Noeller v. Wojdylo

922 F.3d 797

Rodolfo Deiby Burgos NOELLER, Petitioner-Appellant,

v.Jason WOJDYLO, Acting United States Marshal for the Northern District of Illinois, Respondent-Appellee.

No. 18-2723

United States Court of Appeals, Seventh Circuit.

Argued November 27, 2018

Decided April 29, 2019

Carla Iveth Espinoza, Attorney, James Charles Ten Broeck, Jr., Attorney, CHICAGO IMMIGRATION ADVOCATES, Chicago, IL, for Petitioner-Appellant.

Eric S. Pruitt, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL, for Respondents-Appellees.

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 Extradition Treaty, Mexico-U.S., art. X, § 3, Feb. 6, 1980, 31 U.S.T. 5059 (1980). In accord with the treaty, Mexico submitted a formal 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 request complied with the treaty requirements, including submitting evidence establishing probable cause that Burgos Noeller is guilty of the crime for which extradition is sought. The magistrate judge granted the United States government’s request 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 challenges 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.

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 morning after the murder, he received two calls from Jacobo Carrillo’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. Several of his family members provided affidavits describing incidents 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. citizens, but he is not. The Department of Homeland Security took him into custody in February 2015 and began removal proceedings in an immigration court in March. He was charged with removability under the Immigration and Nationality 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 removal, 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 proceedings in abeyance pending resolution of the extradition request. 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 challenge the warrant by starting what is called an amparo proceeding in Mexico. An amparo proceeding is a criminal protection lawsuit "somewhat similar to habeas corpus and, inter alia , is the means to review and annul unconstitutional judicial decisions." United States v. Fowlie , 24 F.3d 1059, 1064 (9th Cir. 1994). It "is a proceeding created under the Mexican Constitution to protect individuals against state abuses by 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 suspended the warrant temporarily on August 26, 2015. He also says the same court in Mexico then issued a permanent suspension of the arrest warrant on September 22, 2015. To support this version of events, Burgos Noeller submitted two unauthenticated documents. He asserts they are copies of the two Mexican court orders suspending his arrest warrant. Burgos Noeller also submitted English translations of these documents. 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 extradition. 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, 2018, Judge Cole formally certified Burgos Noeller’s extradition. The district court then denied his petition for a writ of habeas corpus. Burgos Noeller also sought a court order directing the Board of Immigration Appeals to decide his pending 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, statutes, and a long line of federal case law. "Authority over the extradition process is shared between the executive and judicial 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 executive 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 extradition of an accused:

3.- In addition, when the request for extradition relates to a person who has not yet been convicted, it shall be accompanied by:

a) A certified copy of the warrant of arrest issued by a judge or other judicial officer of the requesting Party;

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 offense 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...