An introduction to US extradition law
Generally under United States law, extradition can only be granted when there is a treaty in place between the relevant countries. Some countries grant extradition without a treaty, in which case an offer of reciprocity is required.
All extradition requests must be reviewed and approved by the Office of International Affairs (OIA). Acting either directly or through the Department of State, OIA initiates all requests for provisional arrest of fugitives pursuant to extradition treaties.
Techniques used by the US to extradite and prosecute fugitives
Deportations, expulsions, or other extraordinary renditions
The OIA may ask a country to deport a fugitive if the person is not a citizen or resident of the country in which they are located. In United States v. Alvarez-Machain, 504 U.S. 655 (1992), the Supreme Court ruled that a court has jurisdiction to try a criminal defendant even if the defendant was abducted from a foreign country against their will by United States agents.
Due to the sensitivity of abducting defendants from a foreign country, prosecutors may not attempt to gain custody over the fugitive through means such as the use of government agents, private investigators or bounty hunters, without first notifying the OIA and obtaining advance approval by the Department of Justice.
Extradition from a third country
If the fugitive travels outside the country from which they are not extraditable, it may be possible to request their extradition from that country. Some countries, however, will not permit extradition if the defendant has been lured into their territory.
A lure involves ‘tricking’ a fugitive into leaving the country from which they are not extraditable, so that they can be arrested and extradited to the United States for prosecution. The location to where the criminal defendant can be lured could be the United States, in international waters or airspace, or a third country.
Some countries will not extradite a person to the United States if the person’s presence in that country was obtained through the use of a lure. Additionally, lures have the potential to cause foreign relations problems between the countries involved.
Revocation of US passports
The Department of State may revoke the passport of a person who is the subject of an outstanding Federal warrant. Revocation of the passport can result in loss of the fugitive’s lawful residence status, which may lead to his or her deportation.
If the fugitive has taken refuge in the country of which he or she is a national, and is thereby not extraditable, it may be possible to ask that country to prosecute the individual for the crime that was committed in the United States. This can be an expensive and time consuming process and in some countries domestic prosecution is limited to certain specified offences.
Nyman Gibson Miralis provides expert advice and representation in complex transnational cases involving extradition and mutual legal assistance.
Contact us if you require assistance.