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NEWS

July 30, 2012
In Divided En Banc Decision, U.S. Court of Appeals for Ninth Circuit Cites Two Law Review Articles By Litigation Partner Jacques Semmelman

 

In a divided en banc decision, judges of the United States Court of Appeals for the Ninth Circuit have cited two law review articles by litigation partner Jacques Semmelman.

The issue in Garcia v. Thomas, 683 F.3d 952 (9th Cir. 2012), was whether a federal court has jurisdiction to decide a habeas corpus petition, filed by a defendant facing extradition, where the basis for the petition is the lack of a certification by the Secretary of State that it was not "more likely than not" that the defendant would face torture in the requesting country following extradition.  Such a determination is mandated by the Foreign Affairs Reform and Restructuring Act of 1998 ("FARRA"), which implements the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment.  At issue in Garcia was the role courts may play in enforcing the Secretary of State's obligation under FARRA.

In a per curiam decision, the en banc majority held that a federal court has jurisdiction over such a habeas corpus petition, but only to ascertain whether the Secretary of State (or a suitable designee) has made the requisite determination.  The majority held that a court may not review the substance of the Secretary of State's determination. The majority based its ruling on the separation of powers and on the longstanding "rule of non-inquiry," which provides that an individual facing extradition from the U.S. to another country cannot challenge extradition in court based on the anticipated treatment he or she will face following extradition.  Only the Secretary of State may consider such anticipated treatment in deciding whether to extradite.

Twelve years earlier, in Cornejo-Barreto v. Seifert, 218 F.3d 1004 (9th Cir. 2000), the Ninth Circuit had ruled that a federal court has jurisdiction to review the substance of the Secretary of State's determination regarding likelihood of torture.  At the time, Mr. Semmelman had published a case comment in the American Journal of International Law, concluding that the Ninth Circuit's ruling was "subject to serious criticism" and that "[o]ther courts are not likely to follow it."  International Decisions: Cornejo-Barreto v. Seifert, 95 Am. J. Int'l L. 435, 438  (2001).  In Garcia, the majority acknowledged the error in Cornejo-Barreto, stating that "[t]o the extent we have previously 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."  Writing separately, Chief Judge Alex Kozinski stated that the court "rightly overrules Cornejo-Barreto," and cited Mr. Semmelman's case comment in support.

Judge Marsha Berzon (dissenting in relevant part), joined by Judge William Fletcher, would have allowed the court to review the substance of the Secretary of State's determination and to assess the sufficiency of the evidence supporting that determination.

Chief Judge Kozinski and Judge Berzon each cited a second law review article written by Mr. Semmelman, Federal Courts, the Constitution, and the Rule of Non-Inquiry in International Extradition Proceedings, 76 Cornell L. Rev. 1198 (1991), which sets out the historical development and doctrinal underpinnings of the rule of non-inquiry.  Both sides of the diametrically divided en banc panel said they had found support in Mr. Semmelman's article.  Judge Berzon emphasized the judge-made nature of the rule, and argued that courts have the power to modify it.  Chief Judge Kozinski focused on the narrow scope of habeas corpus review in extradition cases, which has never included an evaluation of anticipated mistreatment in the requesting country.

Mr. Semmelman is recognized nationally and internationally as a leading scholar and practitioner in the area of international extradition.  His law review articles have been cited by numerous courts and commentators, and he has testified as an expert witness on U.S. extradition law and procedure.

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