How Does the Extradition Process Work?
If you are facing extradition to or from the United States, understanding what you can expect will be critical to making informed decisions as the process unfolds. Extradition is unlike any other legal process or judicial procedure, and successfully fighting extradition could mean the difference between remaining in your home country and facing a criminal trial abroad. In this article, our federal defense attorneys provide an overview of the principles behind extradition, how the extradition process works, and some defense strategies that can be used to fight extradition in the United States and when facing extradition to the U.S. from a foreign nation.
What is Extradition?
Extradition is the formal procedure by which one country surrenders a person to another country for criminal prosecution. The United States has entered into bilateral extradition treaties with various countries around the world, and these treaties specify the terms under which extradition can be requested as well as the processes and procedures involved in seeking extradition. In extradition proceedings, the individual who is at the center of the matter is referred to as a “fugitive.” The U.S. will also extradite fugitives to non-treaty nations under limited circumstances.
While extradition proceedings most often involve efforts to prosecute fugitives for alleged crimes committed in or against the country seeking extradition, extradition can also be used to compel a fugitive to serve a sentence that has already been handed down. In these cases, the process is largely the same, but the defenses that are available can vary.
What Happens During the Extradition Process?
The steps and procedures involved in an attempted extradition depend on the countries involved as well as which country is the one seeking extradition. As summarized in the U.S. Department of Justice’s (DOJ) Frequently-Asked Questions Regarding Extradition:
“Extradition practice varies greatly, depending on the country involved. Typically, extradition is comprised of a judicial and an executive phase. . . . During the judicial phase, a court will determine whether the extradition request meets the requirements of the applicable extradition treaty and the law of the requested country. . . . If the judicial authority rules that the person may be extradited . . . the government of the requested country . . . will determine whether the requested country will surrender the wanted person in extradition. . . . Depending on the country involved, both the judicial ruling and the executive decision to surrender the [fugitive] may be subject to multiple levels of appeal.”
This is a very general overview that describes the extradition process in broad terms without regard to the specifics of any international treaty or the United State’s role as either the requesting or the requested nation. The following are more in-depth summaries of the procedures involved with: (i) the U.S. seeking to extradite for prosecution or punishment; and, (ii) a foreign nation seeking to extradite a fugitive from the United States. However, once again, the specifics will vary depending on the specific foreign country and treaty involved.
1. The Process if the U.S. is Seeking to Extradite for Prosecution or Punishment
If the U.S. is seeking to extradite a fugitive for prosecution in federal court or in order to execute a sentence rendered in a federal criminal proceeding, the process begins with the U.S. Department of State (DOS) sending a formal request for extradition to the DOJ. The DOJ then reviews the request and makes a determination as to extraditability based on an assessment of:
- The fugitive’s current country of residence;
- The terms of the United States’ treaty (if any) with the fugitive’s current country of residence;
- The domestic laws of the fugitive’s current country of residence pertaining to extraditable offenses;
- The U.S. domestic laws pertaining to extradition for the relevant offense(s), criminal prosecution of the alleged offense(s), and/or execution of the sentence handed down in the fugitive’s prior federal criminal case; and,
- The facts, timing considerations, and geopolitical circumstances involved, insofar as each is relevant to the DOS’s request for extradition.
If the DOJ attorneys who review the extradition request preliminarily determine that the request for extradition to the United States is legally supported, in the interests of justice, and in the interests of the United States more broadly, the request will then be referred to the DOJ’s Office of Internal Affairs (OIA). The OIA will make a final determination regarding extraditability; and, if it deems that extradition is warranted, it will send the request back to the DOS for submission to the fugitive’s country of residence through appropriate diplomatic channels.
From this point forward, until the fugitive is on U.S. soil, the extradition proceedings follow the provisions of the applicable treaty and the laws of the country in which the fugitive is currently residing. If deemed necessary, the country of residence may conduct a provisional arrest in order to prevent the fugitive from fleeing across the border while the extradition proceedings are pending. Prosecutors will argue the case for extradition in court, the fugitive’s defense counsel will have the opportunity to appear, and then the court or agency presiding over the proceedings will render a decision – which, as noted above, will generally be subject to appeal.
Once any and all appeals have been exhausted, the fugitive’s country of residence will surrender the fugitive into U.S. custody. All subsequent proceedings will be conducted in federal court according to U.S. law and subject to the protections of the U.S. Constitution.
2. The Process if a Foreign Nation is Seeking to Extradite a Fugitive from the U.S.
The process differs when a foreign nation is seeking to extradite a fugitive from the United States. Domestically, the process begins when the DOS receives a request for extradition from the foreign nation, typically through the nation’s embassy in Washington D.C. This request may or may not be accompanied by a request for a provisional arrest. If a provisions arrest is sought, the DOJ must obtain an arrest warrant in order to take the fugitive into federal custody.
Upon receiving a request for extradition, the DOS will review the request to determine whether it satisfies all procedural requirements, whether the subject offense is an “extraditable offense” under the terms of the applicable treaty, and whether extradition would raise any concerns with regard to foreign policy. If the DOS is satisfied with the request, it will then submit the request to the OIA. The OIA must then request a hearing in federal district court, and it is at this hearing that a determination will be made with regard to extraditability.
Extradition hearings are not criminal trials; and, as a result, the standard of proof is not “beyond a reasonable doubt.” Instead, the judge must be convinced that, “the evidence [is] sufficient to sustain the charge under the provisions of the proper treaty or convention, or under section 3181(b).” If this burden of proof is met, then the fugitive will be held in federal custody until the nation that requested extradition presents a valid warrant for the fugitive’s surrender according to the relevant treaty provisions.
Due to the nature of U.S. extradition proceedings, fugitives who are deemed subject to extradition do not have a direct right of appeal. Instead, their only means of seeking relief is to file a petition for a writ of habeas corpus, which, if successful, will have essentially the same effect as an appeal.
What are Some Defense Strategies for Fighting Extradition To or From the United States?
When fighting extradition, the defenses that are available are also determined by the relevant treaty and the governing body of law. For example, fugitives who are facing extradition from the United States are entitled to due process and the other protections afforded by the U.S. Constitution; however, these protections may not be available in extradition proceedings conducted abroad. With this in mind, some examples of the types of defenses that may be available in U.S. and foreign extradition proceedings include:
- Lack of Evidence – If the evidence that is available is insufficient to meet the burden of proof for establishing extraditability, then extradition is not appropriate.
- Statute of Limitations – Similar to domestic prosecutions targeting individuals who are on U.S. soil, if the statute of limitations for the subject offense has expired then extradition is unwarranted.
- Double Jeopardy – Having already faced prosecution for the subject offense in one country may establish protection against double jeopardy under the terms of the applicable extradition treaty.
- Dual Criminality – Some U.S. extradition treaties incorporate the concept of “dual criminality,” which prohibits extradition where the act sought to be prosecuted is not a crime in the fugitive’s current country of residence.
- Nationality – Some countries will deny extradition of their own citizens, although many U.S. extradition treaties expressly prohibit foreign nations from providing special treatment on the basis of citizenship.
Speak with a Federal Extradition Lawyer at Oberheiden, P.C.
If you need legal representation to fight extradition to or from the United States, we encourage you to contact us promptly. Our attorneys have centuries of combined experience, and we can help you regardless of where you are currently residing. For a free and confidential consultation, call us at 888-680-1745 or tell us how we can reach you online now.
Dr. Nick Oberheiden, founder of Oberheiden P.C., focuses his litigation practice on white-collar criminal defense, government investigations, SEC & FCPA enforcement, and commercial litigation.