The opinion of the court was delivered by: Hay, Chief Magistrate Judge
Jiri Masopust ("Masopust" or "the Petitioner"), a Czech Republic national, petitions this Court for "a writ of habeas corpus pursuant to §§ 2241 and 2243." (Doc.1). He also requests "declaratory and injunctive relief as to remedy his prospective and unlawful detention" in connection with extradition proceedings, and to prevent the government from violating his constitutional rights by ordering his extradition. (Id.). Specifically, Masopust asks that the Secretary of State be enjoined from extraditing him prior to resolution of asylum claims filed in concurrent removal proceedings pending before the Immigration Court in Philadelphia, Pennsylvania. (Doc.1 at 7). He also asks that the extradition proceedings be indefinitely suspended or terminated should the Immigration Court find that his torture related claims have merit. (Id.).
The salient facts are undisputed. On June 16, 1998, Masopust entered this country under a B-2 visitor's visa, but failed to depart when the visa expired in December 1998. Because of this overstay, removal proceedings were initiated. In June 2009, while removal proceedings were pending, the government filed a Complaint in the District Court for the Western District of Pennsylvania on behalf of the Czech Republic. In the Complaint, the government sought to have Masopust, who has been charged by Czech authorities with fraud and misappropriation of funds, extradited pursuant to a treaty between the United States and the Czech Republic. On July 10, 2009, removal proceedings before the Immigration Court were stayed pending resolution of the extradition proceedings.
Following his initial appearance before a Magistrate Judge in this District, Masopust was detained pursuant to an Order of Temporary Detention, and, on July 9, 2009, was ordered detained after waiving a detention hearing. On October 8, 2009, the Petitioner, with counsel present, executed an Affidavit admitting that he was wanted in the Czech Republic, and that there was probable cause to believe that he had committed the offenses alleged. On the same date, he waived an extradition hearing, acknowledging that he would remain in the custody of the United States Marshal at the Allegheny County Jail pending a final extradition determination by the Secretary of State pursuant to 18 U.S.C. §§ 3185 et seq. At the conclusion of the proceedings, the Magistrate Judge issued a Certification of Extraditability which was filed with the Secretary of State and the Office of International Affairs, Criminal Division, U.S. Department of Justice.
On October 19, 2009, Masopust filed in the Immigration Court a Form I-589 Application for Asylum and Withholding of Removal, claiming protection pursuant to Article 3 of the Convention Against Torture ("CAT").*fn1 In the Application, he alleged that his business was indebted to multiple individuals, some of whom had hired collection agencies run by "Russian thugs" or "Czechs that would . . . send very intimidating men after him." (Doc. 1 Ex. 1 at 10). Masopust claimed that he had been harassed, threatened, strong-armed, beaten, and forced "to leave the Czech Republic to save his life." (Id.). The Petitioner asserts that on the date of that filing, he mailed copies of the I-589 Application to the "U.S. Attorney and the Secretary of State." (Id. at 16). According to Masopust, he filed this habeas petition on November 6, 2009, in response to the Immigration Court's statement that "although it obviously [could] adjudicate [his] I-589 CAT claim, it lacks jurisdiction to issue any order compelling the Secretary of State to suspend extradition while [his] claim is pending in Immigration Court." (Doc 1 at ¶ 19). Because of the stay entered in the removal proceedings, the Immigration Court has not considered Masopust's Application.
In an affidavit filed with his reply brief, Masopust alleges that on November 10, 2009, he was told that he was being extradited. (Doc.10 Ex. 1). He was then escorted from the Allegheny County Jail to the Pittsburgh International Airport, and placed on a plane. Prior to departure, however, he was removed from the plane and returned to the Allegheny County Jail. (Id.). He contends that his extradition was aborted as a result of his having filed the habeas petition. He also alleges that the November 10 events establish that the Secretary of State "has made a final agency decision to physically extradite" him. (Doc.10 at 2).*fn2
At the outset, the Court notes that the Petitioner has not cited - and the Court has not found -any authority for the proposition that this Court may order a halt to an ongoing extradition proceeding in order to accommodate the Petitioner's preference that his CAT claim be adjudicated by the Immigration Court. The governing statutory framework, the implementing regulations and the associated case law explain this dearth of authority.
In the seminal 1963 case decided by the Board of Immigration Appeals ("BIA"), Matter of Perez-Jiminez, 10 I. & N. Dec. 309, the respondent, who was subject to both extradition and deportation proceedings, claimed in the course of each that the political climate in his home country was "decidedly adverse to him." Id. at 312. He sought to have this claim resolved in the deportation - as opposed to the extradition - proceedings, pointing to "the established regulations and procedures and the avenues for judicial review." Id. While he did "not suggest[ ] that he would not receive due process of law at the hands of the Secretary of State, [he argued] that there are no regulations governing the Secretary of State's action and that the procedures are less tested and more nebulous than those in deportation proceedings." Id.
In response to this argument - which is substantially similar to the one raised here by Masopust - the BIA stated that deportation and extradition proceedings are "related in their effect of removing a person from the country," but "are independent in the sense that the proceedings under each are separate and distinct and . . . a decision in one is not necessarily dependent upon the findings in the other." Id. "Where the proceedings are parallel, therefore, one should be cognizant of the other." Id. The BIA thus held that "[o]rderly procedure requires deferral of [the deportation proceedings] until a final decision is rendered in the extradition case" Id. at 314. Deferral avoids complicating the extradition process and, furthermore, the alternate proceedings "would actually have served no useful purpose" following the issue of an extradition warrant." Id. at 313-14. "Courts have generally accepted the BIA's suspension of asylum proceedings pending the completion of the extradition process" without comment. Barapind v. Reno, 225 F.3d 1100, 1107 (9th Cir. 2000) (citations omitted). The Immigration Court's entry of a stay in this case accords with the general rule.
Masopust nonetheless challenges the deferral, arguing that the due process clause precludes his extradition "until there has been an adjudication, in removal proceedings of [his] CAT claims." (Doc. 1 at ¶ 14) (emphasis added). His argument that the extradition proceedings must be stayed is based, in part, on Section 2242(a) of FARRA, which is, in effect, identical to Article 3 of the CAT:
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.
Masopust also relies on the following excerpt from the opinion of Court of Appeals for the Third Circuit in Khouzam v. Attorney Gen. of United ...