[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 18-14328

________________________

D.C. Docket No. 1:17-cv-23938-JLK

ANDRES FELIPE ARIAS LEIVA,

 Petitioner-Appellant,

versus

WARDEN, et al., 

 Respondents-Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(July 8, 2019)

Before MARCUS, GRANT, and HULL, Circuit Judges.

GRANT, Circuit Judge:

The Colombian Supreme Court convicted Andres Arias Leiva of committing 

two crimes while he served as the country’s Minister of Agriculture. Although 

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Arias1 attended his trial, he did not wait for the verdict; having anticipated a 

politically motivated conviction, Arias left for the United States, where he has 

lived ever since. Now Colombia wants him back. The United States plans to 

honor that request and extradite Arias under a treaty that the two countries signed 

in 1979. But while in prison pending his surrender to Colombia, Arias filed a 

petition for a writ of habeas corpus to block his extradition. The district court 

denied that petition.

Now on appeal, Arias’s chief argument is that the United States cannot 

extradite him under the Extradition Treaty because it is not in effect. Arias is right 

that, in 1986, the Colombian Supreme Court nullified the domestic legislation that 

ratified the treaty and that as a result Colombia no longer relies on the treaty when 

sending fugitives to the United States. But the frailty in his argument is that our

Executive Branch—not Arias and not this Court—gets to decide what impact, if 

any, the Colombian court’s ruling had on the treaty’s status as between the parties. 

And, according to the Department of State, both countries continue to recognize 

the compact as valid and in force. Under the separation of powers established in 

and demanded by our Constitution, the Judicial Branch cannot second-guess that 

political judgment call or indulge whatever our own views on the matter may be. 

We therefore affirm the district court’s denial of Arias’s petition for a writ of 

habeas corpus.

 1 We refer to the petitioner as “Arias” because that is the name he chose to use in his briefing. 

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I.

A.

First, the facts. Arias served as Minister of Agriculture in President Alvaro 

Uribe’s administration from 2005 to 2009. During that time, he ran a development 

program known as Agro Ingreso Seguro (AIS), which sought to modernize 

Colombia’s irrigation system by providing subsidies to farmers. In support of that 

goal, the Ministry entered into three contracts with an organization called the InterAmerican Institute for Cooperation on Agriculture (IICA)—although the point of 

that partnership remains in dispute. According to Arias, the Ministry sought the 

IICA’s help with implementing scientific and technical endeavors; the current 

Colombian government claims that the IICA merely administered the program’s 

funds. In any event, no one disputes that the program disbursed funds worth 

millions of dollars to Colombian farmers, making Arias one of the administration’s 

most popular cabinet members.

In 2009, Arias resigned his post so that he could run for the presidency after 

Uribe’s final term. He campaigned for his party’s nomination against another 

former cabinet member, Juan Manuel Santos, who had served in the Uribe 

administration as Minister of Defense. Despite an early lead in the polls, Arias 

faltered after certain news reports accused him of diverting AIS funds to wealthy 

landowners in return for political patronage. Arias claims that Santos fueled these 

reports through his family-owned media outlets, which succeeded in boosting 

Santos’s political standing. In the end, Arias lost the nomination to Santos, who 

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won the general election and took office in 2010. From then on, Arias remained a 

prominent and vocal critic of the incoming government.

In 2011, the new administration’s Attorney General charged Arias with two 

crimes based on his implementation of the irrigation subsidies program: (1) 

Conclusion of Contract Without Fulfilling Legal Requirements and (2) 

Embezzlement for Third Parties. For the first crime, the Colombian government 

alleged that Arias falsely designated contracts as “scientific and technical” in order 

to bypass a public bidding process. Colombian law normally requires government 

agencies to award contracts based on public bids but exempts projects that call for 

scientific and technical expertise. In those situations, the agency can negotiate 

directly with a given contractor from the start. According to the Colombian 

government, Arias abused this carveout to fast-track the subsidy program and 

ensure that his preferred contractor, the IICA, managed the process.

Next, the Colombian government claimed that Arias funneled millions in 

program subsidies to eleven families even though he knew that they did not 

qualify. He purportedly allowed these select applicants to subvert the grant 

process by “subdividing” their farms and submitting duplicate applications so that 

they could obtain more benefits than they deserved—that is, multiple subsidies for 

what had been a single property. In the Colombian government’s telling, Arias 

knew about and sanctioned these illegal allotments to curry political favor in 

advance of his presidential run.

Arias was tried in the Colombian Supreme Court starting in June 2012. His 

trial lasted nearly two years and involved 57 witnesses, including the defendant 

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himself. Arias, represented by counsel, disputed both charges. He argued, among 

other things, that the Ministry’s contracts complied with the relevant procurement 

laws and that he had no hand in third-party attempts to manipulate the subsidy 

grant process. The court ultimately rejected those defenses, finding that Arias 

knowingly violated the public bidding requirement and actively facilitated the 

diversion of government funds.

Before the court could render that decision, however, Arias—fearing that he 

would be convicted as a political target—left the country. Given their rivalrous 

history, Arias had begun to suspect that President Santos had rigged the result of 

the trial to silence his political foe. To that end, Arias reached out to an American 

diplomat, who he claims helped pave the way for him to enter the United States. 

Arias arrived in this country in June of 2014. After he was followed by his wife 

and two children, he filed a petition for asylum—a petition that, to this day, 

remains pending. About one month later, the Colombian Supreme Court convicted

Arias in absentia and sentenced him to 17 years in prison. Shortly following the 

conviction, Colombia asked the United States to extradite Arias so that he could 

“serve the sentence.”

B.

In response to Colombia’s request, the United States filed a complaint for 

extradition in the district court under 18 U.S.C. § 3184. That statute authorizes a 

magistrate judge to certify an extradition charge when “there is a treaty or 

convention for extradition” and the magistrate judge “deems the evidence 

sufficient to sustain the charge under the provisions of the proper treaty.” 18 

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U.S.C. § 3184. The United States invoked the Extradition Treaty that it signed

with Colombia in 1979 and ratified in 1982. See Extradition Treaty Between the 

United States of America and the Republic of Colombia, Colom.-U.S., Sept. 14, 

1979, S. Treaty Doc. No. 97-8 (1981). Following a hearing, the magistrate judge 

issued an “Extradition Certification and Order of Commitment” which in turn 

authorized the government to detain Arias pending his surrender to Colombia.

Once a magistrate judge certifies an extradition, as happened here, 

extradition targets do not have the benefit of a direct appeal. See Martin v. 

Warden, Atlanta Pen., 993 F.2d 824, 827 n.3 (11th Cir. 1993). Fugitives detained 

in the United States can, however, obtain “limited” collateral review “by means of 

a petition for writ of habeas corpus,” which is what Arias sought in the district 

court below. Noriega v. Pastrana, 564 F.3d 1290, 1295 (11th Cir. 2009). But 

even then, the habeas procedure “is not a means for rehearing the magistrate’s

findings.” Afanasjev v. Hurlburt, 418 F.3d 1159, 1163 (11th Cir. 2005) (quoting 

Escobedo v. United States, 623 F.2d 1098, 1101 (5th Cir. 1980)). Instead, the 

district court reviews extradition orders to determine only (1) “whether the 

magistrate had jurisdiction,” (2) “whether the offense charged is within the treaty,” 

and (3) “whether there was any evidence warranting the finding that there was 

reasonable ground to believe the accused guilty.” Martin, 993 F.2d at 828 (quoting 

Fernandez v. Phillips, 268 U.S. 311, 312 (1925)).

Given those limits, the “scope of habeas corpus review of a magistrate’s 

order of extradition is quite narrow.” Hill v. United States, 737 F.2d 950, 951 n.1 

(11th Cir. 1984) (per curiam); see also Afanasjev, 418 F.3d at 1163 (“This Court 

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has repeatedly noted ‘that a district court’s [habeas] review of a magistrate judge’s 

issuance of a certificate of extraditability is narrow.’” (quoting Kastnerova v. 

United States, 365 F.3d 980, 984 (11th Cir. 2004))). Like the magistrate judge, 

district courts cannot “inquire into the guilt or innocence of the accused.” 

Kastnerova, 365 F.3d at 987; see also Noeller v. Wojdylo, 922 F.3d 797, 803–04

(7th Cir. 2019) (“A United States court dealing with an extradition request for an 

accused is obliged to resist any temptation to judge the guilt or innocence of the 

accused.”). Nor can they let policy judgments come into play; those 

determinations remain “an Executive function.” Martin, 993 F.2d at 829.

In the face of these limitations, Arias argued to the district court that the 

magistrate judge lacked jurisdiction at the outset because the Treaty is not in force. 

The United States pointed out in response that the Treaty took effect on March 4, 

1982, when the parties exchanged instruments of ratification. Arias nonetheless 

relied on a 1986 ruling by the Colombian Supreme Court, which found that the 

Colombian law ratifying the Treaty was unconstitutional—specifically, that the 

legislation had been signed by a government official other than the Colombian 

President. Arias also claimed that his alleged conduct would not violate United 

States law and that the Treaty restricts extraditable offenses to those that are 

punishable in both countries. Finally, he insisted that his conviction does not 

constitute competent evidence to sustain the extradition charge because it was 

rendered by a corrupt and biased court.

As for the United States, the Department of State’s Assistant Legal Adviser

for Law Enforcement and Intelligence, Tom Heinemann, filed a declaration 

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confirming that the official position of the United States is that the Extradition 

Treaty remains valid and in effect. Mr. Heinemann also submitted a diplomatic 

note from the Colombian government stating its own view that the Treaty 

“continues currently in force.” The district court deferred to the Executive’s

judgment that the Treaty remains in force and thus moved past the jurisdictional 

phase of its inquiry.

Next, the district court concluded that the charged crimes—namely, the 

diversion of government subsidies and the knowingly false designations of 

government contracts—would violate our federal law if indeed they were 

committed, and therefore qualified as extraditable offenses. The district court also 

declined to delve into the asserted bias and corruption of the Colombian Supreme 

Court, cautioning that only the Executive Branch can properly evaluate the fairness 

of Colombia’s judicial system in deciding whether to grant extradition.

II.

Arias has appealed those determinations. “On review of a denial of a habeas 

petition regarding the issuance of a certification of extraditability, we review 

factual findings for clear error and questions of law de novo.” Meza v. U.S. Att’y 

Gen., 693 F.3d 1350, 1356 (11th Cir. 2012) (quoting Noriega, 564 F.3d at 1294). 

Because we review only the district court’s order, the scope of our analysis “is 

similarly restricted.” Martin, 993 F.2d at 828. Yet once we complete our “limited 

inquiry,” that is not the end of the road, at least as far as the extradition target is 

concerned. Id. at 829. The Secretary of State retains the final call on “whether to 

issue a warrant of surrender,” after the courts complete our habeas review. Id. 

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And, in reaching that final decision, he “may properly consider myriad factors 

affecting both the individual defendant as well as foreign relations”—which the 

Judicial Branch may not. Id. Once made, the Secretary’s decision “is not 

generally reviewable by the courts.” Id. (citing Escobedo, 623 F.2d at 1105).

III.

A.

We have long observed that the judicial role is narrow when it comes to

treaty recognition and matters of extradition. See, e.g., Meza, 693 F.3d at 1353 

(recognizing “the limited judicial role in the extradition of a foreign national”); 

Kastnerova, 365 F.3d at 986 (observing that “every other Court of Appeals to 

consider whether a treaty has lapsed has deferred to the Executive’s determination” 

(collecting cases)). Courts lack the authority—not to mention the expertise—to

dispute the wisdom of these political judgments, even when reasonable minds 

might disagree about the costs and consequences. The Executive Branch, by 

contrast, is “well situated” to weigh the “sensitive foreign policy issues” inherent 

in this sphere—and, we would add, politically accountable in a way that the courts 

are not. Munaf v. Geren, 553 U.S. 674, 702 (2008). Our review in this case must 

continue to respect the structural boundaries set out between these roles.

The necessity of this deferential approach is inherent in the Constitution’s 

text and design—in particular, in its allocation of powers. Article II states that the 

President “shall have Power, by and with the Advice and Consent of the Senate, to 

make Treaties, provided two thirds of the Senators present concur.” U.S. Const. 

art. II, § 2, cl. 2. This language—known as the Treaty Clause—vests exclusive 

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authority over treaty formation in the political branches. Article III, which 

establishes the federal judicial power, extends that power to cases “arising under 

this Constitution, the Laws of the United States, and Treaties made, or which shall 

be made, under their Authority.” U.S. Const. art. III, § 2, cl. 1. But “this passage 

does not speak to whether the court’s jurisdiction extends to challenges to the 

treaty-making procedures employed by Congress and the President.” Made in the 

USA Found. v. United States, 242 F.3d 1300, 1305 n.11 (11th Cir. 2001). And the 

power to interpret a treaty does not obviously include the predicate question of 

whether to recognize a treaty in the first instance. 

Based on those distinct textual commitments, the Supreme Court long ago

held that deciding whether a foreign power had authority to ratify a treaty involves 

“political questions” that “belong exclusively to the political department of the 

government.” Doe v. Braden, 57 U.S. (16 How.) 635, 657 (1853). In that case, 

one party disputed that the King of Spain had authority, under Spanish law, to 

ratify the treaty ceding Florida to the United States. Id. The Court declined to 

second-guess the Executive’s determination, as “it would be impossible for the 

executive department” to make treaties “if every court in the country was 

authorized to inquire and decide whether the person who ratified the treaty on 

behalf of a foreign nation had the power” to do so. Id.

The Supreme Court fortified that view nearly 50 years later when it deferred 

to the Executive’s position that an extradition treaty between the United States and 

Prussia remained valid following the formation of the German Empire. See 

Terlinden v. Ames, 184 U.S. 270, 288 (1902) (discussing Braden with approval). 

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In so doing, the Court reemphasized that “the question whether power remains in a 

foreign State to carry out its treaty obligations is in its nature political and not 

judicial.” Id. Accordingly, “courts ought not to interfere with the conclusions of 

the political department in that regard.” Id.

Lower courts have followed that directive in deferring to the Executive

Branch’s position regarding treaty recognition. See, e.g., Meza, 693 F.3d at 1358

(citing Terlinden, 184 U.S. at 288); Noriega, 564 F.3d at 1294–95 (same); 

Kastnerova, 365 F.3d at 986 (same); New York Chinese TV Programs, Inc. v. U.E. 

Enters., Inc., 954 F.2d 847, 852 (2d Cir. 1992) (The “judiciary should refrain from 

determining whether a treaty has lapsed, and instead should defer to the wishes of 

the elected branches of government.”). And as we have specifically recognized, 

courts “must defer to the determination of the executive branch” in deciding 

whether an extradition treaty remains in force. Meza, 693 F.3d at 1358 (emphasis 

added). In keeping with that conclusion, we held in Meza that the extradition 

treaty between the United States and Honduras remained valid because “a member 

of the executive branch attested” to that effect. Id. Here too, Mr. Heinemann’s 

declaration set forth the United States Executive Branch’s position—that the 

Treaty remains in full force.

We therefore have no answer but this: the Treaty remains in effect. That 

means, in turn, that the United States can rely on it when extraditing fugitives to 

Colombia. And although Arias rightly notes that federal law requires “a treaty or 

convention for extradition,” 18 U.S.C. § 3184, he is wrong when he asserts that 

none exists here. His mistaken view hinges largely on a 1986 ruling by the 

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Colombian Supreme Court, which declared unconstitutional the Colombian law 

that ratified the Treaty because it was signed by the wrong government official.

2

 

Arias emphasizes that the Treaty, by its terms, was “subject to ratification” and 

would only “enter into force on the date of the exchange of the instruments of 

ratification.” Extradition Treaty, Colom.-U.S., supra, art. 21, S. Treaty Doc. No. 

97-8, at 8. But that is exactly the point—both countries ratified the Treaty by 1982

and exchanged instruments of ratification that same year.

Arias, however, seems to reason that the 1986 ruling retroactively cancelled 

the effect of that ratification and exchange between the parties. But both 

signatories continue to officially recognize the Treaty—notwithstanding the 

Colombian Supreme Court’s ruling that the Colombian official who ratified the 

Treaty lacked the power to act in that capacity. Cf. Braden, 57 U.S. at 657 

(declining to second-guess the Executive’s judgment that “the person who ratified 

the treaty on behalf of a foreign nation had the power, by its constitution and laws, 

to make the engagements into which he entered”). In fact, although both Colombia 

and the United States remain free to terminate the Treaty “at any time by giving 

notice to the other Party,” neither nation has ever done so. Extradition Treaty, 

Colom.-U.S., supra, art. 21, S. Treaty Doc. No. 97-8, at 8.

The Colombian Supreme Court’s 1986 ruling does not demand—or, more 

fundamentally, allow—a different result. According to the governments of the 

 2 Specifically, the Colombian law was signed by a Senior Minister of the government to whom 

the Colombian President had delegated various executive functions while the President was out 

of the country. See Igor I. Kavass, Colombia: Supreme Court Decision on Law Concerning the 

Extradition Treaty Between Colombia and the United States, 27 Int’l Legal Materials 492, 495 

(1988).

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United States and Colombia, that domestic ruling limited the manner in which the 

Colombian government can extradite individuals to the United States. But it did 

not impact the United States’ ability to extradite fugitives under the Treaty. The 

Department of State’s legal adviser, for his part, acknowledged that the ruling may 

have had an effect “under the internal law of Colombia,” but emphasized that “the 

United States has never considered that the Colombian court’s decisions had the 

effect of terminating or suspending the operation of the Treaty.” And the 

Colombian government likewise asserted that the ruling was “exclusively of 

internal nature” and did “not affect” the Treaty’s validity as a matter of 

international law.

We are loath to override the position of the United States on matters of 

extradition, which, after all, “is an executive function derived from the President’s 

power to conduct foreign affairs.” Noriega, 564 F.3d at 1294 (citing Martin, 993 

F.2d at 828); see also Terlinden, 184 U.S. at 289. Substituting our judgment for 

that of the Treaty partners regarding the scope and effect of this foreign court 

ruling would surely overstep our “limited role.” Noriega, 564 F.3d at 1294 (citing 

Martin, 993 F.2d at 828 n.6). As the Supreme Court has explained, the “decisions 

of the Executive Department in matters of extradition, within its own sphere, and 

in accordance with the Constitution, are not open to judicial revision.” Terlinden, 

184 U.S. at 290.

To be clear, we are deferring to the Executive’s judgment on a political 

issue—that is, treaty recognition. We need not ponder the outer bounds of that 

deference, if any, when it comes to historical facts surrounding treaty formation 

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and termination. Here, the parties do not question what the Treaty says. Nor do 

they dispute what the Colombian Supreme Court ruled. Their disagreement 

centers on the impact that the Columbia ruling had on the Treaty’s ongoing 

validity, but that determination is simply “not judicial.” Braden, 57 U.S. at 657. It

belongs to the Executive Branch alone. See Terlinden, 184 U.S. at 288; Meza, 693 

F.3d at 1358.

Of course, courts retain an independent duty to interpret treaties—

extradition or otherwise—just as they do for any statute, Constitutional provision, 

or other source of law. See, e.g., United States v. Alvarez-Machain, 504 U.S. 655, 

663 (1992) (“In construing a treaty, as in construing a statute, we first look to its 

terms to determine its meaning.”); Yapp v. Reno, 26 F.3d 1562, 1565 (11th Cir. 

1994) (“Deciding this case . . . also requires us to interpret the meaning of the lapse 

of time provision of the 1931 Extradition Treaty.”). But there is a critical 

difference between the power “to construe a treaty” and the power “to make” one. 

The Amiable Isabella, 19 U.S. (6 Wheat.) 1, 71 (1821) (Story, J.). Disavowing this

Treaty based on the Colombian Supreme Court’s ruling would be an exercise of 

power that “belongs by the [C]onstitution to another department of the 

Government,” rather than “an exercise of judicial functions.” Id. That type of 

decision depends on politically sensitive and discretionary judgments that we are 

not well-equipped to assess. The President, by contrast, “is authorized to appoint 

ambassadors, other public ministers and consuls, and to receive them from foreign 

nations; and is thereby enabled to obtain accurate information of the political 

condition of the nation with which he treats.” Braden, 57 U.S. at 657.

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Given these understandings about the division of authority and expertise 

between the executive and judicial branches, we must be careful to “observe the 

line between treaty interpretation on the one hand and negotiation, proposal and 

advice and consent and ratification on the other.” Franklin Mint Corp. v. Trans 

World Airlines, Inc., 690 F.2d 303, 311 (2d Cir. 1982). On matters of construction, 

courts have the final word; the views of the Executive, while important, are “not 

conclusive.” Factor v. Laubenheimer, 290 U.S. 276, 295 (1933). On matters of

recognition, by contrast, we defer to the Executive’s authority to make treaties and 

conduct our foreign affairs. See, e.g., Terlinden, 184 U.S. at 288; Braden, 57 U.S. 

at 657.

None of Arias’s arguments against this constitutional deference succeeds. 

First, Arias claims that we should consider the Treaty valid only if the signatory

nations act like it is; instead of listening to what they say, we should look at what 

they do. On that score, Arias claims that Colombia has not invoked the Treaty 

when processing extradition requests made by the United States since the 1986 

ruling. To back up this assertion, he also cites the Supreme Court’s decision in 

Terlinden and our decision in Kastnerova, which, to be fair, both analyzed country 

conduct in determining whether a given treaty remained in force. Still, neither of 

those cases requires—or, again, even allows—undertaking that kind of analysis 

here.

We will concede some tension. In Terlinden, the Supreme Court did state 

that when deciding whether an extradition treaty has been terminated, 

“governmental action in respect to it must be regarded as of controlling 

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importance.” 184 U.S. at 285. Even so, the Court relied on country conduct only 

insofar as it showed that the German Empire “officially recognized” and could 

therefore invoke the treaty between its predecessor—Prussia—and the United 

States. Id. at 286. Moreover, the Terlinden Court still solidly rejected the very 

scenario advocated by Arias: the notion that a foreign fugitive—like Arias—could 

“call on the courts of this country” to second-guess his nation’s official stance was 

declared “out of the question,” especially considering that the United States 

government had accepted the German government’s view. Id.

Here, we need not scrutinize Colombia’s conduct because we already know 

its official position, which the Department of State has accepted and likewise 

endorsed—that the treaty is in force between the two countries. Moreover, no one 

asserts that Colombia is seeking to invoke a predecessor government’s treaty with 

the United States, as was the case for the German Empire in Terlinden. And in any 

event, Terlinden’s consideration of the would-be foreign signatory’s behavior 

came alongside the Supreme Court’s numerous statements regarding the inherent 

authority of the Executive Branch over the issue of treaty recognition. See, e.g.,

Terlinden, 184 U.S. at 288 (“We concur in the view that the question whether 

power remains in a foreign State to carry out its treaty obligations is in its nature 

political and not judicial.”); id. at 289 (explaining that the power to extradite “is 

clearly included within the treaty-making power” and “is devolved on the 

Executive authority.”).

Similarly, in Kastnerova, this Court analyzed whether an extradition treaty 

with the former Czechoslovakia remained in force between the United States and

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the newly formed Czech Republic. See 365 F.3d at 985–87. In doing so, we 

reviewed the “conduct” of both countries, including the exchange of diplomatic

letters and the fact that the Czech Republic sought extraditions under the treaty. 

Id. at 986. That discussion, however, merely bolstered the conclusion that the 

treaty was intact; it did not amount to a holding that courts must consider past 

practices. See id. at 986–87. Regardless, we have expressly limited Kastnerova’s 

conduct-based analysis to “successor-state” scenarios in which one country 

“splinters into other nations,” and the court is called to consider whether a new 

nation has invoked its predecessor’s treaty. Meza, 693 F.3d at 1358.3

Moreover, even if Colombia’s alleged conduct violated the Treaty, a 

violation would not render the Treaty itself invalid. Nor would it give us license to 

reach that conclusion. As the Supreme Court explained in the Head Money Cases,

a “treaty is primarily a compact between independent nations,” and so the remedy 

for its infraction depends on how “the injured party chooses to seek redress.” 112 

U.S. 580, 598 (1884). It is “obvious that with all this the judicial courts have 

nothing to do.” Id. The Judicial Branch has obeyed this rejoinder. In Charlton v. 

Kelly, for example, the Court specifically rejected the contention that Italy’s refusal 

to comply with an extradition treaty meant that it “ceased to be of obligation on the 

United States.” 229 U.S. 447, 469 (1913). Italy’s conduct made the treaty “only 

 3 Arias also cites Blake v. Am. Airlines, Inc., 245 F.3d 1213 (11th Cir. 2001), in passing. That 

decision is even less relevant because no one in that case questioned the ongoing validity of the 

treaty at issue. Both the parties and this Court agreed that the relevant compact—the Warsaw 

Convention—was in force; we addressed only whether Jamaica remained a party to it. Id. at 

1215–16. And in answering that question, we could not defer to the Executive’s view because 

the United States had “taken no position” on the issue. Id. at 1216.

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voidable, not void.” Id. at 473. And in Terlinden, the Supreme Court explained 

that when one party violates a treaty, “it rests alone with the injured party to 

pronounce it broken.” 184 U.S. at 287. Here, notwithstanding any alleged 

violation of the Treaty by Colombia, the United States has never pronounced it 

void or otherwise renounced the extradition agreement at all. See Escobedo, 623 

F.2d at 1107 n.27 (“Even if the claimed lack of reciprocity were construed to be a 

violation of treaty obligations, it would be for the Executive alone to determine 

whether to waive such violations or to renounce the extradition agreement.”

(citation omitted)).

Second, Arias asserts that our own precedent requires us to find that 

Colombia’s conduct has invalidated the Treaty, regardless of what we might 

conclude on a fresh look at the question. To support this contention, he cites 

United States v. Gallo-Chamorro, 48 F.3d 502 (11th Cir. 1995); United States v. 

Duarte-Acero, 296 F.3d 1277 (11th Cir. 2002); and United States v. ValenciaTrujillo, 573 F.3d 1171 (11th Cir. 2009). It is true that in those cases we stated, in 

one way or another, that the Colombian Supreme Court’s 1986 ruling had an 

impact on the Treaty—at least as it applies in Colombia. For example, in GalloChamorro, we acknowledged the ruling and explained that, as a result, “the treaty 

remains inapplicable in Colombia.” 48 F.3d at 503 n.1. In Duarte-Acero, we 

similarly observed that the Colombian Supreme Court had “annulled the 

extradition treaty altogether, finding its ratification unconstitutional.” 296 F.3d at

1279. And in Valencia-Trujillo, we explained that Colombia chose to extradite the 

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defendant under its domestic laws given that the Treaty “was not in effect at the 

time.” 573 F.3d at 1179.

Setting aside that at least two of these cases—Gallo-Chamorro and DuarteAcero—mentioned this issue only in dicta, these decisions do not control the 

outcome here because they only describe the Treaty’s operation in Colombia. 

Indeed, all three opinions involve Colombia’s ability, under Colombian law, to rely 

on the Treaty when extraditing fugitives to the United States. See GalloChamorro, 48 F.3d at 503 (observing that “the Colombian government by 

resolution extradited the Defendant to the United States”); Duarte-Acero, 296 F.3d 

at 1279 (explaining that “the Corte Suprema de Justical, Colombia’s highest court, 

denied the request to extradite Duarte”); Valencia-Trujillo, 573 F.3d at 1181 

(finding that “Colombia’s extradition of Valencia-Trujillo to the United States was 

not based on an extradition treaty”). Even Valencia-Trujillo went only so far as to 

say that the fugitive in that case could not enforce the Treaty’s protections, seeing 

as he “was not extradited under” it. 573 F.3d at 1179. We explained that because 

the “law ratifying the treaty had been struck down by Colombia’s Supreme Court 

in 1986,” Colombia had to process the fugitive’s extradition “under the Colombian 

Constitution and laws” instead. Id. We had no occasion to discuss the authority of 

the United States, under United States law, to invoke the Treaty when extraditing 

fugitives to Colombia. Accordingly, nothing in our prior opinions gives us reason 

to doubt that authority here or otherwise binds us to a different outcome than the 

one we reach today.

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Third, Arias insists that magistrate judges exercise Article III power in 

extradition proceedings and therefore cannot defer to the Executive because doing 

so would abdicate the judicial role. The government counters that extradition 

proceedings “do not arise under Article III.” And, in fact, courts differ on this 

point. Compare DeSilva v. DiLeonardi, 125 F.3d 1110, 1113 (7th Cir. 1997)

(finding that “the proceeding before the magistrate judge was an Article III case or 

controversy”), with Lo Duca v. United States, 93 F.3d 1100, 1108 (2d Cir. 1996)

(holding that “extradition officers do not exercise judicial power under Article 

III”). We have not staked out a definitive position, remarking only that an

“extradition proceeding is not an ordinary Article III case or controversy,” but one 

in which “the judiciary serves an independent review function delegated to it by 

the Executive and defined by statute.” Martin, 993 F.2d at 828.

But this issue is largely academic for our purposes. Whether or not

magistrate judges exercise Article III power in extradition proceedings, they do not 

violate judicial authority by deferring to the Executive on matters of treaty 

recognition. The same holds true for this Court and the district court below, which 

assuredly act in Article III capacities in habeas proceedings. Cf. DeSilva, 125 F.3d 

at 1113 (“The current proceeding—the quest for writs of habeas corpus—is 

anything but advisory.”). Although the “transfer of the judicial power to an 

executive agency” would raise “constitutional concerns,” Perez v. Mortg. Bankers 

Ass’n, 135 S. Ct. 1199, 1213 (2015) (Thomas, J., concurring), the key point here is 

that treaty recognition is not a judicial power in the first instance; it is a political

one. See U.S. Const. art. II, § 2, cl. 2; supra, at 14–15. Arias’s separation of 

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powers argument thus gets things exactly backwards: it is one thing to cede judicial 

powers, quite another to usurp political ones. By deferring to the Executive in this 

context, courts do not run afoul of the Constitution’s structure—they uphold it.

In sum, we will not transgress the boundaries of our constitutional authority 

to perform our own analysis of Columbia’s domestic law or offer our own 

evaluation of Columbia’s conduct under the Treaty. It is enough for us to say that 

we accept the Executive Branch’s determination that it is still in force.

B.

Turning to Arias’s other arguments, we conclude that the district court did 

not err in finding that the Treaty covers the two offenses charged in the extradition 

complaint. Article 2 defines “Extraditable Offenses” as crimes that are 

“punishable under the Federal laws of the United States and the laws of the 

Republic of Colombia.” Extradition Treaty, Colom.-U.S., supra, art. 2, S. Treaty 

Doc. No. 97-8, at 1. This requirement, known as “the dual or double criminality 

principle,” marks a standard provision in “[m]ost extradition treaties.” United 

States v. Herbage, 850 F.2d 1463, 1465 (11th Cir. 1988). Simply put, the rule 

provides that the fugitive’s charged conduct must “constitute an offense in both the 

requesting and requested states.” Id.; see also Gallo-Chamorro v. United States, 

233 F.3d 1298, 1306 (11th Cir. 2000) (Gallo-Chamorro II) (explaining that dual 

criminality “mandates that a prisoner be extradited only for conduct that constitutes 

a serious offense in both the requesting and surrendering country”). In other 

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words, courts ask whether the conduct that the government describes would violate

our laws if it occurred in this country.

Here, the answer is yes. The acts charged in this case—the embezzlement of 

government funds and the knowingly false designation of government contracts—

would violate federal law if those acts occurred here. Importantly, we need not 

compare each country’s criminal code and ask whether a given Colombian statute 

has an exact American analog. The “name by which the crime is described in the 

two countries” need not be the same. Collins v. Loisel, 259 U.S. 309, 312 (1922). 

Nor does “the scope of the liability” need to “be coextensive.” Id.; see also Wright 

v. Henkel, 190 U.S. 40, 58 (1903) (“Absolute identity is not required.”). Dual 

criminality “does not require that the elements, purposes, or punishment for foreign 

offenses be identical to ours.” United States v. Riviere, 924 F.2d 1289, 1302 (3d 

Cir. 1991). It is enough that the “essential character of the transaction is the same, 

and made criminal.” Wright, 190 U.S. at 58. Here, the district court found that the 

charged conduct would violate at least two federal statutes—namely, 18 U.S.C. 

§ 641, which prohibits diverting government funds for one’s own use or the use of 

another; and 18 U.S.C. § 1001, which prohibits making false statements in any 

matter within the jurisdiction of a federal agency.

On the embezzlement charge, Arias argues that the charged conduct would 

not violate United States law because the Colombian government alleged only that 

he “allowed” others to commit fraud and not that he knowingly participated in their 

scheme. He insists that federal law does not criminalize the mere failure to prevent 

third party wrongdoing, which, in his view, is all that happened here. His point, 

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however, mischaracterizes the extradition complaint, which states that he not only

“knew about” the improper diversion of government funds to undeserving 

recipients but actually “ensured the favorable treatment.” The complaint further 

alleges that Arias wielded his influence over the IICA-managed grant process “to 

direct the public funds to specific agricultural sectors”—namely, “areas that were 

politically strategic to his presidential aspirations.” Whether or not he committed 

such acts, we cannot say that the district court erred in concluding that the conduct 

as alleged would violate our own prohibition on diverting government funds.

As for the contracts charge, Arias asserts that the Colombian regulation 

defining the terms “scientific or technological” is so vague that his designations 

could not have been materially false, and thus would not violate United States law. 

But that argument would require us to adjudicate the merits of the charge—that is, 

decide whether Arias’s designations were false. The dual criminality inquiry asks 

only whether “the particular act charged,” taken as true, would be “criminal in 

both jurisdictions.” Collins, 259 U.S. at 312 (emphasis added); see also GalloChamorro II, 233 F.3d at 1307 (explaining that “dual criminality focuses on the 

characterization of the acts of the defendant” (emphasis added)). It also does not

matter whether a vagueness challenge to a foreign statute would succeed so long as 

the particular conduct at issue would violate our domestic law. Cf. Man-Seok Choe 

v. Torres, 525 F.3d 733, 738 (9th Cir. 2008) (“The fact that the Korean law is 

broader than ours, and thus punishes conduct that would not be unlawful here, is of 

no consequence, so long as the particular conduct Choe is charged with is 

prohibited in both countries.”). As we have explained, the fact that “defenses may 

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be available” in the United States “that would not be available” in Colombia “does 

not defeat extradition under the dual criminality principle.” Gallo-Chamorro II, 

233 F.3d at 1307 (quoting Restatement (Third) of Foreign Relations Law § 476 

cmt. d (1987)). Given that the act charged—the knowingly false designation of 

government contracts—would violate our federal law, the dual criminality 

requirement is satisfied.

And let us reiterate—a conclusion that the acts charged would be illegal in 

the United States is not the equivalent of a conclusion that the foreign fugitive 

committed them. After all, when assessing dual criminality, we look only at the 

charges on paper; it is up to the courts of the requesting country to adjudicate their 

merits.

C.

Finally, we conclude that the evidence meets the Treaty’s requirements for 

extraditing individuals who have already been convicted. The Treaty provides that 

when an extradition request “relates to a convicted person,” such as Arias, the 

requesting party needs to submit only a “copy of the judgment” and evidence 

“proving that the person sought is the person to whom the conviction refers.” 

Extradition Treaty, Colom.-U.S., supra, art. 9(4), S. Treaty Doc. No. 97-8, at 4

(emphasis added). Neither party disputes that Arias was convicted or that 

Colombia submitted the required proof here.4

 We cannot weigh the underlying 

 4 Article 9(3), by contrast, provides that when one country seeks to extradite an individual “who 

has not been convicted,” the requesting party must submit evidence that “would provide probable 

cause to suspect” that the fugitive “has committed the offense.” Extradition Treaty, Colom.-

U.S., supra, art. 9(3), S. Treaty Doc. No. 97-8, at 4.

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evidence ourselves to gauge whether we would agree with that conviction. As we 

have explained, on habeas corpus review, our review is “limited to determining . . . 

whether there was any evidence warranting the finding that there was reasonable 

ground to believe the accused guilty.” Martin, 993 F.2d at 828 (internal quotation 

marks omitted). Such evidence can of course include the fact that a foreign 

tribunal has convicted the defendant. See Spatola v. United States, 925 F.2d 615, 

618 (2d Cir. 1991) (“[A] certified copy of a foreign conviction, obtained following 

a trial at which the defendant was present” constitutes sufficient evidence.).

Arias concedes this “general rule” but argues that it cannot apply “in this 

novel situation” because his conviction was the product of a “corrupt, biased 

court.” Given that alleged injustice, Arias claims that “Article 9(4) of the Treaty 

does not resolve the matter.” In his view, we cannot credit such politically tainted 

convictions. Yet neither the Treaty nor any other law carves out this sort of

exception—at least not one that the judiciary can invoke. And although the Treaty

does prohibit extraditions based on requests “of a political character,” it reserves 

those determinations for the “Executive Authority of the Requested State.” 

Extradition Treaty, Colom.-U.S., supra, art. 4, S. Treaty Doc. No. 97-8, at 2 

(emphasis added). So, while Arias may raise serious concerns about the 

motivation for his prosecution, the fairness of his trial, and the severity of his 

sentence, he must direct those complaints to the Executive Branch. See Martin, 

993 F.2d at 830 (instructing fugitive to “direct his argument that extradition is 

unjust . . . to the Executive Branch”); cf. Glucksman v. Henkel, 221 U.S. 508, 512

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(1911) (Holmes, J.) (“We are bound by the existence of an extradition treaty to 

assume that the trial will be fair.”).

To hold otherwise would also contravene the “rule of non-inquiry,” which 

precludes courts “from assessing the investigative, judicial, and penal systems of 

foreign nations when reviewing an extradition request.” Martin, 993 F.2d at 829. 

Like “extradition procedures generally,” the rule flows from “concerns about 

institutional competence and by notions of separation of powers.” United States v. 

Kin-Hong, 110 F.3d 103, 110 (1st Cir. 1997). We have neither the power nor 

competence to consider a foreign fugitive’s concerns about the fairness of his 

country’s criminal justice system, let alone halt his extradition on that basis—that 

kind of consideration is properly addressed to the Executive Branch. See Martin, 

993 F.2d at 830. To that end, the rule also “serves interests of international comity 

by relegating to political actors the sensitive foreign policy judgments that are 

often involved in the question of whether to refuse an extradition request.” Hoxha 

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

The rule applies even though a foreign court’s procedures might differ from 

our own traditions. See Martin, 993 F.2d at 830 (“When a defendant is tried in a 

foreign country, he or she is entitled only to the procedural protections accorded by 

foreign law.”). And it applies even when humanitarian concerns are at stake. See 

id. at 830 n.10 (noting that “judicial intervention in extradition proceedings based 

on humanitarian considerations is inappropriate” (citing Escobedo, 623 F.2d at

1107)). Those judgments are simply not ours to make. As the government warns, 

labeling a foreign court as corrupt “could have serious foreign-relations 

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implications.” Consistent with the rule of non-inquiry, we defer to the Executive

to weigh those implications here. See Kin-Hong, 110 F.3d at 111 (explaining that 

“there is another branch of government, which has both final say and greater 

discretion in these proceedings, to whom these questions are more properly 

addressed”).

D.

We likewise reject Arias’s attempt to invoke the act-of-state doctrine, “a 

judicially-created rule of decision that ‘precludes the courts of this country from 

inquiring into the validity of the public acts a recognized foreign sovereign power 

committed within its own territory.’” Glen v. Club Méditerranée, S.A., 450 F.3d 

1251, 1253 (11th Cir. 2006) (quoting Banco Nacional de Cuba v. Sabbatino, 376 

U.S. 398, 401 (1964)). The Supreme Court has described the doctrine “as a 

consequence of domestic separation of powers, reflecting ‘the strong sense of the 

Judicial Branch that its engagement in the task of passing on the validity of foreign 

acts of state may hinder’ the conduct of foreign affairs.” W.S. Kirkpatrick & Co. v. 

Envtl. Tectonics Corp., Int’l, 493 U.S. 400, 404 (1990) (quoting Sabbatino, 376 

U.S. at 423). Arias reasons that his actions as Minister of Agriculture qualified as 

official acts of Colombia, and so the magistrate judge should have abstained from 

passing upon the legality of that conduct. In essence, he asks us to thwart the 

Executive’s efforts to extradite him in the name of a doctrine meant to avoid 

hindering the Executive’s conduct of our foreign affairs.

That argument fails for numerous reasons, including and especially that 

magistrate judges do not decide the legality of a fugitive’s conduct—as we have 

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explained, they do not “inquire into the guilt or innocence of the accused.” 

Kastnerova, 365 F.3d at 987; see also Shapiro v. Ferrandina, 478 F.2d 894, 900 

(2d Cir. 1973) (Friendly, J.) (explaining that “the function of the extraditing 

magistrate is not to decide guilt or innocence”). Indeed, the whole point of 

extradition is to permit the requesting country—here, Colombia—to make (or 

enforce) its own determination. See Sayne v. Shipley, 418 F.2d 679, 685 (5th Cir. 

1969) (explaining that “it would defeat the whole object of extradition if a 

complete trial were necessary prior to extradition” (internal quotation marks and 

citation omitted)). Because nothing in this case possibly requires us “to declare 

invalid” Colombia’s official acts, “the factual predicate for application of the act of 

state doctrine does not exist.” Kirkpatrick, 493 U.S. at 405.

* * *

At the end of the day, we do not consider or decide whether the United 

States should extradite Arias. Indeed, we cannot; that judgment rests with the 

Executive Branch alone. Mindful of our modest role, we hold simply that the law 

does not preclude it.

AFFIRMED.

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