dissenting:
I would affirm the decision below and accordingly I dissent. I agree that Juveniles should not avoid extradition simply because the Federal Juvenile Delinquency Act evidences a solicitous attitude toward juveniles. And I acknowledge that the Treaty drafters may never have specifically contemplated the exclusion of juveniles. Yet the absence of a provision concerning juveniles does not necessarily reflect an intent to treat them in the same manner as adults. This absence leaves an unanswered question that must be resolved by applying the Treaty according to its terms. I do not *921think Hu’s extradition is authorized by the language of the Treaty and the “law of the United States” which it incorporates. Indeed, the intent of the Treaty is thwarted by the Court’s refusal to look to the Juvenile Delinquency Act on the ground that the parties could not have intended to exclude juveniles since there is no express provision to that effect. Our task is to interpret and apply the Treaty as written. We should not avoid a result directed by the Treaty, even if it appears far-reaching, simply because that result is not expressly prescribed.
The Felony Requirement
In the context of this case, the most outstanding feature of the Treaty is the unique felony requirement, not the absence of a provision concerning juveniles. This heightened double criminality should be viewed “as a privilege of the asylum state, designed to protect its dignity and interests, rather than a right of the accused.” Shapiro v. Ferrandina, 478 F.2d 894, 906 (2d Cir.), cert. dismissed, 414 U.S. 884, 94 S.Ct. 204, 38 L.Ed.2d 133 (1973) (Judge Friendly describing the principle of specialty which prohibits the requesting country from prosecuting the fugitive for any crimes except the crimes for which he was extradited). Section (c)’s felony requirement is the United States analogue to section (b) which provides for a direct reference to Great Britain’s domestic law. Each section constitutes a strict double criminality standard which emphasizes the importance of each country’s domestic law. To effectuate the intent of the Treaty, the felony requirement must be applied as directed — by reference to the law of the United States. The acts which constitute felonies will change over time. Thus, by incorporating the felony requirement, the Treaty’s drafters provided a fixed prerequisite that, in turn, referred to a dynamic body of law. The Juvenile Delinquency Act is part of that body of law and must be considered in determining whether an offense constitutes a felony.
Article III serves to define the seriousness of the crime required for extradition. To this end, it establishes two distinct requirements: the offense must be punishable by imprisonment for more than one year and the offense must fall within a category of crimes defined according to each country’s domestic law. These requirements are not redundant with respect to United States law, even though a felony is now defined as an offense punishable by more than a year of imprisonment. The felony requirement is an independent standard to measure the seriousness of an offense and the Juvenile Delinquency Act addresses precisely this point. As discussed below, a proceeding under the Act results in an adjudication of delinquency, not a criminal or felony conviction. This distinction reflects a judgment concerning the gravity of a particular act committed by a juvenile. It is true that extradition turns on the status of the crime, not the status of the criminal. Yet it is not Hu’s youth qua youth that prohibits extradition, but the “non-criminal” result effected by the Act that is necessarily invoked by virtue of Hu’s age.
The difference between section (a)’s term of imprisonment standard and section (c)’s felony requirement is highlighted by the facts of this case. Section (a) provides that the offense must be punishable “by imprisonment or other form of detention” for more than one year. Under the Juvenile Delinquency Act, a juvenile adjudicated delinquent could be “committed to the custody of the Attorney General” for a period exceeding one year. 18 U.S.C. §§ 5037, 5039. Such commitment is clearly a form of detention, see id. § 5039, and could therefore satisfy section (a). Section (c), however, is not satisfied because the Act, which is applicable to Hu’s case, does not provide for a felony conviction. In this case, the measure of a felony is raised above the floor established by the section (a) time requirement.
No provision in the Juvenile Delinquency Act expressly states that it should be applied to a juvenile whose extradition is sought by a foreign country. Indeed, the government argues, and the majority agrees, that the court below engaged in a speculative and unwarranted analysis. Yet *922the procedure employed by Judge Weinstein was consistent with the Treaty and the Act and was calculated to minimize the speculation inherent in these proceedings.
In viewing the Magistrate’s extradition order, the district court was bound to determine whether the offense for which extradition was sought was within the terms of the Treaty. See Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925). Therefore, the court had to evaluate whether the offense charged constituted a felony under United States law. This inquiry, mandated by section (c), is distinct from the question posed by section (a), which asks whether the offense is punishable by more than one year of detention. Furthermore, felony should be defined according to federal law in this case. As this court stated in Shapiro v. Ferrandina, supra, 478 F.2d at 910 n.18, reference “to federal law — when there is some — as a gauge for [a crime’s] gravity appears to us quite reasonable.... [T]he makers of the Treaty might well have desired that, where possible, a uniform standard should determine the relative gravity of an offense.” See also United States ex rel. Sakaguchi v. Kaulukukui, 520 F.2d 726, 728 (9th Cir. 1975) (federal, not state, standard used to determine sufficiency of evidence); United States ex rel. Bloomfield v. Gengler, 507 F.2d 925, 927 n.1 (2d Cir. 1974) (federal law may govern where interstate or foreign commerce is involved, particularly if state law is preempted or precluded by valid exercise of congressional power); Garcia-Guillern v. United States, 450 F.2d 1189, 1192 n.1 (5th Cir. 1971), cert. denied, 405 U.S. 989, 92 S.Ct. 1251, 31 L.Ed.2d 455 (1972) (applying federal statute of limitations). Uniformity is particularly important in this context. The possibility that any one of maybe fifty state juvenile laws could be applied injects even more uncertainty into the extradition process.
The majority argues that “[t]he most reasonable interpretation of subsection (c) is that for conduct that would have violated any federal statute, federal law determines whether the conduct would have been a felony, and for conduct that would have violated only a state statute, state law governs the felony determination.” As the majority points out, only federal crimes are felonies under federal law and a reading limiting subsection (c) to federal felonies would prevent extradition of those charged with state crimes. That is not, however, the reading advocated here and the majority’s argument is essentially consistent with the view that federal law — if available— should be applied. In my opinion, the available federal law should be applied in this case in the interest of uniformity and to promote national policies.
Because he is a juvenile, Hu’s offenses are neither state crimes nor federal crimes per se. The Federal Juvenile Delinquency Act was intended to encompass offenses that would otherwise be considered state crimes; the very language of the Act confirms this view. The jurisdictional determination must be made at the outset and federal law should be favored as opposed to assuming the applicability of state law. Thus, with respect to juveniles, I disagree with the majority’s assertion that “for conduct that would have violated only a state statute, state law governs.”
By its terms, the Juvenile Delinquency Act is not invoked unless the Attorney General certifies that the state (1) does not have jurisdiction over the juvenile “with respect to such alleged act of juvenile delinquency,” or (2) does not have adequate programs available to fit the juvenile’s needs. 18 U.S.C. § 5032. Although no certification was filed in this case, it is clear that New York has no jurisdiction over Hu with respect to the offenses he allegedly committed in Hong Kong. Of course, it is equally clear that Hu could not be tried in federal court for these offenses. Yet the extradition request was made to the federal government and the choice of law should reflect the national interest. The extradition proceeding itself is federal and, for the sake of consistency, the federal law on point should be applied. Since New York lacks jurisdiction over Hu’s offense, New York law could never be directly applied. The speculative nature of this decision is thus *923increased by relying on a hypothetical application of state law instead of inquiring whether the offense does in fact constitute a felony under federal law. In short, the majority unjustifiably avoids the inquiry mandated by the Treaty by holding that the felony requirement is satisfied “by the fact that, even considering Hu’s age, he could have been charged with, convicted of, and sentenced for a felony under New York law.”
Two reasons have been advanced for adopting a rule that avoids this inquiry. First, magistrates should not have to conduct elaborate hearings to predict what would happen to the accused in the hypothetical circumstance where his crime violated some federal law. Second, the provisions in other treaties that specify special treatment for juveniles suggest that the issue should be controlled by express directives, rather than by judicial hearings in individual cases.
With respect to the first objection, it is worth noting that the Second Circuit has previously approved of comprehensive hearings to determine if all the elements required for extradition were met. For example, in Shapiro v. Ferrandina, supra, this court conducted a detailed comparison of the Israeli charges lodged against the accused and the relevant New York law. For several of the charges, the court found that the requisite elements under New York law had not been alleged and so the accused could not be extradited for those particular offenses. Similarly, in Jhirad v. Ferrandina, 536 F.2d 478 (2d Cir.), cert. denied, 429 U.S. 833, 97 S.Ct. 97, 50 L.Ed.2d 98 (1976), the court of appeals directed that a hearing be held to determine the underlying facts of a statute of limitations defense that turned on the accused’s intent to return at the time he left his native country. In both these cases, the hearings were conducted to evaluate facts and circumstances critical to the extradition order itself. Cf. Charlton v. Kelly, 229 U.S. 447, 33 S.Ct. 945, 57 L.Ed. 1274 (1912) (insanity defense is not to be entertained at extradition hearing); Neely v. Henkel, 180 U.S. 109, 21 S.Ct. 302, 45 L.Ed. 448 (1901) (rejecting claim that extradition was unconstitutional because accused’s constitutional rights as a United States citizen would not be protected at a trial in requesting country); Merino v. United States Marshall, 326 F.2d 5 (9th Cir.), cert. denied, 377 U.S. 997, 84 S.Ct. 1922, 12 L.Ed.2d 1046 (1963) (in the absence of an express provision, statute of limitations cannot be raised as a defense to extradition proceedings). In the case at bar, the district court employed the most satisfactory method for determining, with the greatest possible certainty, whether Hu had committed an extraditable offense. Since Hu fell within that category of juveniles who would be tried under the Juvenile Delinquency Act unless a transfer to the regular criminal system was requested, the district court had to determine whether such a request would be granted. This determination is analogous to the inquiry conducted in Shapiro where the court compared the Israeli charges with New York’s definitions of the various offenses. The Shapiro inquiry, like the hearing here, was also a hypothetical exercise since the accused would never be tried for the offenses in New York. This legal comparison was necessary, however, in order to implement the treaty’s double criminality provision; the accused could not be extradited to Israel unless the offenses charged were also criminal under New York law. The hearing conducted here was equally necessary to determine whether Hu had committed a felony under the law of the United States.
The second objection — that the Treaty does not expressly provide for different treatment of juveniles — merely restates the problem raised by this case: in the absence of an express provision concerning juveniles, to what extent should the Juvenile Delinquency Act inform the court’s construction of the felony requirement? I agree with Judge Weinstein that “[sjilence on the point has created an ambiguity that must be resolved by the courts.” And in resolving this ambiguity, careful consideration must be given to the drafters’ choice of the term felony to describe the United States’ double criminality standard. See *924United States v. Dangdee, 616 F.2d 1118, 1119 (9th Cir. 1980), quoting United States v. Jones, 607 F.2d 269, 273 (9th Cir. 1979) (“The statutory language usually is the best evidence of congressional intent because ‘we must assume that Congress meant what it said.’ ”). Felony, in this context, may mean something other than an offense punishable by more than one year of imprisonment. Otherwise, section (c)’s felony requirement is “mere surplusage” repeating section (a)’s imprisonment term — a disfavored construction that should not be adopted by this court. See Pettis ex rel United States v. Morrison-Knudson Co., 577 F.2d 668, 673 (9th Cir. 1978); Zeigler Coal Co. v. Kleppe, 536 F.2d 398, 406 (D.C.Cir.1976); United States v. Johnson, 462 F.2d 423, 428 (1st Cir.), cert. denied, 410 U.S. 937, 93 S.Ct. 1396, 35 L.Ed.2d 602 (1972); Klein v. Republic Steel Corp., 435 F.2d 762, 766 (3d Cir. 1970). The absence of a specific provision concerning juveniles does not mean that the Juvenile Delinquency Act should not be considered and applied in construing the felony requirement. As the Supreme Court stated in Barr v. United States, 324 U.S. 83, 90, 65 S.Ct. 522, 89 L.Ed. 765 (1945), “if Congress has made a choice of language which fairly brings a given situation within a statute, it is unimportant that the particular application may not have been contemplated by the legislators.” Or, as more recently asserted by the Tenth Circuit: “We will not hobble our interpretation of statutes with the requirement that every circumstance meant to be covered must be specifically mentioned.” United States v. Bates, 617 F.2d 585, 587 n.7 (10th Cir. 1980). In my view, the situation at hand — where a court has ruled that the accused would be tried under the Federal Juvenile Delinquency Act — falls within that class of cases excluded from extradition by the unique choice of the term “felony” in the Treaty.
The Federal Juvenile Delinquency Act
The conclusion stated above rests on the assumption that a proceeding under the Juvenile Delinquency Act results in an adjudication of delinquency and not in a conviction of a crime. The government vehemently objects to this characterization and cites cases to support the proposition that the Act merely provides procedural protections and does not establish a separate offense. Undoubtedly, language can be culled from various decisions to support different interpretations of the Act. On balance, I find that the language of the Act and the decisions discussing its legal consequences — quite apart from the policies that it reflects — support the view that a proceeding under the Act cannot result in a criminal conviction.
The Act defines juvenile delinquency as violation of a law “which would have been a crime if committed by an adult.” 18 U.S.C. § 5031. Section 5032 refers to an act committed after a juvenile’s sixteenth birthday “which if committed by an adult would be a felony punishable by a maximum penalty of ten years imprisonment or more .... ” The Act prohibits the placement of a juvenile in a “correctional institution in which he has regular contact with adults incarcerated because they have been convicted of a crime or are awaiting trial on criminal charges.” Id. § 5039. Juveniles, in contrast, are “alleged to be delinquent” or “adjudicated delinquent”; they are neither accused nor found guilty of crimes. See id. §§ 5033, 5035, 5037. The message spelled out by this statutory language is clear: a juvenile tried under the Act can be adjudicated delinquent but cannot be convicted of a crime, much less a felony.
This view has been consistently espoused by the courts and numerous decisions have repeated this conclusion. See, e. g., United States v. Frasquillo-Zomosa, 626 F.2d 99, 101 (9th Cir. 1980); United States v. Hill, 538 F.2d 1072, 1074 (4th Cir. 1976); United States v. Canniff, 521 F.2d 565, 569 & n.2 (2d Cir. 1975), cert. denied sub nom. Benigno v. United States, 423 U.S. 1059, 96 S.Ct. 796, 46 L.Ed.2d 650 (1976); United States v. King, 482 F.2d 454, 456 (6th Cir.), cert. denied, 414 U.S. 1076, 94 S.Ct. 594, 38 L.Ed.2d 483 (1973); Cotton v. United States, 355 F.2d 480, 481 (10th Cir. 1966); United States v. Hoston, 353 F.2d 723, 724 (7th Cir. 1965); Fagerstrom v. United States, 311 F.2d 717, 720 (8th Cir. 1963); *925United States v. E. K., 471 F.Supp. 924, 929 (D.Or.1979); United States v. Kinsman, 195 F.Supp. 271, 273 (S.D.Cal.1961); United States v. Sprouse, 145 F.Supp. 292, 294 (N.D.Fla.1956). The Act’s legislative history also supports this view. See 1974 U.S. Code Cong. & Ad.News 5283; S.Rep.No. 1989, 75th Cong., 3d Sess. 1 (1938); H.R. Rep.No.2617, 75th Cong., 3d Sess. 2 (1938). Indeed, two sections of the Act were rewritten in 1948 “to make clear the legislative intent that a juvenile delinquency proceeding shall result in the adjudication of a status rather than the conviction of a crime.” Historical and Revision Notes, 18 U.S.C. § 5033 (1969 version).
To refute this view, the government cites cases purportedly establishing that “there is no indication that the Act provides any basis to distinguish the offenses committed by a juvenile from those committed by an adult.” Government’s Brief at 23. These cases, however, support Hu’s position and further undermine the government’s argument. For example, the government relies on United States v. Allen, 574 F.2d 435, 437 (8th Cir. 1978), in which the Eighth Circuit stated that “the Act does not create a substantive offense with its own jurisdictional basis, but rather establishes a procedural mechanism for the treatment of juveniles who are already subject to federal jurisdiction because of the commission of acts cognizable under other federal criminal statutes.” Yet this statement was made in response to the defendant’s claim that, as an Indian, he should have been tried in a tribal, not a federal, court because “the status of juvenile delinquency is not one of the crimes enumerated in 18 U.S.C. § 1153,” which provides for exclusive federal jurisdiction over certain offenses committed by Indians. Id. Although the court of appeals rejected the defendant’s claim, it adhered to its prior ruling that “a finding of delinquency under the Federal Juvenile Delinquency Act is an adjudication of a status, not a conviction for a “crime.” Id., citing Fagerstrom v. United States, supra.
United States v. Mechem, 509 F.2d 1193 (10th Cir. 1975), another case cited by the government, also supports the “non-conviction” view. The Mechem court stated that the Juvenile Delinquency Act’s “predominant purpose” is “procedural,” but acknowledged that “there is a substantive offense of ‘juvenile delinquency’ dealt with by the statute.” Id. at 1196. Following its ruling in Cotton v. United States, supra, the Tenth Circuit asserted that “the very purpose of the [Act] is to avoid prosecution of juveniles as criminals.”
Two other cases relied upon by the government — United States v. Powers, 420 F.2d 937 (9th Cir. 1970), and United States v. Essex, 407 F.2d 214 (6th Cir. 1969)—are completely inapposite. In both cases, juveniles were adjudicated delinquent under the Act for violating a federal statute. The Ninth and the Sixth Circuits have expressly stated that an adjudication under the Act is not a conviction of a crime, see United States v. Frasquillo-Zomosa, supra; United States v. King, supra, and nothing in these decisions is contrary to that position. The government, in short, is grasping at straws.
The government also claims that the “non-conviction” view adopted here is based not on the terms of the Federal Juvenile Delinquency Act but on the “strong policy of the United States,” a phrase used below by Judge Weinstein, reflected in that statute. Of course, the policies embodied in the Act support the view that a proceeding results in an adjudication of a status and not a conviction of a crime. Yet as discussed above, the “non-conviction” view is also amply supported by the Act’s language and legislative history — a conclusion reached by numerous courts over the years. Furthermore, the argument that the Act merely provides procedural protections and thus has no bearing on the substance of the offense, actually cuts the other way. The procedural safeguards provided under the Act demonstrate that a delinquency proceeding does not result in anything resembling a conviction. For example, records of the proceedings are sealed and, with limited exceptions, no information can be released to prospective employers or other officials. 18 U.S.C. § 5038. It has been held that an adjudication of delinquency is not a convic*926tion for purposes of a state habitual criminal statute, Rogers v. State, 260 Ark. 232, 538 S.W.2d 300 (1976), and cannot be used for impeachment purposes in a subsequent trial. See United States v. Harvey, 588 F.2d 1201 (8th Cir. 1978); United States v. Canniff, supra; Cotton v. United States, supra; Fed.R.Evid. 609(d). A juvenile adjudicated delinquent under the Act cannot be placed in an adult correctional institution where he would come into contact with adults convicted of crimes or awaiting trial on criminal charges. 18 U.S.C. § 5039. These important distinctions between a delinquency proceeding and a criminal trial, which transcend purely procedural matters, indicate that an adjudication of delinquency is a horse of a different color.
It is worth noting that the same result would probably be reached even if New York law were applied.1 As previously recognized by this court in United States v. Canniff, supra, New York’s youthful offender law is substantially similar to federal law with respect to the procedures and treatment provided for juveniles. “[T]he consistent policy running through both New York and federal law [is that] youthful offender or juvenile delinquency adjudications are not to be treated as criminal convictions and that no stigma should attach to a young person so adjudicated.” 521 F.2d at 569. As a sixteen year old who allegedly committed a first degree robbery, Hu would be considered an “eligible youth” under New York’s youthful offender system. N.Y.Crim.Proc.Law § 720.10 (McKinney Supp.1980). Therefore, although he could be charged and tried as an adult defendant, the court, upon conviction, would determine whether “the interest of justice would be served by relieving the eligible youth from the onus of a criminal record.” Id. § 720.-20(1). This standard is comparable to the standard applied by Judge Weinstein pursuant to the Federal Juvenile Delinquency Act. And, as under federal law, a youthful offender adjudication “is not a judgment of conviction for a crime.” Id. § 720.35. Assuming that a state court judge would have reached the same conclusion as Judge Weinstein with respect to the “interest of justice” in this case — a well-founded assumption on the facts presented here — Hu would not have been convicted of a felony under New York law.2 It is true, as the majority asserts, that Hu could have been convicted of a felony under state law. Yet I think we should rely on and adopt an approach that leaves less to speculation and requires a closer examination of the facts of the case, even if it means conducting a fairly comprehensive hearing on the extradition petition.3
With respect to my view that Hu would be treated as a juvenile, not a felon, under either federal or New York law, it is worth noting that he would probably not be so treated if he were returned to Hong Kong and tried there. Although the record is incomplete on this point, it appears that Hu was charged with violating section 10(1) of the Hong Kong Theft Ordinance and would not be afforded different treatment than an adult offender. And at the initial extradition hearing in this case, the Magistrate stated that Hu is “not charged with an act of juvenile delinquency in Hong Kong. He’s charged with robbery. In other words, he’s not charged as a juvenile delinquent.” Transcript of Hearing before Magistrate Si*927mon Chrein, July 24, 1980, at 10. In light of this divergence between the way in which Hu’s offense would be defined and treated here and in Hong Kong, the principie of double criminality requires that extradition be denied.
Conclusion
The thorny issue raised by this case could easily have been avoided by the inclusion of an express treaty provision concerning juveniles. Perhaps this decision will prompt treaty drafters to be more explicit in the future and to consider circumstances like those present here. And since treaties are not carved in stone, perhaps the very document involved in this case might be amended to cover such contingencies. While courts are powerless to direct such changes, they can help to define the problem and to underscore the need for a new or different approach.
The decision below, which I would affirm, would allow Hu to remain in this country where he could be neither criminally prosecuted nor adjudged delinquent for the offenses he allegedly committed in Hong Kong. At first blush this result may appear unsettling, especially since Hu fares better than an American juvenile who commits the same offense here and is subject to delinquency proceedings. Yet if Hu’s acts constituted a misdemeanor, as opposed to a felony, he would also have avoided both extradition and prosecution, a fate to be envied by every native misdemeanant. In both cases, the results are mandated by the Treaty’s felony requirement and the relevant United States law. Our task is to interpret that requirement by applying the pertinent law. Upon completing that analysis, I conclude that Hu’s alleged offense does not constitute a felony under United States law and that he cannot be extradited. I therefore dissent from the majority’s decision.
. Although 1 disagree with the majority’s ruling in this case, the panel unanimously agrees that the result should be the same under either federal or New York law. See Majority Opinion at n.5.
. Judge Weinstein found that since coming to the United States, Hu had lived with his parents and sister, made a good adjustment at public school, and made friends among his contemporaries. He noted that Hu’s parents had been gainfully employed here for some years and had no disciplinary problems with their son. According to Judge Weinstein, Hu is mature, appears to be of superior intelligence, has worked hard in school, and has conformed to his parents’ wishes.
. The majority obviously condones the factual inquiry which was conducted by Judge Weinstein to determine whether Hu should be released on bail. I agree with the majority’s ruling that the lower court properly applied the appropriate standard in ordering Hu released on bail.