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 petitioner Neringa Venckiene from the United States to prosecute 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 extraditable 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 Secretary’s decision. She also asked the district court to stay her extradition, but the district court denied that request.

In her habeas corpus petition, Venckiene claims the magistrate 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 “particularly atrocious procedures or punishments,” see In re Burt, 

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

This appeal challenges directly only the district judge’s denial of Venckiene’s request to extend the stay of her extradition, 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 analyze 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 finally 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 punishable 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 provide to obtain extradition of a person accused of an extraditable 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 issued by a judge, court, or other authority competent for this purpose;

(b) a copy of the charging document; and

(c) such information as would provide a reasonable basis to believe that the person sought committed 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 Department 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 inquiry 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 complaint for extradition is sufficient under the applicable standard 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 authority to consider issues like the political motivations of a requesting 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, however, have recognized an exception through which courts can, 

at least in theory, consider claims that “the substantive conduct of the United States in undertaking its decision to extradite ... 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 regarding his or her extradition and bases its extradition decisions on diplomatic considerations without regard to such constitutionally 

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, those decisions 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 justify 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 treaties, 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 assistant to the Speaker of the Lithuanian parliament, Jonas Furmanavicius, 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 purposefully 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 highranking officials participated.

On October 5, 2009, Furmanavicius and Stankunaite’s sister 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 accidental, 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 pedophilia 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 corruption. She asserts that the chairman of the Lithuanian Judicial 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 investigation into whether she had actually broken any laws 

through these comments was discontinued in January 2011 

after the prosecutorfound 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 “humiliating the court.” In 2012, these comments were cited to support revoking Venckiene’s judicial immunity. According to 

Lithuania, at some point in 2010, Venckiene also conducted 

illegal surveillance on public individuals she suspected of pedophilia and Stankunaite.

On December 16, 2011, a court ordered Venckiene to return her niece to the custody of her niece’s mother, Kedys’s 

former girlfriend, Stankuanaite. The court ordered the transfer 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 attempt 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 removed 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 communicate with the girl and even punched one officer in the face.

After her niece was removed, Venckiene became more outspoken. 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 politically active. Her second book had inspired the creation of Way 

of Courage, a political party that organized protests, circulated petitions, and fostered dialogues on internet forums and 

blogs. Venckiene became the face of the party during its campaign for the October 2012 parliamentary election in Lithuania. 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 Northern 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 (unlawful collection of information about a person’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 violation of Lithuania Criminal Code Article 167; 

3. Hindering the activities of a bailiff, in violation 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 Lithuania Criminal Code 140(1); and

6. Resistance against a civil servant or a person 

performing the functions of public administration, in violation of Lithuania Criminal 

Code Article 286. 

Magistrate Judge Daniel Martin held an extradition hearing 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 habeas 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 extradition proceedings pending the resolution of the habeas 

corpus petition that she intended to file. The government objected on the ground that a stay was unnecessary. The government 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 automatically 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 corpus. On April 20, 2018, the Secretary of State decided to surrender Venckiene for extradition. The Secretary did not provide 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 behalf 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 petition 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 separate stay motion that asked the district court to extend the 

stay granted by the magistrate judge. The district court determined that Venckiene was not likely to succeed on the merits 

of her habeas petition and that none of the remaining stay factors supported her position. The district court therefore denied 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 interested 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 preliminary 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 quotation 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 ruling 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 committed 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 adequately the evidence she produced indicating that she would 
14 No. 18-2529

be subject to “atrocious procedures and punishments” if returned, 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 challenging a magistrate judge’s certification order are filed before the Secretary of State renders an extradition decision, and 

the Secretary typically waits to make a decision until the habeas process has run its course. Here the sequence was reversed, but we are not aware of a statute or precedent barring 

consideration of a habeas corpus petition filed after the Secretary 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 provides 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 offenses: “pure” political offenses and “relative” political offenses.

Pure political offenses are crimes like treason, sedition, 

and espionage, acts “directed against the state but which contain[] 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 political 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 political 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 identifying political offenses, and especially “relative” political offenses. 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 incidental 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 political offense exception is an “anomaly in the American law of 

extradition.” Eain, 641 F.2d at 513. Under the settled and general rule of non-inquiry, “[i]n extradition, discretionary judgments 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 bilateral extradition treaties between the United States and foreign 

governments. The rule “prevent[s] extradition courts from engaging in improper judgments about other countries’ law enforcement and judicial procedures” and “’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.’” 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 requesting country has charged the accused with a crime covered 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 prerequisite 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 element 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 publications 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 suspicious circumstances—three connected to the pedophilia allegations, 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 establish a “violent political disturbance or uprising.” We have described sufficient resistance events as “war, revolution or rebellion.” Eain, 641 F. 2d at 518. Although these are not the only 

acts that satisfy the first prong of the incidence test, they provide guideposts for assessing whether other claimed disturbances 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 Courage’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 communist 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 territory and approximately 65 percent of the country’s population...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 Punjab.” 400 F.3d 744, 750 (9th Cir. 2005) (internal citation omitted) (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 offenses, 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 political 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 objective 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 motivation does not turn every illegal action into a political offense.” 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 resulting 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 organized forms of aggression such as war, rebellion and revolution, is aimed at acts that disrupt the political structure of a 

State[,]” political offense exception did not apply under incidence 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 maneuverings and [was] pursued for political reasons”); Escobedo, 623 

F.2d at 1101, 1104 (under incidence test, petitioner’s offenses—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”); Koskotas, 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 political corruption”); Ordinola, 478 F.3d at 599 (political offense exception did not apply where offenses “occurred during the 

course of a violent political uprising” but “were not in furtherance of quelling the uprising”). 

To avoid a slippery slope, United States courts have confined 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 evident from Ornelas v. Ruiz, in which the Supreme Court considered 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 commissioner 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 property 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 particulars 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 orders 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 activities of a bailiff; failing to comply with a court’s decision 

not associated with a penalty; causing physical pain; and resisting against a civil servant or a person performing the functions of public administration. A reviewing court on habeas 

would evaluate the magistrate judge’s probable cause decisions 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 support 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 describing Venckiene’s alleged offenses. The bailiff who attempted to carry out the court’s custody transfer order explained 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 medical records describing Officer Gasauskas’s injuries. Based on 

these submissions, the magistrate judge had competent evidence 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 provided 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 requesting 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 extradition 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 witnesses produced to contradict the testimony for the prosecution is obviously a very different thing from hearing witnesses 

for the purpose of explaining matters referred to by the witnesses for the government”); Collins v. Loisel, 259 U.S. 309, 

316–17 (1922) (reaffirming distinction drawn in Charlton). Federal courts have reframed this distinction as between prohibited contradictory evidence and admissible explanatory evidence. 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 provided 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 transcript provide substantial support for the charges that 

Venckiene attempted to prevent law enforcement from entering 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 challenge 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 punishments” 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 language in In re Burt, 737 F.2d 1477, 1487 (7th Cir. 1984). As 

noted, we wrote in Burt that habeas corpus review of extraditions 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 decisions were properly made “without regard to such constitutionally 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, however, we did not find any such constitutional violations. Nor 

have we found such constitutional violations in other extradition cases. While Burt and decisions in other circuits have recognized the possibility of such claims, we have not found 

other appellate decisions actually granting relief from extradition 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 conditions a petitioner may be subjected to if returned to a 
26 No. 18-2529

requesting nation. However, these constitutional and humanitarian 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 accused for extradition, the rule of non-inquiry bars courts 

“from investigating the fairness of a requesting nation’s justice system, and from inquiring into the procedures or treatment 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 judicial certification of an extradition, the executive branch “exercises broad discretion and may properly consider factors affecting both the individual defendant as well as foreign relations.” Sidali v. I.N.S., 107 F.3d 191, 195 n. 7 (3d Cir. 1997). Applying the rule of non-inquiry and Burt’s “atrocious procedures 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 beliefs of the subject of an extradition request are irrelevant, let alone unconstitutional, considerations. Nationality is often relevant under extradition 

treaties (with different standards and procedures for nationals of the requesting nation as opposed to other persons). The subject’s political beliefs 

might also be deemed relevant to the political and foreign policy considerations. Imagine the possible differences in the United States government’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 exceptions. 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 prevent 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 addressed by the political branches, not the judiciary.” Id. “The 

Executive Branch” the Court continued, “may, of course, decline to surrender a detainee for many reasons, including humanitarian 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 limited role in the extradition context, teaching that the judiciary 

should refrain from encroaching upon the executive’s political and humanitarian decisions regarding foreign justice systems. 

This case does not require us to decide the outer boundaries 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 habeas case, Venckiene has not provided sufficient evidence that 

she could likely succeed. Given the above concerns regarding 

Burt’s constitutional and humanitarian exceptions, we emphasize that courts at least need to give wide latitude to the 

political and foreign policy dimensions of the executive’s extradition 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 Constitution on foreign jurisdictions. 

Burt’s list of reviewable claims does not encompass 

Venckiene’s claim that the Secretary of State’s decision-making 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 Circuits 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 Secretary 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 exercise of this discretion.” 623 F.2d at 1104−05. The court ultimately rejected the due process challenge on the merits. Id. at 

1106. 

Both cases indicate that a federal court exercising its habeas corpus power can at least consider a petitioner’s argument 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 extradition decision is never reviewable on due process grounds, let 

alone grounds of racial or religious bias, for example.Alhough the circumstances in which federal courts could and 

should overturn the highly discretionary decision of the Secretary of State should be rare, we need not say here that judicial review is never available. The courts have a duty to protect people and our fundamental principles of justice in the 

unlikely event that the executive makes an extradition decision 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 corpus review. 
30 No. 18-2529

1. Likelihood of Success on the Merits—“Atrocious Procedures and Punishments”

Venckiene offers three reasons why she believes she will 

be subjected to particularly atrocious procedures or punishments 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 parliamentary 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 extradite people to Lithuania because of the conditions of detention. 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-downlithuanian-request-to-extradite-maltese-man.648339; Lithuanian extradition request turned down by High Court, RTÉ, April 

15, 2013, https://www.rte.ie/news/2013/0415/381541-lithuanian-extradition-request-turned-down/; Savenkovas v. Lithuania, Application No. 871/02 (European Court of Human 

Rights 2009) http://en.efhr.eu/2010/02/11/case-savenkovas-vlithuania-application-no-87102-2009/; Abu Zubaydah v. Lithuania, 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 report notes that “Some prison and detention center conditions 

[in Lithuania] did not meet international standards.” Lithuania 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 Labor, United States Department of State, at 2 (2017),

https://www.state.gov/wp-content/uploads/2019/01/Lithuania.pdf. The reports refer to complaints of confined spaces, 

improper hygiene, poor food, and substandard sanitary condition among others. Id.

Although Venckiene’s suggestions are troubling, as were 

the concerns raised in Munaf v. Green about dangers to the petitioners 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 Supreme Court’s guidance in Munaf v. Geren, instructing that “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.” 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 constitutional or international standards. Without much more specific evidence of atrocious conditions that Venckiene is likely 

to experience if she is extradited, we are confident that blocking 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 Escobedo, 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 extradition has no constitutional right to notice or a hearing before 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 international 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 international extradition and in approving the extradition treaty now in effect between The United 

States and Sweden, Congress has not sought to 

prescribe the procedures by which the Executive’s discretionary determination to extradite 

should be exercised. It would be manifestly improper for this Court to do so. 

Id. at 1102−03. In Escobedo, the Fifth Circuit rejected petitioner’s due process challenge to the executive’s extradition 

discretion, emphasizing similarly that it was not the judiciary’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 explained 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 extradition 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 protections in the decision-making on those questions.

The same cannot be said about the foreign policy and humanitarian 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 requirements 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 process violation, in the executive portion of the extradition process, 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 motion 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 Congress. 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 appeal do not indicate that the district court abused its discretion 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 challenging 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 Yugoslavia and mootness of his claims—“is tempered by [petitioner’s] ability to defend himself at trial in Yugoslavia”).

Venckiene argues that her ability to be heard in a Lithuanian court does little to diminish the harm she will suffer 

without a stay. She provided the court with letters from people 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 extradition is improper on the ground that Lithuania would use atrocious 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 Secretary of State in extradition proceedings. 

Because the government is the party opposing Venckiene’s 

motion, we consider the third and fourth Nken/Hilton factors—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 extradition 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.