NINA Y. WANG, Magistrate Judge.
This action comes before this court on a number of matters: the detention of Mirella Ivonne Avila-Ramos ("Respondent" or "Ms. Avila-Ramos")
The United States initiated a Complaint for Arrest for the Purposes of Extradition ("Complaint") pursuant to 18 U.S.C. § 3184 on May 15, 2015, alleging that the government of Mexico was seeking the extradition of Respondent Mirella Ivonne Avila-Ramos, as authorized by an extradition treaty between the United States and Mexico ("Extradition Treaty"). [#1]. The Complaint alleges that the request for provisional arrest for extradition purposes was made by the Mexican government through a Diplomatic Note 01230 dated March 4, 2015 provided to the United States Department of Justice by authorities in the Procuraduria General de la Republica (Attorney General's Office), which indicated that Ms. Avila-Ramos planned the murder of her husband, Mario Moreno Rubio, with two others. [Id. at ¶ 6]. According to the information provided by Mexico, Respondent Avila-Ramos is charged in the State of Chihuahua, Mexico with Aggravated Homicide, which is an extraditable offense under the Extradition Treaty. [Id. at ¶¶ 5, 10]. In addition, the unofficial translation of Diplomatic Note 01230 indicates that the request for arrest is made on "the basis of Article 1, Article 1, and particularly, Article 11 of the Extradition Treaty, the
On May 19, 2015, Deputy United States Marshals arrested Respondent Avila-Ramos on the provisional arrest warrant. [#27 at 1]. On May 27, 2015, she filed a Motion for discovery [#27], arguing that she was entitled to discovery under the Federal Rules of Criminal Procedure, case law interpreting obligations of prosecutors in criminal cases, or under the court's inherent authority because "law and justice requires." [#17]. The United States objected, but provided discovery as to the unofficial translation of the Diplomatic Note 01230. [#26, #26-1]. This court denied Ms. Avila-Ramos' Motion for Discovery, finding that extradition hearings are not covered by the Federal Rules of Criminal Procedure, and Ms. Avila-Ramos never identified any basis for the court to exercise its inherent authority to require discovery. [#33].
In response to the United States' request to detain her pending the extradition hearing, Ms. Avila-Ramos also filed the currently pending Motion for Ten-Day Detention and Motion to Quash. The United States opposed both motions, arguing that Ms. Avila-Ramos should remain in United States Marshals' custody pending her extradition hearing [#27] and that the provisional arrest warrant
During oral argument, the Parties focused on two main issues: (1) the validity of the warrant that led to Ms. Avila-Ramos' provisional arrest; and (2) whether Ms. Avila-Ramos should be detained by United States Marshals pending her extradition hearing. As to the validity of the provisional arrest warrant, Respondent argued that the warrant was invalid because the documents were not certified or authenticated by a witness and because there was no urgency to justify her provisional arrest. She further argued that the documents supporting the Complaint for her arrest warrant had to bear some official imprimatur of the Mexican Government, under Article 11 of the Extradition Hearing, and because Diplomatic Note 01230 was an unofficial translation, it could not validly support her provisional arrest. The United States argued that its Complaint properly relied upon the documents received from the Mexican Government through diplomatic channels, nothing in the Treaty required that the Diplomatic Note or its translation be certified, and that Mr. Heinemann attested under the penalty of perjury that the request was consistent with the requirements of Article 11 of the Extradition Treaty.
As to her detention, counsel for Ms. Avila-Ramos clarified that he did not seek her release on bond, but rather, was seeking her release to the custody of the Bureau of Immigration and Customs Enforcement ("ICE") so that she could resume processing her immigration applications. Ms. Avila-Ramos argued her immigration status constituted "special circumstances" to warrant her release from United States Marshals' custody. The United States opposed Ms. Avila-Ramos' release from United States Marshals' custody, and argued that there was simply no "special circumstance" that justified her release. At the end of the hearing, due to the expedited nature of the briefing and argument, the court permitted the Parties to submit additional authority to support their respective positions on three points: (1) whether Article 11 of the Extradition Treaty required any additional authentication to support the provisional arrest warrant; (2) whether any authority addressed whether this court could properly determine whether there was sufficient "urgency" to justify a provisional arrest under the Extradition Treaty; and (3) whether any case law supported the finding that pending immigration proceedings constituted "special circumstances" to justify Ms. Avila-Ramos' release from United States Marshals' custody.
On June 10, 2015, Respondent filed a "Reply to Government's Response to Mirella (sic) Ivonne Avila-Ramos' Motion to Quash Arrest Warrant and Declare Arrest Illegal [ECF No. 29] and Proffer of Supplemental Authority" ("Respondent's Reply") [#44]. In the Reply, Respondent re-argues that the unofficial translation of the Diplomatic Note 01230 is insufficient to support the provisional arrest warrant [#44 at 3-5]. She specifically argues that Mr. Heinemann "failed to produce any evidence that the Secretary of State certified such a finding thereby authorizing the filing of a complaint for the issuance of a warrant for the provisional arrest of Defendant-Movant." [Id. at 6]. Ms. Avila-Ramos then goes on to cite cases in which under different extradition treaties, a certificate issued by the U.S. Secretary of State is required for the preliminary arrest of the foreign fugitive. [Id.] Ms. Avila-Ramos then argues that there was no urgency that supported her provisional arrest, and that absent authority from the United States Secretary of State, the United States Attorney had no legal authorization to file a complaint. [Id. at 8]. Ms. Avila-Ramos did not further address, or submit additional authority, as to whether her immigration proceedings constituted "special circumstances" to allow her release to ICE custody. [#44]. The United States filed a "Government's Notice," stating it had found no additional authority requiring any formalization requirements for a provisional arrest under Article 11 of the Extradition Hearing. [#45]. It did not address the other two issues, i.e., whether this court had authority to address urgency or whether Ms. Avila-Ramos' immigration proceedings amounted to "special circumstances." [Id.]
Respondent then filed a Motion to Dismiss for Lack of Jurisdiction on July 20, 2015, arguing that the court lacked jurisdiction because the Government had not yet turned over the formal extradition papers. [#58]. The Government responded to the Motion to Dismiss the next day, indicating that the Department of State received Mexico's formal request for extradition for Ms. Avila-Ramos on July 17, 2015 — as required by the treaty. [#60]. The Government provided a copy of the formal request to defense counsel on August 5, 2015 [#71, #72 at 1]. The court now turns to each of the issues in turn.
It is well-settled that requests for extradition are governed by the applicable extradition treaty between the United States and the requesting foreign nation, in this case, Mexico, as implemented by the United States extradition statutes. 18 U.S.C. § 3181; Charlton v. Kelly, 229 U.S. 447, 449 (1913) ("The procedure in an extradition proceeding is that found in the treaty under which the extradition is demanded, and the legislation by Congress in aid therof.") The United States and Mexico have entered an Extradition Treaty, May 4, 1978, 31 U.S.T. 5059, TIAS 9656. The request made by the Mexican Government upon which the Complaint is founded is one made for a provisional arrest of Respondent, pursuant to Article 11 of the Extradition Treaty. [#1 at ¶ 3].
Article 11 of the Extradition Treaty provides:
[#39-2 at 4]. Unlike Article 10, which governs a formal extradition request, a certified copy of the warrant of arrest issued by a judge or other judicial officer of the requesting party is not required. [Id.]. Instead, a provisional arrest only requires an application that contains "a description of the offense for which the extradition is requested, a description of the person sought and his whereabouts, and undertaking to formalize the request for extradition, and a declaration of the existence of a warrant of arrest issued by a competent judicial authority or a judgment of conviction issued against the person sought." [Id.]
In this case, Respondent seeks to quash the provisional arrest warrant, arguing that it fails to meet the requirements of Article 11 of the Extradition Treaty. However, the unofficial translation of Diplomatic Note 01230 contains all of the elements of information identified by the Article 11. It contains a description of the offense, i.e., aggravated homicide, for which the extradition is requested. [#39-1 at 2]. In fact, it gives a detailed recitation of the factual allegations to support the charge.
Respondent Avila-Ramos urges the court to reject the Complaint and quash the provisional arrest warrant, because Diplomatic Note 01230 is not certified by the Secretary of State [#44 at 3-6] and also contains no other formalities. But Article 11 of the Extradition Treaty does not contemplate a certification by the Secretary of State, nor does it require any formalities. [#39-2 at 4]. If the United States intends to proceed to the next stage, i.e., the extradition hearing, it must receive a formal request for extradition (with the certified copy of the warrant of the arrest) from Mexico pursuant to Article 10 of the Extradition Hearing no later than July 18, 2015. See In re Extradition of Figueroa, Case No. 12-M-269, 2013 WL 3243096, *2 (N.D. Ill. June 26, 2013). Article 11(3) of the Extradition Treaty mandates that if Mexico does not submit a formal request for extradition in sixty days of the provisional arrest, the provisional arrest
Ms. Avila-Ramos' next argument is that there was not sufficient urgency to justify her provisional arrest because she was already in ICE custody. [#44 at 7]. But Respondent points to no authority, and this court could find none, that vests this court with the authority to quash the arrest warrant even if it found that urgency did not exist. As the United States points out, once it received the request from Mexico to provisionally arrest Respondent, Article 11(2) of the Extradition Treaty required the United States to "take the necessary steps to secure the arrest of the person claimed," [#39-2 at 4] — without the ability to second-guess Mexico's affirmative statement of urgency contained in the Diplomatic Note 01230.
Accordingly, this court DENIES the Motion to Quash. In addition, the court DENIES the Motion to Dismiss, as the Government's Notice includes correspondence from the State Department that it had received a formal request for extradition for Ms. Avila-Ramos on July 17, 2015 — within 60 days of the provision request as required by the treaty. [#59-1]. In addition, the Government has now provided both Respondent and the court a copy of the formal documents requesting extradition by Mexico. [#71].
The court next turns to whether Respondent should be detained pending her extradition hearing scheduled for August 26, 2015. Respondent has filed a Motion for Ten-Day Detention and also seeks to be released from United States Marshals' custody to be placed in ICE custody so that she may continue with her immigration proceedings.
There is a long-standing presumption against bail in extradition proceedings, absent special circumstances. Wright v. Henkel, 190 U.S. 40, 42 (1903). The traditional rationale for the presumption is that the individual, if released, could abscond, leading to serious embarrassment to the United States and a potential that reciprocating foreign countries would not honor this country's extradition requests. See In re Extradition of Orozco, 268 F.Supp.2d 1115, 1117 (D. Ariz. 2003). While courts determine whether special circumstances exist on a case-by-case basis, one court summarized the types of circumstances under which bond has been permitted pending the extradition hearing:
See In the Matter of the Extradition of Kamel Nacif-Borge, 829 F.Supp. 1210, 1216-19 (D. Nev. 1993).
Ms. Avila-Ramos' case is slightly different, because she argues that she should be released to the custody of ICE, another federal agency, in order to process her immigration applications. Nevertheless, she would be outside the custody of this court and the United States Marshals, and Ms. Avila-Ramos has failed to demonstrate by clear and convincing evidence that her immigration proceedings are the type of special circumstances that justifies release. Indeed, other courts confronted with similar issues have denied requests for release. See e.g., In re the Extradition of Orozoco, 268 F.Supp.2d at 1116 (holding that Respondent's pending application for naturalization, coupled with other factors such as a finding that there was no flight risk, was insufficient to warrant release). Even if the court were to release Respondent to ICE custody, there is simply no guarantee that her immigration proceedings would go forward, in light of the extradition request from Mexico. See Barapind v. Reno, 225 F.3d 1100 (9
In her Motion for Disclosure of Mexico's Formal Request, Respondent requests that the Government provide her a copy of Mexico's formal request to extradite. [#63]. The court issued a Minute Order requesting the Government to respond by August 5, 2015, as to why the Motion should not be granted. [#65]. The Government responded by stating that it had not yet received the Formal Request, but would provide it upon receipt. [#68]. As acknowledged by Respondent in her Motion for Discovery, she received a copy of Mexico's formal request to extradite on August 5, 2015. [#72 at 1]. Therefore, the relief sought by Respondent is no longer necessary and her Motion is moot.
For the reasons set forth herein, the court hereby ORDERS:
The court will dispose of Respondent's pending Motion for Discovery filed on August 7, 2015 by separate Order after the contemplated hearing.
