United States v. 2020-12-21 | 20-10317 | USA V. ALI YOUSIF AL-NOURI | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALI YOUSIF AHMED AL-NOURI,
AKA Ali Ahmed, AKA Ali Yousif
Ahmed, AKA Ali Yousif Ahmed Al
Noori, AKA Ali Al-Daleme, AKA
Ali Yousif Ahmed Al-Mahmadi,
AKA Ali Youssef Ahmed Al-Nouri,
AKA Ali Yousif Nouri, AKA Ali
Yousif Ahmed Nouri,
Defendant-Appellant.
No. 20-10317
D.C. No.
2:20-mj-08033-
MTM-MTL-1
ORDER
Appeal from the United States District Court
for the District of Arizona
Michael T. Morrissey, Magistrate Judge, Presiding
Submitted to Motions Panel November 30, 2020
*
Filed December 21, 2020
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

UNITED STATES V. AL-NOURI2
Before: Richard R. Clifton, Sandra S. Ikuta, and
Kenneth K. Lee, Circuit Judges.
Order
SUMMARY
**
Bail Pending Extradition Proceeding
A motions panel dismissed for lack of jurisdiction an
appeal from a magistrate judge’s denial of bail pending the
conclusion of an extradition proceeding.
The panel wrote that because magistrate judges’ bail
decisions in extradition proceedings are not “final decisions
of the district courts of the United States,” this court does not
have jurisdiction under 28 U.S.C. § 1291; and that this court
does not have jurisdiction under § 636(c) of the Federal
Magistrates Act, because a magistrate judge’s bail
determination in this context is not a judgment “in a jury or
nonjury civil matter” upon “consent of the parties.”
COUNSEL
Jon M. Sands, Federal Public Defender; Daniel L. Kaplan and
Jami Johnson, Assistant Federal Public Defenders; Office of
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

UNITED STATES V. AL-NOURI3
the Federal Public Defender, Phoenix, Arizona; for
Defendant-Appellant.
Michael Bailey, United States Attorney; Krissa M. Lanham,
Appellate Division Chief; Rachel C. Hernandez, Todd M.
Allison, David A. Pimsner, and Dimitra H. Sampson,
Assistant United States Attorneys; United States Attorney’s
Office, Phoenix, Arizona; for Plaintiff-Appellee.
ORDER
Ali Yousif Ahmed Al-Nouri appeals the magistrate
judge’s denial of bail pending the conclusion of an extradition
proceeding under 18 U.S.C. § 3184. We conclude we lack
jurisdiction and grant the government’s motion to dismiss.
I
In October 2019, pursuant to the Extradition Treaty
between the United States of America and Iraq, 49 Stat 3380
(Apr. 28, 1936), Iraq submitted a request for the extradition
of Al-Nouri, a United States citizen. According to the
information provided by Iraq, Al-Nouri has been charged
with two counts of premeditated murder in violation of
Article 406(1)(A) of the Iraqi Penal Code No. 111. In
January 2020, the government filed a complaint pursuant to
18 U.S.C. § 3184 requesting a warrant for Al-Nouri’s arrest.
After an arrest warrant was issued and Al-Nouri was taken
into custody, the government filed a request for Al-Nouri’s
detention pending the resolution of the extradition
proceedings. A magistrate judge for the District of Arizona
held that there were no special circumstances that warranted
Al-Nouri’s release or that rebutted the presumption against

UNITED STATES V. AL-NOURI4
bail in extradition cases. Therefore, the magistrate judge
ordered that Al-Nouri be detained until the conclusion of the
extradition proceedings. Al-Nouri filed a notice of appeal
and a memorandum challenging the magistrate judge’s
detention order, and the government filed a motion to dismiss
the appeal for lack of jurisdiction.
II
“The court of appeals is a court of limited jurisdiction,
and its jurisdiction is expressly provided for by statute.”
Young Properties Corp. v. United Equity Corp., 534 F.2d
847, 849 (9th Cir. 1976). Accordingly, we must first
determine whether Congress has given us jurisdiction over an
appeal of a magistrate judge’s detention order (and denial of
bail) in extradition proceedings.
Because magistrate judges’ bail decisions in extradition
proceedings are not “final decisions of the district courts of
the United States,” 28 U.S.C. § 1291 (emphasis added), we do
not have jurisdiction under § 1291. Cf. United States v. Ritte,
558 F.2d 926, 927 (9th Cir. 1977) (a magistrate judge’s order
for forfeiture of appearance bond for breach of bail condition
was “not a final appealable order of the district court within
the meaning of [§] 1291”). Nor do we have jurisdiction under
§ 636(c) of the Federal Magistrates Act, because a magistrate
judge’s bail determination in this context is not a judgment
“in a jury or nonjury civil matter” upon “consent of the
parties.” 28 U.S.C. § 636(c)(1), (c)(3). We are not aware of
any other basis for jurisdiction over this appeal, and Al-Nouri
asserts none. We therefore conclude that we lack jurisdiction
to review Al-Nouri’s challenge to the magistrate judge’s
denial of bail.

UNITED STATES V. AL-NOURI5
Nevertheless, magistrate judges’ bail decisions in
extradition proceedings do not escape review. We previously
concluded that when district courts preside in extradition
proceedings pursuant to 18 U.S.C. § 3184, their decisions to
grant or deny bail qualify as “final decisions of the district
courts” for purposes of § 1291. In re Requested Extradition
of Kirby, 106 F.3d 855, 859 (9th Cir. 1996), as amended (Feb.
27, 1997) (hereinafter, Kirby). As we explained in Kirby, a
district court’s authority to grant bail does not stem from
§ 3184, because that statute “contains no provisions for bail
whatsoever.” Id. Rather, a district court’s bail authority
stems from the Supreme Court’s decision in Wright v.
Henkel, 190 U.S. 40 (1903), which vested the power to grant
bail in extradition cases in “courts” within the meaning of
§ 1291.
1
Kirby, 106 F.3d at 859 & 864 n.11 (“[A] district
judge who grants bail in an extradition case is acting as an
Article III court.” (emphasis omitted)).
Although a magistrate judge is not an Article III judge,
see, e.g., United States v. Gomez-Lepe, 207 F.3d 623, 631
(9th Cir. 2000), magistrate judges may be assigned
“additional duties as are not inconsistent with the
Constitution and laws of the United States,” 28 U.S.C.
§ 636(b)(3). To the extent a magistrate judge has been
assigned the Article III power to make bail decisions, either
implicitly by custom or expressly by local rules, such
decisions may be reviewed de novo by the district court upon
1
Moreover, a district court’s bail decision qualifies as a final decision
of a district court within the meaning of § 1291. Kirby, 106 F.3d at 861.
“[G]iven that bail decisions in criminal cases are ‘final’ under section
1291,” id. at 860, we reasoned that the district court’s decision to grant
bail to potential extraditees was also final within the meaning of § 1291,
id. at 861.

UNITED STATES V. AL-NOURI6
application by a party. See Branch v. Umphenour, 936 F.3d
994, 1004 (9th Cir. 2019). As Branch explained, “Article III
judges retained continuing, plenary responsibility for the
administration of the judicial business of the United States.”
Id. at 1001 (cleaned up). The district court’s decision would
then be a final decision for purposes of § 1291, and is
appealable to this court. Kirby, 106 F.3d at 860–61.
2
Further,
a potential extraditee may appeal a denial of bail by way of a
petition for writ of habeas corpus. Id. at 858.
Because we lack jurisdiction over Al-Nouri’s appeal from
the magistrate judge’s order of detention, we dismiss this
appeal without prejudice to further proceedings by the
parties.
3
DISMISSED.
2
We therefore disagree with the Eleventh Circuit’s conclusion that a
district court lacks jurisdiction to review the magistrate judge’s bail
decision in connection with extradition proceedings. See In re Extradition
of Ghandtchi, 697 F.2d 1037, 1038 n.2 (11th Cir. 1983). To the extent the
Eleventh Circuit based this ruling on the assumption that magistrate judges
had authority under § 3184 to make bail decisions, it is contrary to Kirby,
106 F.3d at 864 n.11. We likewise reject any district court decisions that
are based on a similar assumption. See In re Extradition of Siegmund,
887 F. Supp. 1383, 1384–85 (D. Nev. 1995) (noting that “the power to
make bail determinations is within the magistrate [judge]’s more general
power to conduct proceedings in extradition matters”).
3
Appellant also filed an unopposed Motion to File Selected Exhibits
Under Seal (ECF No. 4). Because we find “compelling reasons” to seal
the exhibits at issue “that outweigh the general history of access and the
public policies favoring disclosure,” we GRANT Appellant’s motion.
Kamakana v. City & Cnty of Honolulu, 447 F.3d 1172, 1178–79 (9th Cir.
2006) (citing Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135
(9th Cir.2003)).