Hedelito Garcia v. Linda Thomas

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

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