Zhenli Ye Gon v. Frank Dyer, III

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:15-cv-00462-GEC-RSB. Copies to all parties and the district court. [999849487]. [15-7620]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-7620

ZHENLI YE GON,
Petitioner – Appellant,
v.
FRANK E. DYER, III, Superintendent of the Central Virginia
Regional Jail; GERALD S. HOLT, U.S. Marshal for the Western
District of Virginia; JOHN F. KERRY, U.S. Secretary of
State,
Respondents – Appellees.

Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.
Glen E. Conrad, Chief
District Judge. (7:15-cv-00462-GEC-RSB)

Argued:

May 12, 2016

Decided:

June 10, 2016

Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Gregory Stuart Smith, GREGORY S. SMITH, ATTORNEY AT LAW,
Washington, D.C., for Appellant.
William Andrew Glaser, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.
ON BRIEF: John C. Lowe, JOHN LOWE, P.C., Bethesda, Maryland;
Ning Ye, LAW OFFICE OF NING YE, Flushing, New York, for
Appellant.
Leslie R. Caldwell, Assistant Attorney General,
Sung-Hee Suh, Deputy Assistant Attorney General, Appellate
Section, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; John P. Fishwick, Jr., United States Attorney,

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Charlene Day, Assistant United States Attorney, OFFICE OF THE
UNITED
STATES
ATTORNEY,
Roanoke,
Virginia;
John
Chadwick
Johnson, FRITH ANDERSON & PEAKE, PC, Roanoke, Virginia, for
Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Seeking release from custody and to prevent his extradition
to face criminal prosecution in Mexico, Zhenli Ye Gon petitioned
the district court under 18 U.S.C. § 3188 and 28 U.S.C. § 2241.
Following

briefing

and

oral

argument,

the

court

summarily

dismissed the petition (in its amended form) with prejudice. Ye
Gon now appeals. We affirm.
I
Ye Gon was taken into custody in 2007 to face a federal
drug

charge,

but

the

United

States

eventually

dismissed

the

charge. Before the dismissal, however, Mexico requested Ye Gon’s
extradition pursuant to a treaty to prosecute him on charges of
organized crime; unlawful firearm possession; money laundering;
diversion

of

essential

chemicals;

and

drug

importation,

transportation, manufacturing, and possession. In February 2009,
a magistrate judge certified that Ye Gon is extraditable under
the treaty.
This is Ye Gon’s second habeas petition, the first having
come before us in 2014. We affirmed the denial of that petition.
See Ye Gon v. Holt, 774 F.3d 207 (4th Cir. 2014), cert. denied,
135 S.Ct. 2859 (2015). Our decision and the denial of certiorari
review

by

the

Supreme

Court

cleared

the

way

for

the

United

States to proceed with extradition, but at that time the State
Department had not finally determined whether Ye Gon should be
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extradited. See generally id. at 210 (“If the extradition judge
determines that the fugitive is extraditable, he must send his
certification of extraditability to the Secretary of State, who
has

the

final

executive

authority

to

determine

whether

to

extradite the fugitive.”).
After resolution of the first habeas proceeding, Ye Gon
filed

this

discharge

petition
from

seeking

custody

(among

pursuant

other

to

things)

§ 3188.

immediate

That

statute

generally provides that if the United States does not extradite
within

two

calendar

months

after

committing

a

person

for

rendition to a foreign government, a judge “may order the person
so committed to be discharged out of custody, unless sufficient
cause is shown to such judge why such discharge ought not to be
ordered.”
Several weeks later, while the petition was pending, the
State Department authorized Ye Gon’s extradition. In a letter
dated

September

21,

2015,

the

State

Department

official

explained (in part) that Ye Gon’s extradition is not barred by
the

Convention

prohibits
substantial

the

Against
return

grounds

of

exist

Torture

(“CAT”),

an

individual

to

for

believing

that

which
a

generally

country
he

would

where
be

in

danger of being tortured.
In response to the State Department’s authorization, Ye Gon
filed an emergency motion for stay of extradition. Additionally,
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he

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twice

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amended

his

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habeas

petition.

Ultimately,

Ye

Gon

presented five claims for the district court to consider: (1) he
should be discharged from custody under § 3188; (2) he should be
granted CAT relief because he will be tortured or killed if he
is extradited; (3) the State Department’s extradition decision
deprives him of due process; (4) any limitation of his ability
to

have

judicial

review

of

his

torture

claim

violates

the

Suspension Clause of the United States Constitution; and (5) the
Secretary of State illegally delegated the extradition decision
to

a

Deputy

Secretary

of

State.

The

parties

briefed

and/or

orally argued the merits of these claims in connection with the
court’s consideration of Ye Gon’s stay motion.
Thereafter, the district court summarily dismissed Ye Gon’s
amended petition. Additionally, the court denied Ye Gon’s motion
for a stay; however, the court granted a 7-day stay to allow
time to file an appeal. In a memorandum opinion accompanying the
order, the court addressed the merits of Ye Gon’s claims. 1
The district court first considered Ye Gon’s request for
discharge pursuant to § 3188. Initially, the court found that
the request could be denied because it was premature. In the
court’s

view,

the

§

3188

two-month

1

period

began

to

run

on

The court explained that the parties’ extensive arguments
about the merits of the claims made the petition ripe for
disposition.

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February 9, 2011, when a magistrate judge found Ye Gon to be
extraditable

and

issued

a

commitment

order;

the

period

was

tolled on February 10, 2011, when Ye Gon filed his first habeas
petition; and it remained tolled until July 7, 2015, when we
issued our mandate from his prior appeal. Based on this, the
court concluded that the two-month period did not expire until
September

7,

2015,

several

days

after

Ye

Gon

filed

this

petition.
Despite its conclusion that the petition was premature, the
district court did not actually rule on that ground. Instead,
the court concluded that sufficient cause had been shown to deny
the request for discharge on the merits. The court noted that
the State Department’s decision was made, at most, nine days
after the two-month period expired, and it found “no evidence in
the record that the State Department has been anything less than
diligent in its consideration of the extensive materials Ye Gon
has

submitted

extradited
death.”

to

J.A.

in

support

Mexico,
303.

The

he

of

his

will

court

be

multi-part
at

risk

explained

that

claim,

of

that

torture

the

if

and/or

Secretary

of

State’s decision was “complex” and involved review of “court
documents, expert testimony, and thousands of pages of materials
Ye

Gon

submitted

during

the

court

proceedings

in

which

he

challenged his extradition on many grounds other than the risk
of torture.” Id. at 303, 304. The court also determined that Ye
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Gon was not prejudiced by the asserted brief delay beyond the
two-month deadline and the charges against Ye Gon are serious.
The court stated: “[N]o useful purpose is served in discharging
Ye Gon after nearly seven years of extradition litigation, only
to

face

the

potential

for

that

extradition

process

to

begin

anew.” Id. at 304.
The district court next turned to Ye Gon’s claim that he
will be tortured and/or killed if extradited. Ye Gon conceded,
and

the

court

Costner,

concluded,

480

F.3d

664

that

(4th

our

Cir.

decision
2007),

in

Mironescu

prevented

it

v.

from

considering the claim. In Mironescu, we interpreted CAT and the
Foreign

Affairs

Reform

and

Restructuring

(“FARR”)

Act

(which

implements CAT) and held that “courts may consider or review CAT
or FARR Act claims as part of their review of a final removal
order, [but] they are otherwise precluded from considering or
reviewing such claims.” Id. at 674.
The district court then considered Ye Gon’s contention that
he was denied due process by the manner in which the State
Department

has

reviewed

and

decided

his

case,

including

its

refusal to allow his counsel to present his claim in person and
its

issuance

of

a

letter

decision

which

he

contends

is

unconstitutionally vague. The court rejected this claim, finding
in

pertinent

procedural

part

that

protection

“Ye

Gon

received

contemplated
7

by

the

extent

Congress

of

under

the
the

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statutes at issue: consideration and an executive decision on
the CAT claim before the surrender warrant was issued.” J.A.
308. For support, the court relied on Peroff v. Hylton, 563 F.2d
1099, 1102 (4th Cir. 1977), in which we noted that “matters
involving extradition have traditionally been entrusted to the
broad

discretion

flexibility
heightened

in
in

of
the

the

executive,”

exercise

of

international

and

Executive

extradition

the

“need

for

discretion

proceedings

is

which

necessarily implicate the foreign policy interests of the United
States.”

Applying

those

general

principles

in

Peroff,

we

rejected the claim that due process requires a “‘fair hearing’
before

the

Secretary

of

State

on

the

propriety

of

.

.

.

extradition.” Id.
Next, the district court addressed and rejected Ye Gon’s
claim that the Suspension Clause prohibits courts from applying
the FARR Act so as to preclude consideration of his torture
claim. 2 Citing Fernandez v. Phillips, 268 U.S. 311 (1925), the
court noted that habeas review in the extradition context has
traditionally been limited to determining whether: (1) the court
has

jurisdiction

over

the

petitioner,

2

(2)

the

extradition

The Suspension Clause (Art. I, § 9, cl. 2) specifies 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.”

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request

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falls

within

the

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scope

of

the

treaty,

and

(3)

the

foreign charge is supported by probable cause. The court found
that “Ye Gon has clearly had the full benefit of habeas review
of the extradition request under this standard.” J.A. 310. The
court also relied on Munaf v. Geren, 553 U.S. 674 (2008), in
which the Supreme Court rejected the habeas petitioner’s claim
that

he

criminal

faced

torture

prosecution.

if

The

transferred
Munaf

Court

to

Iraqi

explained

custody
that

for

“[s]uch

allegations are of course a matter of serious concern, but in
the

present

context

that

concern

is

to

be

addressed

by

the

political branches, not the Judiciary.” Id. at 700.
Finally, the district court considered Ye Gon’s claim of
improper delegation of authority by the Secretary of State. The
court

found

this

claim

to

be

“without

merit”

because

the

“delegation of authority from the Secretary does not appear to
be inconsistent with the regulations or the statutes, and falls
within the statutory provision empowering the Secretary to make
appropriate delegations.” J.A. 312-13.
II
On appeal, Ye Gon challenges the district court’s ruling on
four of the five claims presented below, and he also raises

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several new claims for the first time. 3 Initially, we note that
because

Ye

Gon

does

not

contend

that

the

court

erred

in

dismissing his improper delegation of authority claim, we need
not

consider

(noting

that

that
the

claim.

See

delegation

Brief
issue

of
“is

Appellant,
not

at

advanced

9

n.4

here”).

Moreover, although Ye Gon continues to press his torture claim,
he concedes (as he did below) that we are bound to reject the
claim under Mironescu. Further, applying the settled rule of
this Court, we decline to consider the new claims Ye Gon has
raised on appeal. See In re Under Seal, 749 F.3d 276, 285 (4th
Cir. 2014) (explaining that we do not consider issues raised for
the first time on appeal absent exceptional circumstances).
That
carefully
abuse

its

discharge

leaves

for

reviewed.
discretion
from

resolution

We

hold

by

custody.

three

claims,

which

we

the

district

court

did

not

request

for

that

denying
The

Ye

court

Gon’s
applied

§ 3188
the

correct

have

legal

principles and adequately explained its rationale, and we are
satisfied that it did not commit a clear error of judgment. See
United

States

v.

Cowley,

814

F.3d

691,

698

(4th

Cir.

2016)

(explaining abuse of discretion standard of review). We further
hold that the court did not err by dismissing the due process

3

After Ye Gon filed this appeal, we granted his motion for
stay pending appeal.

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and

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Suspension

substantially
(pertinent

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Clause
on

portion

claims.

the

court’s

of

district

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As

to

these

reasoning,
court

claims,
see

order),

J.A.
which

we

rely

308-11
we

have

briefly summarized above.
For

these

reasons,

we

affirm

the

final

order

of

the

district court dismissing Ye Gon’s claims.
AFFIRMED

11