Zhenli Ye Gon v. Frank Dyer, III , 651 F. App'x 249 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7620
ZHENLI YE GON,
Petitioner – Appellant,
v.
FRANK E. DYER, III, Superintendent of the Central Virginia
Regional Jail; GERALD S. HOLT, U.S. Marshal for the Western
District of Virginia; JOHN F. KERRY, U.S. Secretary of
State,
Respondents – Appellees.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, Chief
District Judge. (7:15-cv-00462-GEC-RSB)
Argued: May 12, 2016 Decided: June 10, 2016
Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Gregory Stuart Smith, GREGORY S. SMITH, ATTORNEY AT LAW,
Washington, D.C., for Appellant. William Andrew Glaser, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.
ON BRIEF: John C. Lowe, JOHN LOWE, P.C., Bethesda, Maryland;
Ning Ye, LAW OFFICE OF NING YE, Flushing, New York, for
Appellant. Leslie R. Caldwell, Assistant Attorney General,
Sung-Hee Suh, Deputy Assistant Attorney General, Appellate
Section, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; John P. Fishwick, Jr., United States Attorney,
Charlene Day, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Roanoke, Virginia; John Chadwick
Johnson, FRITH ANDERSON & PEAKE, PC, Roanoke, Virginia, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Seeking release from custody and to prevent his extradition
to face criminal prosecution in Mexico, Zhenli Ye Gon petitioned
the district court under 18 U.S.C. § 3188 and 28 U.S.C. § 2241.
Following briefing and oral argument, the court summarily
dismissed the petition (in its amended form) with prejudice. Ye
Gon now appeals. We affirm.
I
Ye Gon was taken into custody in 2007 to face a federal
drug charge, but the United States eventually dismissed the
charge. Before the dismissal, however, Mexico requested Ye Gon’s
extradition pursuant to a treaty to prosecute him on charges of
organized crime; unlawful firearm possession; money laundering;
diversion of essential chemicals; and drug importation,
transportation, manufacturing, and possession. In February 2009,
a magistrate judge certified that Ye Gon is extraditable under
the treaty.
This is Ye Gon’s second habeas petition, the first having
come before us in 2014. We affirmed the denial of that petition.
See Ye Gon v. Holt, 774 F.3d 207 (4th Cir. 2014), cert. denied,
135 S. Ct. 2859 (2015). Our decision and the denial of certiorari
review by the Supreme Court cleared the way for the United
States to proceed with extradition, but at that time the State
Department had not finally determined whether Ye Gon should be
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extradited. See generally id. at 210 (“If the extradition judge
determines that the fugitive is extraditable, he must send his
certification of extraditability to the Secretary of State, who
has the final executive authority to determine whether to
extradite the fugitive.”).
After resolution of the first habeas proceeding, Ye Gon
filed this petition seeking (among other things) immediate
discharge from custody pursuant to § 3188. That statute
generally provides that if the United States does not extradite
within two calendar months after committing a person for
rendition to a foreign government, a judge “may order the person
so committed to be discharged out of custody, unless sufficient
cause is shown to such judge why such discharge ought not to be
ordered.”
Several weeks later, while the petition was pending, the
State Department authorized Ye Gon’s extradition. In a letter
dated September 21, 2015, the State Department official
explained (in part) that Ye Gon’s extradition is not barred by
the Convention Against Torture (“CAT”), which generally
prohibits the return of an individual to a country where
substantial grounds exist for believing that he would be in
danger of being tortured.
In response to the State Department’s authorization, Ye Gon
filed an emergency motion for stay of extradition. Additionally,
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he twice amended his habeas petition. Ultimately, Ye Gon
presented five claims for the district court to consider: (1) he
should be discharged from custody under § 3188; (2) he should be
granted CAT relief because he will be tortured or killed if he
is extradited; (3) the State Department’s extradition decision
deprives him of due process; (4) any limitation of his ability
to have judicial review of his torture claim violates the
Suspension Clause of the United States Constitution; and (5) the
Secretary of State illegally delegated the extradition decision
to a Deputy Secretary of State. The parties briefed and/or
orally argued the merits of these claims in connection with the
court’s consideration of Ye Gon’s stay motion.
Thereafter, the district court summarily dismissed Ye Gon’s
amended petition. Additionally, the court denied Ye Gon’s motion
for a stay; however, the court granted a 7-day stay to allow
time to file an appeal. In a memorandum opinion accompanying the
order, the court addressed the merits of Ye Gon’s claims. 1
The district court first considered Ye Gon’s request for
discharge pursuant to § 3188. Initially, the court found that
the request could be denied because it was premature. In the
court’s view, the § 3188 two-month period began to run on
1
The court explained that the parties’ extensive arguments
about the merits of the claims made the petition ripe for
disposition.
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February 9, 2011, when a magistrate judge found Ye Gon to be
extraditable and issued a commitment order; the period was
tolled on February 10, 2011, when Ye Gon filed his first habeas
petition; and it remained tolled until July 7, 2015, when we
issued our mandate from his prior appeal. Based on this, the
court concluded that the two-month period did not expire until
September 7, 2015, several days after Ye Gon filed this
petition.
Despite its conclusion that the petition was premature, the
district court did not actually rule on that ground. Instead,
the court concluded that sufficient cause had been shown to deny
the request for discharge on the merits. The court noted that
the State Department’s decision was made, at most, nine days
after the two-month period expired, and it found “no evidence in
the record that the State Department has been anything less than
diligent in its consideration of the extensive materials Ye Gon
has submitted in support of his multi-part claim, that if
extradited to Mexico, he will be at risk of torture and/or
death.” J.A. 303. The court explained that the Secretary of
State’s decision was “complex” and involved review of “court
documents, expert testimony, and thousands of pages of materials
Ye Gon submitted during the court proceedings in which he
challenged his extradition on many grounds other than the risk
of torture.” Id. at 303, 304. The court also determined that Ye
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Gon was not prejudiced by the asserted brief delay beyond the
two-month deadline and the charges against Ye Gon are serious.
The court stated: “[N]o useful purpose is served in discharging
Ye Gon after nearly seven years of extradition litigation, only
to face the potential for that extradition process to begin
anew.” Id. at 304.
The district court next turned to Ye Gon’s claim that he
will be tortured and/or killed if extradited. Ye Gon conceded,
and the court concluded, that our decision in Mironescu v.
Costner, 480 F.3d 664 (4th Cir. 2007), prevented it from
considering the claim. In Mironescu, we interpreted CAT and the
Foreign Affairs Reform and Restructuring (“FARR”) Act (which
implements CAT) and held that “courts may consider or review CAT
or FARR Act claims as part of their review of a final removal
order, [but] they are otherwise precluded from considering or
reviewing such claims.” Id. at 674.
The district court then considered Ye Gon’s contention that
he was denied due process by the manner in which the State
Department has reviewed and decided his case, including its
refusal to allow his counsel to present his claim in person and
its issuance of a letter decision which he contends is
unconstitutionally vague. The court rejected this claim, finding
in pertinent part that “Ye Gon received the extent of the
procedural protection contemplated by Congress under the
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statutes at issue: consideration and an executive decision on
the CAT claim before the surrender warrant was issued.” J.A.
308. For support, the court relied on Peroff v. Hylton, 563 F.2d
1099, 1102 (4th Cir. 1977), in which we noted that “matters
involving extradition have traditionally been entrusted to the
broad discretion of the executive,” and 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.” Applying those general principles in Peroff, we
rejected the claim that due process requires a “‘fair hearing’
before the Secretary of State on the propriety of . . .
extradition.” Id.
Next, the district court addressed and rejected Ye Gon’s
claim that the Suspension Clause prohibits courts from applying
the FARR Act so as to preclude consideration of his torture
claim. 2 Citing Fernandez v. Phillips, 268 U.S. 311 (1925), the
court noted that habeas review in the extradition context has
traditionally been limited to determining whether: (1) the court
has jurisdiction over the petitioner, (2) the extradition
2The Suspension Clause (Art. I, § 9, cl. 2) specifies that
“[t]he Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the
public Safety may require it.”
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request falls within the scope of the treaty, and (3) the
foreign charge is supported by probable cause. The court found
that “Ye Gon has clearly had the full benefit of habeas review
of the extradition request under this standard.” J.A. 310. The
court also relied on Munaf v. Geren, 553 U.S. 674 (2008), in
which the Supreme Court rejected the habeas petitioner’s claim
that he faced torture if transferred to Iraqi custody for
criminal prosecution. The Munaf Court explained that “[s]uch
allegations are of course a matter of serious concern, but in
the present context that concern is to be addressed by the
political branches, not the Judiciary.” Id. at 700.
Finally, the district court considered Ye Gon’s claim of
improper delegation of authority by the Secretary of State. The
court found this claim to be “without merit” because the
“delegation of authority from the Secretary does not appear to
be inconsistent with the regulations or the statutes, and falls
within the statutory provision empowering the Secretary to make
appropriate delegations.” J.A. 312-13.
II
On appeal, Ye Gon challenges the district court’s ruling on
four of the five claims presented below, and he also raises
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several new claims for the first time. 3 Initially, we note that
because Ye Gon does not contend that the court erred in
dismissing his improper delegation of authority claim, we need
not consider that claim. See Brief of Appellant, at 9 n.4
(noting that the delegation issue “is not advanced here”).
Moreover, although Ye Gon continues to press his torture claim,
he concedes (as he did below) that we are bound to reject the
claim under Mironescu. Further, applying the settled rule of
this Court, we decline to consider the new claims Ye Gon has
raised on appeal. See In re Under Seal, 749 F.3d 276, 285 (4th
Cir. 2014) (explaining that we do not consider issues raised for
the first time on appeal absent exceptional circumstances).
That leaves for resolution three claims, which we have
carefully reviewed. We hold that the district court did not
abuse its discretion by denying Ye Gon’s § 3188 request for
discharge from custody. The court applied the correct legal
principles and adequately explained its rationale, and we are
satisfied that it did not commit a clear error of judgment. See
United States v. Cowley, 814 F.3d 691, 698 (4th Cir. 2016)
(explaining abuse of discretion standard of review). We further
hold that the court did not err by dismissing the due process
3After Ye Gon filed this appeal, we granted his motion for
stay pending appeal.
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and Suspension Clause claims. As to these claims, we rely
substantially on the court’s reasoning, see J.A. 308-11
(pertinent portion of district court order), which we have
briefly summarized above.
For these reasons, we affirm the final order of the
district court dismissing Ye Gon’s claims.
AFFIRMED
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