Hoxha v. Levi

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit

10-3-2006

Hoxha v. Levi
Precedential or Non-Precedential: Precedential

Docket No. 05-3149

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 PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 05-3149

KRENAR HOXHA,

Appellant,

v.

TROY LEVI, WARDEN OF
PHILADELPHIA FEDERAL DETENTION CENTER

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 05-cv-01211)
District Judge: Honorable Berle M. Schiller

Argued June 1, 2006

Before: AMBRO, FUENTES, and GREENBERG, Circuit
Judges.

(Filed: October 3, 2006)

Thomas P. Pfender (ARGUED)
7137 Torresdale Avenue
Philadelphia, PA 19135

ATTORNEY FOR APPELLANT
Paul Mansfield
Assistant United States Attorney
Robert A. Zauzmer
Assistant United States Attorney
Chief of Appeals
Patrick L. Meehan
United States Attorney
Office of the United States Attorney
615 Chestnut Street
Philadelphia, PA 19106

Douglas N. Letter (ARGUED)
United States Department of Justice
Civil Division
950 Pennsylvania Avenue, N.W.
Room 7513
Washington, DC 20530

ATTORNEYS FOR APPELLEE

OPINION OF THE COURT

FUENTES, Circuit Judge.

The Republic of Albania seeks extradition of Krenar
Hoxha for the murders of three Albania citizens that took place
in Albania in 1996. Following a finding by a Magistrate Judge
that he was extraditable, Hoxha filed a petition for habeas corpus
that was denied by the District Court. On appeal, Hoxha argues
that he is entitled to habeas relief because (1) the Magistrate
Judge should have allowed testimony at the extradition hearing
by recanting witnesses, (2) the extradition treaty between
Albania and the United States is invalid, and (3) he should not be
returned to Albania because he will face torture and possible
death there. We conclude that Hoxha’s claims do not justify a
grant of his habeas petition, and we therefore affirm the
judgment of the District Court.

2
 I. BACKGROUND

Krenar Hoxha (“Petitioner”) was born in Albania in 1970
and became a naturalized United States citizen in January 2002.1
Pursuant to an extradition treaty between Albania and the United
States, the Albanian government seeks Petitioner’s extradition
for trial on the murders of Ilmi and Roza Kasemi and their son
Eltion Kasemi.

Matilda Kasemi, the Kasemis’ ten year-old daughter,
described the murders in a statement to the police made shortly
after the murders occurred. She stated that at about 2 a.m. on
September 27, 1996, a man wearing all black, whom Matilda did
not recognize, entered the room in which Matilda, her brother,
and her parents were sleeping. When Roza Kasemi asked the
intruder’s name, he immediately shot her without responding. He
then shot both Ilmi and Eltion Kasemi, but left without noticing
Matilda. Matilda stated that she would recognize the killer if she
saw him again.

A. The Case Against Petitioner

The Republic of Albania alleges that in the mid-1970s,
decedent Ilmi Kasemi was romantically involved with Mimoza
Hoxha, Petitioner’s sister, but the two were forbidden from
marrying by Petitioner’s parents. A declaration from Ilmi

1
At the detention hearing before the Magistrate Judge and
in his petition for habeas corpus, Petitioner stated that he initially
entered the United States in June 1996. At oral argument,
however, Petitioner’s counsel stated that Petitioner came to the
United States in 1995. This discrepancy is not relevant to our
decision here. Petitioner’s counsel also stated at oral argument
that Petitioner was in Albania at the time of the murders because
he had to attend a wedding.

3
Kasemi’s brother, Murat Kasemi, supports this assertion.2 Both
Ilmi Kasemi and Mimoza Hoxha married others and raised
families but, according to the Albanian government, the two
renewed an extramarital relationship of which Petitioner strongly
disapproved. The Albanian government alleges that Petitioner’s
anger at Ilmi Kazemi was the motive for the murders, but
provided no documentary evidence of a continuing relationship
between Kasemi and Mimoza Hoxha.3 The Albanian government
did, however, submit evidence of animosity between Petitioner
and Ilmi Kasemi. Specifically, Rahman Sheqeri, a friend and
former co-worker of Kasemi, stated in a declaration that on the
evening of September 12, 1996, fifteen days before the murders,
he saw Petitioner standing with another man about fifty meters
from the Kasemi house, holding a gun. Petitioner looked very
agitated and, when he saw Sheqeri, told him to go away. Sheqeri
reported this incident to Ilmi Kasemi, and Kasemi told Sheqeri
that he was sure that Petitioner had been looking for Kasemi that
evening. Kasemi also told Sheqeri that Petitioner had assaulted
Kasemi on an earlier occasion.

The Albanian government submitted three declarations—
from Daut Hoxha, a cousin of Petitioner, and from Daut Hoxha’s
wife and sister—containing testimony that both parties agree has
now been recanted. In his recanted declaration, Daut Hoxha
stated that on the night of the murders, Petitioner came to Daut
Hoxha’s house carrying an automatic weapon inside a plastic
bag.4 Petitioner left the gun in the bag at Daut Hoxha’s house,

2
Unless otherwise indicated, declarations described here
were submitted to the Magistrate Judge by the Republic of
Albania in support of extradition.
3
Petitioner states that Mimoza Hoxha is prepared to
testify that she did not have an ongoing extramarital affair with
Ilmi Kasemi.
4
All of the witness statements submitted by the Albanian
government are dated less than a week after the murders.
Petitioner asserts, however, that at least some of the statements
were made later. He states, for example, that Daut Hoxha was
imprisoned for almost two months and beaten severely before he

4
and then returned for it at about 5 a.m., intending to throw it in
the river. Instead, Daut Hoxha and Petitioner went to the home
of Fetah Hoxha, a relative, where Daut Hoxha hid the gun in a
sofa. Based on this testimony from Daut Hoxha, the Albanian
police searched Fetah Hoxha’s home two days after the murders
and found a gun in a blue bag hidden in a sofa. A ballistics
examination demonstrated that the gun was the weapon used in
the murders.

Daut Hoxha’s wife, Bajame Hoxha, stated in her recanted
declaration that sometime after midnight on the night of the
murders, Petitioner knocked on the door of their home and Daut
Hoxha let him in. Bajame Hoxha did not hear what was said, but
noted that Petitioner did not stay long. In the morning, at about 7
a.m., Bajame Hoxha saw Petitioner in the house again, and she
also saw a large empty black plastic bag in a corner of the house.
At about 8 a.m., Bajame Hoxha woke up her husband, and he
went to work.

Daut Hoxha’s sister, Ardjana Hoxha, who lived with her
brother at the time of the murders, stated in her recanted
declaration that at about 6:30 a.m. on the morning after the
murders, she heard her brother asking Petitioner “what did you
do?” and heard Petitioner answering “nothing, nothing, you will
learn later.”

In a declaration that has not been recanted, Fetah Hoxha
stated that Daut Hoxha generally “comes in my house as in his
house,” and that he came to Fetah Hoxha’s house at 7 a.m. on
the morning after the murders.5 Fetah Hoxha stated that he did
not notice what Daut Hoxha did in the house that day, but that he
did not stay long.

made his statement.
5
The translation of Fetah Hoxha’s affidavit states that
Daut Hoxha arrived at his house at 7 p.m. rather than 7 a.m. This
is probably an error, however, as the original document refers to
0700, which is 7 a.m. according to the European custom.

5
 Attached to his petition for habeas corpus, Petitioner filed
new declarations from Daut, Bajame, and Ardjana Hoxha, dated
February 15, 2005, averring that their earlier statements were the
false product of torture and threats by the Albanian police. Daut
Hoxha accounted for his knowledge of the gun’s location by
stating that, on the night of the murders, “a resident of the area,
whose identity I cannot reveal in public, known to me as a
criminal of the area,” asked him to hide an automatic weapon.
Daut Hoxha agreed to do so out of fear.6 Petitioner asserts that
Daut Hoxha was prepared to testify by telephone as to these
points at the extradition hearing, and that the other recanting
witnesses were willing to testify as well.

B. Procedural History

In February 1999, Petitioner was tried and convicted for
the murders in absentia in Albania. He was sentenced to life
imprisonment, but the case was later remanded for retrial by an
appellate court, based on a finding that Petitioner did not receive
notice of the aggravated circumstance in his charge. Petitioner
was again convicted of the murders, and, in November 2000, he
was resentenced to 14 years and 8 months in prison. Several
appeals followed, and in June 2004 the case was again remanded
for retrial based on the finding that, because Petitioner was tried
in absentia without notice, he “was denied the constitutional
right to be called and to attend the proceedings.” Following that
ruling, Petitioner has not yet been retried.

In November 2004, the United States filed a complaint for
extradition on behalf of the Albanian government, and Petitioner
was arrested in the Eastern District of Pennsylvania pursuant to
an arrest warrant. In support of extradition, the Albanian
government submitted Matilda Kasemi’s statement and a series
of court papers documenting the passage of Petitioner’s case
through the Albanian legal system. An extradition hearing was

6
At the extradition hearing, Petitioner’s counsel stated
that the man who asked Daut Hoxha to hide the gun was Marcel
Chello, who was “wanted by Interpol” and “was subsequently
murdered.”

6
initiated before a magistrate judge in January 2005. The
Magistrate Judge found that the extradition treaty between
Albania and the United States was valid, but expressed concern
over the lack of sworn documents provided by the Albanian
government in support of probable cause. The Magistrate Judge
offered the Albanian government two weeks to gather additional
documentation. When the extradition hearing reconvened in
February 2005, the Magistrate Judge reviewed Albania’s
additional submission, which contained an affidavit from an
Albanian prosecutor with attached photographs, reports, and
declarations, including the declarations of Daut Hoxha, Ardjana
Hoxha, Bejame Hoxha, Rahman Sheqeri, and Fetah Hoxha
described above.

At the hearing, the United States argued that Daut
Hoxha’s declaration was relevant to probable cause despite his
later recantation because the declaration was corroborated by the
gun found in Fetah Hoxha’s sofa and by Fetah Hoxha’s
statement that Daut Hoxha came to his house on the morning
after the murders.7 Although the Magistrate Judge initially stated
that he would not consider Daut Hoxha’s declaration due to the
recantation, he later appeared to adopt the government’s view,
holding that he could consider the declaration to the extent that it
was independently corroborated. Without permitting Petitioner
to introduce telephonic testimony from the recanting witnesses,
the Magistrate Judge concluded that the Albanian government’s
submission was sufficient to satisfy probable cause. The Judge
therefore issued a Certificate of Extraditability and Order of
Commitment providing that Petitioner be committed to the
United States Marshal pending final disposition of his case by
the Secretary of State.

In March 2005, Petitioner filed a habeas corpus petition in
United States District Court for the Eastern District of
Pennsylvania, arguing (1) that the Magistrate Judge erroneously

7
Although the formal written statements of recantation
submitted with the habeas corpus petition were not available to
the Magistrate Judge, Petitioner orally informed the Judge of the
recantations at the extradition hearing.

7
denied Petitioner the opportunity to present telephonic testimony
from the recanting witnesses in order to demonstrate a lack of
probable cause; (2) that the extradition treaty between the United
States and Albania was invalid; and (3) that Petitioner would
face torture and possible death if extradited to Albania. The
District Court denied the petition in May 2005. The District
Court held that, although the case against Petitioner was “riddled
with holes” under a reasonable doubt analysis, the very low
standard for probable cause was satisfied even without the
recanted testimony and the telephonic testimony was therefore
irrelevant. The District Court also held 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. Petitioner now
appeals.

II. DISCUSSION

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. Id. In an extradition hearing, the
court decides whether the defendant is subject to surrender to the
requesting government, a determination that requires a finding as
to whether probable cause supports the charges against the
defendant. Id. at 194-95; see also 18 U.S.C. § 3184 (stating that
upon a complaint for extradition, a court may consider whether
the evidence is “sufficient to sustain the charge under the
provisions of the proper treaty or convention”). If probable cause
is satisfied, the judge makes a finding of extraditability, and the
case is certified to the Secretary of State for further action.
Sidali, 107 F.3d at 195.

An individual challenging a court’s extradition order may
not appeal directly, because the order does not constitute a final
decision under 28 U.S.C. § 1291, but may petition for a writ of
habeas corpus. Sidali, 107 F.3d at 195. On habeas, a reviewing
court may consider only “‘whether the magistrate [judge] had
jurisdiction, whether the offense charged is within the treaty and,
by a somewhat liberal extension, whether there was any
evidence warranting the finding that there was reasonable

8
ground to believe the accused guilty.’” Id. (quoting Fernandez v.
Phillips, 268 U.S. 311, 312 (1925)). Here, Petitioner does not
argue that the Magistrate Judge lacked jurisdiction, nor does he
contest that murder is within the scope of the Albania-United
States extradition treaty.8 Petitioner does, however, challenge the
Magistrate’s finding of probable cause, and also contends that
the extradition treaty is no longer in force.9

A. Probable Cause Determination

Petitioner argues that the Magistrate Judge erred in
excluding telephonic testimony from the witnesses who recanted
their statements, and that the Judge’s probable cause finding
must be reversed on this basis. We review a magistrate judge’s
decision to admit or exclude evidence in an extradition
proceeding for abuse of discretion. See In re Extradition of
Kraiselburd, 786 F.2d 1395, 1399 (9th Cir. 1986). In addition,
we uphold the judge’s finding of probable cause “if there is any
competent evidence in the record to support it.” Sidali, 107 F.3d
at 199.

In considering whether the Magistrate Judge should have
allowed introduction of the testimony of the recanting witnesses,
we focus on whether this evidence could have affected the
probable cause analysis. The probable cause standard applicable

8
Under the terms of the extradition treaty, Albania and
the United States have agreed, “upon requisition duly made,” to
“deliver up to justice any person who may be charged with, or
may have been convicted of, any of the crimes or offenses
specified in Article II of the present treaty.” Murder is one of the
crimes listed in Article II.
9
The Magistrate Judge had jurisdiction over the
government’s extradition request pursuant to 18 U.S.C. § 3184,
and the District Court had jurisdiction over this habeas petition
pursuant to 28 U.S.C. § 2241. We have jurisdiction under 28
U.S.C. § 2253, which provides that a final order in a habeas
proceeding is subject to review by the court of appeals for the
circuit in which the proceeding occurs.

9
to an extradition hearing is the same as the standard used in
federal preliminary hearings. Id. Thus, the magistrate’s role is
“to determine whether there is competent evidence to justify
holding the accused to await trial, and not to determine whether
the evidence is sufficient to justify a conviction.” Id. (internal
quotation marks omitted). A judge may rely on hearsay evidence
in considering whether probable cause is satisfied. In re A.M., 34
F.3d 153, 161 (3d Cir. 1994).

The range of evidence that a defendant may introduce as
to probable cause at an extradition hearing is limited. Courts
have traditionally distinguished between inadmissible
“contradictory evidence,” which merely conflicts with the
government’s evidence, and admissible “explanatory evidence,”
which entirely eliminates probable cause. See, e.g., Barapind v.
Enomoto, 360 F.3d 1061, 1069 (9th Cir. 2004) (“The general
rule is that evidence that explains away or completely obliterates
probable cause is admissible, while evidence that merely
controverts the existence of probable cause is not.”) (internal
quotation marks omitted); Koskotas v. Roche, 931 F.2d 169, 175
(1st Cir. 1991) (“Although it is within the discretion of the
district court to permit the relator to offer limited, explanatory
evidence relating to the charges against him, contradictory
evidence properly may be excluded.”) (citations omitted). In
practice, this line is not easily drawn, but the rule serves the
useful purpose of allowing the defendant “to present reasonably
clear-cut proof . . . of limited scope [that has] some reasonable
chance of negating a showing of probable cause,” while
preventing the extradition proceedings from becoming “a dress
rehearsal trial.” Koskotas, 931 F.2d at 175 (internal quotation
marks omitted).

One circuit court has suggested that a recantation of
inculpatory evidence does not constitute admissible explanatory
evidence in an extradition hearing. See Eain v. Wilkes, 641 F.2d
504, 511 (7th Cir. 1981) (refusing to admit such evidence
because it “do[es] not explain the government’s evidence, rather
[it] tend[s] to contradict or challenge the credibility of the facts
implicating petitioner”). Several district courts have found
recantation evidence to be admissible, however. See, e.g., In re
Extradition of Contreras, 800 F. Supp. 1462, 1465 (S.D. Tex.

10
1992) (“[I]t is obvious to this Court that if the only evidence of
probable cause were the confessions, and if sufficiently recanted,
then the existence of probable cause would be negated.”);
Republic of France v. Moghadam, 617 F. Supp. 777, 783 (N.D.
Cal. 1985) (distinguishing Eain and holding that recantation was
admissible in an extradition hearing because recantation had
more indicia of reliability than original testimony, and therefore
negated probable cause).

We need not decide whether a recantation of inculpatory
testimony may ever be admitted in an extradition proceeding,
because we find that the Magistrate Judge here did not abuse his
discretion in finding the recantations inadmissible. Although the
initial declarations of Daut, Bejame, and Ardjana Hoxha were
important to the government’s showing of probable cause, we
believe that the recantation of those declarations did not negate
probable cause. Daut Hoxha’s original declaration was
independently corroborated by the evidence that the weapon
used in the murders was found in Fetah Hoxha’s sofa and that
Fetah Hoxha saw Daut Hoxha in his house on the day of the
murder. Nor did Daut Hoxha’s later retelling of the night’s
events obliterate probable cause; instead, it provided an
alternative and contradictory narrative that can properly be
presented at trial. Sheqeri’s statement that Petitioner had been
seen near the Kozemi home with a gun two weeks before the
murder provided additional evidence suggesting Petitioner’s
guilt. The Magistrate Judge therefore did not abuse his discretion
in excluding the recantation evidence. There was competent
evidence to support the Magistrate Judge’s finding of probable
cause, and we therefore decline to grant habeas relief on this
basis.10

10
Petitioner also argues that the witness statements do not
support probable cause because they contain certain
inconsistencies as to timing. Specifically, Daut Hoxha stated that
Petitioner came to his house a second time at about 5 a.m.;
Bajame Hoxha saw Petitioner alone in the house at about 7 a.m.,
and says that she woke up Daut at 8 a.m.; Ardjana Hoxha saw
Daut and Petitioner speaking in the house at about 6:30 a.m.;
Fetah Hoxha saw Daut at his house at about 7 a.m. These minor

11
 B. Validity of the Extradition Treaty

For an extradition to proceed, there must be a valid
extradition treaty between the requesting country and the United
States. See Sidali, 107 F.3d at 194. A petitioner facing
extradition has standing to challenge the validity of the
applicable extradition treaty. United States ex rel. Saroop v.
Garcia, 109 F.3d 165, 168 (3d Cir. 1997). Petitioner here
argues that the extradition treaty between Albania and the United
States is invalid because the Kingdom of Albania, which was the
signatory to the treaty in 1933, no longer exists, and in 1944 the
successor government rejected all treaties entered into by the
Kingdom of Albania. We review de novo the District Court’s
legal conclusion that the extradition treaty is currently in force.
See id. at 167.

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.
Id. at 171. The intent and conduct of the relevant governments is
the critical factor. Id.; see also Terlinden v. Ames, 184 U.S. 270,
285 (1902) (“[O]n the question whether this treaty has ever been
terminated, governmental action in respect to it must be regarded
as of controlling importance.”).

The U.S. government recognizes the extradition treaty
between Albania and the United States as valid. A declaration
submitted in this litigation from an Attorney Adviser in the
Office of the Legal Adviser for the State Department states that
the extradition treaty is “in full force and effect.” A second
submitted declaration from an Assistant Legal Adviser for
Treaty Affairs in the Office of the Legal Advisor for the State
Department confirms that view, and also notes that the treaty is
named in the State Department’s January 2004 “Treaties in
Force” list, which includes treaties that have not expired and
have not been otherwise terminated. See Saroop, 109 F.3d at 172
(noting, in considering the validity of an extradition treaty, that

variations do not negate probable cause; instead, they present
credibility issues that should be addressed at trial.

12
“the United States recorded the . . . treaty in the U.S. State
Department’s ‘Treaties in Force’ publication”).

The Albanian government also recognizes the validity of
the extradition treaty, as demonstrated by the fact that Albania
requested Petitioner’s extradition in this case pursuant to that
treaty. Moreover, in 2003, the Albanian government ordered
extradition of an individual on a charge of attempted homicide in
response to a request from the United States under the
extradition treaty.11 See Saroop, 109 F.3d at 172 (finding
indicative of Trinidad and Tobago’s recognition of the relevant
treaty that Trinidad and Tobago “surrendered Saroop to the
United States under a diplomatic request premised on the
[treaty]”). Based on this evidence, we conclude that the
extradition treaty between Albania and the United States remains
valid, and we deny the habeas petition as to this claim.12

C. Risk of Torture and Death Upon Extradition

Lastly, Petitioner asserts that he should be granted habeas
relief because he will be tortured and may be killed by the
Albanian authorities if he is extradited.13 Under the traditional

11
In that case, the Albanian High Court explicitly rejected
a claim that the extradition treaty between the United States and
Albania was invalid.
12
Petitioner also argues that the Magistrate Judge erred in
denying Petitioner’s request to provide evidence from a legal
expert who would have testified about the history of the
extradition treaty. Given that the critical factor in determining
treaty validity is the intent of the participating governments and
that both Albania and the United States recognize the validity of
the treaty, the testimony of the expert was not relevant. The
Magistrate Judge’s ruling therefore was not an abuse of
discretion.
13
The “torture” Hoxha fears is being beaten and tortured
as a police suspect and as a prisoner. As the District Court noted,
“[t]he U.S. State Department is aware that Albanian police have
beaten and tortured suspects and that prison conditions in

13
 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. See, e.g., Sidali, 107 F.3d at 195 n.7 (“[W]e note
that it is the function of the Secretary of State—not the
courts—to determine whether extradition should be denied on
humanitarian grounds.”); United States v. Kin-Hong, 110 F.3d
103, 110 (1st Cir. 1997) (“Under the rule of non-inquiry, courts
refrain from investigating the fairness of a requesting nation’s
justice system, and from inquiring into the procedures or
treatment which await a surrendered fugitive in the requesting
country.”) (internal quotation marks and citation omitted). 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. See Ahmad v. Wigen, 910 F.2d
1063, 1067 (2d Cir. 1990); Prasoprat v. Benov, 421 F.3d 1009,
1016 (9th Cir. 2005). Once an individual is certified by a court
as extraditable, the Secretary of State “exercises broad discretion
and may properly consider factors affecting both the individual
defendant as well as foreign relations” in deciding whether
extradition is appropriate. Sidali, 107 F.3d at 195 n.7; see
also Kin-Hong, 110 F.3d at 109-110 (noting that “[t]he Secretary
may . . . decline to surrender the relator on any number of
discretionary grounds, including but not limited to, humanitarian

Albania are poor.” Hoxha v. Levi, 371 F. Supp. 2d 651, 660 n.3
(E.D. Pa. 2005) (citing U.S. Dep’t of State, Country Report on
Human Rights Practices in Albania – 2004 (Feb. 28, 2005)). The
District Court went on to articulate its own concerns that Hoxha
would be subject to these abuses and strongly encouraged the
State Department to “seriously examine the charges of torture
that Hoxha has levied against Albanian authorities and faithfully
uphold[] this Government’s clear policy of refusing to extradite
a person when there are substantial grounds for believing the
person would be subject to torture.” Id. We echo the Court’s
concerns and urge the State Department to consider seriously
Hoxha’s allegations, particularly in light of the declarations from
Daut, Bajame, and Ardjana Hoxha averring that their initial
statements were the product of torture by the Albanian police.

14
and foreign policy considerations,” and “may also elect to use
diplomatic methods to obtain fair treatment for the relator”).
Under the principle of non-inquiry, and in view of the evidence
before it, the District Court correctly declined to consider
Petitioner’s humanitarian claims in the context of the
extraditability analysis.14

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. § 1231), which implemented Article 3 of the United
Nations Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment (the “Torture
Convention”).15 Section 2422(a) of FARR provides:

14
In Gallina v. Fraser, 278 F.2d 77 (2d Cir. 1960), the
Second Circuit suggested in dicta that an exception to the non-
inquiry principle might exist in particularly extreme cases. Id. at
79 (“We can imagine situations where the relator, upon
extradition, would be subject to procedures or punishment so
antipathetic to a federal court’s sense of decency as to require
reexamination” of the non-inquiry principle.). Since Gallina,
several courts have hinted at the existence of such an exception.
See, e.g., Mainero v. Gregg, 164 F.3d 1199, 1210 (9th Cir. 1999)
(assuming possibility of Gallina exception but finding it
inapplicable in the case presented); Kin-Hong, 110 F.3d at 112
(same). But see Martin v. Warden, Atlanta Pen, 993 F.2d 824,
830 n.10 (11th Cir. 1993) (rejecting Gallina dicta). The
exception remains theoretical, however, because no federal court
has applied it to grant habeas relief in an extradition case.
Regardless of whether such an exception might be justified in
some circumstances, we find that it does not apply here.
15
The United States has ratified the Torture Convention.
See Auguste v. Ridge, 395 F.3d 123, 130-32 (3d Cir. 2005). The
Convention is not self-executing, however, and therefore does
not in itself create judicially enforceable rights. Id. at 132 & n.7
(“Treaties that are not self-executing do not create
judicially-enforceable rights unless they are first given effect by

15
 It shall be 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,
regardless of whether the person is physically
present in the United States.

This policy is to be enforced by the heads of “the appropriate
agencies”—here, the Department of State—who “shall prescribe
regulations to implement the obligations of the United States
under Article 3” of the Torture Convention. Section 2242(b).
FARR also 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 . . . .

Section 2242(d). Although this provision makes clear that FARR
does not create court jurisdiction, Petitioner contends that the
Secretary of State’s enforcement of FARR is reviewable by the
federal courts under the Administrative Procedure Act (APA), 5
U.S.C. §§ 701-706 (2000). The APA provides that court review
is available as to “final agency action for which there is no other
adequate remedy in a court.” 5 U.S.C. § 704. In response, the
government argues that court review is unavailable because
FARR did not abrogate the principle of non-inquiry, and that
principle precludes review of the Secretary’s actions.16 This

implementing legislation.”).
16
The Ninth Circuit discussed this issue in a series of
cases beginning in 2000. In Cornejo-Barreto v. Seifert, 218 F.3d

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debate is premature. The APA provides for review of “final
agency action,” but the Secretary of State has yet to take any
action on Petitioner’s case, and may ultimately decide not to
extradite Petitioner. Thus, Petitioner’s claim under the APA is
not ripe for review, and we decline to consider it at this time.
See Texas v. United States, 523 U.S. 296, 300 (1998) (“A claim
is not ripe for adjudication if it rests upon contingent future
events that may not occur as anticipated, or indeed may not
occur at all.”) (internal quotation marks omitted).

Although the United States recognizes that Petitioner’s

1004 (9th Cir. 2000) (“Cornejo-Barreto I”), the Ninth Circuit
held that, under FARR and the APA, “a fugitive fearing torture
may petition [through habeas corpus] for review of the
Secretary’s decision to surrender him” following a court
certification of extraditability. Id. at 1014-15. Because the
Secretary had not yet made an extradition decision in the case,
the Court affirmed the denial of habeas relief without prejudice
to a new filing should the Secretary decide to extradite the
petitioner. Id. at 1016-17.
After the Secretary made the decision to extradite, the
petitioner filed a second habeas petition, based on Cornejo-
Barreto I. On appeal, the Ninth Circuit held that the conclusion
in Cornejo-Barreto I as to the availability of APA review was
non-binding dicta, because the Secretary had not yet made a
decision to extradite when that case was decided. Cornejo-
Barreto v. Siefert, 379 F.3d 1075, 1082 (9th Cir. 2004)
(“Cornejo-Barreto II”). Considering the issue anew, the Court
concluded that, under the doctrine of non-inquiry, the
Secretary’s decision to extradite was not subject to judicial
review, and FARR and the APA did nothing to change this
result. Id. at 1087.
The Ninth Circuit granted rehearing en banc in the case,
but following the government’s decision to withdraw its
extradition claim, the case was dismissed as moot.
Cornejo-Barreto v. Siefert, 386 F.3d 938 (9th Cir. 2004);
Cornejo-Barretto v. Siefert, 389 F.3d 1307 (9th Cir. 2004). As a
result, neither Cornejo-Barreto I nor Cornejo-Barreto II is
binding precedent in the Ninth Circuit.

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claim under the APA is not ripe, it urges us to resolve the claim
nonetheless, arguing that leaving open the possibility of a second
round of court review in extradition proceedings disrupts
extradition law and interferes with the Executive Branch’s
ability to fulfill its duties. This argument is unconvincing. Our
refusal to address Petitioner’s APA claim leaves this area of
extradition law unchanged, and does not inject any new
uncertainty into extradition proceedings. Moreover, the ripeness
doctrine clearly precludes us from resolving questions that will
have practical relevance to the parties only if a contingent event
occurs at some future time. See Wyatt, Virgin Islands, Inc. v.
Gov’t of the Virgin Islands, 385 F.3d 801, 806 (3d Cir. 2004)
(noting that a case “ripe for judicial intervention . . . cannot be
‘nebulous or contingent’ but ‘must have taken on fixed and final
shape so that a court can see what legal issues it is deciding,
what effect its decision will have on the adversaries, and some
useful purpose to be achieved in deciding them’”) (quoting Pub.
Serv. Comm’n of Utah v. Wycoff Co., 344 U.S. 237, 244
(1952)). Nothing in our jurisprudence suggests that we abandon
that principle here.

Based on the foregoing analysis, we affirm the District
Court’s finding that Petitioner’s humanitarian arguments in this
case are irrelevant to the certification decision. We do not
address Petitioner’s additional assertion that, should the
Secretary of State decide to extradite Petitioner, we would have
jurisdiction to review that decision under the APA.

III. CONCLUSION

For the reasons stated above, we affirm the District
Court’s denial of Hoxha’s petition for a writ of habeas corpus.

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