No._____

                       ___________________


          IN THE SUPREME COURT OF THE UNITED STATES

                       October Term, 1996

                       __________________

          LUI KIN-HONG, also known as Jerry Lui, Petitioner

                               v.

                UNITED STATES OF AMERICA, Respondent

                       __________________

            EMERGENCY APPLICATION FOR STAY OF MANDATE OF
     UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT AND OF
   ISSUANCE OF CERTIFICATE OF EXTRADITABILITY PENDING CERTIORARI

                       __________________



To the Honorable David H. Souter, Associate Justice of the Supreme Court and Circuit Justice for the First Circuit:    Petitioner, Lui Kin-hong (a/k/a Jerry Lui), moves for an order staying: (a) the issuance of the mandate of the United States Court of Appeals for the First Circuit, in the above entitled proceeding, and (b) the delivery of a certificate of extraditability to the Secretary of State, pending the filing of and final action by this Court on, a petition for writ of certiorari to the Court of Appeals for the First Circuit. The mandate is due to issue on Thursday, April 3, 1997, and if action on this stay application is not had before such issuance, petitioner requests that an order be entered directing the First Circuit to recall its mandate and to stay issuance thereof pending certiorari proceedings.      The petition for certiorari will seek plenary review of the First Circuit's decision in the above-entitled case, which reversed a judgment of the District Court for the District of Massachusetts that granted petitioner habeas corpus relief from being extradited pursuant to the United States extradition treaty with one sovereign (here, the United Kingdom) to face trial and punishment in the courts and prisons of another sovereign (here, the People's Republic of China), with which the United States has no extradition treaty. Copies of the First Circuit's order and opinion, together with the District Court's order and opinion, are attached hereto as Exhibits A and B, respectively.      A. Procedural History of the Case      Petitioner was charged by the United Kingdom's Crown Colony of Hong Kong with conspiring to receive and receiving commercial bribes while he was employed as an executive of Brown & Williamson Tobacco Co., and its corporate affiliate, British American Tobacco Co. (Hong Kong) Ltd. The most recent charge and arrest warrant issued in Hong Kong on February 5, 1996; there were earlier charges and warrants. Lui was arrested pursuant to a provisional arrest warrant, issued by the United States District Court in Boston, upon his arrival at Logan Airport in Boston on December 20, 1996. The arrest was made following an extradition request by the United Kingdom pursuant to the U.S.-U.K. Extradition Treaty. The Magistrate Judge, after a hearing, ordered petitioner detained.      On April 25, 1996, the district court granted petitioner's initial habeas corpus petition, filed under 28 U.S.C. § 2241(c)(3), and ordered him released on conditions, Lui Kin-hong v. United States, 926 F.Supp. 1180 (D. Mass. 1996), because of the complexity of the issues presented by the case and the anticipated length of proceedings. On May 14, 1996, the Court of Appeals reversed the district court's conditional release order. United States v. Lui Kin-hong, 83 F.3d 523 (1st Cir. 1996). The three- day extradition hearing commenced on May 28, 1996, and the Magistrate Judge ordered petitioner extradited on nine of the ten Hong Kong charges on August 29, 1996. In re Extradition of Lui Kin-hong, 939 F.Supp. 934 (D.Mass. 1996). On September 3, 1996, petitioner filed an amended habeas corpus petition challenging the Magistrate Judge's decision, and after extensive briefing by the parties, the District Court (Tauro, Ch. J.) granted the writ on January 7, 1997. (Opinion attached as Exhibit A.)      The government appealed. Briefing and consideration of the appeal were expedited upon Lui's motion, and the Court of Appeals decision reversing the District Court issued on March 20, 1997. The Court of Appeals' mandate orders the certificate of petitioner's extraditability to be delivered to the Secretary of State. (Opinion attached as Exhibit B.)      The First Circuit stayed its mandate for fourteen days, that is, until April 3, 1997, in order to give petitioner an opportunity to seek rehearing and rehearing en banc, and to seek a stay from this Court pending the filing and disposition of a petition for a writ of certiorari. Petitioner filed his petition for rehearing and suggestion for rehearing en banc on March 28, 1997, together with a motion for a stay pending action by this Court on the instant motion. As of this writing, the Court of Appeals has not ruled on petitioner's March 28, 1997 submissions.      B. Irreparable Harm to Petitioner If a Stay Is Denied.      1. If a stay is not granted before April 3, 1997, petitioner would immediately be extradited to Hong Kong. The government has conceded that, if extradited, Lui would be tried and punished by communist China, not the United Kingdom, when Hong Kong is returned to Chinese sovereignty on July 1, 1997. Denial of a stay would: (a) moot this case; and (b) result in petitioner's suffering irreparable injury, including likely torture and even execution, from being extradited to face unfair trial and inhumane punishment in the courts and prisons of communist China rather than in United Kingdom institutions, at a time when the United States has no extradition treaty with the People's Republic of China.      2. Unless stayed prior to April 3, 1997, pending review by this Court, such an extradition to face trial and punishment in the People's Republic of China would irrevocably and finally violate: (a) the U.S.-U.K. Extradition Treaty and 18 U.S.C. § 3184; (b) petitioner's right under the Due Process Clause of the Fifth Amendment not to be extradited for trial and punishment by a sovereign which is not a party to an extradition treaty with the United States; and (c) the prerogative of the Senate to give, or withhold, its Advice and Consent (Art. II, § 2 of the Constitution) to a treaty authorizing, for the first time, extraditions of persons found in the United States to face trial and punishment in the People's Republic of China. Although the Executive Branch on March 3, 1997 submitted such a proposed treaty to the Senate, seeking Advice and Consent [143 Cong. Rec. S1846 (1997)], the Senate has yet to ratify the treaty.      4. Neither the United States nor the requesting sovereign, the United Kingdom, would be prejudiced by the issuance of a stay. Petitioner r remains in custody in Massachusetts. Even if petitioner prevails in this Court, he could still be extradited for trial and punishment in the criminal justice system of our extradition treaty partner, the United Kingdom. The government has filed a submission from the State Department's Legal Adviser asserting that the Executive Branch may make the treaty with the United Kingdom applicable to extraditions to and from the People's Republic of China even if the Senate does not ratify the proposed extradition treaty with the People's Republic of China. See Declaration of Jamison Borek (attached hereto as "Exhibit C"). The Court of Appeals noted that such action might infringe upon the Senate's prerogative under the Treaty Clause of the Constitution, Art. II, § 2, but recognized that such a controversy was not yet ripe. Opinion at *7 and n.14.      C. Questions To Be Presented in Petition for a Writ of Certiorari Petitioner seeks an emergency stay for a period to be set by this Court for time to submit a petition for a writ of certiorari which will present the following questions:      1. Whether a United States extradition treaty with one foreign sovereign (here, the United Kingdom), permits the United States to extradite an individual for trial and punishment only by that sovereign and not by another foreign sovereign (here, the People's Republic of China), with which the United States has no extradition treaty.      2. Whether the meaning of the words "extradition" and "extradite" in U.S. extradition treaties and 18 U.S.C. § 3184, as defined by this Court in Terlinden v. Ames, 184 U.S. 270, 289 (1902) ("the surrender by one state or country to another...which, being competent to try and punish him, demands the surrender" [emphasis supplied]), permits the extradition of an individual for trial and punishment by a sovereign (here, the People's Republic of China), which is not party to any U. S. extradition t treaty and did not demand the individual's surrender.      3. Whether the "rule of non-inquiry" in extradition cases requires a federal habeas corpus court to disregard the fact that the individual's t trial and punishment upon extradition would take place under the sovereign c control of the People's Republic of China, when the question of whether that nation's system of justice is such as to justify the United States' e entering into an extradition treaty (a) has never been determined by the Senate, and (b) is pending before the Senate, in the form of a treaty proposed by the Executive Branch, for Advice and Consent (Article II, Section 2 of the Constitution).      As we now demonstrate, these questions are of sufficient importance that four Justices are reasonably likely to grant review, and upon review, there is a substantial probability that this Court will reverse the First Circuit. With the stay equities so clearly balanced in the petitioner's favor, a stay should be granted.      D. The Merits of the Issues.      This is an extraordinary extradition case which raises fundamental and broadly applicable questions under the law of treaties, which arise when part of the territory of one sovereign nation with which the United States has an extradition treaty (here, the United Kingdom) becomes part of the territory of a sovereign nation (here the People's Republic of China) with which the United States has no extradition treaty. The questions raised do not arise from a mere change in the form of government or change in regimes governing a foreign nation with which we have an extradition treaty. This Court should grant a stay in order to determine whether to grant plenary review of questions which will clarify and assure that correct distinctions are drawn in the law of treaties between the effect on treaties of a change in the foreign treaty partner's mere form of government, and the transfer of part of the territory of the foreign treaty partner so that it becomes part of the territory of another sovereign nation.      The questions under the law of treaties arise from an event of extraordinary significance in the history of treaty relations between nations (and of human freedom). On July 1, 1997, Hong Kong ceases to be part of the territory of our most trusted extradition treaty partner, the United Kingdom, which has a criminal justice and penal system after which our own system was largely patterned. Hong Kong becomes part of the territory of the People's Republic of China, with which no nation in the world had a extradition treaty until 1996, when Chinese extradition treaties went into force with Russia and Byelorrussia.      The important questions of treaty interpretation involve determining whether, according to the U.S.-U.K. extradition treaty, standards agreed to bilaterally with one sovereign (here, United Kingdom) for extradition of persons to face trial and punishment in the other nation's criminal justice system, permit persons found extraditable according to those standards to be extradited for trial and punishment, not in the criminal justice system of the requesting Party, but in that of another country. These questions are of great significance. They involve definitively determining the meaning of the key words "extradition" and "extradite," common to every extradition treaty. The proper resolution of the questions is of the gravest importance for individual liberty, for petitioner, and for the constitutional role of the Senate in treaty adoption.      The First Circuit incorrectly -- and without precedent -- held that an individual may be extradited for trial and punishment in the justice system of a nation other than a requesting treaty partner. Article I of the U.S.-U.K. treaty states:           Each Contracting Party undertakes to extradite to the other,      in the circumstances and subject to the conditions specified in this      Treaty, any person found in its territory who has been accused or      convicted of any offense within Article III, committed within the      territory of the other Party. (emphasis supplied). As a matter of common meaning, extradition is not "to the other" nation when the individual is actually being sent for submission to the justice system of a different sovereign country. This common-sense meaning is confirmed by this Court's precedents. "Extradition" means:      ...the surrender by one state or country to another of an individual      accused or convicted of an offense outside its own territory and      within the territorial jurisdiction of the other, which, being      competent to try and punish him, demands the surrender. Terlinden v. Ames, 184 U.S. 270, 289 (1902)(emphasis supplied). Again, it is a particular treaty partner's system for "try[ing] and punish[ing]" the individual that is being brought into play by "extradition." That is surely the plain meaning of the word as used in the U.S.-U.K. treaty and other treaties.      Ignoring this critical limit also disregards the nature of the determination made by the United States when it enters into an extradition treaty. The Executive and the Senate together decide that the justice system of a particular nation is sufficiently fair and protective of human rights, that the U.S. will send individuals for submission to that system. That determination is limited to the justice system of the particular nation. Sending an individual for trial by a different system -- especially one with which the U.S. has no extradition treaty -- would breach the limits of the determination made in adopting the treaty.      Departing from the natural meaning of the word "extradition" in the treaty's text, the Court of Appeals ruled that the plain meaning of the treaty permits a person to be extradited for trial and punishment by a s sovereign which is neither a party under the treaty nor the sovereign which demands the person's surrender. The Court of Appeals arrived at this unprecedented interpretation chiefly by making affirmative use of the silence in the U.S.-U.K. treaty -- both the original treaty and the 1986 Supplementary Treaty -- about its application during the waning days of British sovereignty over Hong Kong. (Opinion at *1, *4). The treaty's "silence," however, has a far more natural explanation than implicit approval of the First Circuit's extraordinary result. Much more likely, the common understanding of "extradition," set forth in Terlinden, would fairly have been assumed to permit extradition solely for trial and punishment in the courts and prisons of the requesting Party.      The Court of Appeals went further even than concluding that silence makes the bilateral agreement unambiguous. Rather, the Court of Appeals inferred from the 1986 Supplementary Treaty's silence -- shortly after the 1985 Sino-British Joint Declaration on the Question of Hong Kong -- that the Senate was unconcerned about the impact of Hong Kong's reversion and, indeed, implicitly blessed extraditions for trial and punishment in PRC- controlled Hong Kong in the absence of a specific provision to the contrary. (Opinion at *1, *4). This use of materials bearing on the Senate's role, aside from being incorrect as an interpretive matter, itself raises important questions.      As the Court of Appeals had previously ruled, the Senate's concern in the Supplementary Treaty focused almost entirely on extraditions of alleged Provisional I.R.A. terrorists to face trial and punishment in Northern Ireland's Diplock courts (the fairness of which was seriously questioned by many Senators during the Senate hearings and ratification debate). See In re Extradition of Howard, 996 F.2d 1320, 1331 (1st Cir. 1993). Hong Kong was barely noticed in the 1986 process. In the present case, the Court of Appeals nevertheless relied, in a footnote (at *4 n.6), upon a statement by Senator Orrin G. Hatch during the Senate hearings concerning ratification of the Supplementary Treaty. But that statement, even read on its own, let alone considered in the whole 1986 context, is anything but evidence that, by failing to include provisions in the treaty's text expressly addressing the extradition problems raised by Hong Kong's reversion (then more than ten years away), the Senate was approving extraditions of persons for trial or punishment in the P.R.C. Indeed, the best evidence of the 1986 Senate's intent is its announced reliance on the uniquely protective justice system of the United Kingdom in allowing a narrowed exception to extradition. That action is unusually strong evidence that the Senate was not indifferent to the nature of the justice system to which extradited individuals would be subject.      The First Circuit's ruling raises far-reaching questions about the proper use of silence in a treaty's text as evidence of the parties' intent, as well as the appropriate use of non-textual sources to determine the meaning and proper application of treaties. Principles governing the use of textual silence and non-textual materials in the interpretation of treaties were addressed to some degree, but left without definitive resolution in United States v. Stuart, 489 U.S. 353 (1989). This Court has yet to authoritatively announce clear canons or rules for courts to use in assessing the weight, if any, to be given to: (1) a treaty's silence where the text could have addressed an issue but did not; (2) the formally expressed intent of the Executive Branch concerning the meaning and application of the treaty at the time that it seeks and obtains the Senate's Advice and Consent to treaties; and (3) a formally expressed Declaration of the Senate's intent which was included in its Resolution of Ratification of the Treaty before the executives of the signatory countries formally signed the treaty and put it into force.      Justices Kennedy and O'Connor filed a separate concurring opinion in United States v. Stuart, 489 U.S. at 370, in which they expressed the view that the answers to these questions concerning treaty interpretation should be reserved until this Court is confronted by a case "where the language of the treaty itself does not yield a clear answer to the question before us." Although we believe that the language of the U.S.- U.K. Extradition Treaty does answer the question here -- barring extradition -- the First Circuit's contrary ruling cannot fairly be rested on "clear answers" in the text. For the First Circuit's view to prevail, the incompletely resolved issues governing the interpretation of treaties left open in Stuart would have to be resolved.      The Court of Appeals' decision (Opinion at *6-7) also rests on a dangerous, and upside-down, interpretation of the non-inquiry rule as a limitation on habeas corpus jurisdiction in extradition cases -- potentially affecting the liberty interests of every person in the United States who previously lived, traveled, or worked in a foreign country. Or who will do so in the future. By its nature, extradition subjects a person to the criminal justice system of a foreign country with which the United States has an extradition treaty. The very basis of the non- inquiry rule, which precludes habeas corpus courts from inquiring into the fairness of the criminal justice system of the extradition treaty partner, is that the Executive and the Senate have together made that determination. As the Court explained in Glucksman v. Henkel, 221 U.S. 508, 512 (1911) and Neely v. Henkel(No.1), 180 U.S. 109, 123 (1901), deference under the rule is due not merely to the foreign policy judgment of the executive branch but also, necessarily, to the constitutionally required foreign policy judgment of the Senate, expressed and embodied in a ratified extradition treaty, that the justice system of the treaty partner is sufficiently fair to justify sending accused persons there for trial, under whatever conditions and restrictions (embodied in the ratified Treaty) are deemed appropriate for that treaty partner. Such a treaty does not embody that judgment as to any other nation.      The Court of Appeals (Opinion at *6-7) nevertheless applied the non- inquiry rule where its premise is wholly lacking, demanding disregard of the fact that petitioner concededly will be subject to the courts and prisons of the People's Republic of China, even though the Senate has yet to Advise and Consent concerning extraditions to the criminal justice system of the P.R.C. in post-reversion Hong Kong, or anywhere else in China. The vital right of persons in the United States not to be extradited for trial and punishment in a foreign country with which the United States has no extradition treaty -- particularly a human rights pariah such as communist China -- will be affected by this Court's decision to grant plenary review. This Court should correct the First Circuit's transformation of the non-inquiry rule from a protection of the Senate's role into a tool for evasion of that role. Petitioner's life may well depend on this issue.      D. CONCLUSION      For the foregoing reasons, petitioner requests that an order be entered staying the issuance of the First Circuit's mandate, or, if the mandate has in fact been issued, direct that the mandate be recalled and stayed, pending completion of certiorari proceedings before this Court. Respectfully submitted, Harvey A. Silverglate Andrew Good Silverglate & Good 83 Atlantic Avenue Boston, MA 02110-3711 (617) 523-5933 April 2, 1997