REAL ID Act § 1252(a)(4) Bars Habeas Review of CAT Claims in Extradition: Second Circuit Reaffirms the Rule of Non-Inquiry and Finds No Suspension Clause Violation

Introduction

In Kapoor v. DeMarco, No. 22-2806 (2d Cir. Mar. 26, 2025), the U.S. Court of Appeals for the Second Circuit addressed whether federal courts may entertain habeas corpus petitions that challenge the Secretary of State’s extradition decision on the ground that extradition would violate the United Nations Convention Against Torture (CAT). Petitioner-Appellant Monika Kapoor, an Indian citizen, sought to block her extradition to India by asserting that she was more likely than not to be tortured upon return, thereby allegedly contravening CAT as implemented through the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA) and State Department regulations (22 C.F.R. Part 95).

The district court denied her petition, concluding that 8 U.S.C. § 1252(a)(4)—enacted as part of the REAL ID Act of 2005—divests federal courts of habeas jurisdiction over any CAT-based claim, channeling such claims exclusively into petitions for review of immigration removal orders (not extraditions). The Second Circuit affirmed. The opinion, authored by Judge Nardini and joined by Judges Menashi and Lee, clarifies the reach of § 1252(a)(4) outside the immigration-removal context and explains why this jurisdictional bar does not offend the Suspension Clause, given the long-standing “rule of non-inquiry” in extradition.

Key Holdings at a Glance

CAT is non-self-executing in U.S. law; claims arise only through implementing statutes and regulations (FARRA; 22 C.F.R. Part 95).
REAL ID Act § 1252(a)(4) contains a clear statement eliminating habeas jurisdiction over “any cause or claim under” CAT—including in extradition—making petitions for review of immigration removal orders the sole judicial vehicle for CAT review (with limited exceptions not applicable here).
This jurisdictional bar does not violate the Suspension Clause: historically, habeas in extradition has never encompassed judicial review of anticipated treatment abroad due to the rule of non-inquiry.
District courts retain only the traditional, narrow habeas review of extradition (jurisdiction, treaty coverage, and some evidence of criminality), not humanitarian or treatment-based claims.
Ancillary arguments—like invoking the APA or “staleness” of charges—do not alter the analysis; extraditability hinges on punishability, not the ultimate sentence imposed.

Summary of the Opinion

The Second Circuit holds that 8 U.S.C. § 1252(a)(4) categorically bars federal habeas review of CAT claims brought by individuals facing extradition. This provision states that, notwithstanding 28 U.S.C. § 2241 or any other habeas provision, a petition for review of a final order of removal is the “sole and exclusive means” for judicial review of “any cause or claim under” CAT, subject to limited exceptions in § 1252(e) not at issue here. Because Kapoor’s claim is not a petition for review of a removal order and seeks habeas relief in the extradition context, § 1252(a)(4) forecloses jurisdiction.

The Court further concludes that this construction raises no Suspension Clause problem. Historically, habeas in extradition allows only limited inquiries—jurisdiction, treaty applicability, and the existence of evidence sufficient to sustain the charges. Humanitarian concerns (including anticipated torture) are entrusted to the Executive under the rule of non-inquiry. Accordingly, Congress’s withdrawal of habeas jurisdiction over extradition-based CAT claims does not remove a form of habeas review that was traditionally available, and therefore does not implicate the Suspension Clause.

The Court declines to follow the Ninth Circuit’s minimal-review approach in Trinidad y Garcia v. Thomas, 683 F.3d 952 (9th Cir. 2012) (en banc), and instead aligns with the D.C. Circuit’s Omar v. McHugh, 646 F.3d 13 (D.C. Cir. 2011). The panel also rejects Kapoor’s attempts to proceed under the APA, as statutes that preclude review or commit action to agency discretion bar APA review, and § 1252(a)(4) precludes the review sought. Finally, Kapoor’s due process and “staleness” arguments fail; extraditability is determined by punishability under the treaty, not the likely sentence, and the Secretary issued an amended surrender warrant reflecting the dismissal of two charges while confirming the remaining extraditable offenses.

Case Background

Kapoor entered the United States in 1999 and was later placed in removal proceedings, during which she applied for asylum, withholding, and CAT relief. In 2010, India sought her extradition on five charges under the Indian Penal Code involving fraud and forgery linked to alleged misuse of duty-free import licenses, with an asserted loss to the Indian government of approximately $679,000. In 2012, a magistrate judge certified her extradition after finding probable cause on all five charges.

The Secretary of State issued a surrender warrant in 2015, expressly acknowledging CAT obligations and concluding—after reviewing Kapoor’s submissions—that extradition complied with CAT and the implementing framework. After receiving additional materials, the Department reaffirmed its decision in 2016; upon later developments (dismissal of two counts), the Department issued an amended surrender warrant in 2022, again confirming CAT compliance.

Kapoor’s 2016 habeas petition sought to block extradition on CAT and due process grounds. The district court dismissed for lack of jurisdiction under § 1252(a)(4). The Second Circuit affirmed.

Analysis

1) Precedents and Authorities Cited

Wang v. Ashcroft, 320 F.3d 130 (2d Cir. 2003): Before the REAL ID Act, the Second Circuit held that FARRA’s jurisdictional provision (§ 2242(d)) was not specific and unambiguous enough to eliminate habeas review of CAT claims in the removal context, emphasizing the need to mention “habeas” or § 2241 explicitly—tracking the Supreme Court’s clear-statement rule in St. Cyr.
REAL ID Act of 2005, 8 U.S.C. § 1252(a)(4): Congress responded to Wang by expressly stating that, notwithstanding § 2241 or any habeas provision, a petition for review of a removal order is the sole means for judicial review of “any cause or claim under” CAT (with limited § 1252(e) exceptions). The Second Circuit reads this as a clear statement barring habeas of CAT claims, including in extradition.
I.N.S. v. St. Cyr, 533 U.S. 289 (2001) and Demore v. Kim, 538 U.S. 510 (2003): Establish the requirement of a “particularly clear statement” to repeal habeas jurisdiction. Section 1252(a)(4) satisfies that standard.
Department of Homeland Security v. Thuraissigiam, 591 U.S. 103 (2020): Reinforces that habeas historically is a remedy for unlawful custody (securing release), not a vehicle to obtain authorization to remain; supports the Court’s understanding of habeas’s traditional scope.
Munaf v. Geren, 553 U.S. 674 (2008): The Supreme Court refused to allow habeas to block transfer to Iraqi custody based on anticipated torture, characterizing such concerns as for the political branches and underscoring courts’ institutional limits in evaluating foreign justice systems. This is central to the Second Circuit’s Suspension Clause analysis and reaffirmation of the rule of non-inquiry.
Extradition jurisprudence limiting habeas scope: Benson v. McMahon, 127 U.S. 457 (1888); Fernandez v. Phillips, 268 U.S. 311 (1925); Jhirad v. Ferrandina, 536 F.2d 478 (2d Cir. 1976); Lo Duca v. United States, 93 F.3d 1100 (2d Cir. 1996). These establish that habeas review in extradition asks only whether the magistrate had jurisdiction, whether the offense is within the treaty, and whether there is any evidence warranting a finding of probable cause.
Rule of non-inquiry cases: Ahmad v. Wigen, 910 F.2d 1063 (2d Cir. 1990); Sindona v. Grant, 619 F.2d 167 (2d Cir. 1980); Skaftouros v. United States, 667 F.3d 144 (2d Cir. 2011); and from other circuits Hilton v. Kerry, 754 F.3d 79 (1st Cir. 2014); Hoxha v. Levi, 465 F.3d 554 (3d Cir. 2006); Venckiene v. United States, 929 F.3d 843 (7th Cir. 2019). Together, they confirm that treatment in the requesting country is for the Executive to assess.
Split with the Ninth Circuit; alignment with D.C. Circuit: The Second Circuit aligns with the D.C. Circuit’s Omar v. McHugh, 646 F.3d 13 (D.C. Cir. 2011), which held that § 1252(a)(4) forecloses habeas review of conditions in the receiving country for extraditees and military transferees, and rejects the Ninth Circuit’s minimal-review rule in Trinidad y Garcia v. Thomas, 683 F.3d 952 (9th Cir. 2012) (en banc).
CAT and FARRA authorities: CAT Article 3 (non-refoulement) is non-self-executing; see Pierre v. Gonzales, 502 F.3d 109 (2d Cir. 2007); 136 Cong. Rec. S17486-01, S17492 (Oct. 27, 1990). FARRA § 2242(a)-(b) sets U.S. policy and directs agencies to promulgate implementing regulations; State Department regulations (22 C.F.R. Part 95) place CAT consideration with the Secretary and state that surrender decisions are matters of executive discretion not subject to judicial review (§ 95.4).
Extraditable offense measured by punishability: Yau-Leung v. Soscia, 649 F.2d 914 (2d Cir. 1981), supports the holding that extraditability turns on the offense’s potential punishment (more than one year), not the sentence actually imposed.

2) The Court’s Legal Reasoning

a) Statutory text and structure

The Court begins with the plain text. Section 1252(a)(4) provides that, “[n]otwithstanding … section 2241 of Title 28, or any other habeas corpus provision,” a petition for review of a final order of removal “shall be the sole and exclusive means for judicial review of any cause or claim under” CAT. The explicit reference to § 2241 and to “any other habeas corpus provision” supplies the clear statement St. Cyr requires to displace habeas jurisdiction. The word “any,” the Court stresses (citing Patel v. Garland, 596 U.S. 328 (2022)), is expansive and not naturally confined to removal-only scenarios.

Kapoor urged a narrow reading: that § 1252(a)(4) channels only CAT challenges to removal orders and says nothing about extraditions. The Second Circuit rejects that interpretation for two reasons. First, the “any cause or claim under” wording is not tethered to removal; it is the review mechanism (petition for review of a removal order) that Congress designated as sole, necessarily implying that no other judicial vehicle—habeas included—can be used to litigate CAT claims. Second, applying the canon against surplusage, a removal-only reading would leave § 1252(a)(4) redundant with § 1252(a)(5), which already channels challenges to removal orders into petitions for review. The better reading is that § 1252(a)(4) does additional work: it bars habeas review of CAT claims even outside the removal-review channel, unless a statutory exception in § 1252(e) applies.

b) CAT’s non-self-executing character; FARRA and regulations

Because CAT is non-self-executing, a litigant must ground any claim in implementing law. FARRA articulates U.S. policy against refoulement to torture and directs agencies to implement CAT through regulations. The State Department’s Part 95 regulations assign CAT review in extradition to the Secretary of State and expressly state that surrender decisions are matters of executive discretion not subject to judicial review. Although the Court does not decide whether FARRA itself creates privately enforceable rights (and notes the regulations’ disclaimer), that question is academic here: Congress has withdrawn habeas jurisdiction to hear CAT claims in extradition via § 1252(a)(4).

c) Suspension Clause and the rule of non-inquiry

The Suspension Clause protects the historical core of the writ. On that question, the Second Circuit turns to extradition’s “rule of non-inquiry,” which dates back to Supreme Court and circuit precedents limiting courts to narrow, structural checks in extradition and deferring humanitarian and conditions-based judgments to the Executive. Cases like Benson, Fernandez, and Jhirad define the traditional habeas inquiry; decisions such as Ahmad, Sindona, and Skaftouros hold that courts do not inquire into expected treatment abroad. More recently, Munaf crystallized the separation-of-powers rationale: courts are ill-suited to assess foreign criminal justice systems; those questions belong to the political branches.

Because historically the writ did not encompass humanitarian objections to extradition based on anticipated torture, Congress’s removal of habeas jurisdiction over extradition-based CAT claims does not extinguish a form of habeas that the Suspension Clause preserves. The Court also notes that the State Department repeatedly recognized CAT obligations here and concluded—after considering Kapoor’s submissions—that surrender complied with CAT; the hypothetical “extreme case” reserved in Munaf is not presented.

d) Circuit alignment and divergence

The Second Circuit embraces the D.C. Circuit’s analysis in Omar that § 1252(a)(4) forecloses habeas review of conditions in the receiving country for non-immigration transfers and extraditions. It declines to follow the Ninth Circuit’s en banc approach in Trinidad y Garcia, which allowed an exceedingly narrow check to confirm the Secretary considered a CAT claim. Given the statutory text and the anti-surplusage rationale, the Second Circuit reads § 1252(a)(4) to bar even that minimal habeas review.

e) Ancillary issues: APA and due process

APA: The APA does not supply jurisdiction where a statute precludes review or the action is committed to agency discretion. Section 1252(a)(4) expressly precludes the CAT review Kapoor seeks, and 22 C.F.R. § 95.4 characterizes surrender decisions as executive discretion. The Court cites Delgado v. Quarantillo, 643 F.3d 52 (2d Cir. 2011), to reject end-runs around § 1252 by re-labeling the claim under the APA.
Due process/staleness: After two charges were dismissed in India, the Secretary issued an amended surrender warrant for the three remaining counts. The Indian government clarified that those offenses are punishable by more than one year of imprisonment. Under the treaty’s definition of extraditable offense and Yau-Leung, extraditability turns on punishability, not the likely sentence or whether co-defendants paid fines. No colorable due process violation exists.
“Custody” for habeas purposes: The Court notes that Kapoor, released on bond with restrictive conditions, remains “in custody” sufficient for § 2241. But the availability of the writ does not equate to jurisdiction over the CAT claim given § 1252(a)(4).

3) Impact and Implications

a) Immediate doctrinal effect

Binding rule in the Second Circuit: Extradition-based CAT claims are not reviewable via habeas in federal court. The Secretary of State is the exclusive decision-maker on CAT in extradition, and courts may not second-guess that judgment.
Scope of § 1252(a)(4): The Court confirms that the provision reaches beyond removal-case litigation and can foreclose habeas review of CAT claims in extradition. This structural reading may influence how courts treat § 1252(a)(4) in other transfer contexts.
Reinforcement of the rule of non-inquiry: The decision further entrenches the separation-of-powers principle that humanitarian judgments in extradition are for the Executive, not the Judiciary.

b) Strategic consequences for practitioners

Shift to diplomatic and executive advocacy: For extraditees in the Second Circuit, the only viable forum for CAT arguments is the State Department. Effective practice will focus on detailed submissions to OIA and the Secretary, including country-conditions evidence, expert affidavits, and requests for diplomatic assurances.
Preservation of traditional extradition defenses: Counsel must emphasize the narrow justiciable issues—jurisdiction, treaty coverage (including dual criminality and extraditable-offense scope), and the sufficiency of evidence—rather than humanitarian claims.
Narrow path for judicial relief: The Court leaves no room—unlike the Ninth Circuit—for a “check-the-box” judicial confirmation that the Secretary considered CAT. Only a statutory amendment would create such review in the Second Circuit.

c) Likelihood of further review

The decision sharpens a circuit divide with the Ninth Circuit’s Trinidad y Garcia approach and aligns with the D.C. Circuit’s Omar. Given the constitutional and foreign-relations stakes, this split could invite Supreme Court review in a future case presenting a similar question.

Complex Concepts Simplified

Self-executing vs. non-self-executing treaties: A self-executing treaty automatically creates judicially enforceable rights; a non-self-executing one requires domestic legislation. CAT is non-self-executing, so litigants must rely on FARRA and implementing regulations.
FARRA: Congress’s statute implementing CAT in U.S. law. It sets policy against refoulement to torture and directs agencies to enact regulations (e.g., 22 C.F.R. Part 95 for extradition) to fulfill CAT obligations.
REAL ID Act § 1252(a)(4): A channeling provision that makes a petition for review of a removal order the sole means for judicial review of “any cause or claim under” CAT, notwithstanding § 2241 or any habeas provision. It thereby eliminates habeas jurisdiction over CAT claims—including in extradition.
Habeas corpus and the Suspension Clause: Habeas traditionally tests the lawfulness of custody and historically did not encompass humanitarian objections to extradition. Congress cannot remove the “core” of the writ, but it can limit forms of review that were never part of the historical writ.
Rule of non-inquiry: A doctrine of judicial restraint in extradition; courts do not examine the fairness or humaneness of the foreign justice system. Those questions are entrusted to the Executive, reflecting comity and separation of powers.
Extradition vs. removal: Extradition transfers a person to a foreign sovereign for criminal prosecution or punishment (governed by 18 U.S.C. §§ 3181–3196 and treaties). Removal is an immigration process to expel a non-citizen (governed by the INA). Section 1252(a)(4) ties CAT judicial review to the removal-review mechanism, not extradition.
Extraditable offense (punishability): Whether an offense is extraditable depends on whether it is punishable by more than one year’s imprisonment under the treaty, not the sentence a particular defendant is likely to receive.

Conclusion

Kapoor v. DeMarco cements a clear rule in the Second Circuit: habeas courts may not review CAT claims raised to block extradition. Congress spoke with the clarity St. Cyr requires in § 1252(a)(4), channeling CAT review exclusively into petitions for review of removal orders and thereby foreclosing habeas in extradition. That limitation does not offend the Suspension Clause because it does not displace a historically protected core of the writ; the rule of non-inquiry has always reserved humanitarian and conditions-based judgments to the political branches in extradition.

Practically, the opinion centralizes CAT compliance in extraditions within the Executive, emphasizing diplomatic assurances and internal State Department review rather than judicial oversight. It aligns the Second Circuit with the D.C. Circuit’s approach and rejects the Ninth Circuit’s minimalist judicial check. For future litigants, the path is clear: extradition habeas remains limited to traditional issues—jurisdiction, treaty coverage, and evidentiary sufficiency—while CAT-based objections must be pressed to the Secretary of State. The decision underscores comity, separation of powers, and Congress’s prerogative to allocate judicial review in this sensitive area of foreign relations and international cooperation in criminal law enforcement.