Cornejo-Barreto v. Siefert

Decision Date16 August 2004
Docket NumberNo. 02-56605.,02-56605.
Citation379 F.3d 1075
PartiesRamiro CORNEJO-BARRETO, Petitioner-Appellant, v. W.H. SIEFERT, Warden of the Metropolitan Detention Center, Respondent-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Craig Wilke, Deputy Federal Public Defender, Santa Ana, CA, for the petitioner-appellant.

Douglas Letter, U.S. Department of Justice, Civil Division, Washington, DC, for the respondent-appellee.

Appeal from the United States District Court for the Central District of California; Alicemarie H. Stotler, District Judge, Presiding. D.C. No. CV-01-00662-AHS.

Before: WALLACE, RYMER, and TALLMAN, Circuit Judges.

RYMER, Circuit Judge:

This appeal involves a request by Mexico for extradition of Ramiro Cornejo-Barreto, a Mexican citizen and lawful permanent resident of the United States, and the question whether the decision by the Secretary of State to surrender him is subject to judicial review.

Extradition is a two-part process. First, a federal judicial officer determines whether the crime is extraditable and whether there is probable cause to sustain the charge. If so, the fugitive is certified as extraditable to the Secretary of State. 18 U.S.C. § 3184.1 This decision is subject to limited judicial review through habeas corpus. See Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 69 L.Ed. 970 (1925) (holding that habeas corpus is available only to inquire whether the magistrate had jurisdiction, whether the offense charged is within the extradition treaty, and whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty). In this case a magistrate judge determined that Cornejo-Barreto was extraditable, the district court denied habeas relief, and we affirmed in Cornejo-Barreto v. Seifert [sic], 218 F.3d 1004 (9th Cir.2000) (Cornejo-Barreto I). Next, the Secretary of State determines in his discretion whether the fugitive will be surrendered. 18 U.S.C. § 3186.2 The Secretary decided to extradite Cornejo-Barreto.

Cornejo-Baretto again sought habeas relief because we said in Cornejo-Barreto I that the Administrative Procedures Act (APA), 5 U.S.C. §§ 701-06, allows an individual facing extradition who is making a torture claim to petition, under habeas corpus, for review of the Secretary's decision to surrender him. The district court ruled that it had jurisdiction under Cornejo-Barreto I, but found that the Secretary acted in accordance with the law in deciding to extradite Cornejo-Barreto.

We conclude that our discussion of APA review in Cornejo-Barreto I was not necessary because the issue of whether Cornejo-Barreto would be entitled to judicial review of a final extradition decision was not then before us. The Secretary had not yet decided to extradite Cornejo-Barreto and may never have decided to do so. For this reason the discussion is advisory and we are not bound by it. Considering the issue afresh, we hold that the Secretary of State's decisions concerning extradition are not subject to judicial review.

Accordingly, on different grounds, we affirm denial of the petition.

I

A warrant was issued by a judge in Tijuana, Mexico in August 1991 for Cornejo-Barreto's arrest on charges of violent robbery, homicide, injuries, deliberate property damage, kidnaping, and firing a weapon upon a person. The crimes allegedly occurred May 5, 1989. Cornejo-Barreto was accused of robbing a jewelry store in Tijuana using a submachine gun, shooting and killing a police officer while fleeing the robbery, and forcing a passerby to drive him after he crashed his own car into a police car and injured an officer.

Cornejo-Barreto was provisionally arrested in the United States in October 1996 at the request of the Mexican government. A foreign state makes a request for extradition to the State Department, which determines if the request is within the terms of the applicable treaty before forwarding it to the Department of Justice for a similar screening. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 478 (1987); Cornejo-Barreto I, 218 F.3d at 1009-10. If covered by the treaty, the request is forwarded to the United States Attorney in the district where the fugitive is located. In this case, the United States Attorney for the Central District of California filed Mexico's formal request for extradition.

Under 18 U.S.C. § 3184, any justice or judge of the United States, including an authorized magistrate judge, has jurisdiction to conduct an extradition hearing according to the terms of the extradition treaty between a requesting nation and the United States. The hearing's purpose is to determine whether "(1) the crime is extraditable; and (2) there is probable cause to sustain the charge." Cornejo-Barreto I, 218 F.3d at 1009 (footnote omitted). If both requirements are met, the judge or magistrate must certify the individual as extraditable to the Secretary of State. Id.; 18 U.S.C. § 3184. In this case, hearings were held before a magistrate judge. Cornejo-Barreto argued that his extradition was barred by Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention), implemented by the Foreign Affairs Reform and Restructuring Act of 1998, Pub.L. No. 105-277, § 2242, 112 Stat. 2681-822 (Oct. 21, 1998) (codified as Note to 8 U.S.C. § 1231) (FARR Act). Article 3 prohibits a country from surrendering an individual who will face torture in the requesting country.3 Torture Convention, entered into force June 26, 1987, 1465 U.N.T.S. 85, G.A. Res. 39/46, 39 U.N. GAOR, 39th Sess., Supp. No. 51 at 197, U.N. Doc. A/RES/39/46 (signed by United States April 18, 1988). Cornejo-Barreto testified that he was tortured by Mexican authorities following his arrest, that he was forced to sign confessions to the charged crimes, and that he feared further torture if he were returned to Mexico. The magistrate judge held that evidence of future torture was inadmissible to show that certification should be denied, and certified Cornejo-Barreto for extradition in September 1997, finding that even without the confessions, there was probable cause that he committed the offenses for which Mexico sought his extradition.

While the certification decision may not be appealed directly, it may be reviewed collaterally. "On habeas, the district court's review has been limited to the following: (1) whether the extradition judge had jurisdiction to conduct the proceeding; (2) whether the extradition court had jurisdiction over the individual sought; (3) whether the extradition treaty was in force; (4) whether the crime fell within the treaty's terms; (5) whether there was probable cause that the individual sought committed the crime; and (6) whether the crime was within the political offense exception." Cornejo-Barreto I, 218 F.3d at 1009-10 (citation omitted).

Cornejo-Barreto filed a petition for a writ of habeas corpus which was denied by the district court on October 8, 1998. On appeal, Cornejo-Barreto argued that the Torture Convention was self-executing and was thus enforceable by individuals such as himself. The Government countered that the FARR Act, which implemented the Torture Convention, and regulations that the State Department adopted pursuant to it, prohibit judicial review of Torture Convention claims in the context of extradition. This court affirmed denial of the petition because Cornejo-Barreto's torture claim was not ripe, but directed that it be without prejudice to the filing of a new petition should the Secretary decide to surrender Cornejo-Barreto. In such event, we held that Cornejo-Barreto could state a claim cognizable under the APA that the Secretary breached his duty to implement Article 3. Id. at 1016-17.

Cornejo-Barreto I reasoned that Article 3 of the Torture Convention prohibits extradition of a fugitive if there are substantial grounds for believing that he would be in danger of being subjected to torture,4 and that a duty not to extradite in such circumstances was imposed by Congress on the Secretary of State through § 2242(a) of the FARR Act. Section 2242(a) states that it is "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). The Act requires agencies such as the Department of State to prescribe regulations to implement the obligations of the United States under Article 3. Id. § 2242(b). Regulations adopted by the State Department provide that "the Department considers the question of whether a person facing extradition from the U.S. `is more likely than not' to be tortured in the State requesting extradition," 22 C.F.R. § 95.2(b), and that "[b]ased on the resulting analysis of relevant information, the Secretary may decide to surrender the fugitive to the requesting State, to deny surrender of the fugitive, or to surrender the fugitive subject to conditions." Id. § 95.3(b). The opinion states that the FARR Act imposes a "clear and nondiscretionary duty" to assure that those subject to the Secretary's actions are not to be returned if they are likely to face torture, therefore APA review is authorized. As neither the FARR Act nor the APA grants jurisdiction to the federal courts for claims arising under Article 3 of the Torture Convention, Cornejo-Barreto I concludes that a habeas petition is the most appropriate form of action for fugitives seeking review of the Secretary's extradition decisions. However, any such challenge would not be ripe until there is final agency action, that is, until the Secretary has decided to surrender a fugitive. Cornejo-Barreto I, 218 F.3d at 1016.

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