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Fighting Extradition from the United States to Foreign Nations

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Countries around the world use extradition treaties with the United States to prosecute individuals suspected of offenses ranging from political crimes to murder and terrorism. The U.S. currently extradites both citizens and non-citizens to more than 100 countries spanning the globe, relying on various bilateral treaties dating back as far as 1872 as well as the Multilateral Convention on Extradition, to which it became a party on January 25, 1935.

Obviously, facing extradition from the United States is a very serious matter. If you are being targeted for criminal prosecution in a foreign nation and that nation’s state department and top law enforcement authorities are willing to take the extraordinary step of pursuing extradition, you need to do everything possible to protect yourself. The extradition process is extraordinarily complicated and involves agencies and sources of legal authority from both the United States and the foreign nation seeking extradition; and, in order to avoid criminal prosecution overseas, you need to being fighting against extradition immediately.

This article provides an overview of the extradition process when a foreign country’s government is seeking prosecute an individual who is currently residing in the United States. It also discusses some of the types of offenses that most-commonly lead to requests for extradition from the United States, as well as some of the potential defenses that may be available. However, if you are the subject of a foreign extradition request, it is imperative that you engage defense counsel as soon as possible, and we encourage you to call us promptly at 888-519-4897 for a free and confidential case assessment.

Extradition from the United States: The Extradition Process

1. Request for Extradition

With regard to extradition from the United States, the process generally starts with a foreign government submitting a formal request to the U.S. Department of State. These requests come through diplomatic channels; and, as explained by the Department of State, they “usually [come] from the [requesting] country’s embassy in Washington.”

Prior to submitting an extradition request, the requesting nation may also request a provisional arrest. This is an arrest made by the U.S. Department of Justice to ensure that the subject of the request remains in the United States pending formal extradition proceedings. In addition to requiring extradition requests to be sent to the Department of State directly, “[m]any treaties also require that requests for provisional arrest be submitted through diplomatic channels, although some permit provisional arrest requests to be sent directly to the Department of Justice.”

2. Review by the U.S. Department of State

Once the Department of State receives a request for extradition or provisional arrest, it will review the request to ensure that there is a valid treaty in place, that the cited offense is an extraditable offense, that the documents underlying the request have been properly certified, and that the request does not present any “foreign policy problems.” The Department of State then forwards the request to the Department of Justice’s Office of International Affairs (OIA).

As explained in the United States Attorneys’ Manual:

OIA reviews . . . [extradition and provisional arrest] requests and forwards appropriate ones to the district [where the subject of the request is located]. The Assistant United States Attorney assigned to the case obtains a warrant and the fugitive is arrested and brought before the magistrate judge or the district judge. . . . A hearing under 18 U.S.C. § 3184 is scheduled to determine whether the fugitive is extraditable.”

3. Hearing to Determine Whether Fugitive Should Be Surrendered

At the hearing, the government will oppose the fugitive’s request for bond, and the subsequent steps will be determined by the applicable extradition treaty. However, in no case is the hearing intended to adjudge the fugitive’s guilt for the crime alleged by the foreign nation requesting extradition. Instead, the focus of the hearing is more akin to a grand jury proceeding in which the focus is on determining whether there is probable cause to pursue formal charges for an indictable offense. As explained in 18 U.S.C. § 3184:

“If, on such hearing, [the judge] deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, or under section 3181(b), he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, that a warrant may issue upon the requisition of the proper authorities of such foreign government, for the surrender of such person, according to the stipulations of the treaty or convention; and he shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made.”

4. Petition for Writ of Habeas Corpus

If the magistrate or district judge rules that a fugitive should be extradited to stand trial in a foreign country, the fugitive does not have the right to file an appeal. The fugitive does have the right to file a petition for a writ of habeas corpus; however, on review, the appellate court hearing the petition will only assess:

  • Whether the magistrate or district court judge had jurisdiction over the extradition request;
  • Whether the offense for which extradition is sought falls within the scope of the applicable treaty; and/or
  • Whether there is “any evidence” to support the magistrate or district court judge’s finding of probable cause.

5. Surrender of Fugitive for Extradition

Following the magistrate or district court’s ruling and the affirmance of that ruling at the appellate level, the fugitive will be certified for extradition, and then the request will be referred back to the Department of State. At this stage, the Secretary of State will determine whether the fugitive should be surrendered to the nation seeking extradition; or, whether for policy reasons, the fugitive should be released the judicial outcome of the case notwithstanding. If the Secretary of State decides that the fugitive should be surrendered, then the surrender will be executed in accordance with the terms of the applicable extradition treaty.

Extradition from the United States: Extraditable Offenses

The offenses that may subject an individual residing in the United States to extradition are determined by the terms of the applicable treaty as well. While some treaties list specific crimes that qualify as extraditable offenses, many of the United States’ more-recent treaties follow the principle of “dual criminality.” Under this principle, a fugitive will be subject to extradition if he or she has allegedly committed an offense that would constitute a crime in both the United States and the country seeking extradition.

Under both approaches, crimes that will commonly subject a fugitive to extradition from the United States include (but are not limited to):

  • Murder and manslaughter
  • Rape and other sexual and violent offenses
  • Larceny and other serious property crimes
  • Political crimes
  • Terrorism

Extradition from the United States: Defenses for Fighting Against Extradition

Despite the severe risks of facing extradition, the procedural protections in place for U.S. residents (including both citizens and non-citizens) are limited. As discussed, the OIA need only to prove probable cause (not guilt beyond a reasonable doubt) in order to obtain an extradition certification; and, if a magistrate or district court judge rules that extradition is warranted, the only options available are to: (i) petition for a writ of habeas corpus on very limited grounds; and, (ii) to try to convince the Secretary of State that “policy” considerations justify releasing the subject of a diplomatic extradition request despite a federal court ruling that extradition may move forward.

However, there are still various defenses that the targets of foreign extradition requests can use to preserve their standing in the United States. Depending upon the circumstances involved, some of the defenses that may be available include:

  • Lack of Probable Cause – In many cases, the most effective defense to extradition from the United States will be to challenge the government’s evidence of probable cause. If the government’s evidence is insufficient (or is inadmissible on legal or constitutional grounds), then surrender is not permissible.
  • Passage of Time/Statute of Limitations – Some U.S. extradition treaties specify that a request for extradition must be made within a specified period of time after the alleged offense was committed. Additionally, if the statute of limitations for the subject offense has lapsed under the laws of the country requesting extradition, then extradition should not be permitted.
  • Double Jeopardy – Similar to the U.S. Constitution’s prohibition on double jeopardy, many extradition treaties prohibit extradition in cases where a fugitive has already been tried for the subject offense.
  • Extraterritoriality – Many treaties prohibit extradition where the alleged offense occurred outside of the jurisdiction seeking to prosecute. However, as the U.S. government has increasingly sought to prosecute foreign nationals for extraterritorial offenses, foreign requests involving extraterritorial offenses may be met with less resistance as well.

Read about more potential defenses to extradition from the United States to a foreign nation.

Are You Facing Extradition from the United States?

At Oberheiden, P.C., our team of nationally-renowned defense attorneys and former federal prosecutors brings centuries of combined legal experience to helping clients fight extradition from the United States to foreign nations. To speak with a member of our federal defense team as soon as possible, call (214) 692-2171 or tell us how to reach you online now.

Photo by Jason Leung on Unsplash

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