United States District Court, W.D. Louisiana, Lafayette Division
PATRICK J. HANNA, U.S. MAGISTRATE JUDGE.
the Court is the Government’s Motion Requesting
Extradition Certification. (Rec. Doc. 11). Defendant, Marius
Andrei Porumb, opposes the Motion (Rec. Doc. 32), and the
Government has replied (Rec. Doc. 37). For the following
reasons, the Motion is DENIED.
and Procedural History
Porumb has been an established resident of the United States
since this country granted him asylum status from his native
country of Romania in 2002. Since that time, he has led a
respectable life, first in the construction industry and more
recently as a business owner, running a mechanic shop in
Lafayette, La. He has raised two daughters here with his
long-time partner. He owns property, employs people, and has
no criminal history in the United States. (Rec. Doc. 18, at
Porumb is a native Roma-or Gypsy-who, like other Romas,
suffered discrimination and persecution in Romania. His
history in his home country and the disturbing facts leading
to his grant of asylum were well-documented in his asylum
proceedings. (Rec. Doc. 32-1). Particularly relevant to these
proceedings are Mr. Porumb’s own predictions in 2002
about the future actions he anticipated by the Romanian
government. In his 2002 Declaration in Support of Application
for Asylum, Mr. Porumb detailed ongoing encounters with
Romanian law enforcement wherein they routinely falsely
accused him of theft and attempted to elicit bribes from him
because he was a Gypsy who had managed to become successful.
Mr. Porumb explained that in 2000, the police threatened to
“get [him]” on multiple occasions. He was
“terrified that the policemen were going to accuse
[him] in a false case and detain [him], ” and he
“was afraid that the police would eventually stay true
to their word and accuse [him] in a false case.” (Rec.
Doc. 32-1, at 13-14). Based on his detailed account of the
discrimination and persecution he had undergone throughout
his life and his fear that the Romanian government would
falsely prosecute him, the United States granted him asylum
on September 23, 2002. (Rec. Doc. 32-5).
23, 2003, over a year and a half after Mr. Porumb had come to
the United States, the Romanian Government charged him with
“using false documents, ” “swindle, ”
and “indirect participation to forged documents.”
The charges arose from Mr. Porumb’s alleged
unauthorized use of his then-wife’s separate property
(referred to herein as “Apartment 4”) as
collateral for a loan in 2000. (Rec. Doc. 1-2, at 9-10). In
2005, Mr. Porumb was tried in absentia, convicted,
and, after the appeal process, sentenced to serve 1 year for
using false documents, 4 years for “swindle, ”
and 1 year for indirect participation to forged documents.
The Romanian court cumulated the sentences, ordering Mr.
Porumb to serve a 4 year term of imprisonment. (Rec. Doc.
1-2, at 1-2).
Romanian Government did not first seek to extradite Mr.
Porumb until December 2, 2011, over five years after the
conviction became final. The U.S. Government received
Romania’s request on February 21, 2012. (Rec. Doc.
32-6). Over the next several years, Romania provided
additional information in support of its extradition request,
including statements of Mr. Porumb’s ex-wife, Liliana
Porumb, and the party who allegedly loaned Mr. Porumb money,
Petru Rusu, a copy of a notarized document between Mr. Porumb
and Liliana’s mother regarding Liliana’s purchase
of the apartment, an identification report, a copy of the
June 23, 2003 indictment, and copies of applicable Romanian
laws. (Rec. Doc. 1-2, at 51-135). The Romanian Government did
not provide a copy of the power of attorney or loan agreement
upon which it claims Mr. Porumb forged Liliana’s
signature and upon which its claims chiefly rest. Neither did
it provide a copy of the technical reports whereby the police
purportedly matched Mr. Porumb’s handwriting to the
forged document, or transcripts of the various
witnesses’ testimony at trial.
Government did not file the Complaint seeking a warrant for
Mr. Porumb’s arrest until January 25, 2018, nearly six
years after receipt of Romania’s initial request for
extradition. (Rec. Doc. 1). The Government subsequently filed
a Memorandum of Extradition Law and Request for Detention
Pending Extradition Proceedings (Rec. Doc. 4) and a Motion
Requesting Extradition Certification. (Rec. Doc. 11). This
Court conducted a detention hearing on February 6, 2018.
(Rec. Doc. 18). After testimony from several of Mr.
Porumb’s friends regarding his establishment in the
Lafayette community, the Court ordered that Mr. Porumb be
released on an unsecured bond pending certification of
extradition. (Rec. Doc. 17; Report and Recommendation
affirmed at Rec. Doc. 29). Mr. Porumb opposed the
Government’s Motion Requesting Extradition, (Rec. Doc.
32), and the Government replied (Rec. Doc. 37).
the United States has entered into a treaty for extradition
with a foreign country, this Court is empowered by 18 U.S.C.
§3184 and W.D. La. Local Rule 73.4K to certify to the
Secretary of State whether an individual is extraditable. In
its determination, the Court must consider the evidence of a
crime charged against a person in the United States by the
foreign government and determine whether the evidence is
sufficient to sustain the charge under the provisions of the
applicable treaty. The magistrate judge’s determination
is limited to the questions of 1) whether the court has
jurisdiction; 2) whether the offense charged is within the
treaty; and 3) “whether there was any evidence
warranting the finding that there was reasonable ground to
believe the accused guilty.” Escobedo v. United
States, 623 F.2d 1098, 1101 (5th Cir.1980), citing
Fernandez v. Phillips, 268 U.S. 311 (1925).
in the Court’s unique role in extradition proceedings
is the obligation to determine whether the extradition would
violate the individual’s constitutional rights or
established federal law. See discussion in Mironescu v.
Costner, 480 F.3d 664, 672–73 (4th Cir. 2007)
(“Mironescu IV”). Thus, and because the
Court is uniquely qualified to interpret and apply the law,
it cannot permit an illegal extradition to proceed. As will
be further explained, the Court appreciates no valid reason
that it cannot make the legality determination in
certification proceedings under §3184, just as it can in
subsequent habeas corpus proceedings, without having
subjected the individual to detention and the costs of
extended legal proceedings, all to obtain the same end which
can be properly had at the beginning. The Court will first
address the legality of Mr. Porumb’s proposed
extradition under 8 U.S.C. §1158(c)(1), and, second, the
issues of jurisdiction, criminality, and probable cause.
Whether Mr. Porumb’s proposed extradition would
violate federal law.
The Court’s jurisdiction to determine
Government urges the Court to restrict its determination in
these certification proceedings to the questions of
jurisdiction, criminality under the Treaty, and the existence
of probable cause. Although the Court’s role is
typically limited to these three inquiries, the Court is not
aware of any binding precedent which precludes the Court from
determining whether the extradition would violate the
individual’s constitutional rights or established
federal law. To the contrary, the Court is obligated to
enjoin an extradition when the detention is determined to be
unlawful. Mironescu IV, 480 F.3d at 670, citing
Plaster v. United States, 720 F.2d 340, 347-51
Government relies heavily on the Mironescu case for
the proposition that the Court cannot consider Mr.
Porumb’s asylant status in certification proceedings;
however, careful analysis of the history of
Mironescu and the Fourth Circuit’s opinion
actually support that this Court has jurisdiction to
preliminarily determine the legality of extradition, in
addition to the three primary inquiries of jurisdiction,
criminality, and probable cause.
like the instant proceedings, the procedural saga of
Mironescu began when the Romanian Government
requested extradition of Petru Mironescu, a Gypsy leader, to
serve a sentence after he was convicted in absentia
of alleged theft crimes. In re Extradition of
Mironescu, 296 F.Supp.2d 632 (M.D. N.C. 2003)
(“Mironescu I”). During the initial
certification proceedings, Mironescu challenged his
extradition on the grounds that his extradition would violate
the United Nations Convention Against Torture (CAT), as
implemented in the United States by the Foreign Affairs
Reform and Restructuring Act (FARR). CAT and FARR prohibit
the United States from extraditing “any person to a
country in which there are substantial grounds for believing
the person would be in danger of being subjected to
torture…” Mironescu argued that if he was returned
to Romania, he would be subject to torture. The district
court found that it did not have jurisdiction “to
consider human rights conditions of the country requesting
extradition, ” and certified the extradition.
Id. at 635-37.
next chapter of Mironescu, after the district court
certified the extradition, but before the Secretary of State
made a determination under CAT/FARR, Mironescu filed a
petition for habeas corpus, again challenging his detention
pending extradition based on CAT/FARR. Mironescu v.
Costner, 345 F.Supp.2d 538, (M.D. N.C. 2004).
(“Mironescu II”). The court denied the
petition, finding that the issue was premature, as the
Secretary State was first compelled to determine the
likelihood of torture, as required by CAT/FARR, and notify
Mironescu of its determination, at which point he could then
seek habeas relief. Id. at 541. As further discussed
below, this is the opinion on which the Government relies for
the proposition that asylum status cannot be considered in
Mironescu II, the Secretary of State determined that
CAT did not bar Mironescu’s extradition, and Mironescu
filed a second habeas corpus petition. The district court
remanded the case for preparation of an administrative
record, finding that Mironescu’s remedy was limited to
an administrative review of whether the Secretary’s
determination was arbitrary and capricious. Mironescu v.
Rice, 2006 WL 167981 (M.D. N.C. 2006)
Fourth Circuit overturned Mironescu III, holding
that the court was obligated to determine whether extradition
would violate Mironescu’s constitutional rights or
violate federal law. The Government argued, as it does here,
that the rule of non-inquiry prevents the courts “from
examining the penal systems of requesting nations, leaving to
the Secretary of State determinations of whether the
defendant is likely to be treated humanely.”
Mironescu IV, at 668, citing Lopez-Smith v.
Hood, 121 F.3d 1322, 1327 (9th Cir.1997). The
Fourth Circuit rejected the Government’s non-inquiry
argument-the same argument the Government asserts here-
[T]he Government maintains that regardless of the fact that
the Secretary's extradition of Mironescu would violate
federal law if extradition will likely result in
Mironescu's torture, the rule of non-inquiry should
preclude habeas review here because courts are ill-equipped
to “second-guess[ ] the expert opinion of the State
Department” regarding whether torture is likely to
occur in Romania. We do not agree. It is important to
emphasize that a habeas court reviewing CAT or FARR Act
claims would not be called upon to consider whether
extradition would further our foreign policy interests or, if
so, how much to weigh those interests. Rather, it would be
required to answer only the straightforward question of
whether a fugitive would likely face torture in the
requesting country. American courts routinely answer
similar questions, including in asylum proceedings and in
applying the political offense exception, under which the
political nature of and motivation for a crime may negate
extraditability….We have no reason to doubt that
district courts could adequately perform this function in
this context as well.
Mironescu, IV, 480 F.3d at 672–73. (Emphasis
addition to rejecting the Government’s non-inquiry
arguments, the Fourth Circuit also rejected the
Government’s argument that delays caused by habeas
review could trigger concerns regarding international comity.
That habeas review may delay extradition, or preclude it
altogether, cannot negate Mironescu's right to obtain
habeas relief if he is being detained in violation of federal
law, just as such considerations did not negate Plaster's
right to assert his constitutional claim. See
Plaster, 720 F.2d at 349. Indeed, Plaster
specifically recognized that habeas proceedings regarding
claims that extradition would be unconstitutional “will
often involve delicate questions of international
diplomacy.” Id. Moreover, one could well argue
that the damage done to our foreign relations with another
country is likely to be less when a court, as opposed to the
Secretary, makes the decision that extradition must be
Id. at 673.
court nevertheless went on to hold that Mironescu was not
entitled to habeas review based specifically on Section
2242(d) of the FARR, which precluded judicial review for CAT
claims until raised after issuance of a final removal order
under 8 U.S.C. §1252. The latter part of the opinion,
grounded in procedure, is inapplicable to this case, because
the basis for illegality of Mr. Porumb’s extradition is
not CAT/FARR, but, rather, §1158(c), which does not
contain any such provision limiting judicial review. The
Supreme Court denied the petition for writ of certiorari.
Mironescu v. Costner, 552 U.S. 1135 (2008). In
short, the Fourth Circuit in Mironescu IV
affirmatively held that, despite the rule of non-inquiry, ...