International Extradition
International extradition is a unique area of law. But the stakes could not be higher. The U.S. government may forcibly send its own citizens to foreign countries to face criminal charges without the benefit of constitutional rights that are guaranteed in the U.S., or it may send citizens of foreign countries to face political trials under oppressive regimes in their home country. Unfortunately, persons in extradition proceedings have fewer legal protections than almost any other party in a legal action, including criminal defendants.
Basics of International extradition​
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International extradition involves a unique procedure where a federal Magistrate Judge usually determines whether to certify extraditability. After that, the U.S. Secretary of State will decide whether to move forward with the extradition or decline to move forward with the extradition despite the certification. A person in extradition proceedings, known as a "relator," can challenge the decisions by the Magistrate Judge and the Secretary by filing a petition for writ of habeas corpus. The relator is usually held in custody while these proceedings occur, but can be released on bond if there are "special circumstances."
Fighting against international extradition​
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Bond in Extradition Proceedings
It is surprisingly difficult to get bond in an extradition matter. In addition to the usual considerations of danger to the community and risk of flight, a Magistrate Judge must also find that there are "special circumstances" supporting a relator's request for bond.
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The Convention Against Torture
Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT") prohibits extraditing a relator to a country when there are "substantial grounds for believing that he would be in danger of being subjected to torture." The U.S. Secretary of State makes CAT determinations after a Magistrate Judge has certified extraditability. Barrientos PC can submit evidence to the Secretary that a relator will be tortured, and can challenge the Secretary's CAT determination by filing a petition of habeas corpus. However, it is extremely difficult to challenge the Secretary's determination once it has been made.
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Extradition Treaties & Foreign Criminal Law
Most extradition treaties have a dual-criminality requirement, meaning that the extradition can only occur if the charged offense in the requesting country is also a crime in the United States. Assessment of the dual-criminality requirement sometimes requires consultation with an attorney from the country requesting extradition.
Petitioning the U.S. Secretary of State
Depending on the circumstances, the U.S. Secretary of State may have discretion to decline extradition even if a treaty permits extradition. In such circumstances, Barrientos PC can petition the Secretary to decline extradition for a variety of reasons, such as humanitarian concerns that do not rise to the level required by CAT.
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Political Prosecutions in Foreign Countries
Many extradition treaties include political-offense exceptions, meaning that the extradition cannot happen if the criminal charge in the country requesting the extradition is political in nature. This exception may be more likely to come into play if a an oppressive or corrupt government controls the country requesting extradition. Whether this exception applies requires careful analysis of the relevant extradition treaty and caselaw.
Petition for writ of habeas corpus
A relator cannot challenge a Magistrate Judge's certification of extraditability through the normal appeals process. They must instead file a petition for habeas corpus, which goes to a federal District Court. The relator can then appeal the District Court's decision to uphold the Magistrate Judge's certification decision. A relator may also be able to bring a second petition for habeas corpus to challenge the Secretary of State's CAT determination.
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