Mironescu v. Costner , 480 F.3d 664 ( 2007 )

Certiorari dismissed, January 9, 2008
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PETRU MIRONESCU, 
Petitioner-Appellee,
v.
HARLON E. COSTNER, United States
Marshal for the Middle District of
North Carolina,  No. 06-6457
Respondent-Appellant,
and
WILLIAM SCHATZMAN, Sheriff of
Forsyth County,
Respondent.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., District Judge.
(1:05-cv-00683-JAB)
Argued: November 28, 2006
Decided: March 22, 2007
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.
2 MIRONESCU v. COSTNER
COUNSEL
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 Car-
olina, for Appellee.
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 peti-
tion, see 28 U.S.C.A. § 2241 (West 2006), and enjoining the Govern-
ment from extraditing Mironescu to Romania. Finding that the district
court lacked jurisdiction to consider the merits of Mironescu’s peti-
tion, 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
MIRONESCU v. COSTNER 3
submission by a foreign government of an extradition request to the
United States Department of State. See Restatement (Third) of For-
eign 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 crim-
inal 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 sat-
isfied and that the applicable treaty provides no other basis for deny-
ing 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 indi-
vidual defendant as well as foreign relations—factors that may be
4 MIRONESCU v. COSTNER
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 Con-
vention 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. § 1231note). As is relevant here, Article 3 of the CAT provides:
1. No State Party shall expel, return ("refouler") or extra-
dite 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,
1
The CAT defines torture as
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 confes-
sion[,] punishing him for an act he or a third person has commit-
MIRONESCU v. COSTNER 5
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 sub-
jected to torture, regardless of whether the person is physically pres-
ent in the United States." Section 2242(a). It also directs heads of the
appropriate agencies to "prescribe regulations to implement the obli-
gations 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
ted or is suspected of having committed, or intimidating or
coercing him or a third person, or for any reason based on dis-
crimination 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.
6 MIRONESCU v. COSTNER
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 magis-
trate 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 alle-
gations 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 cor-
pus, 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
2
The court reserved ruling on the question of whether habeas review
would indeed be available. See id.MIRONESCU v. COSTNER 7
See id. at 541. The court therefore denied Mironescu’s habeas petition
without prejudice. See id.Upon receiving notification that a warrant to extradite him had
been signed by the Secretary, Mironescu filed the present habeas peti-
tion.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 viola-
tion of the Constitution or laws or treaties of the United States." 28
U.S.C.A. § 2241(c)(3). He also asserts that the district court has juris-
diction to consider his petition under the Administrative Procedure
Act (APA), 5 U.S.C.A. §§ 551-59, 701-06 (West 1996 & Supp.
2006).
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 jurisdiction "to review whether the Secretary’s torture
determination as to [Mironescu] was arbitrary, capricious, or not in
accordance with law." J.A. 140 (internal quotation marks omitted).
The court emphasized that "this review will not consist of a de novo
review of the record—the Court will not substitute its opinion for the
Secretary’s as to whether [Mironescu] would face torture upon return
to Romania—but will merely determine whether the Secretary did, in
3
Mironescu initially named Secretary of State Condoleeza Rice as a
respondent but the district court subsequently dismissed her from the
action.
4
The factual basis for this claim is not relevant to this appeal.
8 MIRONESCU v. COSTNER
fact, consider [Mironescu’s] evidence, if only to subsequently and
validly reject it." Id. at 144. Having determined that it was obliged to
examine the Secretary’s reasoning in deciding to extradite Mironescu,
the court ordered the Government to produce, for in camera review,
the administrative record considered by the Secretary with respect to
the question of whether Mironescu would be subject to torture.5 The
court also enjoined the Government from surrendering Mironescu to
Romanian officials pending its decision.
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 country refrain from examining the penal systems of
requesting nations, leaving to the Secretary of State determinations of
whether the defendant is likely to be treated humanely." Lopez-Smith
v. Hood, 121 F.3d 1322, 1327 (9th Cir. 1997). Understanding the
underpinnings of this rule is critical in deciding whether it applies
here. The origin of the rule can be traced back to two Supreme Court
cases from the late 19th century. See Jacques Semmelman, Federal
Courts, the Constitution, and the Rule of Non-Inquiry in International
Extradition Proceedings, 76 Cornell L. Rev. 1198, 1211 (1991). First,
in Benson v. McMahon, 127 U.S. 457 (1888), the Court listed the fol-
lowing as the sole issue properly before it on habeas review of an
extradition decision: "whether, under the construction of the act of
congress and the treaty entered into between this country and Mexico,
there was legal evidence before the commissioner to justify him in
exercising his power to commit the person accused to custody to
5
The court ruled that all documents produced by the Government could
be filed under seal, to reduce concerns of adverse impact on foreign pol-
icy interests.
MIRONESCU v. COSTNER 9
await the requisition of the Mexican government." Benson, 127 U.S.
at 463. The Court issued the second decision two years later, expand-
ing on this proposition:
A writ of habeas corpus in a case of extradition cannot per-
form 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 (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 extra-
dited was not listed by the Court as a factor that is properly consid-
ered 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 (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 extradi-
tion 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 (1911), pro-
vided the final piece of the puzzle. See United States v. Howard (In
re Extradition of Howard), 996 F.2d 1320, 1329 (1st Cir. 1993).
10 MIRONESCU v. COSTNER
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 suppose
[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 hold-
ing 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 dis-
trict 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 deter-
mined that his detention was unlawful. See id. at 347-51. We recog-
nized 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 warrant-
ing the finding that there was reasonable ground to believe the
6
The district court also concluded that the applicable treaty barred
extradition because it prohibited extradition when it would violate the
relator’s constitutional rights. See id.MIRONESCU v. COSTNER 11
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 unconstitu-
tional. 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 govern-
mental 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 fugi-
tive 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 vio-
lation of the Constitution." Id.Our reasoning in Plaster is controlling here. The Supreme Court
cases describing habeas review of extradition orders, particularly Ben-
son, Oteiza, and Glucksman, did not involve claims that extradition
would violate a federal statute, nor did the several Fourth Circuit
cases that similarly describe such habeas review.7 See Ordinola v.
Hackman, No. 06-6126, slip op.; Prushinowski v. Samples, 734 F.2d
1016 (4th Cir. 1984); Antunes v. Vance, 640 F.2d 3 (4th Cir. 1981);8
7
Additionally, Glucksman’s statement that "we are bound by the exis-
tence of an extradition treaty to assume that the trial will be fair" has no
direct application in this case, in which the fairness of Mironescu’s trial
is not in dispute.
8
Antunes maintained that he was denied due process in his extradition
hearing but did not argue that extradition would violate federal law. See
Antunes, 640 F.2d at 4.9
12 MIRONESCU v. COSTNER
Collier v. Vaccaro, 51 F.2d 17 (4th Cir. 1931). Moreover, the Gov-
ernment concedes that the FARR Act precluded the Secretary from
extraditing Mironescu to Romania—also a signatory to the CAT, see
Status of ratification of the Convention against Torture, http://
www.ohchr.org/english/law/cat-ratify.htm (last visited Jan. 3, 2007)—
if he was likely to be tortured there. See Br. for the Appellants at 14
(noting that before the district court "[t]he Government recognized
that the Secretary of State is bound by the policy of the [CAT] as
implemented by U.S. domestic legislation and State Department regu-
lations, and that Mironescu thus could not be extradited to Romania
if it was likely he would indeed be tortured there"); id. at 26 ("[W]e
are not arguing that the Secretary of State has the authority to extra-
dite a fugitive who is likely to be tortured."). But see Cornejo-Barreto
v. Siefert (Cornejo-Barreto II), 379 F.3d 1075, 1088 (9th Cir.) (con-
cluding that the FARR Act does not eliminate the Secretary’s discre-
tion to extradite an individual 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,"
28 U.S.C.A. § 2241(c)(3).
Neither Plaster, nor the application of the Plaster rule here, contra-
dicts Neely. Certainly, prior to the CAT and the FARR Act, the con-
clusion 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
9
In a previous appeal by Cornejo-Barreto, the Ninth Circuit concluded
that a fugitive could file a habeas petition to obtain APA review of his
claim that he would likely be tortured if he were extradited. See Cornejo-
Barreto v. Seifert (Cornejo-Barreto I), 218 F.3d 1004, 1015-16 (9th Cir.
2000). However, a different panel of that court subsequently determined
that the earlier panel’s statement was only dicta. See Cornejo-Barreto II,
379 F.3d at 1082-83. Considering the issue anew, the second panel deter-
mined that a fugitive indeed is not entitled to judicial review under such
circumstances. See id. at 1084-89.
MIRONESCU v. COSTNER 13
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 rule of non-inquiry since its origin. Several
of these cases have reasoned that not only has the extradition power
historically been vested exclusively in the Executive, but the Execu-
tive is uniquely suited for that role. See, e.g., Kin-Hong, 110 F.3d at
110-11. These courts have determined that courts are "ill-equipped as
institutions" to second-guess the Executive’s extradition decisions.
United States v. Smyth (In re Requested Extradition of Smyth), 61
F.3d 711, 714 (9th Cir. 1995); see Cornejo-Barreto II, 379 F.3d at
1083 ("[T]he decision to surrender [a fugitive], unlike the probable
cause determination that a judicial officer makes, involves sensitive
foreign-policy judgments about how the fugitive is likely to be treated
if returned to the requesting country; whether to seek assurances
about the protections that will be afforded to him, at what level to
obtain them, and how to evaluate such assurances as are given; and
the nature of diplomatic relations between the United States and the
requesting foreign state at the time.").
Some courts have also noted that the rule of non-inquiry is war-
ranted because courts are "ill-advised as a matter of separation of
powers and foreign relations policy to make inquiries into and pro-
nouncements about the workings of foreign countries’ justice sys-
tems." 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 extra-
dite" and "potentially affect the relations" between the countries).10
10
It is noteworthy, though, that even prior to the CAT and the FARR
Act, several courts, including this one, had suggested that proof that the
14 MIRONESCU v. COSTNER
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 impor-
tant 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 tor-
ture in the requesting country. American courts routinely answer simi-
lar 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 extraditability. See Andrew J. Par-
menter, Comment, Death by Non-Inquiry: The Ninth Circuit Permits
the Extradition of a U.S. Citizen Facing the Death Penalty for a Non-
violent Drug Offense [Prasoprat v. Benov, 421 F.3d 1009 (9th Cir.
2005)], 45 Washburn L.J. 657, 665-66, 674-75 (2006); see also
Ordinola, No. 06-6126, slip op. at 13 (observing that "the vast major-
ity of modern-day extradition treaties" provide political offense
exceptions). We have no reason to doubt that district courts could
adequately perform this function in this context as well.
The Government also maintains that concerns regarding interna-
tional comity—especially the possibility of delays that habeas review
relator would be tortured if extradited might warrant habeas relief. See,
e.g., Prushinowski, 734 F.2d at 1019 ("It is unlikely that extradition
would be ordered [by the court] if the facts were established . . . that the
prisons of a foreign country regularly opened each day’s proceedings
with a hundred lashes applied to the back of each prisoner who did not
deny his or her God or conducted routine breakings on the wheel for
every prisoner."); Gallina v. Fraser, 278 F.2d 77, 79 (2d Cir. 1960) (sug-
gesting that extradition would be reexamined if court found that relator,
upon extradition, would receive treatment so severe as to be "antipathetic
to a federal court’s sense of decency"); John Quigley, The Rule of Non-
Inquiry and Human Rights Treaties, 45 Cath. U. L. Rev. 1213, 1242-47
(1996) (collecting cases).
MIRONESCU v. COSTNER 15
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 Plas-
ter, 720 F.2d at 349. Indeed, Plaster specifically recognized that
habeas proceedings regarding claims that extradition would be uncon-
stitutional "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 extradi-
tion 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 communica-
tions 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 cam-
era, 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 neverthe-
less 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 lan-
guage at issue has a plain and unambiguous meaning." Robinson v.
Shell Oil Co., 519 U.S. 337, 340 (1997). Our determination of
whether a statute is ambiguous is guided "by reference to the lan-
guage itself, the specific context in which that language is used, and
16 MIRONESCU v. COSTNER
the broader context of the statute as a whole." Id. at 341. If the lan-
guage 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 (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 (1917). Importantly, though, "where
a provision precluding review is claimed to bar habeas review," such
a provision, to have that effect, must include "a particularly clear
statement" that habeas review is precluded. Demore v. Kim, 538 U.S.
510, 517 (2003).
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 pre-
cluded 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 jurisdic-
tion. 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 pre-
clude habeas jurisdiction." (citation omitted)); see Saint Fort v. Ash-
croft, 329 F.3d 191, 201 (1st Cir. 2003). However, this interpretation
of "provid[e] . . . jurisdiction" is squarely at odds with the language
MIRONESCU v. COSTNER 17
in § 2242(d) indicating that the FARR Act may "provid[e] . . . juris-
diction 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 v. Seifert
(Cornejo-Barreto I), 218 F.3d 1004, 1013 (9th Cir. 2000) (concluding
that "[t]he FARR Act does not preclude judicial review of the Secre-
tary’s implementation of the Torture Convention" without discussing
whether the relevant language from § 2242(d) constitutes such a pre-
clusion).
The district court also concluded that INS v. St. Cyr, 533 U.S. 289(2001), supported its exercise of jurisdiction over Mironescu’s peti-
tion. Cf. Cadet v. Bulger, 377 F.3d 1173, 1182-83 (11th Cir. 2004)
(holding that FARR Act did not preclude habeas jurisdiction in immi-
gration 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. Ash-
croft, 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 Penalty Act (AEDPA) of 1996, Pub. L. No. 104-132,
110 Stat. 1214, and the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA) of 1996, Pub. L. No. 104-208, div. C,
110 Stat. 3009-546, went into effect shortly thereafter. See St. Cyr,
533 U.S. at 293. The government maintained that these acts precluded
most removal orders from "judicial review" and repealed the discre-
tionary waiver of deportation previously available under § 212(c) of
the Immigration and Nationality Act (INA). See id. at 293, 297, 310-
11. The government argued that the jurisdiction-stripping provisions
left St. Cyr with no forum to litigate the question of whether the pre-
11
Since these cases were decided, Congress enacted the REAL ID Act,
see REAL ID Act of 2005, Pub. L. No. 109-13, div. B, 119 Stat. 231,
eliminating habeas review for the purpose of challenging removal orders.
See 8 U.S.C.A. § 1252(a)(5) (West 2005); Jahed v. Acri, 468 F.3d 230,
233 (4th Cir. 2006).
18 MIRONESCU v. COSTNER
viously available discretionary waiver was still available. See id. at
297. The Court ruled against the government, invoking two
presumptions—the "strong presumption in favor of judicial review of
administrative action," and the proposition that "[i]mplications from
statutory text or legislative history are not sufficient to repeal habeas
jurisdiction; instead, Congress must articulate specific and unambigu-
ous statutory directives to effect a repeal." Id. at 298-99.
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. Cit-
ing Heikkila v. Barber, 345 U.S. 229 (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." Heik-
kila, 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 stat-
utes, 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 vio-
late 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
12
The Suspension Clause provides that "[t]he Privilege of the Writ of
Habeas Corpus shall not be suspended, unless when in Cases of Rebel-
lion or Invasion the public Safety may require it." U.S. Const. art. I, § 9,
cl. 2.
13
The Court left open the question of whether the Suspension Clause
protects the habeas writ only to the extent that it existed in 1789, only
to the extent that it existed after the 1867 amendment extending protec-
tion of the writ to state prisoners, or as it currently exists in light of sub-
sequent legal developments. See id. at 300-01.
MIRONESCU v. COSTNER 19
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 marks omitted), the
Court held that habeas jurisdiction remained available to St. Cyr. See
id. at 314.
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 8 U.S.C. § 1252(a)(2)(C), 8 U.S.C. § 1252(b)(9)
(1994 ed., Supp. V),14 the difference between § 2242(d) and the other
two statutes eliminates the ambiguity on which St. Cyr was based. But
cf. Ogbudimkpa, 342 F.3d at 217 (holding, in an immigration context,
that § 2242(d) "closely mirrors" the version of 8 U.S.C.
§ 1252(a)(2)(C) at issue in St. Cyr and is not sufficiently distinguish-
able to preclude habeas review); Saint Fort, 329 F.3d at 200-01 (simi-
lar). Except in the context of immigration proceedings, § 2242(d)
flatly prohibits courts from "consider[ing] . . . claims" raised under
the CAT or the FARR Act. This preclusion plainly encompasses con-
sideration of CAT and FARR Act claims on habeas review.
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,"
14
Section 1252(a)(2)(C) stated, "Notwithstanding any other provision
of law, no court shall have jurisdiction to review any final order of
removal against an alien who is removable by reason of having commit-
ted" certain enumerated offenses. Section 1252(b)(9) provided that
"[j]udicial review of all questions of law and fact, including interpreta-
tion and application of constitutional and statutory provisions, arising
from any action taken or proceeding brought to remove an alien from the
United States under this subchapter shall be available only in judicial
review of a final order under this section."
20 MIRONESCU v. COSTNER
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 consider-
ation of CAT and FARR Act claims on habeas review of an extradi-
tion 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 unambigu-
ously expressed intention that courts reviewing extradition challenges
may not consider CAT or FARR Act claims. See West v. Anne Arun-
del County, 137 F.3d 752, 757 (4th Cir. 1998) ("Our task . . . is not
to predict what the Supreme Court might do but rather to follow what
it has done."). Indeed, prior Supreme Court precedent establishes that
such a formalistic approach to the plain statement rule is not justified.
Cf. Gregory v. Ashcroft, 501 U.S. 452, 467 (1991) ("This [the plain-
statement requirement] does not mean that the [Age Discrimination
in Employment Act] must mention [state] judges explicitly, though it
does not. Rather, it must be plain to anyone reading the Act that it
covers judges." (citation omitted)); St. Cyr, 533 U.S. at 299 n.10 (cit-
ing Gregory in support of the rule requiring a clear statement of Con-
gressional intent); id. at 333-34 (Scalia, J., dissenting) (explaining that
there is no basis for interpreting clear statement rule to require
explicit reference to habeas). Although St. Cyr relied on the fact that
the statutes there at issue did not "explicitly mention[ ]" habeas or
§ 2241, St. Cyr, 533 U.S. at 312, it listed that fact as only one consid-
eration supporting its conclusion that the statutes were not sufficiently
clear to bar habeas review. Indeed, the Court undertook a similar
analysis in Demore, noting that the statute under consideration there
MIRONESCU v. COSTNER 21
did not explicitly mention habeas, but basing its holding on the exis-
tence of a plausible reading of the statute that would not bar such con-
sideration. See Demore, 538 U.S. at 516-17; see also United States v.
Nordic Village, Inc., 503 U.S. 30, 34 (1992) (holding that statute did
not plainly indicate intent to waive sovereign immunity from mone-
tary claims when it was "susceptible of at least two interpretations
that do not authorize monetary relief"); Atascadero State Hosp. v.
Scanlon, 473 U.S. 234, 241 (1985) (holding that statute did not
plainly indicate intent to waive sovereign immunity when it appeared
only to authorize legislature to waive sovereign immunity). Thus, in
light of the absence of any other plausible reading, we interpret
§ 2242(d) as depriving the district court of jurisdiction to consider
Mironescu’s claims.15
III.
In sum, for the foregoing reasons, we conclude that the district
court erred in denying the Government’s motion to dismiss. Accord-
15
The district court lacks the authority to review Mironescu’s claims
under the APA for the same reason. See 5 U.S.C.A. § 701(a)(1) (provid-
ing that APA review of an agency decision is not available if "statutes
preclude judicial review"). Mironescu also maintains that the habeas
court had jurisdiction to consider his CAT claim independent of the
FARR Act. But, this contention fails as well because the CAT is not a
self-executing treaty. See Raffington v. Cangemi, 399 F.3d 900, 903 (8th
Cir. 2005); Auguste v. Ridge, 395 F.3d 123, 132-33 & n.7, 140 (3d Cir.
2005); Reyes-Sanchez v. U.S. Attorney Gen., 369 F.3d 1239, 1240 n.1
(11th Cir. 2004); Castellano-Chacon v. INS, 341 F.3d 533, 551 (6th Cir.
2003); Saint Fort, 329 F.3d at 202; Wang, 320 F.3d at 140.
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.").
22 MIRONESCU v. COSTNER
ingly, we vacate the district court order enjoining Mironescu’s extra-
dition and remand for dismissal of Mironescu’s petition.
VACATED AND REMANDED