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CORNEJO BARRETO V SIEFERT
Case Number:	Date Filed:
98-56827	07/11/00
 

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RAMIRO CORNEJO-BARRETO, aka
Rabbit, aka Cornhole,                                 No. 98-56827
Petitioner-Appellant,
                                                     D.C. No.
v.                                                    CV-97-00843-AHS

W.H. SEIFERT, Warden,                                 OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the Central District of California
Alicemarie H. Stotler, District Judge, Presiding

Argued and Submitted
December 7, 1999--Pasadena, California
Withdrawn from Submission December 10, 1999
Resubmitted July 5, 2000

Filed July 11, 2000

Before: Betty B. Fletcher, Alex Kozinski, and
David R. Thompson, Circuit Judges.

Opinion by Judge B. Fletcher;
Concurrence by Judge Kozinski

_________________________________________________________________



COUNSEL

Maria E. Stratton, Federal Public Defender, Craig Wilke
(argued), Deputy Federal Public Defender, Santa Ana, Cali-
fornia, for the petitioner-appellant.

Alejandro N. Mayorkas, United States Attorney, Monica
Bachner, Assistant United States Attorney, Linda M. Aouate
(argued), Assistant United States Attorney, Santa Ana, Cali-
fornia, for the respondent-appellee.

_________________________________________________________________

OPINION

B. Fletcher, Circuit Judge:

Petitioner appeals the district court's denial of habeas relief
from a magistrate's issuance of an extradition certificate and
an order of commitment. The magistrate has found that peti-
tioner is likely to be tortured if he is surrendered to the
requesting government, but has nonetheless issued the extra-
dition certificate. The United Nations Convention Against
Torture and Other Forms of Cruel, Inhuman or Degrading
Treatment or Punishment ("Torture Convention"),1 to which
the United States is a party, prohibits extradition if torture is
likely. Our task is to determine what procedures are available
_________________________________________________________________
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 April 18, 1988.

                               7750


to petitioner to assert his rights under the Torture Convention
and the timing thereof.

We conclude that the Secretary of State first must make a
determination as to whether to extradite petitioner in light of
his claim that the requesting government is likely to torture
him upon surrender. 28 U.S.C. S 2241 confers jurisdiction
only when no other relief is available to petitioner.2 At this
point it is still possible that the Secretary will refuse to surren-
der the petitioner. If the Secretary decides to surrender him,
petitioner then will have recourse to federal court.

Examining federal legislation implementing the Torture
Convention, we conclude that the Administrative Procedure
Act ("APA") allows an individual facing extradition who is
making a torture claim to petition, under habeas corpus, for
review of the Secretary of State's decision to surrender him.
We affirm the district court but direct that the denial be with-
out prejudice.

I.

In August 1991, a judge in Tijuana Mexico issued a war-
rant for the arrest of Ramiro Cornejo-Barreto, a Mexican citi-
zen who is a lawful permanent resident of the United States,
charging him with homicide, robbery, injuries, deliberate
property damage, kidnaping, and firing a weapon upon a per-
son. These crimes were alleged to have occurred in Mexico
on or about May 5, 1989.

Cornejo-Barreto was arrested in the United States on Octo-
ber 10, 1996 pursuant to a request by the government of Mex-
ico under the U.S.-Mexico extradition treaty. The United
States Attorney's office filed a Request for Extradition and
Government's Filing of Formal Extradition Papers on Decem-
_________________________________________________________________
2 Were APA review not available, we would be required to reach the
merits of the instant petition.

                               7751


ber 12, 1996. Cornejo-Barreto appeared before Magistrate
Judge Elgin Edwards on July 29, 30, and 31, and on August
6, 1997.

Cornejo-Barreto presented a defense to extradition based
on Article 3 of the United Nations Convention Against Tor-
ture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment, which prohibits countries from surrendering
individuals who will face torture in the requesting country.
Cornejo-Barreto claimed that he should not be extradited to
Mexico because he had been tortured and was likely to again
be tortured when he returned. In response to this claim, the
magistrate judge conducted a comprehensive factual hearing,
allowing Cornejo-Barreto to call a number of witnesses and
submit numerous exhibits. The government moved in limine
to exclude the submissions, arguing that they supported an
impermissible argument, since the Torture Convention does
not create a basis for an extraditee to avoid extradition certifi-
cation. The magistrate judge ultimately agreed with the gov-
ernment concerning the Torture Convention claim: he
determined that the magistrate judge's role in extradition was
limited to determining whether probable cause existed con-
cerning the fugitive's alleged crimes. Cornejo-Barreto's evi-
dence of torture was relevant to the magistrate judge's
probable cause determination, however, since the allegations
threatened to undermine the credibility of portions of the gov-
ernment's evidence.

Cornejo-Barreto introduced evidence that he was arrested
and tortured by the State Judicial Police in Tijuana on May 5,
1989. He testified that he had chile shoved up his nostrils, and
was deprived of food and water, subjected to death threats,
beaten with fists and rifle butts, repeatedly hooded with a
plastic bag until he lost consciousness, hung by the wrists, and
shocked with electrodes attached to various parts of his body
including his genitals. Cornejo-Barreto also testified that he
was forced, under threat of death, to sign typewritten docu-
ments that he was not allowed to read, as well as blank papers

                               7752


that were later made to appear to be confessions to the
charged crimes. Eight days after his arrest, Cornejo-Barreto
appeared before a Mexican court for the first time since his
arrest. A court document from this initial appearance reflects
that Cornejo-Barreto had visible injuries when he was brought
to court and that he told a public defender that he had been
tortured. To support the credibility of his testimony, Cornejo-
Barreto introduced evidence at the extradition hearing demon-
strating that the torture he suffered is consistent with reports
of torture in Mexico published by the U.S. Department of
State and by Amnesty International. A medical expert testi-
fied that Cornejo-Barreto's injuries were consistent with a his-
tory of torture, and a psychological expert testified that
Cornejo-Barreto's fear of returning to Mexico was consistent
with an experience of torture and could reveal the presence of
post-traumatic stress disorder.

To isolate any possible taint the alleged torture could have
on the evidence supporting the probable cause determination,
the judge considered the sufficiency of the evidence without
the challenged confessions. He concluded that there was prob-
able cause that Cornejo-Barreto committed the crimes
charged in the extradition papers, even if the challenged evi-
dence was excluded. On this basis, the magistrate judge
entered Findings3, an Extradition Certification, and an Order
of Commitment on September 26, 1997.

Cornejo-Barreto filed a petition for writ of habeas corpus
on October 2, 1997. After a number of amendments to the
petition, counsel presented arguments on June 29 and July 27,
1998 before District Court Judge Stotler. Cornejo-Barreto
made three arguments: (1) that the extradition order violated
Article 3 of the U.S.-ratified Torture Convention; (2) that the
order violated his Fifth Amendment right to procedural due
_________________________________________________________________
3 The magistrate judge's finding that petitioner likely would be tortured
on his return was irrelevant to his task of determining whether there was
probable cause to believe petitioner committed the crime charged.

                               7753


process; and (3) that the order violated his Eighth Amendment
right to be free from cruel and unusual punishment. On Octo-
ber 7, 1998, the court denied Cornejo-Barreto's petition and
granted his request for a stay pending appeal. The court found
that the scope of its review was limited to ensuring that the
elements necessary for extradition are present, thus barring
Cornejo-Barreto's claims. Referring to the Ninth Circuit's
rule regarding self-executing treaties explicated in Saipan v.
United States Dep't of Interior, 502 F.2d 90, 97 (9th Cir.
1974), the court found that Article 3 of the Torture Conven-
tion was not self-executing. The court found that the petition-
er's Fifth Amendment claim was defeated by the special
nature of extradition hearings and the limited process due
fugitives facing return to a country that requests them. The
court dismissed the Eighth Amendment claim on the ground
that the Eighth Amendment applies in criminal settings only;
under caselaw, extradition proceedings are not criminal pro-
ceedings. Finally, the court denied a request by Cornejo-
Barreto to admit the evidence included in his extradition pro-
ceeding regarding his past torture and fear of future torture.
Cornejo-Barreto timely appealed the district court's order
denying him habeas relief. On appeal, he raises only the Tor-
ture Convention claim.

We have jurisdiction under 28 U.S.C. S 1291 and we
review de novo. See Allen v. Crabtree, 153 F.3d 1030, 1032
(9th Cir. 1998) (district court's grant or denial ofS 2241
habeas corpus petition reviewed de novo), cert. denied, 525
U.S. 1091 (1999). We affirm the district court's denial of the
petition but direct that it be without prejudice to the filing of
a new petition should the Secretary of State decide to surren-
der Cornejo-Barreto.

II.

A. The Extradition Scheme

Extradition from the United States is governed by 18
U.S.C. S 3184 (2000), which confers jurisdiction on "any jus-

                               7754


tice or judge of the United States" or any authorized magis-
trate to conduct an extradition hearing under the relevant
extradition treaty between the United States and the request-
ing nation. A statute or extradition treaty is a prerequisite to
extradition. See Quinn v. Robinson, 783 F.2d 776, 782 (9th
Cir. 1986). The requesting nation must demonstrate that there
is probable cause that the fugitive committed the charged
offense. See id. at 782-783.

Extradition is ordinarily initiated by a request from the for-
eign state to the Department of State. See R ESTATEMENT
(THIRD) OF FOREIGN RELATIONS LAW S 478 (1986). The Depart-
ment of State determines whether the request is within the rel-
evant treaty, and if so, forwards the request to the Department
of Justice for a similar screening; once this is complete, the
request is forwarded to the United States Attorney for the
judicial district where the person sought is located. See id.
The US Attorney then files a complaint with the appropriate
district judge or magistrate, seeking an arrest warrant for the
person sought. See id. While the foreign state can apply
directly to a judge or magistrate, this is rarely done. See id.
The purpose of the hearing before the magistrate or judge is
to determine whether (1) the crime is extraditable 4; and (2)
there is probable cause to sustain the charge. See Quinn, 783
F.2d at 787. If these two requirements are met, the judicial
officer must certify the individual as extraditable to the Secre-
tary of State. 18 U.S.C. S 3184 (2000). This decision is not
subject to direct appeal, but collateral review of the magistrate
or judge's order is available through habeas corpus review.5
See Collins v. Miller, 252 U.S. 364, 369-70 (1920).
_________________________________________________________________
4 To be extraditable, the crime must be (1) within the scope of the rele-
vant treaty; (2) a crime in both the requesting state and the United States;
and (3) not subject to the political offense exception. See Quinn v. Robin-
son, 783 F.2d 776, 786-787 (9th Cir. 1986).
5 The "rule of non-inquiry" usually requires extradition courts to refrain
from undertaking inquiries into the justice systems of foreign countries.
See, e.g., Mainero v. Gregg, 164 F.3d 1199, 1205 n. 6 (9th Cir. 1999) (not-

                               7755


On habeas, the district court's review has been limited to
the following: (1) whether the extradition judge had jurisdic-
tion to conduct the proceeding; (2) whether the extradition
court had jurisdiction over the individual sought; (3) whether
the extradition treaty was in force; (4) whether the crime fell
within the treaty's terms; (5) whether there was probable
cause that the individual sought committed the crime, see
Emami v. U.S. District Court, 834 F.2d 1444 (9th Cir. 1987);
and (6) whether the crime was within the political offense
exception, see Quinn, 783 F.2d at 786-787.

Courts in many jurisdictions, including the Ninth Circuit,
have discussed the possibility of a humanitarian exception to
extradition, tracing the idea to the influential Second Circuit
case Gallina v. Fraser, 278 F.2d 77, 79 (2d Cir.), cert. denied,
364 U.S. 851 (1960) (noting in dicta that "[w]e can imagine
situations where the relator, upon extradition, would be sub-
ject to procedures or punishment so antipathetic to a federal
court's sense of decency as to require reexamination " of the
rule that the extradition court may not inquire into those con-
ditions in making its decision). See, e.g., Lopez-Smith v.
Hood, 121 F.3d 1322, 1326-27 (9th Cir. 1997) (discussing in
dicta possibility of humanitarian exception); Emami, 834 F.2d
at 1452-53 (9th Cir. 1987) (noting that a humanitarian excep-
tion to extradition might someday be articulated by the Ninth
Circuit), Arnbjornsdottir-Mendler v. United States, 721 F.2d
679, 683 (9th Cir. 1983) (same). Our research failed to iden-
tify any case in which this theoretical exception has been
applied, however, and because we base our decision on legis-
_________________________________________________________________
ing that "[t]he `rule of non-inquiry' recognizes that `[a]n extraditing court
will generally not inquire into the procedures or treatment which await a
surrendered fugitive in the requesting country' ") (citing Arnbjornsdottir-
Mendler v. United States, 721 F.2d 679, 683 (9th Cir. 1983)). The rule
does not bar review of the Secretary's actions, however, since Congress'
legislation implementing the Torture Convention, discussed below, clearly
supersedes the doctrine, which developed as a matter of federal common
law.

                               7756


lation implementing the Torture Convention, we need not
consider the exception's viability here. See Mainero v. Gregg,
164 F.3d 1199, 1210 (9th Cir. 1999) (noting that "to date no
court has ever denied extradition based on a fugitive's antici-
pated treatment in the requesting country").

[1] Once a magistrate has certified to the Secretary of State
that the individual is extraditable and any habeas review has
concluded, the Secretary acts in her discretion to determine
whether the person will be surrendered, via extradition war-
rant, to the custody of the requesting state. 18 U.S.C. S 3186
(2000). The Secretary's decision has been treated as discre-
tionary: until recently, according to the government, there has
been "no statute or published regulation applicable to the Sec-
retary's decision-making process in determining whether to
sign an extradition warrant or whether to impose conditions
on an extradition." Letter Brief of the U.S. Attorney dated
February 10, 1998, originally submitted in connection with In
the Matter of the Extradition of Chee Fan Chen, No. 97-
15609. The Secretary may place conditions on the extradition
of an individual, or may determine that the individual should
not be turned over at all. Id.

Recent regulations promulgated after Congress passed leg-
islation to implement the Torture Convention, discussed
below, appear to be the only regulations governing the Secre-
tary's extradition decisions. Before the implementing regula-
tions were adopted, we held that no judicial review of the
Secretary's decision was available. See Lopez-Smith v. Hood,
121 F.3d 1322, 1326 (9th Cir. 1997) (noting that the Secre-
tary's final decision concerning whether to extradite "is a
matter exclusively within the discretion of the executive
branch and not subject to judicial review.").

B. The Torture Convention

[2] The United Nations Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment

                               7757


was drafted by the United Nations in an effort to "make effec-
tive the struggle against torture and other cruel, inhuman or
degrading treatment or punishment throughout the world."
Preamble, Torture Convention. The Convention defines tor-
ture as follows:

      any act by which severe pain or suffering, whether
      physical or mental, is intentionally inflicted on a per-
      son for such purposes as obtaining from him or a
      third person information or a confession, punishing
      him for an act he or a third person has committed or
      is suspected of having committed, or intimidating or
      coercing him or a third person, or for any reason
      based on discrimination of any kind, when such pain
      or suffering is inflicted by or at the instigation of or
      with the consent or acquiescence of a public official
      or other person acting in an official capacity.

Art. 1(1). The Convention includes provisions aimed at pre-
venting torture, prosecuting torturers, and compensating vic-
tims of torture. Most relevant here, Article 3 prohibits
ratifying states from returning or extraditing individuals who
are likely to face torture. Regarding return or extradition, the
Convention provides:

      Article 3

      1. 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.

      2. For the purpose of determining whether there are
      such grounds, the competent authorities shall take
      into account all relevant considerations including,
      where applicable, the existence in the State con-
      cerned of a consistent pattern of gross, flagrant or
      mass violations of human rights.

                               7758


The Convention was adopted by the United Nations General
Assembly on December 10, 1984 and has been ratified by 119
nations, including the United States and Mexico. See U.N.
High Commissioner for Human Rights, Status of Ratifications
of the Principal International Human Rights Treaties  (May
15, 2000). The U.S. became a full state party to the Conven-
tion in November 1994. See U.N. Doc. 571 Leg. SER. E/
13.IV.9 (1995).

C Statutory and Regulatory Scheme Implementing Article 3

[3] In 1998, Congress passed legislation implementing
Article 3 of the Torture Convention as part of the Foreign
Affairs Reform and Restructuring Act ("FARR Act") of 1998.
See Foreign Affairs Reform and Restructuring Act, Pub.L.
No. 105-277, S 2242, 1999 U.S.C.C.A.N. (112 Stat. 2681) 871.6
This implementing legislation 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 . . . . " FARR Act,
S 2242(a). The FARR Act requires that treaty implementation
_________________________________________________________________
6 Because Congress passed legislation implementing Article 3 of the
Torture Convention in the extradition context, we need not reach the issue
of whether that provision of the treaty is self-executing. For this reason,
our case is clearly distinguishable from In re Extradition of Cheung, 968
F. Supp. 791 (D. Conn. 1997), a case decided before the FARR Act.
There, the district court for the District of Connecticut held that a fugitive
facing extradition to Hong Kong could not rely on the Torture Convention
as a defense. Id. at 803 n. 17.

For a discussion of self-executing and non-self-executing treaties, see
Jordan J. Paust, Self-Executing Treaties, 82 Am. J. Int'l L. 760 (1988);
Charles H. Dearborn III, The Domestic Legal Effect of Declarations that
Treaty Provisions are Not Self-Executing, 57 Tex. L. Rev. 233 (1979);
John Quigley, The International Covenant on Civil and Political Rights
and the Supremacy Clause, 42 DePaul L. Rev. 1287 (1993); and Stefan
A. Reisenfeld and Frederick M. Abbott, The Scope of U.S. Senate Control
Over the Conclusion and Operation of Treaties, 67 Chi.-Kent L. Rev. 571
(1991); RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW S 111 (1986)
             .

                               7759


be carried out by "the appropriate agencies," in this case the
Department of State, whose heads are directed to "prescribe
regulations to implement the obligations of the United States
under Article 3" of the Torture Convention. FARR Act,
S 2242(b).

Following the passage of the statute, regulations were
adopted by the Department of State to implement its provi-
sions (and thereby, Article 3 of the Torture Convention) in the
extradition context. These regulations set out a procedure for
the Secretary of State to identify individuals who qualify for
relief under the Torture Convention. They state, in relevant
part:

      S 95.2 Application

      (b) Pursuant to sections 3184 and 3186 of Title 18 of
      the United States Criminal Code, the Secretary is the
      U.S. official responsible for determining whether to
      surrender a fugitive to a foreign country by means of
      extradition. In order to implement the obligation
      assumed by the United States pursuant to Article 3
      of the Convention, 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 extradition when appropriate in
      making this determination.

      S 95.3 Procedures.

      (a) Decisions on extradition are presented to the Sec-
      retary only after a fugitive has been found extradit-
      able by a United States judicial officer. In each case
      where allegations relating to torture are made or the
      issue is otherwise brought to the Department's atten-
      tion, appropriate policy and legal offices review and
      analyze information relevant to the case in preparing

                               7760


      a recommendation to the Secretary as to whether or
      not to sign the surrender warrant.

      (b) Based on the resulting analysis of relevant infor-
      mation, the 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.

22 C.F.R. SS 95.2 - 95.3 (2000).

D. Judicial Review of the Secretary's Decisions

[4] The "Review and Construction " section of the FARR
Act makes clear Congress' intention that the agencies -- in
the extradition context the Department of State -- are to have
the initial responsibility for implementing Article 3 of the
Torture Convention in the United States. Toward this end, the
statute directs the Secretary of State to implement the obliga-
tions of the United States to enforce the treaty. FARR Act,
S2242(b). The Secretary of State has a statutory duty to carry
out the dictates of Article 3, using her discretion to promul-
gate regulations in the manner she determines to be most
effective. In other words, the Secretary may ascertain how
best to ensure that the United States does not extradite an oth-
erwise extraditable individual when "there are substantial
grounds for believing the person would be in danger of being
subjected to torture . . . ." FARR Act, S 2242(a).

The government argues that we should decline to review
the Secretary of State's decisions, noting that a provision of
the Department of State's regulations implementing the
FARR Act provides that "[d]ecisions of the Secretary con-
cerning surrender of fugitives for extradition are matters of
executive discretion not subject to judicial review. " 22 C.F.R.
S 95.4. We disagree. As we demonstrate below, the underly-
ing statute, as well as the background rules of administrative
law and habeas jurisdiction, require the opposite conclusion.

                               7761


III.

A. Review Under the Administrative Procedure Act 

[5] The Administrative Procedure Act ("APA"), 5 U.S.C.
SS 551-559, 701-706 (2000), governs decision-making by
most federal agencies. See 1 KENNETH CULP DAVIS & RICHARD
J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE S 1.1 (3d ed.
1994). Its provisions "provide[ ] the statutory structure upon
which federal administrative law is built." Id. Central to the
administrative scheme is the APA's guarantee of judicial
review by federal courts of "final agency action for which
there is no other adequate remedy in a court." 5 U.S.C. S 704
(2000). The definition of "agency" for APA review purposes
comprises "each authority of the Government of the United
States, whether or not it is within or subject to review by
another agency," except a number of specified authorities,
including Congress, the courts, territorial and district govern-
ments, military agencies in the time of war, and political party
agencies. 5 U.S.C. S 701(b) (2000). Agencies that do not fall
within the APA's exceptions are covered by its review provi-
sions.7

[6] The final actions of a covered agency are reviewable
"except to the extent that - (1) statutes preclude judicial
review; or (2) agency action is committed to agency discre-
tion by law." 5 U.S.C. S 701(a) (2000). In this case, we must
therefore determine (1) whether S 2242(b) of the FARR Act
expressly precludes review of the Secretary of State's deci-
_________________________________________________________________
7 For a sample of the broad set of agencies whose actions we have deter-
mined to be covered by the APA, see, e.g., Guerrero v. P.W. Stone, 970
F.2d 626, 628 (9th Cir. 1992) (actions of Army Board for Correction of
Military Records reviewable under APA), Oregon Natural Resources
Council v. U.S. Forest Service, 834 F.2d 842, 851-52 (9th Cir. 1987)
(actions of U.S. Forest Service in context of Clean Water Act standards
reviewable under APA), and Glacier Park Found. v. Watt, 663 F.2d 882,
885-86 (9th Cir. 1981) (actions of National Park Service in awarding con-
cessions contract reviewable under APA).

                               7762


sion in an Article 3 challenge to extradition, and (2) whether
the Secretary's determinations under the FARR Act were
made discretionary by Congress.

[7] The FARR Act does not preclude judicial review of the
Secretary's implementation of the Torture Convention,
although it may limit judicial review of the regulations she
promulgates. See FARR Act S 2242(d) ("[n]otwithstanding
any other provision of law, and except as provided in the reg-
ulations [promulgated by the Secretary], no court shall have
jurisdiction to review the regulations adopted to implement
this section . . ." ) This statement appears to preclude a facial
challenge to the extradition procedures set out in the Depart-
ment of State's regulations. We need not address the provi-
sion's validity, however, because this case does not concern
a challenge to the regulations. It is instead a challenge to the
way the statute is being implemented in this case. See DAVIS
& PIERCE, supra, Vol. 2 atSS 15.1, 15.14 (noting that chal-
lenges to agency rules and regulations are distinct from peti-
tions for review of final agency actions).8

[8] Having determined that review of the Secretary of
State's decisions regarding extradition of a fugitive who
claims he will be tortured if returned are not precluded by
statute, we must determine whether these decisions constitute
"agency action . . . committed to agency discretion by law."
_________________________________________________________________
8 This is not a distinction without a difference. The Supreme Court, in
Abbott Laboratories, Inc. v. Gardner, 387 U.S. 136, 148-49 (1967), over-
ruled on other grounds by Califano v. Sanders, 430 U.S. 99 (1977), set out
a two-step analytical framework for determining whether pre-enforcement
review of an agency's regulations was available. This rule is distinct from
the standards governing APA review of final agency actions. See 2
KENNETH CULP DAVIS & RICHARD J. PIERCE, JR., ADMINISTRATIVE
              LAW
TREATISE SS 15.1, 15.14 (3d ed. 1994). See also Assiniboine and Sioux
Tribes v. Board of Oil and Gas Conservation, 792 F.2d 782, 789 (9th Cir.
1986) ("We look to the standards set forth in Abbott Laboratories for chal-
lenges to administrative actions that have been promulgated but not yet
enforced to determine" whether review is available.)

                               7763


5 U.S.C. S 701(a)(2) (2000). If so, APA review is not avail-
able. 5 U.S.C. S 701(a)(2) (2000). The Supreme Court has
explained that S 701(a)(2) precludes review only "if the stat-
ute is drawn so that a court would have no meaningful stan-
dard against which to judge the agency's exercise of
discretion." Heckler v. Chaney, 470 U.S. 821, 830 (1985). We
recently applied this standard to find that our court had juris-
diction to review the Board of Immigration Appeals' ("BIA")
decision not to reopen an alien's case. In Socop-Gonzalez v.
INS, 208 F.3d 838, 842-846 (9th Cir. 2000), we held that even
though the agency was given discretion to decide the circum-
stances in which it would reopen a case, such discretion did
not shield the BIA's action from review, since the agency
itself had established a standard for reopening.

[9] Under the FARR Act, the agencies are given a manda-
tory duty to implement Article 3 of the Torture Convention,
under which the United States shall not "expel, return (`re-
fouler') 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." Torture Convention, Article 3.
In the extradition context, this means that the Secretary of
State may not surrender any fugitive who is likely to face tor-
ture upon return. The FARR Act imposes a clear and non-
discretionary duty: the agencies responsible for carrying out
expulsion, extradition, and other involuntary returns, must
ensure that those subject to their actions may not be returned
if they are likely to face torture. A reviewing court would
have a clear standard against which to measure the Secre-
tary's actions under the Heckler rule. See Heckler, 470 U.S.
at 830.

Although the statute imposes a mandatory duty on the Sec-
retary to implement the FARR Act, the regulations promul-
gated by the Department of State indicate that the Secretary's
duty is discretionary. See 22 C.F.R. S 95.4 (2000) ("Decisions
of the Secretary concerning surrender of fugitives for extradi-
tion are matters of executive discretion not subject to judicial

                               7764


review.") We generally defer to an agency's construction of
the statute it administers. See Chevron v. Natural Resources
Defense Council, 467 U.S. 837, 842-43 (1984). We are
required, however, to reject those interpretations that are con-
trary to Congressional intent. See id. at 843 n. 9 ("The judi-
ciary is the final authority on issues of statutory construction
and must reject administrative constructions which are con-
trary to clear congressional intent.") We therefore reject the
argument, advanced by the government, that these regulations
preclude judicial review of the Secretary's extradition deci-
sions.

Congress indicated its preference for agency enforcement
of the U.S. obligations under the Torture Convention in the
FARR Act. This scheme is consistent with Article 3 of the
Torture Convention, which states that "the competent authori-
ties" are required to ensure that extraditees are not returned if
there "are substantial grounds for believing" that the fugitive
"would be in danger of being subjected to torture." What
would be contrary to both the statute and the Convention, is
a finding that the Secretary's decisions are wholly discretion-
ary. Article 3 is written in mandatory, not precatory language:
"[n]o State Party shall . . . extradite" a person likely to face
torture.9 See, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 441
(1987) (discussing the difference between precatory and man-
datory treaty language). The FARR Act is similarly forceful:
U.S. agencies are directed to "implement the obligations of
the United States under Article 3" of the Torture Convention.
FARR Act, S 2242(b). As a principle of statutory construc-
tion, "we generally construe Congressional legislation to
_________________________________________________________________
9 The mandatory nature of Article 3 is even more clear when compared
to the language of other provisions in the Torture Convention, which pro-
vide more general obligations. Article 14, for example, states:

      Each State Party shall ensure in its legal system that the victim
      of an act of torture obtains redress and has an enforceable right
      to fair and adequate compensation, including the means for as
      full rehabilitation as possible . . . .

                               7765


avoid violating international law." Ma v. Reno, No. 99-35976,
slip op. at 3985 (9th Cir. April 10, 2000) (citing Weinberger
v. Rossi, 456 U.S. 25, 32 (1982) and discussing Murray v. The
Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 117-118
(1804)). In this case, the most straightforward construction is
perfectly consistent with international law.

[10] Finding that the Secretary's duty to implement the
FARR Act is non-discretionary and that the statute does not
preclude review, we hold that a fugitive fearing torture may
petition for review of the Secretary's decision to surrender him.10
Courts reviewing such petitions will be required to set aside
the Secretary's extradition decisions if they are found to be
"arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law." 5 U.S.C. S 706(2)(a) (2000).
_________________________________________________________________
10 In holding that the Secretary's decisions are subject to judicial review
under the APA, we do not disagree with the Fifth Circuit's statement that
"the APA may not apply to extradition hearings. " Wacker v. Bisson, 348
F.2d 602, 608 (5th Cir. 1965). There, the court was examining whether it
could review a magistrate's extradition decision under the APA. The Fifth
Circuit correctly explained that the courts are not "agencies"; therefore the
actions of a magistrate are not reviewable as final agency action. Further,
we agree with the Second Circuit's holding that the APA may not be
invoked by the United States to obtain review of a magistrate's decision
to deny the certification of a fugitive as extraditable. See United States v.
Doherty, 786 F.2d 491, 502 (2d Cir. 1986). In Doherty, Judge Friendly
reasoned that review was not possible because (1) the magistrate's actions
are not "final" within the meaning of the APA, since the government
could bring a new extradition request to a different magistrate; and (2)
"the variety of officers mentioned in [the extradition statute] - a Supreme
Court justice, United States circuit and district judges, a duly authorized
United States magistrate, or a judge of a state court of general jurisdiction
- cannot individually or as a group reasonably be deemed to constitute an
`agency' " under the APA. Id. See also LoBue v. Christopher, 82 F.3d
1081, 1083-84 (D.C. Cir. 1996) (APA may not be invoked to review an
extradition order).

                               7766


B. Form of Review

Section 2242(b) of the FARR Act does not provide a new
grant of jurisdiction to the federal courts for claims arising
under Article 3 of the Torture Convention. The subsection
states:

      [N]othing in this section shall be construed as pro-
      viding 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 pursuant to section 242 of the Immigration
      and Nationality Act (8 U.S.C. 1252).

FARR Act, S 2242(b). This provision prohibits courts from
reading an implied cause of action into the statute. 11 Of
course, we can look to existing jurisdictional statutes to enter-
tain a petition for review under the APA.

[11] The APA is not an independent grant of jurisdiction.
See Califano v. Sanders, 430 U.S. 99, 105 (1977). APA
claims that do not arise under specially-constructed statutory
review provisions must be brought pursuant to other federal
statutes granting subject-matter jurisdiction. APA claims are
therefore brought in many forms, including declaratory judg-
ment actions, mandamus petitions, and habeas corpus peti-
tions. See 5 U.S.C. S 703 (2000). The APA provides that:

      The form of proceeding for judicial review is the
_________________________________________________________________
11 An example of such an implied right of action would be a Bivens-like
claim against a U.S. official involved in the extradition of an individual
who is likely to face torture upon return to the requesting country. See
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,
403 U.S. 388 (1971) (finding an implied cause of action for damages
based on deprivation of constitutional rights by federal agents).

                               7767


      special statutory review proceeding relevant to the
      subject matter in a court specified by statute or, in
      the absence or inadequacy thereof, any applicable
      form of legal action, including actions for declara-
      tory judgments or writs of prohibitory or mandatory
      injunction or habeas corpus, in a court of competent
      jurisdiction.

5 U.S.C. S 703 (2000). Since there is no statutory review pro-
vision applicable to FARR claims, and since potential extra-
ditees meet the other requirements for habeas standing under
28 U.S.C. S 2241 (2000), a habeas petition 12 is the most
appropriate form of action for fugitives seeking review of the
Secretary's extradition decisions.13
_________________________________________________________________
12 We have noted that a federal prisoner may use the habeas corpus form
of action to seek APA review of a parole board's actions. See Tedder v.
United States Board of Parole, 527 F.2d 593, 594 n. 1 (9th Cir. 1975); see
also Brown v. Lundgren, 528 F.2d 1050, 1053-54. (5th Cir. 1976) (allow-
ing a prisoner to challenge a parole board decision using APA standards
as a habeas corpus petition). Congress later passed legislation explicitly
exempting from judicial review substantive decisions to grant or deny
parole. See Wallace v. Christensen, 802 F.2d 1539, 1544-45 (9th Cir.
1986). However, the procedural holding of Tedder  relevant here remains
good law: habeas corpus is an appropriate form of action under the APA.
13 The FARR Act of 1998 did not limit habeas corpus review. Courts
may not repeal habeas jurisdiction by implication. See Felker v. Turpin,
518 U.S. 651, 660-61 (1996), Ex parte Yerger, 75 U.S. (8 Wall.) 85, 105
(1869). Any limitation of federal habeas corpus must be "by express com-
mand." See Magana-Pizano v. INS, 200 F.3d 603, 609 (9th Cir. 1999)
(habeas jurisdiction under 28 U.S.C. S 2241 not repealed by IIRIRA's
transitional rules), Flores-Miramontes v. INS , No. 98-70924, slip op. at
5079-5083 (9th Cir. May 9, 2000) (same for IIRIRA's permanent provi-
sions). In Magana-Pizano, we held that Congress did not repeal habeas
jurisdiction under 28 U.S.C. S 2241 when it passed the Illegal Immigration
Reform and Immigrant Responsibility Act (IIRIRA), because the provi-
sion eliminating review of certain actions by the Attorney General did not
specifically eliminate habeas jurisdiction. Similarly, here there is no men-
tion of habeas corpus review. Indeed, as explained above, the statute does
not purport to limit any preexisting jurisdictional or review provisions.

                               7768


C. Timing of Review

[12] The APA provides for review only of final agency
action. See 5 U.S.C. S 704 ("Agency action made reviewable
by statute and final agency action for which there is no other
adequate remedy in a court are subject to judicial review.")
An APA challenge to the Secretary's extradition decision is
therefore ripe for review only after the Secretary has decided
to surrender a fugitive who alleges he is likely to face torture.
Until that time, there is no final agency action cognizable
under APA S 704. Since there has been no final agency
action, we do not reach the merits of Cornejo-Barreto's claim.

CONCLUSION

The individual's right to be free from torture is an interna-
tional standard of the highest order. Indeed, it is a jus cogens
norm14 : the prohibition against torture may never be abro-
gated or derogated.15 We must therefore construe Congressio-
_________________________________________________________________
14 The Vienna Convention on the Law of Treaties defines a jus cogens
norm as "a norm accepted and recognized by the international community
of states as a whole as a norm from which no derogation is permitted and
which can be modified only by a subsequent norm of general international
law having the same character." United Nations Vienna Convention on the
Law of Treaties, Art. 53, May 3, 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679.
15 The Restatement of Foreign Relations Law explains that freedom
from torture is a jus cogens norm. RESTATEMENT (THIRD) OF FOREIGN
RELATIONS LAW S 702 (1986). Federal courts, including our court, have
long recognized the binding nature of the right to be free from torture. See
Filartiga v. Pena-Irala, 630 F.2d 876, 885 (2d Cir. 1980) (right to be free
from torture is a "fundamental right"); Trajano v. Marcos, 978 F.2d 493,
499 (9th Cir. 1992) (death from torture contrary to law of nations), cert.
denied by Marcos-Manotoc v. Traj, 508 U.S. 972 (1993), and on appeal
after remand sub nom., In re Estate of Ferdinand Marcos, Human Rights
Litigation, 25 F.3d 1467, 1475 (9th Cir. 1994) (prohibition of torture is jus
cogens norm); and Kadic v. Karadzic, 70 F.3d 232, 243 (2d Cir. 1996)
(official torture prohibited by international human rights and humanitarian
norms). See also John Dugard & Christine Van Den Wyngaert, Reconcil-
ing Extradition with Human Rights, 92 Am. J. Int'l L. 187, 198 (1998) ("If

                               7769


nal enactments consistent with this prohibition. In the
extradition context, the approach we describe here allows us
to give full effect to Congressional legislation without creat-
ing a conflict between domestic and international law. We
recognize that Congress intended the Secretary of State to act
as the "competent authority" charged with enforcing Article
3 of the Convention. We also recognize that Congress did not
limit judicial review of the Secretary's decisions under long-
standing APA procedures. An extraditee ordered extradited by
the Secretary of State who fears torture upon surrender, there-
fore, may state a claim cognizable under the APA that the
Secretary of State has breached her duty, imposed by the
FARR Act, to implement Article 3 of the Torture Convention.
Such a claim, brought in a petition for habeas corpus,
becomes ripe as soon as the Secretary of State determines that
the fugitive is to be surrendered to the requesting government.

We may not reach the merits of Cornejo-Barreto's claim at
this time. Habeas corpus review is available only when no
other relief is available.

We therefore AFFIRM the district court's denial of the
petition for habeas corpus but direct that it should be without
prejudice to the filing of a new petition should the Secretary
of State decide to surrender Cornejo-Barreto.

_________________________________________________________________

KOZINSKI, Circuit Judge, concurring:

I do not join Section III of the opinion, because the ques-
tion of whether petitioner would be entitled to judicial review
_________________________________________________________________
any human rights norm enjoys the status of jus cogens, it is the prohibition
on torture. Consequently, no requested state should have difficulty in justi-
fying a refusal to extradite a person to a state in which he is likely to be
subjected to torture-a course approved by the 1984 Convention against
Torture . . ." ).

                               7770


of an extradition decision by the Secretary of State is not
before us. I would hold only that the district court does not
have jurisdiction to review petitioner's claim under the Tor-
ture Convention, because the FARR Act does not authorize
judicial enforcement of the Convention, see Sandhu v. Burke,
No. 97-Civ. 4608, 2000 WL 191707, at *9 (S.D.N.Y. Feb. 10,
2000), and the Convention is not self-executing under the
four-part test of Saipan v. United States Dep't of Interior, 502
F.2d 90, 97 (9th Cir. 1974). See Barapind v. Reno, 72 F.
Supp.2d 1132, 1148-49 (E.D. Cal. 1999); see also Sandhu,
2000 WL 191707, at *10.

                               7771



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