Ninth Circuit to Rule En Banc on Extradition Issue

Wednesday, October 20, 2004

Page 1

Ninth Circuit to Rule En Banc on Extradition Issue

By a MetNews Staff Writer

The Ninth U.S. Circuit Court of Appeals yesterday granted en banc rehearing on the question of whether the State Department’s decision to turn over a fugitive to a foreign country pursuant to an extradition treaty is subject to judicial review.

Chief Judge Mary M. Schroeder said in a brief order that a majority of the court’s unrecused active judges had voted to grant en banc review in Cornejo-Barreto v. Siefert, 02-56605. A three-judge panel comprised of Senior Judge J. Clifford Wallace and Judges Pamela Ann Rymer and Richard C. Tallman ruled Aug. 16 that the State Department’s decision to extradite is final.

Ramiro Cornejo-Barreto, charged with robbing a Tijuana jewelry store, shooting and killing a police officer while fleeing, and kidnapping a passerby in order to make good his escape, claims that he will be tortured if returned to Mexico to face trial over the 1989 incident.

Under the federal extradition statute, a person may be arrested on request of a foreign government that has charged the suspect with a crime covered by an extradition treaty. Once taken into custody, the person is entitled to a hearing at which a federal judge, who may be a magistrate judge, determines whether there is probable cause to believe the suspect committed an extaditable offense.

The ruling on probable cause is subject to limited habeas corpus review. The Supreme Court has held that a writ may issue upon a showing that there was no evidence to support the finding, that the judge who made the finding lacked jurisdiction, or that the offense is not extraditable under the treaty.

If probable cause is found, and in the absence of habeas corpus relief, the final decision as to whether the suspect is delivered to representatives of the requesting country lies, by statute, with the State Department.

In Cornejo-Barreto’s case, the district judge denied his habeas corpus petition, saying his claims under a multilateral treaty known as the Convention Against Torture did not constitute a legal basis for relief from extradition. The Ninth Circuit, in its first decision in the matter, held that the claim was not ripe but could be raised again if the State Department approved extradition, which it later did.

But in the second panel ruling, which stands vacated as a result of yesterday’s en banc order, the court held that the earlier decision was dicta on the question of whether the courts actually have jurisdiction to review the executive branch’s decision to extradite.

Rymer, in her opinion for the second panel, concluded that the Convention Against Torture grants no such jurisdiction to courts, nor did Congress intend to grant such jurisdiction when it enacted the Foreign Affairs Reform and Restructuring Act of 1998, which applies the convention to immigration cases.

“Extradition is quintessentially a matter of foreign policy; it occurs only pursuant to an international agreement and is invoked by a foreign government,” Rymer explained. “Immigration, on the other hand, is a matter solely between the United States and an alien.....The FARR Act incorporates the distinction between extradition and immigration, and we see no basis in it for changing the regime that has long applied to extradition.”