Garcia v. Benov (715 F. Supp. 2d 974, 2009)

United States District Court for the Central District of California 2009-05-15

Citations

Full opinion text

ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE, DENYING APPLICATION TO DISMISS PETITION, AND ORDERING FURTHER PROCEEDINGS

MARGARET M. MORROW, District Judge.

Pursuant to 28 U.S.C. § 636(b)(1)(C), the court has reviewed the entire record in this action, as well as the Report and •Recommendation of the United States Magistrate Judge and Respondent’s objections thereto. The court has also considered Respondent’s Notice of Recent and Relevant Authority, and Petitioner’s response to it. The court has made a de novo determination with respect to any portions of the Report and Recommendation as to which objection has been made.

Accordingly, IT IS ORDERED: that the Report and Recommendation of the United States Magistrate Judge be accepted; and that respondent’s application to dismiss the second amended petition (docket no. 17, filed in the present action on November 3, 2008) be denied.

IT IS FURTHER ORDERED that, within thirty (30) days of the filing date of this order, Respondent shall serve and file an answer addressing Petitioner’s APA claim on its merits.

With the answer, Respondent shall also submit sufficient evidence from the administrative record underlying the Secretary’s decision to enable this court to determine whether the Secretary acted arbitrarily, capriciously, in abuse of discretion, or in violation of the law, in light of her duties under the Torture Convention, the FARR Act, and State Department regulations. Respondent may at that time raise any issues about the appropriate protection of confidential materials.

The magistrate judge will then set a schedule for the filing of Petitioner’s reply, and for further proceedings as may be required.

The Clerk of the Court shall serve copies of this Order on all counsel.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE • JUDGE

CARLA M. WOEHRLE, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Margaret M. Morrow, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California. For reasons stated below, Respondent’s application to dismiss the petition should be denied and further proceedings ordered.

I. BACKGROUND AND PROCEEDINGS

Petitioner Hedelito Trinidad y Garcia (“Petitioner”) is in federal custody awaiting possible extradition to the Philippines, and challenges the legality of that custody. The present action is the third of three related cases in this court, namely, an extradition proceeding and two habeas petitions.

A. THE EXTRADITION PROCESS

Extradition is the formal surrender by one state to another of an individual charged with an offense within the territorial jurisdiction of the requesting state. See Terlinden v. Ames, 184 U.S. 270, 289, 22 S.Ct. 484, 46 L.Ed. 534 (1902); Cohen v. Benov, 374 F.Supp.2d 850, 854 (C.D.Cal. 2005). Extradition from the United States to a foreign nation is initiated by a request to the Department of State from the nation seeking extradition. Vo v. Benov, 447 F.3d 1235, 1237 (9th Cir.2006); Prasoprat v. Benov, 421 F.3d 1009, 1012 (9th Cir.2005); Blaxland v. Commonwealth Dir. of Pub. Prosecutions, 323 F.3d 1198, 1207 (9th Cir.2003). If the State Department finds an extradition request to be within the scope of a relevant extradition treaty, a United States Attorney may be instructed to act for the foreign state by filing a complaint in a federal district court. Vo, 447 F.3d at 1237; Prasoprat 421 F.3d at 1012; Blaxland, 323 F.3d at 1207.

Such a complaint may be brought before a federal judicial officer, who may issue a warrant for the person charged, and may hear and consider evidence. 18 U.S.C. § 3184. As in Petitioner’s case, extradition proceedings are typically brought before a magistrate judge. Vo, 447 F.3d at 1237. The magistrate judge’s role is to determine (1) whether the charged offense is extraditable under the relevant treaty; and (2) whether there is probable cause to sustain the charge against the individual in question. Vo, 447 F.3d at 1237; Prasoprat, 421 F.3d at 1012. On finding probable cause to sustain an extraditable charge, the magistrate judge “is required to certify the individual as extraditable to the Secretary of State.” Vo, 447 F.3d at 1237 (quoting Blaxland, 323 F.3d at 1208 and adding emphasis); accord Prasoprat, 421 F.3d at 1012.

A magistrate judge’s decision to certify a person as extraditable cannot be directly appealed but may be challenged in a habeas petition filed as a new action in the district court. Vo, 447 F.3d at 1240. The district court’s habeas review of a magistrate judge’s extradition order is limited to whether the magistrate had jurisdiction; whether a treaty in force covered the charged offense; and whether competent evidence supported a finding of probable cause. Vo, 447 F.3d at 1240 (quoting Mainero v. Gregg, 164 F.3d 1199, 1201-02 (9th Cir.1999)).

If a person has been judicially certified as extraditable, the Secretary of State then decides whether to surrender the extraditee to the foreign state. Vo, 447 F.3d at 1237. The Secretary may decide to extradite, not to extradite, or to extradite with conditions. See, e.g., United States v. Kin-Hong, 110 F.3d 103, 109-10 (1st Cir.1997). The Secretary's decision “may be based on a variety of grounds, ranging from individual circumstances, to foreign policy concerns, to political exigencies.” Blaxland, 323 F.3d at 1208.

B. PETITIONER’S EXTRADITION CASE

On December 18, 2003, the United States Attorney filed a complaint seeking Petitioner’s extradition to the Philippines on a charge of kidnaping for ransom, and the court issued a bench warrant. [See United States v. Trinidad, Case No. M 03-2710, docket (“dkt.”) no. 1.] Petitioner was arrested, and was arraigned in this court on October 8, 2004. [M 03-2710, dkt. nos. 4-5] The federal public defender was appointed to represent him. [M 03-2710, dkt. no. 5.]

On December 10, 2004, the case was re-docketed as Extradition of Trinidad, No. CV 04-10097-MMM(CW) and assigned to the undersigned magistrate judge, and a formal request for extradition was filed. [CV 04-10097, dkt. nos. 9-11.] The matter was briefed extensively, and the court held an evidentiary hearing (on May 19 and 24, 2005, with closing arguments on August 25, 2005). [CV 04-10097, dkt. nos. 33, 35, 37.] At a hearing on November 13, 2006, the court denied without prejudice Petitioner’s motion for bail. [CV 04-10097, dkt. no. 56.]

A Certification of Extraditability (“Certification,” CV 04-10097, dkt. no. 72) by the magistrate judge was filed September 7, 2007.

In Petitioner’s case it was undisputed that the court had jurisdiction, that a valid treaty was in force, and that the charged offense was covered by the treaty. [Certification at 9-10.] The parties disputed whether there was probable cause to believe Petitioner committed the charged offense. [Id. at 10.] After considering many evidentiary problems, the magistrate judge concluded that the minimum standard of probable cause had been satisfied. [Certification at 33-36 and passim.] The magistrate judge then certified Petitioner for extradition to the Philippines. [Id. at 36.] However, in an order filed September 18, 2007, the magistrate judge stayed extradition until completion of habeas corpus proceedings in the district court. [CV 04-10097, dkt. no. 70.].

C. THE FIRST HABEAS ACTION

On October 5, 2007, Petitioner filed a petition for writ of habeas corpus under 28 U.S.C. § 2241. The case was assigned to District Judge Margaret M. Morrow, and docketed as No. CV 07-6387-MMM. Petitioner challenged the extradition certification, contending that the magistrate judge erred in admitting supplemental evidence; that even if the evidence was properly-admitted, it did not support a finding of probable cause; and that even if adequate evidence supported a finding of probable cause, Petitioner’s extradition would violate federal law and the Convention Against Torture (“Torture Convention”). [Order Denying Petition for Writ of Habeas Corpus (“Order Denying Petition”) at 15, CV 07-6387, dkt. no. 43.]

On December 20, 2007, Petitioner filed a motion to stay the habeas proceeding until the Secretary of State reviewed his Torture Convention claim. [CV 07-6387, dkt. no. 23.] In an order filed March 3, 2008, the court denied the motion to stay, finding that a Torture Convention claim would only be ripe for judicial review if the Secretary decided to surrender Petitioner, and that Petitioner could seek a stay of extradition, if necessary, once the district court decided the habeas petition. [“Order Denying Stay,” CV 07-6387, dkt. no. 31.] On April 15, 2008, Petitioner moved for reconsideration of the order denying a stay. [CV 07-6387, dkt. no. 32.] In an order filed May 13, 2008, the court denied the motion, again finding the Torture Convention claim not ripe for review unless and until the Secretary decided to surrender Petitioner. [“Order Denying Reconsideration,” CV 07-6387, dkt. no. 37.]

In an order filed July 16, 2008, the court denied Petitioner’s first habeas petition, rejecting the evidentiary arguments, and affirming the probable cause finding. [CV 07-6387, dkt. no. 43.] The court also found, again, that the Torture Convention claim, if renewable, was not ripe until the Secretary made a final decision to surrender Petitioner for extradition to the Philippines, and denied the first petition without prejudice to asserting a Torture Convention claim in a second habeas petition. [Id] On July 24, 2008, Petitioner waived his right to appeal the district court decision. [CV 07-6387, dkt. no. 44.]

On September 12, 2008, the Secretary of State issued a warrant to surrender Petitioner for extradition, and Petitioner filed a request to stay the extradition pending resolution of a second habeas petition. [CV 07-6387, dkt. no. 46.] In orders filed September 29, 2008, the court granted Petitioner’s stay request. [CV 07-6387, dkt. nos. 51, 52.] Judgment was subsequently entered, on November 20, 2008, denying Petitioner’s first habeas petition. [CV 07-6387, dkt. no. 63.]

D. THE PRESENT HABEAS ACTION

The present action was opened on November 24, 2008, as a petition for writ of habeas corpus under 28 U.S.C. § 2241, docketed as No. CV 08-7719-MMM(CW). Petitioner’s second habeas petition, originally filed on September 17, 2008, in Case No. CV 07-6387, was reentered in the new action [CV 08-7719, dkt. no. 1], along with a supporting memorandum [“P. Mem.,” dkt. no 6], exhibits [dkt. no. 8], the court’s prior orders staying extradition [dkt. nos. 9, 10], Respondent’s application to dismiss the second petition [“R. App.,” dkt. no. 17], Petitioner’s traverse [“Tra.,” dkt. no. 18], and other documents. Respondent’s reply (“Rep.”) was filed on January 5, 2009. [CV 08-7719, dkt. no. 29.] The application to dismiss has been fully briefed and submitted for decision. [See Minute Order, dkt. no. 28, filed December 9, 2008.]

II. PETITIONER’S PRESENT CLAIMS

Petitioner’s second petition challenges Petitioner’s custody pending extradition to the Philippines under the Secretary of State’s surrender warrant issued September 12, 2008. [CV 08-7719, dkt. no. 1.] Petitioner contends that his extradition would violate the Convention Against Torture and federal law because there are substantial grounds to believe that he will be tortured if returned to the Philippines. He asserts three grounds for relief, claiming that the Secretary’s decision to extradite him, in spite of his Torture Convention claim, (1) was arbitrary in violation of the Administrative Procedure Act (“APA”), (2) denied him procedural due process under the Fifth Amendment, and (3) denied him substantive due process under the Fifth Amendment. [P. Mem., dkt. no. 6.] The APA claim, in particular, is premised on the Ninth Circuit’s decision in Cornejo-Barreto v. Seifert (“Cornejo-Barreto I”), 218 F.3d 1004 (9th Cir.2000).

Respondent has presented seven arguments for dismissing the present petition for lack of jurisdiction: (I) habeas review of Torture Convention claims by district courts is barred by the REAL ID Act; (II) judicial review of the Secretary’s decision is precluded by the “Rule of Non-Inquiry” reaffirmed in Munaf v. Geren, 553 U.S. 674, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008); (III) neither the Torture Convention nor the FARR Act overturned the Rule of Non-Inquiry; (IV) the APA does not support judicial review of the Secretary’s decision; (V) the suggestion in Cornejo-Barreto I that the Secretary’s final decisions are reviewable is non-binding dicta; (VI) the procedural due process claim is without merit; and (VII) the substantive due process claim is without merit. [R.App., dkt. no. 17.]

In his traverse, along with responding to Respondent’s arguments, Petitioner contends that this court already decided (in CV 07-6387) that it has jurisdiction to review the Secretary’s final decision, and, therefore, that Respondent’s application, by not addressing the substance of Petitioner’s claims, violated the court’s order to show cause and amounted to an unauthorized motion for reconsideration. Petitioner also disputes Respondent’s interpretation of the REAL ID Act. [Dkt. no. 18.] Respondent’s reply reasserts arguments on the REAL ID Act and the Munaf decision. [Dkt. no. 29.]

III. DISCUSSION

As noted above, in an original extradition proceeding a magistrate judge’s role is to determine whether there is probable cause to sustain an extraditable charge. Under the “Rule of Non-Inquiry,” the magistrate does not inquire into the penal system of a requesting nation, or try to determine whether an extraditee is likely to be treated humanely if extradited, leaving such determinations to the Secretary of State. See, e.g. Prasoprat v. Benov, 421 F.3d at 1016. In part for that reason, this court declined to address Petitioner’s Torture Convention claim in either the original extradition proceeding [CV 04-10097] or the first habeas proceeding reviewing that decision [CV 07-6387],

Now the magistrate judge has certified Petitioner as extraditable, the district court has affirmed that decision on habeas review, Petitioner has waived appeal of the habeas decision, the Secretary has decided to surrender Petitioner, and Petitioner has reasserted claims under the Torture Convention claim in a challenge to the Secretary’s final decision. Respondent argues that the Rule of Non-Inquiry still applies and bars any judicial review of Petitioner’s claims. Petitioner argues that the court has jurisdiction to review his claims under Comejo-Barreto I, that this court has already found that it has such jurisdiction, and that his claims merit habeas corpus relief. The parties’ respective arguments are discussed in detail below.

A. THIS COURT’S PRIOR DECISIONS AND PETITIONER’S CLAIMS

As noted above, Petitioner tried to raise a Torture Convention claim in the original extradition action [CV 04-10097], and at least three times in the first habeas action [CV 07-6387] — in the petition, the motion to stay, and the motion for reconsideration. On each occasion, the court both declined to review a Torture Convention claim (as not ripe), and declined to accept Respondent’s arguments for rejecting Petitioner’s claims (without actually reaching a decision on Respondent’s contentions).

Petitioner now argues that [in CV 07-6387] the court already decided that Petitioner’s Torture Convention claim would be ripe and the court would have jurisdiction to review it if the Secretary made a final decision to extradite. However, the record shows that this court made a different, more limited determination, namely, that the Torture Convention claim was not ripe so long as the Secretary had not made a final decision, and that the court could decline to reach such a claim at that time and in that proceeding, because Petitioner could assert it in a new petition if the Secretary made a final decision.

While the court in CV 07-6387 did not actually decide whether Petitioner’s Torture Convention claim, if ripe, would be reviewable, that issue has now been squarely raised in the present petition and the application to dismiss it, and must now be decided.

B. THE TORTURE CONVENTION AND ITS IMPLEMENTATION

The Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment was adopted by the United Nations General Assembly in 1984, and entered into force as to the United States in 1994. Cornejo-Barreto I, 218 F.3d at 1007 and n. 1 (citing G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51 at 197, U.N. Doc. A/RES/39/ 708). Article 3 of the Torture Convention provides as follows:

1. No 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.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

Quoted in Cornejo-Barreto I, 218 F.3d at 1011.

Article 3 of the Torture Convention was implemented by Congress in 1998 in section 2242 of the FARR Act, which was codified in a note to 8 U.S.C. § 1231, and which provides, in pertinent part, as follows:

(a) Policy. — 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.

(b) Regulations. — ... the heads of the appropriate agencies shall prescribe regulations to implement the obligations of the United States under Article 3 of the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, subject to any reservations, understandings, declarations, and provisos contained in the United States Senate resolution of ratification of the Convention.

(c) ....

(d) Review and construction. — Notwithstanding any other provision of law, and except as provided in the regulations described in subsection (b), no court shall have jurisdiction to review the regulations adopted to implement this section, and nothing in this section [this note] shall be construed as providing any court jurisdiction to consider or review claims raised under the Convention or this section [this note], or any other determination made with respect to the application of the policy set forth in subsection (a), 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).

As provided in subsection (b), above, the State Department

adopted regulations implementing section 2242 of the FARR Act and Article 3 of the Torture Convention in the extradition context. These régulations provide, in part, as follows:

§ 95.2 Application

(b) Pursuant to sections 3184 and 3186 of Title 18 of the United States Criminal Code, the Secretary [of State] is the U.S. official responsible for determining whether to surrender a fugitive to a foreign country by means of extradition. In order 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.

§ 95.3 Procedures.

(a) Decisions on extradition are presented to the Secretary only after a fugitive has been found extraditable by a United States judicial officer. In each case where allegations relating to torture are made or the issue is otherwise brought to the Department’s attention, appropriate policy and legal offices 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.

(b) Based on the resulting analysis of relevant information, the Secretary may decide to surrender the fugitive to the requesting State, to deny surrender of the fugitive, or to surrender the fugitive subject to conditions.

22 C.F.R. §§ 95.2-95.3 (2000), as quoted in Cornejo-Barreto I, 218 F.3d at 1011-12.

Before these regulations were promulgated, the Ninth Circuit held that no judicial review of the Secretary of State’s final decision to extradite was available. Cornejo-Barreto I, 218 F.3d at 1010 (citing Lopez-Smith v. Hood, 121 F.3d 1322, 1326 (9th Cir.1997)). The Ninth Circuit has understood section 2242(b) of the FARR Act as making clear the intention of Congress that the State Department would have initial responsibility for implementing Article 3 of the Torture Convention in the extradition context. Cornejo-Barreto I, 218 F.3d at 1012. The Ninth Circuit has also noted that section 2242(d) of the FARR Act “appears to preclude a facial challenge to the extradition procedures set out in the Department of State’s regulations.” Cornejo-Barreto I, 218 F.3d at 1013.

As for judicial challenges to the Secretary’s decisions'applying the regulations in particular cases, the Department’s regulations provide that the Secretary’s decisions “concerning surrender of fugitives for extradition are matters of executive discretion not subject to judicial review.” Id. at 1012 (quoting 22 C.F.R. § 95.4). However, as discussed below, the Ninth Circuit concluded in Comejo-Barreto I that such particular decisions by the Secretary are subject to judicial review, based on statute, the rules of administrative law, and principles of habeas jurisdiction. Id.

C. CORNEJO-BARRETO l

1. Background

In October of 1996, Ramiro Cornejo-Barreto, a Mexican citizen and lawful permanent resident of the United States, was arrested in the United States pursuant to a request by the Mexican government under the U.S. — Mexico extradition treaty. Comejo-Barreto I, 218 F.3d at 1007. An extradition proceeding was held, in this district, before Magistrate Judge Elgin Edwards [No. SACV 96-1217-AHS(EE) ], in which Cornejo-Barreto presented a defense to extradition based on Article 3 of the Torture Convention, alleging that he had been tortured by police in Mexico and was likely to be tortured again if extradited. Id. The magistrate judge found that, even excluding all evidence that might be tainted by torture, there was probable cause that Cornejo-Barreto committed extraditable offenses, and certified him as extraditable. Id. at 1008.

In September of 1997 Cornejo-Barreto challenged the extradition decision in a petition for writ of habeas corpus filed in this district [No. SACV 97-843-AHS], arguing that the extradition order violated Article 3 of the Torture Convention, the Fifth Amendment right to procedural due process, and the Eighth Amendment guarantee against cruel and unusual punishment. Id. In 1998 District Judge Alicemarie H. Stotler denied the petition, finding that the scope of habeas review was limited, that the Torture Convention was not self-executing, that the special nature of extradition proceedings defeated the Fifth Amendment claim, and that the Eighth Amendment claim did not apply because an extradition proceeding was not, by law, a criminal proceeding. Id. at 1008-09. Cornejo-Barreto appealed, raising only the Torture Convention claim. Id. at 1009.

2. The Panel’s Decision

In Cornejo-Barreto I, the panel discussed extradition and the history of the Torture Convention and its implementation in the FARR Act and attendant regulations. Id. at 1009-12. The panel found that the Secretary of State has a statutory duty, under the FARR Act, to carry out the dictates of Article 3 of the Torture Convention by determining “how best to ensure that the United States does' not extradite an otherwise extraditable individual when ‘there are substantial grounds for believing the person would be in danger of being subjected to torture ....’” Id. at 1012 (quoting FARR Act, section 2242(a)).

In Cornejo-Barreto’s case, as in the present case, the government argued that the court should decline to review the Secretary’s final decision, citing the regulatory provision that the Secretary’s decisions “ ‘concerning surrender of fugitives for extradition are matters of executive discretion not subject to judicial review.’ ” Cornejo-Barreto I, 218 F.3d at 1012 (quoting 22 C.F.R. § 95.4). However, the panel rejected this argument, and found, as noted above, that “the underlying statute, as well as the background rules of administrative law and habeas jurisdiction require the opposite conclusion.” Id. at 1012.

To reach this conclusion, the Cornejo-Barreto I panel first considered provisions of the Administrative Procedures Act (“APA”), 5 U.S.C. § 551 et seq., which “governs decision-making by most federal agencies.” Id. at 1012. The APA guarantees “judicial review by federal courts of ‘final agency action for which there is no other adequate remedy in a court.’ ” Id. (quoting 5 U.S.C. § 704 (2000)). Here, the State Department falls within the APA’s definition of “agency,” and the Secretary’s decision to surrender a person certified as extraditable is a final decision. Final actions by a covered agency are subject to judicial review under the APA unless “ ‘(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.-’ ” Id. at 1012-13 (quoting 5 U.S.C. § 701(a) (2000)). In this context, the FARR Act may preclude review of a facial challenge to the regulations promulgated by the State Department to implement the" Torture Convention. Id. at 1013 (parsing FARR Act section 2242(d)). However, the FARR Act does not, in itself, bar judicial review of a challenge to the Secretary’s application of the statute and regulations in a specific case. Id. Therefore, the Cornejo-Barreto I panel found that the exception under 5 U.S.C. § 701(a)(1) (where a statute itself precludes judicial review) does not apply in this context.

The panel next considered the exception under 5 U.S.C. § 701(a)(2) (where agency action is committed to agency discretion by law). Id. at 1013-15. The panel noted that “[t]he Supreme Court has explained that § 701(a)(2) precludes review only ‘if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.’ ” Id. at 1013 (quoting Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), and citing Socop-Gonzalez v. INS, 208 F.3d 838, 842-46 (9th Cir.2000) (holding that even when an agency was given discretion to decide the circumstances in which it would reopen a case, discretion did not shield the agency’s action from review, because the agency itself set a standard for reopening)). The panel found that the FARR Act imposed “a mandatory duty to implement Article 3 of the Torture Convention,” and that, in an extradition context, this meant that the Secretary of State may not surrender a person likely to face torture. Id. at 1013-14. Thus:

The FARR Act imposes a clear and nondiscretionary duty: the agencies responsible for carrying out expulsion, extradition, and other involuntary returns, must ensure that those subject to their actions may not be returned if they are likely to face torture. A reviewing court would have a clear standard against which to measure the Secretary’s actions under the Heckler rule.

Id. at 1014 (citing Heckler, 470 U.S. at 830, 105 S.Ct. 1649).

The Comejo-Barreto I panel then considered that, although the statute imposed a mandatory duty on the Secretary, regulations implementing the statute include another provision stating that the Secretary’s duty is discretionary. Id. at 1014 (citing 22 C.F.R. § 95.4 (2000) as providing that: “[decisions of the Secretary concerning surrender of fugitives for extradition are matters of executive discretion not subject to judicial review.”). The panel noted that, although courts generally defer to an agency’s interpretation of the statute it administers, the courts are required to reject agency interpretations contrary to the intent of Congress. Id. (citations omitted). The panel rejected the government’s argument that judicial review of the Secretary’s final decisions was barred by 22 C.F.R. § 95.4, and, considering the mandatory language in both Article 3 of the Torture Convention and section 2242 of the FARR Act, observed that it would be contrary to both the treaty and the statute to find the Secretary’s extradition decisions wholly discretionary. Id. The panel noted that its interpretation of Congressional intent was consistent with international law, and that the courts “generally construe Congressional legislation to avoid violating international law.’ ” Id. (citing Ma v. Reno, 208 F.3d 815, 829 (9th Cir.2000), Weinberger v. Rossi 456 U.S. 25, 32, 102 S.Ct. 1510, 71 L.Ed.2d 715 (1982), and Murray v. Charming Betsy, 6 U.S. (2 Cranch) 64, 117-18, 2 L.Ed. 208 (1804)).

Having found “that the Secretary’s duty to implement the FARR Act is non-discretionary and that the statute does not preclude review,” the Comejo-Barreto I panel held “that a fugitive fearing torture may petition for review of the Secretary’s decision to surrender him.” 218 F.3d at 1014. The panel went on to say that, under the APA, “[cjourts reviewing such petitions will be required to set aside the Secretary’s extradition decisions if they are found to be ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Id. at 1015 (quoting 5 U.S.C. § 706(2)(A)(2000)). Having assumed, arguendo, that the Torture Convention is not self-executing, the panel noted that the FARR Act itself, in implementing the treaty, did not, either explicitly or implicitly, create a cause of action or a new grant of jurisdiction. Id. at 1011, 1015. As for APA, while it may provide a cause of action, it “is not an independent grant of jurisdiction.” Id. at 1015 (citing Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)). However, APA claims may be brought, for example, in declaratory judgment actions, mandamus petitions, and habeas petitions. Id. The panel concluded that, in this context, where no other statutory review provision is applicable and an extraditee would otherwise have standing, a habeas petition under 28 U.S.C. § 2241 “is the most appropriate form of action for fugitives seeking review of the Secretary’s extradition decisions.” Id. at 1015-16 and nn. 12-13.

The panel further concluded that, because the APA only provides review of a final agency action, an APA challenge to an extradition decision would not be ripe unless and until the Secretary made a final decision to surrender an extraditee who alleged a likelihood of torture. Id. at 1016. The panel, thus, affirmed the district court’s denial of Cornejo-Barreto’s petition, on the grounds that habeas corpus review is only available when no other relief is. Id. at 1017. However, the panel also directed that the denial “should be without prejudice to the filing of a new petition should the Secretary of State decide to surrender Cornejo-Barreto.” Id.

The panel clearly stated both the reasons for denying the petition and the nature of that denial without prejudice at the beginning of its decision:

We conclude that the Secretary of State first must make a determination as to whether to extradite petitioner in light of his claim that the requesting government is likely to torture him on surrender. 28 U.S.C. § 2241 confers jurisdiction only when no other relief is available to petitioner.

218 F.3d at 1007. At that point the panel added, in a footnote:

Were APA review not available, we would be required to reach the merits of the instant petition.

Id. at n. 2.

At the end of its decision, the Cornejo-Barreto I panel again summarized its conclusions regarding judicial review of a Torture Convention claim in an extradition context as follows:

The individual’s right to be free from torture is an international standard of the highest order. Indeed, it is a jus cogens norm [footnote omitted]: the prohibition against torture may never be abrogated or derogated, [footnote omitted] We must therefore construe Congressional enactments consistent with this prohibition. In the extradition context, the approach we describe here allows us to give full effect to Congressional legislation without creating a conflict between domestic and international law. We recognize that Congress intended the Secretary of State to act as the “competent authority” charged with enforcing Article 3 of the Convention. We also recognize that Congress did not limit judicial review of the Secretary’s decisions under long-standing APA procedures. An extraditee ordered extradited by the Secretary of State who fears torture upon surrender, therefore, may state a claim cognizable under the APA that the Secretary of State has breached her duty, imposed by the FARR Act, to implement Article 3 of the Torture Convention. Such a claim, brought in a petition for habeas corpus, becomes ripe as soon as the Secretary of State determines that the fugitive is to be surrendered to the requesting government.

Id. at 1016-17. (These two passages are quoted and discussed more fully below.)

3. Subsequent History

In June of 2001, the Secretary of State signed a warrant of extradition for Cornejo-Barreto, and in July of 2001, Cornejo-Barreto filed a new habeas petition in this district [No. SACV 01-662-AHS], challenging the Secretary’s final decision under the APA and the Torture Convention, as authorized by Comejo-Barreto I. [See Order Denying Petition, filed July 9, 2002, SACV 01-662, dkt. no. 11.] The government opposed the petition, arguing that the court lacked jurisdiction to review the Secretary’s decision (because judicial review of an extradition claim based on the Torture Convention was precluded by law), and because the opinion to the contrary in Comejo-Barreto I was non-binding dicta. [Id., pp. 4-6.] On habeas review, the district court found that Comejo-Barreto I, in relevant part, was not dicta and was binding on a lower court, and that the district court could review the Secretary’s final decision under the APA as discussed in Comejo-Barreto I. [Id., pp. 6-7.] However, in reviewing Cornejo-Barreto’s claims, the district court found that, on the record, the petitioner had not shown that the Secretary’s decision was arbitrary or otherwise unlawful and accordingly denied the petition on its merits. [Id., pp. 7-9.] Cornejo-Barreto then appealed. [SACV 01-662, dkt. no. 18.]

On August 16, 2004, a different Ninth Circuit panel affirmed the district court’s judgment in Cornejo-Barreto v. Siefert, 379 F.3d 1075 (9th Cir.2004) (“Cornejo-Barreto II”). The Cornejo-Barreto II panel found that pertinent parts of Cornejo-Barreto I were non-binding dicta and were also not binding as “law of the case.” Cornejo-Barreto II, 379 F.3d at 1082-83. The second panel then found, contrary to the first panel, that the Secretary’s final decision to surrender Cornejo-Barreto to Mexico was not subject to judicial review because such review is barred under the “Rule of Non-Inquiry,” neither the Torture Convention nor the FARR Act super-ceded that rule, and neither the APA nor habeas corpus provide an alternate basis for judicial review of the Secretary’s final decision to extradite. 379 F.3d at 1083-89.

A petition for en banc review of the Comejo-Barreto II’s panel decision was granted on Oct 19, 2004. Comejo-Barreto v. Siefert, 386 F.3d 938 (9th Cir.2004). While the en banc proceeding was pending, Mexico withdrew its request to extradite Cornejo-Barreto, and the government moved to dismiss proceedings in the district court and the circuit court. [SACV 01-662, dkt. nos. 28-29.] On November 19, 2004, an en banc panel issued Cornejo-Barreto v. Siefert, 389 F.3d 1307 (9th Cir. 2004) (“Cornejo-Barreto III”), in which it ordered the district court judgment (in SACV 01-662) vacated as moot, ordered the panel opinion in Cornejo-Barreto II vacated, denied the government’s request to vacate other published opinions in the case, remanded the case to the district court with instructions to dismiss, and ordered Cornejo-Barreto released. 389 F.3d at 1307.

4. Cornejo-Barreto I as Precedent

Pursuant to the en banc order in Cornejo-Barreto III, the vacated panel decision in Cornejo-Barreto II does not constitute precedent. Animal Legal Defense Fund v. Veneman, 490 F.3d 725, 729-30 (9th Cir.2007) (citing and quoting U.S. Bancorp Mortgage Co. v. Bonner Mall P’ship, 513 U.S. 18, 22, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994) (vacating “removes all precedential value from a decision, rendering an opinion a legal nullity”)). Cornejo-Barreto I, however, was not vacated and, as previously noted in orders issued by the district court in Petitioner’s first habeas petition in this case, accordingly continues to be recognized as controlling authority in the Ninth Circuit. [See Order Denying Stay at 8 n. 26, CV 07-6387, dkt. no. 31 (stating that “the opinion in Comejo-Barreto I remains binding authority” and citing Prasoprat, 421 F.3d at 1016 n. 5, as, itself, citing Comejo-Barreto I as authority that an extraditee who fears torture is not barred from seeking habeas review of the Secretary’s final decision).]

Given that the Comejo-Barreto I decision is still authoritative, the next question is what part of the opinion constitutes binding precedent, and whether any significant portion is non-binding dicta. Respondent’s argument on this point appears to be that the actual holding in Comejo-Barreto I is simply that a claim under the Torture Convention is not ripe for review when the Secretary has not made a final decision to extradite. [R.App. at 35 et seq.] If so, then the panel’s discussion of a claim that might be brought in a second petition, if and only if the Secretary made a final decision to extradite, would, arguably, be mere dicta.

In its own words, however, the Comejo-Barreto I panel presented its holding as something more than this. As noted above, the opinion’s “conclusion” is stated twice. At the beginning of the opinion, the conclusion is given as follows:

We conclude that the Secretary of State first must make a determination as to whether to extradite petitioner in light of his claim that the requesting government is likely to torture him upon surrender. 28 U.S.C. § 2241 confers jurisdiction only when no other relief is available to petitioner.[Footnote] At this point it is still possible that the Secretary will refuse to surrender the petitioner. If the Secretary decides to surrender him, petitioner then will have recourse to federal court.

Examining federal legislation implementing the Torture Convention, we conclude that the Administrative Procedure Act (“APA”) allows an individual facing extradition who is making a torture claim to petition, under habeas corpus, for review of the Secretary of State’s decision to surrender him. We affirm the district court but direct that the denial be without prejudice.

Cornejo-Barreto I, 218 F.3d at 1007. The footnote indicated above states: “Were APA review not available, we would be required to reach the merits of the instant petition.” Id. at n. 2. At the end of the opinion, the conclusion is restated as follows:

The individual’s right to be free from torture is an international standard of the highest order. Indeed, it is a jus cogens norm [footnote omitted]: the prohibition against torture must never be abrogated or derogated. [Footnote omitted] We must therefore construe Congressional enactments consistent with this prohibition. In the extradition context, the approach we describe here allows us to give full effect to Congressional legislation without creating a conflict between domestic and international law. We recognize that Congress intended the Secretary of State to act as the “competent authority” charged with enforcing Article 3 of the Convention. We also recognize that Congress did not .limit judicial review of the Secretary’s decisions under long-standing APA procedures. An extraditee ordered extradited by the Secretary of State who fears torture upon surrender, therefore, may state a claim cognizable under the APA that the Secretary of State has breached her duty, imposed by the FARR Act, to implement Article 3 of the Torture Convention. Such a claim, brought in a petition for habeas corpus, becomes ripe as soon as the Secretary of State determines that the fugitive is to be surrendered to the requesting government.

We may not reach the merits of Cornejo-Barreto’s claim at this time. Ha- . beas corpus review is available only when no other relief is available.

We therefore AFFIRM the district court’s denial of the petition for habeas corpus but direct that it should be without prejudice to the filing of a new petition should the Secretary of State decide to surrender Cornejo-Barreto.

218 F.3d at 1016-17.

Plainly, the Comejo-Barreto I panel did not simply decline to reach a possible Torture Convention claim that might arise if the Secretary finally decided to surrender Cornejo-Barreto. Instead, in a carefully reasoned decision, the panel found that Cornejo-Barreto could state a cognizable claim under the Torture Convention and the FARR Act, that he could obtain review of such a claim under the APA and the habeas corpus statute if the Secretary made a final decision to extradite, that if such review were not available the panel “would be required to reach the merits” of the Torture Convention claim, but that, since such review would be available later if needed, and because habeas review was only available when no other relief was, a Torture Convention claim was not yet ripe. On this basis, the panel affirmed the district court’s denial of habeas corpus relief, but specifically instructed that the denial be without prejudice to the filing of a new petition if the Secretary finally decided to extradite. Thus, the panel included the finding of a cognizable claim under the Torture Convention, the FARR Act, the APA, and the habeas corpus statute as part of its holding in this case, and as a necessary basis for both parts of its decision — that the pending petition be denied as not. ripe, but that the denial be without prejudice to raising the claim in a new habeas petition if the claim became ripe.

Considering such clear statements as to the scope and reasoning of the Cornejo-Barreto I holding, Respondent’s argument that the decision is largely dicta is unpersuasive. Respondent cites' two different definitions of “dicta” from concurring opinions in United States v. Johnson, 256 F.3d 895 (9th Cir.2001) (en banc). [R.App., dkt. no. 17, at 35-37.] First, according to Judge Kozinski:

We hold ... that where a panel confronts an issue germane to the eventual resolution of the case, and resolves it after reasoned consideration in a published opinion, that ruling becomes the law of the circuit, regardless of whether doing so is necessary in some strict logical sense.

Johnson, 256 F.3d at 914 (Kozinski, J., eoncxnTing). Judge Kozinski went on to define “dicta” narrowly as a statement of law “made casually and without analysis,” or “uttered in passing without due consideration of the alternatives,” or “merely a prelude to another legal issue that commands the panel’s full attention, ...” Id. at 915 (cited, e.g., in Jones v. City of Los Angeles, 444 F.3d 1118, 1135 (9th Cir. 2006)). The discussion of the Torture Convention claim in Comejo-Barreto I was not dicta under this definition; the Comejo-Barreto I panel confronted an issue germane to resolving the case, and resolved it after reasoned consideration in a published opinion. The discussion in question could hardly be characterized as casual, without analysis, uttered in passing, or merely a prelude to another issue.

Respondent also refers to a different definition cited by Judge Tashima, under which “dicta” is defined as observation or remarks “not necessarily involved in the case or essential to its determination.” Johnson, 256 F.3d at 920 (Tashima, J., concurring) (quoting definition from Black’s Law Dictionary adopted in Export Group v. Reef Indus., Inc., 54 F.3d 1466, 1472 (9th Cir.1995)). However, it was clearly the opinion of the majority in Cornejo-Barreto I that its analysis of the Torture Convention issue was necessarily involved in the case and essential to its determination as stated.

Therefore, whether or not the Comejo-Barreto I panel was correct in its decision, that decision, including its resolution of the Torture Convention issue, is binding on this court so long as it remains good law in the Ninth Circuit; that is, although Respondent plainly disagrees with the circuit panel’s conclusions in Cornejo-Barreto I, and might even argue compelling that the panel erred somehow in one respect or another, this court is bound by those conclusions insofar as they apply to the present case. See, e.g., Hart v. Massanari, 266 F.3d 1155, 1175 (9th Cir.2001) (“A district court bound by circuit authority, for example, has no choice but to follow it, even if convinced that such authority was wrongly decided.”)

D. RESPONDENT’S ARGUMENTS ON PETITIONER’S APA CLAIM

In the present Petition, Petitioner asserts a claim under the Torture Convention in the form of a cause of action under the APA in light of Comejo-Barreto I as discussed above. For purposes of this court’s consideration, Respondent’s arguments for dismissal of this claim fall broadly into two categories: arguments that essentially challenge the correctness of legal determinations made in Cornejo-Barreto I, and arguments that Cornejo-Barreto I has been superseded. For the reasons that follow, and in light of Comejo-Barreto I’s status as binding authority, none of Respondent’s arguments warrants dismissal of Petitioner’s APA claim.

1. The Rule of Non-Inquiry and the Torture Convention as Implemented

Respondent argues, in general, that the Rule of Non-Inquiry precludes this court’s review of the Secretary’s final decision to surrender Petitioner, and that nothing in the Torture Convention, the FARR Act, or the APA overcomes that bar. [R.App. at 27, et seq.] In this context, Respondent begins by stating that, because the Torture Convention is not self-executing, Article 3 of the Convention, by itself, does not give Petitioner a private cause of action or confer jurisdiction on this court. [M] This basic proposition is not disputed; nothing in the relevant case law, this court’s prior orders, or Petitioner’s claim suggests that the Torture Convention is self-executing. On the contrary, as noted above, the Comejo-Barreto I panel itself accepted this position, at least arguendo. Comejo-Barreto I, 218 F.3d at 1011 n. 6. The panel also acknowledged that an extraditee could not bring a claim under the Torture Convention at all until the Convention had been implemented through legislation and regulations. See id. at 1009 n. 5 (“rule of non-inquiry” generally barred such claims until superseded by implementing legislation); id. at 1010 (citing Lopez-Smith v. Hood, 121 F.3d 1322, 1326 (9th Cir.1997) (before implementing legislation and regulations Ninth Circuit held such claims not reviewable)). Furthermore, as discussed above, even after the Convention was implemented, an extraditee could not bring a Torture Convention claim in an initial extradition proceeding or in a habeas petition challenging the extradition certification.

As in Comejo-Barreto, however, the crucial issue here is whether an extraditee can bring a Torture Convention claim after the Secretary of State has made a final decision to surrender the extraditee, and whether a district court has jurisdiction to review such a claim. The Comejo-Barreto I panel found a narrow opening for such a claim by reasoning that the Torture Convention, as implemented by statute and regulation, imposed a mandatory duty on the Secretary not to surrender an extraditee likely to be tortured, and concluding that an extraditee could challenge the Secretary’s surrender decision as arbitrary under the APA and that a district court would have jurisdiction to review such a claim in a habeas proceeding. In sum, as stated by Respondent, the Comejo-Barreto I panel found jurisdiction to review the Secretary’s action under 28 U.S.C. § 2241, and a cause of action and a limited waiver of sovereign immunity in the APA. [R.App. at 27 n. 7.] Respondent advances a series of arguments addressing the merit of this holding.

a. Respondent’s Argument on the FARR Act

As noted above, Respondent construes the panel’s discussion of the FARR Act in Comejo-Barreto I as non-binding dicta and rejects the analysis as substantively erroneous. Respondent argues that, like the Torture Convention itself, the FARR Act implementing it does not provide a cause of action for a claim under the Convention or a grant of jurisdiction for a court to review such a claim. [R.App. at 29 et seq.] Respondent’s argument is based on a reading of the text of the FARR Act which differs from that followed by the Comejo-Barreto I panel.

In full, section 2242(d) of the FARR Act states as follows:

Notwithstanding any other provision of law, and except as provided in the regulations described in subsection (b), no court shall have jurisdiction to review the regulations adopted to implement this section, and nothing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under the Convention or this section, or any other determination made with respect to the application of the policy set forth in subsection (a), 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).

FARR Act, section 2242(d). In interpreting this passage, Respondent reads the text, in pertinent part, as follows:

‘[Njotwithstanding 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 [CAT] or this section ... except as part of the review of a final order of removal [in immigration cases].’

[R.App. at 29, brackets and ellipsis by Respondent.] Respondent understands this text as meaning that the FARR Act expressly precluded any federal court jurisdiction over Torture Convention claims except in circuit court review of final immigration removal orders. [R.App. at 29-30.] In regard to extradition, Respondent argues that the statute clearly indicates that “Congress did not intend to abolish the Rule of Non-Inquiry and provide judicial review through the FARR Act.” [M]

The Comejo-Barreto I panel treated this provision differently, in effect reading section 2242(d) as falling into two “clauses.” The panel understood “Clause I” as limiting judicial review of the regulations promulgated by the Secretary and as apparently precluding a facial challenge to the regulations, quoting the first part of section 2242(d) as follows:

‘[njotwithstanding any other provision of law, and except as provided in the regulations [promulgated by the Secretary], no court shall have jurisdiction to review the regulations adopted to implement this section ... ’

Comejo-Barreto I, 218 F.3d at 1013. The panel understood “Clause II” as meaning that the FARR Act did not provide a new grant of jurisdiction or imply a cause of action such as a Bivens claim, quoting the second part of section 2242(d) (erroneously cited as section 2242(b)) as follows:

‘[Njothing in this section shall be construed as providing any court jurisdiction to consider or review claims raised under the Convention or this section, or any other determination made with respect to the application of the policy set forth in subsection (a), 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).’

218 F.3d at 1015. The panel concluded that, although the FARR Act did not provide a new grant of jurisdiction, it also did not withdraw jurisdiction where it already existed. Id. at 1015-16 and n. 13. Thus, the panel understood the FARR Act as imposing a duty on the Secretary of State and the APA as providing a cause of action for arbitrary failure to carry out that duty, with the habeas statute providing district court jurisdiction over such a cause of action, unaffected by section 2242(d) of the FARR Act. Id. at 1014-16.

It may be that Respondent’s reading of section 2242(d) is equally as plausible as the one adopted in Comejo-Barreto I, and that, if Respondent’s reading is correct, it would follow that no jurisdiction would lie in an APA claim such as1 Petitioner makes here. However, whether or not the interpretation of the FARR Act in Comejo-Barreto I is correct, that decision is binding on this court in the absence of some superseding authority, and Respondent’s contrary reading of the FARR Act does not itself constitute such authority. Therefore, this court must reject Respondent’s argument that the present Petition should be dismissed because the FARR Act bars federal court review of Torture Convention claims in any proceeding other than a petition for review of a final order of removal.

b. Respondent’s Argument on Implementing Regulations

Respondent’s next argument for dismissal is that State Department regulations implementing the FARR Act include a provision barring judicial review of the Secretary’s final decision to surrender an extraditee. [R.App. at 30-31.] Respondent is correct that State Department regulations include a provision stating that final extradition decisions by the Secretary are discretionary and not subject to any judicial review:

Decisions of the Secretary concerning surrender of fugitives for extradition are matters of executive discretion not subject to judicial review. Furthermore, pursuant to section 2242(d) of the [FARR Act], notwithstanding any other provision of law, no court shall have jurisdiction to review these regulations, and nothing in section 2242 shall be construed as providing any court jurisdiction to consider or review claims raised under the Convention or section 2242, or any other determination made with respect to the application of the policy set forth in section 2242(a), 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), which is not applicable to extradition proceedings.

22 C.F.R. § 95.4.

The Comejo-Barreto I panel addressed and considered this regulation, but despite the statement in section 95.4, found that the Secretary’s duty (under the FARR Act and the Torture Convention) not to surrender an extraditee likely to be tortured to be mandatory rather than discretionary. 218 F.3d at 1012-14. The panel further concluded that, although courts generally defer to an agency’s construction of a statute it administers, the courts must reject a construction contrary to Congressional intent, and the courts, not executive agencies, are the final authority on statutory construction. 218 F.3d at 1014. The panel then expressly rejected this provision of the regulations as contrary to statute, and, so long as Comejo-Barreto I remains good law this court is bound by the panel’s interpretation.

c. Respondent’s Argument on the APA

Respondent also argues that the APA provides no basis for judicial review of the Secretary’s final decision to surrender Petitioner, because, although the APA waives sovereign immunity over certain suits challenging administrative agency actions and seeking equitable relief, the APA does not waive immunity if statutes preclude judicial review. [R.App. at 32, citing 5 U.S.C. § 701(a)(1).] Here, Respondent essentially repeats the argument that judicial review of the Secretary’s final extradition decisions is precluded under either the FARR Act (as discussed above) or the REAL ID Act (as discussed below). In that respect, this does not present a separate argument for dismissal of Petitioner’s claim: if review of the Secretary’s extradition decision is expressly precluded by statute, such review is not available under the APA; however, if review is not barred under the statutes in question, the APA limit on waiver of sovereign immunity has no application.

Respondent further argues that review under the APA is not available here because the APA does not waive immunity for suits challenging agency action that is committed by law to agency discretion. [R.App. at 34, citing 5 U.S.C. § 701(a)(2).] Again, this depends on whether the Secretary’s final decision to surrender an ex-traditee is an action committed by law to agency discretion: here, the State Department claims that the action in question is discretionary, the Ninth Circuit has held in Comejo-Barreto I that it is not, and this court is bound to follow Ninth Circuit law.

Finally, Respondent notes that the APA does not overcome other limitations on judicial review or affect the court’s power to dismiss an action on any other appropriate legal or equitable ground. [R.App. at 33, citing 5 U.S.C. § 702.] Respondent argues that this precludes judicial review here because such review would require judicial intrusion into sensitive matters of foreign relations exclusively entrusted to the political branches of government. [R.App. at 33-34.] However, Respondent has not shown that judicial review in the present case — to determine whether the Secretary’s final decision to surrender Petitioner was arbitrary — would necessarily require extensive or extraordinary judicial intrusion into sensitive matters. As discussed below, the scope of review under the APA is deferential, and could fall at various points within a wide range given the nature of the decision at issue. There is no basis to conclude at this point that-judicial review could not be conducted with appropriate sensitivity to concerns of the political branches and in such a way as to protect genuinely sensitive or properly confidential matters while still affording Petitioner a hearing on a claim that the Secretary’s decision was arbitrary. Therefore, it does not appear that any overriding legal or equitable ground requires dismissal of Petitioner’s APA claim at this time.

2. Respondent’s Argument on the Munaf Decision

As noted above, a district court is bound by circuit authority unless overruled by the Supreme Court, or unless Congress changes the law. Hart, 266 F.3d at 1171 and n. 28. When circuit authority is overruled by the Supreme Court, a district court or a circuit court panel is no longer bound by that authority, and need not wait until the authority is also expressly overruled by an en banc panel. See Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en banc). Furthermore, “circuit precedent, authoritative at the time it was issued, can be effectively overruled by subsequent Supreme Court decisions that ‘are closely on point,’ even though those decisions do not expressly overrule the prior circuit precedent.” Miller, 335 F.3d at 899 (quoting Galbraith v. County of Santa Clara, 307 F.3d 1119, 1123 (9th Cir.2002)). Under this principle, although the issues decided by the Supreme Court in the new case need not be identical to those decided in the prior circuit case, the Supreme Court “must have undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable.” Miller, 335 F.3d at 900.

Here, Respondent argues that Petitioner’s claim under the APA and the Torture Convention should be dismissed, despite the ruling in Comejo-Barreto I, because of the reaffirmation of the Rule of Non-Inquiry by the Supreme Court in Munaf v. Geren, 553 U.S. 674, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008) (unanimous decision). [R.App. at 3-5, 9-12, and 22-26.] Mu