1 Stay
1 Stay
1 Stay
No. 18-14328
In the
United States Court of Appeals
for the Eleventh Circuit
Appellant,
v.
Appellee.
and entities interested in this appeal, as required by Eleventh Circuit Rule 26.1.
Bascuas, Ricardo J.
Doyle, Lauren
Emery, Robert
Greenberg, Benjamin
Haciski, Rebecca
Smachetti, Emily
Smith, Christopher
ii
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The Court having set this case for oral argument, Andres Arias Leiva
Facts
This is an appeal from the district court’s denial of a writ of habeas corpus
sought by Andres Arias Leiva, the former Minister of Agriculture and Rural
Federal Detention Center at Miami and separated from his wife and children
for the past 17 months pursuant to Colombia’s request for his extradition.
After a failed bid to win the presidency of Colombia, Minister Arias was
targeted, along with other former high government officials, by President Juan
as “politicized.” EC-DE85:8–9. His trial was conducted by judges who, the U.S.
Drug Enforcement Administration later found, were taking bribes for judicial
rulings at the time of Minister Arias’ trial. See Appellant’s Brief at 4, 16–17.
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jurisdiction over its extradition request. It did not invoke the 1979 Treaty, which
Minister Arias appealed and sought a stay of the certification order, first
from the district court and then from this Court. The district court found that
Minister Arias had not shown a likelihood of success on the merits only because
regarding the validity of the 1979 Treaty was entitled to decisive weight.
DE48:2–3. It correctly found that Minister Arias would suffer irreparable harm
without a stay. DE48:3. It erroneously found that Colombia had “not manifested
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difference. DE48:4.
On December 21, 2018, this Court summarily affirmed the district court’s
denial of the stay. The order stated only that Minister Arias failed to make the
showing required by Nken v. Holder, 556 U.S. 418, 434 (2009), but did not
explain how he fell short. It did not review any of the traditional factors or the
Since then, new evidence has come to light. On January 16, 2019, the
United States referenced in another case “a document from the United States
Colombia and the United States have not had a mutually recognized
extradition treaty since 1986. ...
The [U.S. government] maintains that the treaty is valid, but
[the government of Colombia]’s refusal to recognize it has forced
the [U.S. government] to follow Colombian extradition laws when
submitting requests to the [government of Colombia].
18, 2019. The respondents have not disputed the significance of this document
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A month after Minister Arias filed this document, this Court set this
appeal for expedited oral argument on March 14, 2019. Without a stay of
extradition, the respondents can extinguish this Court’s lawful jurisdiction and
Minister Arias, a victim of a political purge who never committed any crime, will
constitutional function. The public interest favors having this Court resolve
important issues that have bedeviled and confused the district court in this and
Memorandum of Law
This Court’s prior denial of Minister Arias’ motion to stay the order
certifying extradition stated only that the motion failed to make the “requisite
showing” and cited Nken v. Holder, 556 U.S. 418, 434 (2009). Nken was a
and Immigrant Responsibility Act of 1996. That statute has nothing to do with
this case because Minister Arias legally came to the United States, with the
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relevant to this case, Nken held that the IIRIRA did not curtail a court’s
inherent authority “to hold an order in abeyance while it assesses the legality
of the order ... .” 556 U.S. at 426. It reaffirmed that four factors guide a court’s
discretion in considering the merits of a stay: “(1) whether the stay applicant
has made a strong showing that he is likely to succeed on the merits; (2)
whether [he] will be irreparably injured absent a stay; (3) whether issuance of
the stay will substantially injure the other parties ...; and (4) where the public
interest lies.” Id. at 434 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).
is in the interest of justice is entitled to one. “The fact that the issuance of a stay
is left to the court’s discretion ‘does not mean that no legal standard governs
but to its judgment; and its judgment is to be guided by sound legal principles.’”
Id. at 434 (quoting Martin v. Franklin Capital Corp., 546 U.S. 132, 139 (2005)).
helps promote the basic principle of justice that like cases should be decided
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(1) The evidence that the 1979 Treaty is unratified is overwhelming. See
concede that they can not win this case unless the Court ignores the evidence
court found. DE48:3. Colombia would force him to serve a baseless 17-year
prison sentence handed down by a tribunal found by two separate United States
(3) The respondents will not suffer any injury for allowing the federal
(4) The public interest favors having this Court review the fundamental
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no extradition treaty in effect between the United States and Colombia. That
document thus confirms what this Court has held numerous times. United
States v. Valencia-Trujillo, 573 F.3d 1171, 1179 n.1 (CA11 2009) (“[T]he
Colombian Supreme Court declared the law ratifying the treaty invalid.”);
United States v. Duarte-Acero, 296 F.3d 1277, 1279 (CA11 2002) (“[T]he Corte
1302 n.1 (CA11 2000) (“[T]he treaty lacks force in Colombia.”). These holdings
are not only binding but were made in reliance on the government’s
United States can extradite a person for a foreign crime only pursuant to a valid
treaty. See 18 U.S.C. § 3184; Terlinden v. Ames, 184 U.S. 270, 280 (1902)
(stating that extradition court had jurisdiction only “if there was a treaty”);
Benson v. McMahon, 127 U.S. 457, 463 (1888) (referring to the extradition
statute as the “act of congress conferring jurisdiction upon the ... examining
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(EDPA June 13, 2014) (holding that an extradition court’s authority depends on
whether “there is a valid extradition treaty between the United States and [the
habeas case that it did not ratify the 1979 Extradition Treaty. That Treaty is
judge rejecting, Minister Arias’ arguments regarding the Treaty’s invalidity has
request under the Treaty. See Appellant’s Brief at 24–27. It did not even request
several — the respondents refuse to say exactly how many — U.S. extradition
surrendered a notorious drug dealer to Venezuela rather than the United States
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because of the lack of a valid treaty: “We have an extradition agreement with
Venezuela, not with the United States. This is something that people don’t
know.” DE12:17.
to appear to explain his reasoning. See Appellant’s Brief at 18 & 41. His
fact, that Treaty provision is mentioned only in Minister Arias’ filings.) His
declaration also did not explain how the Treaty could possibly be in force when
Colombia never ratified it. See Flores v. Southern Peru Copper Corp., 414 F.3d
233, 256 (CA2 2003) (“A State only becomes bound by — that is, becomes a
[A] great majority of the people of this country were opposed to the
doctrine that the President could arrest, imprison, and surrender,
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a fugitive, and thereby execute the treaty himself; and they were
still more opposed to an assumption that he could order the courts
of justice to execute his mandate, as this would destroy the
independence of the judiciary, in cases of extradition, and which
example might be made a precedent for similar invasions in other
cases; and from that day to this, the judicial power has acted in
cases of extradition, and all others, independent of executive
control.
Both the Extradition Court and the Habeas Court accorded the State
46 U.S. (5 How.) 176, 188–89 (1847) (“Whether the crime charged is sufficiently
proved, and comes within the treaty, are matters for judicial decision; and the
executive, when the late demand of the surrender of Metzger was made, very
(emphasis added)); DeSilva v. DiLeonardi, 125 F.3d 1110, 1113 (CA7 1997)
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purely legal issue of whether the Extradition Treaty ever entered into force
according to its own terms and thus became a part of “the supreme law of the
land.” U.S. Constitution art. VI cl. 2. See Baker v. Carr, 369 U.S. 186, 211–12
(1962) (holding that “a court can construe a treaty and may find it provides the
353–54 (2006) (“If treaties are to be given effect as federal law under our legal
the province and duty of the judicial department,’ headed by the ‘one supreme
996–97 (CA9 2005) (holding that whether the United States could enter into an
extradition treaty with Hong Kong was a justiciable legal question). The
Brief at 23–29.
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a stay unless the respondents can show that “the second and fourth factors in
the traditional stay analysis militate against” the requested relief. Hilton, 481
denied a stay. DE48:3–4. Unlike the movant in Nken, Minister Arias will not be
able to come back to the United States and pursue the pending application for
him, his wife, and his two young children. The movant in Nken was being
of their return, along with restoration of the immigration status they had upon
removal.” Nken, 556 U.S. at 435. Because Minister Arias is, in contrast, sought
pursuant to an extradition request, this appeal — along with his family’s asylum
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weight. This Court previously rejected Minister Arias’ petition for a writ of
Felipe Arias Leiva, No. 17-10946. That denial was dependent on Minister Arias
being able to obtain relief in this appeal. See Order (5 Apr 2017) (attached)
obtain the relief he seeks.”). Without a stay, the basis for the denial of the writ
contradicts its earlier representation that this Court would be able to review
overwhelmingly favors his position, and the respondents can not show that the
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second traditional factor favors their position, much less “militates against” the
stay. Hilton, 481 U.S. at 778. Therefore, Minister Arias has established that he
III. A stay will not cause the respondents or Colombia any concrete harm,
as Colombia’s ambassador to the United States has conceded.
Neither the respondents nor Colombia, the real party in interest in this
case, can identify any harm to themselves from a stay. The respondents, as
federal government officials, can not seriously claim that allowing the federal
judiciary to review Minister Arias’ substantial claims will harm them. “It takes
time to decide a case on appeal. Sometimes a little; sometimes a lot.” Nken, 558
U.S. at 421. The respondents, having taken an oath to support the U.S.
pending his appeal. See Exhibit A (Letter from His Excellency Francisco Santos
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certification will affect Colombia’s interest in this case. Minister Arias is wanted
only to serve his sentence in Colombia. See Appellant’s Brief at 7–9. There is no
Finally, a delay to allow this Court to do its work will have no effect on the
requests on the ground that there is no extradition treaty in force. Even during
continued its usual practice of denying these requests in its sole discretion:
charged in the Middle District of Florida with drug trafficking since 2010.
extradite Julio Lemos Moreno and released him. Lemos was indicted in New
York for kidnaping Cecilio Padron, a Miami resident and director of the Cuban
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Yama Guacanes, who was indicted in the Southern District of New York for
conspiring to manufacture and sell cocaine and for possessing grenades and an
drug trafficking, and possession of an anti-tank RPG launcher do not harm the
The district court failed to recognize the public interest, reasoning that
raising “‘serious questions’ worthy of appellate review’ ... is insufficient ... where
[the petitioner] has failed to show likelihood of success on the merits.” DE48:4.
Minister Arias’ initial brief exposes the desperate need for guidance from
extradition court does not sit pursuant to Article III. See, e.g., DE32:10
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(misconstruing Martin v. Warden, 993 F.2d 824, 828 (CA11 1993), which held
only that “an extradition proceeding is not an ordinary Article III case or
controversy”). Kaine and Metzger clearly hold that extradition actions are
Article III cases. The widespread confusion about that basic matter in this
district has serious due-process ramifications for any extradition relator in the
district. For example, because of that fundamental error, the Extradition Court
in this case refused to independently assess the Treaty’s validity and also to
judicial officers in this district can not dispense due process and justice if they
This case also involves American courts taking sides in a political dispute
government. See Appellant’s Brief at 3–5 & 60–62. The public has a particularly
strong interest in ensuring that the law is correctly applied in such a case
because American courts should not be used to settle foreign power struggles.
This is especially so in this case given that the other former Colombian high
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Arias to the United States have been granted asylum in Canada and Italy, which
are both close U.S. allies. See Appellant’s Brief at 4 & 51.
Conclusion
“The choice for a reviewing court should not be between justice on the fly
conceding that “Colombia and the United States have not had a mutually
recognized extradition treaty since 1986,” Minister Arias has demonstrated his
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Word Limit. I certify that this brief complies with the type-volume
Service. I certify that on February 21, 2019, this motion was filed with the
Clerk of the Court using CM/ECF; that it was served upon the respondents’
Respectfully submitted,
_______________________________ _______________________________
David Oscar Markus Ricardo J. Bascuas
Florida Bar No. 119318 Florida Bar No. 093157
Lauren Doyle 1311 Miller Drive
Florida Bar No. 117687 Coral Gables, Florida 33146
Markus/Moss PLLC 305-284-2672
40 N.W. Third Street Penthouse
One Miami, Florida 33128
305-379-6667
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