February 16, 2017 (Fault Lines) — In Miami’s federal court, there’s an ongoing battle of transnational intrigue going down. On one corner, there’s the Republic of Colombia, and the U.S. Department of Justice.
On the other sits Andres Felipe Arias, a former Minister of Agriculture for Colombia, and his defense lawyers. Colombia, with America’s help, is seeking to have Arias sent back home so he can serve a prison sentence. His lawyers are fighting tooth and nail to keep him stateside, away from a Colombian cage, or worse. As Arias’ case shows, not all politics are local. The Miami Herald reports on the latest round, which went to the government:
Andres Arias Leiva, 43, a former agriculture minister, might have to return to face those charges after a federal magistrate judge in Miami ruled on Monday that an extradition treaty between the U.S. and Colombia “remains in full force and effect.”
Lawyers for Arias Leiva, who left for South Florida in 2014 and was arrested last year at his home in Weston, had asserted that the treaty was not in effect and therefore the U.S. and Colombian governments had no authority to seek approval for his extradition in Miami federal court. They tried to have his complaint dismissed and arrest vacated, to no avail.
Magistrate Judge John O’Sullivan concluded that the two nations did have that power under the treaty because “the record evidence establishes that it is the official position of the executive branches of the United States and Colombia that the extradition treaty remains in full force and effect.”
The U.S. Attorney’s office filed a complaint for Arias’ extradition under seal, citing that in 2014 a Colombian tribunal found Arias guilty of rooting for the wrong team at the wrong time “Embezzlement of Third Parties” and “Conclusion of Contract Without Fulfilling Legal Requirements,” in violation of Colombian law. After Arias was admitted to the U.S. and sought political asylum from Colombia, an extradition request was sent to the U.S. Department of State.
The basis for Arias’ asylum request is that he, along with political ally and former president Alvaro Uribe, strongly criticized the current administration’s peace deal with the FARC guerrillas in Cuba. His asylum application is still pending with USCIS, but if he does not prevail in U.S. District Court versus the DOJ, that application would be moot, as he will be in a Colombian prison cell by the time that application reaches an asylum officer’s desk.
Thus, in theory Arias would face persecution back home at the hands of the FARC guerrillas on account of his political views, which are well documented. And the timing of Arias’ arrest by the U.S. Marshals in south Florida is cause for skepticism: he was arrested on the same day that Colombian president Juan Manuel Santos announced his peace deal with the guerrillas.
Yes, the government alleges that, before his conviction, Arias’ “fled Colombia by plane to the U.S.,” but there’s more to that. Arias had a visa issued to him by the U.S. Embassy, and he was inspected and admitted to the U.S. at a point of entry. He remained in south Florida with his family, filed his asylum application, and was given a work permit by USCIS. So until the DOJ stepped in with its complaint for extradition in August of 2016, the U.S. Embassy, ICE, CBP, and USCIS were cool with him being here.
His lawyers sought to dismiss the extradition request by claiming that there is no extradition treaty in effect between the United States and Colombia because “[o]n 12 December 1986, the Colombian Supreme Court of Justice held that Colombia’s legislation ratifying the Extradition treaty was not constitutionally enacted.” Arias also claimed that The Colombian Ministry of Foreign Affairs’ list also shows that the treaty “is not in force,” and that the U.S. Department of State website confirms that it was never ratified.
Uribe, Arias’ former mentor, also came to his aid, declaring before U.S. Magistrate Judge John O’Sullivan that there’s no extradition treaty between the two countries, and that although Colombia sends thousands of its narco-traffickers to be tried in the U.S. (it sends more drug-war-hydra-heads traffickers than any other country), it is not done pursuant to any treaty. The government counter-punched saying that the U.S. never considered that the Colombian Court’s decisions had the effect of nullifying the operation of the Extradition Treaty.
In plain speak, the U.S. is saying that what counts is what goes back and forth between the executives du jour, not what some pesky foreign tribunal said about the treaty. As the government argued, “as long as the [E]xecutive [B]ranch speaks on the matter, as far as the validity of the treaty . . . it is either a political question or this Court should give great deference to [the Executive Branch’s] finding.” Ah, that ol’ tug-o-war between what the executive wants and what the robed jurists will allow. Sign of the times, indeed.
Magistrate Judge O’Sullivan ruled that the Extradition Treaty remains in full force, since both executives “have stated that it is the understanding of both sovereigns that the Extradition Treaty is currently in effect.” But not all is lost for Arias, as he has since filed a petition for writ of prohibition to divest the Extradition Court of jurisdiction over his case, which remains pending in the SDFL.
The stakes are high for Arias because if he does not prevail in court, the only thing keeping him from being repatriated would be the U.S. Secretary of State’s refusal to rubber stamp the court’s order of extradition. And as for his asylum application, which would be deemed abandoned should he leave the country without an advance parole document, his criminal convictions would likely bar him from asylum or from seeking a withholding of his deportation under the Convention Against Torture.
The political soap opera behind this case began with former president Uribe’s policies for taking down the FARC guerrilla problem that had terrorized Colombians since the 1960s. He was largely successful in doing so, but not without allegations of corruption and human rights abuses.
The current president, Juan Manuel Santos, served as Uribe’s defense minister. Santos sought a more conciliatory route with the FARC, was awarded the 2016 Nobel Peace Prize, and eventually finalized a “peace deal” with the guerilla group. Uribe, as well as others who felt that the FARC criminals were getting a free pass on decades of murder and kidnappings, was opposed form the start. The deal was reached after years of negotiations in Cuba, under the auspices of the Castro dictatorship. A new Colombian administration negotiating a peace deal with guerrillas in a tropical island created enough ripple effects to land Arias in a Miami federal courtroom, where he is fighting for his freedom.