Can the Government Extradite Me to the United States?

The United States can extradite a criminal defendant back to the United States by following the process outlined in 18 U.S.C. § 3184. The statute provides, in relevant part,

“Whenever there is a treaty or convention for extradition between the United States and any foreign government, …, 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, … issue his warrant for the apprehension of the person so charged . . . 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 … 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 [then] he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention…, 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…; 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.”

This process requires a treaty or convention for extradition between the United States and the foreign government, a judicial determination of probable cause, and certification of the evidence to the Secretary of State. According to this statute, the United States must have a treaty or convention for extradition with the foreign government in order for the extradition process to proceed. If such a treaty or convention exists, a judge or magistrate can issue a warrant for the defendant’s arrest and hold a hearing to determine whether there is probable cause to sustain the charge. If the judge finds that there is probable cause, they will certify the evidence to the Secretary of State, who will then decide whether to surrender the defendant to the requesting country.

The court’s role is fairly limited but has to decide whether a crime is extraditable under the relevant treaty and whether probable cause exists to sustain the charge. Vo v. Benov, 447 F.3d 1235, 1245 (9th Cir. 2006); see also Ordinola v. Hackman, 478 F.3d 588, 608 (4th Cir. 2007) (Traxler, J., concurring). 

The ultimate decision, however, is a matter within the exclusive prerogative of the Executive branch.  Escobedo v. United States, 623 F.2d 1098, 1105 (5th Cir. 1980). “This bifurcated procedure reflects the fact that extradition proceedings contain legal issues peculiarly suited for judicial resolution, such as questions of the standard of proof, competence of evidence, and treaty construction, yet simultaneously implicate questions of foreign policy, which are better answered by the executive branch.” United States v. Kin-Hong, 110 F.3d 103, 110 (1st Cir. 1997). 

So, the short answer is Yes. The Government can extradite someone back to the United States or can extradite someone back to a requesting jurisdiction so long as there is a treaty that is in full force and effect and there is a judicial determination of probable cause.  If you’re facing extradition, you want to work with an attorney as this can be a complex legal situation especially if there may be issues regarding torture in the requesting jurisdiction.  Please feel free to call us at (803) 445-1333 to discuss further or email us at elizabeth@franklinbestlaw.com.