Vo v. Benov ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VAN DUC VO, a/k/a Vo Van Duc, 
Nguyen Tran Van and Trang Van
No. 04-56689
Nguyen,
Petitioner-Appellant,
 D.C. No.
CV-04-05543-DDP
v.
OPINION
MICHAEL L. BENOV, Warden,
Respondent-Appellee.

Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted
July 11, 2005—Pasadena, California
Filed May 22, 2006
Before: Stephen Reinhardt, Alex Kozinski, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Reinhardt
5509
5512 VO v. BENOV
COUNSEL
W. Michael Mayock, Law Offices of W. Michael Mayock,
Pasadena, California, for the appellant.
VO v. BENOV 5513
Debra W. Yang, United States Attorney, Steven D. Clymer,
Special Assistant United States Attorney, Daniel S. Goodman,
Assistant United States Attorney, Los Angeles, California, for
the appellee.
OPINION
REINHARDT, Circuit Judge:
Van Duc Vo, a naturalized U.S. citizen fighting extradition
to Thailand, appeals an order of the district court denying his
petition for a writ of habeas corpus filed pursuant to 28 U.S.C.
§ 2241. Vo asserts that the crime with which he was charged
was a political offense and thus not a valid basis for extradi-
tion under the terms of the extradition treaty between the
United States and Thailand. He also contends that the extradi-
tion court violated his due process rights by failing to make
a finding whether he had been “proceeded against” under the
terms of the treaty and by not denying his extradition on that
ground. Because we find that the crime with which Vo was
charged is not protected by the political offense exception and
that Vo’s arguments as to the “proceeded against” clause of
the treaty do not present a claim that is cognizable on this
appeal, we affirm the district court.
I. Background
A. The Extradition Process
An extradition court — in this case the magistrate judge —
exercises very limited authority in the overall process of
extradition. As we have explained, “[e]xtradition is a matter
of foreign policy entirely within the discretion of the execu-
tive branch, except to the extent that the statute interposes a
judicial function.” Lopez-Smith v. Hood, 121 F.3d 1322, 1326
(9th Cir. 1997) (citing In re Metzger, 46 U.S. (5 How.) 176,
5514 VO v. BENOV
188 (1847)). Extradition from the United States is initiated
when the nation seeking extradition makes a request directly
to the State Department. Blaxland v. Commonwealth Dir. of
Pub. Prosecutions, 323 F.3d 1198, 1207 (9th Cir. 2003).
“After the request has been evaluated by the State Department
to determine whether it is within the scope of the relevant
extradition treaty, a United States Attorney . . . files a com-
plaint in federal district court seeking an arrest warrant for the
person sought to be extradited.” Id. Upon the filing of a com-
plaint, a judicial officer (typically a magistrate judge) issues
a warrant for an individual sought for extradition, provided
that an extradition treaty exists between the United States and
the country seeking extradition and the crime charged is cov-
ered by the treaty. 18 U.S.C. § 3184. After the warrant issues,
the judicial officer conducts a hearing to determine whether
there is “evidence sufficient to sustain the charge under the
provisions of the proper treaty or convention,” id., or, in other
words, whether there is probable cause.
If the judicial officer determines that there is probable
cause, he “is required to certify the individual as extraditable
to the Secretary of State.” Blaxland, 323 F.3d at 1208
(emphasis added) (citing Lopez-Smith, 121 F.3d at 1326).
After an extradition magistrate certifies that an individual can
be extradited, it is the Secretary of State, representing the
executive branch, who ultimately decides whether to surren-
der the fugitive to the requesting country. Id.; see Quinn v.
Robinson, 783 F.2d 776, 789 (9th Cir. 1986).1 The authority
of a magistrate judge serving as an extradition judicial officer
is thus limited to determining an individual’s eligibility to be
extradited, which he does by ascertaining whether a crime is
1
As we noted in Blaxland, “It is a generally established principle . . .
that the Secretary of State, exercising executive discretion through delega-
tion of this authority by the President, may refuse to extradite a relator
despite a judicial determination that extradition would be compatible with
the terms of the applicable treaty.” Id. at 1208 (internal quotations and
citations omitted).
VO v. BENOV 5515
an extraditable offense under the relevant treaty and whether
probable cause exists to sustain the charge. See Prasoprat v.
Benov, 421 F.3d 1009, 1014 (9th Cir. 2005); Blaxland, 323
F.3d at 1208 (quoting United States v. Lui Kin-Hong, 110
F.3d 103, 110 (1st Cir. 1997). Part of determining whether the
offense is extraditable is examining whether it falls within the
political offense exception. If it does, the individual is not eli-
gible for extradition. Quinn, 783 F.2d at 787.
B. The Extradition Treaty
The United States signed an extradition treaty with Thai-
land in 1983. Three articles of the treaty are relevant to Vo’s
appeal. As is typical of many extradition treaties, the Thai
treaty contains a “political offense” exception. In Article 3,
the treaty provides that “[e]xtradition shall not be granted
when: (a) the offense for which extradition is sought is a
political offense; or (b) it is established that extradition is
requested for political purposes.” Treaty Between the Govern-
ment of the United States of America and the Government of
the Kingdom of Thailand Relating to Extradition, Dec. 14,
1983, U.S.-Thail., 1983 U.S.T. LEXIS 418 [hereinafter
Treaty], at art. 3(1). Two other articles in the Treaty describe
circumstances in which the requested state may choose to
deny extradition. Article 4 states, “[t]he Requested State may
refuse to extradite a person claimed for a crime which is
requested by its laws . . . provided it shall proceed against the
person for that crime according to its laws.” Article 5(2)
states, “[e]xtradition may be denied when the person sought
is being or has been proceeded against in the Requested State
for the offense for which extradition is requested.”
C. Vo’s Offense
Vo, a naturalized United States citizen who was born in
Vietnam, came to the United States in 1980 to escape the
regime in his home country. Vo belongs to the Government
of Free Vietnam (GFVN), based in Garden Grove, California,
5516 VO v. BENOV
which Vo asserts is “an organization deemed a terrorist entity
by both Vietnam and the United States.” The stated purpose
of the GFVN is to “[d]ismantle the Communist dictatorship of
the Socialist Republic of Vietnam by a peaceful, practical and
persistent approach.” Although the GFVN insists that its
activities are peaceful, its members have been linked to sev-
eral incidents of terrorism in Vietnam and elsewhere.
In 2001, Vo visited Thailand. Between June 15, 2001 and
June 19, 2001, Vo and an accomplice jointly devised a plan
to plant explosives at the Vietnamese embassy in Bangkok.
Early in the morning of June 19, the anniversary of the forma-
tion of the South Vietnamese Army, Vo and his accomplice
met and, carrying two bags and one backpack, took a taxi to
the embassy. On the way, Vo took one bag and separated
from the accomplice, but instructed the accomplice to take the
remaining packages — which contained ammonium nitrate
and diesel fuel, the explosive mixture known as ANFO that
was used in the 1995 Oklahoma City bombing — and imple-
ment their plan to bomb the embassy. At around 4 a.m., Vo’s
accomplice arrived at the Vietnamese embassy in Bangkok
with the two packages. He placed one, a box containing
approximately three kilograms of ANFO, just outside the
perimeter wall of the embassy, and threw the other, a back-
pack containing approximately five kilograms of the material,
over the wall. The bombs included cell phones that were
wired to function as triggers when called. Subsequent investi-
gation showed that Vo’s accomplice called the cell phones
connected to the bombs after he delivered them to the
embassy, but that the bombs failed to detonate. Vo flew to
Los Angeles later that day.
Shortly after the attempted bombing, Thai police arrested
Vo’s accomplice, Phan Nguyen Thanh Si. In a statement to
police investigators, Si implicated Vo as the organizer of the
crime. Si’s confession also associated the GFVN with the
bombing attempt. Further police investigation revealed that
Vo’s latent fingerprints were on some papers inside one of the
VO v. BENOV 5517
packages, and that Si and Vo had been seen buying the cellu-
lar phones that were found connected to the bombs. Although
Vo does not deny being involved in the bombing plot, there
is some dispute over whether he intended the bombs to
explode. Vo claims that he decided at the last minute not to
detonate the explosives, and, to that end, he had ensured that
the detonators were removed and that the ignition match and
the gunpowder were wet. He contends that he arranged for the
planting of the bombs at the embassy only so that “the repres-
sive Communist government of Vietnam would be sent a
message they would understand.” However, Si’s confession
states that Vo told him “to ignite” the bombs, and Thai foren-
sic examiners determined that the bombs were still capable of
going off at the time they were found. It is undisputed that
had the bombs exploded, they were powerful enough to kill
or injure people within a 10-15 meter (approximately 33-39
feet) radius.
D. Proceedings Below
Vo was arrested in California in October 2001, and he has
been detained without bail ever since. Initially, charges were
brought against him in the Central District of California for
conspiring to use a weapon of mass destruction outside the
United States in violation of 18 U.S.C. § 2332a(b). Vo con-
sented to an information instead of an indictment because he
intended to plead guilty to the charge, but plea negotiations
fell apart and a criminal trial was scheduled. However, in June
2002, following the commencement of extradition proceed-
ings, the U.S. Attorney’s office, pursuant to a request from
Thailand, moved for dismissal of the criminal charge and the
district court granted the motion. That month, the United
States filed a complaint seeking an extradition arrest warrant
for Vo. The warrant was issued and Vo, already in custody on
the United States criminal charge, was arrested on that war-
rant. In August, the United States filed the formal complaint
on behalf of the government of the Kingdom of Thailand
5518 VO v. BENOV
seeking Vo’s extradition pursuant to the extradition treaty
between the two countries.2
Vo opposed his extradition on multiple grounds, including
that (1) the acts in question were not extraditable because they
fell under the political offense exception to the treaty; and (2)
he had been “proceeded against” by the United States and
hence his extradition should have been denied under Article
5 of the Treaty.3 After an extradition hearing, the magistrate
judge serving as the extradition court certified Thailand’s
request for extradition to the Secretary of State. He found that
Vo had not met his burden of showing that the political
offense doctrine applied to his crime. He also summarily
rejected Vo’s arguments that he was ineligible for extradition
because he had been “proceeded against” in the United States.
The magistrate judge concluded that he did not possess the
authority to address that argument, as only the executive —
not the courts — could deny extradition on the ground that Vo
had already been “proceeded against.”
Vo then petitioned the district court for a stay of extradition
and a writ of habeas corpus. In his claims relevant to this
appeal, Vo argued that the magistrate judge erred when he
determined that the bomb plot was not protected by the politi-
cal offense exception. He also reasserted his due process
claim based on the magistrate judge’s failure to construe or
apply Article 5 of the extradition treaty. The district court
denied Vo’s petition. The court ruled that the magistrate judge
did not clearly err in finding that the “uprising” prong of the
test for applying the political offense exception had not been
met. As to the Article 5 claim, the court disagreed with the
2
Thailand accuses Vo of “jointly acting with the other accused in an
attempt to cause an explosion likely to cause injury to the other person or
a thing belonging to the other person” and of “making, having in posses-
sion and using explosive devices” in violation of the Thai Penal Code.
3
Vo opposed his extradition on other grounds as well, but on appeal he
does not raise any issues other than the two described above.
VO v. BENOV 5519
magistrate that the interpretation of that article rested solely
with the executive branch. The district court held that inter-
pretation of the phrase “has been proceeded against” in Arti-
cle 5(2) is “properly within the judiciary’s review.” It
concluded, however, that because the treaty gave the execu-
tive branch the ultimate discretion over whether or not to
extradite someone who had met the requirements of that
clause, the magistrate did not violate Vo’s due process rights
by not construing or applying Article 5(2). The court made no
ruling on whether Vo had in fact “been proceeded against.”
Vo filed a timely appeal of the district court’s order.
II. Jurisdiction and Standard of Review
The decision to certify an individual as extraditable cannot
be challenged on direct appeal. Rather, a habeas petition is the
only available avenue to challenge an extradition order.
Mainero v. Gregg, 164 F.3d 1199, 1201-02 (9th Cir. 1999).
The district court’s habeas review of an extradition order is
limited to whether: (1) the extradition magistrate had jurisdic-
tion over the individual sought, (2) the treaty was in force and
the accused’s alleged offense fell within the treaty’s terms,
and (3) there is “any competent evidence” supporting the
probable cause determination of the magistrate. Id. at 1205;
Quinn, 783 F.2d at 790. We have held that “the political
offense question is reviewable on habeas corpus as part of the
question of whether the offense charged is within the treaty.”
Id. at 791. This factor is a mixed question of law and fact. Id.
Mixed questions are reviewed de novo, though we cautioned
in Quinn that if “the determination is ‘essentially factual’ . . .
it is reviewed under the clearly erroneous standard.” Id. (cit-
ing United States v. McConney, 728 F.2d 1195, 1203 (9th Cir.
1984) (en banc)).
III. Discussion
Vo’s appeal is limited to two issues. First, he claims that
the bombing plot was a political offense, incidental to an
5520 VO v. BENOV
uprising against the government of Vietnam, and thus it is not
a valid basis for extradition. Second, he asserts that the magis-
trate judge denied him due process by failing to deny his
extradition because he had been “proceeded against” in the
United States or at the least by failing to make a determina-
tion whether he had been “proceeded against.” Vo asserts that
the magistrate judge was required to make the latter ruling in
order to aid the Secretary of State in the exercise of her dis-
cretionary authority. We reject these arguments and affirm the
district court’s denial of Vo’s petition.
A. The Political Offense Doctrine
[1] The political offense doctrine covers two types of
crimes. Quinn, 783 F.2d at 793. The first are “relative” politi-
cal offenses, which are “ ‘otherwise common crimes commit-
ted in connection with a political act,’ or ‘common crimes . . .
committed for political motives or in a political context.’ ” Id.
at 794 (citations omitted) (alteration in original). For this type
of crime, we use the two-prong “incidence” test to decide
whether a crime falls under the political offense exception. Id.
The second are “pure” political offenses, such as treason,
sedition, and espionage. Id. at 793-94. Because these crimes
are by definition political, courts generally do not apply the
incidence test to them. Id. at 794. Vo’s offense is of the first
type, and thus the incidence test applies.
[2] We explained the requirements of the incidence test in
Quinn, id. at 794-811, which this court, sitting en banc,
recently reaffirmed in Barapind v. Enomoto, 400 F.3d 744,
750-51 (9th Cir. 2005) (en banc) (per curiam). For a crime to
qualify for the political offense exception under the incidence
test, there must be “(1) the occurrence of an uprising or other
violent political disturbance at the time of the charged
offense, and (2) a charged offense that is ‘incidental to’ ‘in the
course of,’ or ‘in furtherance of’ the uprising.” Quinn, 783
F.2d at 797 (quoted in Barapind, 400 F.3d at 750) (internal
citations omitted).
VO v. BENOV 5521
[3] The uprising prong constitutes the critical part of the
incidence test. See Quinn, 783 F.2d at 806 (“[I]t is the ‘upris-
ing’ component that plays the key role in ensuring that the
incidence test protects only those activities that the political
offense doctrine was designed to protect.”). This prong has a
number of facets that must be satisfied in order for an individ-
ual’s conduct to be protected by the political offense excep-
tion. First, a “certain level of violence” must exist for the
uprising prong to be satisfied. Id. at 807. Second, the prong
involves a geographic limitation. An uprising “can occur only
within the country or territory in which those rising up
reside,” and the charged offense must take place in that geo-
graphic area. Id. at 807 (“[T]he uprising component serves to
exclude from coverage under the exception criminal conduct
that occurs outside the country or territory in which the upris-
ing is taking place.”). This limitation ensures that the political
offense exception will not serve to protect international terror-
ism. Id. at 813-14 (“[T]he word ‘uprising’ . . . does not cover
terrorism or other criminal conduct exported to other loca-
tions.”).4 Third, the individual charged with the offense must
be “seeking to change the form of the government under
which [he] live[s].” Id. at 818. If the individual’s conduct
does not meet these criteria, the individual does not qualify
for the political offense exception.5 Because the level of vio-
4
See also Quinn, 783 F.2d at 807 (“The political offense exception was
designed to protect those engaged in internal or domestic struggles over
the form or composition of their own government, including, of course,
struggles to displace an occupying power. It was not designed to protect
international political coercion or blackmail, or the exportation of violence
and strife to other locations.”).
5
The government points to another potential facet of the uprising prong:
the political offense exception cannot apply where the government seeking
extradition is not the same as the government against which the political
violence is aimed. In support, it cites Quinn, which states that “in cases
of international terrorism, we are being asked to return the accused to the
government in the country where the acts were committed: frequently that
is not a government the accused has sought to change.” 783 F.2d at 806.
Neither the district court nor the magistrate judge directly addressed this
facet of the doctrine, and it is unnecessary to reach it here as Vo fails to
satisfy the uprising prong of the incidence test for other reasons.
5522 VO v. BENOV
lence in Vietnam falls far short of that required to qualify as
an uprising, we hold that Vo’s offense is not protected by the
political offense exception to the Treaty. In the alternative, we
hold that Vo does not qualify for the exception because his
conduct does not satisfy the geographic requirement of the
uprising test.
1. “A Certain Level of Violence”
The degree of violence in Vietnam at the time of Vo’s con-
duct does not reach the level necessary to characterize it as an
“uprising.” Quinn described an uprising as synonymous with
“rebellion” or “revolution” and involving “a certain level of
violence.” 783 F.2d at 807. The term does not “apply to politi-
cal acts that involve less fundamental efforts to accomplish
change or that do not attract sufficient adherents to create the
requisite amount of turmoil.” Id. Rather, an uprising “refers
to a people rising up, in their own land, against the govern-
ment of that land.” Id. at 813.
[4] The application of this facet of the uprising prong in
other cases clearly demonstrates that the degree of violence in
Vietnam at the time of the offense did not reach the level of
an uprising. In Quinn, we held that an uprising occurred in
Northern Ireland because there had been “a number of bomb-
ing campaigns” during a very long and frequently violent
period of conflict between Irish nationalists and the United
Kingdom. Id. at 812-13 (noting the Provisional Irish Republi-
can Army, of which Quinn was a member, “advocated armed
insurrection”). More recently, we found that “ ‘[t]ens of thou-
sands of deaths and casualties’ . . . as Sikh nationalists clashed
with government officers and sympathizers in Punjab” consti-
tuted “[s]ubstantial violence” sufficient to rise to the level of
an uprising. Barapind, 400 F.3d at 750. Similarly, a continu-
ing clash between indigenous people and police in northern
Canada that was “not just an isolated violent disturbance” but
part of a long history of struggle between native people and
the government of Canada was found to constitute an upris-
VO v. BENOV 5523
ing. United States v. Pitawanakwat, 120 F. Supp. 2d 921, 935
(D. Or. 2000).6 Other courts analyzing the uprising prong
have looked for “endemic and widespread violence.” Ahmad
v. Wigen, 726 F. Supp. 389, 409 (E.D.N.Y. 1989), aff’d, 910
F.2d 1063 (2d Cir. 1990) (holding that violence against Israeli
settlers in the West Bank, before the Intifada of the 1980s,
was not an uprising). The analysis in these cases shows that
in order to constitute an uprising, a conflict must involve
either some short period of intense bloodshed or an accumula-
tion of violent incidents over a long period of time. Barapind,
400 F.3d at 750; Quinn, 783 F.2d at 812.
[5] The burden of proving the existence of a campaign
against the Vietnamese government that involves sufficient
violence to rise to the level of an uprising is on Vo, the party
presenting an affirmative defense to extradition.7 Vo has not
met this burden. In support of his claim that an uprising exists
in Vietnam, Vo cites the thousands of signatures on a petition
for his freedom as evidence of a “war” between the GFVN
and Vietnam. He claims that “GFVN members [have been]
murdered and imprisoned for their actions,” and points to a
handful of attacks against the Vietnamese government that
GFVN has attempted or carried out. He further notes that
Vietnam “consider[s] Vo a terrorist.” The exhibits that Vo has
presented are not particularly convincing. Furthermore, even
if we construe all the evidence in his favor, Vo still cannot
6
The district court there stated that:
Native people from multiple tribes undertook simultaneous, if not
coordinated, action in defense of their unceded lands and in
defense of their people on more than one front by petitioning the
Queen of England, setting up armed encampments, creating a
supply network with other tribes, overtaking a Canadian military
base, and taking control of large areas of land.
Pitawanakwat, 120 F. Supp. 2d at 935.
7
See, e.g., Pitawanakwat, 120 F. Supp. 2d at 928 (“The initial burden
of proof is on defendant to establish the essential elements of the political
offense exception.”).
5524 VO v. BENOV
show a sustained and widespread degree of violence that rises
to the level of an uprising. The sum of a few skirmishes with
the police, coupled with a handful of explosions and bombing
attempts around the Pacific Rim and a keen desire to see the
downfall of the communist regime in Saigon, does not amount
to an uprising. Because the events relied on by Vo do not
reach the necessary level of violence, he cannot meet this crit-
ical component of the uprising prong. Thus, his conduct is not
protected by the political offense exception.
2. The Territory of the Uprising
Even were we to consider the level of violence in Vietnam
at the time of Vo’s conduct sufficient to constitute an upris-
ing, Vo still would not qualify for the political offense excep-
tion because his crime did not occur “within the country or
territory in which those rising up reside,” as required by the
incidence test. Quinn, 783 F.2d at 807.
Vo offers two different arguments in support of his conten-
tion that he satisfies the geographic requirement of the upris-
ing prong. First, Vo argues that under Quinn, the territorial
restriction of the incidence test need not be strictly applied.
Vo places great weight on language in Quinn that he charac-
terizes as a “savings clause.” The portion of Quinn on which
Vo relies states that “[w]hile determining the proper geo-
graphic boundaries of an ‘uprising’ involves a legal issue that
ordinarily will be fairly simple to resolve, there may be some
circumstances under which it will be more difficult to do so.
We need not formulate a general rule that will be applicable
to all situations.” 783 F.2d at 807. Vo argues that in light of
this alleged “savings clause,” the “symbolic” nature of both
the attack’s location (the embassy) and its timing (the anni-
versary of the founding of the South Vietnamese army) make
“it . . . unreasonable to consider the attack . . . to be geograph-
ically barred.” As his second argument, Vo asserts that he can
satisfy even the strictest construction of the geographic
requirement because the Vietnamese embassy was the target
VO v. BENOV 5525
of his attack and thus the crime occurred “in” Vietnam. We
reject both of Vo’s arguments.
[6] Vo essentially proposes that this court construe the inci-
dence test’s uprising prong as containing an amorphous
exception to the geographic requirement that permits extradi-
tion courts in their discretion to deem the requirement satis-
fied even though the criminal act alleged occurs outside the
boundaries of the state against which the uprising is directed.
Such an expansive interpretation of the geographic require-
ment, however, is expressly precluded by the text of Quinn.
There, we explained that:
The term “uprising” refers to a revolt by indigenous
people against their own government or an occupy-
ing power. That revolt can occur only within the
country or territory in which those rising up reside.
By definition acts occurring in other lands are not
part of the uprising.
Quinn, 783 F.2d at 807 (emphasis added). As this explanation
makes clear, offenses that occur outside the geographic
boundaries of the country or territory in which those “rising
up” reside cannot be considered part of an uprising for the
purpose of the political offense exception.
The “savings clause” that Vo relies on is not to the con-
trary. The potential difficulty in “determining the proper geo-
graphic boundaries of an ‘uprising,’ ” id., refers to the
challenge a court faces when an offense for which extradition
is sought occurs in territory the legal status of which is
unclear, including territory allegedly occupied by the request-
ing state (as opposed to within its formal borders). In that cir-
cumstance, the boundaries of the occupation are not fixed and
may shift frequently, requiring the court to make the some-
5526 VO v. BENOV
times difficult determination whether the territory in which
the offense occurred is in fact occupied.8
Not only does Vo’s interpretation of the geographic
requirement of the uprising prong conflict with the text of
Quinn, it conflicts with the requirement’s underlying purpose
as well. As we have previously noted, the territorial limitation
on the uprising prong plays a critical role in the political
offense doctrine — it ensures that the political offense excep-
tion is not used to allow international terrorists to escape pros-
ecution or to encourage the spread of civil insurrections to
neighboring states. Id. at 813-14.9 Vo’s construction of the
territorial restriction would extend the scope of the political
offense exception to cover many acts of international terror-
ism. Under Vo’s understanding of the geographic requirement
of the uprising prong, an offense that is sufficiently “symbol-
ic” — in terms of either its location or its timing — need not
occur in the country or territory of an uprising to be protected
by the political offense exception. As many acts of interna-
tional terrorism are committed for their symbolism (including
the September 11, 2001 attacks on the World Trade Center)
and often meet the other requirements of the incidence test,
Vo’s interpretation would allow such acts to be covered by
the political offense exception — precisely what the geo-
8
We made the limited reach of the “savings clause” abundantly clear in
the sentence in Quinn that directly follows the one quoted by Vo. The next
sentence states that “for purposes of the political offense exception an
‘uprising’ cannot extend beyond the borders of the country or territory in
which a group of citizens or residents is seeking to change their particular
government or governmental structure.” Quinn, 783 F.2d at 807.
9
We emphasized the function of the territorial limitation of the political
offense exception in Quinn, stating that “the word ‘uprising’ means
exactly that: it refers to a people rising up, in their own land, against the
government of that land. It does not cover terrorism or other criminal con-
duct exported to other locations.” Id. at 813-14; see also id. at 805 (“The
application of [the political offense] exception to acts of international ter-
rorism would comport with neither [the original justifications for the
exception or the traditional requirements of the incidence test].”).
VO v. BENOV 5527
graphic limitation of the uprising prong is designed to pre-
vent. Similarly, the requirement is intended to prevent the use
of the political offense exception by those seeking to spread
internal conflicts to neighboring countries and thus to turn
civil insurrections into regional conflicts. The essence of the
exception is to protect against extradition those trying to
change their own government by actions within their own terri-
tory.10 Accordingly, we reject Vo’s effort to create a discre-
tionary exception to the territorial component of the political
offense exception.
[7] We also reject Vo’s claim that when an offense is com-
mitted in another nation against the embassy of the country in
which an uprising is occurring, the uprising prong’s geo-
graphic requirement is met, even though the offense is com-
mitted outside of the borders of the country that is the object
of the insurrection. We also reaffirm what we said in Quinn:
in order to satisfy the geographic requirement of the incidence
test’s uprising prong, an offense must occur within the geo-
graphic borders of the nation at which the uprising is directed
or within its occupied territory. Id. at 807. The geographic
requirement is not satisfied when an offense occurs on prop-
erty owned or controlled by that nation that is located within
the geographic borders of another state. Because Vo commit-
ted the offense outside the territorial boundaries of the state
in which the uprising was allegedly occurring, his conduct
does not meet the geographic requirement of the incidence
test’s uprising prong, and therefore the crime does not qualify
for the political offense exception.11
10
See id. at 807 (“[T]he uprising component serves to exclude from cov-
erage under the exception criminal conduct that occurs outside the country
or territory in which the uprising is taking place. . . . [The political offense
exception] was not designed to protect . . . the exportation of violence and
strife to other locations — even to the homeland of an oppressor nation.
Thus, an uprising is . . . limited spatially.”).
11
Vo must meet all the criteria of the uprising prong in order to qualify
for the political offense exception. We have found that he cannot meet at
least two of those criteria and thus do not reach the question whether he
fails to meet other criteria of this prong or the “incidental to” prong by vir-
tue of his citizenship or for other reasons.
5528 VO v. BENOV
B. Vo’s Due Process Claims
In addition to his claim that he qualifies for the political
offense exception, Vo argues that we should reverse the dis-
trict court’s denial of his habeas petition because the extradi-
tion magistrate violated his due process rights. Vo’s due
process arguments are based on Article 5(2) of the extradition
treaty, which permits the United States to refuse to extradite
an individual if it “has proceeded against” the individual for
the offense for which extradition is requested.12 Vo raises two
due process claims under this provision of the extradition
treaty. First, he argues that the magistrate judge’s failure to
deny extradition on the ground that he had been “proceeded
against” by the United States deprives him of due process.
Second, he argues that the extradition magistrate’s failure to
make a determination of whether he had been “proceeded
against” in order to aid the Secretary of State in deciding
whether to exercise her discretion not to extradite him violates
his due process rights. Because Article 5(2) provides a discre-
tionary exception to extradition, neither the magistrate’s fail-
ure to deny extradition on the ground provided for in that
article nor his decision not to make a determination as to
whether Vo has been “proceeded against” before certifying
him as extraditable deprives Vo of due process.
12
Vo does not expressly state which portion of the Treaty he relies upon
in making his due process arguments. Although his due process claims all
relate to the extradition magistrate’s failure to determine whether he
“ha[d] been proceeded against,” the key term in Article 5(2), at points he
invokes Article 4, which allows extradition to be denied if the requested
state “shall proceed against the person” for the offense for which extradi-
tion is sought. However, in his reply brief to this court, Vo makes clear
that his due process claims involve only Article 5(2). He asserts in that
brief that “the question under the Treaty here is not whether there will be
a prosecution, but whether the person has been proceeded against.”
(emphasis in original).
VO v. BENOV 5529
1. Vo’s Due Process Rights Were Not Violated By the
Magistrate’s Failure to Deny Extradition on the Ground that
He Has Been “Proceeded Against”
[8] As discussed in the section explaining the extradition
procedures, an extradition court exercises very limited author-
ity in the overall process of extradition. Its role is limited to
determining an individual’s eligibility to be extradited, which
it does by ascertaining whether a crime is extraditable under
the relevant treaty and whether probable cause exists to sus-
tain the charge. “If those requirements are met, the judicial
officer must certify the individual as extraditable to the Secre-
tary of State.” Prasoprat, 421 F.3d at 1014 (emphasis in origi-
nal) (citing Blaxland, 323 F.3d at 1208 (“If the evidence is
sufficient to sustain the charge, the inquiring magistrate judge
is required to certify the individual as extraditable to the Sec-
retary of State . . . .”)). In determining whether an individual
is extraditable, the extradition magistrate examines the treaty
to ascertain whether it allows extradition in the circumstances
presented by the relator. Extradition treaties often provide for
the general extraditability of individuals who commit offenses
that are recognized as crimes in both the requesting and the
requested states, subject to enumerated exceptions. These
exceptions are of two general types: mandatory exceptions
(including political offenses) and discretionary exceptions.13 If
an individual falls within a mandatory exception, the United
13
The two types of exception are characterized by different language in
extradition treaties. The use of “shall” language in a treaty indicates a pro-
vision constitutes a mandatory exception. For instance, Article 3(1)(a) of
the Treaty provides, “[e]xtradition shall not be granted when: the offense
for which extradition is sought is a political offense.” The use of “may”
language in a treaty indicates a provision constitutes a discretionary excep-
tion. Article 5(2) of the Treaty, for example, provides “[e]xtradition may
be denied when the person sought is being or has been proceeded against
in the Requested State for the offense for which extradition is requested.”
As the Letter of Submittal accompanying the Treaty noted, “Article[ ] 3
state[s] mandatory grounds for refusal of extradition. . . . Article[ ] . . . 5
state[s] discretionary grounds for refusal of extradition.”
5530 VO v. BENOV
States cannot extradite him to the requesting country and the
magistrate may not certify him as extraditable. If an individ-
ual falls within a discretionary exception, however, the United
States can choose not to extradite him to the requesting coun-
try, but it is under no obligation to the relator to do so. When
requested by the United States, the magistrate must certify an
individual even though he may be subject to a discretionary
exception.
[9] As a result of the varying consequences of the two types
of exceptions and the limitations on an extradition court’s
authority, the only actions of an extradition court relating to
exceptions that can ordinarily give rise to a due process claim
are those that involve mandatory exceptions. Because an indi-
vidual who falls within a mandatory exception cannot be
extradited, an extradition court must determine whether that
individual qualifies for such an exception. An extradition
court’s failure to do so would violate the individual’s due pro-
cess rights. By contrast, even if an individual’s circumstances
satisfy the criteria for a discretionary exception, he can still be
extradited if the Secretary of State so decides. In other words,
an extradition court is without authority to prevent an extradi-
tion on the basis of a discretionary exception and thus cannot
deny extradition on that basis. Blaxland, 323 F.3d at 1208.
Accordingly, Vo’s claim that the extradition court violated his
due process rights by not denying extradition on the ground
that he had been “proceeded against” in the United States is
without merit — only the Secretary of State can deny extradi-
tion on that ground.14
14
There is also no merit to Vo’s contention that unless courts make
determinations pursuant to all exceptions in an extradition treaty — man-
datory or discretionary — the Secretary of State would be able to extradite
someone who had been acquitted in the United States of the offense for
which extradition was sought. Unlike cases in which an individual is, has
been, or will be “proceeded against” for the offense for which extradition
is sought, which are covered by Articles 5(2) and 5(3) of the Treaty, cases
in which an individual has been acquitted of such an offense are covered
VO v. BENOV 5531
2. Vo’s Due Process Rights Were Not Violated By the
Magistrate’s Decision Not to Make a Determination Whether
He Had Been “Proceeded Against”
Vo also raises another due process claim: he asserts that the
extradition magistrate deprived him of due process by not
making a determination whether under the terms of the Treaty
he had been “proceeded against.” Vo asserts that the extradi-
tion court may do so, indeed must do so, in order to assist the
Secretary of State in the exercise of her discretion. We reject
this claim also.
[10] We have repeatedly held that an extradition court’s
decision not to consider evidence, or not to make findings rel-
evant to a discretionary exception, does not violate due pro-
cess. In Lopez-Smith, for instance, the petitioner sought a writ
of habeas corpus on the ground that the extradition magistrate
had violated the petitioner’s due process rights by refusing to
consider evidence regarding whether the Secretary ought to
exercise the discretion provided by the terms of the extradi-
tion treaty not to extradite him to Mexico. We rejected this
claim on the ground that extradition is “entirely within the
discretion of the executive branch, except to the extent that
the statute interposes a judicial function.” Lopez-Smith, 121
F.3d at 1326. We stated that the statutorily imposed judicial
functions encompass the entirety of a court’s obligations in
by Article 5(1). That provision of the Treaty states that “[e]xtradition shall
not be granted when the person sought has been tried and convicted or
acquitted in the Requested State for the offense for which extradition is
requested.” (Emphasis added). Article 5(1) therefore creates a mandatory
exception to extradition that an extradition court must rule on as part of
its eligibility determination. If an individual has in fact been acquitted of
the offense for which extradition is sought but the extradition court
declines to apply Article 5(1) and certifies him as eligible for extradition,
that individual would undoubtedly have a valid due process claim as the
extradition court’s actions would involve a failure to rule on a mandatory
exception, not, as here, a discretionary exception.
5532 VO v. BENOV
the extradition process, emphasizing that “[t]he magistrate
judge has no discretionary decision to make.” Id. Because dis-
cretionary decisions are within the province of the Secretary
of State and not the extradition magistrate, we held that “it is
. . . for the Secretary to decide what evidence might have a
bearing upon” a discretionary decision. Thus, an extradition
court’s failure to consider evidence that might aid the Secre-
tary does not deprive an individual of due process. Id. Simi-
larly, in Prasoprat, we rejected a petitioner’s claim that a
magistrate judge deprived him of due process by denying a
discovery motion seeking evidence related to a discretionary
exception in the applicable extradition treaty because “the evi-
dence that Prasoprat sought in his motion for discovery was
not relevant to the extradition judge’s limited inquiry.” Praso-
prat, 421 F.3d at 1015.
Here, as in Lopez-Smith and Prasoprat, Vo argues that the
extradition court’s failure to take action that would aid the
Secretary of State in the exercise of her discretion violates his
due process rights. Because Vo seeks a determination from
the extradition court — a determination whether he had been
“proceeded against” for purposes of Article 5(2) — only in
order to aid the Secretary in her exercise of discretion under
the Treaty and because an extradition court has no authority
to provide such aid, at least in the absence of a request from
the Secretary, the extradition court’s failure to construe the
treaty did not deprive Vo of due process.
We note that the ruling Vo seeks would neither affect his
eligibility for extradition nor preclude the Secretary from
exercising her discretion to extradite him. Only if, subsequent
to the issuance of Vo’s certification of eligibility, the Secre-
tary concluded that she does not possess the discretion to
refuse to extradite him under Article 5(2) of the Treaty would
the question of law regarding the Secretary’s authority that
Vo asks us to answer become material. It would be premature,
therefore, for us to consider on this appeal whether, if the Sec-
retary determines that she does not have discretion under Arti-
VO v. BENOV 5533
cle 5(2) of the Treaty to refuse to extradite Vo because the
legal steps taken to prosecute him do not fall within the mean-
ing of “proceeded against” as used in the Treaty, the federal
courts would have the authority to review that determination
for legal error. We also do not consider here whether an extra-
dition magistrate has the authority to answer such a question
regarding the construction of a treaty if the Secretary herself
requests that ruling.
[11] For the above reasons, the magistrate judge’s failure
to determine the meaning of the term “proceeded against” in
the hearing he conducted did not violate Vo’s due process
rights.
IV. Conclusion
Vo has not satisfied the uprising prong of the incidence
test, which governs the application of the political offense
exception. Nor have his due process rights been violated.
Accordingly, the judgment of the district court denying Vo’s
petition for habeas corpus is AFFIRMED.