In international extradition matter, Third Circuit affirms denial of habeas corpus petition which argued invalidity of treaty and risk of torture or death and defers to Secretary of State for final decision on extradition order sought by Albanian Government
In response to an Albanian request, the U.S. government filed for the extradition of Krenar Hoxha (Petitioner). Although born in Albania, Petitioner became a naturalized American citizen in 2002. Albania sought his extradition to stand trial for the alleged 1996 murders of three Albanian citizens.
In making its case for extradition, the Albanian government introduced a number of documents and put on testimony that tended to link Petitioner to the crimes. An Albanian court has already tried and convicted Petitioner in absentia. Petitioner has challenged his conviction on Albanian constitutional grounds and the case is on hold awaiting his surrender.
In February of 2005, a federal Magistrate Judge in Pennsylvania ruled that the evidence provided by the Albanian government sufficed to show probable cause. The judge then issued a Certificate of Extraditability and Order of Commitment, placing Petitioner in the custody of the U.S. Marshal to await a final disposition by the Department of State.
Petitioner sought habeas corpus in a Pennsylvania federal court, challenging the legality of his extradition to Albania. The District Court denied habeas relief on the ground that probable cause did exist, and "that the extradition treaty between the United States and Albania was in full force and effect and that Petitioner's humanitarian claims could be considered only by the secretary of state." [Slip op. 30].
On appeal, Petitioner raised the following issues: (1) that the Magistrate Judge erroneously withheld testimony of recanting witnesses; (2) that the extradition treaty between Albania and the U.S. is no longer in force; and (3) that he will likely face torture and possible death upon his return to Albania. The U.S. Court of Appeals for the Third Circuit, however, affirms.
The Court first notes that extradition is the principal domain of the Executive Branch. "Extradition is an executive rather than a judicial function. Sidali v. INS, 107 F.3d 191, 194 (3d Cir. 1997). For this reason, a court may conduct only a limited inquiry following a complaint seeking extradition." [Slip op. 32]. The habeas court examines an extradition request to find probable cause. Upon such a finding it issues an extradition order which it transmits to the Secretary of State for her final decision on whether or not to surrender the Petitioner to the requesting State.
A Petitioner may not file a direct appeal of a court's extradition order "because the order does not constitute a final decision under 28 U.S.C. Section 1291, but [he] may petition for a writ of habeas corpus. The habeas court may consider only "whether the magistrate [judge] had jurisdiction, whether the offense charged is within the treaty and whether there was any evidence warranting a finding of probable cause.'" [Slip op. 33]. First, the court briefly reviews the facts and holds that there are no reasons to disturb the district court's finding of probable cause.
The Court then analyzes Petitioner's claim that the extradition treaty between the U.S. and Albania is no longer valid for "a petitioner facing extradition has standing to challenge the validity of the applicable extradition treaty." [Slip op. 41].
Petitioner argued that the original 1933 extradition treaty between the Kingdom of Albania and the U.S. became invalid in 1944 when the successor government denounced all treaties entered into by the Kingdom of Albania.
"Whether a treaty remains valid following a change in the status of one of the signatories is a political question, and we therefore defer to the views of each nation's executive branch." [Slip op. 42]. After reviewing the record and the evidence presented by representatives of Albania and the U.S., that supported the validity of the present treaty, the Third Circuit spurns Petitioner's challenge.
Lastly, the court determines whether Petitioner's humanitarian claims warrant habeas relief. "Under the traditional doctrine of "non-inquiry,' such humanitarian considerations are within the purview of the executive branch and generally should not be addressed by the courts in deciding whether a petitioner is extraditable. ...The non-inquiry principle serves interests of international comity by relegating to political actors the sensitive foreign policy judgments that are often involved in the question of whether to refuse an extradition request." [Slip op.45 & 46].
"Petitioner nonetheless argues that his humanitarian arguments are relevant under Section 2422 of the Foreign Affairs Reform and Restructuring Act (FARR), Pub. L. No. 105-277, 112 Stat. 2681-822 (1998) (codified as Note to 8 U.S.C. Section 1231), which implemented Article 3 of the 1984 U. N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [in force for U.S. Nov. 20, 1994] (the "Torture Convention')." [Slip op. 47]
Although the court recognizes the basic principle that the U.S. should not grant extradition requests to countries which may violate the Torture Convention, the Courts have to leave such decisions to the discretion of the Department of State. FARR further provides that "nothing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under the [Torture] 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" [Slip op. 50].
Petitioner also sought judicial review of the Secretary of State's enforcement of this FARR provision under the Administrative Procedure Act (APA), 5 U.S.C. Sections 701-706 (2000). The present Court rules, however, that it lacks appellate jurisdiction over such enforcement until the Secretary of State has taken final action. Since the Secretary of State has not yet taken any action on Petitioner's extradition, his claim is not yet ripe.
Citation: Hoxha v. Levi, 2006 WL 2806824 (3d Cir. October 3, 2006).
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