Hedelito Garcia v. Linda Thomas , 683 F.3d 952 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HEDELITO TRINIDAD Y GARCIA, 
Petitioner-Appellee, No. 09-56999
v. D.C. No.
LINDA THOMAS,* Warden,  2:08-cv-07719-
Metropolitan Detention Center-Los MMM-CW
Angeles, OPINION
Respondent-Appellant.

Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Argued and Submitted En Banc
June 23, 2011—Pasadena, California
Filed June 8, 2012
Before: Alex Kozinski, Chief Judge, Harry Pregerson,
Sidney R. Thomas, Susan P. Graber, Kim McLane Wardlaw,
William A. Fletcher, Marsha S. Berzon, Richard C. Tallman,
Richard R. Clifton, Milan D. Smith, Jr., and Sandra S. Ikuta,
Circuit Judges.
Per Curiam Opinion;
Concurrence by Judge Thomas;
Dissent by Judge Tallman;
Partial Concurrence and Partial Dissent by Judge Berzon;
Partial Concurrence and Partial Dissent by Judge Pregerson;
Partial Dissent by Chief Judge Kozinski
*Pursuant to Fed. R. App. P. 43(c)(2), we sua sponte substitute Linda
Thomas for Michael Benov as the respondent in this action.
6395
6398 GARCIA v. THOMAS
COUNSEL
Douglas Neal Letter (argued), Lisa Olson and Scott R. McIn-
tosh, United States Department of Justice, Civil Division,
Appellate Staff, Washington, D.C.; Daniel Scott Goodman
and Michael J. Raphael, Office of the United States Attorney,
Los Angeles, California, for the respondent-appellant.
Craig Anthony Harbaugh (argued) and Sean Kevin Kennedy,
Federal Public Defender’s Office, Los Angeles, California,
for the petitioner-appellee.
Lee Gelernt and Jennifer Chang Newell, American Civil Lib-
erties Union Foundation, New York, New York, and San
Francisco, California, for amicus American Civil Liberties
Union.
GARCIA v. THOMAS 6399
OPINION
PER CURIAM:
Trinidad y Garcia alleges that his extradition to the Philip-
pines would violate his rights under the Convention Against
Torture (CAT)1 and the Fifth Amendment’s Due Process
Clause. The CAT is a treaty signed and ratified by the United
States, but is non-self-executing. 136 Cong. Rec. 36,198
(1990). Congress, however, has implemented the treaty by
statute as part of the Foreign Affairs Reform and Restructur-
ing Act of 1998 (FARRA). 8 U.S.C. § 1231 note. That statute
declares it “the policy of the United States not to . . . extradite
. . . any person to a country in which there are substantial
grounds for believing the person would be in danger of being
subjected to torture.” Id. The statute requires that “the appro-
priate agencies . . . prescribe regulations to implement the
obligations of the United States under Article 3 of the United
Nations Convention Against Torture.” Id.The appropriate agency is the Department of State, and it
adopted regulations specifying that, “[i]n each case where
allegations relating to torture are made . . . , appropriate pol-
icy and legal offices 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). An extraditee may be surrendered only after the
Secretary makes a determination regarding possible torture.
Id. § 95.2-.3.
1. The district court had jurisdiction over the action pursu-
ant to 28 U.S.C. § 2241, which makes the writ of habeas cor-
1
United Nations Convention Against Torture and Other Forms of Cruel,
Inhuman or Degrading Treatment or Punishment, adopted by unanimous
agreement of the U.N. General Assembly, G.A. Res. 39/46, 39 U.N.
GAOR Supp. No. 51 at 197, U.N. Doc. A/RES/39/708 (1984), entered into
force as to the United States Nov. 20, 1994, signed Apr. 18, 1988.
6400 GARCIA v. THOMAS
pus available to all persons “in custody in violation of the
Constitution or laws or treaties of the United States,” and
under the Constitution. 28 U.S.C. § 2241(c)(3); Heikkila v.
Barber, 345 U.S. 229, 234-35 (1953); United States ex rel.
Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954). The writ
of habeas corpus historically provides a remedy to non-
citizens challenging executive detention. INS v. St. Cyr, 533
U.S. 289, 301-03 (2001).
[1] 2. Neither the REAL ID Act (8 U.S.C. § 1252(a)(4))
nor FARRA (8 U.S.C. § 1231 note) repeals all federal habeas
jurisdiction over Trinidad y Garcia’s claims, as the govern-
ment asserts. A statute must contain “a particularly clear state-
ment” before it can be construed as intending to repeal habeas
jurisdiction. Demore v. Kim, 538 U.S. 510, 517 (2003). Even
if a sufficiently clear statement exists, courts must determine
whether “an alternative interpretation of the statute is ‘fairly
possible’ ” before concluding that the law actually repealed
habeas relief. St. Cyr, 533 U.S. at 299-300 (quoting Crowell
v. Benson, 285 U.S. 22, 62 (1932)).
[2] FARRA lacks sufficient clarity to survive the “particu-
larly clear statement” requirement. Saint Fort v. Ashcroft, 329
F.3d 191, 200-02 (1st Cir. 2003); Wang v. Ashcroft, 320 F.3d
130, 140-42 (2d Cir. 2003). The REAL ID Act can be con-
strued as being confined to addressing final orders of removal,
without affecting federal habeas jurisdiction. Nadarajah v.
Gonzales, 443 F.3d 1069, 1076 (9th Cir. 2006). Given a plau-
sible alternative statutory construction, we cannot conclude
that the REAL ID Act actually repealed the remedy of habeas
corpus. St. Cyr, 533 U.S. at 299-300. The government also
suggests that the rule of non-inquiry precludes the exercise of
habeas jurisdiction. But the rule implicates only the scope of
habeas review; it does not affect federal habeas jurisdiction.
[3] 3. The CAT and its implementing regulations are bind-
ing domestic law, which means that the Secretary of State
must make a torture determination before surrendering an
GARCIA v. THOMAS 6401
extraditee who makes a CAT claim. FARRA and its regula-
tions generate interests cognizable as liberty interests under
the Due Process Clause, which guarantees that a person will
not be “deprived of life, liberty, or property, without due pro-
cess of law.” U.S. Const. amend. V; Mathews v. Eldridge, 424
U.S. 319 (1976); Goldberg v. Kelly, 397 U.S. 254 (1970).
[4] 4. The process due here is that prescribed by the statute
and implementing regulation: The Secretary must consider an
extraditee’s torture claim and find it not “more likely than
not” that the extraditee will face torture before extradition can
occur. 22 C.F.R. § 95.2. An extraditee thus possesses a nar-
row liberty interest: that the Secretary comply with her statu-
tory and regulatory obligations.
5. The record before us provides no evidence that the Sec-
retary has complied with the procedure in Trinidad y Garcia’s
case. The State Department has submitted a generic declara-
tion outlining the basics of how extradition operates at the
Department and acknowledging the Department’s obligations
under the aforementioned treaty, statute and regulations, but
the Department gives no indication that it actually complied
with those obligations in this case.
[5] Trinidad y Garcia’s liberty interest under the federal
statute and federal regulations entitles him to strict compli-
ance by the Secretary of State with the procedure outlined in
the regulations. He claims that the procedure has not been
complied with, and the Constitution itself provides jurisdic-
tion for Trinidad y Garcia to make this due process claim in
federal court. Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971).
[6] In the absence of any evidence that the Secretary has
complied with the regulation, we lack sufficient basis in the
record to review the district court’s order granting Trinidad y
Garcia’s release. We remand to the district court so that the
Secretary of State may augment the record by providing a
6402 GARCIA v. THOMAS
declaration that she has complied with her obligations. Coun-
sel for the government represented that the Secretary would
provide such a declaration if the court so instructs. We so
instruct.
[7] 6. If the district court receives such a declaration, it
shall determine whether it has been signed by the Secretary or
a senior official properly designated by the Secretary. If so,
the court’s inquiry shall have reached its end and Trinidad y
Garcia’s liberty interest shall be fully vindicated. His substan-
tive due process claim is foreclosed by Munaf v. Geren, 553
U.S. 674 (2008). The doctrine of separation of powers and the
rule of non-inquiry block any inquiry into the substance of the
Secretary’s declaration. Lopez-Smith v. Hood, 121 F.3d 1322,
1326-27 (9th Cir. 1997). To the extent that we have previ-
ously implied greater judicial review of the substance of the
Secretary’s extradition decision other than compliance with
her obligations under domestic law, e.g., Cornejo-Barreto v.
Seifert, 218 F.3d 1004, 1012 (9th Cir. 2000), we overrule that
precedent.
7. The district court’s order is vacated, and the case is
remanded to the district court for proceedings consistent with
this opinion.
VACATED AND REMANDED.
THOMAS, Circuit Judge, concurring, with whom
WARDLAW, Circuit Judge, joins and BERZON, Circuit
Judge, joins as to Part I:
I concur in the Per Curiam opinion. I write separately to
express my views on jurisdiction and the scope of our habeas
review.
GARCIA v. THOMAS 6403
I
The district court had jurisdiction over Trinidad y Garcia’s
claims pursuant to 28 U.S.C. § 2241 and the Constitution of
the United States.
A
The district court had jurisdiction over the action pursuant
to 28 U.S.C. § 2241(c)(3), which makes the writ of habeas
corpus available to all persons “in custody in violation of the
Constitution or laws or treaties of the United States.” Federal
habeas relief under § 2241 is available as a remedy to non-
citizens challenging executive detention. INS v. St. Cyr, 533
U.S. 289, 301-03 (2001). Section 2241 also provides an ave-
nue of relief to persons, such as Trinidad y Garcia, who are
challenging the legality of extradition proceedings. Barapind
v. Reno, 225 F.3d 1100, 1110 (9th Cir. 2000). Although
habeas review may have been historically narrow in the extra-
dition context, see e.g. Fernandez v. Phillips, 268 U.S. 311,
312 (1925), the Supreme Court has long recognized that
“[t]here is no executive discretion to surrender [an individual]
to a foreign government, unless that discretion is granted by
law.” Valentine v. United States ex rel. Neidecker, 299 U.S.
5, 9 (1936). Trinidad claims that his extradition would be ille-
gal under the Foreign Affairs Reform and Restructuring Act
of 1998, 8 U.S.C. § 1231 note, and its implementing regula-
tions, 22 C.F.R. §§ 95.2-.3. This claim is cognizable on
habeas review.
1
The REAL-ID Act1 does not repeal the habeas jurisdiction
available to Trinidad y Garcia, as the government contends.2
1
The REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, § 106, 119
Stat. 231, 310-11 (amending 8 U.S.C. § 1252).
2
The relevant section is 8 U.S.C. § 1252(a)(4), which provides that:
“Notwithstanding any other provision of law (statutory or nonsta-
6404 GARCIA v. THOMAS
The jurisdiction-stripping provisions of the REAL-ID Act
removed federal habeas jurisdiction over final orders of
removal, in favor of direct petitions for review. Nadarajah v.
Gonzales, 443 F.3d 1069, 1075 (9th Cir. 2006). But the
REAL-ID Act’s jurisdiction-stripping provisions do not
remove federal habeas jurisdiction over petitions that do not
directly challenge a final order of removal. Id. at 1075-76; see
also Flores-Torres v. Mukasey, 548 F.3d 708, 711 (9th Cir.
2008); Casas-Castrillon v. Department of Homeland Security,
535 F.3d 942, 946 (9th Cir. 2008).
The purpose of the REAL-ID Act’s jurisdiction-stripping
provisions was to “consolidate judicial review of immigration
proceedings into one action in the court of appeals.” St. Cyr,
533 U.S. at 313 (internal quotation marks omitted) (discussing
a related section). Indeed, “the entire section is focused on
orders of removal.” Singh v. Gonzales, 499 F.3d 969, 977
(2007). Uncodified sections of the REAL ID Act state that the
legislation was intended to apply only to “final administrative
order[s] of removal, deportation, or exclusion.” 119 Stat. 231,
311 (quoted in notes to 8 U.S.C. § 1252). Simply put, the
REAL ID Act’s consolidation of judicial review of immigra-
tion matters has no effect on federal courts’ habeas jurisdic-
tion over claims made in the extradition context.
Trinidad y Garcia’s habeas petition does not challenge a
final order of removal; it challenges the legality of his extradi-
tion proceeding. Therefore, the REAL-ID Act does not divest
federal courts of § 2241 habeas jurisdiction over his claims.
tutory) including section 2241 of Title 28, or any other habeas
corpus provision, and sections 1361 and 1651 of such title, a peti-
tion for review filed with an appropriate court of appeals in
accordance with this section shall be the sole and exclusive
means for judicial review of any cause or claim under the United
Nations Convention Against Torture and Other Forms of Cruel,
Inhuman, or Degrading Treatment or Punishment, except as pro-
vided in subsection (e) of this section.”
GARCIA v. THOMAS 6405
2
Similarly, there is nothing in the Foreign Affairs Reform
and Restructuring Act of 1998 (FARRA), Pub. L. No. 105-
277, Div. G, Title XXII, 112 Stat. 2681 (codified at 8 U.S.C.
§ 1231 note), that repeals federal court habeas jurisdiction
under § 2241, as the government also claims. FARRA pro-
vides, in relevant part, that:
Notwithstanding any other provision of law, and
except as provided in the regulations [the Secretary
of State promulgates pursuant to the Act], no court
shall have jurisdiction to review the regulations
adopted to implement this section, and nothing in
this section shall be construed as providing any court
jurisdiction to consider or review claims raised under
the [CAT] 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 [8 U.S.C.
§ 1252].
FARRA § 2242(d) (codified at 8 U.S.C. § 1231 note).
There is nothing at all in this section that purports to repeal
federal habeas jurisdiction under § 2241. Rather, the section
simply states it is not conferring jurisdiction. We have already
held that this provision does not divest federal courts of
habeas jurisdiction. Singh v. Ashcroft, 351 F.3d 435, 440-42
(9th Cir. 2003). Our sister circuits agree. Saint Fort v. Ash-
croft, 329 F.3d 191, 200-02 (1st Cir. 2003); Wang v. Ashcroft,
320 F.3d 130, 140-42 (2d Cir. 2003). This issue is settled, and
there is no reason to revisit it.
3
Although, we need not resort to the special principles of
statutory construction that apply to statutes purporting to
6406 GARCIA v. THOMAS
divest federal courts of habeas jurisdiction, I would be remiss
if I did not underscore them. The elimination of all forms of
judicial review of executive detention would violate the Con-
stitution. See Magana-Pizano v. INS, 200 F.3d 603, 608-09
(9th Cir. 1999); U.S. Const. art. I, § 9, cl. 2. Given the con-
straints of the Suspension Clause, there is a strong presump-
tion against construing statutes to repeal habeas jurisdiction.
St. Cyr, 533 U.S. at 298; Ramadan v. Gonzales, 479 F.3d 646,
652 (9th Cir. 2007).
Indeed, the Supreme Court has required that (1) a statute
contain “a particularly clear statement” before it can be con-
strued as intending to repeal habeas jurisdiction, Demore v.
Kim, 538 U.S. 510, 517 (2003) and (2) even if such a state-
ment exists, courts are required to determine whether “an
alternative interpretation of the statute is ‘fairly possible’ ”
before concluding that the law actually repealed habeas relief,
St. Cyr, 533 U.S. at 299-300 (quoting Crowell v. Benson, 285
U.S. 22, 62 (1932)). Even if we were to credit the govern-
ment’s argument that the language of the REAL-ID Act and
FARRA could be construed as an attempt to repeal habeas
jurisdiction for the claims at issue, neither statute could satisfy
the demanding standards of St. Cyr. FARRA lacks sufficient
clarity to survive the “particularly clear statement” require-
ment. The construction of the REAL ID Act discussed earlier
is more than sufficient to demonstrate that an alternate statu-
tory interpretation is “fairly possible.” Therefore, even if we
were to credit the government’s statutory construction (and I
do not), it would not survive scrutiny under St. Cyr.
B
In addition to possessing jurisdiction under § 2241, the dis-
trict court also had jurisdiction under the Constitution.
Although the Constitution itself does not expressly grant fed-
eral habeas jurisdiction, it preserves the writ through the Sus-
pension Clause.3 Boumediene v. Bush, 553 U.S. 723, 743-46
3
The Suspension Clause provides that: “The Privilege of the Writ of
Habeas Corpus shall not be suspended, unless when in Cases of Rebellion
or Invasion the public Safety may require it.” U.S. Const. art. I, § 9, cl. 2.
GARCIA v. THOMAS 6407
(2008); Ex Parte Bollman, 4 Cranch 75, 94-95, 2 L.Ed. 554(1807). The Suspension Clause was designed to protect access
to the writ of habeas corpus during those cycles of executive
and legislative encroachment upon it. Boumediene, 553 U.S.
at 745.
The “traditional Great Writ was largely a remedy against
executive detention.” Swain v. Pressley, 430 U.S. 372, 386
(1977) (Burger, C.J., concurring); see also Darnel’s Case, 3
How. St. Tr. 1 (K.B. 1627). There have been numerous occa-
sions in our history when Congress has limited statutory
access to judicial relief in the immigration context. See, e.g.,
The Immigration Act of 1917, 39 Stat. 874; the Immigration
Act of 1907, 34 Stat. 898; the Immigration Act of 1891, 26
Stat. 1084; the Chinese Exclusion Act, 22 Stat. 58 (1882).
However, the Supreme Court has repeatedly rebuffed argu-
ments that these statutes foreclosed habeas corpus relief. St.
Cyr, 533 U.S. at 304-08; Heikkila v. Barber, 345 U.S. 229,
234-35 (1953); United States v. Jung Ah Lung, 124 U.S. 621,
626-32 (1888).
Of particular significance is Heikkila. In considering the
Immigration Act of 1917, the Supreme Court wrote in Heik-
kila that the Act “clearly had the effect of precluding judicial
intervention in deportation cases except insofar as it was
required by the Constitution.” 345 U.S. at 234-35. After con-
cluding an alien’s rights were not enlarged by enactment of
the Administrative Procedure Act, the court acknowledged the
role of habeas corpus relief, noting that: “Now, as before, he
may attack a deportation order only by habeas corpus.” Id. at
235. Thus, even under legislation which intended to restrict
all judicial review except as constitutionally required, the
remedy of habeas corpus remained.
Thus, even if we adopted the government’s position that
Congress foreclosed Trinidad y Garcia’s statutory habeas
remedies, his resort to federal habeas corpus relief to chal-
6408 GARCIA v. THOMAS
lenge the legality of his detention would be preserved under
the Constitution.
II
Having concluded that the district court had jurisdiction,
the question then becomes the scope of habeas relief available
to Trinidad y Garcia. Once a federal court has completed its
extradition determinations under 18 U.S.C. § 3184, the Secre-
tary of State in her discretion may determine whether the alien
should be surrendered to the custody of the requesting state.
Barapind, 225 F.3d at 1105. We have long held that it is the
Secretary’s role, not the courts’, to determine “whether extra-
dition should be denied on humanitarian grounds or on
account of the treatment that the fugitive is likely to receive
upon his return to the requesting state.” Prasoprat v. Benov,
421 F.3d 1009, 1016 (9th Cir. 2005); see also United States
v. Smyth, 61 F.3d 711, 714 (9th Cir. 1995).
However, certain aspects of the Secretary’s decision are
reviewable. Barapind, 225 F.3d at 1106. The Convention
Against Torture (CAT), as implemented by FARRA and State
Department regulations, is binding domestic law. Id. Before
finalizing an extradition order, the Secretary of State has a
clear and nondiscretionary duty pursuant to the implementing
regulations to consider whether a person facing extradition
from the U.S. “is more likely than not” to be tortured in the
State requesting extradition when determining whether to sur-
render a fugitive to a foreign country by means of extradition.
22 C.F.R. § 95.2.
In assessing whether the Secretary has complied with her
statutory and regulatory obligations, our review differs from
the ordinary analysis that we apply to petitions for review of
decisions on CAT claims by the Board of Immigration
Appeals. Immigrations judges and the BIA are charged with
deciding CAT claims on the evidence presented. See e.g.,
Nuru v. Gonzales, 404 F.3d 1207, 1217 (9th Cir. 2005).
GARCIA v. THOMAS 6409
Therefore, in reviewing BIA decisions, we have a developed
administrative record before us.
Our role in reviewing the Secretary’s extradition determi-
nations is far different because the surrender of a person to a
foreign government is within the Executive’s powers to con-
duct foreign affairs and the Executive is “well situated to con-
sider sensitive foreign policy issues.” Munaf v. Geren, 553
U.S. 674, 702 (2007). For example, the Secretary’s extradi-
tion determination is not confined to matters of public record.
She may make confidential diplomatic inquiries and receive
confidential diplomatic assurances about the treatment of an
extraditee. The Judiciary is “not suited to second-guess such
determinations” because the Executive “possess[es] signifi-
cant diplomatic tools and leverage the judiciary lacks.” Id.Therefore, the proper separation of powers among the
branches prevents us from inquiring into the merits of the
Secretary’s extradition decision.
Although we cannot review the merits of the Secretary’s
internal extradition review, the Secretary’s legal obligation to
comply with the CAT, as implemented by FARRA and
accompanying State Department regulations, is not a part of
that review process. The Secretary could not, for example,
refuse to conduct the review. Therefore, the scope of habeas
review allows courts to examine whether the Secretary has
complied with her non-discretionary obligations. This limited
review process of simply determining that the Secretary has
complied with the law is the least intrusive method of main-
taining the delicate balance between the competing concerns
of respecting executive prerogative in foreign relations and
ensuring that the law has been followed.
The appropriate manner of review, and the one endorsed by
the government at oral argument, is to require submission to
the court of a certification or affidavit from the Secretary or
her authorized designee certifying compliance with the non-
discretionary obligations imposed by statute and regulation.
6410 GARCIA v. THOMAS
Once the district court determines that the Secretary has com-
plied with her legal obligations, its review ends. Any further
inquiry into the executive branch’s internal extradition review
process would exceed our proper role under the Separation of
Powers doctrine.
III
In this case, there is nothing in the record to indicate that
the Secretary has fulfilled her non-discretionary obligations.
The Johnson Declaration, which is the only evidence tendered
by the government to the district court, only describes general
procedures commonly used by the Department of State in
extradition review. And it was executed before the Secretary
made her determination, so it cannot form the basis for con-
cluding that the Secretary has complied with her obligations
in this case.
The government suggested in briefing that the Secretary’s
signature on the surrender warrant itself should be considered
as proof of her determination that Trinidad y Garcia is not
likely to be tortured. But the surrender warrant is not in the
record. And we cannot rely on a purported admission by Trin-
idad y Garcia’s counsel that the warrant was issued. That
statement was solely based on an oral conversation with a
State Department official. Thus, we are placed in the unusual
position of reviewing a final agency decision that is not even
part of the record.
Trinidad y Garcia has alleged in his habeas petition that the
Secretary has not complied with FARRA’s implementing reg-
ulations and violated his right to due process. In the absence
of any evidence that the Secretary has complied with the regu-
lation, we lack sufficient basis in the record to review the dis-
trict court’s order granting Trinidad y Garcia’s release.
Therefore, the appropriate remedy is to vacate the district
court order and remand the case to the district court with
directions that the government may be afforded the opportu-
GARCIA v. THOMAS 6411
nity to supplement the record with an appropriate declaration
that the Secretary has complied with her non-discretionary
statutory and regulatory duties.
TALLMAN, Circuit Judge, with whom Circuit Judges Clif-
ton, M. Smith, and Ikuta join, dissenting:
Hedelito Trinidad y Garcia, a Philippine national, stands
accused by the Philippines of kidnaping for ransom. After
Philippine authorities requested his extradition so that he
might stand trial there for his crime—a request reviewed and
approved by the Departments of State and Justice—he was
arrested in Los Angeles. Five years later, after his claims were
denied by two different courts, then Secretary of State Con-
doleeza Rice ordered Trinidad extradited.
We went en banc to address a relatively straightforward
legal question: whether an extraditee like Trinidad may chal-
lenge the Secretary of State’s decision to extradite him based
on the conditions he expects to face upon return to the
requesting country. Like the Supreme Court, I believe the
answer to be equally straightforward: no. I am not alone. A
majority of us agree that the Rule of Non-Inquiry applies and
precludes Trinidad from obtaining judicial review of the sub-
stance of the Secretary’s decision. And, to the extent we have
previously provided for greater review or relief, e.g., Cornejo-
Barreto v. Seifert, 218 F.3d 1004, 1012 (9th Cir. 2000), “we
overrule that precedent.” Per Curiam at 6402. Unfortunately,
that is where our agreement ends.
Seizing on a concession the United States offered only for
future cases and only if we found it legally necessary, some
of my colleagues now find reason to doubt the undoubtable,
worrying whether the Secretary ever made a torture determi-
nation at all. See id. at 6414-15. They brush aside the fact that
Trinidad himself had no reason to doubt the reality of the Sec-
6412 GARCIA v. THOMAS
retary’s decision—the decision that prompted Trinidad to
bring his habeas claim, the district court to rule on it, the gov-
ernment to appeal, and two separate panels of this court to
consider the matter—recharacterizing his disagreement with
the outcome of her decision as a dispute over the process she
employed. Id. Worse, they ignore a litany of firmly estab-
lished legal principles—not the least of which being our pre-
sumption that constitutional officers properly discharge their
legal duties—to achieve an unfathomable end and further
delay an extradition that has already lumbered along for close
to a decade.
I cannot question so lightly the honor of the Secretary or
depart so readily from governing case law. The Secretary has
made her decision, and neither the Convention Against Tor-
ture (“Convention”), the Foreign Affairs Reform and Restruc-
turing Act of 1998 (“FARR Act”),1 nor the controlling
regulations, 22 C.F.R. §§ 95.1-95.4, give us cause to inquire
further. The Rule of Non-Inquiry squarely applies, and our
inquiry is at an end. As the Supreme Court directed in Munaf
v. Geren, 553 U.S. 674, 692 (2008), there is nothing left for
us to do but order Trinidad’s habeas petition promptly dis-
missed so that he may finally be extradited, and I dissent to
the extent we conclude any differently.
I
Though I write predominately to explain in full detail why
remand is so utterly unnecessary, I also believe we do the en
banc process and the litigants a disservice by not more fully
explaining why the Rule of Non-Inquiry precludes us from
according Trinidad relief and why neither the FARR Act nor
8 U.S.C. § 1252(a)(4) deprives us of jurisdiction. I therefore
1
Pub. L. No. 105-277, Div. G, Title XXII, § 2242, 112 Stat. 2681-761,
2681-822-23 (codified as a note to 8 U.S.C. § 1231). To the extent it is rel-
evant to the questions of our jurisdiction and the merits of Trinidad’s
habeas claim, the Act is set forth in greater detail infra at pages 6430-31.
GARCIA v. THOMAS 6413
address not only the reason for my dissent, but also explain
my understanding of the law undergirding those issues on
which we agree. Furthermore, I endeavor to correct the liber-
ties some of my concurring colleagues have taken with both
the law and the record.
A
Trinidad raises two distinct rationales for why he may not
be extradited. First, he contends that he may “invoke the writ
to challenge the Secretary’s decision to surrender him in vio-
lation of his substantive due process right to be free from tor-
ture” at the hands of a foreign government. Gov’t Brief at 65.
He argues that the Supreme Court has yet to address “whether
handing over an individual to a country where he would face
the prospect of torture violates substantive due process,” but
has intimated that it might. Id. at 67. Alternatively, he asserts
that even in the absence of a constitutionally protected interest
to be free from the specter of foreign torture, he possesses a
statutory right under the Convention and the FARR Act that
precludes the United States from extraditing him to a country
where torture is “more likely than not” to occur. Cf. § 95.2.
He argues that these provisions confer a non-discretionary,
mandatory obligation upon the Executive to decline to extra-
dite him without first demonstrating to a court’s satisfaction
that it is not “more likely than not” that he will face torture
there.
Trinidad’s first claim is readily dispatched. Contrary to his
suggestion, he is not the first to raise such a claim; nor would
he be the first to have that claim denied. E.g., Neely v. Henkel,
180 U.S. 109, 123, 125 (1901) (“The court below having
found that there was probable cause to believe the appellant
guilty of the offenses charged, the order for his extradition
was proper, and no ground existed for his discharge on habeas
corpus.”); Lopez-Smith v. Hood, 121 F.3d 1322, 1325-26 (9th
Cir. 1997). Long ago, the Court established that extraditees
may not oppose their extraditions on the ground that the law
6414 GARCIA v. THOMAS
of the receiving country does not provide them the full pano-
ply of rights guaranteed them by the Constitution of the
United States. Munaf, 553 U.S. at 696-97 (discussing Neely).
In Neely, for example, the Court concluded that though the
Constitution guarantees an individual a broad range of “rights,
privileges, and immunities” against the United States govern-
ment, including the right to be free from torture, Baze v. Rees,
553 U.S. 35, 48 (2008) (plurality opinion), those provisions
had no effect “against the laws of a foreign country.” 180 U.S.
at 122-23 (“Allusion is here made to the provisions of the
Federal Constitution relating to the writ of habeas corpus,
bills of attainder, ex post facto laws, trial by jury for crimes,
and generally to the fundamental guaranties of life, liberty,
and property embodied in that instrument. The answer to this
suggestion is that those provisions have no relation to crimes
committed without the jurisdiction of the United States
against the laws of a foreign country.”). As recently explained
in Munaf, the Court “summarily rejected this claim” because
“Neely alleged no claim for which a ‘discharge on habeas
corpus’ could issue.” 553 U.S. at 696 (quoting Neely, 180
U.S. at 125).
[C]itizenship does not give him an immunity to com-
mit crime in other countries, nor entitle him to
demand, of right, a trial in any other mode than that
allowed to its own people by the country whose laws
he has violated and from whose justice he has fled.
When an American citizen commits a crime in a for-
eign country, he cannot complain if required to sub-
mit 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.
Neely, 180 U.S. at 123 (emphasis added); accord Munaf, 553
U.S. at 695. “ ‘[T]he same principles of comity and respect
GARCIA v. THOMAS 6415
for foreign sovereigns that preclude judicial scrutiny of for-
eign convictions necessarily render invalid attempts to shield
citizens from foreign prosecution in order to preempt such
nonreviewable adjudications.’ ” Munaf, 553 U.S. at 698-99(citation omitted).
Trinidad’s second claim is not so easily resolved, however.
As the Court recognized in Valentine, the Executive does not
possess plenary power to extradite. Valentine v. United States
ex rel. Neidecker, 299 U.S. 5, 8-9 (1936) (“[T]he Constitution
creates no Executive prerogative to dispose of the liberty of
the individual.”). Accordingly, extradition proceedings “must
be authorized by law” and comport with pertinent statutory lim-
its.2 Id. at 9 (“There is no executive discretion to surrender
him to a foreign government, unless that discretion is granted
by law.”); accord Munaf, 553 U.S. at 704 (quoting Valentine,
299 U.S. at 8-9). Thus, Trinidad is correct insofar as he argues
that we must determine whether any of the pertinent statutory
limits on which he relies actually limit Executive authority
under the relevant treaty.3
(Text continued on page 6417)
2
Congress has authorized the Executive to extradite individuals who
have committed crimes in foreign countries pursuant to specific treaties.
See 18 U.S.C. §§ 3181(a), 3184, 3186. Here, Trinidad is being extradited
pursuant to the United States’ Extradition Treaty with the Philippines,
U.S.-Phil., art. VII, Nov. 13, 1994, S. Treaty Doc. No. 104-16, 1994 WL
855110.
3
Chief Judge Kozinski argues that we lack jurisdiction over Trinidad’s
claim based on his cabining of Trinidad’s claim as strictly statutory or reg-
ulatory. E.g., Kozinski Partial Dissent at 6496-97. He distinguishes my
reliance on Valentine based on his contention that “the Valentine extra-
ditees’ challenge fell squarely within the second traditional category of
habeas review of extradition . . . : whether the executive branch was oper-
ating under a valid treaty authorizing the extradition in question.” Id. at
6501-02. In short, he contends that treaty-based claims are cognizable
under habeas, but statutory claims are not. I must disagree.
First, as a general matter, my respected colleague fails to adequately
account for a baseline principle: “In the extradition context, when a ‘fugi-
tive criminal’ is found within the United States, ‘ “there is no authority
6416 GARCIA v. THOMAS
vested in any department of the government to seize [him] and surrender
him to a foreign power,” ’ in the absence of a pertinent constitutional or
legislative provision.” Munaf, 553 U.S. at 704 (alteration in original)
(quoting Valentine, 299 U.S. at 8-9). Accordingly, when an individual
claims, as Trinidad does, that his extradition is precluded by the terms of
a statute or regulations, he necessarily claims that the Executive has acted
in excess of its Article II authority—irrefutably a constitutional question.
See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952)
(finding that a question as to whether the Executive acted in excess of its
inherent or delegated power presented a question of “constitutional validi-
ty”).
Moreover, Valentine itself does not support the narrow line my col-
league draws. There, “[b]y the writs of habeas corpus,” extraditees chal-
lenged the Executive’s decision to extradite them to France. 299 U.S. at
6. Their argument was simple: “the President had no constitutional author-
ity to surrender the[m] to the French Republic.” Id. (emphasis added). The
Court agreed. It expressed no hesitation in reviewing, and ultimately grant-
ing, their claims under its habeas power. Id. at 18.
Admittedly, Valentine itself concerned treaty limitations. That was after
all the claimed basis for the Executive’s extradition authority as to those
extraditees. Id. at 6 (“Respondents sued out writs of habeas corpus to pre-
vent their extradition to France under the Treaty of 1939 (37 Stat.
1526).”). However, the Court made clear that its rationale was no less
applicable to statutory limitations:
There is no executive discretion to surrender him to a foreign
government, unless that discretion is granted by law. It necessar-
ily follows that as the legal authority does not exist save as it is
given by act of Congress or by the terms of a treaty, it is not
enough that statute or treaty does not deny the power to surren-
der. It must be found that statute or treaty confers the power.
Id. at 9 (emphasis added). As noted by the Court, “The question is not one
of policy, but of legal authority.” Id. at 6 (emphasis added). And there is
no tenable justification for arguing that congressional statutes are less
effective curbs on Executive extradition authority than treaties. The Court
has made clear that the opposite is in fact true. See Medellin v. Texas, 552
U.S. 491, 505 (2008).
Finally, I wholeheartedly agree with my colleague that courts have tra-
ditionally rejected claims like Trinidad’s that are based on the treatment
an extraditee expects to receive in the receiving country. Cf. Kozinski Par-
GARCIA v. THOMAS 6417
Trinidad misjudges the effect of that inquiry, however.
Even were we to agree that either the Convention, the FARR
Act, or the regulations limit Executive authority, it does not
necessarily follow that the scope of our habeas review would
grow in kind. See, e.g., Oteiza v. Jacobus, 136 U.S. 330, 334
(1890) (“A writ of habeas corpus in a case of extradition can-
not perform the office of a writ of error.”). Rather, because
the Rule of Non-Inquiry remains, these limits would only
establish the concerns that might be cognizable on habeas
review. See id.; see also Munaf, 553 U.S. at 693 (“The princi-
ple that a habeas court is ‘not bound in every case’ to issue
the writ . . . follows from the precatory language of the habeas
statute, and from its common-law origins.”); Neely, 180 U.S.
at 123. It is only when Congress pairs a limitation on the Sec-
retary’s extradition authority with an express invitation for
judicial review that the Rule of Non-Inquiry retracts to permit
that review. See Fernandez v. Phillips, 268 U.S. 311, 312
(1925); Neely, 180 U.S. at 123; see also Munaf, 553 U.S. at
702-03. Compare 18 U.S.C. § 31844 (statute authorizing
tial Dissent at 6496 (citing Neely, Oteiza, and Fernandez). As Munaf
makes abundantly clear, however, we cannot confuse our opinion as to the
merits of his claim with his initial entitlement to review. 553 U.S. at 691,
700 (concluding that “[t]he lower courts in Munaf erred in dismissing for
want of jurisdiction,” even though it ultimately concluded that the peti-
tioners could not challenge their transfer based on their belief that their
“transfer to Iraqi custody is likely to result in torture”). Even assuming
that Trinidad is not ultimately entitled to relief based on the treatment he
expects in the Philippines, we have jurisdiction to review his claim. Id.
4
Section 3184 provides:
Whenever there is a treaty or convention for extradition
between the United States and any foreign government, or in
cases arising under section 3181(b), any justice or judge of the
United States, or any magistrate judge authorized so to do by a
court of the United States, or any judge of a court of record of
general jurisdiction of any State, may, upon complaint made
under oath, charging any person found within his jurisdiction,
with having committed within the jurisdiction of any such foreign
6418 GARCIA v. THOMAS
extradition under specified conditions), with Barapind v.
Reno, 225 F.3d 1100, 1105 n.4 (9th Cir. 2000) (noting the six
extradition-related questions cognizable on habeas review).
Three cases—Neely, Oteiza, and Fernandez—aptly demon-
strate this point.
As Neely discusses, near the turn of the twentieth century,
the statutory extradition framework was codified at § 5270 of
the United States Revised Statutes of 1878—a precursor to
the United States Code. As originally enacted, that statute
placed little to no restriction on the Executive’s extradition
authority. It required only that there be “a treaty or convention
for extradition between the government of the United States
and [the] foreign government” and that the official authoriz-
ing extradition have jurisdiction over both the request and the
person of the accused. Neely, 180 U.S. at 110-11 (emphasis
omitted) (quoting § 5270); accord Oteiza, 136 U.S. at 334. If
these conditions were met, Congress left to the extraditing
official the decision whether “the evidence [was] sufficient to
government any of the crimes provided for by such treaty or con-
vention, or provided for under section 3181(b), issue his warrant
for the apprehension of the person so charged, that he may be
brought before such justice, judge, or magistrate judge, to the end
that the evidence of criminality may be heard and considered.
Such complaint may be filed before and such warrant may be
issued by a judge or magistrate judge of the United States District
Court for the District of Columbia if the whereabouts within the
United States of the person charged are not known or, if there is
reason to believe the person will shortly enter the United States.
If, on such hearing, he deems the evidence sufficient to sustain
the charge under the provisions of the proper treaty or conven-
tion, or under section 3181(b), he shall certify the same, together
with a copy of all the testimony taken before him, to the Secre-
tary of State, that a warrant may issue upon the requisition of the
proper authorities of such foreign government, for the surrender
of such person, according to the stipulations of the treaty or con-
vention; and he shall issue his warrant for the commitment of the
person so charged to the proper jail, there to remain until such
surrender shall be made.
GARCIA v. THOMAS 6419
sustain the charge under the provisions of the treaty.” Oteiza,
136 U.S. at 334. Accordingly, in Oteiza the Court summa-
rized the habeas jurisdiction of reviewing courts as follows:
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 compe-
tent legal evidence on which to exercise his judg-
ment as to whether the facts are sufficient to
establish the criminality of the accused for the pur-
poses of extradition, such decision of the commis-
sioner cannot be reviewed by a circuit court or by
this court, on habeas corpus, either originally or by
appeal.
Id. (emphasis added). In short, habeas review extended no fur-
ther than the explicit terms of judicial review authorized by
the statute. Even though the statute limited the Executive’s
authority, the statute did not explicitly authorize review of the
Executive’s decision and thus the Court declined to second-
guess the commissioner’s self-professed adherence. See id.;
accord Munaf, 553 U.S. at 702.
Notably, however, the scope of what was cognizable on
habeas review began to expand in 1900 when Congress
amended § 5270 to require, among other things, a judicial
determination of probable cause before the Executive could
lawfully extradite.5 Neely, 180 U.S. at 111. Thus, in the post-
amendment case of Fernandez, the Court concluded that the
writ extended to “whether the magistrate had jurisdiction,
5
Specifically, Congress amended § 5270 to add the following: “That
such proceedings shall be had before a judge of the courts of the United
States only, who shall hold such person on evidence establishing probable
cause that he is guilty of the offense charged.” Act of June 6, 1900, ch.
793, 31 Stat. 656, 657.
6420 GARCIA v. THOMAS
whether the offense charged is within the treaty and, by a
somewhat liberal extension, whether there was any evidence
warranting the finding that there was reasonable ground to
believe the accused guilty.” 268 U.S. at 312 (emphasis
added). And, unlike in Oteiza, the Fernandez Court delved
into the facts to make an independent legal determination of
probable cause, id. at 313-14 (“We are of opinion that proba-
ble cause to believe the defendant guilty was shown by com-
petent evidence and that the judgment remanding the
appellant must be affirmed.”), as required by the amendment
to § 5270—an inquiry we still undertake today.
In sum, what these cases demonstrate is that the scope of
our habeas review in the extradition context wholly depends
on the will of Congress. The judiciary participates in the
extradition process only by congressional invitation, Neely,
180 U.S. at 123, and thus our power extends no further than
the bounds of that invitation. See Munaf, 553 U.S. at 702-03;
Oteiza, 136 U.S. at 334. When, as under the 1890 form of
§ 5270, Congress prefers that the courts play a minimal role,
our review is just that, minimal. As Oteiza demonstrates, it
may be as minute as deciding whether jurisdiction and an
authorizing treaty exist, 136 U.S. at 334—questions on which
Trinidad has already received all the habeas review to which
he is entitled. However, as the contrast between Oteiza and
Fernandez demonstrates, when Congress requires that we
play a greater role, the Rule’s “hands-off” practice is abro-
gated to the extent Congress directs.6
We must therefore evaluate the Convention, the FARR Act,
and the regulations to ascertain whether, as it did when it
amended § 5270 in 1900, Congress has extended a broader
6
It is worthwhile to note that it is because of this reality that my col-
leagues’ reliance on our immigration case law is unavailing. E.g., Preger-
son Concurrence at 6491; Berzon Concurrence at 6459-60. Unlike in the
extradition context, Congress has expressly provided for judicial review of
final orders of removal. E.g., 8 U.S.C. § 1252.
GARCIA v. THOMAS 6421
invitation. We must first consider whether any of these provi-
sions actually binds the Executive’s statutory authority. More-
over, as Oteiza demonstrates, even if any of these provisions
actually limits Executive authority, we must further determine
whether Congress intended for the judiciary to have a role in
evaluating the Executive’s compliance.7 Id. (concluding that
7
Notwithstanding my discussion of Oteiza, Fernandez, and Neely, Judge
Berzon erroneously argues that I rely on only the Court’s earliest Rule of
Non-Inquiry jurisprudence to conclude “that judicial review in all extradi-
tion cases is limited to . . . a narrowly circumscribed examination of a
magistrate’s finding of extraditability and of the magistrate’s jurisdiction
to enter such a finding.” Berzon Concurrence at 6466-67. That is not true.
I reiterate: the entirety of the Court’s Rule jurisprudence demonstrate that
the scope of our review is not frozen in its 1890’s form, but rather ebbs
and flows at Congress’ direction.
Frankly, it is Judge Berzon who attempts to avoid the clear import of
all of the Court’s direction by artificially splitting the Court’s Rule juris-
prudence into two allegedly “competing” strands. Id. at 6466-67. This
strawman allows her to ignore the clear import of the Court’s earlier case
law—case law that firmly rebuts her position—and thus disregard historic
Rule principles. As Neely demonstrates, however, no actual distinction
exists. 180 U.S. at 109-10 (relying upon the statute at issue in both Oteiza
and Fernandez to support its conclusion). Just like Oteiza and Fernandez,
Neely refused to extend judicial review in extradition cases, regardless of
the nature of the perceived violation, absent specific direction from Con-
gress. See id. at 109-10, 123 (noting the progression of § 5270 and consid-
ering that progression’s effect on the scope of its habeas review).
Moreover, in critiquing my steadfast adherence to that reality, Berzon
Concurrence at 6471-72, Judge Berzon compares apples to oranges when
she equates judicial review of a specific extradition order with the judicia-
ry’s longstanding power to review acts of Congress. Compare Marbury v.
Madison, 5 U.S. 137 (1803), with Oteiza, 136 U.S. at 334 (concluding in
1890 that the “decision of the commissioner cannot be reviewed by a cir-
cuit court or by this court, on habeas corpus, either originally or by
appeal” if, among other things, “the offense charged is within the terms
of a treaty of extradition”). She disregards the fact that the Supreme Court
has itself distinguished the judiciary’s power to review the broad question
of Executive authority to extradite from a more myopic inquiry into the
merits of the decision itself. Compare Berzon Concurrence at 6471-72,
with Oteiza, 136 U.S. at 334-35 (“A writ of habeas corpus in a case of
extradition cannot perform the office of a writ of error. . . . ‘We are not
sitting in this court on the trial of the prisoner, with power to pronounce
him guilty and punish him, or declare him innocent and acquit him.’ ”
(citation omitted)).
6422 GARCIA v. THOMAS
habeas review did not extend to permit review of the Execu-
tive’s determination that it was in compliance with § 5270’s
requirement that “the evidence [was] sufficient to sustain the
charge under the provisions of the treaty”); see Benson v.
McMahon, 127 U.S. 457, 460-63 (1888) (noting the limits of
§ 5270 and the relevant treaty). Before we may address either
of these questions, however, we must consider the threshold
matter of our jurisdiction.
1
The government contends that two different statutory pro-
visions negatively affect our jurisdiction over Trinidad’s
claim: subsection (d) of the FARR Act and 8 U.S.C.
§ 1252(a)(4)(d). We must determine whether either over-
comes the lofty standards for precluding habeas jurisdiction
established by the Court in INS v. St. Cyr, 533 U.S. 289(2001).
Courts are not to conclude lightly that a statute precludes
habeas review. Rather, the Supreme Court has directed that
two principles must be considered:
“First, as a general matter, when a particular interpretation
of a statute invokes the outer limits of Congress’ power, we
expect a clear indication that Congress intended that result.”
St. Cyr, 533 U.S. at 299. “[W]here a provision precluding
review is claimed to bar habeas review, the Court has required
a particularly clear statement that such is Congress’ intent.”
Demore v. Kim, 538 U.S. 510, 517 (2003) (noting that the
Court held in St. Cyr, 533 U.S. at 308-09, that a provision
titled “ ‘Elimination of Custody Review by Habeas Corpus,’
along with broad statement of intent to preclude review, was
not sufficient to bar review of habeas corpus petitions”); St.
Cyr, 533 U.S. at 298 (citing cases refusing to bar habeas
review where there was no specific mention of the Court’s
authority to hear habeas petitions); id. at 327 (Scalia, J., dis-
senting) (arguing that the majority “fabricates a superclear
GARCIA v. THOMAS 6423
statement, ‘magic words’ requirement for the congressional
expression of” an intent to preclude habeas review).
Second, even if a sufficiently clear statement exists, courts
must evaluate whether “an alternative interpretation of the
statute is ‘fairly possible.’ ” St. Cyr, 533 U.S. at 299-300(“[I]f an otherwise acceptable construction of a statute would
raise serious constitutional problems, and where an alternative
interpretation of the statute is ‘fairly possible,’ see Crowell v.
Benson, 285 U.S. 22, 62 (1932), we are obligated to construe
the statute to avoid such problems.”). If so, courts are
instructed to effectuate that interpretation rather than the con-
stitutionally suspect alternative. Id. at 299-300, 300 n.12
(“ ‘As was stated in Hooper v. California, 155 U.S. 648, 657
(1895), “[t]he elementary rule is that every reasonable con-
struction must be resorted to, in order to save a statute from
unconstitutionality. . . .” The courts will therefore not lightly
assume that Congress intended to infringe constitutionally
protected liberties or usurp power constitutionally forbidden
it.’ ” (first alteration in original) (quoting Edward J. DeBar-
tolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council,
485 U.S. 568, 575 (1988))).
As concluded by the First and Second Circuits, the FARR
Act fails to overcome even the first of St. Cyr’s concerns, suf-
ficient clarity. Saint Fort v. Ashcroft, 329 F.3d 191, 200-02
(1st Cir. 2003) (concluding that the FARR Act does not pre-
clude habeas jurisdiction, at least in the immigration context);
Wang v. Ashcroft, 320 F.3d 130, 140-42 (2d Cir. 2003)
(same). But see Mironescu v. Costner, 480 F.3d 664, 674 (4th
Cir. 2007).8 Primarily, the pertinent provision, § 2242(d),9
8
Because the Fourth Circuit explicitly disclaimed any consideration of
the Suspension Clause’s effect, Mironescu, 480 F.3d at 677 n.15 (“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.”), its rationale
is of limited persuasive value to my resolution of Trinidad’s more thor-
oughly argued claim. To be clear, though, I agree with Chief Judge Kozin-
ski’s summation that, for all intents and purposes, our ruling as to
jurisdiction in this context creates a circuit split.
9
For the full text of § 2242(d), see infra pages 6427-28.
6424 GARCIA v. THOMAS
speaks only in terms of review, not habeas. This alone appears
dispositive. Demore, 538 U.S. at 517; St. Cyr, 533 U.S. at
298. But see St. Cyr, 533 U.S. at 327 (Scalia, J., dissenting)
(arguing that specific mention of “habeas” is not required).
Moreover, § 2242(d) can readily be interpreted as
jurisdiction-neutral—neither providing nor precluding juris-
diction. It thus falls far short of the “particularly clear state-
ment” necessary for us to conclude that Congress intended to
bar habeas review. Demore, 538 U.S. at 517; St. Cyr, 533
U.S. at 298.
Section 1252(a)(4) does not suffer from the same infirmity.
It clearly demonstrates congressional intent to preclude
habeas review of a broad category of claims when it declares:
Notwithstanding any other provision of law (statu-
tory or nonstatutory) including section 2241 of Title
28, or any other habeas corpus provision, and sec-
tions 1361 and 1651 of such title, a petition for
review filed with an appropriate court of appeals in
accordance with this section shall be the sole and
exclusive means for judicial review of any cause or
claim under the United Nations Convention Against
Torture and Other Forms of Cruel, Inhuman, or
Degrading Treatment or Punishment, except as pro-
vided in subsection (e) of this section.
§ 1252(a)(4) (emphasis added). It easily hurdles the first of St.
Cyr’s requirements, see Demore, 538 U.S. at 517; St. Cyr, 533
U.S. at 298, and gives us cause to consider St. Cyr’s second
admonition—whether a “fairly possible” alternative interpre-
tation exists that would allow us to avoid resolving the “diffi-
cult” constitutional question that might otherwise arise, i.e.,
whether relying on § 1252(a)(4) to preclude habeas review
would be consistent with the Suspension Clause.10 See 533
10
As provided in Article I, Section 9, Clause 2, of the United States
Constitution, “The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the public
Safety may require it.”
GARCIA v. THOMAS 6425
U.S. at 299-300, 301 n.13 (“The fact that this Court would be
required to answer the difficult question of what the Suspen-
sion Clause protects is in and of itself a reason to avoid
answering the constitutional questions that would be raised by
concluding that review was barred entirely.”).
In resolving the threshold element of this second admoni-
tion, whether a difficult Suspension Clause question in fact
exists, see id. at 300-01, we must consider the historical scope
of the writ. Fortunately, the Court has already done much of
the heavy lifting. In St. Cyr, the Court considered whether
§ 1252(a)(2)(C) (2000)11 precluded courts from considering
even “a pure question of law”—whether an alien was entitled
to relief under “[s]ection 212 of the Immigration and Nation-
ality Act of 1952.” Id. at 295, 298, 300. After noting that the
Suspension Clause, at a minimum, protects the writ as it
existed in 1789, the Court wasted little time in concluding that
the writ had historically reached such questions:
In England prior to 1789, in the Colonies, and in this
Nation during the formative years of our Govern-
ment, the writ of habeas corpus was available to non-
enemy aliens as well as to citizens. It enabled them
to challenge Executive and private detention in civil
11
The form of the statute at issue in St. Cyr provided:
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 committed a criminal
offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B),
(C), or (D) of this title, or any offense covered by section
1227(a)(2)(A)(ii) of this title for which both predicate offenses
are, without regard to their date of commission, otherwise cov-
ered by section 1227(a)(2)(A)(I) of this title.
§ 1252(a)(2)(C) (2000). It has since been amended. Pub. L. No. 109-13,
Div. B, § 106(a)(1)(A)(ii) (2005) (inserting “(statutory or nonstatutory),
including section 2241 of Title 28, or any other habeas corpus provision,
and sections 1361 and 1651 of such title, and except as provided in sub-
paragraph (D)” after “Notwithstanding any other provision of law”).
6426 GARCIA v. THOMAS
cases as well as criminal. Moreover, the issuance of
the writ was not limited to challenges to the jurisdic-
tion of the custodian, but encompassed detentions
based on errors of law, including the erroneous
application or interpretation of statutes. It was used
to command the discharge of seamen who had a stat-
utory exemption from impressment into the British
Navy, to emancipate slaves, and to obtain the free-
dom of apprentices and asylum inmates. Most
important, for our purposes, those early cases con-
tain no suggestion that habeas relief in cases involv-
ing Executive detention was only available for
constitutional error.
Id. at 301-03 (emphasis added) (footnotes omitted). More-
over, the Court rejected the INS’s argument that the character
of the underlying relief—mandatory or discretionary—was
relevant as to whether courts could traditionally entertain
challenges to the overarching legal question of statutory eligi-
bility. Id. at 307 (“Habeas courts also regularly answered
questions of law that arose in the context of discretionary
relief.”). “Eligibility that was ‘governed by specific statutory
standards’ provided ‘a right to a ruling on an applicant’s eligi-
bility,’ even though the actual granting of relief was ‘not a
matter of right under any circumstances, but rather is in all
cases a matter of grace.’ ”12 Id. at 307-08 (citation omitted).
12
Courts have traditionally “recognized a distinction between eligibility
for discretionary relief, on the one hand, and the favorable exercise of dis-
cretion, on the other hand.” St. Cyr, 533 U.S. at 307. Whereas litigants
were entitled to review of their purely legal challenges, they were not enti-
tled to review of the ultimate decision as to whether to grant relief. Id. at
307-08 (noting the “strong tradition in habeas corpus law . . . that subjects
the legally erroneous failure to exercise discretion, unlike a substantively
unwise exercise of discretion, to inquiry on the writ” (quoting Gerald L.
Neuman, Jurisdiction and the Rule of Law after the 1996 Immigration Act,
113 Harv. L. Rev. 1963, 1991 (2000))); see id. at 298 (“[St. Cyr] does not
dispute any of the facts that establish his deportability or the conclusion
that he is deportable. Nor does he contend that he would have any right
GARCIA v. THOMAS 6427
Given St. Cyr, I think it plain that Trinidad would histori-
cally have been entitled to habeas review of his claim to the
extent he argues that the Convention or the FARR Act bind
the authority of the Executive to extradite him—“a pure ques-
tion of law.” See Munaf, 553 U.S. at 691-93, 700 (discussing
Valentine, 299 U.S. at 8-9). Thus, a serious constitutional
question would arise were Congress to preclude our habeas
review as to whether those statutory provisions actually cur-
tailed Executive authority, unless some other forum or oppor-
tunity for review existed. See St. Cyr, 533 U.S. at 314 (“If it
were clear that the question of law could be answered in
another judicial forum, it might be permissible to accept the
INS’ reading of § 1252. But the absence of such a forum, cou-
pled with the lack of a clear, unambiguous, and express state-
ment of congressional intent to preclude judicial consideration
on habeas of such an important question of law, strongly
counsels against adopting a construction that would raise seri-
ous constitutional questions.”).
In this case, there is no substitute. Absent habeas review,
Trinidad would never receive any judicial review of his claim
that his extradition would violate statutory limitations on the
Executive’s extradition authority. See, e.g., Valentine, 299
U.S. at 18; cf. Omar v. McHugh, 646 F.3d 13, 19 (D.C. Cir.
2011), as amended.13 The threshold element of St. Cyr’s sec-
ond admonishment is thus met—a serious constitutional ques-
to have an unfavorable exercise of the Attorney General’s discretion
reviewed in a judicial forum. Rather, he contests the Attorney General’s
conclusion that, as a matter of statutory interpretation, he is not eligible for
discretionary relief.”). Thus, Congress could likely preclude review of the
Secretary’s ultimate merits decision. Id. at 307-08; see Oteiza, 136 U.S.
at 334.
13
Like Munaf, Omar concerned transfer and not extradition, and thus
did not need to account for the historical practice of permitting extraditees
to challenge the legal authority of the Executive to extradite, Munaf, 553
U.S. at 704—the cause for our Suspension Clause concern.
6428 GARCIA v. THOMAS
tion would exist were we to determine that § 1252(a)(4)
precludes review of Trinidad’s legal claim.
Accordingly, we must consider whether an alternative
interpretation is “fairly possible.” St. Cyr, 533 U.S. at 299-
300. Trinidad and amici urge us to conclude that one is; that
§ 1252(a)(4) should be interpreted as limiting habeas review
only in the immigration context—a context in which individu-
als would be entitled to file a petition for review on their Con-
vention claims and therefore would receive the modicum of
process likely required to avoid a Suspension Clause issue.
See H.R. Rep. No. 109-72, at 121 (2005), reprinted in 2005
U.S.C.C.A.N. 240, 299. I agree.
There are a number of indicators that Congress intended
§ 1252(a)(4) to be applicable only in the immigration context.
Among other things, Congress enacted § 1252(a)(4) as part of
the REAL ID Act, the effect of which we have considered
limited to the immigration context. See, e.g., Singh v. Gon-
zales, 499 F.3d 969, 978 (9th Cir. 2007) (“[B]oth
§§ 1252(a)(5) and 1252(b)(9) apply only to those claims seek-
ing judicial review of orders of removal.”); Puri v. Gonzales,
464 F.3d 1038, 1041 (9th Cir. 2006) (“[T]he REAL ID Act’s
jurisdiction-stripping provisions . . . [do] not apply to [the]
claim because [the] claim is not a direct challenge to an order
of removal.”). And, as the House Committee Report explicitly
states, Congress did not intend to “preclude habeas review
over challenges to detention that are independent of chal-
lenges to removal orders.” H.R. Rep. No. 109-72, at 122,
reprinted in 2005 U.S.C.C.A.N. 240, 300. The bill was
intended to “eliminate habeas review only over challenges to
removal orders.” Id.; accord Pub. L. No. 109-13, Div. B, Title
I, § 106(b), 119 Stat. 231, 311 (2005) (codified as a note to
§ 1252) (noting that the “amendments made by subsection (a)
. . . shall apply to cases in which the final administrative order
of removal, deportation, or exclusion was issued before, on,
or after the date of the enactment of this division”). Finally,
the section title itself, “Judicial review of orders of removal,”
GARCIA v. THOMAS 6429
and the subchapter title, “Immigration,” only further reaffirm
this cabining of the section’s effect. Cf. Almendarez-Torres v.
United States, 523 U.S. 224, 234 (1998) (“[T]he title of a stat-
ute and the heading of a section are tools available for the res-
olution of a doubt about the meaning of a statute.” (citation
and internal quotation marks omitted)).
In light of St. Cyr, and the factors discussed above, I would
conclude that § 1252(a)(4) does not deprive us of habeas
jurisdiction over Trinidad’s claim because there is a “fairly
possible” alternative interpretation—that § 1252(a)(4) applies
only to those claims seeking judicial review of orders of
removal.
2
Having concluded that we have habeas jurisdiction, I move
to the first merits question: whether, as Trinidad contends,
Congress actually intended to restrict the Executive’s extradi-
tion authority via the Convention, the FARR Act, or the
implementing regulations. To resolve that question, I consider
each in turn.
i
I do not dwell long on the Convention or its terms. Treaties
“are not domestic law unless Congress has either enacted
implementing statutes or the treaty itself conveys an intention
that it be ‘self-executing’ and is ratified on these terms.”
Medellin, 552 U.S. at 505 (citation and internal quotation
marks omitted). The Convention satisfies neither condition.
The Senate expressly conditioned its ratification of the
Convention on the fact that it was “not self-executing.” 136
Cong. Rec. 36,198 (1990); see also 136 Cong. Rec. S17486-
01 (daily ed. Oct. 27, 1990) (statement of Sen. Terry Sanford)
(rendering the advice and consent of the Senate in ratifying
the Convention subject to the declaration that “the provisions
6430 GARCIA v. THOMAS
of Articles 1 through 16 of the Convention are not self-
executing”); S. Treaty Doc. No. 100-20, at 2 (1988). And, as
I will explain shortly, the FARR Act did not implement the
Convention in a manner that curtails the Secretary’s authority
to extradite. See Munaf, 553 U.S. at 703 n.6 (“[C]laims under
the FARR Act may be limited to certain immigration proceed-
ings.”); cf. Saint Fort, 329 F.3d at 202 (concluding that the
Act and regulations effectuated the Convention in the immi-
gration context); Wang, 320 F.3d at 140 (same). The Conven-
tion therefore cannot affect the Executive’s authority under
§ 3184 except to the extent directed by the relevant regula-
tions.
ii
The FARR Act requires greater scrutiny. In relevant detail,
it provides:
(a) Policy.—It 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 tor-
ture, regardless of whether the person is physically
present in the United States.
(b) Regulations.—Not later than 120 days after
the date of enactment of this Act [Oct. 21, 1998], the
heads of the appropriate agencies shall prescribe reg-
ulations to implement the obligations of the United
States under Article 3 of the United Nations Conven-
tion Against Torture and Other Forms of Cruel,
Inhuman or Degrading Treatment or Punishment,
subject to any reservations, understandings, declara-
tions, and provisos contained in the United States
Senate resolution of ratification of the Convention.
***
GARCIA v. THOMAS 6431
(d) Review and construction.—Notwithstanding
any other provision of law, and except as provided
in the regulations described in subsection (b), no
court shall have jurisdiction to review the regulations
adopted to implement this section, and nothing in
this section [this note] shall be construed as provid-
ing any court jurisdiction to consider or review
claims raised under the Convention or this section
[this note], 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).
§ 2242.
Trinidad argues that subsection (a) is dispositive. He ech-
oes the erroneous conclusion in Cornejo-Barreto v. Seifert,
218 F.3d 1004, 1012 (9th Cir. 2000)—a decision we expressly
overrule today—in asserting that the FARR Act’s articulation
of “policy” confers a binding, non-discretionary obligation on
the Secretary. That cannot be.14
(Text continued on page 6433)
14
I think it important to dispel at the very outset of my FARR Act dis-
cussion the erroneous assertion made by some of my esteemed colleagues
that my position is at odds with the government’s. Two examples more
than demonstrate my point. The first pertains to my colleague’s represen-
tation that the government has emphatically asserted, Berzon Concurrence
at 6454, that “the FARR Act thereby ‘prohibits the extradition of a person
who more likely than not will be tortured, and . . . creates a duty on the
part of the Secretary of State to implement that prohibition,’ ” Berzon
Concurrence at 6453 (citing the government’s brief at pages 4 and 66). As
the record makes clear, the government said no such thing. Rather, the
government in fact stated:
Trinidad has contended that Article 3 of the Torture Act pro-
hibits the extradition of a person who more likely than not will
be tortured, and that the FARR Act creates a duty on the part of
the Secretary of State to implement that prohibition. While these
contentions are correct, neither of those instruments makes justi-
6432 GARCIA v. THOMAS
ciable the Secretary’s surrender determination which is exclu-
sively within the province of the Secretary of State.
Gov’t Brief at 66 (emphasis added).
I fully agree with the government’s actual position. Article 3 of the
Convention does indeed purport to prohibit the extradition of individuals
likely to be tortured. However, as explained, the Convention lacks the
force of domestic law. Accordingly, as the government contends, Con-
gress enacted the FARR Act to cause the “Secretary of State to implement
that prohibition.” Id. Thus, as I explain in this section and the following,
we must turn to these regulations, and not to the Act, to ascertain the scope
of the obligations actually imposed.
The second example concerns a similar misrepresentation: that the State
Department has interpreted its own regulations as precluding it from “sur-
render[ing] a fugitive who more likely than not will be tortured, even if
foreign policy interests at the time would be served by an extradition.”
Berzon Concurrence at 6459; see also Pregerson Concurrence at 6492.
The government never advanced such a position in its briefs. Again, one
need only turn to the actual text of the government’s “interpretation” to
see that the government offered no interpretation at all. Gov’t Brief at 4.
Instead, the government was simply explaining that its position fell within
the bounds of those matters Munaf held to be free from judicial second-
guessing, cf. Munaf, 553 U.S. at 702 (“[T]his is not a more extreme case
in which the Executive has determined that a detainee is likely to be tor-
tured but decides to transfer him anyway.”)—as demonstrated by the fact
that the government thereafter cited Munaf for that very proposition. Id.(quoting Munaf, 553 U.S. at 702).
Perhaps more worrisome, though, is that the government’s position
regarding the import of the regulations is wholly irrelevant to the point for
which Judge Berzon attempts to demand deference: her contention that the
statute itself implements the Convention or binds Executive authority. Cf.
Berzon Concurrence at 6458-59 (citing Chase Bank USA, N.A. v. McCoy,
131 S. Ct. 871, 880 (2011)). Quite simply, one has nothing to do with the
other. Compare Schleining v. Thomas, 642 F.3d 1242, 1246 (9th Cir.
2011) (“Chevron deference to an agency’s interpretation of an ambiguous
statute applies only if the agency involved has formally interpreted the
statute or promulgated a rule based on an implicit interpretation of the stat-
ute.”), with § 95.4 (“Decisions of the Secretary concerning surrender of
fugitives for extradition are matters of executive discretion not subject to
judicial review.” (emphasis added)), and § 95.3(b) (“[T]he Secretary may
GARCIA v. THOMAS 6433
First and foremost, one cannot glean congressional intent
from a single sentence of a statute. Rather, because “[t]he
meaning—or ambiguity—of certain words or phrases may
only become evident when placed in context,” FDA v. Brown
& Williamson Tobacco Corp., 529 U.S. 120, 132 (2000), it is
a “fundamental canon of statutory construction that the words
of a statute must be read in their context and with a view to
their place in the overall statutory scheme,” Davis v. Mich.
Dep’t of Treasury, 489 U.S. 803, 809 (1989). “[O]ur task is
to fit, if possible, all parts into an harmonious whole.” FTC
v. Mandel Bros., Inc., 359 U.S. 385, 389 (1959); see Penn-
hurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 18 (1981).15
The Court’s example in Pennhurst is instructive. There, the
Court considered whether Congress intended the “bill of
rights” provision of 42 U.S.C. § 601016 to confer “substantive
decide to surrender the fugitive to the requesting State, to deny surrender
of the fugitive, or to surrender the fugitive subject to conditions.” (empha-
sis added)).
15
Judge Berzon’s attempts to distinguish Pennhurst are unpersuasive.
As my discussion makes clear, I do not rely on the Court’s explanation to
argue in favor of some “superclear” words test. But see Berzon Concur-
rence at 6454-56. Rather, I cite Pennhurst as one example among many
wherein the Court has cautioned us to interpret a statute as a whole rather
than by focusing on a single piece or provision—a mundane and well-
established principle of statutory interpretation that my concurring col-
leagues disregard. To be sure, neither explains the inherent conflict
between § 2242(a) (stating “the policy of the United States” (emphasis
added)) and § 2242(b) (directing the Secretary to prescribe regulations “to
implement the obligations of the United States” (emphasis added)) under
their interpretations of the Act.
16
The language at issue in Pennhurst provided:
Congress makes the following findings respecting the rights of
persons with developmental disabilities:
(1) Persons with developmental disabilities have a right to
appropriate treatment, services, and habilitation for such dis-
abilities.
6434 GARCIA v. THOMAS
rights” or to impose “an obligation on the States.” 451 U.S.
at 13, 15. Plaintiffs pointed out that the statute explicitly
spoke in terms of “rights” and “obligations” and therefore
could not be interpreted as conferring anything less. Id. at 18.
The Court disagreed. It emphasized that courts cannot inter-
pret a statute by relying solely on “a single sentence or mem-
ber of a sentence,” and that the seemingly clear provisions
relied upon by the plaintiffs were rendered ambiguous by the
context of the remainder of the Act. Id. at 18-19. Considering
those other provisions, the Court concluded that § 6010 “does
no more than express a congressional preference for certain
kinds of treatment”—that it provides “simply a general state-
ment of ‘findings’ ” that “justifies and supports Congress’
appropriation of money under the Act and guides the Secre-
tary in his review of state applications for federal funds.” Id.
at 19 (emphasis added).
Thus, as Pennhurst demonstrates, even assuming that sub-
section (a) could be interpreted as Trinidad suggests, we must
test that interpretation against the remainder of the Act.
Brown, 529 U.S. at 132; Mandel Bros., 359 U.S. at 389. Sub-
section (b) is particularly illuminating. Its directive that “the
heads of the appropriate agencies prescribe regulations to
implement the obligations of the United States under Article
3 of the United Nations Convention Against Torture,”
(emphasis added), conflicts with Trinidad’s assertion that the
FARR Act itself implements the Convention and binds Exec-
utive authority. Cf. Alexander v. Sandoval, 532 U.S. 275, 290
***
(3) The Federal Government and the States both have an
obligation to assure that public funds are not provided to any
institutio[n] . . . that—(A) does not provide treatment, ser-
vices, and habilitation which is appropriate to the needs of
such person; or (B) does not meet the following minimum
standards . . . .
451 U.S. at 13 (some alterations in original) (emphasis added).
GARCIA v. THOMAS 6435
(2001) (“The express provision of one method of enforcing a
substantive rule suggests that Congress intended to preclude
others.”).
Congress did not direct the agency heads to further imple-
ment our obligations. Nor did Congress direct the agencies to
promulgate regulations that conformed to or even considered
the FARR Act. Rather, subsection (b) suggests that Congress
intended the FARR Act to serve not as the implementing tool,
but only as the mandate directing the promulgation of regula-
tions that would implement the Convention. Cf. id. Rather
than attempting to implement the Convention with a single
broad stroke, Congress wisely delegated the task to those who
could act with more surgical precision, crafting regulations
that take into account the intricacies and specific history of
their respective areas of expertise.17
Subsection (d) also supports this view of the Act. Here
again, Congress focuses not on the Act’s effect, but on the
effect of the regulations. § 2242(d) (noting that the regulations
will implement the obligations of the United States). In addi-
tion, as discussed, the provision is at best jurisdiction-neutral
—neither providing nor barring jurisdiction. Congress specifi-
cally declined to provide a mechanism for “claims raised
under the Convention” or the Act, “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).” Id.
(emphasis added). This absence is telling. Cf. Sandoval, 532
U.S. at 290. As the Court noted in Munaf, it suggests that
Congress did not intend to impose an obligation on the Execu-
tive outside the removal context. 553 U.S. at 703 n.6
(“[C]laims under the FARR Act may be limited to certain
immigration proceedings.”);18 see § 2242(c), (e) (relying on
17
Accordingly, the Act is far from impotent. Contra Berzon Concur-
rence at 6456. It serves as an affirmative mandate to the “agency heads”
imposing on them an obligation to enact appropriate regulations.
§ 2242(b).
18
Given this clear statement by the Court, I am unable to understand
how Judge Berzon can contend that “the Supreme Court . . . ha[s] taken
6436 GARCIA v. THOMAS
provisions of the Immigration and Nationality Act); cf. San-
doval, 532 U.S. at 289 (“Nor do the methods that § 602 goes
on to provide for enforcing its authorized regulations manifest
an intent to create a private remedy; if anything, they suggest
the opposite.”).
Subsection (a) does nothing to disturb this interpretation of
the intended import of the Act. Similar to the statute at issue
in Pennhurst, it “does no more than express a congressional
preference for certain kinds of treatment” and provides “sim-
ply a general statement of ‘findings’ ” that “justifies and sup-
ports Congress’ ” decision to instruct the agency heads to
promulgate regulations “to implement” the Convention. Com-
pare § 2242(a), with § 6010, and Pennhurst, 451 U.S. at 19.
And, if any obligations were independently conferred, those
obligations were confined to the immigration context.
§ 2242(b)-(e); Munaf, 553 U.S. at 703 n.6. Even analyzed in
the abstract, Congress’ framing of its statement in terms of
“policy” undercuts Trinidad’s assertion that it confers a bind-
ing obligation. Pennhurst, 451 U.S. at 19; see Gonzaga Univ.
v. Doe, 536 U.S. 273, 288 (2002). Certainly, as used in gen-
eral language, the term “policy” connotes a precatory rather
the view that the FARR ACT implements CAT” in the extradition context.
Berzon Concurrence at 6458. The Court said precisely the opposite in
Munaf.
Moreover, my colleague’s reliance on Medellin is similarly misplaced.
Even setting aside the fact that Munaf followed Medellin and thus con-
trols, Medellin did not state that the FARR Act itself implemented the
Convention as my colleague contends. 552 U.S. at 520. But see Berzon
Concurrence at 6459-60 (citing Medellin, 552 U.S. at 520, for the proposi-
tion that “the FARR Act . . . exemplif[ies] a statute by which a treaty
(CAT) had been given ‘wholesale effect . . . through implementing legisla-
tion.’ ”). Rather, the Court actually stated only that the Act “direct[ed] the
‘appropriate agencies’ to ‘prescribe regulations to implement the obliga-
tions of the United States under Article 3.’ ” Medellin, 552 U.S. at 520.
Thus, just as I contend, it is only the regulations, and not the Act itself,
that could have affected the authority and discretion otherwise delegated
by Congress to the Executive.
GARCIA v. THOMAS 6437
than obligatory import. Black’s Law Dictionary 1276 (9th ed.
2009) (defining policy as “general principles by which a gov-
ernment is guided in its management of public affairs”);
Merriam-Webster’s Collegiate Dictionary 960 (11th ed.
2008) (“a high-level overall plan embracing the general goals
and acceptable procedures esp[ecially] of a governmental
body”), available at http://www.merriam-webster.com/
dictionary/policy.
Similarly, when used by Congress, it demonstrates concern
for “aggregate” effect, not “whether the needs of any particu-
lar person have been satisfied.” Gonzaga, 536 U.S. at 288(quoting Blessing v. Freestone, 520 U.S. 329, 343-44 (1997)
(“Far from creating an individual entitlement to services, the
standard is simply a yardstick for the Secretary to measure the
systemwide performance of a State’s Title IV-D program.”)).
Contra Berzon Concurrence at 6456 (providing no support for
its contrary interpretation). As the Court stated in Pennhurst,
“ ‘Congress sometimes legislates by innuendo, making decla-
rations of policy and indicating a preference while requiring
measures that, though falling short of legislating its goals,
serve as a nudge in the preferred directions.’ ” 451 U.S. at 19(emphasis added) (quoting Rosado v. Wyman, 397 U.S. 397,
413 (1970)).
“This is such a case.” See id. Subsection (a) “is too thin a
reed to support the rights and obligations read into it by” Trin-
idad. See id. It only “fits” as part of a “harmonious whole”
with the entirety of the Act, cf. Mandel Bros., 359 U.S. at 389,
if interpreted as a “nudge” by Congress indicating Congress’
“preference” that when implementing the mandated regula-
tions, the agency heads bear in mind the general 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.” See Pennhurst, 451 U.S.
at 19. It does no more.
6438 GARCIA v. THOMAS
iii
Finally, we reach those regulations promulgated to imple-
ment the obligations of the United States under the Conven-
tion: 22 C.F.R. §§ 95.1-95.4. Notably, not one could be
interpreted as limiting Executive authority. To the contrary,
each maintains the historical practice of leaving the ultimate
extradition decision to the Executive’s discretion:
Decisions of the Secretary concerning surrender
of fugitives for extradition are matters of executive
discretion not subject to judicial review. Further-
more, pursuant to section 2242(d) of the Foreign
Affairs Reform and Restructuring Act of 1998, P.L.
105-277, notwithstanding any other provision of law,
no court shall have jurisdiction to review these regu-
lations, and nothing in section 2242 shall be con-
strued as providing any court jurisdiction to consider
or review claims raised under the Convention or sec-
tion 2242, or any other determination made with
respect to the application of the policy set forth in
section 2242(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),
which is not applicable to extradition proceedings.
§ 95.4 (emphasis added); see also § 95.3(b) (“[T]he 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.” (emphasis added)).
***
In sum, neither the Convention, the FARR Act, nor the
implementing regulations alter the historically recognized dis-
cretion accorded to the Secretary by Congress to determine
whether “to surrender [a] fugitive to the requesting State, to
deny surrender of the fugitive, or to surrender the fugitive
GARCIA v. THOMAS 6439
subject to conditions.” § 95.3(b); see Munaf, 553 U.S. at 702(describing the Executive’s discretion); Lopez-Smith, 121
F.3d at 1326 (same). As such, Trinidad has failed to even
allege a claim for which relief may be granted, and, as the
Court directed in Munaf, all that is left for us to do is order
Trinidad’s petition promptly dismissed. 553 U.S. at 692, 705.
3
Even were we to assume for the sake of argument that the
Convention or the FARR Act confers a binding obligation on
the Executive, that would still not aid Trinidad’s cause. As the
Court made clear in Munaf, that we have the power to grant
habeas relief does not mean that we must or even should exer-
cise that authority in every case. Id. at 691-93, 700 (instruct-
ing that “even where a habeas court has the power to issue the
writ” it must question “ ‘whether this be a case in which [that
power] ought to be exercised’ ” (alteration in original) (quot-
ing Ex parte Watkins, 3 Pet. 193, 201 (1830) (Marshall,
C.J.))); id. at 693 (“The principle that a habeas court is ‘not
bound in every case’ to issue the writ follows from the preca-
tory language of the habeas statute, and from its common-law
origins.” (citation omitted)); accord Lopez-Smith, 121 F.3d at
1326. Rather, we must consider whether “ ‘prudential con-
cerns,’ Withrow v. Williams, 507 U.S. 680, 686 (1993), such
as comity and the orderly administration of criminal justice,”
require us “ ‘to forgo the exercise of [our] habeas corpus
power,’ Francis v. Henderson, 425 U.S. 536, 539 (1976).”
Munaf, 553 U.S. at 693. And, as the Court’s own precedent
demonstrates, this Rule of Non-Inquiry acts with particular
force in the extradition context. Neely, 180 U.S. at 123; Ote-
iza, 136 U.S. at 334; see Lopez-Smith, 121 F.3d at 1327
(“[G]enerally, under what is called the ‘rule of non-inquiry’
in extradition law, courts in this country refrain from examin-
ing the penal systems of requesting nations, leaving to the
Secretary of State determinations of whether the defendant is
likely to be treated humanely.”); see also Munaf, 553 U.S. at
693, 704.
6440 GARCIA v. THOMAS
Thus, in Oteiza, the Court declined to scrutinize the Execu-
tive’s conclusion that it could extradite Oteiza to Cuba in con-
formity with the pertinent statutory framework because, while
Congress had placed conditions on the Executive’s authority
to extradite, it had never directed the judiciary to review the
Executive’s conclusion that it had satisfied those conditions.
136 U.S. at 334 (“A writ of habeas corpus in a case of extradi-
tion cannot perform the office of a writ of error. . . . [T]he
decision of the commissioner cannot be reviewed by a circuit
court or by this court, on habeas corpus, either originally or
by appeal.”). Likewise, in Neely, the Court declined to delve
into the conditions Neely expected to face upon refouler to
Cuba or the circumstances under which he might be tried
there because, again, Congress had not invited the court’s par-
ticipation. See 180 U.S. at 123.
Similarly, in Munaf, these same principles led the Court to
flatly reject the petitioners’ request that the Court review the
Secretary of State’s decision to transfer them to Iraqi custody.
553 U.S. at 702-03 (noting the “policy of the United States
not to transfer an individual in circumstances where torture is
likely to result” (emphasis added)). Instead of requiring the
Secretary to turn over her files or justify her decision, the
Court accepted the Solicitor General’s explanation that “such
determinations are based on ‘the Executive’s assessment of
the foreign country’s legal system and . . . the Executive[’s]
. . . ability to obtain foreign assurances it considers reliable,’ ”
and readily concluded that the “Judiciary is not suited to
second-guess such determinations—determinations that
would require federal courts to pass judgment on foreign jus-
tice systems and undermine the Government’s ability to speak
with one voice in this area.” Id. at 702 (alterations in original)
(citation omitted).
The Court noted that absent a specific congressional direc-
tive to the contrary, see Neely, 180 U.S. at 123; Oteiza, 136
U.S. at 334, we are to leave such delicate questions of diplo-
macy and foreign policy to those best suited to the task: the
GARCIA v. THOMAS 6441
political branches. Munaf, 553 U.S. at 701, 702-03 (“[T]he
political branches are well situated to consider sensitive for-
eign policy issues, such as whether there is a serious prospect
of torture at the hands of an ally, and what to do about it if
there is. . . . ‘[W]e need not assume the political branches are
oblivious to these concerns. Indeed, the other branches pos-
sess significant diplomatic tools and leverage the judiciary
lacks.’ ” (citation omitted)). See generally Banco Nacional de
Cuba v. Sabbatino, 376 U.S. 398, 417-18 (1964) (“To permit
the validity of the acts of one sovereign State to be reexam-
ined and perhaps condemned by the courts of another would
very certainly imperil the amicable relations between govern-
ments and vex the peace of nations.” (citation and internal
quotation marks omitted)). Accordingly, the Court declined to
review either the process or the substance of the Secretary’s
decision and concluded that the petition for habeas corpus
should have been promptly dismissed. Munaf, 553 U.S. at 705(“Habeas corpus does not require the United States to shelter
such fugitives from the criminal justice system of the sover-
eign with authority to prosecute them.”).
Notably, this historical reluctance to inquire into the merits
of the Executive’s decision in this extradition context counter-
mands most of my colleagues’ otherwise apt analysis as to
why we traditionally would exercise our habeas power in
other analogous situations. Pregerson Concurrence at 6487-
89, 6492-94; Berzon Concurrence at 6496, 6470-72. It also
explains why my colleagues’ heavy reliance on Boumediene
v. Bush, 553 U.S. 723 (2008), and wholesale discard of Munaf
is particularly unpersuasive. Cf., e.g., Berzon Concurrence at
6461 (asserting that “not only is there no applicable holding
in Munaf; there is no applicable reasoning or implicit ‘mes-
sage’ either”); id. at 6470-79 (relying on Boumediene to for-
mulate its novel rule of limited inquiry).
To understand where my colleagues go astray, it is impor-
tant to recognize an unequivocal truth: The opinions of my
concurring colleagues depend on the complete inapplicability
6442 GARCIA v. THOMAS
of Munaf. If Munaf applies, their reasoning fails. And, con-
trary to their suggestion, Munaf cannot be so conveniently
dismissed as “of little use here.” Berzon Concurrence at 6464;
accord id. at 6461 (claiming that “not only is there no applica-
ble holding in Munaf; there is no applicable reasoning or
implicit ‘message’ either”). First, Munaf’s general directive
regarding the proper utilization of our habeas power was not
restricted to any particular context. Munaf, 553 U.S. at 693-
94. Rather, the Court spoke generally and thereafter relied on
Neely, an extradition case, as illustrative of its point. E.g., id.
at 695-97. Also, nearly all of the Court’s discussion of the
Rule’s history and application was premised on its prior appli-
cation in extradition cases. E.g., id. at 695-97 (discussing
Neely); id. at 704 (discussing Valentine). Finally, Munaf itself
discussed what other concerns might be implicated were
Munaf an extradition case. Id. at 704-05. There is thus no
credible reason for so entirely, and easily, disregarding
Munaf’s guidance.
Moreover, in their attempt to invoke Boumediene to sup-
port their reasoning, my colleagues overlook three critical dis-
tinctions. The first is that Boumediene concerned the scope of
the judiciary’s habeas review in the executive detention
context—a context in which the Rule of Non-Inquiry has
never been applied. The Court therefore did not consider what
effect the Rule might have on Boumediene’s rationale were it
to be applied in the extradition context.
Second, my colleagues overlook the fact that the predomi-
nate concern underlying Boumediene’s conclusion, indefinite
executive detention, is not implicated in the present context.
See id. at 693. Rather than facing a circumstance in which
“the consequence of error may be detention of persons for the
duration of hostilities that may last a generation or more,”
Boumediene, 553 U.S. at 785, and thus “the need for collateral
review is most pressing,” id. at 783, we face a circumstance
in which the consequence of error is in fact release from exec-
GARCIA v. THOMAS 6443
utive detention. As discussed in Munaf, this reality caused the
Court to question whether habeas relief was even appropriate:
Habeas is at its core a remedy for unlawful executive
detention. Hamdi v. Rumsfeld, 542 U.S. 507, 536
(2004) (plurality opinion). The typical remedy for
such detention is, of course, release. But here the last
thing petitioners want is simple release; that would
expose them to apprehension by Iraqi authorities for
criminal prosecution—precisely what petitioners
went to federal court to avoid. At the end of the day,
what petitioners are really after is a court order
requiring the United States to shelter them from the
sovereign government seeking to have them answer
for alleged crimes committed within that sovereign’s
borders.
Munaf, 553 U.S. at 693-94 (emphasis added) (citation omit-
ted). Citing Wilson v. Girard, 354 U.S. 524 (1957), a transfer
case, and Neely, an extradition case, the Court thereafter con-
cluded: “as the foregoing cases make clear, habeas is not a
means of compelling the United States to harbor fugitives
from the criminal justice system of a sovereign with
undoubted authority to prosecute them.” Munaf, 553 U.S. at
695-97.
Finally, and perhaps most critically, my colleagues fail to
account for the fact that Boumediene itself never held that
habeas petitioners were entitled to relief. See 553 U.S. at 795.
To the contrary, Boumediene held “only that [the] petitioners
before us are entitled to seek the writ; that the DTA review
procedures are an inadequate substitute for habeas corpus; and
that petitioners in these cases need not exhaust the review pro-
cedures in the Court of Appeals before proceeding with their
habeas actions in the District Court.” Id. This conclusion is
fundamentally no different from that in Munaf. There, in a
decision delivered on the same day as Boumediene, the Court
began its analysis by considering and rejecting the govern-
6444 GARCIA v. THOMAS
ment’s contention that the petitioners were precluded from
seeking habeas relief. Munaf, 553 U.S. at 668 (“’Under the
foregoing circumstances,’ we decline to extend our holding in
Hirota to preclude American citizens held overseas by Ameri-
can soldiers subject to a United States chain of command from
filing habeas petitions.” (emphasis added)). As discussed, the
Court thereafter made clear, however, that the simple fact that
the courts “have the power to grant habeas relief does not
mean that we must or even should exercise that authority in
every case.” Supra at 6439. Instead, citing the prudential con-
cerns underlying the Rule of Non-Inquiry, the Court con-
cluded that, though entitled to seek relief, Munaf, 553 U.S. at
668, the petitioners were not entitled to obtain relief, which
negated any purpose for subjecting the Executive’s decision
to judicial review, id. at 692-94 (“We accordingly hold that
the detainees’ claims do not state grounds upon which habeas
relief may be granted . . .”).
In sum then, the present case is no different from the litany
of extradition cases that preceded it. Unlike the amended form
of § 5270 or the current form of § 3184, the FARR Act in no
way suggests that Congress invited, or even desired, the
courts to take any part in the Secretary’s ultimate decision.
Rather, § 2242(d) specifically provides to the contrary—that
“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.” And the regulations promulgated “to implement the
obligations of the United States under Article 3 of the United
Nations Convention Against Torture” only further reinforce
that intent. §§ 95.3(b), 95.4. Each simply maintain the histori-
cal status quo—the well-accepted understanding that Con-
gress intends the ultimate extradition decision to be left to the
Secretary’s discretion. See generally Lopez-Smith, 121 F.3d at
1327 (“Once the certificate issues, the Secretary may exercise
discretion whether to extradite an American national. The
GARCIA v. THOMAS 6445
Secretary’s exercise of discretion need not be based upon con-
siderations individual to the person facing extradition. It may
be based on foreign policy considerations instead.”). Accord-
ingly, the Rule continues to apply to preclude our review.
B
Despite concluding that “[t]he doctrine of separation of
powers and the rule of non-inquiry block any inquiry into the
substance of the Secretary’s declaration,” Per Curiam at
6402, my colleagues decline to put this case to rest. They
ignore the Court’s concern for promptness, Munaf, 553 U.S.
at 692, and reason that remand is necessary because the “re-
cord before us provides no evidence that the Secretary has
complied” with her asserted obligation to “consider an extra-
ditee’s torture claim and find it not ‘more likely than not’ that
the extraditee will face torture” if extradited, Per Curiam at
6401. In effect, my colleagues transform the Rule of Non-
Inquiry into a rule of some inquiry or, as Judge Berzon would
prefer, a more searching rule of “limited” inquiry, thereby lay-
ing the groundwork for a morass of procedural challenges and
even more delay in the extradition. They selectively ignore
the Rule’s effect, and, without adequate explanation or sup-
port, subvert the clear import of the controlling regulations by
imposing procedural conditions and proofs on the Secretary
when both the regulations and the Rule clearly preclude just
that—any inquiry. I will not willingly take part in such an
unprecedented departure from either the facts in the record
before us or our governing case law.
First, there is no dispute that former Secretary of State Rice
made the determination to order Trinidad’s extradition; rather,
Trinidad himself admits as much. Second Petition for Writ of
Habeas Corpus at 2 ¶¶ 2-9, No. 2:08-cv-07719-MMM (S.D.
Cal. Sept. 17, 2008), ECF No. 1 (“[T]he Honorable Con-
doleeza Rice, Secretary of State, issued a surrender warrant
for Trinidad. . . . Date of surrender warrant: September 12,
2008[.]”); Application for Order Staying Extradition at 3 ¶ 3,
6446 GARCIA v. THOMAS
No. 2:07-cv-06387-MMM (S.D. Cal. Sept. 16, 2008), ECF
No. 45 (declaration of Craig Harbaugh, Trinidad’s attorney,
made under penalty of perjury, that the Secretary had made
the decision to extradite Trinidad). These admissions are
“conclusive in the case.” Christian Legal Soc’y Chapter of the
Univ. of Cal. v. Martinez, 130 S. Ct. 2971, 2983 (2010) (quot-
ing 2 K. Broun, McCormick on Evidence § 254 at 181 (6th ed.
2006)); Oscanyan v. Arms Co., 103 U.S. 261, 263 (1880)
(“Indeed, any fact, bearing upon the issues involved, admitted
by counsel, may be the ground of the court’s procedure
equally as if established by the clearest proof.”). They “have
the effect of withdrawing a fact from issue and dispensing
wholly with the need for [further] proof . . . .” Perez-Mejia v.
Holder, 641 F.3d 1143, 1151 (9th Cir. 2011) (quoting Hoodho
v. Holder, 558 F.3d 184, 191 (2d Cir. 2009)).
They are also binding. United States v. Crawford, 372 F.3d
1048, 1055 (9th Cir. 2004) (en banc) (“A judicial admission
is binding before both trial and appellate courts.”). “Litigants,
we have long recognized, ‘[a]re entitled to have [their] case
tried upon the assumption that . . . facts, stipulated into the
record, were established.’ ” Christian Legal, 130 S. Ct. at
2983 (alterations in original) (emphasis added) (quoting H.
Hackfeld & Co. v. United States, 197 U.S. 442, 447 (1905)).
We must treat them as the “clearest proof.” Oscanyan, 103
U.S. at 263 (“And if in the progress of a trial, either by such
admission or proof, a fact is developed which must necessar-
ily put an end to the action, the court may, upon its own
motion, or that of counsel, act upon it and close the case.”).
We must treat them with the same degree of respect that the
Court accorded the representations of the Solicitor General in
Munaf. 553 U.S. at 702 (relying on the Solicitor General’s
representations concerning the non-refouler policy of the
United States).
Accordingly, having established that the Secretary made
the requisite determination, we must adhere to the Supreme
Court’s admonishment that, “in the absence of clear evidence
GARCIA v. THOMAS 6447
to the contrary, courts presume that [public officers] have
properly discharged their official duties.” Brown v. Plata, 131
S. Ct. 1910, 1965 (2011) (alteration in original) (internal quo-
tation marks omitted) (quoting United States v. Armstrong,
517 U.S. 456, 464 (1996) (quoting United States v. Chemical
Found., Inc., 272 U.S. 1, 14-15 (1926))); accord Postal Serv.
v. Gregory, 534 U.S. 1, 10 (2001) (“[A] presumption of regu-
larity attaches to the actions of Government agencies.”). To
chastise the State Department and call into question the regu-
larity of the Executive’s treatment of Trinidad’s plight is a
serious matter. See, e.g., Chew Heong v. United States, 112
U.S. 536, 540 (1884) (“[T]he court cannot be unmindful of
the fact that the honor of the government and people of the
United States is involved in every inquiry whether rights
secured by such stipulations shall be recognized and protect-
ed.”).
To do so without any contrary evidence, “let alone clear
evidence,” Plata, 131 S. Ct. at 1965, of irregularity is untena-
ble. To do so without even an accusation of irregularity is appall-
ing.19 It wholly “want[s] in proper respect for the intelligence
and patriotism of a co-ordinate department of the govern-
ment.” Chew Heong, 112 U.S. at 540. Thus, even were the
majority correct that “[t]he process due here is that prescribed
by the statute and implementing regulation,” specifically that
“[t]he Secretary must consider an extraditee’s torture claim
and find it not ‘more likely than not’ that the extraditee will
face torture before extradition can occur,” Per Curiam at 6401
(citing § 95.2), we must presume the Secretary complied with
any pertinent obligations. Plata, 131 S. Ct. at 1965.
19
Trinidad—the very individual with every incentive to contest the fact
that the Secretary actually made the “torture determination”—never ques-
tioned the reality of the Secretary’s decision. To be clear, no one has—no
one other than my colleagues, who cast aside so many settled principles
of law to do nothing more than act on a hunch to satisfy their own unsub-
stantiated suspicion.
6448 GARCIA v. THOMAS
Of course, the magnitude of the majority’s misstep is all the
more pronounced because, as discussed, neither the FARR
Act nor the regulations limit the Executive’s authority in the
extradition context. See Munaf, 553 U.S. at 703 n.6; cf. Penn-
hurst, 451 U.S. at 19. Neither do any contain the necessary
“ ‘explicitly mandatory language,’ i.e., specific directives to
the decisionmaker that if the regulations’ substantive predi-
cates are present, a particular outcome must follow, in order
to create a liberty interest.” Ky. Dep’t of Corr. v. Thompson,
490 U.S. 454, 463 (1989) (emphasis added) (citation omitted).
Frankly, the FARR Act contains nothing in the way of even
mandatory language—other than its directive to create regula-
tions to implement the United States’ obligations under the
Convention—let alone specific directives or substantive pred-
icates. § 2242. And the regulations are no different. Rather
than using “ ‘explicitly mandatory language,’ in connection
with the establishment of ‘specified substantive predicates’ to
limit discretion,” Ky. Dep’t of Corr., 490 U.S. at 463 (empha-
sis added), the regulations do the opposite. They carefully
provide only 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 extradi-
tion when appropriate in making this determination.”
§ 95.2(b) (emphasis added). Contrary to my colleagues’ sug-
gestion that “[t]he Secretary must consider an extraditee’s tor-
ture claim and find it not ‘more likely than not’ that the
extraditee will face torture before extradition can occur,” Per
Curiam at 6400-01, the words “must” and “shall” are entirely
lacking. § 95.2(b). Accordingly, the regulations can only be
interpreted as maintaining the traditional status quo—
allowing the Secretary unbridled discretion “to surrender the
fugitive to the requesting State, to deny surrender of the fugi-
tive, or to surrender the fugitive subject to conditions.”
§ 95.3(b) (“may”); § 95.4 (“Decisions of the Secretary con-
cerning surrender of fugitives for extradition are matters of
GARCIA v. THOMAS 6449
executive discretion not subject to judicial review.”); cf.
Lopez-Smith, 121 F.3d at 1326.20
In sum, I disagree with my colleagues’ stubborn refusal to
accept that the Secretary has “properly discharged” her duty
and can conceive of no basis for countenancing a procedural
due process claim. Neither the FARR Act nor the regulations
impose on the Secretary a mandatory duty that could provide
Trinidad with a liberty interest in the Secretary’s compliance
with any procedure. Thus, just as Trinidad cannot ask that we
second-guess the Secretary’s ultimate discretionary decision,
see Munaf, 553 U.S. at 702, he cannot ask us to peek into
those internal processes employed by the Secretary in making
her determination.21 Non-inquiry means just that, non-inquiry,
and remanding serves no purpose other than to further delay
the inevitable. Id. at 692 (“We accordingly hold that the
detainees’ claims do not state grounds upon which habeas
relief may be granted, that the habeas petitions should have
been promptly dismissed, and that no injunction should have
been entered.” (emphasis added)).
II
This case presents a straightforward question with a
straightforward answer. Though we have habeas jurisdiction
to consider Trinidad’s claim, that claim is squarely and
entirely foreclosed by the Rule of Non-Inquiry. Id. at 702-03.
By needlessly remanding, the majority ignores both the
Supreme Court’s concern for promptness, id. at 692, as well
20
As Lopez-Smith states: “We suppose there is nothing to stop Lopez-
Smith’s lawyer from putting together a presentation showing why the Sec-
retary ought to exercise discretion not to extradite Lopez-Smith, and mail-
ing it to the Secretary of State. As for whether the Secretary of State
considers the material, and how the Secretary balances the material against
other considerations, that is a matter exclusively within the discretion of
the executive branch and not subject to judicial review.” 121 F.3d at 1326.
21
And there is thus no need to wade into the merits of Judge Berzon’s
unprecedented “limited” departure from the Rule of Non-Inquiry.
6450 GARCIA v. THOMAS
as a litany of controlling legal principles. It interjects yet
another obstacle to impede the United States from fulfilling
its treaty obligations, damaging our sovereign reputation and
undoubtedly undermining our ability to obtain the coopera-
tion of other countries when we need extradition assistance.
The only proper outcome of this case is to reverse the
award of habeas relief, vacate the district court’s discovery
order seeking the Secretary’s file, and order Trinidad’s peti-
tion promptly dismissed. See id. We err by doing anything
else.
BERZON, Circuit Judge, concurring in part and dissenting in
part, with whom Judge W. Fletcher joins:
Hedelito Trinidad y Garcia (“Trinidad”) claims that if
extradited to the Philippines, he is more likely than not to be
tortured, and that the Secretary of State’s decision to extradite
him is therefore unlawful under the Convention Against Tor-
ture and the federal statute implementing it, the Foreign
Affairs Reform and Restructuring Act of 1998 (the FARR
Act), Pub. L. No. 105-277, 112 Stat. 2681 (codified at 8
U.S.C. § 1231 note). The per curiam majority opinion holds
that: (1) we have jurisdiction to hear Trinidad’s challenge to
his extradition; (2) as a matter of due process, the Secretary
of State is required to consider Trinidad’s claim that he will
be tortured if returned to the Philippines and to refrain from
extraditing him if she finds it “more likely than not” that he
will indeed be tortured; and (3) without a declaration from the
Secretary (or her delegate) that the Secretary has fulfilled her
obligation, there is insufficient evidence in the record to deter-
mine whether she has done so. I agree. I therefore concur in
Parts 1-5 of the majority opinion.
I cannot, however, agree with the majority’s ultimate hold-
ing that once the Secretary (or her delegate) meets the proce-
GARCIA v. THOMAS 6451
dural due process requirement by submitting a barebones
declaration, courts under no circumstances have authority to
conduct any substantive review of the Secretary’s compliance
with federal law.
There is no reason for the majority even to reach this ques-
tion. Once the majority determines that there has been a pro-
cedural due process violation and that therefore “we lack
sufficient basis in the record to review the district court’s
order granting Trinidad y Garcia’s release,” Per curiam at
6401, we should simply remand for the submission of an
appropriate declaration. If there is a subsequent appeal, we
could then determine whether further substantive review is
available and, if so, whether the record is adequate for that
purpose.
The majority nevertheless jumps the gun and dismisses
Trinidad’s substantive claims, holding, with little explanation,
that they are foreclosed by the Supreme Court’s decision in
Munaf v. Geren, 553 U.S. 674 (2008), the doctrine of separa-
tion of powers, and the “rule of non-inquiry.” Per curiam at
6402. Judge Tallman elaborates on these points at length and
adds another—the contention that Trinidad has no statute-
based claim at all. Tallman dissent at 6429-35. I cannot go
along with either the majority’s curt conclusion or Judge Tall-
man’s more discursive analysis. I therefore concur in the
majority’s result—a remand to the district court for further
development of the record—but not in its declaration that
under no circumstances can a district court go further than to
require a pro forma declaration from the Secretary of State in
a case in which it is alleged that extradition will likely result
in torture.
***
I begin by outlining the basic building blocks of Trinidad’s
substantive, statute-based claim.
6452 GARCIA v. THOMAS
First, we may grant a writ of habeas corpus where a pris-
oner is “in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2241(c)(3).1
Second, Article 3 of the Convention Against Torture
(CAT), which entered into force for the United States in 1994,
states:
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.
United Nations Convention Against Torture and Other Forms
of Cruel, Inhuman or Degrading Treatment or Punishment,
adopted by unanimous agreement of the U.N. General Assem-
bly, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51 at 197,
U.N. Doc. A/RES/39/708 (1984), entered into force as to the
United States Nov. 20, 1994, signed Apr. 18, 1988. The Sen-
ate ratified CAT with the understanding that “the phrase,
‘where there are substantial grounds for believing that he
would be in danger of being subjected to torture,’ ” would be
understood to mean “ ‘if it is more likely than not that he
would be tortured.’ ” U.S. Senate Resolution of Advice and
Consent to Ratification of the Convention Against Torture
and Other Cruel, Inhuman, or Degrading Treatment or Pun-
ishment, 136 Cong. Rec. 36, 198 (Oct. 27, 1990).
The language of Article 3 is mandatory. Whereas some
CAT provisions limit signatories’ obligation to enforce a pol-
icy, see, e.g., Article 13 (“Steps shall be taken to ensure that
1
Those detained pending extradition have long been understood to be
“in custody” for the purposes of habeas relief. See Ornelas v. Ruiz, 161
U.S. 502 (1896); Oteiza v. Jacobus, 136 U.S. 330 (1890); Benson v.
McMahon, 127 U.S. 457 (1888); see also Gerald L. Neuman, Habeas Cor-
pus, Executive Detention, and the Removal of Aliens, 98 COLUM. L. REV.
961, 985 (1998).
GARCIA v. THOMAS 6453
. . .” (emphasis added)); Article 14 (requiring that signatories
provide torture victims “the means for as full rehabilitation as
possible” (emphasis added)), Article 3 has no such equivoca-
tion or limitation. Signatories are not, for example, prohibited
from expelling individuals likely to face torture “where feasi-
ble” or “to the extent possible.” Cf. INS v. Cardoza-Fonseca,
480 U.S. 421 (1987) (distinguishing between a treaty provi-
sion that creates an entitlement to be protected from expulsion
and one that is discretionary). Instead, the CAT Article 3 pro-
hibition is general and unlimited: Without exception, a signa-
tory country may not extradite a person likely to face torture.
The final building block of Trinidad’s statute-based claim
is the FARR Act, which, echoing the language of CAT, pro-
vides that:
It 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 . . . .
8 U.S.C. § 1231 note. The FARR Act then directs “the heads
of the appropriate agencies” to “prescribe regulations to
implement the obligations of the United States.” Id. As the
government recognizes in its brief, the FARR Act thereby
“prohibits the extradition of a person who more likely than
not will be tortured, and . . . creates a duty on the part of the
Secretary of State to implement that prohibition.”2
2
Although Judge Tallman characterizes the government’s position oth-
erwise, it is clear to me that the government’s position is that the Secretary
of State may not extradite someone who is more likely than not to face tor-
ture. In addition to the statement quoted in the text above, the government,
in its brief, also clearly and emphatically stated that “[t]he Government is
not arguing that the Secretary of State has discretion to surrender a fugi-
tive who more likely than not will be tortured.”
6454 GARCIA v. THOMAS
Contrary to Judge Kozinski’s assertion, Trinidad’s claim is
not that he is entitled to habeas because of the treatment he
is likely to face in the Philippines. Rather, his claim is a claim
that because the FARR Act prohibits extradition if, on the
information available to the Secretary, he more likely than not
will be tortured, the Secretary’s decision to extradite him
would be illegal under positive, Congressionally enacted fed-
eral law. In other words, the focus of Trinidad’s habeas peti-
tion is on the legality of the Secretary’s decision, not on
whether or not Trinidad will actually be tortured if extradited.
This claim is one at the “historical core” of habeas review.
INS v. St. Cyr, 533 U.S. 289, 301 (2001). Indeed, it is “as a
means of reviewing the legality of Executive detention . . .
that [the] protections [of the writ of habeas corpus] have been
strongest.” Id.; see generally Gerald L. Neuman, The Habeas
Corpus Suspension Clause After Boumediene v. Bush, 110
COLUM. L. REV. 537, 541 (2010).
As I explain below, neither the Supreme Court’s decision
in Munaf nor the rule of non-inquiry entirely forecloses our
ability to review the lawfulness of an extradition decision by
the Executive. I would hold, therefore, that we have the
authority—and, indeed, the obligation—to review the Secre-
tary of State’s determination and to decide—under a standard
highly deferential to the Secretary and procedures carefully
tailored to ensure the protection of the Secretary’s diplomatic
concerns—whether it is more likely than not that petitioners
such as Trinidad will be tortured if extradited. For that pur-
pose, it may be that in many circumstances a declaration such
as the one the majority requires will suffice. But, as I shall
explain below, not invariably.
I. The FARR Act
Before doing so, however, I address a separate proposition
put forth by Judge Tallman but not addressed by the majority.
Judge Tallman maintains that despite the Government’s
emphatic assertion to the contrary, the FARR Act does not
GARCIA v. THOMAS 6455
actually restrict the Executive’s discretion to extradite, even
when it is more likely than not that an individual will be tor-
tured. Instead, Judge Tallman insists, the FARR Act is merely
“precatory”; it serves no other purpose than to “ ‘nudge’ ” the
government in Congress’s “ ‘preferred direction[ ].’ ” Tall-
man dissent at 6436-37 (quoting Pennhurst State Sch. &
Hosp. v. Halderman, 451 U.S. 1, 19 (1981)). This understand-
ing of the Act could not be more wrong.
Judge Tallman’s argument proceeds from his reading of
section (a) of the FARR Act. According to Judge Tallman,
that section, which states that “[i]t shall be the policy of the
United States not to . . . extradite . . . any person to a country
in which there are substantial grounds for believing the person
would be in danger of being subjected to torture,” 8 U.S.C.
§ 1231 note, only announces a general policy of the United
States, imposing no obligation on the Executive to comply in
any specific instance. For this proposition, he relies on Penn-
hurst.
Pennhurst concerned whether the statement of congressio-
nal findings included in the federal Developmentally Disabled
Assistance and Bill of Rights Act imposed upon the states an
obligation to fund particular kinds of mental healthcare enti-
tlements. For several reasons, the case is entirely inapposite
here.
For one thing, the statute at issue in Pennhurst was passed
either pursuant to Congress’s power under § 5 of the Four-
teenth Amendment or pursuant to its spending power.3 The
Supreme Court has held that statutes passed pursuant to either
of these powers and intended by Congress to impose obliga-
tions on the states must clearly state this intention, particularly
where the obligation is the creation of an affirmative entitle-
ment. See id. at 16-18. The FARR Act, however, binds only
3
The litigants in Pennhurst disagreed on this point. See Pennhurst, 451
U.S. at 14.
6456 GARCIA v. THOMAS
the federal government; it does not purport to impose any
obligations upon the states. As a result, the federalism con-
cerns animating Pennhurst simply do not apply here, and no
clear statement rule of the kind applied in Pennhurst applies
to this case.
In addition, the Supreme Court found the language at issue
in Pennhurst ambiguous as to whether it imposed an obliga-
tion upon the states enforceable by individuals. The Court
therefore turned to the remainder of the statute to determine
whether, in context, the import of the ambiguous provision
became clear. See id. at 19. The disputed congressional “find-
ings” in Pennhurst were embedded in a statute, other sections
of which clearly and explicitly imposed obligations on the
states. See id. These specific obligations would have been
redundant were the more general “findings” in the statute con-
sidered binding commands. See id. at 19, 25-27. The FARR
Act contains no analogous specific provisions.
In fact, consistent with the Government’s position, the text
and structure of the FARR Act confirm that it does impose a
binding obligation on the Secretary of State not to extradite
individuals likely to face torture. Subsection (a) of the FARR
Act incorporates the language of CAT itself, enacting as U.S.
domestic policy the international obligation the United States
undertook in ratifying CAT. See 8 U.S.C. § 1231 note. The
remainder of the Act then directs the Executive “to implement
the obligations of the United States under” CAT and specifies
how such implementation ought to occur. Id. Whereas the
statute at issue in Pennhurst combined an aspirational vision
for the ideal treatment of people with disabilities with more
specific mandates, there is nothing aspirational about the
FARR Act. It states a policy and directs agencies to imple-
ment that policy. If this policy is merely precatory, then all of
the FARR Act would also be so. I cannot agree that Congress
passed a statute with no intent to affect anyone’s rights or
obligations.
GARCIA v. THOMAS 6457
Judge Tallman, however, reads the FARR Act’s incorpora-
tion of CAT differently, maintaining that the Act’s direction
in subsection (b) that “the heads of appropriate agencies shall
prescribe regulations to implement” the United States’ “obli-
gations” under CAT, id., “conflicts with Trinidad’s assertion
that the FARR Act itself implements the Convention and
binds Executive authority.” Tallman dissent at 6434. Trini-
dad’s assertion, however, is that the FARR Act implements
CAT, and so makes the United States’ obligations under CAT
binding not only as a matter of international law—as they
became when the United States signed CAT—but as a matter
of U.S. law. The FARR Act’s mandate to agencies that they
“implement” the United States’ obligations under CAT is a
direction to put into practice the mandatory Article 3 obliga-
tions undertaken by signing CAT and incorporated into U.S.
law by the FARR Act. That mandate would be absurd if, as
Judge Tallman insists, no such obligations exist under U.S.
law at all.
Further, assuming subsection (a) does no more than express
a general policy, subsection (b) of the FARR Act is unques-
tionably obligatory. Thus, even disregarding entirely subsec-
tion (a), subsection (b) compels the conclusion that the FARR
Act imposes upon the Executive an obligation to abide by
CAT.
As a fallback to his insistence that the FARR Act is simply
precatory and does not bind the executive at all, Judge Tall-
man more modestly proposes that subsection (d) of the Act
demonstrates that “Congress did not intend to impose an obli-
gation on the Executive outside the removal context.” Tall-
man dissent at 6435-36. In other words, Judge Tallman
suggests a cleavage in the substantive duty created by the Act
between the Executive’s obligation in the immigration
removal context and that applicable in all other circum-
stances, including extradition. This more narrow contention
fares no better than Judge Tallman’s broader, Pennhurst-
grounded one.
6458 GARCIA v. THOMAS
The problem with this alternative suggestion is that there is
no indication whatsoever in the statute that the substantive
obligations it imposes vary by context. Subsection (d), on
which Judge Tallman relies for his contrary proposition,
describes only courts’ authority to review FARR Act claims,
not the substantive reach of the underlying governmental obli-
gation. That the FARR Act specifically allows for jurisdiction
to review claims in the removal context but leaves review in
any other context dependent on pre-existing jurisdiction (as
Judge Tallman recognizes in his jurisdictional analysis) does
not alter the substance of the obligation the Act creates. That
obligation, the imposition of a uniform policy prohibiting “the
involuntary return of any person to a country” where the per-
son likely to face torture, 8 U.S.C. § 1231 note, is affirma-
tively stated and generally applicable.
If anything, the inclusion of the provision addressing
courts’ jurisdiction to review FARR Act claims further sup-
ports the view that the Act creates obligations out of which
claims could arise. A provision allowing for the review of
FARR Act claims as part of the review of final orders of
removal would be meaningless if no such claims could ever
arise because the FARR Act created no governmental duty
with regard to expelling individuals facing torture.
Judge Tallman’s last stab at finding a basis for declaring
that, despite the FARR Act, the Government still has discre-
tion to extradite a detainee facing torture is a State Depart-
ment regulation providing that the Secretary’s extradition
decisions “are matters of executive discretion not subject to
judicial review.”4 22 C.F.R. § 95.4. But the parties, the
Supreme Court, and the courts of appeals have all taken the
view that the FARR Act implements CAT by incorporating
4
I note that, with the exception of Judge Kozinski, the entire en banc
panel agrees that we have jurisdiction, and that the majority of us agree
that the Secretary’s decision is reviewable at least to the extent of requir-
ing an attestation of compliance with the FARR Act and CAT.
GARCIA v. THOMAS 6459
the obligations undertaken in the treaty into domestic law,
thereby eliminating any discretion the Secretary of State
might otherwise have had to extradite a person likely to face
torture. The State Department, in particular, not only, as
noted, agrees in its brief with Trinidad’s contention that “the
FARR Act creates a duty on the part of the Secretary of State
to implement” the Act’s “prohibition” against extraditing “a
person who more likely than not will be tortured,” but further
assures us that it “is not arguing that the Secretary of State has
discretion to surrender a fugitive who more likely than not
will be tortured, even if foreign policy interests at the time
would be served by an extradition.” The Secretary’s own
interpretation of the regulation upon which Judge Tallman
relies is clearly that, whatever discretion the State Department
has over extradition decisions, its discretion does not extend
to the ability to extradite an individual likely to face torture.
This interpretation is controlling. “[W]e defer to an agency’s
interpretation of its own regulation, advanced in a legal brief,
unless that interpretation is ‘plainly erroneous or inconsistent
with the regulation.’ ” Chase Bank USA, N.A. v. McCoy, 131
S. Ct. 871, 880 (2011) (quoting Auer v. Robbins, 519 U.S.
452, 461 (1997)). Given the Secretary’s contrary view, Judge
Tallman’s reading of the State Department regulations as pro-
viding discretion with regard to FARR Act obligations cannot
stand.
Consistent with the Government’s understanding, the
Supreme Court, in Medellin v. Texas, cited the FARR Act as
exemplifying a statute by which a treaty (CAT) had been
given “wholesale effect . . . through implementing legisla-
tion.” Medellin v. Texas, 552 U.S. 491, 520 (2008). Were we
to hold that the FARR Act did not, in fact, implement as
domestic law the obligations undertaken in CAT, but only
“nudged” the Executive toward refraining from sending per-
sons abroad to face torture, we would be contradicting the
view expressed—albeit in dicta—by the Supreme Court.
We would also be overruling several of our own circuit’s
cases. See, e.g., Edu v. Holder, 624 F.3d 1137, 1144 (9th Cir.
6460 GARCIA v. THOMAS
2010) (“Congress then implemented CAT in the Foreign
Affairs Reform and Restructuring Act of 1998.”); Huang v.
Ashcroft, 390 F.3d 1118, 1121 (9th Cir. 2004) (“Congress
passed the Foreign Affairs Reform and Restructuring Act (the
FARR Act) in 1998 to implement Article 3 of CAT.”); Zheng
v. Ashcroft, 332 F.3d 1186, 1193 (9th Cir. 2003) (“In 1998,
Congress passed the Foreign Affairs Reform and Restructur-
ing Act of 1998, implementing Article 3 of the Convention
Against Torture.”). Furthermore, we would be contradicting
the law of our sister circuits, none of which has doubted that
the FARR Act implements CAT. See, e.g., Omar v. McHugh,
646 F.3d 13, 18 n.2 (D.C. Cir. 2011) (“[I]t is undisputed that
the FARR Act implements the Convention Against Torture.”);
Pierre v. Att’y Gen., 528 F.3d 180, 185-86 (3d Cir. 2008)
(“[I]n 1998, Congress passed legislation to implement the
United States’ obligations under the CAT: the Foreign Affairs
Reform and Restructuring Act (‘the FARR Act’).”); Pierre v.
Gonzales, 502 F.3d 109, 114 (2d Cir. 2007) (“To implement
the CAT, Congress amended the immigration laws with the
Foreign Affairs Reform and Restructuring Act of 1998 (‘the
FARR Act’).”); Cadet v. Bulger, 377 F.3d 1173, 1180 (11th
Cir. 2004) (“In order to implement Article 3 of CAT, Con-
gress passed the Foreign Affairs Reform and Restructuring
Act of 1988 (‘the FARR Act’).”).
There is simply no doubt that as a substantive matter, the
FARR Act imposes a binding obligation on the Secretary of
State not to extradite a person likely to face torture. The
majority agrees with this proposition. Per curiam at 6400-01.
II. Munaf v. Geren
The majority does maintain that once the Secretary pro-
vides a declaration stating that she complied with her CAT
and FARR Act obligations, Munaf (and the “rule of non-
inquiry,” which I address in due course) preclude judicial
inquiry in any and all circumstances—even if, for example,
there was irrefutable evidence that torture was indeed more
GARCIA v. THOMAS 6461
likely than not to occur were the detainee to be extradited. Per
curiam at 6402. I cannot agree.
Munaf does not foreclose, or even very much affect, our
authority to review Trinidad’s FARR Act claim. To begin,
Munaf emphatically declined to decide the question at issue
here—whether the FARR Act provides a basis for habeas
review of the Secretary of State’s extradition decisions. That
Munaf reserved rather than decided the question before us
could not be more clear. The Court stated:
Petitioners briefly argue that their claims of potential
torture may not be readily dismissed . . . because the
FARR Act prohibits transfer when torture may
result. Neither petitioner asserted a FARR Act claim
in his petition for habeas, and the Act was not raised
in any of the certiorari filings before this Court. Even
in their merits brief in this Court, the habeas petition-
ers hardly discuss the issue. The Government treats
the issue in kind. Under such circumstances we will
not consider the question.
Munaf, 553 U.S. at 703 (internal citations omitted and empha-
sis added).
This reservation in Munaf is of more than technical import.
It indicates that there at least could be some difference of con-
trolling significance between a claim based on an affirmative
Congressional enactment, like the FARR Act, placing obliga-
tions on the Executive Branch and a constitutionally based
norm, such as the one invoked in Munaf. Had it been clear
that there is no such possible difference, as the majority opin-
ion in this case tacitly assumes, then there would have been
no reason to reserve the question.
Moreover, not only is there no applicable holding in Munaf;
there is no applicable reasoning or implicit “message” either.
Instead, the Court’s reasoning in Munaf is tightly bound to the
6462 GARCIA v. THOMAS
factual and legal circumstances in which the case arose, see
id. at 700 (characterizing its analysis as applying “in the pres-
ent context”), circumstances that differ completely from those
here.
Most notably, Munaf was not an extradition case. The
Munaf petitioners were detained in Iraq, at the request of the
Iraqi government, by an international military coalition com-
manded by the United States. The charges against them were
that they violated Iraqi criminal law. They sought not the tra-
ditional habeas remedy of release from executive detention
but, rather, affirmative protection from the reach of the Iraqi
government. As the Munaf Court explained:
[T]he nature of the relief sought by the habeas peti-
tioners suggests that habeas is not appropriate in
these cases. Habeas is at its core a remedy for unlaw-
ful executive detention. The typical remedy for such
detention is, of course, release. But here the last
thing petitioners want is simple release; that would
expose them to apprehension by Iraqi authorities for
criminal prosecution—precisely what petitioners
went to federal court to avoid. At the end of the day,
what petitioners are really after is a court order
requiring the United States to shelter them from the
sovereign government seeking to have them answer
for alleged crimes committed within that sovereign’s
borders.
Id. at 693-94; see also id. at 704 (“Omar and Munaf voluntar-
ily traveled to Iraq and are being held there. They are there-
fore subject to the territorial jurisdiction of that sovereign, not
of the United States. . . . It would be more than odd if the
[U.S.] Government had no authority to transfer them to the
very sovereign on whose behalf, and within whose territory,
they are being detained.”). The relief the Munaf petitioners
sought was thus farther from the historical remedy available
under habeas than the relief Trinidad seeks—simple release
GARCIA v. THOMAS 6463
from custody—and more deeply implicated issues of national
sovereignty and international comity.
I make this distinction not to suggest that there are not real
foreign affairs and international comity concerns in ordinary
extradition cases such as this one. See Part IV infra. But these
concerns simply do not rise to the level of those at issue in
Munaf. While significant, the foreign affairs and comity con-
cerns in the present circumstances are manageable through
appropriately deferential habeas procedures and limitations on
the scope of judicial review, as I suggest below.
Furthermore, the Munaf petitioners’ claims raised military
and national security concerns that Trinidad’s claims do not.
At least one of the Munaf petitioners was charged with
terrorism-related crimes. And the Court repeatedly empha-
sized that the case took place “in the context of ongoing mili-
tary operations.” Id. at 689.
Moreover, and critically for present purposes, Munaf affir-
matively left open not only the FARR Act issue but also the
question of whether the result could be different in “a more
extreme case in which the Executive has determined that a
detainee is likely to be tortured but decides to transfer him
anyway.” Id. at 702. Justice Souter, joined by Justics Gins-
burg and Breyer, saw a wider opening; they “would extend
the caveat to a case in which the probability of torture is well
documented, even if the Executive fails to acknowledge it.”
Id. at 706 (Souter, J., concurring). The majority here, how-
ever, closes the door Munaf opened, ruling that once a
detainee in Trinidad’s position is afforded the procedural
assurance that the Secretary has considered her CAT obliga-
tions, there is no substantive review whatsoever available,
constitutional or statutory, no matter what the underlying cir-
cumstances.
I conclude that given Munaf’s refusal to answer the ques-
tion presented in this case, as well as the substantial differ-
ences between the two cases, Munaf is of little use here.
6464 GARCIA v. THOMAS
III. The Rule of Non-Inquiry
The majority’s, and Judge Tallman’s, more basic ground
for shutting the door on any judicial consideration of Trini-
dad’s substantive claims is the rule of non-inquiry. Consider-
ation of the background and role of that principle in
extradition cases demonstrates that it does not apply—at least
without substantial adjustment—where, as here, there is a spe-
cific, mandatory directive to the Executive Branch with
regard to the treatment of extradition requests.
There is no constitutional or statutory command establish-
ing a rule of non-inquiry—that is, a rule precluding any sub-
stantive judicial inquiry into the likely fate of extradited
criminal defendants.5 Rather, the traditional principle that has
been dubbed the “rule of non-inquiry” developed as a judge-
made doctrine, under which “[a]n extraditing court will gener-
ally not inquire into the procedures or treatment which await
a surrendered fugitive in the requesting country.”
Arnbjornsdottir-Mendler v. United States, 721 F.2d 679, 683
(9th Cir. 1983).
The Supreme Court has never used the term “rule of non-
inquiry,” let alone explicated its scope or proper application.
Instead, the doctrine developed “by implication,” as lower
courts interpreted and expounded upon Supreme Court extra-
5
In fact, Congress has considered and rejected legislation that would
codify the rule of non-inquiry. See Jacques Semmelman, Federal Courts,
the Constitution, and the Rule of Non-Inquiry in International Extradition
Proceedings, 76 CORNELL L. REV. 1198, 1220-21 (1991); see also In re
Extradition of Howard, 996 F.2d 1320, 1330 n.6 (1st Cir.1993) (“The gov-
ernment suggests that the Constitution mandates the rule of non-inquiry.
We disagree. The rule did not spring from a belief that courts, as an insti-
tution, lack either the authority or the capacity to evaluate foreign legal
systems. Rather, the rule came into being as judges, attempting to interpret
particular treaties, concluded that, absent a contrary indication in a specific
instance, the ratification of an extradition treaty mandated noninquiry as
a matter of international comity.”).
GARCIA v. THOMAS 6465
dition precedents. See Semmelman, supra at 1211-12;
Mironescu v. Costner, 480 F.3d 664 (4th Cir. 2007); John T.
Parry, International Extradition, the Rule of Non-Inquiry, and
the Problem of Sovereignty, 90 B.U.L. REV. 1973, 1978-96
(2010).
Since the late nineteenth century, extradition has been a
bifurcated process, with the initial determination of extradita-
bility assigned by statute to a magistrate,6 see 18 U.S.C.
§ 3184, and the final decision to the Secretary of State. In
elaborating the rule of non-inquiry, courts have relied on two
strands of late nineteenth and early twentieth century extradi-
tion caselaw.
The first strand of rule of non-inquiry jurisprudence arises
out of a series of cases in which the Supreme Court articu-
lated the extradition issues subject to review by a habeas court
when examining a magistrate’s decision certifying extradita-
bility. See, e.g., Fernandez v. Phillips, 268 U.S. 311 (1925);
Oteiza v. Jacobus, 136 U.S. 330 (1890); Benson v. McMahon,
127 U.S. 457 (1888). At issue in these early cases was the
procedure and evidence of guilt required before a magistrate
could issue a certificate of extraditability.
The Court’s initial cases in this line established that an
extradition proceeding is not analogous to a criminal trial, “by
6
The statute setting forth the procedures for extradition delegates to
“any Justice of the Supreme Court, circuit judge, district judge, commis-
sioner, authorized to do so by any of the courts of the United States, or
judge of a court of record of general jurisdiction of any state” the authority
to charge a person with having committed an extraditable offense, issue
a warrant for that person’s apprehension, and make an initial assessment
of the sufficiency of the evidence against the person and certify the per-
son’s extraditability. 18 U.S.C. § 3184. Although judicial officers are
involved in this initial determination of extraditability, they are not acting
in their Article III capacity—indeed, they are often not Article III judges.
I will therefore refer to the judicial officers making extradition determina-
tions in the first instance as “magistrates.”
6466 GARCIA v. THOMAS
which the prisoner could be convicted or acquitted of the
crime charged against him,” but is more like a preliminary
hearing “for the purpose of determining whether a case is
made out which will justify the holding of the accused” for
trial. Oteiza, 136 U.S. at 334-35; see also Benson, 127 U.S.
at 462. The scope of review by a habeas court is correspond-
ingly narrow: On habeas, courts need and ought not issue “a
writ of error,” examining all possible procedural defects of an
extradition proceeding, Oteiza, 136 U.S. at 334, for “[f]orm
is not to be insisted upon beyond the requirements of safety
and justice,” Fernandez, 268 U.S. at 312 (internal citation
omitted). Instead, it is sufficient that there be “[c]ompetent
evidence to establish reasonable grounds” for extradition; the
evidence (and the procedure used to evaluate it) need not be
“competent to convict.” Id. Habeas review of a magistrate’s
extradition decision, then, “is available only to inquire
whether the magistrate had jurisdiction, whether the offence
charged is within the treaty and, by a somewhat liberal exten-
sion, whether there was any evidence warranting the finding
that there was reasonable ground to believe the accused
guilty.” Id.From this language, Judge Tallman concludes that judicial
review in all extradition cases is limited to such a narrowly
circumscribed examination of a magistrate’s finding of
extraditability and of the magistrate’s jurisdiction to enter
such a finding. This position rests on a misunderstanding of
the Court’s earliest extradition cases. Those cases, as I have
explained, dealt solely with challenges to the extradition pro-
ceedings held before a magistrate and were designed only to
ensure that there was some basis for the extradition request.
There was no claim in these cases that, for example, the Sec-
retary of State’s decision to extradite was contrary to law or,
in particular, that the petitioner would face torture if extra-
dited. Given their narrow purview, this line of magistrate
review cases does not broadly limit the kinds of claims that
may be brought to contest extradition or delimit the scope of
judicial review with respect to all such claims. Rather, Fer-
GARCIA v. THOMAS 6467
nandez and similar cases established the scope of review for
one particular kind of claim—a claim that the magistrate’s
decision to certify extraditability was improper. In other
words, as the Seventh Circuit has recognized, “these refer-
ences [to limited review of extradition decisions] . . . have
occurred in cases that have involved challenges to the find-
ings of the magistrate in the magistrate’s certification hearing
and have not involved constitutional challenges to the conduct
of the executive branch in deciding to extradite the accused.”
In re Burt, 737 F.2d 1477, 1483 (7th Cir. 1984).
Exemplifying the second strand of Supreme Court cases
from which the federal courts have derived the rule of non-
inquiry is Neely v. Henkel, 180 U.S. 109 (1901), upon which
Judge Tallman heavily relies. In Neely, Charles Neely,
accused of embezzling public funds while serving as Finance
Agent of the Department of Posts in Cuba, challenged the
constitutionality of the statute governing extradition. The stat-
ute, Neely argued, “d[id] not secure to the accused, when sur-
rendered to a foreign country for trial in its tribunals, all of the
rights, privileges and immunities that are guaranteed by the
Constitution to persons charged with the commission in this
country of crime against the United States.” Id. at 122. As a
consequence, Neely maintained, the federal courts had the
authority and responsibility to declare the statute invalid and
order his release. The Court rejected this argument, explaining
that the constitutional provisions cited by Neely, those
relating to the writ of habeas corpus, bills of attain-
der, ex post facto laws, trial by jury for crimes, and
generally to the fundamental guarantees of life, lib-
erty and property . . . . have no relation to crimes
committed without the jurisdiction of the United
States against the laws of a foreign country.
. . . . 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 punish-
6468 GARCIA v. THOMAS
ment 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 (emphasis added).
Essentially, then, Neely expresses the noncontroversial
proposition that the United States Constitution does not bind
other nations. Trinidad’s claim that he will face torture if
extradited is superficially similar to Neely’s claim that he
would face an abrogation of his constitutional rights, privi-
leges, and immunities upon extradition to Cuba; both are
claims about the treatment an extraditee is likely to face in the
requesting country. Importantly, however, Trinidad does not
claim that he has a right under the U.S. Constitution not to be
tortured in the Philippines by Philippine officials. Rather,
Trinidad’s claim is based on an affirmative Congressional
enactment that enforces a treaty obligation—which Neely rec-
ognizes may be subject to domestic enforcement—and that, as
I have shown, binds U.S. government officials and prohibits
them from extraditing persons likely to be tortured. So, in this
case, the issue is not whether foreign officials may be bound
by U.S. norms, or about whether the judiciary, rather than the
Executive Branch, can enforce constitutional norms with
regard to extradition requests. Instead, the question here con-
cerns the role of the judiciary in enforcing the statutory obli-
gations affirmatively placed upon U.S. officials by Congress.
In other words, Judge Kozinski’s argument notwithstanding,
the claim is not—or, at least, not solely—about Trinidad’s
rights once extradited, but rather about the legitimate scope of
executive authority—and, in particular, compliance with Con-
gressional limits on that authority designed to ensure compli-
ance with treaty obligations.
This difference is not merely semantic. Whatever authority
we may have to review claims that an individual ought not be
GARCIA v. THOMAS 6469
extradited because of conditions in the receiving country,7 we
certainly have the authority and the responsibility to review
the legality of executive detention. While the judiciary may
not evaluate the constitutionality of the conduct of foreign
governments, it is indubitably the role of courts to ensure that
American officials obey the law. Indeed, courts have repeat-
edly declined to apply the rule of non-inquiry to claims that
the Executive has acted unlawfully. See, e.g., Mironescu v.
Costner, 480 F.3d 664, 670-71 (4th Cir. 2007); In re Burt, 737
F.2d at 1483; Plaster v. United States, 720 F.2d 340, 348 (4th
Cir. 1983); see also Parry, supra, at 1998-99.
The Executive’s authority to extradite is neither inherent
nor unlimited. Rather, “[i]n the extradition context, when a
‘fugitive criminal’ is found within the United States, ‘there is
no authority vested in any department of the government to
seize [him] and surrender him to a foreign power’ in the
absence of a pertinent constitutional or legislative provision.”
Munaf, 553 U.S. at 704 (quoting Valentine v. United States,
299 U.S. 5, 9 (1936)). As “[t]here is no executive discretion
to surrender [a person] to a foreign government, unless that
discretion is granted by law,” Valentine, 299 U.S. at 9, that
discretion is circumscribed by the terms of such delegation.
7
Several courts have suggested, though no case has yet been decided on
this basis, that there may be a “humanitarian exception” to the rule of non-
inquiry. See, e.g. Lopez-Smith v. Hood, 121 F.3d 1322, 1326-27 (9th. Cir.
1997); Prushinowski v. Samples, 734 F.2d 1016, 1019 (4th Cir. 1984);
Gallina v. Fraser, 278 F.2d 77, 79 (2d Cir. 1960) (“We can imagine situa-
tions where the relator, upon extradition, would be subject to procedures
or punishment so antipathetic to a federal court’s sense of decency as to
require a reexamination” of the rule of non-inquiry); see also Munaf, 553
U.S. at 702 (distinguishing Munaf, in which the Supreme Court denied
habeas from “a more extreme case in which the Executive has determined
that a detainee is likely to be tortured but decides to transfer him any-
way”). Because I believe that the rule of non-inquiry, as it has heretofore
been developed, is not directly applicable to this case, I need not address
the possibility that an exception to the rule might apply.
6470 GARCIA v. THOMAS
Habeas review in this statutory context, then, does not vio-
late separation of powers principles. On the contrary, it pre-
vents the inappropriate concentration of power within a single
branch, where that branch has been assigned mandatory obli-
gations. Judicial review of compliance with Congress’s direc-
tives concerning extradition preserves “the delicate balance of
governance,” ensuring that the executive’s discretion to extra-
dite is exercised within the parameters of the law established
by Congress. See Hamdi v. Rumsfeld, 542 U.S. 507, 536
(2004). The preservation of this separation of powers serves
to secure individual liberty, preventing the extradition of
those likely to face torture. “Security subsists, too, in fidelity
to freedom’s first principles. Chief among these are freedom
from arbitrary and unlawful restraint and the personal liberty
that is secured by adherence to the separation of powers. It is
from these principles that the judicial authority to consider
petitions for habeas corpus relief derives.” Boumediene v.
Bush, 553 U.S. 723, 797 (2008).
Judge Tallman argues that, whatever the limits on the exec-
utive’s authority to extradite, we do not have the power to
review compliance with those limitations, unless specifically
authorized by Congress. Indeed, on Judge Tallman’s view, we
may not review any aspect of extradition absent specific con-
gressional authorization. The Supreme Court, he explains, has
“refused to extend judicial review in extradition cases, regard-
less of the nature of the perceived violation, absent specific
direction from Congress.” Tallman dissent at 6420 n.6. Neely
itself, upon which Judge Tallman rests much of his opinion,
belies this assertion.
In addition to considering whether Neely could be extra-
dited to Cuba, even though Cuba lacked many of the constitu-
tional protections available to defendants in the United States,
the Supreme Court also considered whether Congress had the
power to pass the statute under which Neely was extradited
and whether Neely’s extradition fell within the scope of that
statute. These are not claims that Congress has explicitly
GARCIA v. THOMAS 6471
authorized courts to review in the extradition context. Never-
theless, the Court did not refuse to review such claims. Thus,
while Neely holds that it does not violate the Constitution or
laws of the United States to extradite someone to a country
that does not offer criminal defendants the same procedural
protections as the United States, the case contains no indica-
tion that extraditions that do violate the Constitution or laws
of the United States might, as Judge Tallman contends, not be
subject to habeas review—indeed, it suggests the contrary.
So too does Valentine, also cited by Judge Tallman. The
U.S. citizen respondents in Valentine claimed that because the
relevant treaty stated that the United States was not bound to
extradite its own citizens, “the President had no constitutional
authority to surrender” them. Valentine, 299 U.S. at 6. The
Supreme Court not only reviewed this claim, but granted
habeas on that basis. Id. at 18. Similarly, here, Trinidad
claims that the Secretary of State lacks the authority to surren-
der him. Indeed, Trinidad’s claim is arguably stronger than
that of the extraditees in Valentine: CAT, as implemented by
the FARR Act, does not merely state that the Executive is not
required to extradite those likely to face torture; it affirma-
tively denies that power. I conclude that the rule of non-
inquiry does not bar this claim.
As I have shown, the judicially developed rule of non-
inquiry was not developed in, and does not have direct appli-
cation to, judicial enforcement of obligations imposed by stat-
ute upon executive officials. The rule bars judicial
examination of extraditions once it is determined that they are
not contrary to the Constitution, laws, or treaties of the United
States. It does not hold that we must refrain from reviewing
claims that an extradition is, in fact, unlawful.
I note that this seems to be Judge Thomas’s understanding
as well. Thomas conc. at 6408. He agrees that the FARR Act
limits the Executive’s authority to extradite and that courts
may enforce this limitation through habeas. My disagreement
6472 GARCIA v. THOMAS
with his concurrence is in how we construe the obligation the
FARR Act imposes: Judge Thomas characterizes the obliga-
tion of the Secretary of State as a “duty . . . to consider
whether a person facing extradition from the U.S. ‘is more
likely than not’ to be tortured.” Thomas conc. at 6408. If this
were the extent of the duty imposed by the Act, I would agree
that our review of the Secretary’s compliance was limited to
requiring a declaration that she had, indeed, considered
whether Trinidad would be tortured upon extradition. But, as
I have explained—and as the parties agree—the duty imposed
upon the Secretary extends beyond simply considering
whether Trinidad is more likely than not to face torture. She
is required not to extradite him if there are substantial grounds
to believe that he is more likely than not to face torture. Judi-
cial review, therefore, must extend not only to determining
whether the Secretary considered Trinidad’s claim that he
would be tortured but to ascertaining that she complied with
her obligation not to extradite where, on the available infor-
mation, torture is more likely than not.
This conclusion does not resolve this FARR Act extradition
case or any other. It merely establishes that substantive judi-
cial review is not entirely precluded in this species of case and
that we are writing on a clean slate in this case with regard to
the reach of that review and the appropriate procedures that
should be used.
IV. Proposed Proceedings
In approaching these questions afresh, I begin with the
Supreme Court’s recognition in Boumediene that “common-
law habeas corpus was, above all, an adaptable remedy. Its
precise application and scope changed depending upon the
circumstances.” Id. at 779. The scope of habeas review is, in
other words, not fixed. Rather, its proper application depends
upon the circumstances in which it is to be applied. See id. In
the circumstances of this case, I would, on habeas, apply what
one might call a “rule of limited inquiry,” designed to ensure
GARCIA v. THOMAS 6473
against blatant violations of the Secretary’s CAT obligations
as implemented by the FARR Act.
I begin from what Boumediene identified as two “uncon-
troversial” features of any habeas review: (1) the detainee
must have “a meaningful opportunity to demonstrate that he
is being held pursuant to ‘the erroneous application or inter-
pretation’ of relevant law”; and (2) “the habeas court must
have the power to order the conditional release of an individ-
ual unlawfully detained.” Id. at 779 (quoting St. Cyr, 533 U.S.
at 302). But, likening habeas to procedural due process, the
opinion further stated that “the necessary scope of habeas
review in part depends upon the rigor of any earlier proceed-
ings.” Id. at 781.
The underlying proceeding in Boumediene was the Comba-
tant Status Review Tribunal (CSRT), which the Deputy Sec-
retary of Defense had established to evaluate the enemy
combatant status of those detained at Guantanamo. Id. at 733.
Habeas review of CSRT determinations, Boumediene
explained, was “more urgent” than review of an ordinary judi-
cial or even administrative proceeding, because CSRT deter-
minations were not the result of a judicial hearing before a
neutral decisionmaker. Id. at 783. Even where “all the parties
involved . . . act with diligence and in good faith, there is con-
siderable risk of error in the tribunal’s findings,” due to the
“ ‘closed and accusatorial’ ” nature of the proceeding. Id. at
785 (quoting Bismullah v. Gates, 514 F.3d 1291, 1296 (D.C.
Cir. 2008)). Given the consequence of error—detention for
the course of an indefinite war—this “risk,” the opinion
stated, is “too significant to ignore.” Id. In the CSRT context,
therefore, a habeas court must have at least “some authority
to assess the sufficiency of the Government’s evidence
against the detainee,” as well as “the authority to admit and
consider relevant exculpatory evidence that was not intro-
duced during the earlier proceeding.” Id. at 786.
The proceeding at issue here is quite different from the
CSRTs considered by the Boumediene Court. Nevertheless,
6474 GARCIA v. THOMAS
Boumediene provides some guidance. While the magistrate’s
determination of a detainee’s extraditability seems to be a
proceeding of the kind Boumediene held warrants minimal
review, the torture determination is much more like the closed
proceedings, which Boumediene held should be subject to
somewhat more searching review.
In particular, the regulations governing the Secretary of
State’s review of CAT claims in the extradition context are
vague. It is difficult for me to determine from those regula-
tions precisely what administrative process might be available
to those claiming they are likely to be tortured if extradited.
The regulations state:
(a) . . . . In each case where allegations relating to
torture are made or the issue is otherwise brought to
the Department’s attention, appropriate policy and
legal offices 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.
(b) Based on the resulting analysis of relevant infor-
mation, 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.
22 C.F.R. § 95.3.
The risk of error in the Secretary’s torture determination is
likely lower than that of a CSRT tribunal—the determination
is not accusatorial, nor is it likely (in general) to be directly
affected by the national security concerns that underlie the
CSRT determinations. It is, however, a closed process without
a neutral decisionmaker. And it lacks, it would seem, any pre-
scribed way for the detainee to present evidence or to contest
GARCIA v. THOMAS 6475
that presented by the government.8 Furthermore, the conse-
quence of error—torture—is indisputably significant, indistin-
guishable in terms of magnitude of harm, I would suggest,
from indefinite detention. The Secretary’s determination,
then, is much more like the kind of proceeding Boumediene
characterized as requiring habeas review with “the means to
correct errors” than one for which “habeas corpus review may
be more circumscribed.” Id. at 786.
I would hold, therefore, that in reviewing the Secretary’s
determination that an individual may be extradited consistent
with CAT, a habeas court must be able to inquire in some
manner into the substance of the determination to “assess the
sufficiency” of the Secretary’s evidence and conclusions. Id.That is, on habeas review, the court must be able to assess
whether the Secretary appropriately determined that, upon
extradition, torture is not more likely than not. A declaration
by the Secretary (or her delegate) such as the majority
requires on due process grounds, stating than that the State
Department determined that a detainee may be extradited con-
sistent with CAT may be, but is not necessarily, sufficient for
that purpose. Whether it is or not depends, in my view, on
what the remainder of the record shows with regard to the
likelihood of torture upon extradition.
This scaled approach flows from the recognition that judi-
cial review of the Secretary’s substantive determination
should be extremely deferential. As the Government argues,
the State Department is better suited than the courts to deter-
mine in the first instance the likelihood of torture and to nego-
8
The Government states that “Trinidad was given multiple opportunities
to submit any material he desired to the State Department to support his
claim” and that “he was further offered an opportunity to present evidence
at an in-person meeting with a State Department official.” However, the
Government also states that Trinidad “had no right to . . . a hearing,” and,
indeed, under the State Department regulations, it would seem that indi-
viduals claiming they are likely to face torture have no prescribed rights
at all.
6476 GARCIA v. THOMAS
tiate with foreign governments to decrease that likelihood.
Furthermore, the sensitivity of the foreign policy concerns
implicated in extradition decisions requires that courts tread
lightly in these cases. I do not take lightly the State Depart-
ment’s concerns about judicial review of its torture determina-
tions. Cf. Alperin v. Vatican Bank, 410 F.3d 532, 556 (9th Cir.
2005) (stating that the State Department’s views on whether
a lawsuit implicated the political question doctrine would be
taken into consideration in deciding whether to exercise judi-
cial review). I would address these concerns, however, not by
refusing judicial review entirely and in all circumstances, but
rather by ensuring that the procedure by which we review the
Secretary’s torture determination is designed to take these
considerations quite specifically into account. In addition,
while judicial review of the Secretary’s torture determination
ought generally to be available, nothing would foreclose the
State Department from arguing in any particular case that
under the specific circumstances of that case, we ought to
decline review. Cf. Republic of Austria v. Altmann, 541 U.S.
677, 701 (2004) (“[W]hile we reject the United States’ recom-
mendation to bar application of the FSIA to claims based on
pre-enactment conduct, nothing in our holding prevents the
State Department from filing statements of interest suggesting
that courts decline to exercise jurisdiction in particular cases
implicating foreign sovereign immunity.”).
I therefore turn to the four considerations the Government
maintains militate against judicial review of the Secretary’s
torture determinations. First, the Government explains that to
ensure an extraditee will not be tortured, the State Department
may seek assurances to that effect from a foreign government,
impose conditions on extradition, and in some cases, monitor
the extraditee’s treatment once in the foreign country. See
Mironescu, 480 F.3d at 671-72; United States v. Kin-Hong,
110 F.3d 103, 110 (1st Cir. 1997); Emami v. Dist. Court, 834
F.2d 1444, 1454 (9th Cir. 1987); Sindona v. Grant, 619 F.2d
167 (2d Cir. 1980); Semmelman, supra, at 1198. Arranging
for these concessions, the Government argues, is a sensitive
GARCIA v. THOMAS 6477
and delicate process. And their very existence may be confi-
dential.
No doubt, judicial review of the Secretary’s torture deter-
minations will sometimes require courts to deal with sensitive
information. But we have well-developed mechanisms for
dealing with such information, such as in camera review, pro-
tective orders, and procedures for reviewing classified infor-
mation. See Mironescu, 480 F.3d at 673; Quinn v. Robinson,
783 F.2d 776, 788 (9th Cir. 1986); Eain v. Wilkes, 641 F.2d
504, 514-15 (7th Cir. 1981); see also Boumediene, 553 U.S.
at 796; Classified Information Procedures Act, Pub. L. No.
96-456, 94 Stat. 2025 (1988) (describing procedures for use
of classified information in criminal proceedings); FED. R.
CIV. P. 5.2 (describing procedures for protective orders and
filing documents under seal); FED. R. APP. P. 27-13 (describ-
ing procedures for filing sealed documents federal courts of
appeals); Robert Timothy Reagan, The New “Public Court”:
Classified Information in Federal Court, 53 VILL. L. REV. 889
(2008) (describing procedures for use of classified informa-
tion in recent federal civil and criminal proceedings).
I note that this is not a case in which the Government
alleges that the relevant information is classified or that it is
a state secret, the release of which is likely to affect national
security. If the information were in either category, the Gov-
ernment could invoke established procedures for ensuring
secrecy and, in the case of state secrets, our well-developed
caselaw protecting such information (including providing for
dismissal of cases in which a state secret is the subject of the
proceeding or in which the case cannot go forward without
information subject to the state secret evidentiary privilege).
See, e.g., Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d
1070 (9th Cir. 2010). This case, and I expect most similar
cases, involves information that implicates our diplomatic
relations with other countries, but not, as far as we have been
made aware, the security of our nation. While maintaining the
6478 GARCIA v. THOMAS
confidentiality of this information is essential, I have no doubt
of courts’ ability to do so through appropriate procedures.
Second, the Government emphasizes the importance of
timeliness in extradition proceedings. Delay can impede our
relationships with requesting nations and may even cause
some cases to become moot as statutes of limitations run out.
This is a legitimate concern, one that, as in other cases in
which timeliness is important, courts can address by imple-
menting expedited procedures where requested to do so and
where appropriate. Given the availability of expedition, the
Government’s legitimate interest in timeliness cannot out-
weigh Trinidad’s right to habeas relief if his extradition would
result in torture, and therefore be contrary to law. See
Mironescu, 480 F.3d at 673.
Third, the Government questions the ability of courts to
determine whether an individual is more likely than not to be
tortured. The Government explains:
It is difficult to contemplate how judges would reli-
ably make such a prediction, lacking any ability to
communicate with the foreign government or to
weigh the situation there, including the bilateral rela-
tionship with the United States, with resources and
expertise comparable to those of the Department of
State.
But judges routinely review such determinations. In the immi-
gration context, courts frequently review claims that an indi-
vidual, if removed, is likely to be tortured and therefore is
entitled to withholding or deferral of removal under CAT and
the FARR Act. See, e.g., Delgado v. Holder, 648 F.3d 1095,
1108 (9th Cir. 2011) (en banc); Al-Saher v. INS, 268 F.3d
1143, 1146 (9th Cir. 2001). The adjudication of these claims
sometimes involves the assessment of diplomatic assurances
of the kind that also may be negotiated in extraditions. See
Khouzam v. Att’y Gen., 549 F.3d 235 (3d Cir. 2008). There
GARCIA v. THOMAS 6479
is no reason to think courts would suddenly become less com-
petent in reviewing torture determinations simply because
they were made in the context of extradition rather than immi-
gration.
Pointing to several “obvious distinctions” between immi-
gration and extradition, the Government argues that judicial
competence to review torture determinations in immigration
proceedings does not in fact indicate a similar competence in
the extradition context. In particular, the Government argues
that extradition treaties are negotiated “with foreign state part-
ners meeting human rights norms,” and that “an ongoing rela-
tionship with a specific foreign state creates incentives to
meet human rights commitments in extradition situations.”
Given this observation, I am willing to accept that torture is
less likely in the extradition than in the immigration context.
But this assumption, while strongly bearing on the showing
that a detainee must make in the face of a governmental dec-
laration of FARR Act compliance such as the one the majority
requires, does not justify complete displacement of all judicial
authority with regard to substantive FARR Act enforcement
in a habeas case.
Finally, the Government also seeks to distinguish the immi-
gration cases based on the foreign policy implications of
extradition. The Government explains that unlike immigration
proceedings, extradition commences at the request of a for-
eign state, which commits substantial resources to the pro-
ceeding. And unlike immigration proceedings, extradition
obligations are reciprocal: that is, just as the United States has
agreed to extradite those who have committed crimes in cer-
tain countries, we depend on those countries to extradite indi-
viduals who have committed crimes here. If we fail to fulfill
our extradition obligations, it is likely that when we request
extradition, other countries will fail to fulfill their obligations.
These concerns, too, are legitimate and significant. But
they are largely concerns relevant to whether the United
6480 GARCIA v. THOMAS
States ought to extradite an individual likely to face torture,
a decision that, in ratifying CAT and passing the FARR Act,
Congress has already made. They do not concern the diffi-
culty or nature of the determination of whether torture is
likely. This determination is the same regardless of whether
the United States government has instigated a person’s
removal or a foreign government has requested it.
In the end, the Government has not identified a single way
in which the actual determination of whether a person is likely
to be tortured fundamentally differs in the extradition context
from that in the immigration context—let alone differs in such
a way that would make courts uniformly inept in reviewing
such determinations in the extradition context although uni-
formly competent where immigration removal is at issue.
To be sure, the State Department has experience, expertise,
and diplomatic tools that courts lack. It is for this reason that
I suggest that our review here, even more than our review in
the immigration context, ought to be highly deferential. But
the State Department’s comparative advantage in ascertaining
the likelihood of torture, and in negotiating with foreign gov-
ernments to ensure against torture in particular cases, does not
mean that courts ought not ever review the Department’s
decisions to ensure that Executive detention is in accordance
with the law, which is what the majority holds. “Whatever
power the United States Constitution envisions for the Execu-
tive in its exchanges with other nations . . . , it most assuredly
envisions a role for all three branches when individual liber-
ties are at stake.” Hamdi v. Rumsfeld, 542 U.S. at 536; see
Khouzam, 549 F.3d at 250; United States v. Decker, 600 F.2d
733, 738 (9th Cir. 1979) (“We are less inclined to withhold
review when individual liberty . . . is implicated.”).
Given all these considerations, I would structure a habeas
proceeding such as this one to minimize the burden on the
State Department, to protect its legitimate interest in conduct-
ing foreign affairs, to reveal diplomatic information even to
GARCIA v. THOMAS 6481
courts only when essential and when not protected by other-
wise applicable doctrines, and to defer to its competence in
that arena. We should therefore apply a highly deferential,
limited inquiry principle to CAT claims in the extradition
context, even more deferential than in the immigration con-
text. In other words, at most, we would reverse the decision
of the Secretary of State “only if the evidence is so compel-
ling that no reasonable fact finder could have failed to find the
requisite likelihood of torture.” Lanza v. Ashcroft, 389 F.3d
917, 936 (9th Cir. 2004) (quoting Singh v. Ashcroft, 351 F.3d
435, 442 (9th Cir. 2003)). The detainee would bear the burden
of demonstrating through strong, credible, and specific evi-
dence that torture is more likely than not, and that no reason-
able factfinder could find otherwise. If, and only if, such a
prima facie case is made, must the Secretary submit evidence,
should she so choose and in camera where appropriate, dem-
onstrating the basis for her determination that torture is not
more likely than not.
It is premature in this case to spell out the applicable stan-
dards in any greater detail, given that, as I stated at the outset,
we do not even know whether the minimal procedural due
process requirement adopted by the majority has been met. I
can observe that in this case, Trinidad has made a very strong
showing that his co-defendants were tortured. But the record
also demonstrates that the Philippine judicial system so recog-
nized, and that the prosecutions of the co-defendants therefore
did not proceed. Under those circumstances, Trinidad would
have to provide strong, credible, and specific evidence that he
would be tortured if extradited even though the torture of his
co-defendants made it impossible to prosecute them legally in
the Philippines. I doubt the record as it stands is adequate for
that purpose, and so I doubt that under my approach the gov-
ernment in the end would have to provide any more evidence
than that the majority requires.
****
6482 GARCIA v. THOMAS
Habeas corpus has long been a vital mechanism for pre-
serving the separation of powers and individual liberty.
Where international interests are implicated, habeas review
can implicate serious foreign affairs and separation of powers
concerns. But the judiciary cannot abandon its role in prevent-
ing unlawful detention by the Executive because asserting it
responsibly is not easy. Rather, where possible, we must find
ways of fulfilling our obligation while addressing the execu-
tive branch’s legitimate concerns. I believe it is possible to do
so in this case. The limited inquiry review I suggest above
would both maintain the prerogative of the Secretary of State
in conducting foreign affairs, particularly with regard to nego-
tiations surrounding extradition, and avoid abdicating our role
in preventing unlawful executive detention.
I concur in the majority’s remand to the district court for
the purpose it states. If the requisite declaration is provided,
I would direct the district court to conduct proceedings con-
sistent with this opinion.
PREGERSON, Circuit Judge, concurring in part and dissent-
ing in part, with whom Judge W. Fletcher joins:
I agree with the majority’s holding in all aspects, except
parts 4-6. Specifically, I agree that we have jurisdiction to
decide Trinidad y Garcia’s habeas corpus petition. Per curiam
at 6399-6401. I disagree with the majority opinion, however,
regarding the scope of our review.
The majority believes that under the Foreign Affairs
Reform and Restructuring Act of 1998 (FARRA), 8 U.S.C.
§ 12311 (congressional legislation implementing our obliga-
1
Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No.
105-277, § 2242, 112 Stat. 2681-761, 2682-822-823 (1998) (codified as a
note to 8 U.S.C. § 1231 (1991)).
GARCIA v. THOMAS 6483
tions under Article 3 of the Convention Against Torture
(CAT)), “[a]n extraditee . . . possesses a narrow liberty inter-
est: that the Secretary comply with her statutory and regula-
tory obligations.” Per curiam at 6401. I believe, however, that
Trinidad y Garcia’s liberty interest is not merely about pro-
cess. FARRA § 2242(a) unequivocally states that it is “the
policy of the United States not to expel, extradite, or other-
wise 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[.]” 8 U.S.C.
§ 1231. Because Trinidad y Garcia has made a non-frivolous
claim that “there are substantial grounds for believing [he]
would be in danger of being subjected to torture” if he is
extradited to the Philippines, in violation of FARRA
§ 2242(a) and CAT, and thus in violation of the “laws or trea-
ties of the United States,” 28 U.S.C. § 2241(c)(3), he has
stated a cognizable habeas corpus claim in which he is enti-
tled to meaningful review.
Thus, I disagree with the majority that Trinidad y Garcia’s
liberty interest will be fully vindicated if the Secretary of
State augments the record with a declaration “signed by the
Secretary or a senior official properly designated by the Sec-
retary” attesting that the Secretary has complied with her reg-
ulatory obligations. Per curiam at 6402. Supreme Court
precedent counsels otherwise: where we have found habeas
jurisdiction, our review consists of “some authority to assess
the sufficiency of the Government’s evidence[.]” Boumediene
v. Bush, 553 U.S. 723, 786 (2008). Because such a bare bones
declaration from “the Secretary or a senior official properly
designated by the Secretary,” per curiam at 6402, does not
allow us to “assess the sufficiency of the Government’s evi-
dence,” Boumediene, 533 U.S. at 786, I cannot join the major-
ity opinion and therefore dissent.
The stakes in this case could not be higher:
[T]he right to be free from official torture is funda-
mental and universal, a right deserving of the highest
6484 GARCIA v. THOMAS
stature under international law, a norm of jus cogens.
The crack of the whip, the clamp of the thumb
screw, the crush of the iron maiden, and, in these
more efficient modern times, the shock of the elec-
tric cattle prod are forms of torture that the interna-
tional order will not tolerate. To subject a person to
such horrors is to commit one of the most egregious
violations of the personal security and dignity of a
human being.
Hilao v. Estate of Marcos, 25 F.3d 1467, 1475 (9th Cir. 1994)
(quoting Siderman de Blake v. Republic of Argentina, 965
F.2d 699, 717 (9th Cir. 1992)). This international norm pro-
hibiting torture has been adopted by 149 countries2 that are
parties to the CAT.3 Article 3 of CAT requires that a State
Party not return a person to another State where there are
“substantial grounds for believing that he would be in danger
of being subjected to torture.” The United States signed CAT,
and the Senate ratified the treaty with certain provisions,
including that “the terms of CAT were not affected, except
that the ‘substantial grounds for believing’ basis was clarified
to mean ‘if it is more likely than not that he would be tor-
tured.’ ” Edu v. Holder, 624 F.3d 1137, 1144 (9th Cir. 2010)
(citing 136 Cong. Rec. S17486, S17492 (1990)). Congress
implemented our CAT obligations in the FARRA stating
clearly 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,” FARRA § 2242(a).
2
1465 U.N.T.S. 85.
3
United Nations Convention Against Torture and Other Forms of Cruel,
Inhuman or Degrading Treatment or Punishment, adopted by unanimous
agreement of the U.N. General Assembly, G.A. Res. 39/46, 39 U.N.
GAOR Supp. No. 51 at 197, U.N. Doc. A/RES/39/708 (1984), entered into
force as to the United States Nov. 20, 1994, signed Apr. 18, 1988.
GARCIA v. THOMAS 6485
Trinidad y Garcia alleged that his extradition to the Philip-
pines violates FARRA and CAT, and presented compelling
evidence that “there are substantial grounds for believing [he]
would be in danger of being subjected to torture” if the United
States transferred him to the Philippines. FARRA § 2242(a).
Specifically, Trinidad y Garcia presented credible evidence in
the form of affidavits and court documents from the Philip-
pines revealing that the Philippine government tortured
almost all of his co-accused, and numerous authoritative
country reports detailing how Philippine law enforcement
officials continue to torture and abuse suspects.
The Philippines sought Trinidad y Garcia’s extradition to
stand trial on a charge of kidnaping for ransom. Five of Trini-
dad y Garcia’s co-accused were tortured by the Philippine
government. The treatment of two of these co-accused,
Gerilla and Villaver, is especially troubling. According to
Gerilla’s sworn affidavit, police officers abducted him from
his home, blindfolded him, secluded him in a small, cold
room, and denied him food and water. When Gerilla denied
the Phillippine officials’ charges against him, the police offi-
cers placed a plastic bag over Gerilla’s head, causing him to
suffocate; the officers removed the bag at the last minute. The
Philippine police officers poured soft drinks down Gerilla’s
nose, making it hard for him to breathe, and then forced him
to eat a foul-tasting substance, causing him to vomit. As
Gerilla continued to maintain his innocence, the officers
affixed electric wires to Gerilla’s inner thighs, shocking him
with electricity, and then forced him to endure extreme tem-
peratures by shoving ice down his shirt. Eventually Gerilla
confessed to the charges against him after the officers threat-
ened to abduct and rape his sisters. A Philippine trial judge
found this account of torture credible, deemed Gerilla’s extra-
judicial confession invalid and inadmissible, and dismissed all
the charges against him.
Trinidad y Garcia also presented an affidavit from another
co-accused, Villaver, who similarly endured physical torture,
6486 GARCIA v. THOMAS
including suffocation and electric shocks. When Villaver
refused to confess to any crime, Philippine officers took him
to a remote rice paddy, removed his restraints, and told him,
“Do something to save your life, it is all up to you.” When
Villaver attempted to run, the officers shot him twice in the
back and another bullet grazed his chin. Instead of taking Vil-
laver to a hospital, the officers put him into their jeep and
began suffocating him by holding a piece of plastic with cloth
over Villaver’s nose. While suffocating, Villaver lost bodily
control, causing him to defecate. Eventually, the officer
released the pressure on Villaver’s nose and mouth. The offi-
cers took Villaver to a hospital where doctors performed
emergency surgery. Villaver survived.
In addition to these specific and credible accounts of torture
Trinidad y Garcia’s co-accused suffered at the hands of Phil-
ippine officials, Trinidad y Garcia presented numerous sup-
porting documents demonstrating the pervasiveness of torture
in the Philippines. The State Department’s 2007 country
report for the Philippines — a report prepared by the Secre-
tary’s own agency — states, “members of the security forces
and police were alleged to have routinely abused and some-
times tortured suspects and detainees.” According to Amnesty
International’s 2003 country report for the Philippines, “tor-
ture persists.” “Techniques of torture documented by
Amnesty International include electro-shocks and the use of
plastic bags to suffocate detainees.” The report finds that “a
continuing de facto climate of impunity that shields the perpe-
trators of torture and other grave human rights violations”
exists in the Philippines.
Trinidad y Garcia presented his CAT claim to the Secretary
of State. But despite this evidence, Secretary of State Con-
doleeza Rice authorized a warrant to surrender Trinidad y
Garcia for extradition on September 12, 2008. Trinidad imme-
diately filed a request to stay the extradition pending the reso-
lution of a habeas corpus petition, which the district court
granted. On November 24, 2009, Trinidad filed a writ of
GARCIA v. THOMAS 6487
habeas corpus under 28 U.S.C. § 2241, alleging that he was
being unlawfully detained pending extradition under the Sec-
retary of State’s surrender warrant because he was denied pro-
cedural due process, and because his extradition will violate
CAT and federal law, and deny him his substantive due pro-
cess rights. The Secretary of State refused to provide the dis-
trict court with any evidence for it to review the Secretary’s
decision to surrender Trinidad y Garcia for extradition.
Because of Trinidad y Garcia’s compelling unrebutted evi-
dence of the likelihood of torture, the district court granted
Trinidad y Garcia’s habeas petition.
In reviewing Trinidad’s habeas claim and the compelling
evidence he submitted, the majority believes all that is
required of the State Department is a declaration from the
Secretary “or a senior official properly designated by the Sec-
retary” attesting that the Secretary considered Trinidad y Gar-
cia’s torture claim and found it not “more likely than not” that
he would face torture if returned to the Philippines. Per
curiam at 6400-02. But such a superficial inquiry in the con-
text of a habeas corpus petition abdicates the critical constitu-
tional “duty and authority” of the judiciary to protect the
liberty rights of the detained by “call[ing] the jailer to
account.” Boumediene, 553 U.S. at 745.
In Boumediene, a case involving a habeas challenge by
prisoners held as “enemy combatants” at the Guantanamo Bay
detention camp, the Supreme Court explained that “[w]here a
person is detained by executive order, rather than say, after
being tried and convicted in a court, the need for collateral
review is most pressing.” 553 U.S. at 783. The Court
explained that while habeas proceedings challenging deten-
tion by executive order do not need to contain the same proce-
dures as a criminal trial, “the writ must [nevertheless] be
effective.” Id. The Court explicitly noted that “[i]t is uncon-
troversial . . . that the habeas privilege entitles the prisoner to
a meaningful opportunity to demonstrate that he is being held
pursuant to ‘the erroneous application or interpretation’ of rel-
6488 GARCIA v. THOMAS
evant law.” Id. at 728-29 (emphasis added) (citing INS v. St.
Cyr, 533 U.S. 289, 302 (2001)). Accordingly, the Court was
clear that “[f]or the writ of habeas corpus, or its substitute, to
function as an effective and proper remedy in this context, the
court that conducts the habeas proceeding must have the
means to correct errors that occurred during the [earlier pro-
ceedings.]” Id. at 786. “This includes some authority to assess
the sufficiency of the Government’s evidence against the
detainee.” Id. (emphasis added).
But all we have here is a black box because the Secretary
has refused to present to the district court any evidence she
considered in deciding to surrender Trinidad y Garcia to the
Philippines. The majority’s requirement that the Secretary or
her designee only produce an affidavit declaring that the Sec-
retary determined it is not “more likely than not” that Trinidad
y Garcia will suffer torture if extradited to the Philippines
does not allow the district court to conduct a meaningful
habeas proceeding. See id. Such a document does not allow
the district court “to assess the sufficiency of the Govern-
ment’s evidence against the detainee,” nor does it provide the
district court an opportunity to “correct errors that occurred
during the [earlier proceedings],” as habeas corpus review
requires. Id. (emphasis added).
I disagree with the majority that Munaf v. Geren,4 553 U.S.
4Munaf cannot be read to supersede the holding or underlying reasoning
in Boumediene. Both cases were decided in the same year, 2008. Nor are
the stakes arguably higher in Munaf than Boumediene, which involved sig-
nificant national security matters. The Supreme Court noted in Boumed-
iene that even in such high stakes circumstances, it is critical for the courts
to properly adjudicate habeas claims:
In considering both the procedural and substantive standards used
to impose detention to prevent acts of terrorism, proper deference
must be accorded to the political branches. . . . Officials charged
with daily operational responsibility for our security may con-
sider a judicial discourse on the history of the Habeas Corpus Act
GARCIA v. THOMAS 6489
674 (2008), and the Rule of Non-Inquiry prevent us from per-
forming our constitutional duty of “inquir[ing] into the sub-
stance of the Secretary’s decision.” Per curiam at 6402.
The majority appears to cite Munaf for the proposition that
an executive decision to surrender a detainee accused of com-
mitting crimes in another country should be addressed solely
by the executive. But Munaf is readily distinguishable from
the present case. The facts of Munaf are unique and the
Supreme Court was clear that its holding was circumscribed
to the circumstances of that case. See 553 U.S. at 700 (“[I]n
the present context [petitioner’s concerns of torture are] to be
addressed by the political branches[.]” (emphasis added)); see
also id. at 706 (Souter, J., concurring) (stating that “[t]he
Court holds that ‘under circumstances such as those presented
here . . . habeas corpus provides petitioners with no relief’ ”
and explicitly outlining the unique circumstances of the case).
In Munaf, petitioners were two U.S. citizens who were cap-
tured in Iraq and held by U.S. military forces in Iraq, at the
request of the Iraqi government, pending prosecution in Iraqi
courts for crimes they allegedly committed while in Iraq dur-
ing ongoing hostilities. Id. at 681-85. Such circumstances
require the courts to “adjudicat[e] issues inevitably entangled
in the conduct of our international relations[,]” and the Court
therefore approached the issues “cognizant that courts tradi-
tionally have been reluctant to intrude upon the authority of
of 1679 and like matters to be far removed from the Nation’s
present, urgent concerns. . . . Security depends upon a sophisti-
cated intelligence apparatus and the ability of our Armed Forces
to act and to interdict. There are further considerations, however.
Security subsists, too, in fidelity to freedom’s first principles.
Chief among these are freedom from arbitrary and unlawful
restraint and the personal liberty that is secured by adherence to
the separation of powers. It is from these principles that the judi-
cial authority to consider petitions for habeas corpus relief
derives.
553 U.S. at 796-97.
6490 GARCIA v. THOMAS
the Executive in military and national security affairs.” Id. at
689 (internal quotation marks omitted). Further, the petition-
ers in Munaf were not seeking simple release: if they were
released in Iraq, they would likely be arrested by Iraqi forces,
the very event they were seeking to avoid. Id. at 692. Thus,
the Munaf petitioners sought “transfer” to another country
where they believed they would not suffer torture. Id. The
Court noted that this requested relief did not present a proper
habeas claim: “the ‘release’ petitioners seek is nothing less
than an order commanding our forces to smuggle them out of
Iraq.” Id. at 697.
In contrast, Trinidad y Garcia is in the United States and
seeks the proper form of habeas “release,” as opposed to the
“transfer” petitioners sought in Munaf. Further, Trinidad y
Garcia has made an individualized claim of torture based on
official documents from Philippine courts and reports by the
State Department — the very department that now refuses to
account for its extradition decision — regarding the perva-
siveness of torture in the Philippines. Such a claim hardly “in-
trude[s] upon the authority of the Executive in military and
national security affairs.” Id. at 689 (internal quotation marks
omitted). Moreover, adjudication of FARRA torture claims
cannot possibly involve “issues inevitably entangled in the
conduct of our international relations[,]” because federal
courts routinely adjudicate torture claims as part of our review
of immigration proceedings. Id. (internal quotation marks
omitted); See, e.g., Khouzam v. Attorney Gen. of the United
States, 549 F.3d 235, 253 (3d Cir. 2008) (“In fact, we rou-
tinely evaluate the justice systems of other nations in adjudi-
cating petitions for review of removal orders.”).
Moreover, the Supreme Court explicitly stated in Munaf
that it “express[ed] no opinion” on whether habeas relief was
available if a petitioner asserted a claim that his extradition
would violate the Secretary’s obligations under FARRA. 533
U.S. at 703 & n.6. (“Neither petitioner asserted a FARR Act
claim in his petition for habeas, and the Act was not raised in
GARCIA v. THOMAS 6491
any of the certiorari filings before this Court. . . . Under such
circumstances we will not consider the question.”); see also
id. at 706 (Souter, J., concurring) (“I would add that nothing
in today’s opinion should be read as foreclosing relief for a
citizen5 of the United States who resists transfer . . . in which
the probability of torture is well documented, even if the
Executive fails to acknowledge it.”); see also Khouzam, 549
F.3d at 254 (finding that the principles of Munaf did not apply
to a FARRA claim because the Supreme Court “expressly dis-
tinguished claims under CAT”). In contrast, Trinidad y Gar-
cia’s habeas claim alleges that his extradition will violate his
constitutional rights not to be transferred in violation of a fed-
eral law, FARRA, and the U.S.’s treaty obligations under
CAT, and presented numerous documents that show there is
a substantial likelihood he will be tortured if returned to the
Philippines. Thus, because Trinidad y Garcia’s case is so
readily distinguishable from the unique circumstances of
Munaf and the Court in Munaf explicitly reserved for another
day the decision of whether its holding would apply to a legit-
imate FARRA claim, I do not believe that Munaf limits our
review to the extent the majority believes it does.
The Rule of Non-Inquiry similarly does not limit the scope
of our review to such a superficial level as the majority sug-
gests. The Rule of Non-Inquiry is a rule the courts imposed
on themselves to preserve “Executive discretion.” Emami v.
United States Dist. Court, 834 F.2d 1444, 1454 (9th Cir.
1987); Prasoprat v. Benov, 421 F.3d 1009, 1016 (9th Cir.
2005) (noting that “the rule of non-inquiry is based on . . . the
Secretary of State’s exercise of discretion”). But the Secre-
tary’s obligation not to extradite someone who will “more
5
That Trinidad y Garcia is not a citizen of the United States is irrelevant.
FARRA does not distinguish between citizens and non-citizens, see
FARRA § 2242(a), nor does such a distinction matter for a due process
claim, see Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (“[T]he Due Pro-
cess Clause applies to all ‘persons’ within the United States, including
aliens[.]”).
6492 GARCIA v. THOMAS
likely than not” face torture is a nondiscretionary duty under
FARRA, as State Department counsel conceded in briefing
and at oral arguments. Accordingly, proper habeas review
exists for Trinidad y Garcia to challenge whether he is being
held because of “the erroneous application or interpretation of
relevant law.” Boumediene, 553 U.S. at 729 (internal quota-
tion marks omitted).
Munaf and the Rule of Non-Inquiry therefore do not
remove all substantive review of the Secretary’s decision to
surrender an extraditee when he has presented a non-frivolous
FARRA claim that it is “more likely than not” he will suffer
torture when transferred to the requesting country. However,
the underlying principles of Munaf and the Rule of Non-
Inquiry at least suggest that we do not have the sweeping
authority to overturn the Secretary’s decision simply because
we disagree with it. Our review lies somewhere between these
two extremes. A mere statement that the Secretary has com-
plied with her duties is not enough under current precedent.
In fact, the Supreme Court in Boumediene suggested as much
when it rejected the government’s arguments that the Comba-
tant Status Review Tribunal (CSRT) provided sufficient pro-
cess to substitute for the writ of habeas corpus:
Although we make no judgment whether the CSRTs,
as currently constituted, satisfy due process stan-
dards, we agree with petitioners that, even when all
the parties involved in this process act with diligence
and in good faith, there is considerable risk of error
in the tribunal’s findings of fact. This is a risk inher-
ent in any process that, in the words of the former
Chief Judge of the Court of Appeals, is “closed and
accusatorial.” And given that the consequence of
error may be detention of persons for the duration of
hostilities that may last a generation or more, this is
a risk too significant to ignore.
GARCIA v. THOMAS 6493
553 U.S. at 785 (internal citation omitted). In Trinidad y Gar-
cia’s case, the decision by the Secretary of State to surrender
him for extradition was entirely “closed” and the conse-
quences of error here are significant: Trinidad y Garcia will
suffer torture. For these reasons, I cannot accept as sufficient
habeas process a letter from the Secretary that she properly
followed State Department procedures in making her decision
to extradite Trinidad y Garcia. See also In re Burt, 737 F.2d
1477, 1484 (7th Cir. 1984) (“We hold that federal courts
undertaking habeas corpus review of extraditions have the
authority to consider not only procedural defects in the extra-
dition procedures that are of constitutional dimension, but
also the substantive conduct of the United States in undertak-
ing its decision to extradite if such conduct violates constitu-
tional rights.”).6
While the majority appears to believe that a substantive
review of the Secretary’s determination on Trinidad y Gar-
cia’s CAT claim violates our constitutional structure, I believe
such review only strengthens our constitutional system of
checks and balances, as well as the Great Writ of habeas cor-
pus. The Supreme Court recognized as much in Boumediene:
6
Like the Supreme Court in Boumediene, I make no judgment here
about what the appropriate level of review should be in such cases:
The extent of the showing required of the Government in these
cases is a matter to be determined. We need not explore it further
at this stage. We do hold that when the judicial power to issue
habeas corpus properly is invoked the judicial officer must have
adequate authority to make a determination in light of the rele-
vant law and facts and to formulate and issue appropriate orders
for relief, including, if necessary, an order directing the prisoner’s
release.
553 U.S. at 787. At a minimum, the “arbitrary and capricious” standard
articulated in Cornejo-Barreto v. Seifert, 218 F.3d 1004 (9th Cir. 2000),
would be appropriate. Therefore, I would not overrule this court’s decision
in Cornejo as the majority does. Per curiam at 6402.
6494 GARCIA v. THOMAS
[T]he exercise of [the Executive’s powers as Com-
mander in Chief] is vindicated, not eroded when
confirmed by the Judicial Branch. Within the Consti-
tution’s separation-of-powers structure, few exer-
cises of judicial power are as legitimate or as
necessary as the responsibility to hear challenges to
the authority of the Executive to imprison a person.
553 U.S. at 797.
Finally, I fully acknowledge that there are serious and legit-
imate concerns in a case such as this regarding the protection
of classified information. The district court has sufficient
tools, such as in camera review and protective orders, to
ensure that classified information is properly and effectively
protected. See e.g., Khouzam, 549 F.3d at 259 n.16 (suggest-
ing a protective order regarding the disclosure of diplomatic
assurances would ameliorate the government’s “concern[ ]
that public disclosure of certain information may jeopardize
national security”). I do not feel the need, however, to circum-
scribe the district court at this point and believe that the dis-
trict court will use its sound discretion to accommodate this
important interest. See Boumediene, 553 U.S. at 796 (“We
recognize, however, that the Government has a legitimate
interest in protecting sources and methods of intelligence
gathering; and we expect the District Court will use its discre-
tion to accommodate this interest to the greatest extent possi-
ble. . . . These and other remaining questions are within the
expertise and competence of the District Court to address in
the first instance.”).
Thus, for the reasons discussed above, I dissent from the
majority’s declaration that Trinidad y Garcia’s liberty interest
will be fully vindicated if the Secretary of State augments the
record with the bare bones declaration the majority suggests.
GARCIA v. THOMAS 6495
Chief Judge KOZINSKI, dissenting in part:
1. The federal habeas statute, 28 U.S.C. § 2241, simulta-
neously provides jurisdiction to hear habeas petitions and
remedies for successful ones. See Richard H. Fallon, Jr. &
Daniel J. Meltzer, Habeas Corpus Jurisdiction, Substantive
Rights, and the War on Terror, 120 Harv. L. Rev. 2029, 2038
(2007). Just because someone in custody files a document
styled “habeas petition” doesn’t mean a federal court has
jurisdiction to entertain it. Instead, the petitioner must allege
a type of claim cognizable on habeas. Cf. Bell v. Wolfish, 441
U.S. 520, 526 n.6 (1979) (relying on “an alternative basis for
jurisdiction” to adjudicate claims whose cognizability on
habeas review the Court found questionable); Stone v. Powell,
428 U.S. 465, 479-80 (1976) (discussing the connection
between “claims . . . cognizable in [28 U.S.C.] § 2255
[habeas] proceedings” and “the substantive scope of federal
habeas jurisdiction”). In the extradition context, habeas cor-
pus isn’t available to challenge just any aspect of the execu-
tive branch’s authority an extraditee seeks to question. Rather,
the case law—including our own opinion in Cornejo-Barreto
v. Seifert, 218 F.3d 1004, 1009-10 (9th Cir. 2000)—makes
clear that an extraditee may raise only certain claims on
habeas.
Trinidad y Garcia fails to make out a claim cognizable on
habeas by invoking the Convention Against Torture (“CAT”)
and alleging that, if extradited, he’ll face torture at his destina-
tion. What’s been historically cognizable on habeas review in
the extradition context is (1) whether the executive branch has
the authority to detain the extraditee in the first place and
whether the judicial branch has exercised proper jurisdiction
over him, all of which has already been litigated and resolved
against Trinidad; (2) whether the executive is operating under
a valid treaty authorizing extradition, which isn’t disputed
here; and (3) whether the extraditee’s crime falls into the
political offense exception, which Trinidad doesn’t allege.
See, e.g., Fernandez v. Phillips, 268 U.S. 311, 312 (1925)
6496 GARCIA v. THOMAS
(“[In addition to] general principles relating to extradition, . . .
there are further limits to habeas corpus. . . . [H]abeas corpus
is available only to inquire whether the magistrate had juris-
diction, whether the offense charged is within the treaty and,
by a somewhat liberal extension, whether there was any evi-
dence warranting the finding that there was reasonable ground
to believe the accused guilty.”); Neely v. Henkel, 180 U.S.
109 (1901); Oteiza v. Jacobus, 136 U.S. 330 (1890); see also
Cornejo-Barreto, 218 F.3d at 1009-10 (discussing the limited
categories of habeas review in the extradition context); John
T. Parry, The Lost History of International Extradition Litiga-
tion, 43 Va. J. Int’l L. 93, 97 (2002) (same).
There’s absolutely no authority supporting Trinidad’s claim
that habeas review is available to challenge the destination to
which a detainee is to be extradited based on how he might
be treated there. As the D.C. Circuit noted recently, “[t]hose
facing extradition traditionally have not been able to maintain
habeas claims to block transfer based on conditions in the
receiving country. Rather, applying what has been known as
the rule of non-inquiry, courts historically have refused to
inquire into conditions an extradited individual might face in
the receiving country.” Omar v. McHugh, 646 F.3d 13, 19
(D.C. Cir. 2011). Trinidad doesn’t identify a single case hold-
ing that an extraditee’s challenge to the treatment he might
receive at his destination is cognizable on habeas. He there-
fore fails to present a claim for which the federal habeas stat-
ute provides jurisdiction.
INS v. St. Cyr, 533 U.S. 289 (2001), on which my col-
leagues rely heavily in their various opinions, stands in
marked contrast. St. Cyr challenged the executive’s authority
to continue to detain and then deport him. Id. at 293. The
Court found abundant historical evidence that such a chal-
lenge was traditionally cognizable on habeas review. Id. at
305-10. There’s no equivalent historical evidence supporting
Trinidad’s claim.
GARCIA v. THOMAS 6497
Also in contrast is Munaf v. Geren, 553 U.S. 674 (2008),
where the Supreme Court found habeas jurisdiction to con-
sider a challenge to petitioners’ transfer based on the treat-
ment they’d receive, then rejected that challenge on the
merits. The only claims entertained in Munaf were constitu-
tional ones. Id. at 703-04 n.6. In light of the understanding
articulated in Bivens v. Six Unknown Named Agents of Fed-
eral Bureau of Narcotics, 403 U.S. 388 (1971), that the Con-
stitution itself provides jurisdiction to raise constitutional
claims, it was relatively straightforward for the Munaf Court
to find statutory habeas jurisdiction as a vehicle for raising
constitutional claims. See Munaf, 553 U.S. at 685-88; see also
Martin v. Warden, 993 F.2d 824, 829 (11th Cir. 1993)
(explaining that, despite the circumscribed nature of judicial
review in the extradition context, habeas review still allows
consideration of “the constraints of the Constitution”). It’s
true that the Court has “constru[ed] broadly the power of a
federal district court to consider constitutional claims pre-
sented in a petition for writ of habeas corpus.” Stone, 428
U.S. at 478 n.11. But Trinidad’s CAT claim is statutory and
regulatory, not constitutional. And Munaf does not suggest
there’s statutory habeas jurisdiction for claims of this kind.
There’s thus no need to assess the effect of the FARR Act,
8 U.S.C. § 1231 note, or the REAL ID Act, 8 U.S.C.
§ 1252(a)(4). Both statutes explicitly disavow any congressio-
nal intent to create jurisdiction for review of CAT claims out-
side a limited immigration context. See Munaf, 553 at 703 n.6.
Because there’s no statutory jurisdiction for Trinidad’s chal-
lenge to begin with, these statutes serve only to confirm that
absence of jurisdiction.
St. Cyr urged against “adopting a [statutory] construction
that would raise serious constitutional questions” by “preclud-
[ing] judicial consideration on habeas,” 533 U.S. at 314, but
recognizing our lack of jurisdiction here does no such thing.
A serious constitutional question would arise only if we inter-
preted a statute to preclude the type of habeas review pro-
6498 GARCIA v. THOMAS
tected by the Constitution’s Suspension Clause. U.S. Const.
art. I, § 9, cl. 2. But, unlike St. Cyr, Trinidad doesn’t present
a claim implicating this type of habeas review, because his
claim isn’t cognizable on habeas. How Trinidad will be
treated by the government of another country after he leaves
the United States doesn’t implicate any of his rights under the
United States Constitution. In finding his challenge outside
the bounds of the federal habeas statute, there’s no judicial
consideration to “preclude” and thus no constitutional prob-
lem to “avoid.”
The per curiam thus rightly overrules Cornejo-Barreto, 218
F.3d at 1015-16, which held in the context of a CAT chal-
lenge to extradition that, “since potential extraditees meet the
other requirements for habeas standing under 28 U.S.C.
§ 2241 (2000), a habeas petition is the most appropriate form
of action for fugitives seeking review of the Secretary’s extra-
dition decisions.” Cornejo-Barreto somehow found jurisdic-
tion in the federal habeas statute via the Administrative
Procedure Act (“APA”), 5 U.S.C. § 703. But, as Cornejo-
Barreto itself acknowledged, “[t]he APA is not an indepen-
dent grant of jurisdiction.” Cornejo-Barreto, 218 F.3d at 1015
(citing Califano v. Sanders, 430 U.S. 99, 105 (1977)); see
Jacques Semmelman, International Decisions: Cornejo-
Barreto v. Seifert, 95 Am. J. Int’l L. 435, 438 (2001) (“[T]he
APA does not provide a basis for authorizing judicial review
of the secretary’s decision to extradite.”). Because there’s no
jurisdiction under the habeas statute, there can be no jurisdic-
tion under the APA.
While, as in Munaf, we have jurisdiction to hear Trinidad’s
due process claim, I agree with the per curiam that the claim
is foreclosed by Munaf itself, which found that identical
claims in the transfer context “do not state grounds upon
which habeas relief may be granted.” Munaf, 553 U.S. at 692.
2. The per curiam offers little explanation for finding juris-
diction to entertain Trinidad’s CAT claim, instead simply
GARCIA v. THOMAS 6499
asserting that “[t]he writ of habeas corpus historically pro-
vide[d] a remedy to non-citizens challenging executive deten-
tion.” Per curiam at 6399-6400. Judge Thomas’s concurrence,
while defending the exercise of jurisdiction at greater length,
rests on the similar claim that “[f]ederal habeas relief under
§ 2241 is available as a remedy to non-citizens challenging
executive detention” and therefore “provides an avenue of
relief to persons, such as Trinidad y Garcia, who are challeng-
ing the legality of extradition proceedings.” Thomas conc. at
6403. And Judge Tallman, whose discussion of jurisdiction is
most extensive, ultimately relies on the analogous assertion
that “Trinidad would historically have been entitled to habeas
review of his claim to the extent he argues that the [CAT] or
the FARR Act bind the authority of the Executive to extradite
him.” Tallman dissent at 6427.
All of these justifications suffer a fatal flaw: They charac-
terize Trinidad’s claim at too high a level of generality and
therefore conflate Trinidad’s particular claim with other
claims that are cognizable on habeas review in the extradition
context. It’s far too broad to say, as Judge Tallman does, that
Trinidad challenges “the authority of the Executive to extra-
dite him.” Id. Trinidad, in fact, challenges something very
specific: the destination to which the executive seeks to extra-
dite him, based on his potential treatment there. And Judge
Tallman doesn’t point to a single case showing that the scope
of habeas review has ever been understood to encompass such
a challenge because “[n]o court has yet denied extradition
based upon the defendant’s anticipated treatment in the
requesting country.” Jacques Semmelman, Federal Courts,
the Constitution, and the Rule of Non-Inquiry in International
Extradition Proceedings, 76 Cornell L. Rev. 1198, 1218
(1991). As the Second Circuit has explained, “consideration
of the procedures that will or may occur in the requesting
country is not within the purview of a habeas corpus judge.”
Ahmad v. Wigen, 910 F.2d 1063, 1066 (2d Cir. 1990). That
leaves Trinidad beyond the scope of habeas review—and,
because the federal habeas statute predicates the exercise of
6500 GARCIA v. THOMAS
habeas jurisdiction on the existence of a cognizable habeas
claim, that also leaves Trinidad beyond the scope of our
habeas jurisdiction.
Judge Tallman’s analysis leads to the same conclusion. On
page 6419 of his opinion, he properly characterizes as juris-
dictional the key language from Oteiza, 136 U.S. at 334:
A writ of habeas corpus in a case of extradition can-
not perform the office of a writ of error. If the com-
missioner 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 deci-
sion of the commissioner cannot be reviewed by a
circuit court or by this court, on habeas corpus,
either originally or by appeal.
While he notes that judicial review of extradition has
expanded since Oteiza, Judge Tallman rightly concludes that
“the scope of our habeas review in the extradition context
wholly depends on the will of Congress.” Tallman dissent at
6420. By “the scope of our habeas review,” he presumably
still refers to “the habeas jurisdiction of reviewing courts” he
mentioned a page earlier. So, when he ultimately—and, again,
rightly—concludes that Trinidad’s challenge falls outside the
scope of our habeas review as intended by Congress, that also
resolves the jurisdictional question. As one commentator
writes about the exact language from Oteiza Judge Tallman
quotes, “[t]he [Supreme] Court has repeatedly reaffirmed that
these listed issues are the only ones within the scope of a
court’s authority on habeas corpus review of a finding of
extraditability.” Semmelman, Federal Courts, supra, at 1211.
GARCIA v. THOMAS 6501
Starting from a mistaken characterization of Trinidad’s
claim leads my colleagues to an equally mistaken conclusion
about the role of the FARR and REAL ID Acts. Because
they erroneously view habeas jurisdiction over Trinidad’s
claim as preexisting and presupposed, they ask the wrong
question: whether these statutes have clearly “preclude[d]” or
“repeal[ed]” such jurisdiction. Tallman dissent at 6422, 6426;
Thomas conc. at 6405-06. But there was no habeas jurisdic-
tion, whether statutory or constitutional, to preclude or repeal
in the first place.
Consider In re Metzger, 46 U.S. (5 How.) 176 (1847). After
receiving an extradition request, the President referred it to a
district judge, who approved Metzger’s extradition. Metzger
then filed a habeas petition with the Supreme Court. The
Court found that it had no jurisdiction to grant habeas relief.
Its reasoning was somewhat technical—the district judge had
been acting in chambers rather than exercising Article III
judicial power—but the result is instructive for our case: The
Court saw no constitutional problem whatsoever in finding
the absence of any jurisdiction, whether appellate or original,
over Metzger’s habeas petition challenging his extradition. Id.
at 191-92. That’s because extraditees have no free-floating
right to challenge their extradition via habeas petition. If an
extraditee isn’t challenging one of the few issues deemed by
Congress to be suitable for judicial inspection, a federal court
lacks jurisdiction over the challenge—and that raises no con-
stitutional problem.
Judge Tallman is quite right that, in Valentine v. United
States ex rel. Neidecker, 299 U.S. 5 (1936), the Supreme
Court “expressed no hesitation in reviewing . . . [the extra-
ditees’] claims under its habeas power.” Tallman dissent at
6415 n.3. But that’s because the Valentine extraditees’ chal-
lenge fell squarely within the second traditional category of
habeas review of extradition set out above: whether the exec-
utive branch was operating under a valid treaty authorizing
the extradition in question. Here’s how the Valentine Court
6502 GARCIA v. THOMAS
framed the issue before it: “The question, then, is the narrow
one whether the power to surrender the respondents in this
instance is conferred by the treaty itself.” Valentine, 299 U.S.
at 10. That question fell right in the sweet spot of traditional
extradition habeas review, but it’s light-years away from Trin-
idad’s challenge. Judge Tallman’s heavy reliance on Valen-
tine is entirely misplaced, leaving him with no support for his
newfangled theory.
More fundamentally, Judge Tallman criticizes my “cabin-
ing of Trinidad’s claim as strictly statutory or regulatory.”
Tallman dissent at 6415 n.3. That’s not my characterization of
Trinidad’s CAT claim—it’s Trinidad’s. In his brief before this
court, he refers to his “statutory torture claim” and the “fed-
eral statutory mandate” on which it relies. So, unlike the ques-
tion of “constitutional authority” at issue in Valentine, id.(quoting Valentine, 299 U.S. at 6, with emphasis added by
Judge Tallman), here we face an explicitly statutory and regu-
latory challenge. That distinguishes the jurisdictional issue in
this case from Valentine—and, as I’ve already discussed,
from Munaf, too. See pp. 6412-13 supra.
As Judge Tallman acknowledges, Tallman dissent at 6423
n.8, his approach produces a circuit split, even as he relies
selectively on other circuits to bolster his conclusion. He por-
trays his position as consistent with the First and Second Cir-
cuits in finding that the FARR Act doesn’t “bar habeas
review.” Id. at 6422 (citing Saint Fort v. Ashcroft, 329 F.3d
191, 200-02 (1st Cir. 2003); Wang v. Ashcroft, 320 F.3d 130,
140-42 (2d Cir. 2003)). But both of those circuits were decid-
ing immigration cases, not extradition cases; and, in the extra-
dition context, there’s no preexisting “habeas review” to
“bar.” Meanwhile, Judge Tallman casually lists as contrary
authority the Fourth Circuit’s decision in Mironescu v. Cost-
ner, 480 F.3d 664, 674 (4th Cir. 2007), tossing it aside
because “the Fourth Circuit explicitly disclaimed any consid-
eration of the Suspension Clause’s effect,” Tallman dissent at
6423 n.8. But, as I’ve explained, the Suspension Clause has
GARCIA v. THOMAS 6503
no effect here, because there’s no preexisting habeas review
available to Trinidad that the FARR or REAL ID Acts might
“suspend.”
So, Judge Tallman’s approach—and the approach of my
colleagues in finding jurisdiction for Trinidad’s CAT claim—
splits with the Fourth Circuit, all on the grounds that the
Fourth Circuit didn’t consider the effect of a constitutional
provision that plainly has no bearing on our case. Not only
does this approach create a split with the Fourth Circuit on
extradition, it also splits with the D.C. Circuit, which
embraced the Fourth Circuit’s understanding in a decision on
detainee transfers abroad. See Omar, 646 F.3d at 18 (citing
Mironescu, 480 F.3d at 674-76).
3. I note the thoughtful views of our colleague on the D.C.
Circuit, Judge Griffith, on similar issues that have confronted
his court. Starting in Kiyemba v. Obama (Kiyemba II), 561
F.3d 509 (D.C. Cir. 2009), Judge Griffith has asserted in the
context of detainee transfers “that jurisdiction to hear the peti-
tioners’ claims against unlawful transfer—a fundamental and
historic habeas protection—is grounded in the Constitution.”
Id. at 523-34 (Griffith, J., dissenting in part). What concerned
Judge Griffith in Kiyemba II was very different from what’s
before our court: He addressed whether the transfer of the
prisoners “will result in continued detention on behalf of the
United States in a place where the writ does not run.” Id. at
525. Judge Griffith’s concern that the United States would
maintain control over the prisoners while evading judicial
review doesn’t apply to our case, where the United States
seeks to extradite Trinidad and relinquish all control over him.
Trinidad doesn’t allege otherwise—indeed, his motivating
concern is precisely that he’ll be mistreated once he’s no lon-
ger in American custody and instead in Filipino hands.
Judge Griffith expanded on his earlier position with his dis-
sental in Abdah v. Obama, 630 F.3d 1047 (D.C. Cir. 2011).
In support of his assertion of “the long-established right of a
6504 GARCIA v. THOMAS
prisoner to question his jailer’s authority to transfer him to a
place where it would be difficult or impossible to execute the
writ,” Judge Griffith provides the history of habeas challenges
to the executive transferring a prisoner beyond the writ’s
reach in order to evade habeas jurisdiction. Id. at 1048 (Grif-
fith, J., dissental). None of his examples, however, involves
extradition, in which the executive transfers a prisoner abroad,
not to evade habeas review, but to deliver him pursuant to an
extradition treaty to a country seeking to prosecute him for
crimes he allegedly committed there. Judge Griffith’s exam-
ples of American colonial state laws demonstrate an extradi-
tion exception to the general prohibition on transfers and,
accordingly, an exception to the reviewability of such trans-
fers via habeas petition. Id. at 1051.
Most recently, Judge Griffith concurred in Omar, 646 F.3d
13, where he “disagree[d] with the majority’s suggestion that
we have no jurisdiction to consider [the transferee’s] claim”
because “the Constitution’s guarantee of habeas corpus enti-
tles him to assert any claim that his detention or transfer is
unlawful.” Id. at 25 (Griffith, J., concurring in the judgment).
Judge Griffith thus finds constitutional habeas jurisdiction to
hear CAT claims. But his assertion that there’s constitutional
habeas jurisdiction for “any claim” of unlawful detention or
transfer suffers from the same flaw that afflicts the analysis of
Judges Thomas and Tallman here: It’s too broad. Centuries of
extradition case law have carved out the specific types of
challenges an extraditee may raise on habeas review. To say
an extraditee can find jurisdiction in the federal habeas statute
to raise “any claim” would be a radical departure from those
centuries of unbroken precedent.
4. While federal habeas jurisdiction is enshrined in a fed-
eral statute, the writ of habeas corpus remains a common law
writ. And, like all creatures of the common law, it can and
should evolve over time. What yesterday may have failed to
qualify as a cause of action seeking habeas relief may qualify
tomorrow. Because, in the habeas context, a cause of action
GARCIA v. THOMAS 6505
and the jurisdiction to hear it are inextricably linked, federal
habeas jurisdiction also can evolve through common law
decision-making.
This raises the question: Even if habeas jurisdiction has
never before included the type of claim Trinidad raises, why
not start today? That is, why shouldn’t we embrace the evolu-
tion of habeas review so as to encompass a claim that chal-
lenges extradition on the basis of the conditions the extraditee
may face in the receiving country?
To that question, my colleagues give entirely convincing
answers. I need not add to Judge Tallman’s masterful discus-
sion of how superior the executive is to the judiciary in
assessing a detainee’s likely treatment in a foreign country
and in weighing the foreign policy implications pregnant in
every decision to extradite or not to extradite. Tallman dissent
at 6440-41. Nor need I do more than echo Judge Thomas’s
conclusion that “the surrender of a person to a foreign govern-
ment is within the Executive’s powers to conduct foreign
affairs and the executive is ‘well situated to consider sensitive
foreign policy issues.’ ” Thomas conc. at 6409 (quoting
Munaf, 553 U.S. at 702). Nor are these new answers. We
explained almost half a century ago that, even as Supreme
Court decisions broadened the scope of habeas review of
criminal convictions, “[w]e believe such case[s] to be inappo-
site in the field of international extradition.” Merino v. U.S.
Marshal, 326 F.2d 5, 11 (9th Cir. 1963); see Semmelman,
Federal Courts, supra, at 1229-36 (providing policy reasons
for leaving extradition decisions to the executive branch).
International relations have become no less delicate since, and
we, as federal judges, have become no better at diplomacy.
***
I’m a firm believer in robust federal habeas review where
it’s appropriate. See, e.g., Gantt v. Roe, 389 F.3d 908 (9th Cir.
2004); Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004). But
6506 GARCIA v. THOMAS
the federal habeas statute is not an open-ended invitation for
federal judges to join the party whenever they’re invited by
someone who happens to be “in custody.” 28 U.S.C.
§ 2241(c), (d). Petitioning for the Great Writ, like filing most
lawsuits, requires a cognizable cause of action. Exercising
federal jurisdiction to hear a habeas petition requires the
same. Centuries of case law show that Trinidad fails to pre-
sent such a claim, and my colleagues show why there’s wis-
dom in that practice. They simply fail to take that teaching to
its logical conclusion. I therefore dissent as to Trinidad’s CAT
claim, and would order the district court to dismiss that claim
for lack of jurisdiction.