Case: 18-14328 Date Filed: 02/21/2019 Page: 1 of 21

No. 18-14328

In the
United States Court of Appeals
for the Eleventh Circuit

Andres Arias Leiva,

Appellant,

v.

Robert Wilson, Warden,

Appellee.

On Appeal from the United States District Court

for the Southern District of Florida

Appellant Andres Arias Leiva’s

Second Motion for Stay of Extradition Pending Appeal

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 NW Third Street, Penthouse One
Miami, Florida 33128
305-379-6667

Counsel for Appellant

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CERTIFICATE OF INTERESTED PERSONS

AND CORPORATE DISCLOSURE STATEMENT

Appellant Andres Arias Leiva files this Certificate of Interested Persons

and Corporate Disclosure Statement, listing in alphabetical order the parties

and entities interested in this appeal, as required by Eleventh Circuit Rule 26.1.

Arias Leiva, Andres

Bascuas, Ricardo J.

Doyle, Lauren

Emery, Robert

Fajardo Orshan, Ariana

Greenberg, Benjamin

Haciski, Rebecca

King, The Hon. James L.

Markus, David Oscar

O’Sullivan, The Hon. John J.

Santos, Juan Manuel

Smachetti, Emily

Smith, Christopher

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Appellant Andres Arias Leiva’s

Second Motion for Stay of Extradition Pending Appeal

The Court having set this case for oral argument, Andres Arias Leiva

again moves for a stay of extradition pending appeal and states:

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

Development of the Republic of Colombia. Although he has never committed

any crime, Minister Arias has been unconstitutionally incarcerated in the

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

Manuel Santos, a political rival with a controversial agenda of negotiating with

a terrorist organization. See Appellant’s Brief at 3–8. Minister Arias was

convicted through proceedings that the U.S. Embassy at Bogota characterized

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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Colombia failed to establish that any U.S. court had subject-matter

jurisdiction over its extradition request. It did not invoke the 1979 Treaty, which

it considers unratified. EC-DE53:18. Colombia also failed to adduce any

competent evidence in support of its request. It is undisputed that the only

evidence it submitted was the opinion of a biased and corrupt tribunal.

Nonetheless, a magistrate judge certified that there was probable cause to

believe that Minister Arias committed an extraditable offense, EC-DE110, and

the habeas court affirmed that certification, DE32 & DE37.

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

it erroneously believed that “the view of the U.S. Department of State”

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

a lack of urgency,” although Colombia repeatedly sought and obtained

continuances. DE48:4. Finally, it did not address the public interest,

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erroneously reasoning that, in light of the State Department’s view, it made no

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

record evidence, which overwhelmingly favors Minister Arias’ position.

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

Department of State concerning the existence of a United States-Colombia

extradition treaty.” Brief for the United States, United States v.

Valencia-Trujillo, No. 17-15745, at 10 (Jan. 16, 2019). It 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].

Minister Arias filed the document as supplemental authority on January

18, 2019. The respondents have not disputed the significance of this document

or even responded to its filing.

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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

moot this appeal by illegally rendering Minister Arias to Colombia. A stay is

therefore merited. The new evidence confirms there is no treaty in force.

Minister Arias, a victim of a political purge who never committed any crime, will

be irreparably harmed if he is sent to Colombia to serve a baseless 17-year

sentence. No party will be harmed by allowing this Court to perform its

constitutional function. The public interest favors having this Court resolve

important issues that have bedeviled and confused the district court in this and

other extradition cases.

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

challenge to a removal order issued pursuant to the Illegal Immigration Reform

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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support and assistance of the U.S. Embassy at Bogota, to seek asylum. As it is

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)).

A litigant who shows, by addressing the four considerations, that a stay

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

that discretion. A motion to a court’s discretion is a motion, not to its inclination,

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)).

“Discretion is not whim, and limiting discretion according to legal standards

helps promote the basic principle of justice that like cases should be decided

alike.” Martin, 546 U.S. at 139.

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In light of all the evidence — including the newly uncovered State

Department admission that there is no extradition treaty in effect between

Colombia and the United States — Minister Arias is entitled to a stay:

(1) The evidence that the 1979 Treaty is unratified is overwhelming. See

Appellant’s Brief at 23–36; Corrected Reply Brief at 1–2. The respondents

concede that they can not win this case unless the Court ignores the evidence

and just defers to its position. See Respondents’ Brief at 23–29.

(2) Unlike the movant in Nken, Minister Arias would be irreparably

harmed if the respondents illegally rendered him to Colombia, as the district

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

agencies to be corrupt and politicized. See Appellant’s Brief at 4, 16–17.

(3) The respondents will not suffer any injury for allowing the federal

judiciary to do its job. Colombia obtained repeated extensions of time to bolster

its case for extradition.

(4) The public interest favors having this Court review the fundamental

separation-of-powers and other constitutional issues this case raises.

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I. Minister Arias is likely to succeed on the merits.

As the newly discovered State Department document confirms, there is

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

Suprema de Justicia annulled the extradition treaty altogether, finding its

ratification unconstitutional.”); Gallo-Chamorro v. United States, 233 F.3d 1298,

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

representations to this Court. See Appellant’s Corrected Reply Brief at 3–5.

Without a treaty, the Extradition Court lacked jurisdiction because the

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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officer”); In re Extradition of Mejuto, No. 14-M-515, 2014 WL 2710948, at *3

(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

requesting country] that is in force through appropriate enabling legislation”).

Colombia steadfastly maintained throughout the extradition case and this

habeas case that it did not ratify the 1979 Extradition Treaty. That Treaty is

expressly “subject to ratification.” Treaty art. 21(1). No lawyer opposing, or

judge rejecting, Minister Arias’ arguments regarding the Treaty’s invalidity has

ever even mentioned Article 21 because that provision alone conclusively

entitles Minister Arias to habeas relief.

Because, as the State Department document proves, Colombia considers

the Treaty unratified, Colombia never makes or acts upon an extradition

request under the Treaty. See Appellant’s Brief at 24–27. It did not even request

Minister Arias’ extradition under the Treaty. EC-DE53:18. It has refused

several — the respondents refuse to say exactly how many — U.S. extradition

requests solely because there is no treaty in force. See Appellant’s Brief at

30–35. President Santos himself even publicly explained that Colombia

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.

The Extradition Court and the Habeas Court determined extradition

would be lawful only because they erroneously deferred to a State Department

lawyer’s unsupported declaration that the 1979 Treaty is in force. DE37:1;

DE32:16; EC-DE110:11; accord Respondents’ Brief at 23. That lawyer refused

to appear to explain his reasoning. See Appellant’s Brief at 18 & 41. His

declaration ignored that the Treaty is expressly “subject to ratification.” (In

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

party to — a treaty when it ratifies the treaty.”).

A Supreme Court case directly on point leaves no room to doubt that

these courts erred in deferring to the Executive Branch’s unsupported legal

opinions on the legal sufficiency of Colombia’s extradition request:

[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.

In re Kaine, 55 U.S. 103, 112–13 (1852) (emphasis added; discussed in

Appellant’s Corrected Reply Brief at 16).

Both the Extradition Court and the Habeas Court accorded the State

Department total deference because they mistakenly believed, without

justification or authority, that an extradition action is not an Article III case.

DE32:10; EC-DE110:6. Kaine leaves no doubt that it is. Accord In re Metzger,

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

properly as we suppose, referred it to the judgment of a judicial officer.”

(emphasis added)); DeSilva v. DiLeonardi, 125 F.3d 1110, 1113 (CA7 1997)

(holding that an extradition proceeding is “an Article III case or controversy”);

Ward v. Rutherford, 921 F.2d 286, 287 (CADC 1990) (same).

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Consequently, the State Department was entitled to no deference on the

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

answer” to whether it is in force); Sanchez-Llamas v. Oregon, 548 U.S. 331,

353–54 (2006) (“If treaties are to be given effect as federal law under our legal

system, determining their meaning as a matter of federal law ‘is emphatically

the province and duty of the judicial department,’ headed by the ‘one supreme

Court’ established by the Constitution.”); Wang v. Masaitis, 416 F.3d 992,

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

respondents’ position, even in this Court, entirely depends on this Court

ignoring numerous Supreme Court precedents — including Kaine, Metzger,

Baker, and Sanchez-Llamas — and according abject deference to a State

Department lawyer’s opinion on a question of federal law. See Respondents’

Brief at 23–29.

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Given the strength of Minister Arias’ case on the merits, he is entitled to

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

U.S. at 778 (emphasis added). To “militate against” a circumstance means to be

a “powerful or conclusive factor in preventing” it. New Oxford American

Dictionary (2018). The respondents can not make that showing.

II. Minister Arias will be irreparably harmed without a stay because he

will be made to serve a baseless 17-year sentence.

As the district court found, Minister Arias faces irreparable harm if he is

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

removed on immigration grounds, not extradited to serve a sentence. People

removed for immigration reasons “can be afforded effective relief by facilitation

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

petition — will be mooted if he is surrendered to serve the baseless sentence of

a corrupt court. Those harms can not be remedied later.

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Moreover, under the circumstances, this consideration deserves decisive

weight. This Court previously rejected Minister Arias’ petition for a writ of

prohibition to stop the unauthorized extradition proceeding. See In re Andreas

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)

(“Andres Arias Levia’s Petition for a Writ of Prohibition is DENIED, as

Petitioner has failed to demonstrate that he lacks another adequate means to

obtain the relief he seeks.”). Without a stay, the basis for the denial of the writ

of prohibition disappears. Respondents’ counsel’s opposition to the stay

contradicts its earlier representation that this Court would be able to review

Minister Arias’ claims in this appeal:

Although the Extradition Court’s certification decision is itself not

a final order and therefore not subject to direct appeal, a limited
collateral review of its order is available through habeas corpus
review by the district court. The scope of permissible review
specifically includes whether the Extradition Court had jurisdiction.
... This is not a case where “appellate review will be defeated if a
writ does not issue.”

Response Brief, In re Arias Leiva, No. 17-10946, at 14–15. (citations omitted).

Minister Arias is entitled to a stay without more. The evidence

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

is entitled to the stay under Hilton.

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.

Constitution, have no basis for short-circuiting the judicial process.

Neither Colombia nor the U.S.-Colombian relationship will incur any

injury from affording Minister Arias his right to an appeal. Colombia’s

ambassador to the United States wrote to the respondents’ attorney to advise

that Colombia opposes Minister Arias’ continued incarceration in the Federal

Detention Center, an urban facility designed for short-term incarceration,

pending his appeal. See Exhibit A (Letter from His Excellency Francisco Santos

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Calderon). This letter corroborates that Colombia has no objection to allowing

the American judicial process to run its course.

Additionally, there is no chance at all that a stay of the extradition

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

danger of spoliation of evidence or similar harm to Colombia vis-a-vis its case

against Minister Arias.

Finally, a delay to allow this Court to do its work will have no effect on the

U.S.-Colombia relationship because Colombia routinely denies U.S. extradition

requests on the ground that there is no extradition treaty in force. Even during

the pendency of Colombia’s request for Minister Arias’ extradition, Colombia

continued its usual practice of denying these requests in its sole discretion:

! On February 22, 2017, Colombia denied a U.S. extradition request to

extradite Hemer Gonzalez-Rivas to the United States. Gonzalez-Rivas was

charged in the Middle District of Florida with drug trafficking since 2010.

! On May 31, 2017, Colombia denied the United States’ request to

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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American National Foundation, in 2008. Mr. Padron’s family paid a ransom to

keep Lemos from murdering him.

! In April 2018, Colombia denied a U.S. request to extradite Jose Martin

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

anti-tank rocket propelled grenade launcher in furtherance of drug trafficking.

If Colombia’s outright denials of U.S. extradition requests for kidnaping,

drug trafficking, and possession of an anti-tank RPG launcher do not harm the

the U.S.-Colombia relationship, a brief stay to preserve the appellate rights of

a man charged only with non-violent offenses certainly will not.

IV. A stay is in the public interest.

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

this Court on fundamental questions. No fewer than three magistrate judges in

the Southern District of Florida are now on record as believing that an

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

independently weigh Colombia’s evidence of probable cause. EC-DE110:18. The

judicial officers in this district can not dispense due process and justice if they

fundamentally misunderstand the nature of an extradition case.

This case also involves American courts taking sides in a political dispute

between dueling political factions and successive administrations of a foreign

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

government officials fleeing the political persecution that brought Minister

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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

or participation in what may be an ‘idle ceremony.’” Nken, 556 U.S. at 427

(2009). Especially in light of the newly uncovered State Department document

conceding that “Colombia and the United States have not had a mutually

recognized extradition treaty since 1986,” Minister Arias has demonstrated his

entitlement to a stay under Nken and Hilton.

WHEREFORE Minister Arias respectfully requests that the extradition

court’s certification of extradition be stayed pending resolution of Minister

Arias’ appeal in this Court.

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CERTIFICATES OF COMPLIANCE AND SERVICE

Word Limit. I certify that this brief complies with the type-volume

limitation of Federal Rule of Appellate Procedure 32(a)(7) because its numbered

pages contain 3,663 words.

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’

counsel through that system.

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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