In the Matter of the Extradition of Masahide Kanayama v. Scott Kowal, Chief of U.S. Pre-Trial Services SDNY, and Does 1-10

• Court: District Court, S.D. New York
• Decided: April 6, 2026
• Docket: 1:23-cv-03469
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK IN THE MATTER OF THE EXTRADITION OF 17 Misc. 1 (ER) □ MASAHIDE KANAYAMA

MASAHIDE KANAYAMA, Petitioner, -against- 23 Civ.3469(CM)_, SCOTT KOWAL, Chief of U.S. Pre-Trial Services i J SDNY, and DOES 1-10, - Respondents. □

MASAHIDE KANAYAMA, Petitioner, □□ -against- 26 Civ. 1402 are) / SCOTT KOWAL, Chief of U.S. Pre-Trial Services SDNY, Respondent.

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Respondents, by and through the United States Attorney for the Southern Dis- trict of New York, respectfully submit this motion for an order revoking the release of, and detaining, Masahide Kanayama in order to enable the United States to exe- cute the Secretary of State’s decision to surrender Kanayama to Japan. I. Introduction On November 18, 2025, the Second Circuit affirmed this Court’s (McMahon, J.) decision denying Kanayama’s petition for a writ of habeas corpus challenging the certification of his extradition to Japan. See Kanayama v. Kowal, No. 24-1340, 2025 WL 3210986 (2d Cir. Nov. 18, 2025) (summary order). The Secretary of State has signed a warrant for Kanayama’s surrender to Japan to face charges for damage to a structure in violation of Article 260 of the Japanese Penal Code. Kanayama has liti- gated his extradition for nearly a decade now: Judge Edgardo Ramos certified that Kanayama was extraditable; Judge Colleen McMahon denied Kanayama’s habeas petition challenging Judge Ramos’s decision; the Second Circuit affirmed Judge McMahon’s denial of habeas; Associate Justice Sotomayor, acting as the Circuit Jus- tice, denied Kanayama’s emergency application for a stay of extradition; the Supreme Court denied Kanayama’'s emergency application for a stay of extradition; and the Supreme Court denied Kanayama’s petition for a writ of certiorari. As set forth below, 18 U.S.C. § 3184 mandates that fugitives, such as Ka- nayama, who have been certified as extraditable be brought into custody until sur- render can be effected. There is no legal impediment to Kanayama’s surrender to Japan—despite his latest attempt to extend litigation by filing a frivolous new habeas petition before Judge J. Paul Oetken—and accordingly, the Court should order

Kanayama into custody so that his extradition and surrender to Japan may proceed, and specifically, to enable the Government to effectuate his physical surrender to Japanese authorities for transportation to Japan pursuant to the Secretary of State’s surrender decision. Procedural Background The procedural background of the case is set forth in the Second Circuit’s opinion. See Kanayama, 2025 WL 3210986, at *1. As relevant to this motion, on April 28, 2015, and December 8, 2015, pursuant to 18 U.S.C. § 3184 and the Treaty on Extradition Between the United States of America and Japan (the “Treaty”), Japan’s Sakura Summary Court issued warrants for Kanayama’s arrest for two separate counts of damage to a structure in violation of Article 260 of the Japanese Penal Code. Id. On December 12, 2016, Japan requested Kanayama’s extradition and, on May 30, 2017, the Honorable Barbara C. Moses, United States Magistrate Judge issued a war- rant for Kanayama’s arrest; that same day, Kanayama was arrested, presented be- fore a magistrate judge, and released on bail pending extradition proceedings. Jd. On December 6, 2022, the Honorable Edgardo Ramos, United States District judge, con- ducted an extradition hearing; the following month, on January 26, 2023, he certified to the Secretary of State that Kanayama was extraditable under the Treaty and Sec- tion 3184. Jd. Kanayama filed a habeas petition challenging the extradition certifica- tion; in an order entered on April 11, 2024, the Honorable Colleen McMahon, United States District Judge, denied Kanayama’s habeas petition. Jd. Kanayama appealed. Id.

Since that time, on October 16, 2025, the Department of State authorized Ka- nayama’s extradition, writing to Kanayama’s counsel: I am writing in relation to the Secretary of State’s determi- nation on whether to extradite Masahide Kanayama to Ja- pan. Following a review of all pertinent information, in- cluding the materials submitted directly to the Depart- ment of State, as well as the materials and filings submit- ted to the U.S. District Court for the Southern District of New York on behalf of Mr. Kanayama, the Under Secretary of State for Political Affairs decided to authorize Mr. Ka- nayama’s surrender to Japan, pursuant to 18 U.S.C. § 3186 and the Extradition Treaty between the United States and Japan. In reaching a decision in any extradition case, the Depart- ment carefully and thoroughly considers all claims submit- ted and takes appropriate steps, which may include obtain- ing information or commitments from the requesting gov- ernment, to address the identified concerns. We have shared information about Mr. Kanayama’s medical condi- tions with Japanese authorities, who confirmed that his medical needs will be met both in transit from the United States to Japan, and during any period of detention in Ja- pan. The following month, on November 18, 2025, the Second Circuit (Nardini, Menashi, and Lynch, JJ.) affirmed Judge McMahon’s denial of Kanayama’s habeas petition. Kanayama, 2025 WL 3210986, at *4. Eight days later, on November 26, Kanayama filed an emergency application for a stay of extradition with the Honorable Sonia Sotomayor, Associate Justice of the United States Supreme, who is the Circuit Justice for the Second Circuit Court of Appeals. See Kanayama v. Kowal, No. 25A633(S. Ct.). On December 9, 2025, Kanayama filed a petition for a writ of certiorari with the Supreme Court. See Kanayama v. Kowal, No. 25-715 (S. Ct.).

On December 12, 2025, Justice Sotomayor denied Kanayama’s emergency ap- plication for a stay of extradition. See Kanayama, No. 25A6338. Five days later, Ka- nayama re-filed his emergency application for a stay of extradition with the Honora- ble John G. Roberts, Chief Justice of the United States Supreme Court. See id. After Chief Justice Roberts referred the application to the entire Supreme Court, on Janu- ary 20, 2026, the Supreme Court denied Kanayama’s emergency application for a stay of extradition. Following the Supreme Court’s denial of Kanayama’s emergency application for a stay of extradition, Assistant United States Attorney Michael D. Maimin spoke with counsel for Kanayama—Jeffrey Lichtman, Esq., and Jeffrey Einhorn, Esq.— about surrendering Kanayama for extradition. On February 9, 2026, Mr. Einhorn agreed that Kanayama would surrender on March 2, 2026, so that he could be extra- dited to Japan on March 38, 2026. Apparently, on December 29, 2025, Kanyama had filed an application for asy- lum and withholding of removal. Kanayama v. Kowal, No. 26 Civ. 1402 (JPO), Dkt. 1, Ex. A (S.D.N.Y. Feb. 19, 2026). Messrs. Lichtman and Einhorn did not tell AUSA Maimin about this application, including when they agreed Kanayama would surren- der. Rather, on February 19, 2026—ten days after Messrs. Lichtman and Einhorn agreed that Kanayama would surrender on March 2, 2023—rnew counsel for Ka- nayama—]Michael Zigismund, Esq.—tiled a new petition for habeas, asking a new

Judge—the Honorable J. Paul Oetken, United States District Judge'—to “set aside the original court’s certification of the government’s request in this matter.” Id., Dkt. 1 at 11. Nobody told AUSA Maimin about this latest petition for habeas.” Yesterday, on February 23, 2026, the Supreme Court denied Kanayama’s pe- tition for a writ of certiorari. See Kanayama, No. 25-715.

'The latest habeas petition is related to the prior habeas petition, as it is a civil action in which: (A) “the actions concern the same or substantially similar parties, property, transactions, or events”; (B) there is substantial factual overlap”; (C) “the parties could be subject to conflicting orders”; and (D) absent a determination of relatedness there would be substantial duplication of effort and expense, delay, or undue burden on the court, parties, or witnesses.” , in the normal course, it would be assigned to Judge McMahon, who is familiar with Kanayama’s extradition arguments and his- tory. Rule 13(a)(1) of the Rules for the Division of Business Among District Judges, Southern District of New York (the “Division Rules”). Accordingly, the new habeas petition was supposed to “be forwarded to the judge before whom the allegedly related case, appeal, or motion having the lowest docket number is or was pending”—either Judge McMahon (in front of whom the original habeas was pending) or Judge Ramos (in front of whom the original extradition proceeding was pending)—“who shall decide whether to accept or reject the case.” Division Rule 13(b)(2). However, in filing his new petition, where the Civil Cover Sheet asked “[h]as this action, case, or proceed- ing, or one essentially the same, been previously filed in SDNY at any time?,” Ka- nayama incorrectly checked “No.” Kanayama, No. 26 Civ. 1402 (JPO), Dkt. 1-2 (S.D.N.Y. Feb. 19, 2026). Accordingly, the Court’s clerks wheeled the case out to a new judge: Judge Oetken. 2 Also on February 19, 2026, AUSA Maimin emailed Messrs. Lichtman and Einhorn to ask for an update regarding Kanayama’s medical needs for extradition; Mr. Ein- horn explained that he would follow up without mentioning the asylum application or latest habeas petition. Indeed, on February 24, 2026, Mr. Einhorn confirmed the surrender date of March 2, 2026, without mentioning the asylum application or latest habeas petition. Messrs. Lichtman and Einhorn are well-known before this Court and are not counsel of record on the latest habeas petition; it is possible they did not know that Kanayama retained new counsel to attempt to further delay his extradition.

Argument As set forth in the Second Circuit’s opinion, pursuant to 18 U.S.C. § 3184, an extradition judge conducts a hearing to “consider only ‘whether a valid treaty exists; whether the crime charged is covered by the relevant treaty; and whether the evi- dence marshaled in support of the complaint for extradition is sufficient under the applicable standard of proof.” Kanayama, 2025 WL 3210986, at *1 (quoting Cheung v. United States, 213 F.3d 82, 88 (2d Cir. 2000)). If those requirements are met, the judge “shall certify” his finding to the Secretary of State, who then decides whether to surrender the fugitive pursuant to 18 U.S.C. § 3184 and the relevant treaty. See Kapoor v. Demarco, 132 F.4th 595,601 (2d Cir. 2005) (citing 18 U.S.C. § 3184). 18 U.S.C. § 3184 unequivocally mandates that fugitives who have been certi- fied as extraditable be brought into custody until surrender can be effected. See 18 U.S.C. § 3184 (providing extradition judge who has certified fugitive as extraditable “shall issue [a] warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made”). Indeed, in Wright v. Henkel, 190 U.S. 40 (1903), the seminal case on bail in international extradition proceedings, the Supreme Court expressly recognized that the plain language of the federal extradition statute “is inconsistent with [the] allowance [of a fugitive’s release on bail] after committal.” 190 U.S. 40, 62 (1903). As the Court explained: The demanding government, when it has done all that the treaty and the law require it to do, is entitled to the deliv- ery of the accused on the issue of the proper warrant, and the other government is under obligation to make the sur- render; an obligation which it might be impossible to fulfill if release on bail were permitted. The enforcement of the bond, if forfeited, would hardly meet the international

demand; and the regaining of the custody of the accused obviously would be surrounded with serious embarrass- ment. Id. In 2018, the Supreme Court held that 18 U.S.C. § 1226(c)—which uses similar language and provides that the Attorney General “shall take [certain aliens} into custody” and may release those aliens only under narrow specified circumstances— “expressly prohibits release from ... detention,” t.e., it precludes release on bond de- spite lack of explicit statutory reference to bond. Jennings v. Rodriguez, 583 U.S. 281, 289, 303-04 (2018). Accordingly, a fugitive to be extradited typically is held in custody throughout the judicial phase of the extradition process, particularly after the certi- fication decision under 18 U.S.C. § 3184. Kanayama’s detention now is necessary because the Secretary of State has au- thorized his surrender, and Kanayama’s extradition is not subject to any stay;’ ac- cordingly, there are no legal impediments to surrender. Additionally, the United States has informed the Government of Japan of the Second Circuit’s affirmance, and coordination of surrender logistics is underway. The physical surrender of a fugitive for extradition typically is carried out by the U.S. Marshals Service, which coordi- nates transfer of custody of the fugitive to be surrendered to the foreigri authorities. In order to effect the surrender, the fugitive must be detained beforehand so as to ensure that he will be available for the transfer of custody, as well as to ensure the safety and security of those involved in executing the surrender.

3 Indeed, the Supreme Court has now twice denied Kanayama’s requested stays of extradition.

Although fugitives to be extradited typically are held in custody throughout the judicial phase of the extradition process, here, Kanayama was released on bond in 2017, and has remained on release since that time. Under the unusual circum- stances present here, where the fugitive to be extradited is not yet in custody at the time of the Department of State’s surrender decision, the fugitive must be taken into custody prior to the departure of the foreign authorities to the United States to ensure that the fugitive is available for the transfer of custody and to ensure the safety, se- curity, and well-being of those involved. If the Court remands Kanayama, he will be taken into custody by the U.S. Marshals Service, and the government will arrange for his transfer to the custody of Japanese authorities. It is the usual practice of the United States to surrender a fu- gitive to the requesting country as expeditiously as possible after the Secretary of State has issued a surrender warrant when no legal impediments to surrender exist. Thus, pursuant to 18 U.S.C. § 3184, the Secretary of State’s surrender decision, and the Treaty, this Court should order Kanayama remanded into custody pending the arrival of duly authorized representatives from Japan. IV. Conclusion For the foregoing reasons, the government respectfully requests that the Court issue an order that the U.S. Marshals Service take Kanayama into custody for

purposes of extradition and surrender to Japan, and that such order supersede and revoke any prior bail or release order or agreement.

Dated: New York, New York February 24, 2026 Respectfully submitted, JAY CLAYTON United States Attorney Southern District of New York

By: __ Ariel Cohen Michael D. Maimin Assistant U.S. Attorneys (212) 637-2416 / -2340