONESCU, Petitioner-Appellee, v. Harlon E. COSTNER, United States Marshal for the Middle District of North Carolina, Respondent-Appellant, and William Schatzman, Sheriff of Forsyth County, Respondent.
No. 06-6457
United States Court of Appeals, Fourth Circuit
Argued Nov. 28, 2006. Decided March 22, 2007.
480 F.3d 664
Before WILKINS, Chief Judge, WIDENER, Circuit Judge, and DAVID A. FABER, Chief United States District Judge for the Southern District of West Virginia, sitting by designation.
Vacated and remanded by published opinion. Chief Judge WILKINS wrote the opinion, in which Judge WIDENER and Judge FABER joined.
OPINION
WILKINS, Chief Judge.
Harlon E. Costner, United States Marshal for the Middle District of North Carolina (“the Government“), appeals a district court order denying a motion to dismiss Petru Mironescu‘s habeas corpus petition, see
I.
A.
Before discussing the facts specifically pertaining to this case, we begin with some background regarding the extradition process and the law governing it.
1. Extradition Procedure
Extradition is a process by which a fugitive may be returned to another country to face criminal charges. The process begins with the submission by a foreign government of an extradition request to the United States Department of State. See Restatement (Third) of Foreign Relations Law § 478 cmt. a (1987). The State Department then determines whether the request is covered by a treaty. See id. If it is, the matter is referred to the Justice Department for screening. See id. Assuming that the Justice Department deems the request to be valid, it is referred to the United States Attorney for the district in which the fugitive is believed to be located. See id.
At that point, the United States Attorney files a complaint in the district court, seeking certification of the fugitive‘s extraditability and a warrant for his arrest. See
Following certification by the district court, the Secretary must decide whether to extradite the fugitive. See
2. The CAT and the FARR Act
A central issue in this appeal is whether the Secretary‘s discretion in extradition matters has been constrained by Article 3 of the United Nations Convention Against Torture (CAT), see United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted Dec. 10, 1984, art. 3, 23 I.L.M. 1027, 1028, 1465 U.N.T.S. 85, 114, and § 2242 of the Foreign Affairs Reform and Restructuring Act (the FARR Act) of 1998, see Pub.L. No. 105-277, div. G, 112 Stat. 2681-822 (codified at
- No State Party shall expel, return (“refouler“) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
- For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.
23 I.L.M. at 1028.1 President Reagan signed the CAT on April 18, 1988. The Senate adopted a resolution of advice and consent to the Convention in 1990 but conditioned that consent on its declaration that “the provisions of Articles 1 through 16 of the Convention are not self-executing.” 136 Cong. Rec. S17486-01, S17492 (1990). And, the President ratified the CAT for the United States subject to this same declaration. See Ogbudimkpa v. Ashcroft, 342 F.3d 207, 211–12 & n. 11 (3d Cir. 2003) (recounting ratification history of the CAT).
In light of the Senate‘s determination that the CAT was not self-executing, Congress enacted the FARR Act to implement the treaty. The FARR Act provides that
“[i]t shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.” Section 2242(a). It also directs heads of the appropriate agencies to “prescribe regulations to implement the obligations of the United States under Article 3.” Section 2242(b).
The applicable State Department regulations identify the Secretary as “the U.S. official responsible for determining whether to surrender a fugitive to a foreign country by means of extradition.”
B.
Having briefly described the legal landscape in which this appeal arises, we now turn to the facts.
Mironescu was prosecuted and convicted in absentia in Romania for various crimes relating to automobile theft. He was sentenced to an aggregate term of four years imprisonment.
Romania submitted a request to the United States for Mironescu‘s extradition under the applicable treaty between the two countries. After Mironescu was arrested in the United States in 2003, a magistrate judge conducted an extradition hearing, at which Mironescu argued that he had not committed the charged crimes and that the CAT barred his extradition. The judge determined that he lacked authority during an initial extradition hearing to address the CAT allegations and that there was probable cause to believe that Mironescu had committed the charged offenses. See In re Extradition of Mironescu, 296 F.Supp.2d 632, 637-38 (M.D.N.C. 2003). The judge therefore certified Mironescu‘s extraditability to the Secretary. See Id. at 638.
Mironescu subsequently petitioned the district court for habeas corpus, contending, inter alia, that extradition would violate his rights under the CAT and the FARR Act. The district court ruled that the certification for extradition was valid, but that Mironescu‘s claims under the CAT and the FARR Act were not ripe for adjudication. See Mironescu v. Costner, 345 F.Supp.2d 538, 540–41 (M.D.N.C. 2004). The court ruled that Mironescu could bring his humanitarian concerns to the Secretary‘s attention and that the Secretary was required to notify Mironescu of the issuance of any surrender warrant in order to allow him adequate time to consider whether to pursue habeas review.2 See Id. at 541. The court therefore denied
Upon receiving notification that a warrant to extradite him had been signed by the Secretary, Mironescu filed the present habeas petition.3 Mironescu asserts that the Secretary has a mandatory duty under the CAT and FARR Act not to extradite a fugitive who is likely to be tortured after his surrender. He further alleges that he presented substantial evidence to the Secretary that he would be tortured if extradited to Romania4 and that the Secretary‘s decision to extradite him in the face of such evidence was arbitrary and capricious. Mironescu submits that the district court possesses jurisdiction over his habeas petition because he alleges that he is “in custody in violation of the Constitution or laws or treaties of the United States.”
The Government moved to dismiss the petition. While conceding that the CAT, the FARR Act, and the implementing State Department regulations require the Secretary to deny extradition if Mironescu would likely face torture in Romania, the Government nevertheless asserted that, based on the common law “rule of non-inquiry,” as well as the language of the FARR Act and the APA, the district court lacked authority to review the Secretary‘s extradition decision.
The district court denied the motion to dismiss, concluding that it possessed juris
II.
A.
The Government maintains that the district court erred in denying its motion to dismiss Mironescu‘s petition because claims that an extradition would violate the CAT or the FARR Act may not be raised on habeas. Specifically, the Government argues that the scope of habeas review in extradition cases is limited and the “rule of non-inquiry” bars such claims.
“[U]nder what is called the ‘rule of non-inquiry’ in extradition law, courts in this
A writ of habeas corpus in a case of extradition cannot perform the office of a writ of error. If the commissioner has jurisdiction of the subject-matter and of the person of the accused, and the offense charged is within the terms of a treaty of extradition, and the commissioner, in arriving at a decision to hold the accused has before him competent legal evidence on which to exercise his judgment as to whether the facts are sufficient to establish the criminality of the accused for the purposes of extradition, such decision of the commissioner cannot be reviewed by a circuit court or by this court, on habeas corpus, either originally or by appeal.
Oteiza v. Jacobus, 136 U.S. 330, 334, 10 S.Ct. 1031, 34 L.Ed. 464 (1890). The rule of non-inquiry thus originally was born “by implication,” i.e., by virtue of the fact that the treatment a fugitive would likely receive once he was extradited was not listed by the Court as a factor that is properly considered on habeas review of a decision to grant extradition. Semmelman, 76 Cornell L.Rev. at 1211–12. The rule also has some roots in Neely v. Henkel, 180 U.S. 109, 21 S.Ct. 302, 45 L.Ed. 448 (1901). See Yapp v. Reno, 26 F.3d 1562, 1572 (11th Cir. 1994) (Carnes, Circuit Judge, dissenting). There, the petitioner had filed a writ of habeas corpus challenging extradition to Cuba on the ground that the statute providing the basis for his extradition was unconstitutional, in that it did not secure for him all of the rights he would have under the Constitution if tried in this country. See Neely, 180 U.S. at 122. In rejecting that claim, the Court stated:
When an American citizen commits a crime in a foreign country, he cannot complain if required to submit to such modes of trial and to such punishment as the laws of that country may prescribe for its own people, unless a different mode be provided for by treaty stipulations between that country and the United States.
Id. at 123. Lastly, Glucksman v. Henkel, 221 U.S. 508, 31 S.Ct. 704, 55 L.Ed. 830 (1911), provided the final piece of the puzzle. See United States v. Howard (In re Extradition of Howard), 996 F.2d 1320, 1329 (1st Cir. 1993). There, in the context of analyzing the petitioner‘s claim that there was insufficient evidence to warrant his extradition, the Court stated,
[I]f there is presented, even in somewhat untechnical form according to our ideas, such reasonable ground to sup-
pose [the relator] guilty as to make it proper that he should be tried, good faith to the demanding government requires his surrender. We are bound by the existence of an extradition treaty to assume that the trial will be fair.
Glucksman, 221 U.S. at 512 (citations omitted).
We conclude that the rule of non-inquiry does not warrant a holding that the district court lacked jurisdiction to review the Secretary‘s extradition decision on habeas. Most relevant to our conclusion is our decision in Plaster v. United States, 720 F.2d 340 (4th Cir. 1983). There, a United States Attorney filed a complaint in district court seeking certification of Plaster‘s extraditability. See Plaster, 720 F.2d at 345. Attached to the complaint were an affidavit from the State Department certifying West Germany‘s extradition request, pursuant to an extradition treaty between the two countries, as well as various documents establishing Plaster‘s involvement in a 1965 murder. See Id. at 345-46. After the court certified Plaster‘s extraditability, the district court granted a writ of habeas corpus, ruling that extradition would infringe Plaster‘s due process rights because it would violate the terms of an immunity agreement between him and the United States government. See Id. at 346.6
We affirmed, holding that the district court correctly ruled that it had jurisdiction to enjoin Plaster‘s extradition when the court determined that his detention was unlawful. See Id. at 347-51. We recognized that the scope of habeas review of international extradition proceedings has been traditionally described in narrow terms: “whether the magistrate had jurisdiction, whether the offence charged is within the treaty and ... whether there was any evidence warranting the finding
that there was reasonable ground to believe the accused guilty.” Id. at 347-48 (internal quotation marks omitted). We nevertheless observed that none of the cases describing the review in those terms involved a claim that extradition would be unconstitutional. See Id. at 348. We explained that the United States must act within the confines of the Constitution when carrying out its treaty obligations, and we noted that “a claim of unconstitutional governmental conduct is within the scope of habeas corpus review mandated by both the Constitution itself and the applicable federal statute.” Id. (citation omitted); see In re Burt, 737 F.2d 1477, 1482-85 (7th Cir. 1984) (holding that district court was correct to consider procedural due process claim as part of its habeas corpus review in an extradition challenge).
In holding that the district court possessed jurisdiction to review the constitutionality of the extradition, we specifically rejected an argument by the government that the district court lacked jurisdiction because “the extradition power of the United States is sui generis and commits the consideration of alleged constitutional violations solely to the Secretary of State and the President.” Plaster, 720 F.2d at 349. We noted that although the Executive has unlimited discretion to refuse to extradite a fugitive, it lacks the discretion to extradite a fugitive when extradition would violate his constitutional rights. See id. Additionally, we explained that “unquestionably, it is the province of the judiciary to adjudicate claims that governmental conduct is in violation of the Constitution.” id.
Our reasoning in Plaster is controlling here. The Supreme Court cases describ-
likely to face torture in the requesting country), vacated as moot, 389 F.3d 1307 (9th Cir. 2004) (en banc).9 And, the habeas writ indisputably extends to prisoners being held “in violation of the Constitution or laws or treaties of the United States,”
Neither Plaster, nor the application of the Plaster rule here, contradicts Neely. Certainly, prior to the CAT and the FARR Act, the conclusion of the Supreme Court that individuals being extradited are not constitutionally entitled to any particular treatment abroad rendered evidence of the treatment they were likely to receive irrelevant in the context of a claim on habeas that their detention contravened federal law. See Peroff, 542 F.2d at 1249. It stood to reason that, absent any federal right to particular treatment in the requesting country, any refusal of extradition based on the treatment a fugitive was likely to receive would have to be made by the Executive. See Kin-Hong, 110 F.3d at 109 (“The Secretary may ... decline to surrender the relator [based] on ... humanitarian ... considerations.“). However, the FARR Act now has given petitioners the foothold that was lacking when the Court decided Neely.
In arguing that the rule of non-inquiry bars habeas review here, the Government relies on decisions of other circuits that have expanded the justifications for the
Some courts have also noted that the rule of non-inquiry is warranted because courts are “ill-advised as a matter of separation of powers and foreign relations policy to make inquiries into and pronouncements about the workings of foreign countries’ justice systems.” Smyth, 61 F.3d at 714. They have concluded that “interests of international comity are ill-served by requiring a foreign nation ... to satisfy a United States district judge concerning the fairness of its laws and the manner in which they are enforced.” Ahmad v. Wigen, 910 F.2d 1063, 1067 (2d Cir. 1990); see Semmelman, 76 Cornell L.Rev. at 1230-31 (stating that a judicial decision to enjoin extradition for humanitarian reasons “could lead to a retaliatory refusal to extradite” and “potentially affect the relations” between the countries).10
Relying on these cases, the Government maintains that regardless of the fact that the Secretary‘s extradition of Mironescu would violate federal law if extradition will likely result in Mironescu‘s torture, the rule of non-inquiry should preclude habeas review here because courts are ill-equipped to “second-guess[] the expert opinion of the State Department” regarding whether torture is likely to occur in Romania. Br. for the Appellants at 20. We do not agree. It is important to emphasize that a habeas court reviewing CAT or FARR Act claims would not be called upon to consider whether extradition would further our foreign policy interests or, if so, how much to weigh those interests. Rather, it would be required to answer only the straightforward question of whether a fugitive would likely face torture in the requesting country. American courts routinely answer similar questions, including in asylum proceedings and in applying the political offense exception, under which the political nature of and motivation for a crime may negate extraditabil-
The Government also maintains that concerns regarding international comity—especially the possibility of delays that habeas review could cause—warrant application of the rule of non-inquiry. That habeas review may delay extradition, or preclude it altogether, cannot negate Mironescu‘s right to obtain habeas relief if he is being detained in violation of federal law, just as such considerations did not negate Plaster‘s right to assert his constitutional claim. See Plaster, 720 F.2d at 349. Indeed, Plaster specifically recognized that habeas proceedings regarding claims that extradition would be unconstitutional “will often involve delicate questions of international diplomacy.” Id. Moreover, one could well argue that the damage done to our foreign relations with another country is likely to be less when a court, as opposed to the Secretary, makes the decision that extradition must be denied. See Quinn v. Robinson, 783 F.2d 776, 789 (9th Cir. 1986); John Quigley, The Rule of Non-Inquiry and Human Rights Treaties, 45 Cath. U.L.Rev. 1213, 1240-41 (1996).
Finally, the Government suggests that habeas review concerning the treatment a fugitive would likely receive in the requesting country might compromise the confidentiality of certain sensitive communications between the Executive and a foreign government. However, we have no reason to doubt that district courts can adequately protect the confidentiality of such communications by considering them in camera, as the district court intends to do here. See Quinn, 783 F.2d at 788. For all of these reasons, we hold that, in light of the Secretary‘s conceded obligation under the FARR Act not to extradite Mironescu if he is likely to face torture, the rule of non-inquiry does not bar habeas review of the Secretary‘s extradition decision. But see Cornejo-Barreto II, 379 F.3d at 1088.
B.
Despite our holding regarding the rule of non-inquiry, we nevertheless conclude that the district court erred in denying the Government‘s motion to dismiss on the basis that § 2242(d) of the FARR Act bars consideration of Mironescu‘s petition.
In interpreting a statute, we must first “determine whether the language at issue has a plain and unambiguous meaning.” Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). Our determination of whether a statute is ambiguous is guided “by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Id. at 341. If the language is plain and “the statutory scheme is coherent and consistent,” we need not inquire further. United States v. Ron Pair Enters., 489 U.S. 235, 240-41, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989). In that situation, “the sole function of the courts is to enforce [the statute] according to its terms.” Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 (1917). Importantly, though, “where a provision precluding review is claimed to bar habeas review,” such a provision, to
Section 2242(d) states:
Notwithstanding any other provision of law, and except as provided in the regulations described in subsection (b), nothing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under the Convention or this section, or any other determination made with respect to the application of the policy set forth in subsection (a), except as part of the review of a final order of removal pursuant to section 242 of the Immigration and Nationality Act (
8 U.S.C. § 1252 ).
This language plainly conveys that although courts may consider or review CAT or FARR Act claims as part of their review of a final removal order, they are otherwise precluded from considering or reviewing such claims. As Mironescu presents his claim as part of his challenge to extradition, rather than removal, § 2242(d) clearly precluded the district court from exercising jurisdiction.
In reaching the contrary conclusion, the district court suggested that exercising jurisdiction over Mironescu‘s petition would not be interpreting the FARR Act to “provid[e] any court jurisdiction” to consider the claims insofar as the habeas statute provided the jurisdiction. See J.A. 141 (“The FARR Act states that ‘nothing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under the [CAT].’ It does not specifically preclude habeas jurisdiction.” (citation omitted)); see Saint Fort v. Ashcroft, 329 F.3d 191, 201 (1st Cir. 2003). However, this interpretation of “provid[e] ... jurisdiction” is squarely at odds with the language in § 2242(d) indicating that the FARR Act may “provid[e] ... jurisdiction to consider or review” CAT or FARR Act claims only “as part of the review of a final order of removal.” See Cornejo-Barreto II, 379 F.3d at 1086 (“While § 2242(d) plainly contemplates judicial review of final orders of removal for compliance with the Torture Convention and the FARR Act, it just as plainly does not contemplate judicial review for anything else.“). But see Cornejo-Barreto I, 218 F.3d at 1013 (concluding that “[t]he FARR Act does not preclude judicial review of the Secretary‘s implementation of the Torture Convention” without discussing whether the relevant language from § 2242(d) constitutes such a preclusion).
The district court also concluded that INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), supported its exercise of jurisdiction over Mironescu‘s petition. Cf. Cadet v. Bulger, 377 F.3d 1173, 1182-83 (11th Cir. 2004) (holding that FARR Act did not preclude habeas jurisdiction in immigration context); Singh v. Ashcroft, 351 F.3d 435, 441-42 (9th Cir. 2003) (same); Ogbudimkpa v. Ashcroft, 342 F.3d 207, 216-18 (3d Cir. 2003) (same); Saint Fort, 329 F.3d at 200-02 (same); Wang v. Ashcroft, 320 F.3d 130, 141-43 (2d Cir. 2003) (same).11 In St. Cyr, the respondent pleaded guilty to an aggravated felony in 1996 and became subject to deportation and eligible for a discretionary waiver thereof. See St. Cyr, 533 U.S. at 293, 314-15. The Antiterrorism and Effective Death
The St. Cyr Court concluded that the provisions at issue did not unambiguously repeal habeas jurisdiction in that context. See Id. at 314. The Court reasoned that AEDPA and IIRIRA only expressly provided for the repeal of “judicial review” or “jurisdiction to review” without specifically mentioning habeas corpus. See Id. at 311-14. Citing Heikkila v. Barber, 345 U.S. 229, 73 S.Ct. 603, 97 L.Ed. 972 (1953), the Court observed that “[i]n the immigration context, ‘judicial review’ and ‘habeas corpus’ have historically distinct meanings.” Id. at 311. Heikkila, in turn, explained that “the function of the [habeas] courts has always been limited to the enforcement of due process requirements,” which is quite distinct from “deciding on the whole record whether there is substantial evidence to support administrative findings of fact.” Heikkila, 345 U.S. at 236 (internal quotation marks omitted); see St. Cyr, 533 U.S. at 312. The St. Cyr Court therefore concluded that in the absence of any “explicit[] mention[ ]” of habeas or § 2241 in the statutes, they did not conclusively demonstrate an intent on the part of Congress to preclude habeas review in an immigration context. St. Cyr, 533 U.S. at 312.
The Court further reasoned that interpreting the jurisdiction-stripping provisions to bar court review of a “pure question of law” would raise “substantial constitutional questions” in that it could violate the Suspension Clause.12 Id. at 300. St. Cyr explained that “at the absolute minimum, the Suspension Clause protects the writ as it existed in 1789”13 and that the writ in 1789 was available to address errors of law. Id. at 301, 302 (internal quotation marks omitted). Thus, because a reading of the statutes that did not preclude habeas was “fairly possible,” id. at 300 (internal quotation
We conclude that St. Cyr is not dispositive here. Critical to both bases for the St. Cyr result was the existence of a plausible reading of the statutes before the Court under which habeas review of the claim at issue was not barred. The same cannot be said for § 2242(d) in this case. Although § 2242(d) resembles two of the statutes before the St. Cyr Court, see
Furthermore, in addition to the critical difference in the statutory language, the fact that Mironescu‘s claim challenges his extradition rather than his removal is significant. The historical dichotomy in the immigration context between the “limited role played by the courts in habeas corpus proceedings,” St. Cyr, 533 U.S. at 312, and judicial review in which a court “decid[es] on the whole record whether there is substantial evidence to support administrative findings of fact,” Heikkila, 345 U.S. at 236 (internal quotation marks omitted), on which the St. Cyr Court based its conclusion that the statutes before it did not clearly bar habeas, does not exist with regard to a claim that a fugitive‘s extradition will result in a violation of his federal rights, see Plaster, 720 F.2d at 347-49 (holding that district court on habeas review possessed jurisdiction to resolve constitutional challenge against extradition, including finding facts underlying constitutional claim). Indeed, Mironescu himself has sought review under the APA in the context of a habeas proceeding. Thus, for both of these reasons, § 2242(d) plainly demonstrates Congress’ intent to preclude consideration of CAT and FARR Act claims on habeas review of an extradition challenge.
In light of the clear demonstration of Congressional intent here, affirmance would amount to a holding that Congress must always explicitly mention habeas or § 2241 in order to bar habeas review. See Cadet, 377 F.3d at 1182 (adopting that rule); Wang, 320 F.3d at 141 (same). Although some language in St. Cyr and Demore suggests that the Supreme Court could adopt this rule in the future, until it does so, we see no basis for refusing to give effect to Congress‘s unambiguously expressed intention that courts reviewing extradition challenges may not consider CAT or FARR Act claims. See West v. Anne Arundel County, 137 F.3d 752, 757 (4th Cir. 1998) (“Our task ... is not to predict what the Supreme Court might do
III.
In sum, for the foregoing reasons, we conclude that the district court erred in denying the Government‘s motion to dismiss. Accordingly, we vacate the district court order enjoining Mironescu‘s extradition and remand for dismissal of Mironescu‘s petition.
VACATED AND REMANDED.
Notes
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession[,] punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
Id. at 1027.
We also note that Mironescu does not argue that denying him the opportunity to present his CAT and FARR Act claims on habeas review violates the Suspension Clause. We therefore do not address that issue. See Hillman v. IRS, 263 F.3d 338, 343 n. 6 (4th Cir. 2001) (explaining that “Rule 28(b) [of the Federal Rules of Appellate Procedure] requires” that appellees state their contentions and the reasons for them “at the risk of abandonment of an argument” not presented); United States v. Ford, 184 F.3d 566, 578 n. 3 (6th Cir. 1999) (“Even appellees waive arguments by failing to brief them.“).