Aguasvivas v. Pompeo

• Decision Date: 07 January 2021
• Docket Number: No. 19-1937,19-1937
• Parties: Cristian AGUASVIVAS, Petitioner, Appellee, v. Michael POMPEO, U.S. Secretary of State; Jeffrey Rosen, Acting U.S. Attorney General; John Gibbons, U.S. Marshal for the District of Massachusetts; Wing Chau, U.S. Marshal for the District of Rhode Island; Daniel Martin, Warden, Wyatt Detention Facility, Respondents, Appellants.
• Court: U.S. Court of Appeals — First Circuit

984 F.3d 1047

Cristian AGUASVIVAS, Petitioner, Appellee,

v.Michael POMPEO, U.S. Secretary of State; Jeffrey Rosen, Acting U.S. Attorney General;^* John Gibbons, U.S. Marshal for the District of Massachusetts; Wing Chau, U.S. Marshal for the District of Rhode Island; Daniel Martin, Warden, Wyatt Detention Facility, Respondents, Appellants.

No. 19-1937

United States Court of Appeals, First Circuit.

January 7, 2021

Amy Barsky, with whom Fick & Marx LLP was on brief, for appellee.

Lee Gelernt, New York, NY, Cody Wofsy, San Francisco, CA, Roberto Gonzalez, and Lynette Labinger on brief for the American Civil Liberties Union Foundation and the ACLU Foundation of Rhode Island, amici curiae.

Christopher J. Smith, Associate Director, Office of International Affairs, Criminal Division, U.S. Department of Justice, with whom Brian A. Benczkowski, Assistant Attorney General, Criminal Division, Bruce C. Swartz, Deputy Assistant Attorney General, Criminal Division, Philip A. Mirrer-Singer, Trial Attorney, Office of International Affairs, Criminal Division, Andrew E. Lelling, United States Attorney, District of Massachusetts, Cynthia A. Young, Chief, Appeals Unit, District of Massachusetts, and Theodore B. Heinrich, Assistant United States Attorney, District of Massachusetts, were on brief, for appellants.

Before Lynch, Kayatta, and Barron, Circuit Judges.

KAYATTA, Circuit Judge.

The Dominican Republic requests Cristian Starling Aguasvivas for extradition. After a federal magistrate judge certified Aguasvivas as eligible for extradition, Aguasvivas filed a habeas corpus petition in the District of Rhode Island arguing, among other things, that the Dominican Republic had failed to provide the required documentation in its extradition request, and that his extradition would violate the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Dec. 10, 1984, T.I.A.S. No. 94-1120.1 ("CAT"), given that the Board of Immigration Appeals ("BIA") had previously found that he was qualified for CAT relief. The district court agreed with Aguasvivas on both points, and the United States has now appealed.

For the reasons explained below, we disagree with the district court that the United States is bound by the BIA's prior determination awarding Aguasvivas CAT relief. We nevertheless affirm the grant of habeas relief because we agree that the United States has failed to file the necessary documents to support an extradition request.

I.

On December 6, 2013, Aguasvivas was with his brother, Francis ("Frank"), when three Dominican drug officers, including Lorenzo Ubri, handcuffed and attempted to arrest Aguasvivas. Shots were fired while the officers were attempting to put Aguasvivas into their car. According to the Dominican Republic as represented by the United States, "Frank distracted the agents by protesting, and Aguasvivas took advantage of this distraction to disarm Agent Ubri and shoot him three times at close range, including two bullets to the chest area." Ubri died; the two other officers were shot but not killed.

In December 2013, a Dominican warrant issued for Aguasvivas's arrest. Eight months later, Aguasvivas fled to the United States. In immigration court, he sought asylum, withholding of removal, and CAT relief because of his fear of Dominican police. The immigration judge denied all relief, but in August 2016, the BIA reversed and granted withholding of removal under the CAT. The BIA found that it was "more likely than not that [Aguasvivas would] be tortured at the instigation of or with the consent or acquiescence of public official[s] in the Dominican Republic" if he returned.¹

Just over three years after the warrant issued, in February 2017, the Dominican Republic submitted an extradition request to the United States. Extradition is a "two-step procedure [that] divides responsibility ... between a judicial officer and the Secretary of State." United States v. Kin-Hong, 110 F.3d 103, 109 (1st Cir. 1997). The process is set out in the extradition statutes, 18 U.S.C. § 3181 et seq. First, upon a complaint from the Department of Justice in response to the foreign government's request, the magistrate judge issues a warrant for the arrest of the individual sought. See id. § 3184. The magistrate then conducts a hearing to consider whether the extradition request complies with the relevant treaty's documentation requirements,² and whether "the evidence [is] sufficient to sustain the charge under the provisions of the proper treaty." See id. If those requirements are fulfilled, the magistrate certifies the extradition to the Secretary of State. Id. The Secretary then "determine[s] whether or not the [fugitive] should actually be extradited." Kin-Hong, 110 F.3d at 109 (citing 18 U.S.C. § 3186). "The Secretary has the authority to review the judicial officer's findings of fact and conclusions of law de novo, and to reverse the judicial officer's certification ... if [he] believes that it was made erroneously." Id. The Secretary can also "decline to surrender the relator on any number of discretionary grounds, including but not limited to, humanitarian and foreign policy considerations." Id. Finally, the Secretary may "attach conditions to the surrender of the relator" or "use diplomatic methods to obtain fair treatment for the relator" -- tools the judiciary does not have.³ Id. at 110.

Upon receipt and review of the request from the Dominican Republic to extradite Aguasvivas, the United States filed an extradition complaint in the District of Massachusetts. A U.S. warrant issued, and Aguasvivas was arrested in September 2017 in Lawrence, Massachusetts. Following a hearing, a magistrate judge in the District of Massachusetts certified Aguasvivas's extradition in December 2018. The magistrate judge found that the extradition request was supported by the documentation required by the Dominican Republic-United States Extradition Treaty ("Extradition Treaty"), Extradition Treaty, Dom. Rep.-U.S., Jan. 12, 2015, T.I.A.S. No. 16-1215, and that there was probable cause to certify Aguasvivas for the extraditable offenses of murder, possession of a firearm, and robbery.

Magistrates' certifications of extraditability are not appealable final orders under 28 U.S.C. § 1291. In re Mackin, 668 F.2d 122, 127–28 (2d Cir. 1981). Extraditees therefore sometimes seek habeas relief to challenge their detention pursuant to the certifications. See id. at 128 ; see, e.g., In re Extradition of Manzi, 888 F.2d 204, 205 (1st Cir. 1989) (per curiam). To challenge his detention and avoid extradition, Aguasvivas filed just such a habeas petition in the District of Rhode Island. The district court granted the petition in September 2019. It first found that the magistrate judge had evidence sufficient to find probable cause. But it then found both that the extradition was barred by the BIA's CAT determination and that the extradition request did not satisfy the documentary requirements of the treaty.⁴

With this appeal, the United States challenges both the ruling that the BIA's 2016 CAT determination precludes extradition and the ruling that the request of the Dominican Republic does not satisfy the documentary requirements for extradition. We address each challenge in turn.

II.

A.

We begin with the United States' challenge to the district court's ruling that the Convention Against Torture precludes Aguasvivas's extradition. At issue here, according to Aguasvivas, is the prospect that, if extradited to the Dominican Republic, he will be tortured. A claim of feared torture warrants attention in the extradition context because of the principle of non-refoulement in international law, reflected in Article 3 of the CAT, and enacted in the United States (as pertinent here) in the "FARR Act." See Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, § 2242, 112 Stat. 2681 -761, 2681-822; Nasrallah v. Barr, ––– U.S. ––––, 140 S. Ct. 1683, 1690, 207 L.Ed.2d 111 (2020) ("[The FARR Act] implements Article 3 of the international Convention Against Torture, known as CAT."). That Act states in part 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." FARR Act § 2242(a). It then "delegates the responsibility for ‘prescrib[ing] regulations to implement the obligations of the United States’ under the CAT to ‘heads of the appropriate agencies.’ " Saint Fort v. Ashcroft, 329 F.3d 191, 196 (1st Cir. 2003) (quoting FARR Act § 2242(b)). As relevant to extradition, the Secretary of State, "[i]n order to implement" the United States' obligations under the CAT, "considers" whether an individual sought is "more likely than not" to be tortured before extraditing him. 22 C.F.R. § 95.2(b).

Aguasvivas, though, does not want to wait to see what the Secretary decides. Instead, he launched a preemptive strike, asking the district court to rule now that the threat of torture must prevent his extradition, and thus that there is no reason to detain him. And the district court agreed, reasoning that, because the BIA previously found that removal of Aguasvivas by immigration authorities was barred by the CAT, the Secretary is estopped from ruling otherwise. In challenging that ruling, the United States advances two arguments that command our attention. First, the United States contends that the district court exceeded its own statutory jurisdiction by inquiring into the subject of whether the CAT precluded Aguasvivas's extradition. In support of this argument, the United States relies on the so-called "rule of non-inquiry," Kin-Hong, 110 F.3d at 110 ;⁵ the Senate's declaration that Article 3 of the CAT is not self-executing, 136 Cong. Rec. 36198 (1990); the FARR Act § 2242(d); and the REAL ID Act of 2005, Pub. L. No. 109-13, § 106(a)(1)(...