Rodolfo Burgos Noeller v. Wojdylo, Jason

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2723
RODOLFO DEIBY BURGOS NOELLER,
Petitioner-Appellant,
v.
JASON WOJDYLO, Acting United States Marshal
for the Northern District of Illinois,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:17-CR-664-1 — Rebecca R. Pallmeyer, Judge.
____________________
ARGUED NOVEMBER 27, 2018 — DECIDED APRIL 29, 2019
____________________
Before BAUER, HAMILTON, and BARRETT, Circuit Judges.
HAMILTON, Circuit Judge. Mexico asked the United States
to extradite appellant Rodolfo Deiby Burgos Noeller for the
2015 murder of Rosa Lorena Jacobo Carrillo in Mexico City.
The United States extradition treaty with Mexico establishes
the requirements for each country to request the arrest and
extradition of a person within the other’s borders. See Extra-
dition Treaty, Mexico-U.S., art. X, § 3, Feb. 6, 1980, 31 U.S.T.
2 No. 18-2723
5059 (1980). In accord with the treaty, Mexico submitted a for-
mal request along with an authenticated arrest warrant and
other supporting documents. After a hearing under 18 U.S.C.
§ 3184, the presiding magistrate judge found that Mexico’s re-
quest complied with the treaty requirements, including sub-
mitting evidence establishing probable cause that Burgos No-
eller is guilty of the crime for which extradition is sought. The
magistrate judge granted the United States government’s re-
quest for the certification of Burgos Noeller’s extradition to
Mexico and ordered him committed to the custody of the U.S.
Marshals Service. See In re Noeller, No. 17 CR 664, 2018 WL
1027513 (N.D. Ill. Feb. 23, 2018).
Burgos Noeller then filed a petition for a writ of habeas
corpus in the district court seeking review of the magistrate
judge’s orders certifying him for extradition and committing
him to custody. The district court denied the petition, and we
review its decision now in this appeal. We affirm. Mexico has
submitted a valid request for extradition, which United States
courts must honor. Burgos Noeller’s legal and factual chal-
lenges to the extradition request ask us to go well beyond the
narrow role for courts in the extradition process.
I. Factual & Procedural Background
A. Jacobo Carrillo’s Murder
On January 30, 2015, Rosa Lorena Jacobo Carrillo was shot
and killed outside her mother’s home in Mexico City. Until
some point in the last year of her life, Jacobo Carrillo had been
involved in a long-term extramarital relationship with Burgos
Noeller. When the relationship ended, Burgos Noeller and
Jacobo Carrillo already had two young children together.
No. 18-2723 3
According to statements submitted by Jacobo Carrillo’s
family, on the night of her murder, Burgos Noeller called her,
accused her of seeing someone else, and threatened her life.
The statements from Jacobo Carrillo’s family also asserted
that later that evening, Burgos Noeller came to her mother’s
house, where he slapped and grabbed Jacobo Carrillo before
shooting her twice in the head.
Burgos Noeller denies involvement in Jacobo Carrillo’s
murder. He maintains that he ended the relationship with her
after he found out about her family’s affiliation with the Los
Pepes gang and Zetas drug cartel. He says that on the morn-
ing after the murder, he received two calls from Jacobo Car-
rillo’s cousin warning him that Jacobo Carrillo’s mother
wanted to blame him for the murder and that she had hired
hitmen to kill him. 1
Burgos Noeller asserts that after the calls, he fled Mexico
for the United States with his wife and their two children. Sev-
eral of his family members provided affidavits describing in-
cidents after he left Mexico in which members of Los Pepes
came to their homes looking for Burgos Noeller, threatened
them, beat them, and damaged their property.
B. Immigration and Extradition Proceedings
Burgos Noeller has been the subject first of immigration
proceedings and then criminal charges in Mexico and these
extradition proceedings. His wife and children are U.S. citi-
zens, but he is not. The Department of Homeland Security
took him into custody in February 2015 and began removal
1 The cousin also provided an affidavit asserting that his aunt, Jacobo
Carrillo’s mother, blamed Burgos Noeller for her daughter’s death and in-
tended to have him assassinated.
4 No. 18-2723
proceedings in an immigration court in March. He was
charged with removability under the Immigration and Na-
tionality Act for entering the country without being admitted
or paroled. 8 U.S.C. § 1182(a)(6)(A)(i).
During his removal proceedings, Burgos Noeller asserted
his fear of Los Pepes. He sought asylum, withholding of re-
moval, and protection under the Convention Against Torture.
See 8 U.S.C. § 1158; 8 U.S.C. § 1231(b)(3); and 8 C.F.R.
§ 1208.16, respectively. Immigration judges have twice denied
his applications, and Burgos Noeller’s appeal of the second
decision to the Board of Immigration Appeals was pending
when Mexico submitted its extradition request.
Acting on behalf of the government of Mexico, the United
States filed an extradition complaint in the U.S. District Court
for the Northern District of Illinois and obtained a warrant for
Noeller’s arrest pursuant to 18 U.S.C. § 3184. On October 12,
2017, Noeller was placed in the custody of the U.S. Marshals
Service. The Department of Homeland Security asked the
Board of Immigration Appeals to hold its removal proceed-
ings in abeyance pending resolution of the extradition re-
quest. The Board agreed, over Burgos Noeller’s objection.
Through the removal process, Burgos Noeller learned that
a criminal trial court in Mexico City had issued a warrant to
arrest him for Jacobo Carrillo’s murder. He has tried to chal-
lenge the warrant by starting what is called an amparo pro-
ceeding in Mexico. An amparo proceeding is a criminal protec-
tion lawsuit “somewhat similar to habeas corpus and, inter alia,
is the means to review and annul unconstitutional judicial de-
cisions.” United States v. Fowlie, 24 F.3d 1059, 1064 (9th Cir.
1994). It “is a proceeding created under the Mexican Consti-
tution to protect individuals against state abuses by
No. 18-2723 5
empowering Mexican federal courts to review government
action.” In re Mathison, 974 F. Supp. 2d 1296, 1303 (D. Or.
2013).
The status of Burgos Noeller’s amparo proceeding is not
clear on this record. According to Burgos Noeller, the suit
ended in the suspension of his arrest warrant. First, he says,
the Second District Judge for Protection in Criminal Matters
in the Federal District of Mexico issued an order that sus-
pended the warrant temporarily on August 26, 2015. He also
says the same court in Mexico then issued a permanent sus-
pension of the arrest warrant on September 22, 2015. To sup-
port this version of events, Burgos Noeller submitted two un-
authenticated documents. He asserts they are copies of the
two Mexican court orders suspending his arrest warrant. Bur-
gos Noeller also submitted English translations of these doc-
uments. These translations are difficult to follow. When asked
at oral argument who translated the orders, Burgos Noeller’s
lawyer told this court he was unsure, but he thought it had
been a person in his own office. He was also unable to explain
to what extent the translations were performed by a person as
opposed to a computer translation program. Regardless of the
uncertain status of the amparo proceeding, the executive
branch of Mexico’s government remains convinced that the
original arrest warrant remains valid and enforceable.
In the Northern District of Illinois, Magistrate Judge Cole
held an extradition hearing for Burgos Noeller pursuant to 18
U.S.C. § 3184 and granted the government’s request for extra-
dition. In re Noeller, No. 17 CR 664, 2018 WL 1027513 (N.D. Ill.
Feb. 23, 2018). That was not an appealable order, so Burgos
Noeller filed a petition for a writ of habeas corpus challenging
Judge Cole’s decision that he was extraditable. On March 9,
6 No. 18-2723
2018, Judge Cole formally certified Burgos Noeller’s extradi-
tion. The district court then denied his petition for a writ of
habeas corpus. Burgos Noeller also sought a court order di-
recting the Board of Immigration Appeals to decide his pend-
ing immigration claims. The district court denied this request,
finding that it lacked jurisdiction to issue such an order to the
Board. Burgos Noeller then filed this appeal of the denial of
his habeas corpus petition.
II. The Extradition Process
Before analyzing Burgos Noeller’s specific arguments on
appeal, we outline the extradition process and the limited role
that courts play in it. Extradition is governed by treaties, stat-
utes, and a long line of federal case law. “Authority over the
extradition process is shared between the executive and judi-
cial branches.” Santos v. Thomas, 830 F.3d 987, 991 (9th Cir.
2016) (en banc). As shown below, however, the judicial role is
narrow. In extradition, discretionary judgments and matters
of political and humanitarian judgment are left to the execu-
tive branch.
A. Relevant Provisions of the Extradition Treaty
We start with the governing treaty between the United
States and Mexico. Article X, Section 3 spells out what Mexico
or the United States must submit to secure the arrest and ex-
tradition of an accused:
3.- In addition, when the request for extradition
relates to a person who has not yet been con-
victed, it shall be accompanied by:
a) A certified copy of the warrant of arrest is-
sued by a judge or other judicial officer of the
requesting Party;
No. 18-2723 7
b) Evidence which, in accordance with the
laws of the requested Party, would justify
the apprehension and commitment for trial
of the person sought if the offense had been
committed there.
Extradition Treaty, Mexico-U.S., art. X, § 3, Feb. 6, 1980, 31
U.S.T. 5059 (1980). The “requested Party” in this case is the
United States. To obtain the arrest and extradition of Burgos
Noeller, Mexico had to present evidence that amounted to
“probable cause under federal law that he committed the of-
fense he is charged with by the [Mexican] government.” See
Bovio v. United States, 989 F.2d 255, 258 (7th Cir. 1993).
B. Judicial Function & Standard of Review
By statute, foreign nations with whom the United States
has extradition treaties may seek the extradition of a person
within the United States by filing a request through the
proper diplomatic channels. 18 U.S.C. §§ 3184−3195; Eain v.
Wilkes, 641 F.2d 504, 508 (7th Cir. 1981). The terms of the bilat-
eral treaty govern the document requirements. After the
United States government receives a formal extradition re-
quest through diplomatic channels, the request will be for-
warded to a U.S. Attorney’s Office, which will typically file a
formal complaint and seek an arrest warrant from a judge.
Eain, 641 F.3d at 508. Upon the filing of such a complaint, an
extradition officer—“any justice or judge of the United States,
or any magistrate authorized … by a court of the United
States, or any judge of a court of record of general jurisdiction
of any State”—will conduct a hearing. 18 U.S.C. § 3184.
“At an extradition hearing, the ‘judicial officer’s inquiry is
confined to the following: whether a valid treaty exists;
8 No. 18-2723
whether the crime charged is covered by the relevant treaty;
and whether the evidence marshaled in support of the com-
plaint for extradition is sufficient under the applicable stand-
ard of proof.’” Skaftouros v. United States, 667 F.3d 144, 154−55
(2d Cir. 2011), quoting Cheung v. United States, 213 F.3d 82, 88
(2d Cir. 2000). Extradition treaties “should be liberally con-
strued so as to effect the apparent intention of the parties to
secure equality and reciprocity between them.” Factor v. Lau-
benheimer, 290 U.S. 276, 293 (1933); see also Scalia & Garner,
Reading Law: The Interpretation of Legal Texts 63 (2012) (Canon
4: “A textually permissible interpretation that furthers rather
than obstructs the document’s purpose should be favored.”).
If the judge finds that the requested person is extraditable,
the judge must certify the extradition to the Secretary of State.
See Santos, 830 F.3d at 992; In re Mathison, 974 F. Supp. 2d at
1304. The discretion in the process belongs to the executive
branch, not the judiciary. The Secretary of State has “sole dis-
cretion to determine whether or not extradition should pro-
ceed further with the issuance of a warrant of surrender.”
Eain, 641 F.2d at 508; see 18 U.S.C. § 3186.
Judicial officers’ extradition orders are not considered fi-
nal decisions appealable as of right under 28 U.S.C. § 1291.
See Skaftouros, 667 F.3d at 157. Courts have long recognized
an alternative path for appellate review, through a petition for
a writ of habeas corpus under 28 U.S.C. § 2241. See Collins v.
Miller, 252 U.S. 364, 368−69 (1920); Eain, 641 F.2d at 508; In re
Assarsson, 635 F.2d 1237, 1240 (7th Cir. 1980).
The scope of this habeas corpus review is narrow. In Fer-
nandez v. Phillips, the Supreme Court clarified that only three
categories of issues are open to inquiry. 268 U.S. 311, 312
(1925). Reviewing courts generally may consider “whether
No. 18-2723 9
the magistrate had jurisdiction, whether the offence 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,”
i.e., probable cause. DeSilva v. DiLeonardi, 125 F.3d 1110, 1112
(7th Cir. 1997) (reversing writs of habeas corpus), quoting Fer-
nandez, 268 U.S. at 312. In addition, though, “federal courts
undertaking habeas corpus review of extraditions have the
authority to consider not only procedural defects in the extra-
dition procedures that are of constitutional dimension, but
also the substantive conduct of the United States in undertak-
ing its decision to extradite if such conduct violates constitu-
tional rights.” In re Burt, 737 F.2d 1477, 1484 (7th Cir. 1984).
“The probable cause standard applicable to an extradition
hearing is the same as the standard used in federal prelimi-
nary hearings,” which means that “the magistrate’s role is ‘to
determine whether there is competent evidence to justify
holding the accused to await trial, and not to determine
whether the evidence is sufficient to justify a conviction.’”
Hoxha v. Levi, 465 F.3d 554, 561 (3d Cir. 2006), quoting Sidali v.
I.N.S., 107 F.3d 191, 199 (3d Cir. 1997), quoting in turn Peters
v. Egnor, 888 F.2d 713, 717 (10th Cir. 1989). A United States
court dealing with an extradition request for an accused is
obliged to resist any temptation to judge the guilt or inno-
cence of the accused. “It is fundamental that the person whose
extradition is sought is not entitled to a full trial at the magis-
trate’s probable cause hearing.” Eain, 641 F.2d at 508. The for-
eign government making the request is not required to try its
case in a United States court. Santos, 830 F.3d at 991. And in
the habeas corpus proceeding for review, “Our scope of re-
view on this issue is limited to determining whether there is
10 No. 18-2723
‘any evidence’ to support the magistrate’s finding of probable
cause.” Eain, 641 F.2d at 509.
Because an extradition hearing “is not a trial,” the rights
of the accused are more limited. Charlton v. Kelly, 229 U.S. 447,
461 (1913). Extradition hearings “embody no judgment on the
guilt or innocence of the accused but serve only to insure that
his culpability will be determined in another and, in this in-
stance, a foreign forum.” Jhirad v. Ferrandina, 536 F.2d 478, 482
(2d Cir. 1976). “[W]hat is at issue in the proceeding…is not
punishability but prosecutability.” Skaftouros, 667 F.3d at 155,
quoting In re McMullen, 989 F.2d 603, 611 (2d Cir. 1993) (alter-
ations in original). Neither the Federal Rules of Evidence nor
the Federal Rules of Criminal Procedure apply to the extradi-
tion proceeding. See Fed. R. Evid. 1101(d)(3); Fed. R. Crim. P.
1(a)(5)(A).
An accused person facing extradition does enjoy due pro-
cess rights, but the process due is confined by additional evi-
dentiary rules that restrict the defense. In re Burt, 737 F.2d at
1484; see also Martinez v. United States, 793 F.3d 533, 556 (6th
Cir. 2015) (“Courts have unanimously held that the govern-
ment is bound by principles of due process in its conduct of
extradition proceedings.”), rev’d on other grounds, 828 F.3d 451
(6th Cir. 2016) (en banc). In particular, “An accused in an ex-
tradition hearing has no right to contradict the demanding
country’s proof or to pose questions of credibility as in an or-
dinary trial, but only to offer evidence which explains or clar-
ifies that proof.” Eain, 641 F.2d at 511; see Charlton, 229 U.S. at
461 (“To have witnesses produced to contradict the testimony
for the prosecution is obviously a very different thing from
hearing witnesses for the purpose of explaining matters re-
ferred to by the witnesses for the government”); Collins v.
No. 18-2723 11
Loisel, 259 U.S. 309, 316–17 (1922) (explaining and reaffirming
distinction drawn in Charlton). Many courts have applied this
distinction between permissible “explanatory” evidence and
impermissible “contradictory” evidence, though it is often
easier to describe this distinction than to apply it. See Santos,
830 F.3d at 992.
III. Appellant’s Challenges
In most domestic habeas corpus cases, we review the fac-
tual findings of the district court for clear error and its legal
determinations de novo. Carter v. Thompson, 690 F.3d 837, 843
(7th Cir. 2012). In habeas corpus cases challenging extradition
decisions, however, appellate review of the district court is de
novo. Both we and the district court review the magistrate
judge’s factual findings for clear error and his legal rulings de
novo. See Santos, 830 F.3d at 1001.
On appeal, Burgos Noeller offers three reasons why the
magistrate judge erred in certifying his extradition: (A) the ar-
rest warrant that Mexico submitted was invalid, so that the
submission was insufficient under Article X, Section 3 of the
treaty; (B) there was no probable cause to believe that he com-
mitted the crime for which extradition was sought; and (C) it
would violate his due process and equal protection rights to
extradite him before his claims for asylum, withholding of re-
moval, and Convention Against Torture relief are adjudi-
cated. We address them in turn. None is persuasive.
A. Arrest Warrant
To comply with the requirements of the treaty, Mexico
provided a certified arrest warrant for Burgos Noeller. The
warrant Mexico submitted was issued by a judge of the
Twenty-Fourth Criminal Court in the Federal District on June
12 No. 18-2723
18, 2015. Everyone agrees that this June 18, 2015 warrant was
valid when it was issued. Petitioner Burgos Noeller argues,
however, that his later amparo proceeding suspended the war-
rant, first temporarily, then indefinitely, rendering it invalid.
Without a valid warrant, his argument goes, Mexico failed to
satisfy the treaty’s requirements. We treat this as a challenge
within the second category of permissible challenges under
Fernandez v. Phillips, whether the offense charged falls within
the treaty, which we have understood as including whether
the treaty’s documentary requirements have been met. See
268 U.S. at 312; DeSilva, 125 F.3d at 1112; Assarsson, 635 F.2d
at 1241 (considering whether bilateral treaty required formal
charges in requesting country was second category issue,
whether request met treaty requirements); see also Oteiza v.
Jacobus, 136 U.S. 330, 334 (1890).
The terms of this treaty make extradition contingent upon
Mexico’s provision of “A certified copy of [a] warrant of ar-
rest[.]” See Extradition Treaty, Mexico-U.S., art. X, § 3, Feb. 6,
1980, 31 U.S.T. 5059 (1980). Mexico’s request satisfied this re-
quirement.
Burgos Noeller argues that we should delve into the de-
tails of his amparo proceeding in Mexico to determine how
they affected the validity of that arrest warrant. Given this fa-
cially valid arrest warrant, it is doubtful whether we could
properly consider later developments in the courts of the re-
questing party to decide the validity of the warrant. The treaty
is silent on continued validity, but one could argue there is an
implied requirement that the warrant remain valid. Compare
Sacirbey v. Guccione, 589 F.3d 52, 66−69 (2d Cir. 2009) (where
treaty required “a duly authenticated copy of the warrant of
arrest,” habeas court found implied condition that issuing
No. 18-2723 13
court remain able to enforce it), with In re Assarsson, 635 F.2d
at 1244 (where treaty did not expressly require charging doc-
ument, court hearing habeas petition could not review mag-
istrate’s finding that person had been properly charged in
Sweden).
Assuming for the sake of argument that we could consider
the challenge, we would need at a minimum compelling, reli-
able evidence undermining confidence in the warrant’s con-
tinued validity. Or, to be more precise, given our limited
scope of review, the magistrate judge would have needed
compelling, reliable evidence to that effect.
On this record, we simply have no idea what happened in
Burgos Noeller’s amparo proceedings in Mexico, or even
whether they occurred, for that matter. Burgos Noeller has
provided the United States courts with no reliable evidence
on this subject. All we have are two unauthenticated docu-
ments in Spanish that Burgos Noeller asserts are court orders
invalidating the warrant and nearly unintelligible translations
of unknown origin and reliability. As demonstrated at oral ar-
gument, even now Burgos Noeller cannot vouch for the accu-
racy of these translations, despite the fact that he submitted
the documents to a federal court.
More fundamentally, extradition proceedings are not ve-
hicles for United States federal courts to interpret and opine
on foreign law. Yet by disputing the validity of this warrant,
Burgos Noeller asks us to scrutinize and evaluate amparo, “a
highly complex legal institution” with which our courts are
not sufficiently familiar. See United States v. Fowlie, 24 F.3d
1059, 1064 (9th Cir. 1994). He asks us to do so based on scant
and unsubstantiated evidence. Even if we could find a reliable
record of Burgos Noeller’s amparo case, to adjudicate the
14 No. 18-2723
validity of the warrant we would need to decide what legal
conclusion a Mexican court reached based on its analysis of
Mexican laws and criminal procedure. That is simply not our
job here. If Burgos Noeller thinks later developments in the
Mexican courts have rendered his arrest warrant invalid, that
challenge belongs in a Mexican court.
United States courts hearing extradition requests have
consistently expressed an unwillingness to interpret foreign
law to invalidate arrest warrants. See Basic v. Steck, 819 F.3d
897, 901 (6th Cir., 2016) (treaty’s warrant requirement satisfied
where other documents in record “include the elements of an
arrest warrant,” and court “will not second guess [Bosnia’s]
determination” that documents amounted to valid warrant);
Skaftouros v. United States, 667 F.3d 144, 156, 160−61 n.20 (2d
Cir. 2011) (finding Greek arrest warrant sufficient for extradi-
tion purposes despite technical errors, rejecting invitation to
analyze further warrant’s validity under Greek law, “de-
fer[ring] to the Greek courts, which may consider whether
Skaftouros or the Greek prosecutors have the better argu-
ment,” and emphasizing that “an extradition judge should
avoid making determinations regarding foreign law”);
Caltagirone v. Grant, 629 F.2d 739, 744 (2d Cir. 1980) (“Treaty
does not contemplate a review of the validity, under Italian
law, of the Italian arrest warrants”); see also In re Manea, No.
15 M.J. 157, 2018 WL 1110252, at *8 (D. Conn. Mar. 1, 2018)
(“this Court properly relies on the representation of Roma-
nian authorities that such warrant was valid, as required by
the Treaty”).
The limiting case, which provides the best support for Bur-
gos Noeller’s position, is Sacirbey v. Guccione, 589 F.3d 52 (2d
Cir. 2009), but it was quite different from this case. At the time
No. 18-2723 15
of Sacirbey’s extradition case, the Bosnian court that charged
him and issued his arrest warrant no longer existed, and no
other Bosnian court had jurisdiction over his case. Id. at 59, 63.
“The only state organ not denying possession of the case but
rather affirming its possession [was] the office of the National
Prosecutor.” Id. at 59. The Second Circuit granted Sacirbey’s
habeas petition, explaining that the treaty’s requirement of a
valid arrest warrant presumed the existence of a court system
capable of enforcing that warrant. Id. at 67, 69.
Two years later, in another extradition case, the Second
Circuit clarified just how limited its holding in Sacirbey had
been: “Sacirbey stands for the unexceptional proposition that
a foreign arrest warrant cannot suffice to show that a fugitive
is currently charged with an offense, as required by most ex-
tradition treaties, where the court that issued the warrant no
longer has the power to enforce it.” Skaftouros, 667 F.3d at 160.
The court emphasized that its “analysis in Sacirbey was lim-
ited to determining whether the requirements of the extradi-
tion were met; the majority opinion did not engage in ques-
tions of Bosnian law.” Id.
The key differences between the cases show that Sacirbey
does not help Burgos Noeller. In Sacirbey, the court had relia-
ble evidence that the arrest warrant against the accused could
no longer be enforced by any judicial body in the requesting
nation. Critically, to reach that conclusion, the U.S. court did
not inquire into or make any determinations about foreign
law. Burgos Noeller’s situation is very different. The infor-
mation suggesting that the warrant is no longer valid simply
is not reliable. Even if it were reliable, we could not determine
its effect without investigating and interpreting Mexican law,
and in particular the relationship between the underlying
16 No. 18-2723
prosecution and the amparo proceeding. (If it is anything like
the relationship between U.S. criminal proceedings and col-
lateral civil cases challenging a prosecution—think abstention
under Younger v. Harris, 401 U.S. 37 (1971)—the issues could
be quite nuanced and complex.) The Mexican judicial author-
ity that issued the arrest warrant has not collapsed, as in
Sacirbey. Mexico provided the documents required under the
treaty. Accordingly, Burgos Noeller’s challenge to the arrest
warrant belongs in front of a Mexican court.
B. Probable Cause
Turning to Burgos Noeller’s second issue, we review the
magistrate judge’s finding of probable cause under a deferen-
tial standard. We ask only “whether there [was] any compe-
tent evidence to support [his] finding.” Bovio v. United States,
989 F.2d 255, 258 (7th Cir. 1993). In support of its extradition
request, Mexico submitted a statement from Jacobo Carrillo’s
niece, who says she witnessed the shooting and identified
Burgos Noeller as the killer, as well as a statement from
Jacobo Carrillo’s sister, who says she heard the two gunshots
that killed her sister and saw Burgos Noeller driving away
from the crime scene. Both Jacobo Carrillo’s niece and sister
described the murderer driving away in a gray Jetta. Mexico
also submitted a statement from one of Burgos Noeller’s co-
workers saying that she had recently rented a gray Jetta for
him. There was also an autopsy report confirming that Jacobo
Carrillo died from two gunshot wounds. We have no trouble
here affirming the magistrate judge’s conclusion that there
was probable cause to believe that Burgos Noeller is guilty of
the crime for which extradition is sought.
Burgos Noeller argues, however, that the magistrate judge
was wrong to credit Mexico’s evidence. He argues that the
No. 18-2723 17
statements from Jacobo Carrillo’s family members are incon-
sistent, unreliable, and subject to undue influence from other
family members who are biased against him. These argu-
ments challenging the credibility of the evidence against him
have no place in extradition hearings. As noted above, an ac-
cused in an extradition hearing cannot offer contradictory ev-
idence but only “explanatory” evidence, described as “evi-
dence that ‘explains away or completely obliterates probable
cause.’” Santos, 830 F.3d at 992, quoting Mainero v. Gregg, 164
F.3d 1199, 1207 n. 7 (9th Cir. 1999), superseded by statute on
other grounds, Pub. L. No. 105-277, § 2242. Evidence that con-
tradicts the demanding country’s proof or poses questions of
credibility—i.e., contradictory evidence—is off-limits. Eain,
641 F.2d at 511. In the extradition proceeding in the United
States courts, Burgos Noeller was not entitled to contest the
credibility of the statements provided by Jacobo Carrillo’s
family. These witnesses’ potential biases and inconsistencies
are surely relevant to the ultimate question of Burgos No-
eller’s guilt or innocence, but those issues must be addressed
in the Mexican criminal justice system, not ours.
Burgos Noeller made an offer of proof at his extradition
hearing, submitting eleven exhibits and testimony as to his in-
nocence. The exhibits included letters and affidavits of friends
and family who spoke to his positive character and also to the
danger of retribution he faces from Jacobo Carrillo’s family or
Los Pepes if he is returned to Mexico. Burgos Noeller also sub-
mitted a report and the testimony of Dr. Nathan P. Jones, who
discussed the operation of Los Pepes and the infiltration of the
Mexican government by organized crime. 2 Dr. Jones offered
2 Dr. Jones has submitted evidence on these topics in other cases, such
as Rivas-Pena v. Sessions, 900 F.3d 947, 949 (7th Cir. 2018), where his
18 No. 18-2723
no specific information about this case, however. Instead, he
speculated on alternative, drug-related causes of Jacobo Car-
rillo’s murder that do not involve Burgos Noeller pulling a
trigger, as well as the “likelihood” that Burgos Noeller will be
killed if he is returned to Mexico. Dr. Jones concluded that ex-
traditing Burgos Noeller “would facilitate the ability of orga-
nized crime,” specifically Los Pepes, to kill him, and that
based on the evidence in the record, Jacobo Carrillo’s murder
was likely “a drug-related assassination.”
The magistrate judge allowed Burgos Noeller’s offer of
proof, of course, to allow him to make a record for further re-
view. But the judge ultimately found the evidence in the offer
was not relevant to the probable cause question. In re Noeller,
2018 WL 1027513, at *4. We agree with the magistrate judge’s
decision and reasoning. Burgos Noeller’s offer is relevant both
to his ultimate guilt or innocence and to humanitarian argu-
ments against returning him to Mexico. But ultimate guilt or
innocence is for the Mexican courts to decide, and the human-
itarian arguments must be directed to the executive branch of
the United States government.
Under the settled rule of non-inquiry, the executive branch
has sole authority to consider such humanitarian considera-
tions in deciding on extradition requests. See Hoxha v. Levi,
465 F.3d 554, 563 (3d Cir. 2006) (petitioner should not be
granted habeas relief based on his assertions that he will be
tortured and may be killed by Albanian authorities if extra-
dited because “such humanitarian considerations are within
the purview of the executive branch and generally should not
testimony before the immigration judge was key in our decision to reverse
the denial of relief under the Convention Against Torture.
No. 18-2723 19
be addressed by the courts in deciding whether a petitioner is
extraditable”).
“Once an individual is certified by a court as extraditable,
the Secretary of State ‘exercises broad discretion and may
properly consider factors affecting both the individual de-
fendant as well as foreign relations’ in deciding whether ex-
tradition is appropriate.” Hoxha, 465 F.3d at 563, quoting Sidali
v. I.N.S., 107 F.3d 191, 195 n.7 (3d Cir. 1997). Courts must
therefore “refrain from investigating the fairness of a request-
ing nation’s justice system, and from inquiring into the proce-
dures or treatment which await a surrendered fugitive in the
requesting country.” United States v. Kin-Hong, 110 F.3d 103,
110 (1st Cir. 1997) (internal citations and quotations omitted).
This rule of non-inquiry may seem counterintuitive com-
ing from a court that routinely hears claims for asylum or re-
lief under the Convention Against Torture. But the rule of
non-inquiry is intended to prevent extradition courts from en-
gaging in improper judgments about other countries’ law en-
forcement and judicial procedures. More important, the rule
“serves interests of international comity by relegating to po-
litical actors the sensitive foreign policy judgments that are
often involved in the question of whether to refuse an extra-
dition request.” Hoxha, 465 F.3d at 563. In keeping with this
rule, the magistrate judge was right to reject Burgos Noeller’s
arguments regarding retaliation and his inability to receive a
fair trial in Mexico, and we cannot consider the merit of these
arguments on review.
C. Due Process & Equal Protection
Burgos Noeller’s final argument is that his due process
and equal protection rights were violated when the Board of
20 No. 18-2723
Immigration Appeals held in abeyance, pending the outcome
of his extradition, his immigration claims for asylum, with-
holding of removal, and relief under the Convention Against
Torture. Such stays, however, are not uncommon where the
same person is the subject of both immigration and extradi-
tion proceedings. See Barapind v. Reno, 225 F.3d 1100, 1107 (9th
Cir. 2000) (“As a matter of course, the BIA has held deporta-
tion proceedings in abeyance while extradition proceedings
are pending.”). Such stays may often make sense because im-
migration and extradition proceedings are separate and inde-
pendent proceedings governed by different legal standards
and procedures. See id. at 1104−05 (“Extradition from the
United States is governed by 18 U.S.C. § 3184 (2000), and pro-
vides a separate and independent procedure from exclusion
or removal proceedings initiated under the INA for the re-
moval of an alien from the United States.”); Restatement
(Third) of Foreign Relations Law § 478, reporters’ note 6
(1987) (“If proceedings for deportation had been initiated
prior to receipt of a request for extradition, deportation often
will be stayed or withdrawn pending completion of the extra-
dition proceeding.”).
The United States government has followed established le-
gal practices in processing Burgos Noeller’s extradition case.
It received a valid request from Mexico for extradition, and it
acted on that request as it is obliged to do under its extradition
treaty with Mexico. The subsequent proceedings have com-
plied with the treaty, applicable statutes, and the U.S. Consti-
tution.
Burgos Noeller’s attempt to use this habeas corpus appeal
to attack collaterally his losses in his immigration case must
fail. Even if the Board committed constitutional error in
No. 18-2723 21
refusing to rule on his pending immigration claims, and we
see no reason to believe that it did, that would present a sep-
arate issue that we have no jurisdiction to consider on this ap-
peal. Separate statutes govern judicial review of Board deci-
sions, including a decision to hold removal proceedings in
abeyance. To obtain review of that decision, Burgos Noeller
would need to pursue the proper channels for review of
Board actions. 3 An effort similar to this case was made and
rejected in Barapind, where the Ninth Circuit reviewed a ha-
beas corpus petition seeking relief requiring the Board to va-
cate its decision to hold immigration proceedings in abeyance
pending resolution of an extradition request by India, and en-
joining the pending extradition proceeding. 225 F.3d at 1000,
1104, 1109. The court noted that Barapind did “little to explain
the source of the district court’s authority to enjoin a pending
extradition proceeding, . . . a separate and independent pro-
ceeding from his asylum proceedings,” and that “[s]uch relief,
if available, must be sought through the extradition proceed-
ings or on subsequent habeas review of an adverse decision
in the extradition case.” Id. at 1109. Likewise, Burgos Noeller
cannot seek relief from alleged violations in his immigration
proceedings in the separate and independent extradition pro-
cess.
Even if the Board does not adjudicate Burgos Noeller’s
claims for asylum, withholding, and relief under the Conven-
tion Against Torture before his extradition challenge is con-
cluded, he also may present these humanitarian issues to the
3 In his district court reply brief, Burgos Noeller asserted that he “in-
tends to challenge the abeyance order through a claim under the Admin-
istrative Procedure Act and the Mandamus and Venue Act.” We express
no views on the possibility.
22 No. 18-2723
Secretary of State. “It is the function of the Secretary of State
to determine whether extradition should be denied on hu-
manitarian grounds.” Ahmad v. Wigen, 910 F.2d 1063, 1067 (2d
Cir. 1990); see also Munaf v. Geren, 553 U.S. 674, 702 (2008)
(“The Executive Branch may, of course, decline to surrender
a detainee for many reasons, including humanitarian ones.”).
The district court’s denial of Burgos Noeller’s habeas cor-
pus petition is AFFIRMED.