Federal Judicial Center

International Litigation Guide

International Extradition:
A Guide for Judges

Ronald J. Hedges

Federal Judicial Center

2014
This Federal Judicial Center publication was undertaken in furtherance of the
Centers statutory mission to develop and conduct education programs for the
judicial branch. While the Center regards the content as responsible and valuable, this publication does not reflect policy or recommendations of the Board of
the Federal Judicial Center.

International Extradition: A Guide for Judges

Contents
Introduction, 1
Jurisdiction and Venue, 2
The Extradition Process, 4
Complaint and Provisional Arrest Warrant, 4
Initial Appearance and Case Management, 5
Bail Pending Extradition Hearing, 7
Waiver of Extradition, 8
The Extradition Hearing, 10
Evidentiary Issues, 12
Right to Present Evidence, 13
Access to Discovery, 15
Bars and Defenses to Extradition, 16
Political or Military Offense, 16
Criminal Trial Defenses, 17
Other Legal Issues, 18
Did the Requesting Country Follow Its Own Law?, 18
Dual Criminality, 20
The Rule of Specialty, 22
The Rule of Non-Inquiry, 25
Is There a Humanitarian Exception to the Rule of NonInquiry?, 26
Review Pursuant to Writ of Habeas Corpus, 28
Conclusion, 30
Appendix A: Sample Certification of Extraditability and Order of
Commitment, 31
Appendix B: Sample Affidavit of Consent to Extradition, 34

iii

Overview of the Extradition Process

Complaint
Request for extradition, or provisional arrest with intent to extradite, is
submitted by requesting country to Department of State for preliminary
review by Office of the Legal Adviser.

DOJ Review

Arrest Warrant

Bail

Department of
Justice Office of
International
Affairs conducts
full review and
assigns Assistant
United States
Attorney to case.

Arrest warrant filed in

district where fugitive
is located.
Arraignment before
extradition judge
(usually magistrate
judge).

Extraditee can
overcome
presumption against
bail under special
circumstances and
if neither flight risk
nor danger to
community.

Judicial Review
No direct appeal.
May file habeas
petition in district
court, with appeal to
circuit court. Limited
habeas review:
jurisdiction, validity
and scope of treaty,
probable cause.

Secretary of State
Review
Will consider hearing
record, foreign policy
interests, and
conditions in
requesting country.
Final decision is
discretionary.

Extradition Hearing
Judge must confirm valid treaty exists,
identity of extraditee, offense charged
constitutes a crime and is extraditable,
complaint is supported by probable cause,
and extradition request complies with
treaty provisions.

Certification
If satisfied, judge certifies extradition to
Department of Justice, which forwards to
Department of State.

Extradition Order and

Surrender Warrant
If Secretary of State elects to
extradite, surrender warrant will
issue and foreign law enforcement
will assume custody.

International Extradition: A Guide for Judges

Introduction
International extradition is a process by which an individual taken into custody in one country is surrendered to another country
for prosecution, to serve a sentence, or, in some cases, for a criminal investigation. Although extradition proceedings are sui generis, they retain characteristics of criminal proceedings.1 The Federal Rules of Civil Procedure, Criminal Procedure, and Evidence
do not apply, though specific rules may be adopted by analogy
when appropriate. Similarly, the full panoply of rights accorded
to an accused in a criminal action does not apply during extradition proceedings.
Historically, extradition arrangements between two nations
were based on principles of international comity. The majority of
modern extradition proceedings derive from bilateral or multilateral extradition treaties, substantive international instruments that
contain an extradition clause, a military rendition agreement, or a
treaty for the transfer of fugitives.2
Responsibility for overseeing the extradition process is
shared between the executive and judicial branches, with the Secretary of State serving as the final arbiter of whether or not to
extradite an individual. The law of extradition has evolved to include interpretive doctrines that balance the obligations and prerogatives of the executive and judiciary: treaties are to be construed in favor of extradition, but the courts play an essential role
in reviewing evidentiary and procedural issues.3
1. M. Cherif Bassiouni, International Extradition: United States Law and
2. Note on terminology: Throughout this guide the term fugitive applies
to an individual for whom extradition is sought. Once the fugitive is arrested
and extradition proceedings have begun, the term extraditee will be used.
When extradition issues arise in the context of petitions for a writ of habeas
corpus or criminal proceedings, a court may refer to the extraditee as petitioner or defendant. When an excerpt from a case is quoted in this guide, the
courts terminology is used.
3. The law of extradition in the United States is well established, dating back
to the late nineteenth and early twentieth centuries. See, e.g., United States v.

International Extradition: A Guide for Judges

This guide provides a brief overview of extradition law, focusing primarily on the extradition of fugitives from the United
States. It describes the grounds for extradition, extradition proceedings, legal issues that may emerge, and related case management considerations.4

Jurisdiction and Venue

Extradition proceedings derive from the treaty-making authority
of Article IV, Section II, Clause II of the U.S. Constitution and
are conducted pursuant to 18 U.S.C. 31813196.
Whenever there is a treaty or convention for extradition between the United States and any foreign government, or in
cases arising under Section 3181(b), any justice or judge of the
United States, or any magistrate judge authorized so to do by a
court of the United States, or any judge of a court of record of
general jurisdiction of any State, may, upon complaint made
under oath, charging any person found within his jurisdiction,
with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty
or convention, or provided for under Section 3181(b), issue
his warrant for the apprehension of the person so charged, that
he may be brought before such justice, judge, or magistrate
judge, to the end that the evidence of criminality may be heard
and considered. Such complaint may be filed before and such
warrant may be issued by a judge or magistrate judge of the
United States District Court for the District of Columbia if the
whereabouts within the United States of the person charged
are not known or, if there is reason to believe the person will
shortly enter the United States. If, on such hearing, he deems
Rauscher, 119 U.S. 407 (1886); Neely v. Henkel, 180 U.S. 109 (1901); Valentine v.
United States ex rel. Neidecker, 299 U.S. 5 (1936).
4. When a fugitive is extradited to the United States, legal issues related to
extradition law may emerge as part of the underlying criminal action (rather than in
the context of an extradition proceeding). The rule of specialty, discussed infra pages
2224, is one such example.

International Extradition: A Guide for Judges

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.5

Accordingly, a district court may authorize, by local rule, magistrate judges to preside over extradition requests. Absent such authorization, magistrate judges cannot conduct extradition proceedings.
The initial question for a judge presiding over an extradition
request is whether there is a treaty or convention for extradition
between the United States and any foreign government.6 The
Department of Justice attorney representing the United States in
an extradition proceeding typically will file a copy of an extradition treaty with the court on two occasions: (1) when a provisional arrest warrant7 is sought, and (2) when an extradition
hearing is held and the government moves into evidence a copy
of the treaty authenticated pursuant to 18 U.S.C. 3190.
If the governments initial attempt to move forward with an
extradition fails and it has a good-faith basis to believe extradi-

5. 18 U.S.C. 3184 (2012).

6. Id.
7. A provisional arrest warrant is a term derived from 3184. It begins
the extradition process before a court. A provisional arrest warrant is based on
the same grounds as would authorize a warrant in a U.S. criminal case. See Bassiouni, supra note 1, at 833. For a discussion of limitations that may be imposed
on the issuance of a provisional arrest warrant without an evidentiary showing
of probable cause to believe that an extraditable offense has been committed,
see generally Parretti v. United States, 112 F.3d 1363, 137278 (9th Cir. 1997).

International Extradition: A Guide for Judges

tion is warranted, it may try again.8 This is because there is no

finality to a denial within the meaning of 28 U.S.C. 1291.9
Pursuant to 3184, venue is established wherever the fugitive
is found.10 For example, if a fugitive wanted by law enforcement authorities in Canada is arrested while a passenger in a car
on the New Jersey Turnpike, he is found in the United States
District Court for the District of New Jersey and venue lies in
that judicial district.11 Challenges on the basis of improper venue
are uncommon.12

The Extradition Process

Complaint and Provisional Arrest Warrant
Extradition proceedings typically begin when the prosecuting
attorneyusually an Assistant United States Attorneyfiles a
complaint in district court indicating an intent to extradite and
often seeking the provisional arrest of a fugitive if necessary to
prevent the fugitive from fleeing before a formal extradition request is filed. The complaint includes information provided by
the requesting country, usually presented in sworn affidavits. The
complaint sets forth the relevant terms of the extradition treaty,

8. The government is not barred from pursuing multiple extradition

requests irrespective of whether earlier requests were denied on the merits or on
procedural grounds. Hooker v. Klein, 573 F.2d 1360, 1366 (9th Cir. 1978).
9. See, e.g., Hoxha v. Levi, 465 F.3d 554, 560 (3d Cir. 2006).
10. 18 U.S.C. 3184 (2012).
11. In the context of venue, found means present within his jurisdiction. In re Sindona, 584 F. Supp. 1437, 144445 (E.D.N.Y. 1984).
12. This is likely owing to the difficulty of mounting a successful venue
challenge. See, e.g., Shapiro v. Ferrandina, 478 F.2d 894, 89899 (2d Cir. 1973)
(rejecting venue challenge even though judge failed to specify that fugitive was
found within the jurisdiction in the arrest warrant); In re Tafoya, 572 F. Supp.
95, 97 (W.D. Tex. 1983) (Venue is proper in the Western District of Texas
because Tafoya is a resident of El Paso, which is in this district, and was first
found there.).

International Extradition: A Guide for Judges

the nature of and basis for the underlying criminal charges, the
identity of the fugitive, and his or her believed location.
If the terms of the extradition treaty or case law within a judicial circuit13 require a showing of probable cause to support a
provisional arrest, the complaint will also set forth the basis for
believing the fugitive committed the crimes alleged. If the complaint is deemed sufficient,14 the presiding judge will issue a warrant for the provisional arrest of the fugitive. The government
may amend the complaint to provide additional details of the
criminal charges or to add new charges.15

Initial Appearance and Case Management

When a fugitive whose extradition is sought is taken into custody, he or she will be brought before a judge for an initial appearance.16 During the initial appearance, the judge should:

13. The Second Circuit construed the language of the extradition treaty
between the United States and Italy as requiring probable cause before the provisional arrest would issue, and thus declined to decide the case on constitutional grounds. See Caltagirone v. Grant, 629 F.2d 739, 748 (2d Cir. 1980). In
contrast, the Ninth Circuit held that as a matter of constitutional law, the
Fourth Amendment required the government to show that probable cause exists to believe that a fugitive committed the offense charged. See Parretti v.
United States, 122 F.3d 758, 76364 (9th Cir. 1997), withdrawn and appeal dismissed, 143 F.3d 508 (9th Cir. 1998). That opinion was subsequently withdrawn, however, under the fugitive disentanglement doctrine after the fugitive fled the United States, and is no longer binding precedent. Parretti, 143
F.3d 508 (9th Cir. 1998).
14. When reviewing the extradition application, judges may look by analogy to Fed. R. Crim. P. 4(a) and (b), which address the issuance and content of
a criminal warrant.
15. See Bassiouni, supra note 1, at 823.
16. See, e.g., In re Extradition of Liu, 913 F. Supp. 50, 51 (D. Mass. 1996).
Cf. Fed. R. Crim. P. 5(d) (Procedure in a Felony Case). Although the Federal
Rules of Criminal Procedure are not applicable in extradition proceedings, they
may offer guidance.

International Extradition: A Guide for Judges

inform the extraditee that his or her extradition is being

sought by country X to answer the charge of Y, which
carries a sentence of Z;
advise the extraditee of his or her rights;
consider the appointment of counsel for the extraditee if
indigent; and
consider bail pending the extradition hearing.17

The initial appearance provides an early opportunity for the

judge to engage in active case management. Preliminary case
management issues that may arise include:

setting a date on which the government will advise the

extraditee of the evidence it intends to introduce at the
extradition hearing, including the names of witnesses
and expected scope of witness testimonythe government will also provide copies of documents it intends to
introduce;
setting a reciprocal date for the extraditee to do the same;
confirming that the extraditee and counsel understand
the limited nature of the extradition hearing and clarifying any limitations on proof the extraditee can introduce; and
setting a firm hearing date and, if appropriate, dates for
one or more interim conferences.

These case management considerations are not derived from any

federal rule of procedure; rather, they represent practical considerations for moving an extradition proceeding toward conclusion.
Rather than resolve some or all of these matters at the initial
appearance, the judge may raise relevant legal and procedural
issues and schedule a case management conference to take place
shortly thereafter, possibly by telephone. Counsel for the extra-

17. See In re Yusev, No. 12 M 727, 2013 WL 1283822, at *1 (N.D. Ill. Mar.
27, 2013). Bail pending an extradition hearing is further discussed infra pages 78.

International Extradition: A Guide for Judges

ditee and the government may discuss stipulations as to one or

more of the factors that the government would otherwise be required to prove at the hearing.

Bail Pending Extradition Hearing

A bail hearing should be scheduled as soon as possible after the
fugitive is arrested, similar to domestic criminal proceedings.
There is a presumption against bail in extradition proceedings,
reflecting the value placed on the United States fulfilling its obligations under international law to the requesting country.18 Bail
pending an extradition hearing is not governed by the Bail Reform Act or any other statute.19 Instead, courts have developed
federal common law in this area, resulting in sometimes contradictory rulings.
Bail in extradition proceedings is granted only upon a showing that the extraditee is neither a flight risk20 nor a danger to the
community21 and that special circumstances warrant the extraditees release, a determination that lies within the discretion of
the judge.22 The extraditee bears the burden of proof.23 Some
courts have required that this showing be established by clear and

18. Wright v. Henkel, 190 U.S. 40, 6263 (1902); In re Extradition of Russell, 805 F.2d 1215, 121617 (5th Cir. 1986).
19. See Yusev, 2013 WL 1283822, at *1.
20. See United States v. Taitz, 130 F.R.D. 442, 44445 (S.D. Cal. 1990)
(noting the debate over whether risk of flight is a special circumstance but finding that once the absence of flight risk is determined, courts must then look for
special circumstances).
21. See In re Extradition of Garcia, 761 F. Supp. 2d 468, 47374 (S.D. Tex.
2010).
22. Id. at 47072.
23. Id. at 474.

International Extradition: A Guide for Judges

convincing evidence24 and others by a preponderance of the evidence.25

Determining the existence of special circumstances involves a
fact-specific inquiry and will be found only where justification
for release is clear.26 Examples of circumstances warranting the
setting of bail in extradition proceedings include a strong likelihood that extradition will not be granted, unreasonable delays in
the extradition process, and serious medical concerns.27

Waiver of Extradition
Extraditees may waive their right to all formal extradition proceedings.28 By waiving their right to a hearing, extraditees concede that extradition requirements are met and sign an Affidavit
of Consent to Extradition under the applicable extradition treaty.29

24. See United States v. Ramnath, 533 F. Supp. 2d 662, 66566 (E.D. Tex.
2008).
25. See In re Extradition of Santos, 473 F. Supp. 2d 1030, 1036 n.4 (C.D.
Cal. 2006); see also Garcia, 761 F. Supp. 2d at 47475.
26. See United States v. Williams, 611 F.2d 914, 915 (1st Cir. 1979); Ramnath, 533 F. Supp. 2d at 66667.
27. See Salerno v. United States, 878 F.2d 317, 317 (9th Cir. 1989). Although most cases follow this presumption against bail, in his treatise on international extradition in the U.S. courts, M. Cherif Bassiouni discusses the due
process implications of detaining an extraditee without bail if there has been no
predicate showing of probable cause (supporting the underlying criminal offense). He notes, For all practical purposes, this process has given the government the right to detain people without due process of law, on the sole representation of the requesting government . . . . Moreover, that initial representation often amounts to no more than a one-page fax from a foreign lawenforcement official. Bassiouni, supra note 1, at 849.
28. See United States v. Vega, No. 7-CR-707 ARR, 2012 WL 1925876, at
*8 (E.D.N.Y. May 24, 2012) (When a criminal defendant waives extradition,
. . . without following the formal procedures of the treaty, the defendant has not
been extradited under that treaty.).
29. See infra Appendix B.

International Extradition: A Guide for Judges

Extraditees may waive their right to formal extradition proceedings either at initial appearance or the final hearing.30 The
extraditee must sign a written waiver acknowledging that he or
she is waiving the right to a hearing and the right not to be extradited except upon the judges certification and the Secretary of
States authorization.31 The judge must ensure that the waiver is
knowing and voluntary.32
Some, but not all, extradition treaties entered into in 1980 or
after provide for the waiver of extradition.33 When the relevant
treaty lacks a waiver provision, the waiver request may be denied.
In Blaxland v. Commonwealth Director of Public Prosecutions,34
the extraditee offered to waive extradition to Australia in exchange for permission to take with him materials necessary to his
defense.35 An Australian representative insisted upon formal extradition and the court denied the extraditees request.36
In a separate but related issue, extraditees wishing to retain
the right to raise treaty-based defenses during subsequent criminal proceedings may instead consent to extradition, conced[ing]
that the requirements of extradition are met.37 In so doing, extraditees merely waive the right to an extradition hearing, as opposed to waiving all formal extradition proceedings, and request

30. See U.S. Dept of State, 7 foreign aff. manual 1600, 1631.4 (2010).
31. See id.
32. Id.
33. See id. at 31 & n.153 (listing treaties containing waiver provisions).
34. 323 F.3d 1198 (9th Cir. 2003).
35. See id. at 1202.
36. See id. The extradition treaty between the United States and Australia
entered into force on May 8, 1976, see Extradition Treaty with Australia, May 8,
1976, 27 U.S.T. 957, and thus does not provide for waiver of extradition. See
Bruce Zagaris, U.S. Efforts to Extradite Persons for Tax Offenses, 25 Loy. L.A. Intl
& Comp. L. Rev. 653, 676 (2003) (U.S. extradition treaties that entered into
force prior to 1980 do not provide for waiver of extradition).
37. See U.S. Dept of State, supra note 30; Michael John Garcia & Charles
Doyle, Cong. Research Serv., 7-5700, Extradition To and From the United
States: Overview of the Law and Recent Treaties 31 (2010).

International Extradition: A Guide for Judges

that the judge immediately certify extradition to the State Department.38

For example, extraditees concerned that the requesting country may prosecute them for crimes other than those for which
extradition was sought may consent to extradition under the applicable treaty, thus retaining the protections provided by rule of
specialty39 treaty provisions.40

The Extradition Hearing

Because extradition is primarily the prerogative of the executive
branch, the scope of the courts inquiry during an extradition
hearing is limited.41 An extradition hearing is not a criminal trial
and is not intended to ascertain guilt. The proceeding more
closely resembles a preliminary hearing under Federal Rule of
Criminal Procedure 5.1,42 with the central issue being whether
there is competent evidence to establish probable cause that the
fugitive committed the offenses underlying the request for extradition.43
In addition to the probable cause inquiry, the extradition
hearing will address the following:

the existence of a valid extradition treaty;

the identity of the extraditee;
whether the crime for which extradition is sought is covered by the treaty;

38. See U.S. Dept of State, supra note 30.

39. See infra pages 2224.
40. Cf. United States v. DiTommaso, 817 F.2d 201, 212 (2d Cir. 1987)
(rejecting defendants contention that the United States violated the rule of
specialty because defendant waived formal extradition and was subsequently
deported).
41. See Hoxha v. Levi, 465 F.3d 554, 560 (3d Cir. 2006).
42. Fed. R. Crim. P. 5.1(e)(f).
43. See Lo Duca v. United States, 93 F.3d 1100, 1104 (2d Cir. 1996).

10

International Extradition: A Guide for Judges

whether the required documents are complete and authenticated;

whether probable cause exists to believe the extraditee
committed the offense in question;44 and
whether other requirements under the extradition treaty
have been met.45

The government will present documentary evidence establishing

these issues and has the burden of establishing probable cause.46
Depending on the language of the treaty, the judge may be
required to make additional findings of fact. For example, a treaty may require the government to show that the offense charged
is a crime under both the law of the requesting country and the
United States pursuant to the doctrine of dual criminality, discussed below. If the judge finds the evidence presented at the extradition hearing is sufficient to sustain the charge under the
provisions of the proper treaty or convention, the court . . . shall
certify the same, together with a copy of all of the testimony taken before him, to the Secretary of State . . . .47 Alternatively, the
extraditee may elect to waive an extradition hearing and seek relief directly from the Secretary of State.48 The ultimate decision to
extradite is an executive rather than a judicial function.49

44. See Hoxha, 465 F.3d at 560 (interpreting the sufficient evidence
standard set forth in 18 U.S.C. 3184 as requiring probable cause); see also
Bassiouni, supra note 1, at 877 (The finding of probable cause is specifically
required by . . . 18 USC 3184 . . . .).
45. See Bassiouni, supra note 1, at 870.
46. See In re Extradition of Trinidad, 754 F. Supp. 2d 1075, 1079 (N.D.
Cal. 2010) (detailing similar list of issues for the hearing); In re Extradition of
Atuar, 300 F. Supp. 2d 418, 42526 (S.D. W. Va. 2003); Garcia & Doyle, supra
note 37, at 21; see also Cheung v. United States, 213 F.3d 82, 88 (2d Cir. 2000).
47. 18 U.S.C. 3184 (2012).
48. See supra pages 810 (discussing waiver of extradition).
49. See Cheung, 213 F.3d at 88.

11

International Extradition: A Guide for Judges

Evidentiary Issues
The Federal Rules of Evidence do not apply to extradition proceedingsinstead there is a more lenient standard of admissibility.50 Although the nature of the extradition hearing limits proof
that might be offered by the extraditee, as well as his or her access
to discovery, testimony may be taken and documentary and other evidence may be introduced by counsel. The admissibility of
this evidence is governed by 18 U.S.C. 3190:
Depositions, warrants, or other papers or copies thereof offered in evidence . . . shall be received and admitted . . . for all
purposes . . . if they shall be properly and legally authenticated
so as to entitle them to be received for similar purposes by the
tribunals of the foreign country . . . and the certificate of the
principal diplomatic or consular officer of the United States
resident . . . shall be proof that the same, so offered, are authenticated in the manner required.51

During the hearing, the government submits documents and

other relevant materials. The materials may vary depending on
the terms of the treaty, but should include: certification from an
American diplomatic officer as to the genuineness of materials
from the foreign state; the governing treaty; the foreign charging
instrument (generally an arrest warrant); and the evidence presented to secure that instrument.
Hearsay is permitted, both in the supporting materials and at
the hearing.52 For example, the written statements of witnesses
describing the criminal conduct of the accused are usually entered into evidence. The credibility of witnesses and the weight to
be accorded evidence falls within the discretion of the judge.53

50. See Trinidad, 754 F. Supp. 2d at 1081 ([T]he extradition judge is not
limited by the Federal Rules of Evidence.) (citing Mainero v. Gregg, 164 F.3d
1199, 1206 (9th Cir. 1999)).
51. 18 U.S.C. 3190 (2012).
52. See Garcia & Doyle, supra note 37, at 22.
53. See Trinidad, 754 F. Supp. 2d at 1081.

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International Extradition: A Guide for Judges

Right to Present Evidence

The extraditees right to offer evidence at an extradition hearing
is limited, and the procedural framework of an extradition hearing gives the requesting country advantages most uncommon to
ordinary civil and criminal litigation.54
The extraditee may introduce evidence that is explanatory
and serves to undermine the governments showing of probable
cause. But, evidence that merely contradicts the governments
case or is proffered to undermine credibility is not permitted.55
This rule enables the extraditee to mount a defense against extradition without transforming the proceeding into a trial on the
merits.
Distinguishing between explanatory and contradictory evidencesometimes a challenging taskis left to the discretion of
the extradition judge.56 For example, in In re Extradition of
Alatorre Pliego,57 the government of Mexico sought extradition
for the crime of fraud. At the extradition hearing, the extraditee
presented testimony by a document examiner disputing the evidence that he signed the document underlying the charges, as
well as evidence disputing his identity as the perpetrator of the

54. Skaftouros v. United States, 667 F.3d 144, 155 (2d Cir. 2011) (quoting
First Natl City Bank v. Aristeguieta, 287 F.2d 219, 226 (2d Cir. 1960), vacated as
moot, 375 U.S. 49 (1963)).
55. See Koskotas v. Roche, 931 F.2d 169, 175 (1st Cir. 1991).
56. See Hoxha v. Levi, 465 F.3d 554, 561 (3d Cir. 2006) (In practice, this
line is not so easily drawn, but the rule serves the useful purpose of allowing the
defendant to present reasonably clear-cut proof . . . of limited scope [that has]
some reasonable chance of negating a showing of probable cause, while preventing the extradition proceedings from becoming a dress rehearsal trial.);
In re Extradition of Sidona, 450 F. Supp. 672, 685 (S.D.N.Y. 1978) (citing Collins v. Loisel, 259 U.S. 309, 31517 (1922)) (The extent of such explanatory
evidence to be received is largely in the discretion of the judge ruling on the
extradition request.).
57. 320 F. Supp. 2d 947 (D. Ariz. 2004).

13

International Extradition: A Guide for Judges

crime. The court denied the extradition request, finding that the
evidence proffered by Mexico failed to establish probable cause.58
Federal courts are divided as to whether defense evidence
that a key witness has recanted his testimony rises to the level of
explanatory evidence,59 and the Supreme Court has not yet addressed this issue. Courts will consider the circumstances surrounding the alleged recantation60 before deciding whether to
exclude the evidence.
In Hoxha v. Levi,61 the Third Circuit rejected petitioners argument that the magistrate judge erred in excluding the telephonic testimony of witnesses who recanted their earlier declarations. Noting the split of authority, the court held that the magistrate judge did not abuse his discretion in barring the telephonic
recantation testimony. The court observed that in Hoxhas case
the original declaration was independently corroborated and
concluded that the proffered recantation provided an alternative
narrative that could be presented at trial.62
Most courts will circumscribe the type of evidence the extraditee can introduce during the hearing. For example, proffered
witness testimony that challenges the credibility of evidence offered by the requesting country is usually deemed a matter for
trial rather than relevant to the extradition hearing.63 If the extraditee can establish that proffered testimony is material to under-

58. See id. at 947, 94950.

59. See Eain v. Wilkes, 641 F.2d 504, 511 (7th Cir. 1981) (recantations are
inadmissible as explanatory evidence); In re Extradition of Contreras, 800 F.
Supp. 1462, 1465 (S.D. Tex. 1992) (admitting evidence of recantation); Republic of France v. Moghadam, 617 F. Supp. 777, 783 (N.D. Cal. 1985) (same); see
also Hoxha, 465 F.3d at 561 (discussing the disagreement among the courts).
60. See Atuar, supra note 46, at 431 (if original statement was coerced,
evidence of recantation may be admissible; court will examine circumstances
surrounding alleged coercion and whether independent evidence corroborates
original statement).
61. 465 F.3d 554 (3d Cir. 2006).
62. See id. at 561.
63. See Eain, 641 F.2d at 51112.

14

International Extradition: A Guide for Judges

mining the governments showing of probable cause, he or she

may petition the court to order the subpoena of such witnesses,
with costs borne by the United States if the extraditee is indigent.64

Access to Discovery
Although the extraditee does not have a right to discovery from
the government or the requesting country, the court has the discretion to grant a discovery request.65 The request for discovery
must be tailored to the limited issue of undermining the governments showing of probable cause.66 This rule is consistent
with the narrow scope of extradition proceedings.
When considering a request for discovery, the court may inquire whether the government, as an exercise of its discretion,
would allow some limited discovery to address a dispositive legal
issue raised by the defense. This would enable the parties and the
court to avoid or at least minimize the cost, burden, and related
delays that discovery disputes might entail.67

64. See 18 U.S.C. 3191 (2012).

65. See Quinn v. Robinson, 783 F.2d 776, 817 n.41 (9th Cir. 1986) (Although there is no explicit statutory basis for ordering discovery in extradition
hearings, the extradition magistrate has the right, under the courts inherent
power, to order such discovery procedures as law and justice require.) (citation omitted); see also Oen Yin-Choy v. Robinson, 858 F.2d 1400, 1407 (9th Cir.
1988). But see In re Extradition of Singh, 123 F.R.D. 108, 115 (D.N.J. 1987)
(concluding that the court does not have the inherent power to allow discovery
in an extradition proceeding).
66. See Koskotas v. Roche, 931 F.2d 169, 175 (1st Cir. 1991); In re Extradition of Handanovic, 826 F. Supp. 2d 1237, 1239 (D. Or. 2011). The Sixth Circuit has held, however, that the Brady rule requiring the government to share
exculpatory evidence applies to extradition. See Demjanjuk v. Petrovsky, 10
F.3d 338, 353 (6th Cir. 1993).
67. Cf. Bassiouni, supra note 1, at 86667 (observing the courts prerogative to request that the government provide materials pertinent to the identity
of the requested person or treaty defenses . . . preclud[ing] extradition).

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International Extradition: A Guide for Judges

Bars and Defenses to Extradition

Political or Military Offense
The political offense exception, a standard provision in most extradition treaties, is intended to ensure that the extradition process is not used to achieve the political goals of the requesting
state.68 Under the political offense exception, a fugitive cannot be
extradited for crimes committed in the course of and incidental
to a violent political disturbance such as war, revolution or rebellion.69 The underlying criminal conduct must be motivated by
the intent to accomplish political change. This exception does
not apply to less fundamental efforts to effect change or to
common crimes distantly related to political unrest.70
For example, allegations of financial fraud and political corruption that may have a connection to political opposition do
not qualify as political offenses.71 Moreover, the fact that the offense was committed by a political figure or public official does
not convert a crime into a political offense. While an individuals
identity as a senior political figure may be relevant to assessing
the motive of the requesting state, the extraditees identity is not
sufficient to convert a common crime into a political offense.72
The extraditee bears the burden of proving a nexus between
the crime underlying the extradition request and the alleged political activity.73 Courts must review the facts underlying the political offense claim to determine whether this burden has been
met.74
68. See id. at 651, 658.
69. Koskotas, 931 F.2d at 171 (quoting Eain, 641 F.2d at 518).
70. Id. 17172.
71. Id. at 172.
72. See Bassiouni, supra note 1, at 659.
73. See Barapind v. Enomoto, 400 F.3d 744, 751 (9th Cir. 2005).
74. See In re Extradition of Singh, 170 F. Supp. 2d 982 (E.D. Cal. 2001)
(murders of Punjab security forces by leader of movement for independent Sikh
state in the context of general and violent unrest of the late 1980s and early

16

International Extradition: A Guide for Judges

Extradition treaties often include a list of offenses for which

extradition must or may be denied. A few of the more recently
executed extradition treaties expressly exclude terrorist offenses
or other crimes from the definition of political crimes.75
Some extradition treaties include a provision prohibiting
extradition when the alleged criminal conduct is deemed a military offense. As with the political offense exception, such offenses must be proven to be outside the realm of ordinary criminal
law.76

Criminal Trial Defenses

Defenses potentially available to a defendant in a U.S. criminal
proceeding are, generally speaking, not available to an individual
whose extradition is sought.77 For example, the extradition judge
may refuse to hear testimony concerning an alibi or supporting a
finding of insanity.78 Such defenses are not considered relevant to
1990s are non-extraditable political offenses); United States v. Pitawanakwat,
120 F. Supp. 2d 921, 938 (D. Or. 2000) (discharging weapon at police helicopter
during occupation of private property in Canada by a member of the Tspeten
Defenders (indigenous group defending native land) was a non-extraditable
political offense because it was part of a broader protest in 1995 aimed at the
Canadian government in support of sovereignty by the native people over their
land); In re McMullin, No. 3-78-1099 MG (N.D. Cal. May 11, 1979) (former
IRA member accused of murder in connection with the bombing of a military
installation in England could not be extradited because the crime had taken
place during a larger uprising intended to remove the British from Northern
Ireland). But see Eain, 641 F.2d at 51823 (holding that indiscriminate bombing of a civilian population despite being in the context of the larger PLO uprising is not recognized as a protected political act).
75. See Garcia & Doyle, supra note 37, at 78.
76. In re Extradition of Suarez-Mason, 694 F. Supp. 676, 70203 (N.D.
Cal. 1988).
77. See In re Extradition of Salas, 161 F. Supp. 2d 915, 924 & n.14 (N.D.
Ill. 2001).
78. See Charlton v. Kelly, 229 U.S. 447, 462 (1913) (holding that the extradition magistrate properly excluded the evidence of insanity at the hearing
stage); Shapiro v. Ferrandina, 478 F.2d 894, 901 (2d Cir. 1973).

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International Extradition: A Guide for Judges

extradition proceedings as they concern issues that should be

resolved during trial proceedings in the requesting state.
The extradition court will also not consider evidence of a
statute of limitations violation unless the applicable extradition
treaty expressly provides for a lapse of time bar.79 Similarly, a defense of double jeopardy will be considered only if so provided
for in the treaty;80 a number of international extradition treaties
bar extradition for prosecution of the same acts or event.81

Other Legal Issues

Although the majority of extradition proceedings proceed in a
pro forma manner, some cases present more complicated legal
issues that require judicial consideration.

Did the Requesting Country Follow Its Own Law?

When a U.S. court reviews a challenge to an extradition request,
its inquiry is limited to ensuring that the requesting state complied with the applicable treaty and typically should not extend to
an examination of whether the requesting country complied with
its own law.

79. See In re Extradition of Chan Seong-I, 346 F. Supp. 2d 1149, 1157

(D.N.M. 2004); United States v. Neely, 429 F. Supp. 1215, 1225 n.9 (D. Conn.
1977); see also Garcia & Doyle, supra note 37, at 1516 (citing extradition treaties that include provisions addressing lapse of time).
80. See In re Ryan, 360 F. Supp. 270, 275 (E.D.N.Y. 1973), affd, 478 F.2d
1397 (2d Cir. 1973).
81. Garcia & Doyle, supra note 37, at 1415 (Although the U.S. Constitutions prohibition against successive prosecutions for the same offense does
not extend to prosecutions by different sovereigns, it is common for extradition
treaties to contain clauses proscribing extradition when the transferee would
face double punishment and/or double jeopardy (also known as non bis in
idem).) (citation omitted).

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International Extradition: A Guide for Judges

In Skaftouros v. United States,82 the district court granted the

petitioners writ of habeas corpus, finding that the arrest warrant
did not comply with Greek law and that the Greek statute of
limitations had expired.83 The Second Circuit reversed and reiterated the district courts narrow role in extradition proceedings:
U.S. courts are strongly discouraged from reviewing whether
the demanding country has complied with its own law and,
indeed, it is error to do so except to the limited extent necessary to ensure compliance with the applicable extradition treaty. . . . Technical objections to the demanding nations compliance with its own laws are particularly disfavored . . . .84

Similarly, in In re Assarsson,85 the Seventh Circuit rejected a challenge to an extradition request from Sweden. The petitioner argued that he had not been charged with a crime under Swedish
law. Rejecting this claim, the court held that extradition proceedings are not appropriate fora for reviewing compliance with foreign criminal procedure. While our courts should guarantee
that all persons on our soil receive due process under our laws,
that power does not extend to overseeing the criminal justice system of other countries.86
Legal challenges to the underlying indictment or other issues
of criminal procedure under foreign law should be made in the
courts of the requesting country.87

82. 667 F.3d 144 (2d Cir. 2011), vacating 759 F. Supp. 2d 354 (S.D.N.Y.
2010).
83. See id. at 147.
84. Id. at 156.
85. 635 F.2d 1237, 1245 (7th Cir. 1980).
86. Id. at 1244.
87. See Ahmad v. Wigen, 910 F.2d 1063, 1066 (2d Cir. 1990) (citing Gallina v. Fraser, 278 F.2d 77, 79 (2d Cir. 1960)) (A consideration of the procedures that will or may occur in the requesting country is not within the purview
of a habeas corpus judge.). But see Sacribey v. Guccione, 589 F.3d 52 (2d Cir.
2009) (absence of valid arrest warrant falls within the narrow category of issues
that is cognizable on habeas review of an extradition order).

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International Extradition: A Guide for Judges

Dual Criminality
The offense underlying a request for extradition must be recognized as a crime in both the requested and requesting countries, a
principle known as dual criminality. Dual criminality is a common maxim in international law and is a standard provision in
most extradition treaties.88 For purposes of finding an analogous
offense under U.S. law, either federal or state law may be considered.89
Dual criminality does not require exact congruity of offenses or that they have the same name or scope of liability.90 Rather, in keeping with the practice of construing extradition treaties broadly,91 it is enough if the particular act charged is criminal in both jurisdictions.92
In order to ascertain whether the dual criminality doctrine is
satisfied, the court must engage in an analysis of the offenses
charged and look for substantial equivalents. In In re Zhenly Ye
Gon,93 the court compared money laundering statutes in Mexico
and the United States and acknowledged petitioners argument
that the two statutes included somewhat different elements.94
However, dual criminality requires courts to focus on a defendants acts and not each element of the crime. The court concluded that Mexican and U.S. statutes addressed the same evil and
shared underlying factual predicates.95

88. See United States v. Kin-Hong, 110 F.3d 103, 114 (1st Cir. 1997).
89. See Garcia & Doyle, supra note 37, at 910 & n.49.
90. In re Extradition of Manzi, 888 F.2d 204, 207 (1st Cir. 1989).
91. See Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 10 (1936)
(It is a familiar rule that the obligations of treaties should be liberally construed so as to give effect to the apparent intention of the parties.).
92. Collins v. Loisel, 259 U.S. 309, 312 (1922).
93. 768 F. Supp. 2d 69 (D.D.C. 2011).
94. Id. at 84.
95. Id. at 85; see also United States v. Sensi, 879 F.2d 888, 89394 (D.C.
Cir. 1989) (comparison of U.K. and U.S. mail fraud statutes; court focused
analysis on the acts of the defendant and not legal doctrine).

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International Extradition: A Guide for Judges

Although the vast majority of federal cases have rejected extradition challenges based on dual criminality,96 if the overlap of
foreign and U.S. criminal codes is not clear, the court may need
to probe further.97
Some types of U.S. criminal offenses, such as conspiracy,
wire fraud, and certain inchoate crimes, do not have foreign law
corollaries. For this reason, many modern extradition treaties
include provisions that extend coverage over these types of
crimes.98 If such provisions are absent, the reviewing court must
examine whether the elements of the U.S. crime have a foreign
analog. United States v. Khan99 involved appellate review of a
conviction of a Pakistani national for conspiracy to distribute
heroin. At the request of the United States, Khan was extradited
from Pakistan to face trial. Khan was convicted and on appeal,
argued that the doctrines of dual criminality and specialty precluded his prosecution on the charges in Count VIII (violation of
21 U.S.C. 843(b), the use of a telephone to facilitate the commission of a drug felony). Khan alleged that although drug conspiracy is a prosecutable offense in Pakistan, using a telephone
during the commission of a drug offense is not. Noting that although dual criminality does not require that Pakistan have a
provision that is the exact duplicate of 843(b), the government
did not present the court with a Pakistani crime that is even
analogous. Accordingly, the court ruled, the doctrine of dual
criminality was not satisfied with respect to Count VIII and

96. See Zhenly Ye Gon, 768 F. Supp. 2d at 82 (exhaustive research discloses precious few cases in which a federal court held there was not dual criminality).
97. See Caplan v. Vokes, 649 F.2d 1336, 1344 (9th Cir. 1981) (requiring
extensive inquiry into such questions). But see Skaftouros v. United States,
667 F.3d 144, 156 (2d Cir. 2011) (the extradition judge should avoid making
determinations regarding foreign law).
98. See Garcia & Doyle, supra note 37, at 11.
99. 993 F.2d 1368 (9th Cir. 1993).

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International Extradition: A Guide for Judges

Khans conviction on Court VIII should be reversed and dismissed.100

The Rule of Specialty

Under the rule of specialty, the country requesting extradition
may not prosecute the extraditee for any offense other than the
charge underlying the extradition request.101 Reflecting a respect
for international comity, this rule assures the requested state that
the extraditee will not be subject to indiscriminate prosecution
upon return to the requesting state.102
U.S. courts typically address the rule of specialty in the context of criminal proceedings involving fugitives extradited to the
United States.103 Although the comity considerations address relations between countries (not between a country and the extraditee), federal circuits are split on whether the extraditee has
standing to raise the rule of specialty, or whether it can only be
raised by the requested nation.104 Courts may condition standing
100. See id. at 137273; see also In re Extradition of Robertson, No. 11-MJ0310 KJN, 2012 WL 5199152, at *19 (E.D. Cal. Oct. 19, 2012) (extradition request from Canada for violation of a Long Term Supervision Order; finding
no analogous violation of U.S. law, the court held dual criminality had not been
satisfied).
101. United States v. Lopesierra-Gutierrez, 708 F.3d 193, 20506 (D.C.
Cir. 2013).
102. United States v. Lomeli, 596 F.3d 496, 501 (8th Cir. 2010).
103. The Supreme Court of the United States adopted the rule of specialty
as part of domestic law in United States v. Rauscher, 119 U.S. 407 (1886). Because the decision to extradite ultimately rests with the executive, courts have
construed Rauscher to apply only when the United States is the requesting
country. In re Extradition of Hurtado, No. EP13MC00166ATB, 2013 WL
4515939, at *4 (W.D. Tex. Aug. 21, 2013) (citing Shapiro v. Ferrandina, 478
F.2d 894, 905 (2d Cir. 1973)).
104. See Hurtado, 2013 WL 4515939, at *3. The First, Third, Sixth, and
Seventh Circuits do not permit extraditees to challenge extradition on the basis
of a rule of specialty violation. See United States ex rel. Saroop v. Garcia, 109 F.3d
165, 168 (3d Cir. 1997) (citing cases); Demjanjuk v. Petrovsky, 776 F.2d 571,
58384 (6th Cir. 1985) (right to assert specialty lies with requested state). The

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on the inclusion of a treaty provision addressing the rule of specialty. For example, the Eighth Circuit recognized the standing of
extraditees to raise any objection that the surrendering country
might have raised to their prosecution.105
Similarly, in United States v. Baez,106 the petitioner argued
that the rule of specialty was violated when he was sentenced to
life imprisonment despite the Colombian governments diplomatic note conditioning his extradition on the U.S. governments
promise to request that a life sentence be commuted to a term of
years. Although it affirmed the sentence, the Second Circuit criticized the district court for erroneously suggest(ing) that it could
ignore the consequences of an extradition agreement between
Colombia and the United States because the Judiciary is a branch
of our tripartite government independent of the Executive
branch.107 Reiterating the importance of the judiciarys respect
for international comity, the court noted:
[T]he cauldron of circumstances in which extradition agreements are born implicate the foreign relations of the United
States. In sentencing a defendant extradited to this country in
accordance with a diplomatic agreement between the Executive branch and the extraditing nation, a district court delicately must balance its discretionary sentencing decision with the
principles of international comity in which the rule of specialty

Second and Eleventh Circuits permit individual standing. See United States v.
Baez, 349 F.3d 90, 93 (2d Cir. 2003); United States v. Puentes, 50 F.3d 1567,
1572 & n.2 (11th Cir. 1995) (We hold that a criminal defendant has standing
to allege a violation of the principle of specialty. We limit, however, the defendants challenges under the principle of specialty to only those objections that the
rendering country might have brought.). The Fifth Circuit has not decided the
issue. See Hurtado, 2013 WL 4515939, at *3; see also United States v. Kaufman,
858 F.2d 994, 1009 n.5 (5th Cir. 1988) (declining to address standing to raise
the rule of specialty).
105. Lomeli, 596 F.3d at 500 (observing that the treaty governing extradition between the United States and Mexico included such a provision).
106. 349 F.3d 90 (2d Cir. 2003).
107. Id. at 93.

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sounds. Courts should accord deferential consideration to the

limitations imposed by an extraditing nation in an effort to
protect United States citizens in prosecutions abroad.108

In a similar case involving a diplomatic note appended to extradition documents from Colombia, the Eleventh Circuit found
that specialty was not violated by a jury instruction on vicarious
liability, even though Colombian law did not recognize such a
concept. Specialty focuses on conduct prosecuted rather than
an evidentiary fact to prove guilt in related substantive offenses.109
The rule of specialty also has been invoked to object to an
enhanced criminal sentence based on (uncharged) conduct that
was not part of the underlying extradition request. Most courts
have rejected this argument, concluding that this rule should not
impinge on a courts discretion during sentencing.110 Specialty
relates to the conduct alleged in the indictment and not facts
considered during the sentencing process.
Although less common, courts may also consider the rule of
specialty during extradition hearings.111 In re Extradition of Lahoria,112 involved a challenge to an extradition request from India. Extraditees argued that India was in violation of the rule of
specialty by pursuing prosecution for violations of the Terrorism
and Disruptive Activities (Prevention) Act of 1987 (TADA),113
an offense not included in the extradition request. The court determined that the rule of specialty precluded India from prosecuting the extraditees for any offenses other than those upon
which extradition was soughtincluding TADA violations.114
108.
109.
2000).
110.
111.
(2002).
112.
113.
114.

Id.
Gallo-Chamorro v. United States, 233 F.3d 1298, 1306 (11th Cir.
Lomeli, 596 F.3d at 502.
See, e.g., In re Extradition of Diaz Medina, 210 F. Supp. 2d 813
932 F. Supp. 802 (1996).
Id. at 820.
Id.

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International Extradition: A Guide for Judges

The Rule of Non-Inquiry

In some cases, the extraditee will oppose extradition on the
grounds that he will face physical threat, unjust treatment, or
torture if returned to the requesting country. The rule of noninquiry limits a courts ability to address these arguments. It
holds that the U.S. judiciary does not have the authority to scrutinize the fairness of the requesting nations legal system or examine the conditions that await an extraditee upon return, including the ability to provide for his or her physical security.115
This doctrine is based on considerations of international comity
and institutional competence very similar to those underlying the
rule of specialty.
In Hoxha v. Levi,116 the petitioner alleged that if returned to
Albania to face trial for murder, he would be subjected to torture
and possibly murdered.117 The district court had noted these concerns and strongly encouraged the State Department to seriously examine the charges.118 Under the rule of non-inquiry, the
Third Circuit upheld the district courts decision not to consider
Hoxhas claim because such humanitarian considerations are
within the purview of the executive branch and generally should
not be addressed by the courts in deciding whether petitioner is
extraditable.119
The First Circuit reached a similar conclusion in Koskotas v.
Roche,120 acknowledging the petitioners concerns for his physical
safety if returned to Greece, but declining to scrutinize his allega115. See United States v. Kin-Hong, 110 F.3d 103, 110 (1st Cir. 1997); In
re Extradition of Manzi, 888 F.2d 204, 206 (1st Cir. 1989); see also In re Extradition of Singh, 123 F.R.D. 127, 13140 (D.N.J. Nov. 2, 1987) (reviewing conflicting case law and concluding that accused not entitled to offer evidence that he
could not receive a fair trial if extradited to India).
116. 465 F.3d 554 (3d Cir. 2006).
117. See id. at 557.
118. Id. at 563 n.13.
119. Id. at 563.
120. 931 F.2d 169 (1st Cir. 1991).

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International Extradition: A Guide for Judges

tions because international comity would be ill-served by requiring foreign governments to submit their purposes and procedures to the scrutiny of United States courts.121
Judicial review of extradition proceedings, though an essential element of the extradition process, is limited in scope. Questions about another sovereigns legal and political systems are
reserved for the Secretary of State. Conditions in a requesting
country may indeed be relevant to whether extradition is appropriate, and the United States maintains extradition treaties with a
wide range of nations, some of which have oppressive and arbitrary regimes.122 But the rule of non-inquiry reserves for the Secretary of State the task of assessing whether there are political or
humanitarian grounds to deny extradition.

Is There a Humanitarian Exception to the Rule of Non-Inquiry?

In several cases extraditees have challenged the rule of noninquiry in the context of allegations that they will face torture if
extradited, raising claims pursuant to the United Nations Convention against Torture, codified into U.S. law by the Foreign
Affairs Reform and Restructuring Act of 1998 (FARRA), 8 U.S.C.
1231.123 Pursuant to FARRA, the United States will not extradite any person to a country in which there are substantial
grounds for believing the person would be in danger of being
subject to torture.124
The majority of courts considering challenges to extradition
under FARRA have declined to rule on this issue because the cases have not presented a final agency decision (the Secretary of

121. See id. at 174.

122. United States v. Kin-Hong, 110 F.3d 103, 111 n.12 (1st Cir. 1997).
123. See Mironescu v. Costner, 480 F.3d 664, 66668 (4th Cir. 2007);
Hoxha, 465 F.3d at 56365; Prasoprat v. Benov, 622 F. Supp. 2d 980, 98387
(C.D. Cal. 2009).
124. Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No.
105-277, 2422, 112 Stat. 2681, 2682.

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International Extradition: A Guide for Judges

States extradition order) and, accordingly, have not been ripe for
adjudication.125
If the Secretary of State certifies extradition despite an extraditees claim under FARRA, may the extraditee challenge this
determination in court? The case law on this issue remains sparse
but is evolving.126 Commentators have argued that allegations of
torture or similar atrocities may rise to the level of a cognizable
humanitarian exception to extradition.127 While some courts
have acknowledged this possibility in dicta, others have concluded that such considerations are relegated to the Secretary of State,
and the Secretarys conclusions are not reviewable by the
courts.128
In Trinidad y Garcia v. Thomas,129 the petitioner alleged that
extradition to the Philippines would violate his rights under the
Convention against Torture and the due process clause of the
Fifth Amendment. In an en banc decision, the plurality found:
The process due here is that prescribed by the statute and implementing regulation: The Secretary must consider an extra125. Hoxha, 465 F.3d at 56465; Cornejo-Barreto v. Siefert, 218 F.3d 1004,
1016 (9th Cir.), revd, 379 F.3d 1075 (9th Cir.), vacated as moot, 389 F.3d 1307
(9th Cir. 2004); see also Prasoprat v. Benov, 421 F.3d 1009, 1016 (9th Cir. 2005)
(recognizing that while the courts have occasionally referred to the possibility of
a humanitarian exception in dicta, they have never actually relied on it to create such an exception) (internal quotation marks omitted).
126. In Prasoprat v. Benov, 622 F. Supp. 2d 980, 98387 (C.D. Cal. 2009),
petitioner refiled a habeas petition after the Secretary of State certified petitioners extradition despite allegations that he would be tortured if returned to
Thailand, arguing that the Secretarys decision is subject to judicial review under FARRA. The district court agreed to review but ultimately declined to grant
habeas relief, finding that petitioner did not show that torture was more likely
than not. Id. at 988.
127. 2 Ved P. Nanda & David K. Pansius, Litigation of International Disputes in U.S. Courts 10:21 (2d ed. 2013) (detailed discussion of the implications of the Convention Against Torture for extradition law).
128. Id. nn.2327.
129. 683 F.3d 952 (9th Cir. 2012) (en banc) (per curiam), cert denied, 133
S. Ct. 845 (2013).

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International Extradition: A Guide for Judges

ditees torture claim and find it not more likely than not that
the extraditee will face torture before extradition can occur. An
extraditee thus possesses a narrow liberty interest that the Secretary comply with her statutory and regulatory obligations.130

Concluding that the record lacked evidence of this review, the

court remanded the case to the district court so that the Secretary of State may augment the record by providing a declaration
that she has complied with her obligations.131
Significantly, the court also ruled that once the State Department makes a determination regarding extraditability, the
rule of non-inquiry block(s) any inquiry into the substance of
the Secretarys declaration.132 The majority in Trinidad made the
limited scope of judicial review explicit: [t]o the extent that we
have previously implied greater judicial review of the substance
of the Secretarys extradition decision other than compliance
with her obligations under domestic law, we overrule that precedent.133

Review Pursuant to Writ of Habeas Corpus

An order certifying extradition is not appealable because it is not
considered final within the meaning of 28 U.S.C. 3191.134 The
ultimate decision to extradite lies with the Secretary of State.
Therefore, an extraditees sole remedy from an extradition order
is a writ of habeas corpus.135 This writ may be sought at any point
130. Id. at 957 (internal citation omitted).
131. Id.
132. Id.
133. Id. Of note, four judges on the en banc panel issued a dissent, concluding that the rule of non-inquiry renders remand to the lower court unnecessary. See id. at 963 (Tallman, J., dissenting). However, two other judges on the
panel would have left open the issue of whether the rule of non-inquiry precludes substantive judicial review. See id. at 984 (Berzon, J., concurring in part
and dissenting in part).
134. 28 U.S.C. 3191 (2006).
135. See Ahmad v. Wigen, 910 F.2d 1063, 1065 (2d Cir. 1990).

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International Extradition: A Guide for Judges

during the extradition proceeding and is filed with the district

court. Appeal may be taken to the U.S. court of appeals.
Appellate review of a district courts ruling in an extradition
habeas is de novo and is limited to whether:

the judge reviewing the extradition request had jurisdiction;

the offense charged fell within the extradition treaty; and
probable cause existed to believe the accused was guilty
of the underlying offense.136

The burden of proof in a habeas proceeding challenging extradition rests with the petitioner. In Skaftouros v. United States, the
Second Circuit reversed the district courts ruling that imposed
the burden of proof on the government:
[C]ollateral review of an international extradition order
should begin with the presumption that both the order and the
related custody of the fugitive are lawful.
We therefore hold that, in order to merit habeas relief in a
proceeding seeking collateral review of an extradition order,
the petitioner must prove by a preponderance of the evidence
that he is in custody in violation of the Constitution or laws
or treaties of the United States which, in this context, will typically mean in violation of the federal extradition statute or the
applicable extradition treaty.137

Although habeas review of an extradition proceeding is narrow

in scope, the reviewing court is not expected to wield a rubber
stamp and must review the sufficiency of the probable cause
showing and examine the record to ensure that applicable treaty
provisions and U.S. law have been followed.138

136. See Fernandez v. Phillips, 268 U.S. 311, 312 (1925); Skaftouros v.
United States, 667 F.3d 144, 157 (2d Cir. 2011); Ntakirutimana v. Reno, 184
F.3d 419, 423 (5th Cir. 1999).
137. Skaftouros, 667 F.3d at 158 (citations omitted).
138. Id.

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International Extradition: A Guide for Judges

Conclusion
In most cases, the judges role in an extradition proceeding is
limited to ensuring that the extradition request is adjudicated in
compliance with U.S. law and the applicable treaty. The United
States is party to over 150 extradition treaties, and in some cases
judges are called on to interpret treaty provisions; other cases
may require judges to exercise their discretion over areas addressed neither by treaty nor statute, including bail proceedings,
discovery, and unusual evidentiary requests. While not an exhaustive review of U.S. case law, this guide should provide judges
with a general understanding of the procedural, practical, and
substantive law issues that may arise when a foreign country requests the extradition of a fugitive located in the United States.

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International Extradition: A Guide for Judges

Appendix A
UNITED STATES DISTRICT COURT FOR THE
[Jurisdiction]
IN THE MATTER OF THE EXTRADITION )
)
OF
)
)
[EXTRADITEE]
)

Hon. [Judge]

Mag. No.[XX-XXXX]

CERTIFICATION OF EXTRADITABILITY
AND
ORDER OF COMMITMENT
The Court has received the Complaint filed on [Date], by [Assistant
United States Attorney], Assistant United States Attorney for the District of [State], for and on behalf of the Government of the United
States, pursuant to that Governments request for the provisional arrest
and extradition of [Extraditee]. The Court has also received an affidavit
executed by [Extraditee] and witnessed by his attorney, [Attorney].
On [Date] this Court held a formal extradition proceeding during
which [Extraditee] [Insert relevant facts, for example: appeared before
the Court in open session, accompanied by his attorney, and in the
presence of the aforementioned Assistant United States Attorney. The
Court addressed [Extraditee] and is satisfied that he is aware of his
rights as set forth in the affidavit of consent to extradition and that the
affidavit was executed knowingly and voluntarily].
Inasmuch as [Extraditee] has conceded that [he] is extraditable on
the charges for which extradition was requested, and has consented to a
certification by this Court to that effect, and has further consented to
remain in custody pending the arrival of agents from the requesting
state to effect [his] transfer to the requesting state, the Court finds on
the basis of the record herein and the representations of [Extraditee]
and counsel that:
1.
2.

the undersigned judicial officer is authorized under Title 18,

United States Code, Section 3184, to conduct an extradition
hearing;
the Court has personal jurisdiction over [Extraditee] and subject-matter jurisdiction over the case;

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International Extradition: A Guide for Judges

3.
4.

5.
6.
7.

8.
9.

there is currently in force an extradition treaty between the

Government of the United States and the Government of
[Country], S. Treaty Doc. [Treaty citation];
[Extraditee] has been charged in [Country] with [Offense], in
violation of [Country]s Criminal Code [Relevant codes from
the Statute]; [Relevant language from the statute], in violation
of [Country]s Criminal Code [Relevant codes from the Statute]; and [Other offense], in violation of [Country]s Criminal
Code [Relevant codes from the Statute];
these charges constitute extraditable offenses within the meaning of [section, subsection] of the Treaty;
the requesting state seeks the extradition of [Extraditee] for
trial for these offenses;
[Extraditee] has stipulated that the evidence is sufficient to
support a finding that probable cause exists to support his extradition to [Country] for the charges for which extradition
was sought;
that there is probable cause to support [Extraditee]s extradition to [Country] for the charges for which extradition was
sought; and
[Name of Extraditee] reserves all rights he may have under the
Rule of Specialty, as described in [Relevant section of the Treaty] of the extradition treaty between the United States and
[Country].

Based on the foregoing findings, the Court concludes that [Extraditee] is extraditable for [the/each] offense for which extradition was
requested, and certifies this finding to the Secretary of State as required
under Title 18, United States Code, Section 3184.
IT IS THEREFORE ORDERED that the Clerk of the Court deliver
to the Assistant United States Attorney a certified copy of this Certification of Extraditability and the executed Affidavit of Consent to Extradition and, further, that the Clerk forward certified copies of the same to
the Secretary of State (to the attention of the Legal Adviser) and the
Director, Office of International Affairs, Criminal Division, U.S. Department of Justice, in Washington, D.C., for the appropriate disposition.
IT IS FURTHER ORDERED that [Extraditee] be committed to the
custody of the United States Marshal pending final disposition of this
matter by the Secretary of State and arrival of agents of the requesting
state, at which time [Extraditee] will be transferred to the custody of the
agents of the requesting state at such time and place as mutually agreed

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International Extradition: A Guide for Judges

upon by the United States Marshal and the duly authorized representatives of the Government of [Country] to be transported to [Country].
SO ORDERED.
Dated this [Date] day of [Month], [Year].

Hon. [Judge]
United States [District] Judge

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International Extradition: A Guide for Judges

Appendix B
UNITED STATES DISTRICT COURT FOR THE
[Jurisdiction]
IN THE MATTER OF THE EXTRADITION )
)
OF
)
)
[EXTRADITEE]
)

Hon. [Judge]

Mag. No. [XX-XXXX]

AFFIDAVIT OF CONSENT TO EXTRADITION

I [Extraditee], have been fully informed by my attorneys, [Attorney] of
the firm [Law Firm] and [Second Attorney] of the firm [Law Firm]
with whose services I am satisfied, that I have certain rights pursuant to
United States law, including Title 18, United States Code, Section 3184
et seq., and the extradition treaty between the United States and [Country].
In particular, I understand that:
1. the Government of [Country], has requested my provisional
arrest and extradition; and
2. under Title 18, United States Code, Section 3184, I am entitled
to a hearing at which certain facts would need to be established, including:
a. that currently there is an extradition treaty in force between
the United States and [Country];
b. that the treaty covers the offenses for which my extradition
was requested;
c. that I am the person whose extradition is sought by [Country]; and
d. that probable cause exists to believe that I committed the
offenses for which extradition was requested.
I further understand that I cannot be extradited to the requesting
state unless and until a court of the United States certifies its finding of
extraditability to the Secretary of State and the Secretary signs a warrant
of surrender.

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International Extradition: A Guide for Judges

In full knowledge of the above, I hereby concede that I am the individual against whom charges are pending in [Country] and for whom
process is outstanding there.
I further stipulate, without conceding guilt that the evidence is sufficient to support a finding that probable cause exists to support my
extradition to the requesting state for the charges for which extradition
was sought. I consent to a certification by the Court of my extraditability without the need for a hearing as contemplated under 18 U.S.C.
3184; to a decision by the Secretary of State authorizing my surrender;
to be transported in custody to the requesting state as soon as its agents
may arrive; and to remain in the custody of the United States Marshal
pending the arrival of agents of the requesting state. I give this consent
voluntarily, knowingly, and entirely of my own free will. I specifically
reserve all rights I have under the Rule of Specialty, as described in [Article] of the extradition treaty between the United States and [Country].
No representative, official, or officer of the United States or of the Government of [Country], nor any other person whom has made any
promise or offered any other form of inducement nor made any threat
or exercised any form of intimidation against me.
Dated this [Date] day of [Month], [Year].
[Signature of Extraditee]
[Extraditee]
[Signature of Extraditees Attorney]
[Name of Attorney], Esq.
Attorney for [Extraditee]
I hereby certify that on this [Date] day of [Month], [Year], [Name of
Extraditee] personally appeared before me and made his oath that the
statements herein are true.

35

The Federal Judicial Center

Board
The Chief Justice of the United States, Chair
Judge John D. Bates, Director of the Administrative Office of the U.S. Courts
Judge Catherine C. Blake, U.S. District Court for the District of Maryland
Magistrate Judge Jonathan W. Feldman, U.S. District Court for the Western District of
New York
Judge James F. Holderman, Jr., U.S. District Court for the Northern District of Illinois
Judge Michael M. Melloy, U.S. Court of Appeals for the Eighth Circuit
Chief Judge C. Ray Mullins, U.S. Bankruptcy Court for the Northern District of Georgia
Judge Edward C. Prado, U.S. Court of Appeals for the Fifth Circuit
Judge Kathryn H. Vratil, U.S. District Court for the District of Kansas
Director
Judge Jeremy D. Fogel
Deputy Director
John S. Cooke

About the Federal Judicial Center

The Federal Judicial Center is the research and education agency of the federal judicial
system. It was established by Congress in 1967 (28 U.S.C. 620629), on the recommendation of the Judicial Conference of the United States.
By statute, the Chief Justice of the United States chairs the Centers Board, which also
includes the director of the Administrative Office of the U.S. Courts and seven judges
elected by the Judicial Conference.
The organization of the Center reflects its primary statutory mandates. The Education Division plans and produces education and training for judges and court staff, including in-person programs, video programs, publications, curriculum packages for incourt training, and Web-based programs and resources. The Research Division examines
and evaluates current and alternative federal court practices and policies. This research
assists Judicial Conference committees, who request most Center research, in developing
policy recommendations. The Centers research also contributes substantially to its educational mission. The Federal Judicial History Office helps courts and others study and
preserve federal judicial history. The International Judicial Relations Office provides
information to judicial and legal officials from foreign countries and assesses how to
inform federal judicial personnel of developments in international law and other court
systems that may affect their work. Two units of the Directors Officethe Information
Technology Office and Communications Policy & Design Officesupport Center missions through technology, editorial and design assistance, and organization and dissemination of Center resources.