In Yoo v. United States, 21-2755(2d Cir. Aug. 1, 2022), the Circuit (Lynch, joined by Calabresi and Lohier) affirmed the denial of a petition for habeas corpus alleging that petitioner’s extradition to South Korea was time-barred, holding that the extradition treaty’s “Lapse of Time” provision was a discretionary provision for the executive authority and not a legal question for the court.
South Korea requested Yoo’s extradition pursuant to a treaty that provided, in relevant part, that “[e]xtradition may be denied” when prosecution of the offense “for which extradition is requested would have been barred because of the statute of limitations of the Requested State had the same offense been committed in the Requested State.” Yoo was found extraditable under the treaty and he filed a petition for habeas corpus, arguing that his extradition was time-barred under that provision. The court denied the petition, ruling that the determination whether the charges were time barred was a discretionary decision for the executive authority and not for the extradition court. The Second Circuit agreed.
The Circuit first considered the respective roles of the court and the executive branch in extradition, in which the extradition court decides preliminary legal questions and the Secretary of State has final and discretionary authority to extradite. The Secretary may consider political and other consequences and may decline extradition even where the fugitive is legally extraditable. The Circuit determined that application of the “Lapse of Time” provision was a discretionary decision for the Secretary, based on the plain language of the provision as well as its legislative history. The ordinary meaning of the word “may” – used in “may be denied”– is permissive rather than mandatory, as other Circuits had held, making the “most natural reading” of the provision a discretionary decision. And the Treaty’s use of the word “may” compared to its use of the word “shall” consistently demonstrated the drafters’ intent to distinguish between discretionary and mandatory determinations. Finally, the Circuit found nothing in the legislative history to contradict the plain text. Although one line in the Senate Report Summary referred to the provision as “preclud[ing]” extradition of offenses barred by the statute of limitations, all the discussion in the more detailed Technical Analysis made clear that the provision was permissive and was negotiated by South Korea to allow it to apply its own statutes of limitations in deciding whether to extradite.