Neringa Venckiene v. United States

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 18-2529

NERINGA VENCKIENE,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:18-CV-3061 — Virginia M. Kendall, Judge.

____________________

ARGUED NOVEMBER 27, 2018 — DECIDED JULY 15, 2019

____________________

Before BAUER, HAMILTON, and BARRETT, Circuit Judges.

HAMILTON, Circuit Judge. Lithuania seeks extradition of pe-

titioner Neringa Venckiene from the United States to prose-

cute her for several alleged offenses arising from a custody

battle over Venckiene’s niece. After a hearing pursuant to 18

U.S.C. § 3184, a magistrate judge certified Venckiene as extra-

ditable and the Secretary of State granted the extradition.

Venckiene moved the magistrate judge for a temporary stay

of her extradition, which was granted. She then filed a petition

2 No. 18-2529

for a writ of habeas corpus in the district court challenging

both the magistrate judge’s certification order and the Secre-

tary’s decision. She also asked the district court to stay her ex-

tradition, but the district court denied that request.

In her habeas corpus petition, Venckiene claims the mag-

istrate judge erred in two ways: failing to apply the political

offense exception in the Lithuania-United States extradition

treaty to her case, and finding probable cause that she was

guilty of the offenses charged. Venckiene also claims that the

Secretary of State’s decision to grant the extradition violated

her constitutional right to due process and failed to consider

that Venckiene might be subject to what we have called “par-

ticularly atrocious procedures or punishments,” see In re Burt,

737 F.2d 1477, 1487 (7th Cir. 1984), if she is returned to Lithu-

ania.

This appeal challenges directly only the district judge’s de-

nial of Venckiene’s request to extend the stay of her extradi-

tion, but that challenge necessarily implicates the merits of

her habeas petition. We affirm the district court’s denial of a

stay. In Part I, we explain the extradition process, including

the applicable treaty provisions and the limited scope of the

judicial role. In Part II, we summarize what we know about

events in Lithuania leading to this case. In Part III, we review

the United States legal proceedings thus far. In Part IV, we an-

alyze the legal issues presented, considering in Part IV-A

Venckiene’s challenges to the magistrate judge’s order and in

Part IV-B her challenges to the Secretary’s decision, and fi-

nally in Parts IV-C and IV-D other factors relevant to

Venckiene’s stay request.

No. 18-2529 3

I. The Extradition Process

A. The Lithuania-U.S. Extradition Treaty

International extradition is first and foremost a creature of

treaties. Under the extradition treaty between the United

States and Lithuania, an offense is extraditable “if it is punish-

able under the laws in both States by deprivation of liberty for

a period of more than one year or by a more severe penalty.”

Extradition Treaty, Lithuania-United States, art. II, § 1, March

31, 2003, T.I.A.S. No. 13166. The treaty makes an exception,

however, “if the offense for which extradition is requested is

a political offense,” art. IV, § 1, a term not defined in the treaty.

The treaty also specifies what the requesting party must pro-

vide to obtain extradition of a person accused of an extradita-

ble offense:

3. A request for extradition of a person who is

sought for prosecution also shall include:

(a) a copy of the warrant or order of arrest is-

sued by a judge, court, or other authority com-

petent for this purpose;

(b) a copy of the charging document; and

(c) such information as would provide a reason-

able basis to believe that the person sought com-

mitted the offense for which extradition is

sought.

Art. VIII, § 3.

B. The Judicial Role in Extradition

The judicial branch plays a central but limited role in the

extradition process, as laid out in statutes and case law. See

18 U.S.C. §§ 3184−3195; Burgos Noeller v. Wojdylo, 922 F.3d 797,

4 No. 18-2529

802 (7th Cir. 2019); Eain v. Wilkes, 641 F.2d 504, 508 (7th Cir.

1981). The process begins when a foreign government makes

a formal request to the United States government through

diplomatic channels. That request is forwarded to the Depart-

ment of Justice, which then ordinarily files a complaint and

seeks an arrest warrant from a judge. Burgos Noeller, 922 F.3d

at 802.

The person targeted by the request is entitled to a hearing

before a judge pursuant to 18 U.S.C. § 3184. The scope of in-

quiry at this hearing is limited: “the ‘judicial officer’s inquiry

is confined to the following: whether a valid treaty exists;

whether the crime charged is covered by the relevant treaty;

and whether the evidence marshaled in support of the com-

plaint for extradition is sufficient under the applicable stand-

ard of proof.’” Skaftouros v. United States, 667 F.3d 144, 154−55

(2d Cir. 2011), quoting Cheung v. United States, 213 F.3d 82, 88

(2d Cir. 2000). If the judge finds that these three conditions

have been satisfied and the accused is extraditable, the judge

must certify the extradition to the Secretary of State. The court

has no discretion. See Burgos Noeller, 922 F.3d at 803; Santos v.

Thomas, 830 F.3d 987, 992 (9th Cir. 2016) (en banc).

“The Secretary of State has ‘sole discretion to determine

whether or not extradition should proceed further with the

issuance of a warrant of surrender.’” Burgos Noeller, 922 F.3d

at 803, quoting Eain, 641 F.2d at 508; see 18 U.S.C. § 3186. In

making this decision, the Secretary is authorized to consider

factors that United States federal courts in extradition cases

cannot take into account. The executive branch has sole au-

thority to consider issues like the political motivations of a re-

questing country and whether humanitarian concerns justify

No. 18-2529 5

denying a request. See Burgos Noeller, 922 F.3d at 808; Hoxha

v. Levi, 465 F.3d 554, 563 (3d Cir. 2006).

Generally, the Secretary of State’s extradition decision is

not subject to judicial review. This circuit and others, how-

ever, have recognized an exception through which courts can,

at least in theory, consider claims that “the substantive con-

duct of the United States in undertaking its decision to extra-

dite … violates constitutional rights.” Burt, 737 F.2d at 1484;

see also Martin v. Warden, 993 F.2d 824, 829 (11th Cir. 1993)

(recognizing that constitutional rights are superior to treaty

obligations, but finding no violation of constitutional rights in

long-delayed extradition request); Plaster v. United States, 720

F.2d 340, 349 (4th Cir. 1983) (recognizing constitutional claims

but vacating grant of writ of habeas corpus). We said in Burt:

Generally, so long as the United States has not

breached a specific promise to an accused re-

garding his or her extradition and bases its ex-

tradition decisions on diplomatic considera-

tions without regard to such constitutionally

impermissible factors as race, color, sex, na-

tional origin, religion, or political beliefs, and in

accordance with such other exceptional consti-

tutional limitations as may exist because of par-

ticularly atrocious procedures or punishments

employed by the foreign jurisdiction, those de-

cisions will not be disturbed.

737 F.2d at 1487 (internal citations omitted) (affirming denial

of writ of habeas corpus).

Under the applicable statutes, the accused may not appeal

directly a judge’s order to certify her for extradition, but case

6 No. 18-2529

law has long recognized a limited form of appellate review

through a petition for a writ of habeas corpus. See Collins v.

Miller, 252 U.S. 364, 368−69 (1920); Burgos Noeller, 922 F.3d at

803; Eain, 641 F.2d at 508; In re Assarsson, 635 F.2d 1237,

1240−41 (7th Cir. 1980).

In such habeas corpus cases, however, courts generally

may consider only “whether the magistrate had jurisdiction,

whether the offence charged is within the treaty and, by a

somewhat liberal extension, whether there was any evidence

warranting the finding that there was reasonable ground to

believe the accused guilty,” i.e., probable cause. DeSilva v.

DiLeonardi, 125 F.3d 1110, 1112 (7th Cir. 1997) (reversing writs

of habeas corpus), quoting Fernandez v. Phillips, 268 U.S. 311,

312 (1925). Under this probable cause standard, the judge

must “determine whether there is competent evidence to jus-

tify holding the accused to await trial.” Sidali v. I.N.S., 107 F.3d

191, 199 (3d Cir. 1997), quoting Peters v. Egnor, 888 F.2d 713,

717 (10th Cir. 1989). It is not the magistrate’s role, however,

“to determine whether the evidence is sufficient to justify a

conviction.” Id. That is the job of the requesting country’s

courts.

II. The Events in Lithuania

In applying political offense exceptions to extradition trea-

ties, factual details matter, so we review events in some detail.

Neringa Venckiene worked as a judge in Lithuania from 1999

until 2012. Her brother was Drasius Kedys. Kedys had a

daughter with his then-girlfriend Laimute Stankunaite. As of

2008, the couple had separated and Kedys had full custody of

their daughter, Venckiene’s niece. Sometime in 2008, when

she was four years old, the girl told her grandmother that she

was being sexually abused by three men. The men were

No. 18-2529 7

eventually identified as public officials: Andrius Usas, an as-

sistant to the Speaker of the Lithuanian parliament, Jonas Fur-

manavicius, a Kaunas Regional Court Judge, and Vaidas

Milinis, the President of the Kaunas Regional Court.

Law enforcement authorities were notified about the girl’s

claims, but according to Venckiene, “the case was purpose-

fully delayed, investigations and complaints were ignored,

and the case shifted hands for months.” In response to these

delays, Venckiene wrote a book about the pedophilia case and

its stagnated investigation entitled Drasius’s Hope to Save the

Girl. Venckiene believes that what her niece experienced was

part of a larger pedophilia network in Lithuania. She thinks

that the Lithuanian network is related to a pedophilia scandal

that took place in Latvia in 2000 and in which several high-

ranking officials participated.

On October 5, 2009, Furmanavicius and Stankunaite’s sis-

ter were murdered. Lithuanian authorities suspected Kedys

of committing these crimes, but Kedys himself disappeared

soon after that. His body was eventually discovered on the

bank of a lagoon. The government declared his death acci-

dental, caused by alcohol-induced asphyxiation, but

Venckiene asserts that an independent criminologist found no

alcohol in Kedys’s system. Venckiene was awarded custody

of his daughter, her niece, pending resolution of the pedo-

philia case. In June 2010, Usas was also found murdered.

Venckiene continued to criticize corruption in Lithuania.

On November 17, 2010, in a conversation with journalists, she

publicly condemned the Lithuanian court system for its cor-

ruption. She asserts that the chairman of the Lithuanian Judi-

cial Council censured her for her comments and subjected her

to ethical hearings based on a charge of insulting or

8 No. 18-2529

humiliating the court. She further asserts that a pretrial inves-

tigation into whether she had actually broken any laws

through these comments was discontinued in January 2011

after the prosecutor found no evidence to suggest that she had

broken the law. Venckiene says, however, that in February

2011, the head of the Judicial Council successfully petitioned

to extend the statute of limitations on this charge of “humili-

ating the court.” In 2012, these comments were cited to sup-

port revoking Venckiene’s judicial immunity. According to

Lithuania, at some point in 2010, Venckiene also conducted

illegal surveillance on public individuals she suspected of pe-

dophilia and Stankunaite.

On December 16, 2011, a court ordered Venckiene to re-

turn her niece to the custody of her niece’s mother, Kedys’s

former girlfriend, Stankuanaite. The court ordered the trans-

fer on two separate occasions. Both times the girl refused to

go with her mother. On March 23, 2012, Stankunaite came to

Venckiene’s home with a bailiff and about 25 police officers to

execute the court’s order and take back her daughter. The at-

tempt was unsuccessful, and the girl was traumatized by the

incident. A video recording of the attempted seizure was

posted to the internet and received national attention. The

story alerted the public to the pedophilia incidents. Hundreds

of people began camping out around Venckiene’s home to

help protect the girl.

On May 17, 2012, the police again attempted to remove the

girl from Venckiene’s home. The criminal charges against

Venckiene relevant to this appeal are based on the events of

that date. Venckiene describes the encounter as violent. She

says that officers broke down her door and physically re-

moved her niece from her lap before covering the girl’s face

No. 18-2529 9

with a blanket soaked in psychotropic substances intended to

subdue her. Venckiene reports that she and several protesters

went to the hospital seeking treatment for injuries inflicted by

the officers. The police officers who executed the custody

transfer described Venckiene as aggressive and hysterical.

They said that she refused to allow the officers to communi-

cate with the girl and even punched one officer in the face.

After her niece was removed, Venckiene became more out-

spoken. She published another book, Way of Courage, which

covered the pedophilia case and leveled criticisms against the

Lithuanian judicial system, prosecution, and courts. On June

26, 2012, Venckiene’s judicial immunity was revoked. She

then resigned from her judicial position and became politi-

cally active. Her second book had inspired the creation of Way

of Courage, a political party that organized protests, circu-

lated petitions, and fostered dialogues on internet forums and

blogs. Venckiene became the face of the party during its cam-

paign for the October 2012 parliamentary election in Lithua-

nia. Way of Courage won seven seats in the election;

Venckiene was elected the party’s chair. Venckiene’s political

tenure was short-lived. The prosecutor general petitioned the

Lithuanian parliament to remove Venckiene’s parliamentary

immunity so that she could be arrested for charges related to

the May 17th removal of her niece. Venckiene’s parliamentary

immunity was in fact removed on April 13, 2013.

At some point in 2012, Venckiene was notified that she was

suspected of several criminal offenses. Venckiene refused to

accept formal service of process and went into hiding. On

April 8, 2013, Venckiene flew from Germany to the United

States. She applied for asylum immediately and has since

been living and working in Illinois.

10 No. 18-2529

III. Legal Proceedings in the United States

About five years after Venckiene fled to the United States,

Lithuania formally requested her extradition under the treaty.

The United States government filed a complaint in the North-

ern District of Illinois and obtained a warrant for Venckiene’s

arrest. She was arrested on February 13, 2018. The complaint

charged Venckiene with the following offenses:

1. Complicity in committing a criminal act (un-

lawful collection of information about a per-

son’s private life, i.e., stalking), in violation

of Lithuania Criminal Code Article 25;

2. Unlawful collection of information about a

person’s private life, i.e., stalking, in viola-

tion of Lithuania Criminal Code Article 167;

3. Hindering the activities of a bailiff, in viola-

tion of Lithuania Criminal Code Article 231;

4. Failure to comply with a court’s decision not

associated with a penalty, in violation of

Lithuanian Criminal Code Article 245;

5. Causing physical pain, in violation of Lithu-

ania Criminal Code 140(1); and

6. Resistance against a civil servant or a person

performing the functions of public admin-

istration, in violation of Lithuania Criminal

Code Article 286.

Magistrate Judge Daniel Martin held an extradition hear-

ing pursuant to 18 U.S.C. § 3184 and certified Venckiene as

extraditable for offenses three through six. The judge found

no probable cause to support the first two charges. Venckiene

No. 18-2529 11

was committed to the custody of the U.S. Marshal pending the

Secretary of State’s decision on her extradition and surrender.

On February 23, 2018, the same day Judge Martin certified

Venckiene for extradition, the government sent Venckiene’s

attorney a letter saying that Venckiene could seek review of

the magistrate judge’s order through a petition for a writ of

habeas corpus. The letter noted that if a habeas petition were

filed, Venckiene would not need to file a motion to stay the

Secretary of State’s review of her case. The Secretary’s review,

the letter explained, would be suspended automatically upon

the filing of the petition. His review would resume only if and

after the district court denied the petition. Absent such a ha-

beas filing, the letter continued, the Secretary would proceed

and render a decision.

The court sent the extradition documents to the Secretary

of State three days later, on February 26, 2018. On the same

day, Venckiene filed a motion to stay certification of her ex-

tradition proceedings pending the resolution of the habeas

corpus petition that she intended to file. The government ob-

jected on the ground that a stay was unnecessary. The gov-

ernment argued that the Secretary of State would not issue a

warrant of surrender until at least 30 days after the entry of

the extradition certification order, which meant that

Venckiene had 30 days to file a habeas petition, thereby auto-

matically suspending the Secretary’s review. The magistrate

judge denied Venckiene’s motion to stay.

Venckiene submitted additional materials to the Secretary

of State, but she did not file a petition for a writ of habeas cor-

pus. On April 20, 2018, the Secretary of State decided to sur-

render Venckiene for extradition. The Secretary did not pro-

vide specific reasons for his choice. His letter to Venckiene’s

12 No. 18-2529

counsel said that he had conducted “a review of all pertinent

information, including pleadings and filings submitted on be-

half of Ms. Venckiene.”

Two days later, on April 25, 2018, Venckiene filed another

motion asking the magistrate judge to stay certification of her

extradition or to set an additional hearing. The government

opposed the motion. Venckiene filed a petition for a writ of

habeas corpus in the district court on April 30, 2018. Her peti-

tion challenges both the magistrate judge’s order certifying

her extradition and the Secretary of State’s decision to allow

her extradition to proceed. On May 1, 2018, the magistrate

judge granted a temporary stay of Venckiene’s extradition

through May 10, 2018. On May 7, 2018, Venckiene filed a sep-

arate stay motion that asked the district court to extend the

stay granted by the magistrate judge. The district court deter-

mined that Venckiene was not likely to succeed on the merits

of her habeas petition and that none of the remaining stay fac-

tors supported her position. The district court therefore de-

nied the motion to extend the stay. Venckiene v. United States,

328 F. Supp. 3d 845, 869 (N.D. Ill. 2018).

IV. Legal Analysis

In deciding whether to stay a federal court decision (other

than a money judgment) while review proceeds, on appeal or

otherwise, courts consider the merits of the moving party’s

case, whether the moving party will suffer irreparable harm

without a stay, whether a stay will injure other parties inter-

ested in the proceeding, and the public interest. See Nken v.

Holder, 556 U.S. 418, 428 (2009); Hilton v. Braunskill, 481 U.S.

770, 776 (1987). The standard calls for equitable balancing,

much like that required in deciding whether to grant a pre-

liminary injunction or a temporary restraining order. See

No. 18-2529 13

Hilton, 481 U.S. at 777–78 (explaining that stronger showings

on some factors can offset weaker showings on others).

We review the district court’s denial of the stay for an

abuse of discretion. See Nken, 556 U.S. 418, 433 (2009); Judge v.

Quinn, 612 F.3d 537, 557 (7th Cir. 2010) (affirming denial of

preliminary injunction). We review findings of fact for clear

error. See Vo v. Benov, 447 F.3d 1235, 1240 (9th Cir. 2006)

(“Mixed questions are reviewed de novo, though . . . if the

determination is essentially factual . . . it is reviewed under

the clearly erroneous standard.”) (internal citation and quota-

tion omitted). Also, as a general rule, if a district court bases

an exercise of discretion on a legal error, it turns out to abuse

its discretion. E.g., Costello v. BeavEx, Inc., 810 F.3d 1045, 1057

(7th Cir. 2016), quoting Messner v. Northshore University

HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012); see also Cooter

& Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990) (“A district

court would necessarily abuse its discretion if it based its rul-

ing on an erroneous view of the law or on a clearly erroneous

assessment of the evidence.”).

We focus first on whether Venckiene is likely to prevail on

the merits of her habeas corpus petition, which challenges the

magistrate judge’s certification order on two grounds and the

Secretary of State’s extradition decision on two grounds.

Venckiene argues that the magistrate judge erred because she

is entitled to protection under the political offense exception

to the Lithuania-United States extradition treaty, and because

Lithuania failed to demonstrate probable cause that she com-

mitted the crimes for which extradition is sought. Venckiene

contends that the Secretary of State’s decision to surrender her

to Lithuania was in error because it failed to consider ade-

quately the evidence she produced indicating that she would

14 No. 18-2529

be subject to “atrocious procedures and punishments” if re-

turned, and because the process through which the decision

was made violated her right to due process. Venckiene also

argues that the courts should stay her extradition based on

proposed legislation pending in Congress. After addressing

the merits, we consider the remaining stay factors. We agree

with the district court that Venckiene is not likely to prevail

on the merits of her challenges, and the other factors also

weigh against granting a stay.

A. Challenges to the Magistrate Judge’s Certification Order

As noted above, there is no specific statutory mechanism

for appellate review of a magistrate judge’s decision to certify

extradition under 18 U.S.C. § 3184, but federal courts have

long endorsed the use of a petition for a writ of habeas corpus

to obtain such review. Typically, habeas corpus petitions chal-

lenging a magistrate judge’s certification order are filed be-

fore the Secretary of State renders an extradition decision, and

the Secretary typically waits to make a decision until the ha-

beas process has run its course. Here the sequence was re-

versed, but we are not aware of a statute or precedent barring

consideration of a habeas corpus petition filed after the Secre-

tary of State’s decision. See Venckiene v. United States, 328 F.

Supp. 3d 845, 863 (N.D. Ill. 2018). At a minimum, the habeas

court may consider the findings under § 3184 that must be

made to give the Secretary the power to order extradition.

1. Likelihood of Success on the Merits—Political Offense

Exception

Lithuania’s extradition treaty with the United States pro-

vides that extradition “shall not be granted if the offense for

which extradition is requested is a political offense.”

No. 18-2529 15

Extradition Treaty, Lithuania-U.S., art. IV, § 1, March 31, 2003,

T.I.A.S. No. 13166. This so-called “political offense exception”

is common in extradition treaties and is not defined in this

treaty. United States federal courts interpreting extradition

treaties have typically recognized two types of political of-

fenses: “pure” political offenses and “relative” political of-

fenses.

Pure political offenses are crimes like treason, sedition,

and espionage, acts “directed against the state but which con-

tain[] none of the elements of ordinary crime.” Eain v. Wilkes,

641 F.2d 504, 512 (7th Cir. 1981). “A ‘relative’ political offense

is one in which a common crime is so connected with a polit-

ical act that the entire offense is regarded as political.” Id.,

quoting Garcia-Mora, The Nature of Political Offenses: A Knotty

Problem of Extradition Law, 48 Virginia L. Rev. 1226, 1230−31

(1962). Venckiene argues that the charges she faces amount to

relative political offenses. Whether an offense qualifies as po-

litical under this exception is reviewable on habeas corpus as

part of the question of whether the offense charged is within

the terms of the governing extradition treaty. Vo, 447 F.3d at

1240. It is a mixed question of law and fact. Id.

This treaty, like others, leaves courts with the task of iden-

tifying political offenses, and especially “relative” political of-

fenses. See Quinn v. Robinson, 783 F.2d 776, 793−805 (9th Cir.

1986) (overview of relative political offenses). Federal courts

have adopted a two-pronged test for identifying qualifying

relative political offenses. “Known as ‘the incidence test,’ it

asks whether (1) there was a violent political disturbance or

uprising in the requesting country at the time of the alleged

offense, and if so, (2) whether the alleged offense was inci-

dental to or in the furtherance of the uprising.” Ordinola v.

16 No. 18-2529

Hackman, 478 F.3d 588, 597 (4th Cir. 2007); see Eain, 641 F. 2d

at 518 (“limit[ing] such offenses to acts committed in the

course of and incidental to a violent political disturbance such

as a war, revolution or rebellion”). The second prong of this

test uses both subjective and objective inquiries. Courts must

evaluate the intentions and motives of the accused as well as

the objectively political nature of the acts underlying the

charged offense conduct. See Ordinola, 478 F.3d at 600.

We have noted before that the judiciary’s role in the polit-

ical offense exception is an “anomaly in the American law of

extradition.” Eain, 641 F.2d at 513. Under the settled and gen-

eral rule of non-inquiry, “[i]n extradition, discretionary judg-

ments and matters of political and humanitarian judgment

are left to the executive branch.” Burgos Noeller, 922 F.3d at

802; see Hoxha v. Levi, 465 F.3d 554, 563 (3d Cir. 2006). The rule

of non-inquiry is critical to the continued operation of bilat-

eral extradition treaties between the United States and foreign

governments. The rule “prevent[s] extradition courts from en-

gaging in improper judgments about other countries’ law en-

forcement and judicial procedures” and “’serves interests of

international comity by relegating to political actors the sen-

sitive foreign policy judgments that are often involved in the

question of whether to refuse an extradition request.’” Burgos

Noeller, 922 F.3d at 808, quoting Hoxha, 465 F.3d at 563.

Despite the general rule of non-inquiry, treaties and 18

U.S.C. § 3184 effectively require courts to consider at least

some political issues related to extradition. Whether the re-

questing country has charged the accused with a crime cov-

ered by the treaty is a legal issue for the courts to decide.

When a treaty has an exception for political offenses, courts

can and sometimes must decide whether the charged crime is

No. 18-2529 17

so political in nature as to apply the exception. We recognize

that there is a political dimension to the charges against

Venckiene, at least in the colloquial sense. As the concept of a

relative political offense has been defined over many decades

of case law, however, the charges against her do not qualify

as relative political offenses.

A “violent political disturbance or uprising” is a prerequi-

site to finding a relative political offense. See Koskotas v. Roche,

931 F.2d 169, 171 (1st Cir. 1991); Ordinola, 478 F.3d at 596−97;

Vo, 447 F.3d at 1240−41; Meza v. United States Attorney General,

693 F.3d 1350, 1359 (11th Cir. 2012); In re Manea, 2018 WL

1110252, at *25 (D. Conn. March 1, 2018). To prove this ele-

ment of the incidence test, Venckiene relies on her and others’

resistance to the political and judicial corruption that arose

out of her niece’s allegations of sexual abuse. This resistance,

she contends, evolved into protests, petitions, and publica-

tions that culminated in the formation and political success of

the Way of Courage political party. Venckiene notes that the

resistance resulted in the deaths of four people under suspi-

cious circumstances—three connected to the pedophilia alle-

gations, plus her brother Kedys. Venckiene also points out

that she and her family sustained injuries during the assault

on her home that led to her niece’s removal.

The information Venckiene has provided does not estab-

lish a “violent political disturbance or uprising.” We have de-

scribed sufficient resistance events as “war, revolution or re-

bellion.” Eain, 641 F. 2d at 518. Although these are not the only

acts that satisfy the first prong of the incidence test, they pro-

vide guideposts for assessing whether other claimed disturb-

ances or uprisings fall within the general range of qualifying

political events. Venckiene’s and Way of Courage’s actions are

18 No. 18-2529

exercises in democratic freedom. Protesting and petitioning a

corrupt government are certainly political acts, but they are

not comparable to war, revolution, or rebellion. It is unclear

whether the deaths Venckiene points to were in fact incidents

of political violence. Little to nothing in the record describes

the circumstances of the deaths of the three people tied to the

pedophilia allegations, and the cause of Kedys’s death is in

dispute. As for the assault on Venckiene’s home, although this

event resulted in minor injuries, it was an isolated incident

focused on issues of custody under family law. Venckiene’s

resistance to a court order awarding custody of a child to her

mother, her efforts to fight corruption, and the Way of Cour-

age’s win of seven seats in the Lithuanian legislature cannot

be described as a “violent struggle for control of the country.”

Ordinola, 478 F.3d at 599.

The types of events that other circuits have determined to

qualify as “violent political disturbance[s] or uprising[s]” are

not comparable to what Venckiene describes. For example, in

Ordinola v. Hackman, the Fourth Circuit considered the conflict

between the Peruvian government and the Shining Path, “a

‘highly organized guerrilla organization with a Maoist com-

munist ideology dedicated to the violent overthrow of Peru’s

democratic government and social structure.’” 478 F.3d at 591,

quoting Sotelo-Aquije v. Slattery, 17 F.3d 33, 35 (2d Cir. 1994).

The conflict had placed about “50 percent of Peruvian terri-

tory and approximately 65 percent of the country’s popula-

tion…under a state of national emergency.” Ordinola, 478 F.3d

at 599 (internal citation and quotation omitted). The court had

little trouble describing this situation “as a ‘political revolt, an

insurrection, or a civil war.’” Id., quoting Ornelas v. Ruiz, 161

U.S. 502, 511 (1896). Similarly, in Barapind v. Enomoto, the

Ninth Circuit had “no real doubt that the crimes Barapind

No. 18-2529 19

[was] accused of committing occurred during a time of violent

political disturbance in India” where there had been “[t]ens of

thousands of deaths and casualties . . . as Sikh nationalists

clashed with government officers and sympathizers in Pun-

jab.” 400 F.3d 744, 750 (9th Cir. 2005) (internal citation omit-

ted) (alteration in original). “Substantial violence was taking

place, and the persons engaged in the violence were pursuing

specific political objectives.” Id.

Even if we were convinced that Venckiene had shown the

existence of a “violent political disturbance or uprising,” the

political offense exception still would not apply because she

has not shown that the charged offenses were “incidental to

or in furtherance of the uprising.” The magistrate judge based

his certification of Venckiene’s extradition on four charged of-

fenses, all of which stem from the events of May 17, 2012,

when officers removed Venckiene’s niece from her home by

force. Venckiene is charged with disobeying a court’s orders

to transfer custody of her niece, hindering law enforcement’s

efforts to transfer custody, hitting her niece’s mother to whom

custody was being transferred, and hitting one of the officers

effecting the transfer. The political offense exception requires

“a direct link between the perpetrator [of the offenses], a po-

litical organization’s political goals, and the specific act[s].”

Eain, 641 F.2d at 521. Courts must look at both the subjective

and objective nature of the alleged offenses, “although the ob-

jective view must usually carry more weight.” Ordinola, 478

F.3d at 600. We cannot conclude that the charged offenses

were objectively political within the meaning of the political

offense exception.

We accept Venckiene’s assertions that her actions leading

to the charges were motivated at least in part by political

20 No. 18-2529

goals. But from an objective viewpoint, we do not think the

charged offenses can be deemed political. “[A] political moti-

vation does not turn every illegal action into a political of-

fense.” Id.; see Escobedo v. United States, 623 F.2d 1098, 1104

(5th Cir. 1980) (“An offense is not of a political character

simply because it was politically motivated”). For decades

federal courts have applied the incidence test, usually result-

ing in decisions finding that the political offense exception did

not apply. Eain, 641 F.2d at 518; see also id. at 520−23 (“The

definition of ‘political disturbance,’ with its focus on orga-

nized forms of aggression such as war, rebellion and revolu-

tion, is aimed at acts that disrupt the political structure of a

State[,]” political offense exception did not apply under inci-

dence test where petitioner’s bombing was not incidental to

political upheaval in Israel at time); Sindona v. Grant, 619 F.2d

167, 173 (2d Cir. 1980) (fraudulent bankruptcy is not subject

to exception even where “it resulted from political maneuver-

ings and [was] pursued for political reasons”); Escobedo, 623

F.2d at 1101, 1104 (under incidence test, petitioner’s of-

fenses—attempting to kidnap the Cuban Consul in Mexico

and killing another man in the process—did not qualify him

for political offense exception: “An offense is not of a political

character simply because it was politically motivated”); Kos-

kotas, 931 F.2d at 172 (political offense exception did not apply

where petitioner “characterize[es] as a violent uprising what

plainly is an electoral conflict tainted by allegations of politi-

cal corruption”); Ordinola, 478 F.3d at 599 (political offense ex-

ception did not apply where offenses “occurred during the

course of a violent political uprising” but “were not in fur-

therance of quelling the uprising”).

To avoid a slippery slope, United States courts have con-

fined the exception for relative political offenses to

No. 18-2529 21

exceptional circumstances qualitatively different from the

facts here. The political offense exception in the extradition

treaty with Lithuania “cannot be read to protect every act . . .

simply because the suspect can proffer a political rationale for

the action.” Ordinola, 478 F.3d at 600.

The narrow scope of relative political offenses is also evi-

dent from Ornelas v. Ruiz, in which the Supreme Court con-

sidered Mexico’s extradition request for Inez Ruiz, a member

of a band of armed men who attacked, captured, and killed

Mexican soldiers and civilians. 161 U.S. at 510. A commis-

sioner reviewed the case and certified Ruiz for extradition.

The district court hearing the case on habeas review reversed,

concluding that Ruiz’s acts fit the political offense exception

in the Mexico-U.S. extradition treaty. Id. at 504, 506, 510. The

Supreme Court reversed, framing its review narrowly as

whether “the commissioner had no choice, on the evidence,

but to hold, in view of the character of the foray, the mode of

attack, the persons killed or captured, and the kind of prop-

erty taken or destroyed” that Ruiz’s offenses were political. Id.

at 511. The Fourth Circuit has explained that the Supreme

Court’s analysis in Ruiz suggests that, “To determine whether

a particular offense is political under the Treaty, we must look

to the totality of the circumstances, focusing on such particu-

lars as the mode of the attack and the identity of the victims,”

and that a reviewing habeas court should overturn a judicial

officer’s determination that the political offense exception

does not apply only when the offense in question is obviously

objectively political. Ordinola, 478 F.3d at 601.

The totality of the circumstances does not help Venckiene.

Most immediately, her alleged actions that led to the charges

were efforts to stop law enforcement from removing her niece

22 No. 18-2529

from her custody pursuant to a court order. The injuries she

allegedly inflicted were on a police officer executing his or-

ders to remove the child and on the child’s mother to whom

custody was being transferred. Venckiene’s actions that day

were not objectively those of someone furthering a political

agenda. These charged offenses describe actions that were

personal, not political. Venckiene has failed to demonstrate

that she is likely to succeed in showing that the charges

against her are subject to the political offense exception in the

extradition treaty.

2. Likelihood of Success on the Merits—Probable Cause

The magistrate judge certified Venckiene’s extradition

based on four of the six Lithuanian charges: hindering the ac-

tivities of a bailiff; failing to comply with a court’s decision

not associated with a penalty; causing physical pain; and re-

sisting against a civil servant or a person performing the func-

tions of public administration. A reviewing court on habeas

would evaluate the magistrate judge’s probable cause deci-

sions under a deferential standard. The issue would be only

“whether there [was] any competent evidence to support [his]

finding.” Burgos Noeller, 922 F.3d at 807, quoting Bovio v.

United States, 989 F.2d 255, 258 (7th Cir. 1993) (alteration in

original). Based on the evidence Lithuania provided to sup-

port its extradition request, it would be difficult to find that

the magistrate judge erred in finding probable cause for these

four offenses.

Lithuania submitted statements of multiple witnesses de-

scribing Venckiene’s alleged offenses. The bailiff who at-

tempted to carry out the court’s custody transfer order ex-

plained that when officers arrived at Venckiene’s house, she

had erected obstacles around her home. She refused to

No. 18-2529 23

remove them when the officers announced their presence. The

bailiff further reported that once the officers entered the

home, Venckiene refused to allow them to communicate with

her niece. The statement said Venckiene was shouting and

clutching her niece while kicking the girl’s mother. The bailiff

said that officers restrained Venckiene and gave the girl to her

mother, who carried her out of the room. When Venckiene

was released, the bailiff said, she punched a police officer

twice. An Officer Gasauskas provided a statement saying that

Venckiene punched him twice on the right side of his face.

Another officer submitted a statement describing the punches

he had observed. Lithuania also provided a summary of med-

ical records describing Officer Gasauskas’s injuries. Based on

these submissions, the magistrate judge had competent evi-

dence to find probable cause that Venckiene committed these

four crimes for which extradition has been approved.

Venckiene argues that she presented evidence sufficient to

refute the charges against her and thus to defeat probable

cause. She asserts that a videotape of the May 17th incident

does not show her punching a police officer. She also pro-

vided the district court with a translated transcript of the

video. Her evidence, however, does not defeat the showing of

probable cause, either as a matter of law or a matter of fact.

The law has long been clear that an extradition hearing “is

not a trial.” Charlton v. Kelly, 229 U.S. 447, 461 (1913). The re-

questing country is not required to try its case in a United

States court. Also, extradition proceedings are not governed

by the Federal Rules of Evidence or Criminal Procedure. See

Fed. R. Evid. 1101(d)(3); Fed. R. Crim. P. 1(a)(5)(A). In extra-

dition cases, courts have long tried to police a fuzzy boundary

between explanatory evidence, which is permitted, and

24 No. 18-2529

contradictory evidence, which is beside the point. See Burgos

Noeller, 922 F.3d at 807. “An accused in an extradition hearing

has no right to contradict the demanding country’s proof or

to pose questions of credibility as in an ordinary trial, but only

to offer evidence which explains or clarifies that proof.” Eain,

641 F.2d at 511; see Charlton, 229 U.S. at 461 (“To have wit-

nesses produced to contradict the testimony for the prosecu-

tion is obviously a very different thing from hearing witnesses

for the purpose of explaining matters referred to by the wit-

nesses for the government”); Collins v. Loisel, 259 U.S. 309,

316–17 (1922) (reaffirming distinction drawn in Charlton). Fed-

eral courts have reframed this distinction as between prohib-

ited contradictory evidence and admissible explanatory evi-

dence. Explanatory evidence “explains away or completely

obliterates probable cause.” Santos v. Thomas, 830 F.3d 987, 992

(9th Cir. 2016) (en banc), quoting Mainero v. Gregg, 164 F.3d

1199, 1207 n.7 (9th Cir. 1999), superseded by statute on other

grounds, Pub. L. No. 105-277, § 2242.

As a matter of fact, the video and transcript Venckiene pro-

vided do not explain away or obliterate probable cause. As

the district court noted, the video and transcript end before

Venckiene is alleged to have punched the officer. Even if the

video had ended later and did not depict Venckiene punching

a police officer, it still would not refute probable cause as to

the other three charges. The video does not show that she did

not “hinder the activities of a bailiff” or “fail[] to comply with

a court’s decision.” Quite the opposite, the video and tran-

script provide substantial support for the charges that

Venckiene attempted to prevent law enforcement from enter-

ing her home and seizing her niece to execute the court order.

Thus, Venckiene also failed to show she is likely to succeed on

this challenge to the magistrate judge’s certification order.

No. 18-2529 25

B. Challenges to The Secretary of State’s Certification Order

The most unusual feature of this case is Venckiene’s chal-

lenge to the decision of the Secretary of State. She argues that

the Secretary’s order violated her constitutional rights in two

respects: that she will face “atrocious procedures and punish-

ments” in Lithuania, and that she had a due process right to a

hearing before the Secretary and to a meaningful explanation

of his reasons for denying her the relief she sought.

Venckiene bases her “atrocious procedures” claim on lan-

guage in In re Burt, 737 F.2d 1477, 1487 (7th Cir. 1984). As

noted, we wrote in Burt that habeas corpus review of extradi-

tions could, at least in theory, consider the Secretary of State’s

extradition decisions for the limited purpose of assessing

whether these decisions violated constitutional rights. More

specifically, courts may evaluate whether the executive’s de-

cisions were properly made “without regard to such constitu-

tionally impermissible factors as race, color, sex, national

origin, religion, or political beliefs, and in accordance with

such other exceptional constitutional limitations as may exist

because of particularly atrocious procedures or punishments

employed by the foreign jurisdiction.” Id. In Burt itself, how-

ever, we did not find any such constitutional violations. Nor

have we found such constitutional violations in other extradi-

tion cases. While Burt and decisions in other circuits have rec-

ognized the possibility of such claims, we have not found

other appellate decisions actually granting relief from extra-

dition on such a theory.

Burt thus authorizes some limited review of the executive

branch’s extradition decision to ensure that the Secretary of

State did not overlook the constitutionally inhumane condi-

tions a petitioner may be subjected to if returned to a

26 No. 18-2529

requesting nation. However, these constitutional and human-

itarian exceptions are in some tension with the established

rule of non-inquiry and the Supreme Court’s more recent

guidance in a similar context in Munaf v. Geren, 553 U.S. 674

(2008). 1

In extradition hearings, to decide whether to certify an ac-

cused for extradition, the rule of non-inquiry bars courts

“from investigating the fairness of a requesting nation’s jus-

tice system, and from inquiring into the procedures or treat-

ment which await [the] surrendered fugitive in the requesting

country.” United States v. Kin-Hong, 110 F.3d 103, 110 (1st Cir.

1997) (internal citations and quotations omitted). After judi-

cial certification of an extradition, the executive branch “exer-

cises broad discretion and may properly consider factors af-

fecting both the individual defendant as well as foreign rela-

tions.” Sidali v. I.N.S., 107 F.3d 191, 195 n. 7 (3d Cir. 1997). Ap-

plying the rule of non-inquiry and Burt’s “atrocious proce-

dures and punishments” exceptions simultaneously would

seem to produce the peculiar result of barring federal courts

from considering humanitarian issues before the Secretary of

State makes the decision to extradite but allowing courts to

consider the same concerns after the executive branch has

weighed in, despite the absence of any recognized procedural

1 Also, it is not clear that at least the national origin and political be-

liefs of the subject of an extradition request are irrelevant, let alone uncon-

stitutional, considerations. Nationality is often relevant under extradition

treaties (with different standards and procedures for nationals of the re-

questing nation as opposed to other persons). The subject’s political beliefs

might also be deemed relevant to the political and foreign policy consid-

erations. Imagine the possible differences in the United States govern-

ment’s responses to requests to extradite a member of Shining Path in Peru

vs. a Chinese dissident.

No. 18-2529 27

channel for judicial review of the Secretary’s decision, which

may involve delicate and difficult political and foreign policy

choices.

The Supreme Court’s decision in Munaf v. Geren, 553 U.S.

674 (2008), casts further doubt on the continued validity or at

least the scope of Burt’s constitutional and humanitarian ex-

ceptions. In Munaf, the Court considered the habeas corpus

petitions of two U.S. citizens challenging their detention by

the Multinational Force-Iraq, the international coalition force

operating in Iraq. Both men were accused of committing

crimes in Iraq. Id. at 679. The Court held that United States

courts had jurisdiction over these habeas corpus petitions but

that courts could not exercise their jurisdiction to enjoin the

Multinational Force-Iraq from transferring the petitioners to

Iraqi custody or from allowing the petitioners to be tried in

Iraqi courts. Id. at 690−92. Citing Neely v. Henkel, 180 U.S. 109

(1901), the Court concluded: “it is for the political branches,

not the Judiciary, to assess practices in foreign countries and

to determine national policy in light of those assessments.” Id.

at 700−01.

One of the petitioners argued that the Court should pre-

vent his transfer because his “transfer to Iraqi custody is likely

to result in torture.” 553 U.S. at 700. The Court rejected this

argument: “Such allegations are of course a matter of serious

concern, but in the present context that concern is to be ad-

dressed by the political branches, not the judiciary.” Id. “The

Executive Branch” the Court continued, “may, of course, de-

cline to surrender a detainee for many reasons, including hu-

manitarian ones.” Id. at 702. But: “The Judiciary is not suited

to second-guess such determinations—determinations that

would require federal courts to pass judgment on foreign

28 No. 18-2529

justice systems and undermine the Government’s ability to

speak with one voice in this area.” Id.

Although Munaf did not deal with extradition directly, it

certainly offers guidance to courts in carrying out their lim-

ited role in the extradition context, teaching that the judiciary

should refrain from encroaching upon the executive’s politi-

cal and humanitarian decisions regarding foreign justice sys-

tems.

This case does not require us to decide the outer bounda-

ries for the executive branch’s judgment regarding

Venckiene’s extradition. Assuming that the district court can

review the Secretary of State’s decision at all as part of the ha-

beas case, Venckiene has not provided sufficient evidence that

she could likely succeed. Given the above concerns regarding

Burt’s constitutional and humanitarian exceptions, we em-

phasize that courts at least need to give wide latitude to the

political and foreign policy dimensions of the executive’s ex-

tradition decisions. Whatever the scope of the constitutional

exception recognized in theory in Burt, the exception is not an

invitation to federal courts to impose the United States Con-

stitution on foreign jurisdictions.

Burt’s list of reviewable claims does not encompass

Venckiene’s claim that the Secretary of State’s decision-mak-

ing process violated her right to due process of law. Like the

district court, however, we are persuaded by Fourth and Fifth

Circuit cases supporting the position that a challenge like

Venckiene’s is reviewable, at least in principle. In Peroff v.

Hylton, 563 F.2d 1099 (4th Cir. 1977), and Escobedo v. United

States, 623 F.2d 1098 (5th Cir. 1980), the Fourth and Fifth Cir-

cuits considered habeas corpus petitions raising due process

challenges to the Secretary of State’s extradition decisions. In

No. 18-2529 29

Peroff, the Fourth Circuit agreed to consider the petition of an

accused arguing that he was denied due process by the Secre-

tary of State’s refusal to conduct a hearing prior to issuing his

warrant of extradition. 563 F.2d at 1102. In Escobedo, the Fifth

Circuit heard a petitioner’s argument that the discretion given

to the executive branch under the relevant treaty violated due

process because “no standards are provided to guide the ex-

ercise of this discretion.” 623 F.2d at 1104−05. The court ulti-

mately rejected the due process challenge on the merits. Id. at

1106.

Both cases indicate that a federal court exercising its ha-

beas corpus power can at least consider a petitioner’s argu-

ment challenging the executive branch’s extradition process

on due process grounds. The government has provided no

case in which a court declined to hear this type of extradition

due process challenge. Given this lack of contrary authority,

we are not inclined to say that a Secretary of State’s extradi-

tion decision is never reviewable on due process grounds, let

alone grounds of racial or religious bias, for example.Al-

hough the circumstances in which federal courts could and

should overturn the highly discretionary decision of the Sec-

retary of State should be rare, we need not say here that judi-

cial review is never available. The courts have a duty to pro-

tect people and our fundamental principles of justice in the

unlikely event that the executive makes an extradition deci-

sion based blatantly on impermissible characteristics like

race, gender, or religion. We therefore consider Venckiene’s

due process challenge in this appeal, reviewing the Secretary

of State’s extradition decision to determine the likelihood that

Venckiene’s due process claim would succeed on habeas cor-

pus review.

30 No. 18-2529

1. Likelihood of Success on the Merits—“Atrocious Proce-

dures and Punishments”

Venckiene offers three reasons why she believes she will

be subjected to particularly atrocious procedures or punish-

ments if returned to Lithuania. First, she points to the fact that

Lithuania retroactively extended the statute of limitations for

a charge of “humiliating the court” so that she could be tried

for this offense despite the old limitations period having

lapsed. This argument cannot succeed. In Neely v. Henkel, the

Supreme Court specifically held that claims related to the ex

post facto clause of the Constitution cannot serve as a basis to

prevent extradition. 180 U.S. 109, 122 (1901) (“provisions of

the Federal Constitution relating to the writ of habeas corpus,

bills of attainder, ex post facto laws, trial by jury for crimes, and

generally to the fundamental guaranties [sic] of life, liberty,

and property embodied in that instrument…those provisions

have no relation to crimes committed without the jurisdiction

of the United States against the laws of a foreign country”).

The same logic also defeats Venckiene’s second argument

regarding the ex post facto revocation of her judicial and par-

liamentary immunities. Such differences between our nation

and a requesting nation’s justice systems are not reasons that

legally bar extradition and are not reasons for the judiciary to

question the foreign policy judgment of the executive branch.

Venckiene’s third argument is that if she is returned to

Lithuania she will face deplorable conditions in the country’s

jails and prisons. In support, she provided numerous articles

and decisions of courts in other nations that declined to extra-

dite people to Lithuania because of the conditions of deten-

tion. E.g., Edwina Brincat, Court turns down Lithuanian request

to extradite Maltese man, Times of Malta, May 18, 2017,

No. 18-2529 31

https://timesofmalta.com/articles/view/court-turns-down-

lithuanian-request-to-extradite-maltese-man.648339; Lithua-

nian extradition request turned down by High Court, RTÉ, April

15, 2013, https://www.rte.ie/news/2013/0415/381541-lithua-

nian-extradition-request-turned-down/; Savenkovas v. Lithua-

nia, Application No. 871/02 (European Court of Human

Rights 2009) http://en.efhr.eu/2010/02/11/case-savenkovas-v-

lithuania-application-no-87102-2009/; Abu Zubaydah v. Lithua-

nia, Application No. 46454/11 (European Court of Human

Rights 2018), https://www.refworld.org/cases,ECHR,5b0fde

3e4.html. She also cited the U.S. State Department’s Country

Reports on Human Rights Practices in Lithuania. The 2018 re-

port notes that “Some prison and detention center conditions

[in Lithuania] did not meet international standards.” Lithua-

nia 2018 Human Rights Report, Bureau of Democracy, Human

Rights, and Labor, United States Dept. of State, at 2 (2018),

https://www.state.gov/wp-content/uploads/2019/03/

LITHUANIA-2018-HUMAN-RIGHTS-REPORT.pdf. The

2017 Report came to same conclusion. Lithuania 2017 Human

Rights Report, Bureau of Democracy, Human Rights, and La-

bor, United States Department of State, at 2 (2017),

https://www.state.gov/wp-content/uploads/2019/01/Lithua-

nia.pdf. The reports refer to complaints of confined spaces,

improper hygiene, poor food, and substandard sanitary con-

dition among others. Id.

Although Venckiene’s suggestions are troubling, as were

the concerns raised in Munaf v. Green about dangers to the pe-

titioners if they were remanded to Iraqi custody, they do not

persuade us that Venckiene would be likely to succeed on her

habeas corpus claim asserting a risk of particularly atrocious

procedures and punishments if extradition goes forward. To

an extent, Burt’s “atrocious procedures” exception asks

32 No. 18-2529

American courts to evaluate foreign nations’ criminal justice

systems based on United States constitutional standards. As

explained, this exception is therefore in tension with the Su-

preme Court’s guidance in Munaf v. Geren, instructing that “it

is for the political branches, not the judiciary, to assess prac-

tices in foreign countries and to determine national policy in

light of those assessments.” 553 U.S. at 700−01.

In this case, we do not need to decide definitively whether

Munaf voided the “atrocious procedures” exception in Burt.

Venckiene has not provided us with the type of specific and

detailed evidence that a court would need to be able to assess

whether Lithuanian prison conditions generally constitute

“atrocious punishment.” We say this as members of a judicial

system that often encounters credible, specific, and detailed

claims that particular jails, prisons, and immigrant detention

centers in the United States fail to meet United States consti-

tutional or international standards. Without much more spe-

cific evidence of atrocious conditions that Venckiene is likely

to experience if she is extradited, we are confident that block-

ing this extradition on such grounds, after the executive has

already approved it, would go beyond the scope of our role

in the extradition process.

2. Likelihood of Success on the Merits—Due Process

Although the Fourth and Fifth Circuit cases, Peroff and Es-

cobedo, found that federal courts may consider due process

challenges to the executive’s extradition decision, they also

held that the level of process due was minimal. In Peroff, the

Fourth Circuit explained that Peroff had no right to a hearing

before the Secretary of State: “A person facing interstate ex-

tradition has no constitutional right to notice or a hearing be-

fore the governor who acts upon the extradition request.

No. 18-2529 33

Marbles v. Creecy, 215 U.S. 63 (1909). The need for flexibility in

the exercise of Executive discretion is heightened in interna-

tional extradition proceedings which necessarily implicate

the foreign policy interests of the United States.” 563 F.2d at

1102. The court continued:

In enacting legislation pertaining to interna-

tional extradition and in approving the extradi-

tion treaty now in effect between The United

States and Sweden, Congress has not sought to

prescribe the procedures by which the Execu-

tive’s discretionary determination to extradite

should be exercised. It would be manifestly im-

proper for this Court to do so.

Id. at 1102−03. In Escobedo, the Fifth Circuit rejected peti-

tioner’s due process challenge to the executive’s extradition

discretion, emphasizing similarly that it was not the judici-

ary’s role “to prescribe the procedures by which the Executive

exercises its discretion[.]” 623 F.2d at 1106.

We agree with this reasoning. As the Fifth Circuit ex-

plained in Escobedo, United States citizens and others present

in the United States may not be “whisked away to a foreign

country for trial by Executive whim.” 623 F.2d at 1105. An ex-

tradition case does not reach the Secretary of State unless a

United States judicial officer finds under 18 U.S.C. § 3184 that

the person is properly and legally extraditable under the

standards of the applicable treaty. Those legal questions are

for the courts, and the accused has ample procedural protec-

tions in the decision-making on those questions.

The same cannot be said about the foreign policy and hu-

manitarian judgments left to the executive branch. As noted,

34 No. 18-2529

the Secretary of State exercises broad discretion in extradition

decisions. The judiciary has no authority to impose require-

ments on this decision-making process that go beyond the

scope of what is required under the Constitution. Based on

these decisions and the fact that Venckiene can cite no case in

which a court found a right to a hearing, let alone a due pro-

cess violation, in the executive portion of the extradition pro-

cess, Venckiene is not likely to be successful on the merits of

her due process argument.

C. Pending Congressional Bills

The last issue on the merits is Venckiene’s argument that

her extradition should have been stayed because of legislation

that had been introduced in the 115th Congress. She relies on

H.R. 6218 and H.R. 6257, together titled the “Give Judge

Venckiene Her Day in Court Act.” If enacted, either bill would

have excluded Venckiene from the scope of the Lithuania-U.S.

extradition treaty and allowed her to remain in the United

States until her pending asylum application is decided.

Venckiene cites no legal authority for her suggestion that

pending legislation should entitle her to a stay, much less that

the district court abused its discretion in not granting her mo-

tion to stay on these grounds. The processes of the courts take

time, and even with the time the case has been pending in this

court, no legislation passed in the now-adjourned 115th Con-

gress. Federal courts apply duly enacted laws; they do not try

to guess which bills may or may not be enacted into law.

Venckiene is not likely to succeed on the merits of this claim

in her habeas petition.

No. 18-2529 35

D. Remaining Stay Factors

The remaining Nken/Hilton factors on stays pending ap-

peal do not indicate that the district court abused its discre-

tion in denying Venckiene’s motion to stay her extradition.

Venckiene argues that she is entitled to a stay because she will

suffer irreparable harm in the absence of a stay, there is no

harm to Lithuania in delaying her extradition, and the public

interest favors affording her a full opportunity to litigate her

extradition claims. We disagree with these assertions.

Venckiene is correct that if we affirm the district court’s denial

of her motion to stay, she will be extradited to Lithuania and

her pending claims will be moot. This is the harm facing every

petitioner who lacks meritorious habeas corpus claims chal-

lenging an impending extradition. And Venckiene will still

have an opportunity to challenge the charges against her.

That opportunity must come in the Lithuanian justice system,

not ours. The harm Venckiene will suffer from the denial of

the stay is certainly lessened by the fact that she will still have

her day in court. See Artukovic v. Rison, 784 F.2d 1354, 1356

(9th Cir. 1986) (reviewing a petitioner’s emergency order to

stay his extradition and finding that the hardship petitioner

will suffer from denial of the motion—extradition to Yugosla-

via and mootness of his claims—“is tempered by [peti-

tioner’s] ability to defend himself at trial in Yugoslavia”).

Venckiene argues that her ability to be heard in a Lithua-

nian court does little to diminish the harm she will suffer

without a stay. She provided the court with letters from peo-

ple in Lithuania who believe her physical safety would be at

risk if she is returned to Lithuania. However, as explained

above, these important humanitarian considerations are left

to the executive branch. Further, in this case, we have already

36 No. 18-2529

considered the likely merits of Venckiene’s claim that extradi-

tion is improper on the ground that Lithuania would use atro-

cious procedures and punishments. This argument is unlikely

to be successful on habeas corpus review; it does not counsel

in favor of granting a stay. To the extent these letters and

Venckiene contend that she will be subject to physical harm

from sources outside of the Lithuanian government, these are

humanitarian arguments that are in the purview of the Secre-

tary of State in extradition proceedings.

Because the government is the party opposing Venckiene’s

motion, we consider the third and fourth Nken/Hilton fac-

tors—harm to the opposing party and the public interest—as

one. Nken v. Holder, 556 U.S. 418, 435 (2019). For extradition

treaties to operate successfully, each party must comply with

their terms and be able to trust that the other party will do the

same. Failure to comply with foreign nations’ proper extradi-

tion requests threatens to erode the effective force of these

treaties. If other countries lose confidence that the United

States will abide by its treaties, the United States risks losing

the ability to obtain the extraditions of people who commit

crimes here and flee to other countries. It is within the public

interest for this country to be able to try those who commit

crimes here within our justice system. That requires the

United States to maintain good faith with foreign nations.

The district court did not abuse its discretion in denying

Venckiene’s motion to stay her extradition. The order of the

district court is

AFFIRMED.