Hyuk Kee Yoo, aka Keith Yoo v. United States

Article 6 of the United States-South Korea Extradition Treaty (“Treaty”) provides that “[e]xtradition may be denied under this Treaty when the prosecution or the execution of punishment 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.” The rest of Article 6 explains that the period in which a person flees from justice does not count towards the running of the statute of limitations and that any acts or circumstances that would otherwise suspend the expiration of the limitations period of either state shall be given effect. Finally, Article 6 mandates that the requesting state provide a written statement of the relevant provisions of its statute of limitations, which shall be conclusive. Petitioner Yoo Hyuk Kee (“Keith Yoo” or “Mr. Yoo”) maintains that, consistent with Article 6, his extradition is barred under the Treaty because the statute of limitations has lapsed. The Government concedes that time has lapsed. Breaking with Supreme Court precedent on treaty interpretation, the U.S. Court of Appeals for the Second Circuit held below that, due to the word “may,” Article 6 is a discretionary clause for the Secretary of State to implement as it so chooses, rather than a mandatory bar for the judiciary to implement uniformly. The questions presented are: A. Does interpreting Article 6 of the Treaty as a discretionary issue for the Secretary of State to