Appeal from the United States District Court for the Central District of California Margaret M. Morrow, District Judge, Presiding D.C. No. 2:08-cv-07719-MMM-CW
Argued and Submitted En Banc
June 23, 2011-Pasadena, California
Before: Alex Kozinski, Chief Judge, Harry Pregerson, Sidney R. Thomas, Susan P. Graber, Kim McLane Wardlaw, William A. Fletcher, Marsha S. Berzon, Richard C. Tallman, Richard R. Clifton, Milan D. Smith, Jr., and Sandra S. Ikuta, Circuit Judges.
Per Curiam Opinion; Concurrence by Judge Thomas; Dissent by Judge Tallman; Partial Concurrence and Partial Dissent by Judge Berzon; Partial Concurrence and Partial Dissent by Judge Pregerson; Partial Dissent by Chief Judge Kozinski
Trinidad y Garcia alleges that his extradition to the Philippines would violate his rights under the Convention Against Torture (CAT)*fn2 and the Fifth Amendment's Due Process Clause. The CAT is a treaty signed and ratified by the United States, but is non-self-executing. 136 Cong. Rec. 36,198 (1990). Congress, however, has implemented the treaty by statute as part of the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA). 8 U.S.C. § 1231 note. That statute declares it "the policy of the United States not to . . . extradite . . . any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture." Id. The statute requires that "the appropriate agencies . . . prescribe regulations to implement the obligations of the United States under Article 3 of the United Nations Convention Against Torture." Id.
The appropriate agency is the Department of State, and it adopted regulations specifying that, "[i]n each case where allegations relating to torture are made . . . , appropriate policy and legal offices review and analyze information relevant to the case in preparing a recommendation to the Secretary as to whether or not to sign the surrender warrant." 22 C.F.R. § 95.3(a). An extraditee may be surrendered only after the Secretary makes a determination regarding possible torture. Id. § 95.2-.3.
1. The district court had jurisdiction over the action pursuant to 28 U.S.C. § 2241, which makes the writ of habeas cor- pus available to all persons "in custody in violation of the Constitution or laws or treaties of the United States," and under the Constitution. 28 U.S.C. § 2241(c)(3); Heikkila v. Barber, 345 U.S. 229, 234-35 (1953); United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954). The writ of habeas corpus historically provides a remedy to non-citizens challenging executive detention. INS v. St. Cyr, 533 U.S. 289, 301-03 (2001).
 2. Neither the REAL ID Act (8 U.S.C. § 1252(a)(4)) nor FARRA (8 U.S.C. § 1231 note) repeals all federal habeas jurisdiction over Trinidad y Garcia's claims, as the government asserts. A statute must contain "a particularly clear statement" before it can be construed as intending to repeal habeas jurisdiction. Demore v. Kim, 538 U.S. 510, 517 (2003). Even if a sufficiently clear statement exists, courts must determine whether "an alternative interpretation of the statute is 'fairly possible' " before concluding that the law actually repealed habeas relief. St. Cyr, 533 U.S. at 299-300 (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)).
 FARRA lacks sufficient clarity to survive the "particularly clear statement" requirement. Saint Fort v. Ashcroft, 329 F.3d 191, 200-02 (1st Cir. 2003); Wang v. Ashcroft, 320 F.3d 130, 140-42 (2d Cir. 2003). The REAL ID Act can be construed as being confined to addressing final orders of removal, without affecting federal habeas jurisdiction. Nadarajah v. Gonzales, 443 F.3d 1069, 1076 (9th Cir. 2006). Given a plausible alternative statutory construction, we cannot conclude that the REAL ID Act actually repealed the remedy of habeas corpus. St. Cyr, 533 U.S. at 299-300. The government also suggests that the rule of non-inquiry precludes the exercise of habeas jurisdiction. But the rule implicates only the scope of habeas review; it does not affect federal habeas jurisdiction.
 3. The CAT and its implementing regulations are binding domestic law, which means that the Secretary of State must make a torture determination before surrendering an extraditee who makes a CAT claim. FARRA and its regulations generate interests cognizable as liberty interests under the Due Process Clause, which guarantees that a person will not be "deprived of life, liberty, or property, without due process of law." U.S. Const. amend. V; Mathews v. Eldridge, 424 U.S. 319 (1976); Goldberg v. Kelly, 397 U.S. 254 (1970).
 4. The process due here is that prescribed by the statute and implementing regulation: The Secretary must consider an extraditee's torture claim and find it not "more likely than not" that the extraditee will face torture before extradition can occur. 22 C.F.R. § 95.2. An extraditee thus possesses a narrow liberty interest: that the Secretary comply with her statutory and regulatory obligations.
5. The record before us provides no evidence that the Secretary has complied with the procedure in Trinidad y Garcia's case. The State Department has submitted a generic declaration outlining the basics of how extradition operates at the Department and acknowledging the Department's obligations under the aforementioned treaty, statute and regulations, but the Department gives no indication that it actually complied with those obligations in this case.
 Trinidad y Garcia's liberty interest under the federal statute and federal regulations entitles him to strict compliance by the Secretary of State with the procedure outlined in the regulations. He claims that the procedure has not been complied with, and the Constitution itself provides jurisdiction for Trinidad y Garcia to make this due process claim in federal court. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
 In the absence of any evidence that the Secretary has complied with the regulation, we lack sufficient basis in the record to review the district court's order granting Trinidad y Garcia's release. We remand to the district court so that the Secretary of State may augment the record by providing a declaration that she has complied with her obligations. Counsel for the government represented that the Secretary would provide such a declaration if the court so instructs. We so instruct.
 6. If the district court receives such a declaration, it shall determine whether it has been signed by the Secretary or a senior official properly designated by the Secretary. If so, the court's inquiry shall have reached its end and Trinidad y Garcia's liberty interest shall be fully vindicated. His substantive due process claim is foreclosed by Munaf v. Geren, 553 U.S. 674 (2008). The doctrine of separation of powers and the rule of non-inquiry block any inquiry into the substance of the Secretary's declaration. Lopez-Smith v. Hood, 121 F.3d 1322, 1326-27 (9th Cir. 1997). To the extent that 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.
7. The district court's order is vacated, and the case is remanded to the district court for proceedings consistent with this opinion.
THOMAS, Circuit Judge, concurring, with whom WARDLAW, Circuit Judge, joins and BERZON, Circuit Judge, joins as to Part I:
I concur in the Per Curiam opinion. I write separately to express my views on jurisdiction and the scope of our habeas review.
The district court had jurisdiction over Trinidad y Garcia's claims pursuant to 28 U.S.C. § 2241 and the Constitution of the United States.
The district court had jurisdiction over the action pursuant to 28 U.S.C. § 2241(c)(3), which makes the writ of habeas corpus available to all persons "in custody in violation of the Constitution or laws or treaties of the United States." Federal habeas relief under § 2241 is available as a remedy to non-citizens challenging executive detention. INS v. St. Cyr, 533 U.S. 289, 301-03 (2001). Section 2241 also provides an avenue of relief to persons, such as Trinidad y Garcia, who are challenging the legality of extradition proceedings. Barapind v. Reno, 225 F.3d 1100, 1110 (9th Cir. 2000). Although habeas review may have been historically narrow in the extra-dition context, see e.g. Fernandez v. Phillips, 268 U.S. 311, 312 (1925), the Supreme Court has long recognized that "[t]here is no executive discretion to surrender [an individual] to a foreign government, unless that discretion is granted by law." Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 9 (1936). Trinidad claims that his extradition would be illegal under the Foreign Affairs Reform and Restructuring Act of 1998, 8 U.S.C. § 1231 note, and its implementing regulations, 22 C.F.R. §§ 95.2-.3. This claim is cognizable on habeas review.
The REAL-ID Act*fn3 does not repeal the habeas jurisdiction available to Trinidad y Garcia, as the government contends.*fn4
The jurisdiction-stripping provisions of the REAL-ID Act removed federal habeas jurisdiction over final orders of removal, in favor of direct petitions for review. Nadarajah v. Gonzales, 443 F.3d 1069, 1075 (9th Cir. 2006). But the REAL-ID Act's jurisdiction-stripping provisions do not remove federal habeas jurisdiction over petitions that do not directly challenge a final order of removal. Id. at 1075-76; see also Flores-Torres v. Mukasey, 548 F.3d 708, 711 (9th Cir. 2008); Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942, 946 (9th Cir. 2008).
The purpose of the REAL-ID Act's jurisdiction-stripping provisions was to "consolidate judicial review of immigration proceedings into one action in the court of appeals." St. Cyr, 533 U.S. at 313 (internal quotation marks omitted) (discussing a related section). Indeed, "the entire section is focused on orders of removal." Singh v. Gonzales, 499 F.3d 969, 977 (2007). Uncodified sections of the REAL ID Act state that the legislation was intended to apply only to "final administrative order[s] of removal, deportation, or exclusion." 119 Stat. 231, 311 (quoted in notes to 8 U.S.C. § 1252). Simply put, the REAL ID Act's consolidation of judicial review of immigration matters has no effect on federal courts' habeas jurisdiction over claims made in the extradition context.
Trinidad y Garcia's habeas petition does not challenge a final order of removal; it challenges the legality of his extradition proceeding. Therefore, the REAL-ID Act does not divest federal courts of § 2241 habeas jurisdiction over his claims.
Similarly, there is nothing in the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA), Pub. L. No. 105-277, Div. G, Title XXII, 112 Stat. 2681 (codified at 8 U.S.C. § 1231 note), that repeals federal court habeas jurisdiction under § 2241, as the government also claims. FARRA provides, in relevant part, that:
Notwithstanding any other provision of law, and except as provided in the regulations [the Secretary of State promulgates pursuant to the Act], no court shall have jurisdiction to review the regulations adopted to implement this section, and nothing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under the [CAT] 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 [8 U.S.C. § 1252].
FARRA § 2242(d) (codified at 8 U.S.C. § 1231 note).
There is nothing at all in this section that purports to repeal federal habeas jurisdiction under § 2241. Rather, the section simply states it is not conferring jurisdiction. We have already held that this provision does not divest federal courts of habeas jurisdiction. Singh v. Ashcroft, 351 F.3d 435, 440-42 (9th Cir. 2003). Our sister circuits agree. Saint Fort v. Ash-croft, 329 F.3d 191, 200-02 (1st Cir. 2003); Wang v. Ashcroft, 320 F.3d 130, 140-42 (2d Cir. 2003). This issue is settled, and there is no reason to revisit it.
Although, we need not resort to the special principles of statutory construction that apply to statutes purporting to divest federal courts of habeas jurisdiction, I would be remiss if I did not underscore them. The elimination of all forms of judicial review of executive detention would violate the Constitution. See Magana-Pizano v. INS, 200 F.3d 603, 608-09 (9th Cir. 1999); U.S. Const. art. I, § 9, cl. 2. Given the constraints of the Suspension Clause, there is a strong presumption against construing statutes to repeal habeas jurisdiction. St. Cyr, 533 U.S. at 298; Ramadan v. Gonzales, 479 F.3d 646, 652 (9th Cir. 2007).
Indeed, the Supreme Court has required that (1) a statute contain "a particularly clear statement" before it can be construed as intending to repeal habeas jurisdiction, Demore v. Kim, 538 U.S. 510, 517 (2003) and (2) even if such a statement exists, courts are required to determine whether "an alternative interpretation of the statute is 'fairly possible' " before concluding that the law actually repealed habeas relief, St. Cyr, 533 U.S. at 299-300 (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)). Even if we were to credit the govern-ment's argument that the language of the REAL-ID Act and FARRA could be construed as an attempt to repeal habeas jurisdiction for the claims at issue, neither statute could satisfy the demanding standards of St. Cyr. FARRA lacks sufficient clarity to survive the "particularly clear statement" requirement. The construction of the REAL ID Act discussed earlier is more than sufficient to demonstrate that an alternate statutory interpretation is "fairly possible." Therefore, even if we were to credit the government's statutory construction (and I do not), it would not survive scrutiny under St. Cyr.
In addition to possessing jurisdiction under § 2241, the district court also had jurisdiction under the Constitution. Although the Constitution itself does not expressly grant federal habeas jurisdiction, it preserves the writ through the Suspension Clause.*fn5 Boumediene v. Bush, 553 U.S. 723, 743-46 (2008); Ex Parte Bollman, 4 Cranch 75, 94-95, 2 L.Ed. 554 (1807). The Suspension Clause was designed to protect access to the writ of habeas corpus during those cycles of executive and legislative encroachment upon it. Boumediene, 553 U.S. at 745.
The "traditional Great Writ was largely a remedy against executive detention." Swain v. Pressley, 430 U.S. 372, 386 (1977) (Burger, C.J., concurring); see also Darnel's Case, 3 How. St. Tr. 1 (K.B. 1627). There have been numerous occasions in our history when Congress has limited statutory access to judicial relief in the immigration context. See, e.g., The Immigration Act of 1917, 39 Stat. 874; the Immigration Act of 1907, 34 Stat. 898; the Immigration Act of 1891, 26 Stat. 1084; the Chinese Exclusion Act, 22 Stat. 58 (1882). However, the Supreme Court has repeatedly rebuffed arguments that these statutes foreclosed habeas corpus relief. St. Cyr, 533 U.S. at 304-08; Heikkila v. Barber, 345 U.S. 229, 234-35 (1953); United States v. Jung Ah Lung, 124 U.S. 621, 626-32 (1888).
Of particular significance is Heikkila. In considering the Immigration Act of 1917, the Supreme Court wrote in Heikkila that the Act "clearly had the effect of precluding judicial intervention in deportation cases except insofar as it was required by the Constitution." 345 U.S. at 234-35. After concluding an alien's rights were not enlarged by enactment of the Administrative Procedure Act, the court acknowledged the role of habeas corpus relief, noting that: "Now, as before, he may attack a deportation order only by habeas corpus." Id. at 235. Thus, even under legislation which intended to restrict all judicial review except as constitutionally required, the remedy of habeas corpus remained.
Thus, even if we adopted the government's position that Congress foreclosed Trinidad y Garcia's statutory habeas remedies, his resort to federal habeas corpus relief to chal- lenge the legality of his detention would be preserved under the Constitution.
Having concluded that the district court had jurisdiction, the question then becomes the scope of habeas relief available to Trinidad y Garcia. Once a federal court has completed its extradition determinations under 18 U.S.C. § 3184, the Secretary of State in her discretion may determine whether the alien should be surrendered to the custody of the requesting state. Barapind, 225 F.3d at 1105. We have long held that it is the Secretary's role, not the courts', to determine "whether extra-dition should be denied on humanitarian grounds or on account of the treatment that the fugitive is likely to receive upon his return to the requesting state." Prasoprat v. Benov, 421 F.3d 1009, 1016 (9th Cir. 2005); see also United States v. Smyth, 61 F.3d 711, 714 (9th Cir. 1995).
However, certain aspects of the Secretary's decision are reviewable. Barapind, 225 F.3d at 1106. The Convention Against Torture (CAT), as implemented by FARRA and State Department regulations, is binding domestic law. Id. Before finalizing an extradition order, the Secretary of State has a clear and non-discretionary duty pursuant to the implementing regulations to consider whether a person facing extradition from the U.S. "is more likely than not" to be tortured in the State requesting extradition when determining whether to surrender a fugitive to a foreign country by means of extradition.
In assessing whether the Secretary has complied with her statutory and regulatory obligations, our review differs from the ordinary analysis that we apply to petitions for review of decisions on CAT claims by the Board of Immigration Appeals. Immigrations judges and the BIA are charged with deciding CAT claims on the evidence presented. See e.g., Nuru v. Gonzales, 404 F.3d 1207, 1217 (9th Cir. 2005).
Therefore, in reviewing BIA decisions, we have a developed administrative record before us.
Our role in reviewing the Secretary's extradition determinations is far different because the surrender of a person to a foreign government is within the Executive's powers to conduct foreign affairs and the Executive is "well situated to consider sensitive foreign policy issues." Munaf v. Geren, 553 U.S. 674, 702 (2007). For example, the Secretary's extradition determination is not confined to matters of public record. She may make confidential diplomatic inquiries and receive confidential diplomatic assurances about the treatment of an extraditee. The Judiciary is "not suited to second-guess such determinations" because the Executive "possess[es] significant diplomatic tools and leverage the judiciary lacks." Id. Therefore, the proper separation of powers among the branches prevents us from inquiring into the merits of the Secretary's extradition decision.
Although we cannot review the merits of the Secretary's internal extradition review, the Secretary's legal obligation to comply with the CAT, as implemented by FARRA and accompanying State Department regulations, is not a part of that review process. The Secretary could not, for example, refuse to conduct the review. Therefore, the scope of habeas review allows courts to examine whether the Secretary has complied with her non-discretionary obligations. This limited review process of simply determining that the Secretary has complied with the law is the least intrusive method of maintaining the delicate balance between the competing concerns of respecting executive prerogative in foreign relations and ensuring that the law has been followed.
The appropriate manner of review, and the one endorsed by the government at oral argument, is to require submission to the court of a certification or affidavit from the Secretary or her authorized designee certifying compliance with the non-discretionary obligations imposed by statute and regulation.
Once the district court determines that the Secretary has complied with her legal obligations, its review ends. Any further inquiry into the executive branch's internal extradition review process would exceed our proper role under the Separation of Powers doctrine.
In this case, there is nothing in the record to indicate that the Secretary has fulfilled her non-discretionary obligations. The Johnson Declaration, which is the only evidence tendered by the government to the district court, only describes general procedures commonly used by the Department of State in extradition review. And it was executed before the Secretary made her determination, so it cannot form the basis for concluding that the Secretary has complied with her obligations in this case.
The government suggested in briefing that the Secretary's signature on the surrender warrant itself should be considered as proof of her determination that Trinidad y Garcia is not likely to be tortured. But the surrender warrant is not in the record. And we cannot rely on a purported admission by Trinidad y Garcia's counsel that the warrant was issued. That statement was solely based on an oral conversation with a State Department official. Thus, we are placed in the unusual position of reviewing a final agency decision that is not even part of the record.
Trinidad y Garcia has alleged in his habeas petition that the Secretary has not complied with FARRA's implementing regulations and violated his right to due process. In the absence of any evidence that the Secretary has complied with the regulation, we lack sufficient basis in the record to review the district court's order granting Trinidad y Garcia's release. Therefore, the appropriate remedy is to vacate the district court order and remand the case to the district court with directions that the government may be afforded the opportu- nity to supplement the record with an appropriate declaration that the Secretary has complied with her non-discretionary statutory and regulatory duties.
TALLMAN, Circuit Judge, with whom Circuit Judges Clifton, M. Smith, and Ikuta join, dissenting:
Hedelito Trinidad y Garcia, a Philippine national, stands accused by the Philippines of kidnaping for ransom. After Philippine authorities requested his extradition so that he might stand trial there for his crime-a request reviewed and approved by the Departments of State and Justice-he was arrested in Los Angeles. Five years later, after his claims were denied by two different courts, then Secretary of State Condoleeza Rice ordered Trinidad extradited.
We went en banc to address a relatively straightforward legal question: whether an extraditee like Trinidad may challenge the Secretary of State's decision to extradite him based on the conditions he expects to face upon return to the requesting country. Like the Supreme Court, I believe the answer to be equally straightforward: no. I am not alone. A majority of us agree that the Rule of Non-Inquiry applies and precludes Trinidad from obtaining judicial review of the substance of the Secretary's decision. And, to the extent we have previously provided for greater review or relief, e.g., CornejoBarreto v. Seifert, 218 F.3d 1004, 1012 (9th Cir. 2000), "we overrule that precedent." Per Curiam at 6402. Unfortunately, that is where our agreement ends.
Seizing on a concession the United States offered only for future cases and only if we found it legally necessary, some of my colleagues now find reason to doubt the undoubtable, worrying whether the Secretary ever made a torture determination at all. See id. at 6414-15. They brush aside the fact that Trinidad himself had no reason to doubt the reality of the Sec- retary's decision-the decision that prompted Trinidad to bring his habeas claim, the district court to rule on it, the government to appeal, and two separate panels of this court to consider the matter-recharacterizing his disagreement with the outcome of her decision as a dispute over the process she employed. Id. Worse, they ignore a litany of firmly established legal principles-not the least of which being our presumption that constitutional officers properly discharge their legal duties-to achieve an unfathomable end and further delay an extradition that has already lumbered along for close to a decade.
I cannot question so lightly the honor of the Secretary or depart so readily from governing case law. The Secretary has made her decision, and neither the Convention Against Torture ("Convention"), the Foreign Affairs Reform and Restructuring Act of 1998 ("FARR Act"),*fn6 nor the controlling regulations, 22 C.F.R. §§ 95.1-95.4, give us cause to inquire further. The Rule of Non-Inquiry squarely applies, and our inquiry is at an end. As the Supreme Court directed in Munaf v. Geren, 553 U.S. 674, 692 (2008), there is nothing left for us to do but order Trinidad's habeas petition promptly dismissed so that he may finally be extradited, and I dissent to the extent we conclude any differently.
Though I write predominately to explain in full detail why remand is so utterly unnecessary, I also believe we do the en banc process and the litigants a disservice by not more fully explaining why the Rule of Non-Inquiry precludes us from according Trinidad relief and why neither the FARR Act nor 8 U.S.C. § 1252(a)(4) deprives us of jurisdiction. I therefore address not only the reason for my dissent, but also explain my understanding of the law undergirding those issues on which we agree. Furthermore, I endeavor to correct the liberties some of my concurring colleagues have taken with both the law and the record.
Trinidad raises two distinct rationales for why he may not be extradited. First, he contends that he may "invoke the writ to challenge the Secretary's decision to surrender him in violation of his substantive due process right to be free from torture" at the hands of a foreign government. Gov't Brief at 65. He argues that the Supreme Court has yet to address "whether handing over an individual to a country where he would face the prospect of torture violates substantive due process," but has intimated that it might. Id. at 67. Alternatively, he asserts that even in the absence of a constitutionally protected interest to be free from the specter of foreign torture, he possesses a statutory right under the Convention and the FARR Act that precludes the United States from extraditing him to a country where torture is "more likely than not" to occur. Cf. § 95.2. He argues that these provisions confer a non-discretionary, mandatory obligation upon the Executive to decline to extra-dite him without first demonstrating to a court's satisfaction that it is not "more likely than not" that he will face torture there.
Trinidad's first claim is readily dispatched. Contrary to his suggestion, he is not the first to raise such a claim; nor would he be the first to have that claim denied. E.g., Neely v. Henkel, 180 U.S. 109, 123, 125 (1901) ("The court below having found that there was probable cause to believe the appellant guilty of the offenses charged, the order for his extradition was proper, and no ground existed for his discharge on habeas corpus."); Lopez-Smith v. Hood, 121 F.3d 1322, 1325-26 (9th Cir. 1997). Long ago, the Court established that extraditees may not oppose their extraditions on the ground that the law of the receiving country does not provide them the full panoply of rights guaranteed them by the Constitution of the United States. Munaf, 553 U.S. at 696-97 (discussing Neely).
In Neely, for example, the Court concluded that though the Constitution guarantees an individual a broad range of "rights, privileges, and immunities" against the United States government, including the right to be free from torture, Baze v. Rees, 553 U.S. 35, 48 (2008) (plurality opinion), those provisions had no effect "against the laws of a foreign country." 180 U.S. at 122-23 ("Allusion is here made to the provisions of the Federal Constitution relating to the writ of habeas corpus, bills of attainder, ex post facto laws, trial by jury for crimes, and generally to the fundamental guaranties of life, liberty, and property embodied in that instrument. The answer to this suggestion is that those provisions have no relation to crimes committed without the jurisdiction of the United States against the laws of a foreign country."). As recently explained in Munaf, the Court "summarily rejected this claim" because "Neely alleged no claim for which a 'discharge on habeas corpus' could issue." 553 U.S. at 696 (quoting Neely, 180 U.S. at 125).
[C]itizenship does not give him an immunity to commit crime in other countries, nor entitle him to demand, of right, a trial in any other mode than that allowed to its own people by the country whose laws he has violated and from whose justice he has fled. When an American citizen commits a crime in a foreign country, he cannot complain if required to submit to such modes of trial and to such punishment as the laws of that country may prescribe for its own people, unless a different mode be provided for by treaty stipulations between that country and the United States.
Neely, 180 U.S. at 123 (emphasis added); accord Munaf, 553 U.S. at 695. " '[T]he same principles of comity and respect for foreign sovereigns that preclude judicial scrutiny of foreign convictions necessarily render invalid attempts to shield citizens from foreign prosecution in order to preempt such non-reviewable adjudications.' " Munaf, 553 U.S. at 698-99 (citation omitted).
Trinidad's second claim is not so easily resolved, however. As the Court recognized in Valentine, the Executive does not possess plenary power to extradite. Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 8-9 (1936) ("[T]he Constitution creates no Executive prerogative to dispose of the liberty of the individual."). Accordingly, extradition proceedings "must be authorized by law" and comport with pertinent statutory limits.*fn7 Id. at 9 ("There is no executive discretion to surrender him to a foreign government, unless that discretion is granted by law."); accord Munaf, 553 U.S. at 704 (quoting Valentine, 299 U.S. at 8-9). Thus, Trinidad is correct insofar as he argues that we must determine whether any of the pertinent statutory limits on which he relies actually limit Executive authority under the relevant treaty.*fn8
(Text continued on page 6417)
Trinidad misjudges the effect of that inquiry, however. Even were we to agree that either the Convention, the FARR Act, or the regulations limit Executive authority, it does not necessarily follow that the scope of our habeas review would grow in kind. See, e.g., Oteiza v. Jacobus, 136 U.S. 330, 334 (1890) ("A writ of habeas corpus in a case of extradition cannot perform the office of a writ of error."). Rather, because the Rule of Non-Inquiry remains, these limits would only establish the concerns that might be cognizable on habeas review. See id.; see also Munaf, 553 U.S. at 693 ("The principle that a habeas court is 'not bound in every case' to issue the writ . . . follows from the precatory language of the habeas statute, and from its common-law origins."); Neely, 180 U.S. at 123. It is only when Congress pairs a limitation on the Secretary's extradition authority with an express invitation for judicial review that the Rule of Non-Inquiry retracts to permit that review. See Fernandez v. Phillips, 268 U.S. 311, 312 (1925); Neely, 180 U.S. at 123; see also Munaf, 553 U.S. at 702-03. Compare 18 U.S.C. § 3184*fn9 (statute authorizing extradition under specified conditions), with Barapind v. Reno, 225 F.3d 1100, 1105 n.4 (9th Cir. 2000) (noting the six extradition-related questions cognizable on habeas review). Three cases-Neely, Oteiza, and Fernandez-aptly demonstrate this point.
As Neely discusses, near the turn of the twentieth century, the statutory extradition framework was codified at § 5270 of the United States Revised Statutes of 1878-a precursor to the United States Code. As originally enacted, that statute placed little to no restriction on the Executive's extradition authority. It required only that there be "a treaty or convention for extradition between the government of the United States and [the] foreign government" and that the official authorizing extradition have jurisdiction over both the request and the person of the accused. Neely, 180 U.S. at 110-11 (emphasis omitted) (quoting § 5270); accord Oteiza, 136 U.S. at 334. If these conditions were met, Congress left to the extraditing official the decision whether "the evidence [was] sufficient to sustain the charge under the provisions of the treaty." Oteiza, 136 U.S. at 334. Accordingly, in Oteiza the Court summarized the habeas jurisdiction of reviewing courts as follows:
If the commissioner has jurisdiction of the subject-matter and of the person of the accused, and the offense charged is within the terms of a treaty of extradition, and the commissioner, in arriving at a decision to hold the accused has before him competent legal evidence on which to exercise his judgment as to whether the facts are sufficient to establish the criminality of the accused for the purposes of extradition, such decision of the commissioner cannot be reviewed by a circuit court or by this court, on habeas corpus, either originally or by appeal.
Id. (emphasis added). In short, habeas review extended no further than the explicit terms of judicial review authorized by the statute. Even though the statute limited the Executive's authority, the statute did not explicitly authorize review of the Executive's decision and thus the Court declined to second-guess the commissioner's self-professed adherence. See id.; accord Munaf, 553 U.S. at 702.
Notably, however, the scope of what was cognizable on habeas review began to expand in 1900 when Congress amended § 5270 to require, among other things, a judicial determination of probable cause before the Executive could lawfully extradite.*fn10 Neely, 180 U.S. at 111. Thus, in the post-amendment case of Fernandez, the Court concluded that the writ extended to "whether the magistrate 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 ground to believe the accused guilty." 268 U.S. at 312 (emphasis added). And, unlike in Oteiza, the Fernandez Court delved into the facts to make an independent legal determination of probable cause, id. at 313-14 ("We are of opinion that probable cause to believe the defendant guilty was shown by competent evidence and that the judgment remanding the appellant must be affirmed."), as required by the amendment to § 5270-an inquiry we still undertake today.
In sum, what these cases demonstrate is that the scope of our habeas review in the extradition context wholly depends on the will of Congress. The judiciary participates in the extradition process only by congressional invitation, Neely, 180 U.S. at 123, and thus our power extends no further than the bounds of that invitation. See Munaf, 553 U.S. at 702-03; Oteiza, 136 U.S. at 334. When, as under the 1890 form of § 5270, Congress prefers that the courts play a minimal role, our review is just that, minimal. As Oteiza demonstrates, it may be as minute as deciding whether jurisdiction and an authorizing treaty exist, 136 U.S. at 334-questions on which Trinidad has already received all the habeas review to which he is entitled. However, as the contrast between Oteiza and Fernandez demonstrates, when Congress requires that we play a greater role, the Rule's "hands-off" practice is abrogated to the extent Congress directs.*fn11
We must therefore evaluate the Convention, the FARR Act, and the regulations to ascertain whether, as it did when it amended § 5270 in 1900, Congress has extended a broader invitation. We must first consider whether any of these provisions actually binds the Executive's statutory authority. Moreover, as Oteiza demonstrates, even if any of these provisions actually limits Executive authority, we must further determine whether Congress intended for the judiciary to have a role in evaluating the Executive's compliance.*fn12 Id. (concluding that habeas review did not extend to permit review of the Executive's determination that it was in compliance with § 5270's requirement that "the evidence [was] sufficient to sustain the charge under the provisions of the treaty"); see Benson v. McMahon, 127 U.S. 457, 460-63 (1888) (noting the limits of § 5270 and the relevant treaty). Before we may address either of these questions, however, we must consider the threshold matter of our jurisdiction.
The government contends that two different statutory provisions negatively affect our jurisdiction over Trinidad's claim: subsection (d) of the FARR Act and 8 U.S.C. § 1252(a)(4)(d). We must determine whether either overcomes the lofty standards for precluding habeas jurisdiction established by the Court in INS v. St. Cyr, 533 U.S. 289 (2001).
Courts are not to conclude lightly that a statute precludes habeas review. Rather, the Supreme Court has directed that two principles must be considered:
"First, as a general matter, when a particular interpretation of a statute invokes the outer limits of Congress' power, we expect a clear indication that Congress intended that result." St. Cyr, 533 U.S. at 299. "[W]here a provision precluding review is claimed to bar habeas review, the Court has required a particularly clear statement that such is Congress' intent." Demore v. Kim, 538 U.S. 510, 517 (2003) (noting that the Court held in St. Cyr, 533 U.S. at 308-09, that a provision titled " 'Elimination of Custody Review by Habeas Corpus,' along with broad statement of intent to preclude review, was not sufficient to bar review of habeas corpus petitions"); St. Cyr, 533 U.S. at 298 (citing cases refusing to bar habeas review where there was no specific mention of the Court's authority to hear habeas petitions); id. at 327 (Scalia, J., dissenting) (arguing that the majority "fabricates a superclear statement, 'magic words' requirement for the congressional expression of" an intent to preclude habeas review).
Second, even if a sufficiently clear statement exists, courts must evaluate whether "an alternative interpretation of the statute is 'fairly possible.' " St. Cyr, 533 U.S. at 299-300 ("[I]f an otherwise acceptable construction of a statute would raise serious constitutional problems, and where an alternative interpretation of the statute is 'fairly possible,' see Crowell v. Benson, 285 U.S. 22, 62 (1932), we are obligated to construe the statute to avoid such problems."). If so, courts are instructed to effectuate that interpretation rather than the constitutionally suspect alternative. Id. at 299-300, 300 n.12 (" 'As was stated in Hooper v. California, 155 U.S. 648, 657 (1895), "[t]he elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality. . . ." The courts will therefore not lightly assume that Congress intended to infringe constitutionally protected liberties or usurp power constitutionally forbidden it.' " (first alteration in original) (quoting Edward J. DeBar-tolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988))).
As concluded by the First and Second Circuits, the FARR Act fails to overcome even the first of St. Cyr's concerns, sufficient clarity. Saint Fort v. Ashcroft, 329 F.3d 191, 200-02 (1st Cir. 2003) (concluding that the FARR Act does not preclude habeas jurisdiction, at least in the immigration context); Wang v. Ashcroft, 320 F.3d 130, 140-42 (2d Cir. 2003) (same). But see Mironescu v. Costner, 480 F.3d 664, 674 (4th Cir. 2007).*fn13 Primarily, the pertinent provision, § 2242(d),*fn14 speaks only in terms of review, not habeas. This alone appears dispositive. Demore, 538 U.S. at 517; St. Cyr, 533 U.S. at 298. But see St. Cyr, 533 U.S. at 327 (Scalia, J., dissenting) (arguing that specific mention of "habeas" is not required). Moreover, § 2242(d) can readily be interpreted as jurisdiction-neutral-neither providing nor precluding jurisdiction. It thus falls far short of the "particularly clear statement" necessary for us to conclude that Congress intended to bar habeas review. Demore, 538 U.S. at 517; St. Cyr, 533 U.S. at 298.
Section 1252(a)(4) does not suffer from the same infirmity. It clearly demonstrates congressional intent to preclude habeas review of a broad category of claims when it declares:
Notwithstanding any other provision of law (statutory or non-statutory) including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of any cause or claim under the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment, except as provided in subsection (e) of this section.
§ 1252(a)(4) (emphasis added). It easily hurdles the first of St. Cyr's requirements, see Demore, 538 U.S. at 517; St. Cyr, 533 U.S. at 298, and gives us cause to consider St. Cyr's second admonition-whether a "fairly possible" alternative interpretation exists that would allow us to avoid resolving the "diffi-cult" constitutional question that might otherwise arise, i.e., whether relying on § 1252(a)(4) to preclude habeas review would be consistent with the Suspension Clause.*fn15 See 533 U.S. at 299-300, 301 n.13 ("The fact that this Court would be required to answer the difficult question of what the Suspension ...