                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 15-7620


ZHENLI YE GON,

                 Petitioner – Appellant,

           v.

FRANK E. DYER, III, Superintendent of the Central Virginia
Regional Jail; GERALD S. HOLT, U.S. Marshal for the Western
District of Virginia; JOHN F. KERRY, U.S. Secretary of
State,

                 Respondents – Appellees.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.       Glen E. Conrad, Chief
District Judge. (7:15-cv-00462-GEC-RSB)


Argued:   May 12, 2016                      Decided:   June 10, 2016


Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Gregory Stuart Smith, GREGORY S. SMITH, ATTORNEY AT LAW,
Washington, D.C., for Appellant.   William Andrew Glaser, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.
ON BRIEF: John C. Lowe, JOHN LOWE, P.C., Bethesda, Maryland;
Ning Ye, LAW OFFICE OF NING YE, Flushing, New York, for
Appellant.    Leslie R. Caldwell, Assistant Attorney General,
Sung-Hee Suh, Deputy Assistant Attorney General, Appellate
Section, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; John P. Fishwick, Jr., United States Attorney,
Charlene Day, Assistant United States Attorney, OFFICE OF THE
UNITED   STATES ATTORNEY,  Roanoke,  Virginia;  John  Chadwick
Johnson, FRITH ANDERSON & PEAKE, PC, Roanoke, Virginia, for
Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       Seeking release from custody and to prevent his extradition

to face criminal prosecution in Mexico, Zhenli Ye Gon petitioned

the district court under 18 U.S.C. § 3188 and 28 U.S.C. § 2241.

Following     briefing      and    oral    argument,       the    court    summarily

dismissed the petition (in its amended form) with prejudice. Ye

Gon now appeals. We affirm.

                                          I

       Ye Gon was taken into custody in 2007 to face a federal

drug   charge,      but   the   United    States    eventually      dismissed     the

charge. Before the dismissal, however, Mexico requested Ye Gon’s

extradition pursuant to a treaty to prosecute him on charges of

organized crime; unlawful firearm possession; money laundering;

diversion     of     essential       chemicals;      and     drug       importation,

transportation, manufacturing, and possession. In February 2009,

a magistrate judge certified that Ye Gon is extraditable under

the treaty.

       This is Ye Gon’s second habeas petition, the first having

come before us in 2014. We affirmed the denial of that petition.

See Ye Gon v. Holt, 774 F.3d 207 (4th Cir. 2014), cert. denied,

135 S.Ct. 2859 (2015). Our decision and the denial of certiorari

review   by   the    Supreme      Court   cleared   the     way   for     the   United

States to proceed with extradition, but at that time the State

Department had not finally determined whether Ye Gon should be

                                          3
extradited. See generally id. at 210 (“If the extradition judge

determines that the fugitive is extraditable, he must send his

certification of extraditability to the Secretary of State, who

has     the    final        executive    authority      to     determine        whether       to

extradite the fugitive.”).

        After resolution of the first habeas proceeding, Ye Gon

filed     this       petition       seeking    (among       other    things)        immediate

discharge           from    custody      pursuant      to      § 3188.       That      statute

generally provides that if the United States does not extradite

within        two    calendar       months     after    committing         a    person       for

rendition to a foreign government, a judge “may order the person

so committed to be discharged out of custody, unless sufficient

cause is shown to such judge why such discharge ought not to be

ordered.”

        Several weeks later, while the petition was pending, the

State Department authorized Ye Gon’s extradition. In a letter

dated     September          21,     2015,     the     State     Department         official

explained (in part) that Ye Gon’s extradition is not barred by

the     Convention           Against     Torture       (“CAT”),        which        generally

prohibits       the        return   of   an    individual       to     a     country     where

substantial          grounds    exist    for    believing       that    he     would    be    in

danger of being tortured.

      In response to the State Department’s authorization, Ye Gon

filed an emergency motion for stay of extradition. Additionally,

                                               4
he   twice       amended      his   habeas        petition.    Ultimately,        Ye    Gon

presented five claims for the district court to consider: (1) he

should be discharged from custody under § 3188; (2) he should be

granted CAT relief because he will be tortured or killed if he

is extradited; (3) the State Department’s extradition decision

deprives him of due process; (4) any limitation of his ability

to   have       judicial      review     of   his   torture     claim    violates       the

Suspension Clause of the United States Constitution; and (5) the

Secretary of State illegally delegated the extradition decision

to   a       Deputy    Secretary    of    State.     The    parties     briefed    and/or

orally argued the merits of these claims in connection with the

court’s consideration of Ye Gon’s stay motion.

         Thereafter, the district court summarily dismissed Ye Gon’s

amended petition. Additionally, the court denied Ye Gon’s motion

for a stay; however, the court granted a 7-day stay to allow

time to file an appeal. In a memorandum opinion accompanying the

order, the court addressed the merits of Ye Gon’s claims. 1

         The district court first considered Ye Gon’s request for

discharge pursuant to § 3188. Initially, the court found that

the request could be denied because it was premature. In the

court’s        view,    the   §   3188    two-month        period   began   to    run    on

         1
       The court explained that the parties’ extensive arguments
about the merits of the claims made the petition ripe for
disposition.



                                              5
February 9, 2011, when a magistrate judge found Ye Gon to be

extraditable        and    issued      a    commitment            order;      the    period      was

tolled on February 10, 2011, when Ye Gon filed his first habeas

petition; and it remained tolled until July 7, 2015, when we

issued our mandate from his prior appeal. Based on this, the

court concluded that the two-month period did not expire until

September     7,     2015,    several           days       after     Ye       Gon    filed    this

petition.

       Despite its conclusion that the petition was premature, the

district court did not actually rule on that ground. Instead,

the court concluded that sufficient cause had been shown to deny

the request for discharge on the merits. The court noted that

the State Department’s decision was made, at most, nine days

after the two-month period expired, and it found “no evidence in

the record that the State Department has been anything less than

diligent in its consideration of the extensive materials Ye Gon

has    submitted     in    support         of     his      multi-part         claim,      that   if

extradited     to    Mexico,      he       will       be   at    risk    of    torture       and/or

death.”     J.A.    303.    The   court         explained         that     the      Secretary    of

State’s decision was “complex” and involved review of “court

documents, expert testimony, and thousands of pages of materials

Ye    Gon   submitted      during      the        court         proceedings         in   which   he

challenged his extradition on many grounds other than the risk

of torture.” Id. at 303, 304. The court also determined that Ye

                                                  6
Gon was not prejudiced by the asserted brief delay beyond the

two-month deadline and the charges against Ye Gon are serious.

The court stated: “[N]o useful purpose is served in discharging

Ye Gon after nearly seven years of extradition litigation, only

to    face   the    potential          for    that    extradition      process     to     begin

anew.” Id. at 304.

       The district court next turned to Ye Gon’s claim that he

will be tortured and/or killed if extradited. Ye Gon conceded,

and    the   court     concluded,            that    our   decision     in     Mironescu      v.

Costner,      480     F.3d       664    (4th    Cir.       2007),    prevented       it     from

considering the claim. In Mironescu, we interpreted CAT and the

Foreign      Affairs    Reform         and    Restructuring         (“FARR”)     Act      (which

implements CAT) and held that “courts may consider or review CAT

or FARR Act claims as part of their review of a final removal

order, [but] they are otherwise precluded from considering or

reviewing such claims.” Id. at 674.

       The district court then considered Ye Gon’s contention that

he was denied due process by the manner in which the State

Department      has    reviewed         and    decided      his     case,    including       its

refusal to allow his counsel to present his claim in person and

its    issuance       of     a    letter       decision       which     he     contends      is

unconstitutionally vague. The court rejected this claim, finding

in    pertinent      part    that       “Ye    Gon    received       the    extent     of    the

procedural         protection          contemplated         by      Congress     under       the

                                                7
statutes at issue: consideration and an executive decision on

the CAT claim before the surrender warrant was issued.” J.A.

308. For support, the court relied on Peroff v. Hylton, 563 F.2d

1099, 1102 (4th Cir. 1977), in which we noted that “matters

involving extradition have traditionally been entrusted to the

broad     discretion     of     the     executive,”        and   the   “need      for

flexibility     in     the      exercise       of    Executive    discretion         is

heightened      in     international          extradition     proceedings       which

necessarily implicate the foreign policy interests of the United

States.”     Applying     those       general       principles   in    Peroff,       we

rejected the claim that due process requires a “‘fair hearing’

before    the   Secretary       of    State    on    the   propriety   of   .    .    .

extradition.” Id.

      Next, the district court addressed and rejected Ye Gon’s

claim that the Suspension Clause prohibits courts from applying

the FARR Act so as to preclude consideration of his torture

claim. 2 Citing Fernandez v. Phillips, 268 U.S. 311 (1925), the

court noted that habeas review in the extradition context has

traditionally been limited to determining whether: (1) the court

has     jurisdiction     over    the    petitioner,        (2)   the   extradition



      2The Suspension Clause (Art. I, § 9, cl. 2) specifies that
“[t]he Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the
public Safety may require it.”



                                           8
request      falls    within    the      scope     of    the     treaty,      and    (3)   the

foreign charge is supported by probable cause. The court found

that “Ye Gon has clearly had the full benefit of habeas review

of the extradition request under this standard.” J.A. 310. The

court also relied on Munaf v. Geren, 553 U.S. 674 (2008), in

which the Supreme Court rejected the habeas petitioner’s claim

that    he   faced     torture      if     transferred          to    Iraqi   custody      for

criminal     prosecution.       The      Munaf     Court    explained         that   “[s]uch

allegations are of course a matter of serious concern, but in

the    present   context       that      concern    is     to    be    addressed      by   the

political branches, not the Judiciary.” Id. at 700.

       Finally, the district court considered Ye Gon’s claim of

improper delegation of authority by the Secretary of State. The

court    found       this   claim     to    be     “without          merit”   because      the

“delegation of authority from the Secretary does not appear to

be inconsistent with the regulations or the statutes, and falls

within the statutory provision empowering the Secretary to make

appropriate delegations.” J.A. 312-13.

                                             II

       On appeal, Ye Gon challenges the district court’s ruling on

four of the five claims presented below, and he also raises




                                             9
several new claims for the first time. 3 Initially, we note that

because     Ye     Gon      does    not     contend        that    the     court       erred    in

dismissing his improper delegation of authority claim, we need

not   consider      that      claim.       See    Brief       of   Appellant,       at    9    n.4

(noting     that    the      delegation          issue     “is     not    advanced       here”).

Moreover, although Ye Gon continues to press his torture claim,

he concedes (as he did below) that we are bound to reject the

claim under Mironescu. Further, applying the settled rule of

this Court, we decline to consider the new claims Ye Gon has

raised on appeal. See In re Under Seal, 749 F.3d 276, 285 (4th

Cir. 2014) (explaining that we do not consider issues raised for

the first time on appeal absent exceptional circumstances).

      That      leaves      for    resolution         three      claims,       which    we     have

carefully       reviewed.      We       hold   that     the    district        court    did    not

abuse     its    discretion        by    denying      Ye    Gon’s    § 3188       request      for

discharge       from     custody.        The    court      applied       the   correct       legal

principles and adequately explained its rationale, and we are

satisfied that it did not commit a clear error of judgment. See

United     States      v.    Cowley,      814     F.3d     691,    698     (4th    Cir.      2016)

(explaining abuse of discretion standard of review). We further

hold that the court did not err by dismissing the due process



      3After Ye Gon filed this appeal, we granted his motion for
stay pending appeal.



                                                 10
and   Suspension     Clause    claims.     As   to   these    claims,       we   rely

substantially       on   the    court’s     reasoning,       see     J.A.    308-11

(pertinent   portion     of    district    court     order),       which    we   have

briefly summarized above.

      For   these    reasons,    we   affirm     the   final       order    of    the

district court dismissing Ye Gon’s claims.

                                                                            AFFIRMED




                                      11
