Vo v. Benov

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.