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…

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.

OPINION

Trinidad y Garcia alleges that his extradition to the Philippines 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 *956 the Foreign Affairs Reform and Restructuring 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 appropriate 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…

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.

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.

*958 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 , 121 S.Ct. 2271 , 150 L.Ed.2d 347 (2001). Section 2241 also provides an avenue 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 extradition context, see e.g. Fernandez v. Phillips, 268 U.S. 311, 312 , 45 S.Ct. 541 , 69 L.Ed. 970 (1925), the Supreme…

with whom Circuit Judges CLIFTON, 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 Condoleeza Rice ordered Trinidad extradited.

We went en banc to address a relatively straightforward legal question: whether an extraditee like Trinidad may challenge 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 substance 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…

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 Torture 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 determine 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…

concurring in part and dissenting in part, with whom Judge W. FLETCHER joins:

I agree with the majority’s holding in all aspects, except parts 4-6. Specifically, I agree that we have jurisdiction to decide Trinidad y Garcia’s habeas corpus petition. Per curiam at 955-57. I disagree with the majority opinion, however, regarding the scope of our review.

The majority believes that under the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA), 8 U.S.C. § 1231 1 (congressional legislation implementing our obligations under Article 3 of the Convention Against Torture (CAT)), “[a]n ex-traditee ... possesses a narrow liberty interest: that the Secretary comply with her statutory and regulatory obligations.” Per curiam at 957. I believe, however, that Trinidad y Garcia’s liberty interest is not merely about process. FARRA § 2242(a) unequivocally states that it is “the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture[.]” 8 U.S.C. § 1231 . Because Trinidad y Garcia has made a non-frivolous claim…

dissenting in part:

1. The federal habeas statute, 28 U.S.C. § 2241 , simultaneously provides jurisdiction to hear habeas petitions and remedies for successful ones. See Richard H; Fallon, Jr. & Daniel J. Meltzer, Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror, 120 Harv. L. Rev. 2029 , 2038 (2007). Just because someone in custody files a document styled “habeas petition” doesn’t mean a federal court has jurisdiction to entertain it. Instead, the petitioner must allege a type of claim cognizable on habeas. Cf. Bell v. Wolfish, 441 U.S. 520 , 526 n. 6, 99 S.Ct. 1861 , 60 L.Ed.2d 447 (1979) (relying on “an alternative basis for jurisdiction” to adjudicate claims whose cognizability on habeas review the Court found questionable); Stone v. Powell, 428 U.S. 465, 479-80 , 96 S.Ct. 3037 , 49 L.Ed.2d 1067 (1976) (discussing the connection between “claims ... cognizable in [28 U.S.C.] § 2255 [habeas] proceedings” and “the substantive scope of federal habeas jurisdiction”). In the extradition context, habeas corpus isn’t available to challenge just any aspect of the executive branch’s authority an extraditee seeks to question. Rather, the case law— including our own…