How Extradition to and from the United States Works

Our article titled “How the Extradition Process Works” provides a general overview of international extradition. When the United States is involved, that general framework applies through specific judicial, diplomatic, and executive procedures.

The process differs depending on whether the United States is requesting the return of an individual from another country or a foreign government is requesting the surrender of an individual located in the United States.

U.S. Extradition Is Generally Treaty-Based

International extradition involving the United States is generally based on a bilateral or multilateral extradition treaty. Ordinarily, the United States may extradite an individual to a foreign country only when an applicable treaty or convention authorizes the surrender.

The United States maintains extradition relationships with more than 100 countries. However, it does not have an extradition treaty with every country, and the existence of a treaty does not automatically mean that a particular request will be granted. Each request must satisfy the terms of the applicable treaty and relevant domestic law.

Federal law also recognizes certain narrow exceptions in which an individual who is not a U.S. citizen, national, or permanent resident may potentially be surrendered without a treaty for specified offenses committed against U.S. nationals abroad. These cases are exceptional and subject to specific statutory requirements.

Additional information is provided in our article titled “Which Countries Have Extradition Treaties with the United States?”

When the United States Requests Extradition from Another Country

When the United States seeks the return of an individual located abroad, the process ordinarily begins with a federal or state prosecutor working with law enforcement authorities to prepare the criminal case and supporting materials.

The prosecutor coordinates with the Office of International Affairs within the U.S. Department of Justice. The Office of International Affairs reviews the matter to determine whether extradition is legally available and whether the documentation satisfies the applicable treaty and the requirements of the requested country.

Once the request is approved and completed, it is generally transmitted to the U.S. Department of State. The Department of State then presents the request to the foreign government through diplomatic channels.

At that point, the laws and procedures of the requested country govern the proceedings. Depending on that country’s legal system, the process may include:

• The arrest or provisional arrest of the individual;
• A judicial hearing;
• Review of the evidence and treaty requirements;
• Administrative or executive approval; and
• An appeal or other form of judicial review.

If the foreign country authorizes surrender, the Office of International Affairs coordinates with the appropriate U.S. law enforcement agencies to arrange the individual’s transportation to the United States and transfer into U.S. custody.

When a Foreign Country Requests Extradition from the United States

When a foreign government seeks the extradition of an individual located in the United States, it ordinarily submits a formal request to the U.S. Department of State through diplomatic channels, often through its embassy.

The Department of State initially reviews the request and then forwards it to the Department of Justice’s Office of International Affairs. The Office of International Affairs evaluates whether the request satisfies the applicable treaty and legal requirements. If the request is sufficient, it is referred to the appropriate U.S. Attorney’s Office, which initiates proceedings in federal court on behalf of the requesting country.

A federal judge or magistrate judge then conducts an extradition hearing. The court does not determine whether the individual is guilty or innocent of the underlying criminal charges. Instead, it generally considers whether:

• The court has jurisdiction over the individual;
• A valid extradition treaty applies;
• The alleged offense is covered by the treaty;
• The individual before the court is the person sought by the requesting country; and
• Sufficient evidence supports the applicable extradition standard, which commonly includes probable cause in cases involving pending charges.

This is not the same as the “beyond a reasonable doubt” standard required for a criminal conviction.

If the court finds that the legal requirements have been satisfied, it certifies the individual as extraditable and forwards the matter to the Secretary of State. The Secretary of State then makes the final executive decision regarding whether the individual will be surrendered to the requesting country.

The Secretary may consider foreign-policy, humanitarian, medical, and other matters that may fall outside the limited scope of the extradition court’s review. A judicial certification therefore does not, by itself, complete the surrender.

Provisional Arrest in Urgent Cases

An extradition treaty may permit a requesting country to seek the provisional arrest of an individual before submitting the complete formal extradition package. This procedure is generally used when there is an urgent concern that the person may flee or become unavailable while the formal request is being prepared.

A provisional arrest is not automatic. The request must satisfy the applicable treaty and U.S. legal requirements. If the individual is provisionally arrested, the requesting country must ordinarily submit its formal extradition request and supporting documents within the deadline established by the treaty.

Failure to provide the required materials within that period may result in the individual’s release from provisional custody, although it does not necessarily prevent a later arrest following submission of a complete request.

INTERPOL Red Notices

An INTERPOL Red Notice is a request circulated to law enforcement authorities around the world to locate and provisionally arrest a person pending extradition, surrender, or another lawful proceeding. It is based on a national arrest warrant or comparable judicial decision issued by the requesting country.

A Red Notice is not an international arrest warrant, and INTERPOL does not independently order a person’s arrest. Each member country decides what legal effect, if any, to give a Red Notice under its own laws.

In the United States, a Red Notice alone does not provide an independent legal basis for arrest. If the individual is located in the United States, the foreign government must generally submit an appropriate request for provisional arrest or formal extradition. U.S. authorities must then obtain the necessary judicial authorization in accordance with federal law and the applicable treaty.

Nevertheless, a Red Notice may have significant practical consequences, including increased law enforcement scrutiny, travel restrictions, immigration complications, detention in another jurisdiction, or notification to the requesting country.

Challenging an Extradition Certification in the United States

A person certified as extraditable by a U.S. court generally does not have a direct right to appeal the certification order in the same manner as a final judgment in an ordinary criminal case.

The principal method of seeking judicial review is typically a petition for a writ of habeas corpus under federal law. The scope of habeas review in an extradition matter is narrower than a conventional criminal appeal. It generally focuses on issues such as the court’s jurisdiction, whether the offense falls within the applicable treaty, and whether legally sufficient evidence supports the certification.

A federal district court’s decision on the habeas petition may itself be subject to appellate review. However, filing a habeas petition does not necessarily result in an automatic stay of surrender; a separate stay may be required.

The rights and available challenges at different stages of the process are discussed further in our article titled “Your Rights When Facing an Extradition Request.”

How Long Does the Extradition Process Take?

There is no uniform timeline for international extradition. A case may take several months or, in complex or contested matters, several years.

The duration may depend on:

• The country involved;
• The applicable treaty;
• The complexity of the allegations;
• The sufficiency of the supporting documents;
• Whether provisional arrest is requested;
• The availability of judicial review or appeals;
• Whether habeas corpus proceedings are initiated;
• Humanitarian or human-rights objections; and
• The time required for executive and diplomatic review.

Each jurisdiction follows its own legal procedures, which can significantly affect the overall timeline.

When Asylum or Humanitarian Protection Is Also Involved

Some individuals facing extradition proceedings may have a pending asylum application or may already have received asylum or another form of humanitarian protection.

The existence of an asylum claim or protected status does not necessarily terminate an extradition case automatically. Nevertheless, it may raise substantial legal and humanitarian concerns, particularly when the extradition request originates from the country that the individual alleges has persecuted, tortured, or improperly prosecuted them.

These cases may involve overlapping questions of extradition law, immigration law, international human-rights obligations, diplomatic relations, and the authority of the Secretary of State. The relationship between the two processes is discussed in our article titled “Extradition vs. Asylum.”

Obtaining Legal Assistance

Extradition proceedings involving the United States are highly specialized and may require simultaneous attention to treaty provisions, federal statutes, foreign criminal proceedings, constitutional issues, immigration status, and international human-rights protections.

Determining whether the United States is requesting extradition or responding to a foreign request is only the first step. The applicable treaty, procedural stage, underlying charges, nationality and immigration status of the person sought, and potential defenses must all be evaluated carefully.

Legal Disclaimer

This article is provided for general informational purposes only and does not constitute legal advice. Extradition laws and procedures vary according to the applicable treaty, jurisdiction, allegations, and circumstances of each case. Anyone facing an extradition request, provisional arrest, INTERPOL Red Notice, or related proceeding should consult a qualified attorney before taking action.

For an individualized assessment and legal assistance with extradition or other legal matters, you may contact Merit Law LLP by telephone at +1 (973) 317-6056, by email at info@meritllp.com, or through the contact form on our website.