Kapoor v. DeMarco

22-2806
Kapoor v. DeMarco
In the
United States Court of Appeals
For the Second Circuit
August Term, 2023
No. 22-2806
MONIKA KAPOOR ,
Petitioner-Appellant,
v.
V INCENT F. D E MARCO ,
U NITED S TATES MARSHAL FOR THE E ASTERN D ISTRICT OF NEW Y ORK,
AND
R OBERTO C ORDEIRO ,
C HIEF PRETRIAL S ERVICES O FFICER FOR THE E ASTERN D ISTRICT OF NEW
Y ORK,
Respondent-Appellees.
On Appeal from a Judgment of the United States District Court for
the Eastern District of New York.
A RGUED: A PRIL 12, 2024
DECIDED: MARCH 26, 2025
Before: NARDINI, M ENASHI, and L EE , Circuit Judges.

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Petitioner-Appellant Monika Kapoor is an Indian citizen facing
extradition from the United States to face criminal charges in India.
The United States District Court for the Eastern District of New York
(Robert M. Levy, Magistrate Judge) determined that Kapoor was
extraditable under the two countries’ bilateral extradition treaty. The
Secretary of State then issued a surrender warrant after rejecting
Kapoor’s claims that she will likely be tortured if returned to India,
and that her extradition would therefore violate the Convention
Against Torture. Kapoor filed a petition for a writ of habeas corpus
in the district court, challenging the Secretary’s decision. The district
court (Frederic Block, District Judge) denied Kapoor’s petition, finding
that 8 U.S.C. § 1252(a)(4), added by the REAL ID Act of 2005, divested
the court of jurisdiction to hear her claim. Kapoor appealed.
We agree with the district court. The Convention is not a self-
executing treaty, and the courts can review claims arising under it
only as authorized by Congress. Consistent with the test articulated
by the Supreme Court in I.N.S v. St. Cyr, 533 U.S. 289 (2001), Section
1252(a)(4) contains a clear statement that permits claims under the
Convention to be raised exclusively in petitions for review of
immigration removal orders, and specifically and unambiguously
bars judicial review of such claims in habeas proceedings except in
limited circumstances not presented here. This construction of the
statute does not violate the Suspension Clause in the extradition
context because of the longstanding “rule of non-inquiry,” which
precludes American habeas courts from considering the anticipated
treatment of an extraditee like Kapoor in the country to which she is
being extradited. We therefore AFFIRM.
D ANIEL I. PHILLIPS , Gell & Gell, New York,
NY, for Petitioner-Appellant.

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MEREDITH A. A RFA (Susan Corkery, on the
brief), Assistant United States Attorneys, for
John J. Durham, United States Attorney for
the Eastern District of New York, Brooklyn,
N.Y., for Respondent-Appellees.
WILLIAM J. NARDINI, Circuit Judge:
Petitioner-Appellant Monika Kapoor is an Indian citizen facing
extradition from the United States to face criminal charges in India.
The United States District Court for the Eastern District of New York
(Robert M. Levy, Magistrate Judge) determined that Kapoor was
extraditable under the two countries’ bilateral extradition treaty. The
Secretary of State subsequently issued a surrender warrant after
rejecting Kapoor’s claims that she would likely be tortured if returned
to India, and that her extradition would therefore violate the United
Nations Convention Against Torture (the “Convention” or “CAT”) as
implemented by the Foreign Affairs Reform and Restructuring Act of
1998 (“FARRA”). Kapoor then filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241 challenging the Secretary’s
determination that she be extradited. In her petition, Kapoor renewed
the CAT claim she had presented to the Secretary. The district court
(Frederic Block, District Judge) denied Kapoor’s petition, finding that
8 U.S.C. § 1252(a)(4) divested the court of jurisdiction to hear her
claim. Kapoor now appeals.

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We agree with the district court. This Court previously
determined in Wang v. Ashcroft, 320 F.3d 130 (2d Cir. 2003), that
FARRA did not divest federal courts of habeas jurisdiction to review
claims under the Convention, in a case brought by an individual
challenging his immigration removal order. Two years after our
decision in Wang, Congress enacted § 106(a)(1)(B) of the REAL ID Act
of 2005, codified at 8 U.S.C. § 1252(a)(4), which expressly provides
that notwithstanding any other provision of law “including section
2241 of Title 28, or any other habeas corpus provision,” a petition for
review of an immigration removal order under 8 U.S.C. § 1252 is the
“sole and exclusive means for judicial review of any cause or claim
under the [Convention],” with limited exceptions not applicable here.
We conclude that consistent with the test articulated by the Supreme
Court in I.N.S v. St. Cyr, 533 U.S. 289 (2001), Section 1252(a)(4)
contains a clear statement that specifically and unambiguously bars
federal courts from exercising habeas jurisdiction to review CAT
claims in extradition cases. This construction of the statute does not
run afoul of the Suspension Clause of the U.S. Constitution because it
does not preclude the review of claims historically protected by the
writ of habeas corpus. Under the longstanding “rule of non-inquiry,”
those like Kapoor facing extradition have never been able to obtain
habeas relief based on their anticipated treatment in a receiving
country, which is at the heart of a CAT claim.
We therefore AFFIRM.

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I. Background
A. The Extradition Process
Extradition is the formal process by which a person is
surrendered by one country to another 1 to face prosecution, or to
serve a sentence after conviction, for criminal charges. Extradition
typically occurs pursuant to a treaty. 2 The statutes governing
extradition create a multi-step procedure that divides responsibility
for extradition between the Secretary of State and the courts. See
1 The Fifth Circuit has upheld extradition to an international criminal
tribunal where authorized by statute. See Ntakirutimana v. Reno, 184 F.3d 419 (5th
Cir. 1999) (upholding extradition to the International Criminal Tribunal for
Rwanda pursuant to an executive agreement implemented by statute).
2 The Supreme Court has explained that “the power to provide for
extradition is a national power . . . [b]ut, albeit a national power, it is not confided
to the Executive in the absence of treaty or legislative provision.” Valentine v.
United States ex rel. Neidecker, 299 U.S. 5, 8 (1936). Congress has outlined the
procedures for international extradition at 18 U.S.C. Chapter 209, §§ 3181-3196.
Section 3181(a) provides that those statutory provisions generally apply only
“during the existence of any treaty of extradition” between the United States and
a foreign government. Section 3181(b) also authorizes, in very limited
circumstances, extradition “in the exercise of comity” and in the absence of an
extradition treaty.
The extradition process should not be confused with the immigration
removal process. The extradition process, governed by Chapter 209 of Title 18 of
the United States Code, exclusively governs the transfer of persons for the purpose
of criminal proceedings, and depending on the relevant treaty, see 28 U.S.C. § 3196,
may apply to U.S. citizens or foreign citizens. The immigration removal process,
by contrast, is governed by various provisions found in Title 8 of the Code; does
not depend on whether the person to be removed faces criminal proceedings
abroad; and is necessarily limited to those who are not U.S. nationals or citizens.
See 8 U.S.C. §§ 1229, 1229a (governing removal of “alien”); id. § 1101(a)(3) (defining
“alien”).

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generally Restatement (Fourth) of Foreign Relations Law § 428 (Am. L.
Inst. 2018) (outlining extradition procedures). The process generally
begins3 with the submission of a formal extradition request by the
foreign government to the United States Department of State through
the diplomatic channel.4 The State Department determines whether
the request complies with the applicable treaty, and if so, transmits
the request to the Office of International Affairs (“OIA”) in the
Criminal Division of the United States Department of Justice. See U.S.
Dep’t of Just., Just. Manual § 9-15.700.5 OIA then considers whether
the request satisfies the conditions for extradition. See id. If so, OIA
forwards it to the United States Attorney for the judicial district in
which the person being sought is located. See id.
3 Most modern extradition treaties also allow a requesting state to
preliminarily seek the provisional arrest of a person in cases of urgency, based on
a streamlined application that may be submitted either through the diplomatic
channel or in other, more direct, ways. See, e.g., Treaty on Extradition, It.-U.S., art.
XII, Oct. 13, 1983, 35 U.S.T. 3023 (allowing transmission of provisional arrest
request through diplomatic channel or directly between U.S. Department of Justice
and Italian Ministry of Justice, including through the communication facilities of
the International Criminal Police Organization (Interpol)); see also 18 U.S.C. § 3187
(authorizing provisional arrest and detention). Such temporary detention allows
time for a requesting state to assemble and transmit its formal request for
extradition.
4 E.g., Treaty on Extradition, India-U.S., art. 9(1), June 25, 1997, T.I.A.S. No.
12873 (hereinafter, the “Treaty”) (“All requests for extradition shall be submitted
through the diplomatic channel.”); id. at 9(2)–(4) (listing supporting materials that
must be included in an extradition request).
5 https://www.justice.gov/jm/jm-9-15000-international-extradition-and-
related-matters#9-15.700 [https://perma.cc/79D6-GNX4].

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The United States Attorney then files a complaint based on the
extradition request with the appropriate court6 and applies for an
arrest warrant. 18 U.S.C. § 3184 (authorizing judicial officer to “issue
his warrant for the apprehension of the person so charged”).
Although the complaint is filed by the United States, we have
recognized that it is really “acting for and on behalf of the demanding
country, which is the real party in interest.” Skaftouros v. United States,
667 F.3d 144, 154 n.15 (2d Cir. 2011) (internal quotation marks and
alteration omitted). The court then holds a hearing to consider
whether the “evidence of criminality” presented by the foreign
government is “sufficient to sustain the charge[s]” for which
extradition is requested. 18 U.S.C. § 3184. The court’s inquiry is a
limited one, aimed solely at ascertaining extraditability—that is, the
person’s eligibility for extradition. The court must determine only
“whether a valid treaty exists; whether the crime charged is covered
by the relevant treaty; and whether the evidence marshaled in
support of the complaint for extradition is sufficient under the
applicable standard of proof.” Skaftouros, 667 F.3d at 154–55 (quoting
Cheung v. United States, 213 F.3d 82, 88 (2d Cir. 2000)). The hearing is
“not to be regarded as in the nature of a final trial by which the
prisoner could be convicted or acquitted of the crime charged against
6 Section 3184 authorizes filing of the complaint with “any justice or judge
of the United States, or any magistrate judge authorized so to do by a court of the
United States, or any judge of a court of record of general jurisdiction of any State.”
As a matter of longstanding practice, such complaints are typically filed in the
geographically relevant United States District Court. The complaint may be filed
in the United States District Court for the District of Columbia “if the whereabouts
within the United States of the person charged are not known or, if there is reason
to believe the person will shortly enter the United States.” 18 U.S.C. § 3184.

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him,” id. at 155 (quoting Benson v. McMahon, 127 U.S. 457, 463 (1888)),
nor is it “the occasion for an adjudication of guilt or innocence,” id.
(quoting Melia v. United States, 667 F.2d 300, 302 (2d Cir. 1981)).
Rather, the extradition hearing is “essentially a preliminary
examination to determine whether a case is made out which will
justify the holding of the accused and his surrender to the demanding
nation.” Lo Duca v. United States, 93 F.3d 1100, 1104 (2d Cir. 1996)
(quoting Ward v. Rutherford, 921 F.2d 286, 287 (D.C. Cir. 1990)). 7
If the court deems the evidence sufficient to sustain the charge
under the applicable treaty, the court “shall certify the same” to the
Secretary of State. 18 U.S.C. § 3184. Because the judicial officer’s
7 The person sought may choose not to contest the extradition request,
either by consenting to extradition or waiving it entirely. If the person consents to
extradition, the court will enter a finding of extraditability and the Secretary of
State will issue a surrender warrant as usual. Consent may benefit the person
sought by shortening the extradition process somewhat and reducing any period
of detention; but it does not pretermit the process entirely. Because the person is
being transferred through the formal extradition process, she will enjoy the
attendant protections of the “rule of specialty,” which generally prohibits a
requesting state from prosecuting or punishing the extradited person for charges
beyond those contained in the surrender warrant. See United States v. Rauscher, 119
U.S. 407, 424 (1886) (interpreting U.S. law to conclude that the extraditee may “be
tried only for the offense with which he is charged in the extradition proceedings,
and for which he was delivered up”); U.S. Dept. of State, 7 Foreign
Affairs Manual § 1631.4, https://fam.state.gov/FAM/07FAM/07FAM1630.html
[https://perma.cc/T873-RNJS] (Fugitives who “consent to extradition . . . trigger[]
the protection of the rule of specialty.”). Alternatively, if the person waives
extradition, then she is transferred to the requesting state outside the extradition
process. The benefit to the person sought is usually a much speedier transfer to
the requesting state; the downside to her is that the rule of specialty and any other
treaty protections do not apply. See, e.g., United States v. DiTommaso, 817 F.2d 201,
211-12 (2d Cir. 1987).

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certificate of extraditability does not adjudicate the person’s guilt or
innocence, but “serve[s] only to insure that his culpability will be
determined in another and, in this instance, a foreign forum,” it is not
considered a final order that can be appealed directly under 28 U.S.C.
§ 1291. Jhirad v. Ferrandina, 536 F.2d 478, 482 (2d Cir. 1976). Rather,
the court’s finding of extraditability is subject only to limited review
through a habeas proceeding. As we have explained: “The rule has
long been accepted that a habeas judge can only ‘inquire whether the
magistrate had jurisdiction, whether the offense charged is within the
treaty and, by a somewhat liberal extension, whether there was any
evidence warranting the finding that there was reasonable ground to
believe the accused guilty.’” Id. (quoting Fernandez v. Phillips, 268 U.S.
311, 312 (1925)).
Upon a judicial finding of extraditability, the Secretary of State
must then decide whether to order the person extradited, by issuing
a warrant for the person’s surrender to the requesting state. In
making this decision, the Secretary has “final authority to extradite
the fugitive, but is not required to do so.” Lo Duca, 93 F.3d at 1103; see
also 18 U.S.C. § 3186 (“Secretary of State may order the person . . . to
be delivered to any authorized agent of such foreign government”)
(emphasis added); United States v. Kin-Hong, 110 F.3d 103, 109 (1st Cir.
1997) (noting that the Secretary may decline to extradite a fugitive “on
any number of discretionary grounds, including but not limited to,
humanitarian and foreign policy considerations”).

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B. The Convention Against Torture
The Convention provides that “[n]o State Party shall expel,
return (‘refouler’) or extradite a person to another State where there
are substantial grounds for believing that he would be in danger of
being subjected to torture.” CAT, art. III, Dec. 10, 1984, 1465 U.N.T.S.
85 (1984).8 The Convention is a non-self-executing treaty—by its own
force, it confers no rights that are enforceable in U.S. courts. See Pierre
v. Gonzales, 502 F.3d 109, 114 (2d Cir. 2007); see also 136 Cong. Rec.
S17486–01, S17492 (daily ed. Oct. 27, 1990) (“[T]he provisions of
Articles 1 through 16 of the Convention are not self-executing.”).
Following ratification of the Convention, Congress enacted FARRA,
which broadly articulated American “policy” as follows:
It shall be the policy of the United States not to expel,
extradite, or otherwise effect the involuntary return of
any person to a country in which there are substantial
grounds for believing the person would be in danger of
being subjected to torture, regardless of whether the
person is physically present in the United States.
8 For purposes of the Convention, torture is defined as “any act by which
severe pain or suffering, whether physical or mental, is intentionally inflicted on a
person for such purposes as obtaining from him or a third person information or
a confession, punishing him for an act he or a third person has committed or is
suspected of having committed, or intimidating or coercing him or a third person,
or for any reason based on discrimination of any kind, when such pain or suffering
is inflicted by or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity. It does not include pain or
suffering arising only from, inherent in or incidental to lawful sanctions.” CAT,
art. I.

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Pub. L. No. 105–277, div. G, Title XXII, § 2242(a), 112 Stat. 2681–822
(1998) (codified as Note to 8 U.S.C. § 1231). In addition, Congress
directed the heads of the appropriate agencies to “prescribe
regulations to implement the obligations of the United States under
Article 3.” FARRA § 2242(b).
Pursuant to FARRA, the Department of State promulgated a
series of regulations that outline its CAT obligations when extraditing
fugitives. The regulations identify the Secretary of State as “the U.S.
official responsible for determining whether to surrender a fugitive to
a foreign country by means of extradition.” 22 C.F.R. § 95.2(b). They
state that “to implement the obligation assumed by the United States
pursuant to Article 3 of the Convention, the Department considers the
question of whether a person facing extradition from the U.S. ‘is more
likely than not’ to be tortured in the State requesting extradition when
appropriate in making this determination.” Id. They further state that
“[i]n each case where allegations relating to torture are made[,] . . .
appropriate policy and legal offices [shall] review and analyze
information relevant to the case in preparing a recommendation to
the Secretary as to whether or not to sign the surrender warrant.” Id.
§ 95.3(a). And, they provide that “[d]ecisions of the Secretary
concerning surrender of fugitives for extradition are matters of
executive discretion not subject to judicial review.” Id. § 95.4.
C. Procedural History
Monika Kapoor is an Indian citizen who entered the United
States in 1999 and overstayed her visa. In March 2010, Kapoor was

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placed in immigration removal proceedings. She subsequently
applied for asylum and withholding of removal and relief under the
Convention. On April 26, 2010, an Indian court issued a warrant for
Kapoor’s arrest based on the following five violations of the Indian
Penal Code (“IPC”):
1. Cheating and dishonestly inducing delivery of property,
in violation of IPC § 420;
2. Forgery of valuable security, will, etc., in violation of IPC
§ 467;
3. Forgery for the purpose of cheating, in violation of IPC
§ 468;
4. Using as genuine a forged document, in violation of IPC
§ 471; and
5. Criminal conspiracy to commit the aforementioned
offenses, in violation of IPC § 120B.
These violations stem from allegations that Kapoor and her two
brothers forged documents for jewelry transactions and then used
those documents to obtain licenses from the Indian government to
import raw materials duty free. As a result of that purported scheme,
the Indian government allegedly lost approximately $679,000. In
October 2010, the Indian government submitted a formal request to
the Department of State for Kapoor’s extradition pursuant to the
Treaty on Extradition between the United States and India. Article 2
of the Treaty defines an extraditable offense to be one that is

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punishable in both India and the United States by imprisonment for
a period of more than one year or by a more severe penalty.
On May 2, 2011, the United States filed a complaint in the
United States District Court for the Eastern District of New York,
seeking an arrest warrant based on India’s extradition request. A
magistrate judge issued a warrant for Kapoor that same day. Kapoor
was arrested, arraigned, and released on bail pending the resolution
of the extradition proceedings. Kapoor’s immigration proceedings
were held in abeyance pending the resolution of the extradition
proceedings.
On July 28, 2011, the magistrate judge held an extradition
hearing to determine whether to grant the government’s request for a
certificate of extraditability. The only argument that Kapoor raised at
the proceeding was that there was no probable cause to sustain the
charges against her. On April 17, 2012, the magistrate judge granted
the government’s request and certified the extradition request. In re
Extradition of Kapoor, No. 11-M-456 (RML), 2012 WL 1318925 (E.D.N.Y.
Apr. 17, 2012). In granting the request, the magistrate judge
concluded that the Indian government’s proof met the probable cause
standard for each of the five charges against Kapoor. Id. at *5–6. The
magistrate judge denied, however, the government’s motion to
revoke Kapoor’s bond and remand Kapoor into custody until the
completion of the extradition process.
On June 27, 2012, Kapoor filed her first of three petitions for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241. In that petition,

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Kapoor argued that the magistrate judge erred by excluding certain
evidence that she offered at the extradition hearing and that the
Treaty’s dual criminality requirement had not been satisfied. On May
7, 2014, the district court denied the petition, concluding that the
magistrate judge properly excluded Kapoor’s proffered evidence and
that dual criminality was shown. Kapoor v. Dunne, No. 12-cv-3196
(FB), 2014 WL 1803271 (E.D.N.Y. May 7, 2014). Kapoor appealed the
district court’s decision, and on June 2, 2015, this Court affirmed the
denial of the petition. Kapoor v. Dunne, 606 F. App’x 11, 12 (2d Cir.
2015).
On July 24, 2015, Kapoor submitted materials to the Secretary
of State, requesting that the Secretary deny the Indian government’s
extradition request because Kapoor would be at risk of harm if
surrendered to India. On September 18, 2015, the State Department
granted India’s request and issued a warrant authorizing Kapoor’s
surrender to India under 18 U.S.C. § 3186 and the Treaty (the
“Surrender Warrant”). Upon Kapoor’s request, the Department
provided an explanation for the Surrender Warrant via a letter dated
September 25, 2015. In that letter, the Department confirmed that it
reviewed all materials submitted directly to the Department as well
as the pleadings and filings submitted to the district court. The
Department explained that under the Convention,
the United States has an obligation not to extradite a
person to a country “where there are substantial grounds
for believing that he would be in danger of being
subjected to torture.” Pursuant to the implementing
regulations found at 22 C.F.R. part 95, this obligation

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involves consideration of “whether a person facing
extradition from the U.S. ‘is more likely than not’ to be
tortured in the State requesting extradition.”
Gov’t App’x 268. The Department then confirmed “that the decision
to surrender Monika Kapoor to India complies with the United States’
obligations under the Convention and its implementing statute and
regulations.” Id. at 269.
On October 7, 2015, Kapoor filed a second habeas petition
pursuant to 28 U.S.C. § 2241, challenging the Department’s
extradition decision. With her petition, Kapoor provided additional
evidence in support of her CAT claim. After the Department agreed
to consider any new materials in support of Kapoor’s CAT claim,
Kapoor withdrew the petition without prejudice to renewal if the
Department decided not to deny extradition.
By a letter dated August 4, 2016, the Department notified
Kapoor that it decided to reaffirm the prior authorization of Kapoor’s
surrender. The Department stated that it reviewed the supplemental
materials that Kapoor submitted directly to the Department on
October 15, 2015, as well as the materials submitted to the district
court in support of her second habeas petition. The Department again
confirmed “that the decision to surrender Monika Kapoor to India
complies with the United States’ obligations under the Convention
and its implementing statute and regulations.” Id. at 277.

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On October 25, 2016, Kapoor filed a third habeas petition
pursuant to 28 U.S.C. § 2241, which is the petition at issue in this
appeal. Kapoor asked the district court to grant the following relief:
1. Assume jurisdiction over her claims, including
humanitarian and torture claims;
2. Grant a preliminary injunction prohibiting her
extradition or surrender to Indian authorities “while this
matter is pending in the Courts”;
3. Enter an order regarding depositions Kapoor offered to
give in the United States to the Indian government;
4. Grant a writ of habeas corpus directing the United States
to release Kapoor from “executive detention”; and
5. Grant any further just and proper relief.
Kapoor alleged that the Secretary’s decision to extradite her violated
her procedural and substantive due process rights, CAT, and FARRA.
In particular, Kapoor contended that she would likely be tortured if
returned to India and that the Secretary erred by finding the contrary.
On December 29, 2016, the United States filed an opposition to the
petition.
On November 17, 2021, Kapoor filed a motion to supplement
the record. In the motion, Kapoor stated that two of the charges
against her—specifically, the violations of IPC §§ 467 and 468—had
been dismissed. Additionally, she stated that her two co-defendants
(her brothers) resolved the remaining three charges by paying fines.
She attached a letter from an Indian law firm, which stated that the

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Indian court indicated that it would permit Kapoor to resolve the
three remaining charges with fines. Thus, Kapoor argued that she
was no longer being charged with an extraditable offense because
none of the charges against her required imprisonment.
On November 18, 2021, the district court held oral argument
and directed the parties to file supplemental briefing on the relevant
issues, including the issue of whether the district court had
jurisdiction to review the Secretary’s determination of Kapoor’s CAT
claim. After the hearing, the Indian government provided a series of
updates which confirmed that Kapoor was no longer charged with
violations of IPC §§ 467 and 468 but clarified that the extradition
request was still valid because the remaining charges against Kapoor
are punishable by terms of imprisonment exceeding one year.
On January 26, 2022, Kapoor filed a supplemental brief
pursuant to the district court’s request at oral argument. Kapoor
argued that the district court had jurisdiction to adjudicate her CAT
claim. She also argued that the district court’s certification of the
extradition request was stale because of the dismissal of the two
charges under IPC §§ 467 and 468 and because the remaining charges
could be resolved by fines (and thus became non-extraditable
offenses).
In a letter dated February 7, 2022, the Indian government stated
that it (and the Indian court) never offered to resolve the remaining
charges against Kapoor with a fine and that it was “misleading and
false” for Kapoor to state that her co-defendants resolved the

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remaining three charges by only paying fines. Gov’t App’x 292. The
Indian government clarified that the Indian court imposed fines on
the co-defendants and considered that the co-defendants had already
spent considerable time in custody and sentenced them to time
served. The Indian government also confirmed the information
provided in its previous updates.
On March 4, 2022, the Department notified Kapoor that (1) it
received the February 7, 2022, letter from the Indian government; and
(2) on March 3, 2022, it issued an amended warrant for Kapoor’s
surrender for the remaining three charges (the “Amended Surrender
Warrant”) after reviewing all pertinent information including the
materials submitted to the district court. The Department later
confirmed in a sworn declaration that in connection with issuing the
Amended Surrender Warrant, it reviewed all the materials that
Kapoor submitted to the district court and to the Department through
March 3, 2022. The declaration further stated that the decision to issue
the Amended Surrender Warrant “was based on the Department’s
analysis that no information received subsequent to the issuance of
the initial surrender warrant in this case would require the
Department to reassess its prior analysis regarding Ms. Kapoor’s
claims that she would likely be tortured or mistreated if extradited.”
Id. at 298 ¶ 8. The declaration confirmed that the Amended Surrender
Warrant “complies with the United States’ obligations under the
Convention and its implementing statute and regulations.” Id.
On March 8, 2022, Kapoor filed an amended supplemental
brief, which was substantially the same as her initial supplemental

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brief. In her amended supplemental brief, Kapoor acknowledged the
Amended Surrender Warrant. She argued that her case required
further review for staleness. In particular, she requested that the
district court review whether there still is an extraditable offense and
whether the court’s certificate of extraditability should be revoked. In
support of her argument, she claimed that there was new evidence
from the Indian court proving that the two charges against her had
been dismissed but that there had been no new determination from
the Department since 2016. On April 28, 2022, the United States filed
a supplemental memorandum, arguing that the district court did not
have jurisdiction to review Kapoor’s CAT claim, among other things.
On September 20, 2022, the district court denied Kapoor’s
petition for lack of subject matter jurisdiction. Kapoor v. Demarco, No.
16-cv-5834 (FB), 2022 WL 4357498 (E.D.N.Y. Sept. 20, 2022). The
district court acknowledged that although this Court previously held
that FARRA did not deprive federal courts of jurisdiction to address
CAT claims raised in habeas petitions, Congress had enacted 8 U.S.C.
§ 1252(a)(4) through the REAL ID Act. Citing D.C. Circuit precedent,
the district court stated that Section 1252(a)(4) established that an
individual facing extradition “possesses no statutory right to judicial
review of conditions in the receiving country.” Id. at *2 (quoting Omar
v. McHugh, 646 F.3d 13, 18 (D.C. Cir. 2011)). The district court further
held that the lack of judicial review on this issue does not violate the
Suspension Clause of the Constitution, because the writ was not
historically available to those facing extradition based on claims of
conditions in the receiving country.

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20
This appeal followed.
II. Discussion
In reviewing the denial of a habeas petition brought pursuant
to 28 U.S.C. § 2241, this Court examines de novo legal questions
affecting subject matter jurisdiction. See Wang, 320 F.3d at 139–40.
A district court may grant a writ of habeas corpus when a
petitioner is “in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2241(c)(3). Kapoor’s habeas
petition rests on the central claim that the Department of State failed
to conduct a meaningful review of her claim that she will likely be
tortured if she is extradited to India, in violation of the Convention.9
Because CAT is not a self-executing treaty, Kapoor must rely on the
rights “contained in [the Convention’s] implementing statutes and
9 We understand Kapoor’s habeas petition to be seeking release from
detention that is ongoing because of the Secretary’s decision. Given that Kapoor
is subject to a court order releasing her on bond with restrictive conditions, she is
in custody for the purposes of habeas corpus. See Hoffler v. Bezio, 726 F.3d 144, 153
n.8 (2d Cir. 2013) (“We note only that the Supreme Court has broadly construed
‘custody’ for purposes of habeas corpus, so as to reach restraints on liberty even
when a defendant is not in actual, physical custody, as for example when he is
subject to the court’s criminal jurisdiction though released on bail or on his own
recognizance.”) (internal quotation marks and citations omitted). The Supreme
Court has emphasized that “[h]abeas has traditionally been a means to secure
release from unlawful detention” rather than “to obtain authorization to stay in this
country.” Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 107 (2020). For that
reason, a different petitioner, not detained or released on bond or other
restrictions, might not be able to meet the custody requirement. See also id. at 117
(“The writ simply provided a means of contesting the lawfulness of restraint and
securing release.”); id. at 122 (explaining that the petitioner had no right to habeas
review because “the legality of his detention [was] not in question”).

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21
regulations.” Yuen Jin v. Mukasey, 538 F.3d 143, 159 (2d Cir. 2008).
That implementing statute is FARRA.
As noted above, FARRA provides that “[i]t shall be the policy
of the United States not to expel, extradite, or otherwise effect the
involuntary return of any person to a country in which there are
substantial grounds for believing the person would be in danger of
being subjected to torture . . . .” FARRA § 2242(a). As originally
enacted, FARRA also contained a provision that expressly authorized
review of CAT claims through the procedures outlined for petitions
for review of immigration removal orders, but otherwise limited
other forms of judicial review:
Notwithstanding any other provision of law, . . . nothing
in this section shall be construed as providing any court
jurisdiction to consider or review claims raised under the
Convention or this section, . . . except as part of the
review of a final order of removal pursuant to section 242
of the Immigration and Nationality Act (8 U.S.C.
[§] 1252).
FARRA § 2242(d).
We have previously considered whether this statutory
provision limits individuals contesting removal orders based on CAT
claims to petitions for review filed directly in the Court of Appeals
and bars them from raising such claims in habeas petitions. In Wang,
we held that FARRA was not sufficiently “specific and unambiguous”
to bar habeas jurisdiction over such claims, explaining that “a statute
must, at a minimum, explicitly mention either ‘habeas corpus’ or ‘28

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22
U.S.C. § 2241’ in order to limit or restrict [habeas] jurisdiction.” 320
F.3d at 141 (internal quotation marks omitted).
Two years after our decision in Wang, Congress clarified
FARRA through the REAL ID Act of 2005. As relevant here, the REAL
ID Act added a new paragraph to 8 U.S.C. § 1252 limiting judicial
review of CAT claims. The new provision, codified at 8 U.S.C.
§ 1252(a)(4), added specific references to both Section 2241 and to
“habeas corpus,” as we had indicated in Wang would be necessary to
foreclose habeas review:
Notwithstanding any other provision of law (statutory or
nonstatutory), including section 2241 of title 28, United
States Code, or any other habeas corpus provision, and
sections 1361 and 1651 of such title, a petition for review
filed with an appropriate court of appeals in accordance
with this section [8 U.S.C. § 1252] shall be the sole and
exclusive means for judicial review of any cause or claim
under [the Convention] . . . .
Pub. L. No. 109–13, § 106(a)(1)(B), 119 Stat. 231, 310 (2005) (codified at
8 U.S.C. § 1252(a)(4)) (emphasis added). Accordingly, we now
consider whether the language of Section 1252(a)(4) is sufficient to bar
Kapoor from raising her CAT claims in a habeas petition.10
10 In her petition, Kapoor represents that her habeas action also “arises
under” the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et. seq., but fails
to develop any claim under the APA. In any case, the APA states that review of
an agency decision is not available to the extent that: “(1) statutes preclude judicial
review; or (2) agency action is committed to agency discretion by law.”

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23
In interpreting a statutory provision, our analysis begins with
the plain meaning of the text. See Williams v. MTA Bus Co., 44 F.4th
115, 127 (2d Cir. 2022). “[W]here a provision precluding [judicial]
review is claimed to bar habeas review, the [Supreme] Court has
required a particularly clear statement that such is Congress’[s]
intent.” Demore v. Kim, 538 U.S. 510, 517 (2003). “Implications from
statutory text or legislative history are not sufficient to repeal habeas
jurisdiction; instead, Congress must articulate specific and
unambiguous statutory directives to effect a repeal.” St. Cyr, 533 U.S.
at 299. Additionally, “if an otherwise acceptable construction of a
statute would raise serious constitutional problems, and where an
alternative interpretation of the statute is fairly possible, [courts] are
obligated to construe the statute to avoid such problems.” Id. at 299–
300 (internal quotation marks and citation omitted).
The questions before us, therefore, are whether Section
1252(a)(4) specifically and unambiguously precludes a court from
exercising habeas jurisdiction over Kapoor’s CAT claim, and if so,
whether the statute unconstitutionally suspends the writ of habeas
corpus.
§§ 701(a)(1)–(2). To the extent Kapoor attempts to bring her CAT claims under the
APA, she cannot do so. Because we find that habeas review of Kapoor’s CAT
claims is barred by Section 1252(a)(4), Kapoor cannot circumvent this jurisdictional
bar by invoking the APA. See Delgado v. Quarantillo, 643 F.3d 52, 55 (2d Cir. 2011)
(holding petitioner could not bring APA claim in district court to challenge
removal order because Section 1252(a)(5) divested district courts of jurisdiction
over challenges to removal orders).

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24
Section 1252(a)(4) contains a clear statement of congressional
intent to bar all habeas jurisdiction over CAT claims, with narrowly
delineated exceptions not relevant here. 11 The statute states that
“[n]otwithstanding . . . section 2241 of Title 28, or any other habeas corpus
provision, . . . a petition for review [of a final order of removal] shall
be the sole and exclusive means for judicial review of any cause or claim
under [CAT] . . . .” 8 U.S.C. § 1252(a)(4) (emphases added). By its
explicit reference to both 28 U.S.C. § 2241 and “any other habeas
corpus provision,” Section 1252(a)(4) plainly bars habeas review of
CAT claims. Id.; see St. Cyr, 533 U.S. at 312. The statute makes clear
that a petition for review of a final order of removal is the “sole and
exclusive means for judicial review” for “any” CAT claim. 8 U.S.C.
§ 1252(a)(4).
Kapoor argues that this provision can be construed as
precluding habeas review of challenges only to final orders of
removal without affecting habeas jurisdiction in extradition cases.
But the language of Section 1252(a)(4) is far more expansive than
Kapoor contends. The paragraph makes clear that a petition for
review of a final order of removal is the only means of judicial review
for “any cause or claim under [the Convention].” 8 U.S.C. § 1252(a)(4)
(emphases added). “[T]he word ‘any’ has an expansive meaning. . . .
Here, ‘any’ means that the provision applies to [claims] ‘of whatever
11 Section 1252(a)(4) provides that a petition for review of a final order of
removal is the only means of judicial review over CAT claims “except as provided
in subsection (e).” Section 1252(e) provides aliens in expedited removal
proceedings certain additional forms of judicial review including narrow habeas
review of particular claims.

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25
kind.’” Patel v. Garland, 596 U.S. 328, 338 (2022) (internal quotation
marks and citations omitted). This broad language encompasses CAT
claims like Kapoor’s made in the extradition context and therefore
bars habeas review of those claims.
Moreover, Kapoor’s interpretation of Section 1252(a)(4) would
render that provision superfluous in light of Section 1252(a)(5).
Section 1252(a)(5) provides that a petition for review is the only means
of judicial review over final orders of removal, subject to the same
exception provided in Section 1252(a)(4). 12 8 U.S.C. § 1252(a)(5).
Thus, Section 1252(a)(5) already precludes habeas review of nearly all
challenges to final orders of removal. See Ruiz-Martinez v. Mukasey,
516 F.3d 102, 113 (2d Cir. 2008). To hold that Section 1252(a)(4) does
the same but only for a subset of claims already covered by Section
1252(a)(5), as Kapoor suggests, would render the former paragraph
pointless. See City of Chicago v. Fulton, 592 U.S. 154, 159 (2021) (“The
canon against surplusage is strongest when an interpretation would
render superfluous another part of the same statutory scheme.”)
(internal quotation marks omitted). Both sections were added or
amended in the REAL ID Act to expressly bar habeas review subject
to the same exceptions. It would be more than passing strange to
imagine that Congress intended, in the very same legislation, to enact
one paragraph that does nothing more than is already achieved by
another. Thus, the meaning of Section 1252(a)(4) must be different
than that of Section 1252(a)(5), and the language of Section 1252(a)(4)
12 Like Section 1252(a)(4), Section 1252(a)(5) also provides that a petition for
review is the only means of judicial review of challenges to final orders of removal
“except as provided in subsection (e).”

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26
plainly bars any habeas review of CAT claims, unless specifically
excluded, even beyond the review of final orders of removal.
In reaching this conclusion, we recognize that we are not the
first Court of Appeals to consider the effect of the REAL ID Act on
federal courts’ habeas jurisdiction over CAT claims. The D.C. and
Fourth Circuits have both held that extraditees do not have the right
to habeas review of CAT claims, while the Ninth Circuit has allowed
for the barest review of such claims.
We agree with the D.C. Circuit that the REAL ID Act bars
habeas review of an extraditee’s CAT claims. Writing for the court,
then-Judge Kavanaugh emphasized that Section 1252(a)(4) plainly
“states that only immigration transferees have a right to judicial
review of conditions in the receiving country, during a court’s review
of a final order of removal.” Omar, 646 F.3d at 18. The D.C. Circuit
thus held that in light of Section 1252(a)(4), military transferees like
the plaintiff—and extraditees like Kapoor—possess no statutory right
to judicial review of conditions in a receiving country.
The Fourth Circuit has similarly held that extraditees may not
obtain habeas review of CAT claims, though it relied exclusively on
Section 2242(d) of FARRA. Mironescu v. Costner, 480 F.3d 664, 676 (4th
Cir. 2007).13 As explained above, our Court has previously adopted a
13 The Fourth Circuit also determined that the rule of non-inquiry on its
own did not bar habeas review of the Secretary of State’s extradition decision.
Mironescu, 480 F.3d at 673. The Fourth Circuit reasoned that because FARRA
imposed an obligation on the Secretary not to extradite individuals if they are

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27
narrower construction of FARRA § 2242(d), so we are precluded from
following the Fourth Circuit’s analytical path. See Wang, 320 F.3d at
139–41. But we ultimately reach the same destination in light of the
later-enacted Section 1252(a)(4), which, unlike FARRA § 2242(d),
expressly prohibits habeas review of CAT claims.
On the other hand, the Ninth Circuit sitting en banc could not
agree on a coherent approach. In a short per curiam opinion that
generated five lengthy concurrences and dissents, that Circuit held
that the REAL ID Act could be “construed as being confined to
addressing final orders of removal, without affecting federal habeas
jurisdiction,” and therefore allows for exceedingly narrow habeas
review of CAT claims brought by extraditees. Trinidad y Garcia v.
Thomas, 683 F.3d 952, 956–57 (9th Cir. 2012). The majority held that a
district court may do no more than confirm that the Secretary of State
had actually considered the extraditee’s CAT claim and found it was
not “more likely than not” that the extraditee will face torture if
extradited. Id. at 957. For the reasons explained above, we are
unpersuaded by the Ninth Circuit’s interpretation of the REAL ID
Act. We read the plain language of Section 1242(a)(4) to
unequivocally bar any habeas review of CAT claims in extradition
likely to face torture, a court could review that decision because the rule of non-
inquiry historically only applied absent any federal right to particular treatment
in the requesting country. Id. at 671–73. As the Fourth Circuit stated, “FARR[A]
now has given petitioners the foothold that was lacking when the [Supreme] Court
decided [earlier cases].” Id. at 671. Although, as discussed below, we do not agree
with this analysis, it is of no moment because we conclude Section 1252(a)(4) bars
review in any event.

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28
proceedings, and thus we (like the D.C. and Fourth Circuits) part
ways with our sister Circuit.
Accordingly, we find that Section 1252(a)(4) is sufficiently clear
and unambiguous to bar our habeas jurisdiction over Kapoor’s claims
under the Convention. 14 Our inquiry then becomes whether
application of Section 1252(a)(4) to bar habeas review of CAT claims
in the extradition context violates the Suspension Clause of the
Constitution.15
14 Because we conclude that Congress has expressly barred federal habeas
review of extradition-based CAT claims, we need not decide whether absent such
a bar, there would be an individual right to raise such a claim. As we explain
above, the Convention is a non-self-executing treaty—instead, claimants must rely
on the rights contained in the Convention’s implementing statute and regulations.
FARRA sets forth a policy that the United States comply with the Convention and
directs the Secretary to prescribe regulations to implement the obligations of the
United States under Article 3 of the Convention. FARRA § 2242(a)–(b). Those
regulations, in turn, disclaim the creation of any personal rights. 22 C.F.R. § 95.4.
Whether an extraditee could nonetheless bring a CAT claim under FARRA
pursuant to its policy statement or directive to the Secretary, absent the bar
currently in place under Section 1252(a)(4), is a question we do not address here.
See Gonzaga Univ. v. Doe, 536 U.S. 273, 288 (2002) (holding that a statute that
“speak[s] only in terms of institutional policy and practice . . . cannot give rise to
individual rights”) (internal quotation marks omitted).
15 Because we determine that Section 1252(a)(4) unambiguously bars
habeas review of CAT claims in the extradition context, we have no occasion to
consider the constitutional avoidance doctrine, which applies only “where an
alternative interpretation of the statute is fairly possible.” St. Cyr, 533 U.S. at 300
(internal quotation marks omitted). In any event, as we proceed to explain, the
rule of non-inquiry has always precluded judicial review in extradition
proceedings of claims based on anticipated treatment in a receiving country.
Accordingly, no serious constitutional concern is raised by Section 1252(a)(4).

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29
Kapoor argues that judicial consideration of the CAT claim in
her habeas petition is guaranteed by the Suspension Clause. The
Suspension Clause provides 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.” U.S. Const.,
art. I, § 9, cl. 2. “At its historical core, the writ of habeas corpus has
served as a means of reviewing the legality of Executive
detention . . . .” St. Cyr, 533 U.S. at 301; see also Swain v. Pressley, 430
U.S. 372, 386 (1977) (Burger, C.J., concurring in part and concurring in
the judgment) (noting that “the traditional Great Writ was largely a
remedy against executive detention”). Thus, Section 1252(a)(4) would
violate the Constitution if it precluded the type of habeas review
historically protected by the Suspension Clause. We find no such
violation arises because fugitives like Kapoor facing extradition have
not traditionally been able to maintain a habeas claim based on their
anticipated treatment in a receiving country under the rule of non-
inquiry.
The rule of non-inquiry “bars courts from evaluating the
fairness and humaneness of another country’s criminal justice system,
requiring deference to the Executive Branch on such matters.” Hilton
v. Kerry, 754 F.3d 79, 84–85 (1st Cir. 2014) (internal quotation marks
omitted). Clear articulation of the doctrine can be traced back to
Supreme Court cases that initially set the narrow parameters for
habeas relief in the context of extradition generally. In these cases, the
Supreme Court limited its habeas review to “an inquiry as to whether,
under the construction of the act of congress and the treaty entered

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30
into[,] . . . there was legal evidence before the commissioner to justify
him in exercising his power to commit the person accused to
custody.” Benson, 127 U.S. at 463; see also In re Oteiza y Cortes, 136 U.S.
330, 334 (1890) (confirming narrow scope of habeas review in
extradition proceedings); Ornelas v. Ruiz, 161 U.S. 502, 508–09 (1896)
(same).
With these general principles established, the Supreme Court
first had occasion to consider, in Neely v. Henkel, 180 U.S. 109 (1901),
the scope of habeas proceedings in extradition cases with respect to
claims based on the conditions in the country requesting extradition.
In Neely, a habeas petitioner claimed that his extradition to Cuba was
unconstitutional because it would allow his trial there to be
conducted without “all of the rights, privileges, and immunities that
are guaranteed by the Constitution.” Id. at 122. Speaking for the
Court, Justice Harlan rejected the claim:
When an American citizen commits a crime in a foreign
country, he cannot complain if required to submit to such
modes of trial and to such punishment as the laws of that
country may prescribe for its own people, unless a
different mode be provided for by treaty stipulations
between that country and the United States.
Id. at 123; see also Glucksman v. Henkel, 221 U.S. 508, 512 (1911) (“We
are bound by the existence of an extradition treaty to assume that the
trial will be fair.”).
Most recently in Munaf v. Geren, the Supreme Court reaffirmed
this point while considering the habeas petition of a U.S. citizen

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31
whom the military detained in Iraq and intended to transfer to Iraqi
custody. 553 U.S. 674, 700–01 (2008). Though the Court expressed
“serious concern” over the petitioner’s allegation that his military
transfer to Iraqi custody would likely result in torture, the Court
stated that such a concern is to be “addressed by the political
branches, not the Judiciary.”16 Id. at 700. The Court noted that the
“Judiciary is not suited to second-guess such determinations—
determinations that would require federal courts to pass judgment on
foreign justice systems and undermine the Government’s ability to
speak with one voice in this area.” Id. at 702 (citing The Federalist No.
42, p. 279 (J. Cooke ed. 1961) (J. Madison)). “In contrast, the political
branches are well situated to consider sensitive foreign policy issues,
such as whether there is a serious prospect of torture at the hands of
an ally, and what to do about it if there is.”17 Id.
16 In Munaf, the Supreme Court reserved judgment on a hypothetical
“extreme case in which the Executive has determined that a detainee [in custody]
is likely to be tortured but decides to transfer him anyway.” 553 U.S. at 702; see id.
at 706 (Souter, J., concurring). This case does not present that issue. Here, the
Department of State has acknowledged that the Convention obligated the United
States “not to extradite a person to a country ‘where there are substantial grounds
for believing that he would be in danger of being subjected to torture’” and
confirmed on three separate occasions that the decision to surrender Kapoor
“complies with the United States’ obligations under the Convention.” Gov’t
App’x 268–69, 274-77, 298 ¶ 8.
17 This historical division also dovetails with the statutory framework of
extradition mapped out above—legal issues such as the sufficiency of evidence
regarding the crime charged and interpretation of the applicable treaty are
reserved for the judicial officer while determinations about the conditions of the
country requesting extradition are reserved for the Department of State. “Both
institutional competence rationales and our constitutional structure, which places

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32
The Supreme Court’s reasoning in Munaf applies with equal
force in the extradition context, where nearly all transfers occur
pursuant to bilateral treaties signed by the President and ratified by
two-thirds of the Senate. In approving extradition treaties, the
political branches have made a determination that extradition to
specific treaty partners is generally warranted and appropriate while
still reserving the Secretary of State’s ability to withhold extradition
based on any number of considerations, such as the United States’
need to comply with its obligations under the Convention or other
exceptions enumerated in the treaties themselves.
Like the Supreme Court, this Court has not explicitly identified
the rule of non-inquiry by name, but it has repeatedly applied the rule
in substance to bar judicial consideration of a receiving country’s
conditions in the context of habeas proceedings initiated by
extraditees. See Skaftouros, 667 F.3d at 157 (“[C]onsideration of the
procedures that will or may occur in the requesting country is not
within the purview of a habeas corpus judge.”) (internal quotation
marks omitted); Ahmad v. Wigen, 910 F.2d 1063, 1067 (2d Cir. 1990)
(“The interests of international comity are ill-served by requiring a
foreign nation . . . to satisfy a United States district judge concerning
the fairness of its laws and the manner in which they are enforced. It
is the function of the Secretary of State to determine whether
extradition should be denied on humanitarian grounds.”) (citation
omitted); Sindona v. Grant, 619 F.2d 167, 174 (2d Cir. 1980) (“[T]he
primary responsibility for foreign affairs in the [E]xecutive [B]ranch, support this
division of labor.” Kin-Hong, 110 F.3d at 110 (citing United States v. Curtiss–Wright
Export Corp., 299 U.S. 304, 319–22 (1936)).

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33
degree of risk to [the petitioner’s] life from extradition is an issue that
properly falls within the exclusive purview of the executive branch.”);
Gallina v. Fraser, 278 F.2d 77, 78 (2d Cir. 1960) 18 (“[W]e have
discovered no case authorizing a federal court, in a habeas corpus
proceeding challenging extradition from the United States to a foreign
nation, to inquire into the procedures which await the relator upon
extradition.”).
Other circuits, too, have held that the rule of non-inquiry
prohibits habeas review of the anticipated treatment of individuals in
a foreign country requesting extradition. See Hilton, 754 F.3d at 84–
85; Hoxha v. Levi, 465 F.3d 554, 563 (3d Cir. 2006) (“Under the
traditional doctrine of ‘non-inquiry,’ such humanitarian
considerations are within the purview of the executive branch and
generally should not be addressed by the courts in deciding whether
a petitioner is extraditable.”); Venckiene v. United States, 929 F.3d 843,
855 (7th Cir. 2019) (“Under the settled and general rule of non-
inquiry, in extradition, discretionary judgments and matters of
18 In Gallina, which was decided by our Court in 1960, we speculated about
a possible exception to the rule of non-inquiry in extreme cases when “the relator,
upon extradition, would be subject to procedures or punishment so antipathetic
to a federal court’s sense of decency as to require reexamination of the principle
set out above.” Gallina, 278 F.2d at 79. Other courts have noted the hypothetical
“exception” we mentioned in Gallina, but none has applied it. See Hilton, 754 F.3d
at 87 (“No court has yet applied such a theoretical Gallina exception. . . . [W]e
decline to apply such an exception.”); Hoxha v. Levi, 465 F.3d 554, 564 n.14 (3d Cir.
2006) (stating that the Gallina exception “remains theoretical, however, because no
federal court has applied it to grant habeas relief in an extradition case”). We
likewise have no occasion to address such an exception because this case is
governed by Congress’s express prohibition of habeas review of CAT claims.

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34
political and humanitarian judgment are left to the executive
branch.”) (internal quotation marks and brackets omitted); Santos v.
Thomas, 830 F.3d 987, 1007 n.9 (9th Cir. 2016) (“[T]he rule [of non-
inquiry] bars the judiciary from preventing the surrender of a fugitive
on the basis of humanitarian considerations once extradition has been
certified, reserving that decision to the Secretary of State.”).
In light of this history, the rule of non-inquiry and the
separation-of-powers principles animating that rule must inform our
determination of whether Kapoor’s petition falls within the
protection of the Suspension Clause. See Boumediene v. Bush, 553 U.S.
723, 746 (2008) (“The separation-of-powers doctrine, and the history
that influenced its design, . . . must inform the reach and purpose of
the Suspension Clause.”). Kapoor claims that the Department of State
failed to meaningfully review her allegation that she will likely be
tortured if she is extradited to India. Though her claim is framed as a
question of law—i.e., whether the Department met its obligation
under the Convention—the claim would require our Court to review
the evidence available to the Department when it made its extradition
determination. Kapoor effectively asks this Court to review the
conditions of the country requesting her extradition and determine
how she is likely to be treated if returned 19 —the precise type of
19 See Appellant Br. at 18 (“Petitioner alleges that her extradition would
represent illegal government conduct, given that her CAT claim remains
unadjudicated by any Court”) (emphasis added); id. at 23–24 (arguing for habeas
review of her CAT claim because the “executive does not have unfettered power
to extradite[] Monika Kapoor to torture or inhumane treatment”); Appellant Reply
Br. at 3 (arguing that this Court has jurisdiction because “[n]o court has made any

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35
question barred by the rule of non-inquiry and that courts have
therefore declined to address in the extradition context. See Munaf,
553 U.S. at 700 (stating that the fear of torture in a receiving country
is “a matter of serious concern, but . . . that concern is to be addressed
by the political branches, not the Judiciary”).
The historical tradition of refusing to consider habeas petitions
challenging the conditions of the country requesting extradition
means Kapoor does not present a claim implicating the type of habeas
review protected by the Suspension Clause. See Omar, 646 F.3d at 19
(“Those facing extradition traditionally have not been able to
maintain habeas claims to block transfer based on conditions in the
receiving country.”); id. at 24 (“Congress has no constitutional
obligation to grant extradition and military transferees . . . a right to
judicial review of conditions in the receiving country.”); see also
Thuraissigiam, 591 U.S. at 112, 117–20 (finding that a statute that
eliminated jurisdiction over habeas petition did not violate the
Suspension Clause because the petitioner sought relief that fell
outside the historical scope of the writ of habeas corpus). Because
Kapoor’s use of the writ of habeas corpus would not have been
cognizable historically, there is no constitutional rule that would bar
Section 1252(a)(4)’s divestment of our habeas jurisdiction to hear her
extradition-based CAT claim.
determination on [Kapoor’s] CAT claim” and, instead, they have “relied on the
letters from the Secretary of State’s office regarding her [CAT] claim”).

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36
Accordingly, we conclude that Section 1252(a)(4) deprives this
Court of habeas jurisdiction to hear Kapoor’s CAT claim.20
III. Conclusion
The United States has adhered to the Convention Against
Torture and there is no question that it has thereby bound itself to the
treaty’s obligation not to return anyone to a country where she is
20 Kapoor also claims that the district court violated her due process rights
by: (i) first finding that it had jurisdiction to review her CAT claim during oral
argument but then denying jurisdiction in its ruling on the petition, and (ii) failing
to address the due process arguments she raised at oral argument and in
supplemental briefing. We find these arguments unpersuasive.
First, the district court’s remarks during oral argument and its decision to
ask for additional briefing on the question of jurisdiction make clear that its habeas
jurisdiction over Kapoor’s CAT claim was an open question the court was still
considering. See App’x 31.
Second, Kapoor failed to articulate a colorable due process claim that would
otherwise be sufficient to warrant exercise of habeas jurisdiction. Kapoor’s
arguments amount to nothing more than the claim that the Indian extradition
request was stale because two of the charges against her were dismissed, and the
three remaining charges could be resolved by fines (and are therefore not
extraditable offenses). However, the Secretary of State provided an Amended
Surrender Warrant based only on the three remaining charges, and additional
correspondence from the Indian government clarified that those charges are still
punishable by imprisonment exceeding one year. The Treaty defines an
extraditable offense to be one that “is punishable . . . for a period of more than one
year” of imprisonment. Treaty, art. 2. Thus, it does not matter what Kapoor’s
actual punishment may turn out to be; it only matters that the offense is punishable
by imprisonment of more than one year. See Yau-Leung v. Soscia, 649 F.2d 914, 919
(2d Cir. 1981) (discussing a similar treaty provision and concluding that the
provision “appears concerned not with the penalties received by any criminal, but
with the possible penalties, since such penalties supply a measure of the
seriousness with which the crime is regarded”).

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more likely than not to be tortured. Our holding today affirms only
that Congress has decided that, in the context of extradition,
compliance with that obligation is entrusted to the Secretary of State
rather than the courts.
In sum, we hold as follows:
(1) Section 1252(a)(4) bars courts from exercising habeas
jurisdiction over CAT claims raised by individuals facing
extradition.
(2) Application of Section 1252(a)(4) to bar habeas review of
CAT claims brought by extraditees does not violate the
Suspension Clause, because the rule of non-inquiry has
historically precluded courts from reviewing the anticipated
treatment of an individual in a foreign country requesting
extradition.
We therefore AFFIRM the district court’s dismissal of Kapoor’s
petition.

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