FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SUWIT PRASOPRAT, 

No. 03-57253 Petitioner-Appellant,

D.C. No.

v.  CV 02-08751 HLH

MICHAEL BENOV, Warden, OPINION Respondent-Appellee. 

Appeal from the United States District Court

for the Central District of California

Harry L. Hupp, District Judge, Presiding

Argued and Submitted

October 6, 2004—Pasadena, California

Submission Vacated November 8, 2004

Resubmitted August 15, 2005

Filed August 31, 2005

Before: Harry Pregerson, A. Wallace Tashima, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Tashima

11975
COUNSEL

Barry O. Bernstein, Burbank, California, for the petitionerappellant. 

PRASOPRAT v. BENOV 11977
Daniel Scott Goodman, Assistant United States Attorney, Los

Angeles, California, for the respondent-appellee. 

OPINION

TASHIMA, Circuit Judge: 

Suwit Prasoprat, a United States citizen fighting extradition

to Thailand, appeals an order of the district court denying his

petition for a writ of habeas corpus filed pursuant to 28 U.S.C.

§ 2241. Prasoprat contends that his due process rights were

violated when the extradition court denied his motion seeking

discovery of information related to the use of the death penalty in Thailand for drug offenses. He also contends that the

extradition court should have denied his extradition on

humanitarian grounds. We have jurisdiction under 28 U.S.C.

§§ 1291 and 2253. We affirm the district court. 

Extradition from the United States is a diplomatic process

that is initiated by a request from the nation seeking extradition directly to the Department of State. Blaxland v. Commonwealth Dir. of Pub. Prosecutions, 323 F.3d 1198, 1207 (9th

Cir. 2003). “After the request has been evaluated by the State

Department to determine whether it is within the scope of the

relevant extradition treaty, a United States Attorney . . . files

a complaint in federal district court seeking an arrest warrant

for the person sought to be extradited.” Id.

If, after a hearing regarding the evidence of criminality

against a person sought to be extradited, a judge or magistrate

judge

deems the evidence sufficient to sustain the charge

under the provisions of the proper treaty or convention . . . , he shall certify the same, together with a

copy of all the testimony taken before him, to the

11978 PRASOPRAT v. BENOV
Secretary of State, that a warrant may issue upon the

requisition of the proper authorities of such foreign

government, for the surrender of such person. . . . 

18 U.S.C. § 3184. Thus, a magistrate or judge first holds a

hearing to determine “whether (1) the crime is extraditable;

and (2) there is probable cause to sustain the charge.”

Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1009 (9th Cir.

2000) (footnote omitted) (“Cornejo-Barreto I”).1 The magistrate judge “has no discretionary decision to make.” LopezSmith v. Hood, 121 F.3d 1322, 1326 (9th Cir. 1997). Rather,

“[i]f the evidence is sufficient to sustain the charge, the

inquiring magistrate judge is required to certify the individual

as extraditable to the Secretary of State and to issue a warrant.” Blaxland, 323 F.3d at 1208. The Secretary of State then

determines in her discretion whether the individual will be

surrendered. Id. (citing United States v. Lui Kin-Hong, 110

F.3d 103, 110 (1st Cir. 1997); 18 U.S.C. § 3186). 

BACKGROUND

In 1998, a confidential informant reported to an agent of

the Drug Enforcement Administration (“DEA”) that Prasoprat

was involved in heroin trafficking between Bangkok, Thailand, and Los Angeles.2

 The DEA monitored Prasoprat for

several years and, in 2001, the United States filed a complaint

in the United States District Court on behalf of the Government of the Kingdom of Thailand, seeking Prasoprat’s extradition to Thailand pursuant to the extradition treaty between

the United States and Thailand. The complaint alleged that

1The holding in Cornejo-Barreto I was disapproved of by CornejoBarreto v. Siefert, 379 F.3d 1075 (9th Cir. 2004) (“Cornejo-Barreto II”).

The en banc court, however, later vacated Cornejo-Barreto II and denied

the government’s request to vacate Cornejo-Barreto I. Cornejo-Barreto v.

Siefert, 389 F.3d 1307 (9th Cir. 2004) (en banc). 

2The details of the DEA’s investigation are not pertinent to this appeal

because Prasoprat does not challenge the finding that there was probable

cause that he committed the offense. 

PRASOPRAT v. BENOV 11979
Prasoprat and another individual were wanted in Thailand for

drug offenses that are covered by the extradition treaty. Prasoprat was ordered detained by a magistrate judge. 

Prasoprat filed a motion for discovery, seeking information

allegedly in the government’s “exclusive possession” that

related to the use of the death penalty in Thailand as punishment for drug offenses. Prasoprat argued that the extradition

request violated the extradition treaty because the offense for

which extradition was sought was punishable by death in

Thailand but not in the United States.3 He therefore sought an

order “for the government to disclose any information that the

death penalty is the punishment for drug convictions in Thailand.” 

The magistrate judge denied Prasoprat’s discovery motion.

He reasoned that the extradition treaty explicitly placed the

authority to examine the issue of the death penalty in determining extradition within the executive branch, not the judicial branch. The court thus ruled that discovery regarding the

availability of the death penalty was not appropriate. 

Following an extradition hearing, the magistrate judge

determined that the government had established probable

cause to sustain the narcotics charges. The court therefore

entered an extradition certification, ordering that Prasoprat

was extraditable and certifying the matter to the United States

Secretary of State to issue a warrant to extradite Prasoprat. 

3Prasoprat also argued that Thailand’s extradition request violated Article 3 of the treaty, which provides that extradition shall not be granted

when the offense is a political offense, or when it is established that extradition is requested for political purposes. Extradition Treaty with Thailand, Dec. 14, 1983, U.S.-Thail., art. 3, 1983 U.S.T. Lexis 418, available

at http://www.usextradition.com/thailand_bi.htm. Prasoprat contended that

his extradition was sought for political purposes. He does not raise this

issue on appeal. 

11980 PRASOPRAT v. BENOV
Prasoprat then filed this petition for a writ of habeas corpus. The magistrate judge submitted a report and recommendation to the district court, recommending that the petition be

denied. The district court adopted the report and denied Prasoprat’s petition. See Prasoprat v. Benov, 294 F. Supp. 2d 1165

(C.D. Cal. 2003). Prasoprat filed a timely notice of appeal.

The district court issued a certificate of appealability on two

grounds: (1) the extradition court’s denial of Prasoprat’s discovery request for information regarding the death penalty in

Thailand for drug possession; and (2) the extradition court’s

refusal to deny extradition on humanitarian grounds. 

STANDARD OF REVIEW

The decision to certify a person as extraditable is not subject to direct appeal but may be challenged collaterally

through habeas corpus review. Barapind v. Enomoto, 400

F.3d 744, 748 n.5 (9th Cir. 2005) (en banc) (per curiam);

Cornejo-Barreto I, 218 F.3d at 1009. The district court’s

habeas review of an extradition order is limited to: (1)

whether the extradition court had jurisdiction to conduct the

proceeding and jurisdiction over the individual sought; (2)

whether the extradition treaty was in force and the crime fell

within the treaty’s terms; (3) whether there was probable

cause that the individual committed the crime; and (4)

whether the crime fell within the political offense exception.

Id. at 1009-10; Mainero v. Gregg, 164 F.3d 1199, 1205 (9th

Cir. 1999); see also Fernandez v. Phillips, 268 U.S. 311, 312

(1925) (stating that “habeas corpus is available only to inquire

whether the magistrate had jurisdiction, whether the offense

charged is within the treaty and . . . whether there was any

evidence warranting the finding that there was reasonable

ground to believe the accused guilty”). 

We review de novo the district court’s denial of a habeas

petition in extradition proceedings. Cornejo-Barreto I, 218

F.3d at 1009; see also Barapind, 400 F.3d at 748 (reviewing

de novo the district court’s decision on questions of law and

PRASOPRAT v. BENOV 11981
mixed questions of law and fact). The district court’s denial

of a discovery request in an extradition case is reviewed for

an abuse of discretion. Emami v. United States Dist. Court,

834 F.2d 1444, 1452 (9th Cir. 1987). 

DISCUSSION

On appeal, Prasoprat raises two issues. First, he contends

that the extradition court abused its discretion in denying his

motion for discovery regarding the use of the death penalty in

Thailand for drug offenses. Second, he argues that the extradition court should have denied extradition on humanitarian

grounds. 

I. Discovery Motion

[1] “An extradition proceeding is not a trial[.]” Emami, 834

F.2d at 1452. Thus, “discovery in an international extradition

hearing is limited and lies within the discretion of the magistrate.” United States v. Kraiselburd (In re Extradition of Kraiselburd), 786 F.2d 1395, 1399 (9th Cir. 1986); see also, e.g.,

Koskotas v. Roche, 931 F.2d 169, 175 (1st Cir. 1991) (stating

that, “in an extradition proceeding, discovery is not only discretionary with the court, it is narrow in scope”); cf. Oen YinChoy v. Robinson, 858 F.2d 1400, 1407 (9th Cir. 1988)

(“Although there is no explicit statutory basis for ordering

discovery in extradition proceedings, the extradition court has

the inherent power to order such discovery procedures as law

and justice require.”). 

[2] The issue regarding which Prasoprat sought discovery

— the use of the death penalty in Thailand — was outside the

purview of the magistrate judge. Article 6 of the extradition

treaty between the United States and Thailand deals with capital punishment and states: 

When the offense for which extradition is sought is

punishable by death under the laws of the Request11982 PRASOPRAT v. BENOV
ing State and is not punishable by death under the

laws of the Requested State, the competent authority

of the Requested State may refuse extradition unless:

(a) the offense is murder as defined under

the laws of the Requested State; or 

(b) the competent authority of the Requesting State provides assurances that it will

recommend to the pardoning authority of

the Requesting State that the death penalty

be commuted if it is imposed. 

In the case of the United States of America, the competent authority is the Executive Authority. 

Extradition Treaty with Thailand, Dec. 14, 1983, U.S.-Thail.,

art. 6, 1983 U.S.T. Lexis 418, available at

http://www.usextradition.com/thailand_bi.htm. The treaty

thus clearly provides that the executive branch holds the

authority for determining extradition when the death penalty

is involved. 

[3] The only purpose of the extradition hearing is for the

magistrate judge to determine whether the crime is extraditable and whether there is probable cause to support the

charge. Cornejo-Barreto I, 218 F.3d at 1009. If those requirements are met, the judicial officer must certify the individual

as extraditable to the Secretary of State. Id.; see also Blaxland, 323 F.3d at 1208 (stating that “American judicial officers conduct a circumscribed inquiry in extradition cases” and

that, “[i]f the evidence is sufficient to sustain the charge, the

inquiring magistrate judge is required to certify the individual

as extraditable to the Secretary of State and to issue a warrant”). 

[4] Thus, discovery of information regarding the use of the

death penalty in Thailand, like the issue itself, is not relevant

PRASOPRAT v. BENOV 11983
to the magistrate judge’s inquiry. Even if such evidence were

in the government’s exclusive possession, it would not be relevant to the magistrate judge’s decision regarding whether to

certify Prasoprat as extraditable. Cf. Emami, 834 F.2d at 1452

(in deciding discovery issues in extradition hearings, one consideration is “ ‘whether the resolution of the contested issue

would be appreciably advanced by the requested discovery’ ”)

(quoting Quinn v. Robinson, 783 F.2d 776, 817 n.41 (9th Cir.

1986)). 

Our conclusion is supported by our decisions in Kraiselburd and Lopez-Smith. In Kraiselburd, the petitioner made a

“blanket discovery request” for Argentina, the requesting

country, to produce its entire file on the crime with which he

was charged. Kraiselburd, 786 F.2d at 1399. The magistrate

granted the motion only “to the extent it related to the question whether there existed probable cause tying appellant to

the murders.” Id. On appeal from the district court’s denial of

the habeas petition, we concluded that, “[b]ecause the purpose

of the extradition hearing is simply to determine whether

there exists probable cause that the fugitive committed the

offense charged, the magistrate properly limited discovery.”

Id. Under Kraiselburd, therefore, the magistrate judge may

limit discovery to issues related to the purpose of the extradition hearing. 

[5] Similarly, in Lopez-Smith, the petitioner sought to present evidence regarding whether discretion should be exercised

to extradite him. On appeal, we stated that the magistrate

judge properly excluded evidence addressing the exercise of

discretion “because the magistrate judge has no discretion.”

Lopez-Smith, 121 F.3d at 1326. Because discretion belonged

to the Secretary of State, Lopez-Smith stated that it was “for

the Secretary to decide what evidence might have a bearing

upon its exercise. There is no reason why the magistrate judge

should decide what evidence might be useful to the Secretary

of State.” Id. As in both Kraiselburd and Lopez-Smith, the

11984 PRASOPRAT v. BENOV
evidence that Prasoprat sought in his motion for discovery

was not relevant to the extradition judge’s limited inquiry. 

Prasoprat urges us to rely on Demjanjuk v. Petrovsky, 10

F.3d 338 (6th Cir. 1994), in which government attorneys

failed to disclose “exculpatory information in their possession

during [denaturalization proceedings] culminating in extradition proceedings.” Id. at 339. The evidence sought by Demjanjuk, however, related to whether he was in fact the

individual who had committed the extraditable offense and

thus concerned the probable cause determination. See In re

Extradition of Drayer, 190 F.3d 410, 415 (6th Cir. 1999)

(stating that Demjanjuk would require the United States to

“turn over any exculpatory materials in its possession that

would undercut a finding that there was probable cause to

believe that” the petitioner committed the crime charged by

the requesting country). 

[6] By contrast, in the case at bench, the information sought

by Prasoprat does not relate to an issue within the scope of the

magistrate judge’s authority to examine. When the offense for

which extradition is sought is punishable by death, the question of whether to refuse extradition on that basis is within the

authority of the executive branch, not the judicial branch.4 We

accordingly conclude that the extradition court did not abuse

its discretion in denying the motion seeking discovery on the

use of the death penalty in Thailand. 

II. Humanitarian Exception

[7] Prasoprat’s second contention is that the extradition

court should have denied extradition on humanitarian

4Prasoprat’s assertion that the Executive branch has “exclusive possession” of information concerning the use of the death penalty in Thiland for

drug offenses, if true, would bolster the Executive’s claim that it has the

expertise to exercise the authority granted to the Requested State by Article 6 of the treaty. 

PRASOPRAT v. BENOV 11985
grounds. We have long adhered to the rule of non-inquiry —

that it is the role of the Secretary of State, not the courts, to

determine whether extradition 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. See

Blaxland, 323 F.3d at 1208 (stating that, “judges generally

‘refrain from examining the penal systems of requesting

nations, leaving to the Secretary of State determinations of

whether the defendant is likely to be treated humanely’ ”)

(quoting Lopez-Smith, 121 F.3d at 1327); see also Barapind

v. Reno, 225 F.3d 1100, 1105-06 (9th Cir. 2000) (stating that

“[m]any courts, including ours, have adhered to the general

rule that it is not the role of the courts, but rather the Secretary

of State, to determine whether extradition should be denied on

humanitarian grounds”). The rule of non-inquiry is based on

the principle that the Secretary of State’s exercise of discretion regarding whether to extradite an individual may be

based not only on “considerations individual to the person

facing extradition” but “may be based on foreign policy considerations instead.” Lopez-Smith, 121 F.3d at 1326. “The

need for flexibility in the exercise of Executive discretion is

heightened in international extradition proceedings which

necessarily implicate the foreign policy interests of the United

States.” Emami, 834 F.2d at 1454 (quoting Escobedo v.

United States, 623 F.2d 1098, 1105 (5th Cir. 1980)). 

We have, on occasion, cited the possibility of a humanitarian exception to extradition; however, we have never actually

“relied on it to create” such an exception. Mainero, 164 F.3d

at 1210 (“Assuming that the possibility [of a humanitarian

exception to extradition] exists in the abstract, this is not the

sort of situation . . . for which an exception might be justified.”); see, e.g., Cornejo-Barreto I, 218 F.3d at 1010 (stating

that “[o]ur research failed to identify any case in which this

theoretical exception has been applied” and declining to consider it); Lopez-Smith, 121 F.3d at 1326-27 (discussing the

“frequently quoted (but not followed) dictum” that a court

may apply a humanitarian exception to extradition, but con11986 PRASOPRAT v. BENOV
cluding that “the facts in this case are not so egregious as to

invoke the dictum”). 

[8] We therefore agree with the district court that “[a]n

extradition magistrate lacks discretion to inquire into the conditions that might await a fugitive upon return to the requesting country.” Prasoprat, 294 F. Supp. 2d at 1171. The

extradition magistrate’s authority has been constrained by

statute and caselaw to a narrow inquiry, such that the magistrate judge does not have any discretion to exercise. Once the

magistrate judge determines that the crime is extraditable and

there is probable cause to sustain the charge, “it is the Secretary of State, representing the executive branch, who determines whether to surrender the fugitive.”

5 Blaxland, 323 F.3d

at 1208. 

[9] The extradition treaty at issue here repeatedly places the

decision to extradite a person from the United States within

the authority of the executive branch. See, e.g., Extradition

Treaty art. 8 (stating that, “[i]n a case in which the United

States of America is the Requested State, the Executive

Authority shall have the power to extradite its nationals if, in

its discretion, it is deemed proper to do so”); id. art. 13 (when

requests for extradition are made by several states, “the decision . . . shall be made by the Executive Authority in the

United States of America”). This is in accordance with the

“generally established principle . . . that ‘[t]he Secretary of

State, exercising executive discretion through delegation of

this authority by the President, may refuse to extradite a relator despite a judicial determination that extradition would be

compatible with the terms of the applicable treaty.’ ” Blax5We note, however, that in light of legislation implementing the United

Nations Convention against Torture, the rule of non-inquiry does not prevent an extraditee who fears torture upon surrender to the requesting government from petitioning for habeas corpus review of the Secretary of

State’s decision to extradite him. Cornejo-Barreto I, 218 F.3d at 1009 n.5,

1016-17. 

PRASOPRAT v. BENOV 11987
land, 323 F.3d at 1208 (quoting Lopez-Smith, 121 F.3d at

1326) (alteration in original). The extradition magistrate simply does not have the authority to consider foreign policy concerns and other issues that may affect the executive branch’s

decision whether to extradite. See id. (stating that “the executive branch’s ultimate decision on extradition may be based

on a variety of grounds, ranging from individual circumstances, to foreign policy concerns, to political exigencies”).

For these reasons, we agree with the district court that the

magistrate judge did not have the authority to refuse to issue

a certificate of extradition on humanitarian grounds.6

[10] The judgment of the district court denying Prasoprat’s

habeas petition accordingly is 

AFFIRMED.

6Prasoprat emphasizes that he is a United States citizen. We have stated,

however, that “United States citizenship does not bar extradition by the

United States.” Quinn, 783 F.2d at 782. 

11988 PRASOPRAT v. BENOV