Mironescu v. Costner

• Decision Date: 22 March 2007
• Docket Number: No. 06-6457.,06-6457.
• Citation: 480 F.3d 664
• Parties: 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.
• Court: U.S. Court of Appeals — Fourth Circuit

480 F.3d 664

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 November 28, 2006.

Decided March 22, 2007.

ARGUED: Douglas Neal Letter, United States Department of Justice, Civil Division, Appellate Section, Washington, D.C., for Appellant. Gregory Davis, Assistant Federal Public Defender, Office of the Federal Public Defender, Winston-Salem, North Carolina, for Appellee. ON BRIEF: Peter D. Keisler, Assistant Attorney General, United States Department of Justice, Office of Immigration Litigation, Washington, D.C.; Anna Mills Wagoner, United States Attorney, Office of the

United States Attorney, Greensboro, North Carolina, for Appellant. Louis C. Allen, III, Federal Public Defender, Greensboro, North Carolina, for Appellee.

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 28 U.S.C.A. § 2241 (West 2006), and enjoining the Government from extraditing Mironescu to Romania. Finding that the district court lacked jurisdiction to consider the merits of Mironescu's petition, we vacate and remand for dismissal of the petition.

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 18 U.S.C.A. § 3184 (West Supp.2006). Once the fugitive is in custody, a district court judge or magistrate judge conducts a hearing to determine whether (1) there is probable cause to believe that the fugitive has violated one or more of the criminal laws of the country requesting extradition; (2) the alleged conduct would have been a violation of American criminal law, if committed here; and (3) the requested individual is the one sought by the foreign nation for trial on the charge at issue. See Peroff v. Hylton, 542 F.2d 1247, 1249 (4th Cir. 1976). Provided that these requirements are satisfied and that the applicable treaty provides no other basis for denying extradition, the judge certifies to the Secretary of State (the Secretary) that the fugitive is extraditable. See 18 U.S.C.A. § 3184. Although a judge's certification of extraditability is not appealable, a fugitive may obtain limited collateral review of the certification in the form of a petition for a writ of habeas corpus. See Peroff v. Hylton, 563 F.2d 1099, 1102 (4th Cir.1977) (per curiam). In considering such a habeas petition, the district court generally determines only whether the judge had jurisdiction, whether the charged offense is within the scope of the applicable treaty, and whether there was any evidence supporting the probable cause finding. See Prushinowski v. Samples, 734 F.2d 1016, 1018 (4th Cir.1984).

Following certification by the district court, the Secretary must decide whether to extradite the fugitive. See 18 U.S.C.A. § 3186 (West 2000) ("The Secretary of State may order the person . . . to be delivered to any authorized agent of such foreign government, to be tried for the offense of which charged."). In deciding whether to extradite, the Secretary may consider "factors affecting both the individual defendant as well as foreign relations—factors that may be beyond the scope of the . . . judge's review." Sidali v. INS, 107 F.3d 191, 195 n. 7 (3d Cir.1997). The broad range of options available to the Secretary includes (but is not limited to) reviewing de novo the judge's findings of fact and conclusions of law, refusing extradition on a number of discretionary grounds, including humanitarian and foreign policy considerations, granting extradition with conditions, and using diplomacy to obtain fair treatment for the fugitive. See United States v. Kin-Hong, 110 F.3d 103, 109-10 (1st Cir.1997).

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 8 U.S.C. § 1231 note). As is relevant here, Article 3 of the CAT provides:

1. 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.

2. 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." 22 C.F.R. § 95.2(b) (2006). They provide that "to implement the obligation assumed by the United States pursuant to Article 3 of the Convention, 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 when appropriate in making this determination." Id. They further state that in each case in which there is an allegation relating to torture, "appropriate policy and legal offices [shall] review and analyze information relevant to the case in preparing a recommendation to the Secretary as to whether or not to sign the surrender warrant." 22 C.F.R. § 95.3(a) (2006). And, they provide that "[d]ecisions of the Secretary concerning surrender of fugitives for extradition are matters of executive discretion not subject to judicial review." 22 C.F.R. § 95.4 (2006).

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...