it please the court steve satie from the organ federal public defender representing a power the emergency motion that brings this case before the court involves a profoundly important question whether treaty based statutory protections are negated by it later extradition treaty proceeding in this case the answer has to be no in order to comply with due process in a footnote in the case of bear upon which is an extremely important one for this case this footnote seven the court explicitly left open the question of whether the issuance of an extradition warrant renders moot any pending asylum application the detailed opinion of immigration judge andrea sloan at one o seven spells out in detail how important it is to reach the removal withholding of removal questions that are excluded from extradition proceedings by the doctrine of non inquiry but the court's opinion in berent pens has been broadly misread to exclude any proceedings against torture or persecution in another country as long as there is an extradition proceeding even if after security here those proceedings commenced after the application had been made for relief from persecution in the immigration court could you describe the underlying immigration claims that he has what his basis is very expecting persecution or torture yes he is as is included in the  is identified his actions against police corruption and that those police actions and views and refusal to participate in problems involving police corruption that has led to his persecution and his fear of return and the persecution was the conviction for which he never served a sentence not only that your honor that but i believe that the opinion of the immigration judge sets out that he has made a sufficient claim that those claims have to be considered in order to comply with the mandatory terms of the withholding of removal statute our assertion is that the court should either find as a met i didn't see the immigration judge reaching the merits at all of the claims but i can't tell whether the b i i made some assessment of the merits when it thought the case didn't need to continue it doesn't explain what its basis was known not at all if they simply relied on they said oh we have an extradition proceeding we don't have to do a darn thing now we totally eliminate any opportunity to be heard to have review of those critical questions and those critical questions are articulated by the immigration judge in three ways that are fundamentally different one ten the judge says that the nature of the proceedings the availability of relief and the opportunities for judicial review of such determinations are markedly different in this case so i'm not i guess what i'm struggling with is just i think in some cases where someone has a really compelling withholding argument or cat argument there may be a due process problem but i'm really struggling i don't even see that in the extradition process that is why all of the cases in this area including bearup and talk about there's two separate and distinct operations there's no business in the extradition case in evaluating the strength of a room with holding room of removal claim that is solely in the in the province of the immigration courts and so what we're being deprived of is the opportunity to be heard on those things this is again extradition the courts have been very emphatic there is a doctrine of not inquiry that does not permit us to make the same types of claim that the immigration lawyer is going to be making in the proceedings in the immigration on the withholding of remov that matter is what he is going to be deprived of the opportunity to be heard ever if he is taken out as is currently the reason why we filed an emergency motion and this court there's nothing in the we should be in corpus we're looking at a functional analysis what is the functional analysis here when the extradition warrant is being served he's being directed to surrender himself to the attorney general to be handed over to be placed in a jail and be picked up by the foreign authorities that that will know and the government has said that will move his removal proceedings and the question is can the statutory mandatory protections be trumped by this type of of executive action and if this executive action is based on a treaty is that not between two countries as so we've got a little tension don't we between have  refugee and we've got some legal issues over here and immigration why don't we have to deal with the treaty issues for the treaty issues can be resolved but the extradition certification has to be conditional on completion of the other treaty based statutory protections the supreme court said in cardoza fun second withholding of removal and then it was deportation is mandatory under the statute that is it and it traces all the treaties that that isn't forcing why would they extradition proceeding that has a specific non inquiry provision limit a constitutional a statutory right to be heard on th very important protection but let's just assume there was an extradition proceeding and you had no defense it wasn't the statute of limitations if you there wasn't this it was clearly the person will be extradited but he goes then into the immigration court and wants to have it state now under those circumstances would you say that we still have to sort out the immigration issues before the extradition yes if he's going back to  they're going to put him on a wall and torture him he should have kept protections and be able to her be heard in the immigration court on a persecution based on race or religion yes that is exactly what we're saying  haiti as a basis but again the immigration judge with jurisdiction over this has already looked at it and said it would be improper for me not to rule on this before it's not the purview of the extradition court to make those decisions but what the extradition court is doing by putting its priority and is basically to negate to eliminate to reason violate the due process right to be heard on this matter so let me ask you this  happen is very analogous to what happened in clark versus martinez inza vitus versus davis which is that if you can't be returned safely you're put into a status but you have the safety of return is reviewed periodically and so i think that that analogy would probably fit but i think probably the extradition process could go forward anyway country think not to the not to the execution of the of the order to take the person back to be tortured i think that that is exactly what we have signed on as a society as saying we should not ever happen and the united nations i mean i think the theories may be distinct you know if you go back to the country and and say he is being tortured or something for reasons other than unrelated to the criminal prosecution then maybe something ideas are for matter i'd think that the protections of the cat and withholding of removal are mandatory that if those concerns of for return are merely rated that he could be returned but until then they they trump they are the ones that those rights have to be recognized those rights have to be and united nations paper that we submitted in the rule twenty eight a letter we're the only country that doesn't clearly spell that out either in the caseload or the statutes and it's this mis understanding of bearup and that has created this contradiction in our case and we do have a claim that the type of review that occurred here is all wrong because there is all this discretion being given on the question about lapse of time seventeen years ago two thousand and one and there's no even though at the detention hearing the lawyer for the czech republic said oh two thousand and one he must have been he's been in the wind since then not true between two thousand and one two thousand and nine we've established he was in the in the what the ministry of justice says about it we have no court opinions we have our experts that have provided opinions and what is totally different about this situation than other cases about saying oh well foreign law so complicated but i'm sorry just to clarify your answer you dispute that the check courts said what the government says i think that is not in the record because i don't know what the court said whether ruled on procedural grounds what the arguments were made or what the conclusions were there is nothing in the record about what this check court said except for what the ministry of justice said in an adversary proceeding about the this particular proceeding in the extradition matter it's not as though i mean any check court what about the check trial court were there was there more than one check court that has said that this isn't time barred at this point courts have that were mentioned in the records or that one thousand and one twenty two where they're talking about the execution of the sentence using an invalid order and that they've admitted did not actually withdraw the earlier order under those circumstances the there has not been a finding by any court that that is in the record about this particular question there has there good morning your honors may please the court christopher smith for the united states your honors the district court correctly denied miroslav petition for writ of habeas corpus based on this court's controlling precedent and the repeated and unequivocal statements of the czech republic that the stat that countries statute of limitations have not expired mr feds far has been convicted of two serious crimes and sentenced to three years of imprisonment and though your opposing counsel just said that there is nothing from a check card in the record do you agree with that characterization your honor i'd point the court to e r three two three which is the letter that the united states department of justice received from the ministry of justice of the czech republic in that letter the competent czech ministry explain firstly the ministry of justice of the czech republic would like to inform the united states department of justice that mr fed's far as defense attorney repeatedly made the same arguments at the competent courts of the czech republic even at the constitutional court the letter goes on to say the constitutional court of the czech republic expressly stated by its resolution that it quotes their citations for the resolution that both orders to deliver mr fetch for the prison were issued legally as according to the czech law and then it goes on to say the senate's of imprisonment imposed on mr feds far is not statute barred for time for lapse of time therefore your honor the czech government the czech courts have expressly stated on this issue th statute of limitations has not expired as this court said insane and venables quote the court declined to rule on the procedural requirements of foreign law out of respect for other nations sovereignty and because we recognize the chance of  interpretation much greater when we try to construe the law of a country whose legal system is not based on common law principle are the check court decisions available somehow i mean why do we only have the letter characterizing them your honor that's how the czech government chose to provide the united states the information as it is the czech government's right that's presumptively admissible in an extradition hearing pursuant to eighteen us c thirty one ninety and the terms of the treaty which says that articles that are transmitted through certain procedures in this case through the ministry of justice to the part of justice are admissible shall be admitted in extradition proceedings therefore it was competent evidence for the court to rely on in the extradition proceeding itself and indeed the  extradition magistrate as well as the district judge noted in those opinions in both each of their opinions that the czech courts had expressively rejected the argument that mr fish for racists here and i assume the united states doesn't have any further documents on this no your honor not that i'm aware of but and i'd also point out that the czech ministry of justice has provided an explanation for that reasoning of why the statute of limitations is that run has not run so this is not a case if there were to be some cases of which i am not aware that there is one where a court would override a foreign constitutional court's interpretation of its own law here would not be that case because they've checked government has also provided a very reasonable explanation of how the courts reach these decisions so your honor as this the sixth circuit said in a case called bostich v stack in instances like this it's not the role of the federal court to quote second guess the courts and government of a flying power in the interpretation of their own law such would violate comedy it would potentially violate the treaty and it would have foreign policy implications in this case your honor we would submit that this court that this court should affirm the district court on this ground because the district court quite reasonably looked to the czechs interpretation of their own law now your honor as i will turn if the court has no for their questions on the statute of limitations issue all turned to be the immigration issue and i think  as an initial my atter i want to point out that i think that mr french far as argument proceeds on this point by conflating immigration and extradition proceedings immigration proceedings and immigration hearings under title eight of united states code determine one's ability to remain in the united states under immigration laws however if the statutory and treaty requirements of extradition are met one may be extradited regardless of one's immigration status in the united states so your position is if if he had pursued his remedies and been granted relief under the convention against torture you can still extradite that's absolutely correct your honor and there is one example that i would point out that i think demonstrates that and that's th the adjudication of one's immigration claims in immigration court has to do with one's immigration status no no one has a greater immigration status than the united states citizen yet the united states has the power under treaties and federal law to extradite its own citizens if the requirements submit been made been met indeed in eighteen u s c thirty one thirty one ninety seven congress has i'm sorry thirty one ninety six congress has express provided that the united states may extradite its own citizens i think that that demand you don't think the convention against torture puts a limit on that oh it certainly puts a limit on that your honor it's just to separate proceedings the convention against torture is considered by the secretary of state before issuing a surrender warrant i would point the court to this what if the immigration courts had reached a determination on that issue would that be binding no it wouldn't because i know that well it's to ultimately first of all the court's decision in trinidad garcia v thomas on bach explains the convention against torture process and the judicial review entailed thereof in the immigration context but it really is two separate inquiries though the but the immigration court is looking at is whether or not this individual may be returned to another country as an ordinary citizen to carry on with life in that country based on the facts before the immigration court what the secretary of state is looking at while ultimately the same standard that we will not return somebody to a country where they face will more likely than not face torture it's different circumstances that they are being returned they are being extradited pursuant to the protections of an international treaty which include the rule of specialty the treaty expressly provides that an individual extradited may not be tried for any other offense other than the one on which he was extradited this treaty provides that once extradited the individual may not be tried or punished for any political offense once extradition has occurred and as chief judge thomas pointed out in his concurrence in trinidad  secretary of state in the extradition process is the best equipped to undertake this inquiry because when an immigration judge is looking at the record before the immigration judge and whether this individual may be returned as an ordinary citizen to the other country the secretary in the extradition process may engage u s diplomatic interests abroad to both seek a surance is from the foreign country that that individual will not be mistreated in any way and also has the ability frankly once the fugitive is extradited to ensure that the that the state that has received the fugitive lives up to those obligations or else there could be diplomatic recourse that's why  it even if the say the immigration court makes a cat determination based on conditions in prison so say this country is imprisoning gay people this person is gay they're keep getting thrown in prison if they keep getting tortured in prison you're saying the finding that this person is going to be tortured in prison would not carry over there be no binding effect what seems very counterintuitive you're on are first of all based on federal law the secretary will not thomas which is that the secretary has vast tools to potentially mitigate the concerns that the immigration judge might have had for example if an immigration judge finds that somebody could be tortured if they are returned to prison a in a foreign country the secretary of state may very well agree with that and obtain an assurance from the country that that person will only be returned to prison see and will not serve time in prison a to be the adjudicator of humanitarian claims that's rooted in article two the foreign affairs power it's also rooted in this case law lopez smith trinidad he garcia there's a long line of cases going back in deed i unaware of any court that has ever found that immigration proceedings have in some way control the extradition determination that's to the contrary of what both the b i a has held and what this court has held in bearup and we're on multiple occasions in the one fair and there are several places where the court says we're not actually agreeing with the theory that this is moot we're not actually agree reaching the idea about whether he does have a right to have his immigration claims adjudicated before he is removed from this country pursuant to immigration law this is on an entirely separate track the immigration claims he cannot be removed from the country under immigration law intil his immigration claims are adjudicated however he is not being removed from the country under immigration law he's being extradited pursuant to treaty and the federal extradition statutes eighteen u s c thirty one eighty one and following therefore it really is two separate two separate inquiries two separate systems and the withholding of removal that the mr feds foresights in title eight basically the statute expressly states that if you find that somebody is going to be persecuted they shout the attorney general shall not remove them but removal in the immigration laws and title eight is removal in immigration proceedings title eighteen is extradition it's an entirely separate proceeding and that subsection of i believe it's eight u s c twelve thirty one i think it's b three doesn't apply to extradition which is an entirely separate proceeding if your honour's have no further questions i would ask that you affirm the district court and thank you very much  i just heard that there is not a bit of statutory language that allows the that addresses this issue and that's exactly what a footnote to on your one ten the immigration judge said i've done my own independent research they claim proposition and if we're looking at statutory construction what we'd be looking at is the very specific mandatory language of withholding of removing the very general and nonspecific language of the last sentence and thirty one eighty four and fall apart versus martinez and say let's avoid the constitutional problem and if allow for the removal proceedings to be heard and decided but so you would interpret the word removal to include extradition absolutely it's the language of the treaties and the underlying language is so putting them on the shores of another country and is there any time limit so this i j scheduled a hearing for three years in the future i mean is there any need for coordination that should happen in your view if they were worried about time why would they stalin it it's like putting concrete boots on and saying how come you're going so slow they could have exploited it they could have not interrupted any delay is on the government not mr fay far he's willing to go forward he was ready to go forward three days before his hearing they take him into custody and right away the department of homeland security files  request to close the question of the minister of justice what kind of proof we would expect again this is not historical anything from you saying look i have the court decision it doesn't say that or something contrary i don't understand how we have a basis to doubt the facts that are stated i guess i would be looking at the same principle that the court uses which is briefs of parties are not evidence if they an evidence bring it in show it we brought in our evidence they didn't bring in evidence a matter of fact the evidence that they do bring in they have the contradictory language claiming that that i their motion for detention saying that he was that he was not present in the it seems that he fled the territory of the czech republic right after his conviction two thousand and one that's a dock nine two in the immigration proceedings then all a sudden oh well maybe two thousand and eight maybe withdrawn and reissued no it didn't get sealed which is probably invalid that's not the type of evidence you use when you have to establish subject matter jurisdiction and personal