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 

Center’s 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

iii

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
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

Department of 

Justice Office of 

International 

Affairs conducts 

full review and 

assigns Assistant 

United States 

Attorney to case.

Arrest Warrant

Arrest warrant filed in 

district where fugitive 

is located. 

Arraignment before 

extradition judge 

(usually magistrate 

judge).

Bail

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.

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. Secretary of State 

Review

Will consider hearing 

record, foreign policy 

interests, and 

conditions in 

requesting country. 

Final decision is 

discretionary.

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

1

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 

court’s 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

2

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. §§ 3181–3196.

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 

22–24, is one such example.
International Extradition: A Guide for Judges

3

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 warrant”7 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 government’s initial attempt to move forward with an 

extradition fails and it has a good-faith basis to believe extradi5. 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, 1372–78 (9th Cir. 1997).
International Extradition: A Guide for Judges

4

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 

attorney—usually an Assistant United States Attorney—files 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, 1444–45 (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, 898–99 (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

5

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, 763–64 (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

6

• 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 testimony—the 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 extra17. 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 7–8.
International Extradition: A Guide for Judges

7

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 extraditee’s 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, 62–63 (1902); In re Extradition of Russell, 805 F.2d 1215, 1216–17 (5th Cir. 1986).

19. See Yusev, 2013 WL 1283822, at *1.

20. See United States v. Taitz, 130 F.R.D. 442, 444–45 (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, 473–74 (S.D. Tex. 

2010). 

22. Id. at 470–72.

23. Id. at 474. 
International Extradition: A Guide for Judges

8

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, 665–66 (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 474–75.

26. See United States v. Williams, 611 F.2d 914, 915 (1st Cir. 1979); Ramnath, 533 F. Supp. 2d at 666–67.

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

9

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 judge’s certification and the Secretary of 

State’s 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 extraditee’s 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. Dep’t 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. Int’l 

& 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. Dep’t 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

10

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 court’s 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. Dep’t of State, supra note 30.

39. See infra pages 22–24.

40. Cf. United States v. DiTommaso, 817 F.2d 201, 212 (2d Cir. 1987) 

(rejecting defendant’s 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).
International Extradition: A Guide for Judges

11

• 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, 425–26 (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 8–10 (discussing waiver of extradition).

49. See Cheung, 213 F.3d at 88.
International Extradition: A Guide for Judges

12

Evidentiary Issues

The Federal Rules of Evidence do not apply to extradition proceedings—instead 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.
International Extradition: A Guide for Judges

13

Right to Present Evidence

The extraditee’s 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 government’s showing of probable 

cause. But, evidence that merely contradicts the government’s 

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 evidence—sometimes a challenging task—is 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 Nat’l 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, 315–17 (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).
International Extradition: A Guide for Judges

14

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 petitioner’s 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 Hoxha’s 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 under58. See id. at 947, 949–50.

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 511–12.
International Extradition: A Guide for Judges

15

mining the government’s 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 government’s 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 court’s ‘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 866–67 (observing the court’s prerogative to request that the government provide materials pertinent to the “identity 

of the requested person” or “treaty defenses . . . preclud[ing] extradition”).
International Extradition: A Guide for Judges

16

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 individual’s 

identity as a senior political figure may be relevant to assessing 

the motive of the requesting state, the extraditee’s 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. 171–72.

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 
International Extradition: A Guide for Judges

17

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 Ts’peten 

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 518–23 (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 7–8.

76. In re Extradition of Suarez-Mason, 694 F. Supp. 676, 702–03 (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).
International Extradition: A Guide for Judges

18

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 15–16 (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), aff’d, 478 F.2d 

1397 (2d Cir. 1973).

81. Garcia & Doyle, supra note 37, at 14–15 (“Although the U.S. Constitution’s 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).
International Extradition: A Guide for Judges

19

In Skaftouros v. United States,

82 the district court granted the 

petitioner’s 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 court’s 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 nation’s 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”).
International Extradition: A Guide for Judges

20

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 petitioner’s argument 

that the two statutes included somewhat different elements.94

However, dual criminality requires courts to focus on a defendant’s 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 9–10 & 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, 893–94 (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).
International Extradition: A Guide for Judges

21

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).
International Extradition: A Guide for Judges

22

Khan’s 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 1372–73; 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, 205–06 (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. EP–13–MC–00166–ATB, 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, 

583–84 (6th Cir. 1985) (right to assert specialty lies with requested state). The
International Extradition: A Guide for Judges

23

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 government’s diplomatic note conditioning his extradition on the U.S. government’s 

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 judiciary’s 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 defendant’s 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.
International Extradition: A Guide for Judges

24

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 court’s 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 sought—including TADA violations.114

108. Id.

109. Gallo-Chamorro v. United States, 233 F.3d 1298, 1306 (11th Cir. 

2000).

110. Lomeli, 596 F.3d at 502.

111. See, e.g., In re Extradition of Diaz Medina, 210 F. Supp. 2d 813 

(2002).

112. 932 F. Supp. 802 (1996).

113. Id. at 820.

114. Id.
International Extradition: A Guide for Judges

25

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 court’s ability to address these arguments. It 

holds that the U.S. judiciary does not have the authority to scrutinize the fairness of the requesting nation’s 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 court’s decision not to consider 

Hoxha’s 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 petitioner’s 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, 131–40 (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).
International Extradition: A Guide for Judges

26

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 sovereign’s 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, 666–68 (4th Cir. 2007);

Hoxha, 465 F.3d at 563–65; Prasoprat v. Benov, 622 F. Supp. 2d 980, 983–87 

(C.D. Cal. 2009).

124. Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 

105-277, § 2422, 112 Stat. 2681, 2682.
International Extradition: A Guide for Judges

27

State’s extradition order) and, accordingly, have not been ripe for 

adjudication.125

If the Secretary of State certifies extradition despite an extraditee’s 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 Secretary’s 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 564–65; Cornejo-Barreto v. Siefert, 218 F.3d 1004, 

1016 (9th Cir.), rev’d, 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, 983–87 (C.D. Cal. 2009), 

petitioner refiled a habeas petition after the Secretary of State certified petitioner’s extradition despite allegations that he would be tortured if returned to 

Thailand, arguing that the Secretary’s 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.23–27.

129. 683 F.3d 952 (9th Cir. 2012) (en banc) (per curiam), cert denied, 133 

S. Ct. 845 (2013).
International Extradition: A Guide for Judges

28

ditee’s 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 Secretary’s 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 Secretary’s 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 extraditee’s 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). 
International Extradition: A Guide for Judges

29

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 court’s 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 court’s 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.
International Extradition: A Guide for Judges

30

Conclusion

In most cases, the judge’s 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.
International Extradition: A Guide for Judges

31

Appendix A

UNITED STATES DISTRICT COURT FOR THE

[Jurisdiction]

IN THE MATTER OF THE EXTRADITION ) Hon. [Judge]

)

OF )

)

[EXTRADITEE] ) 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 Government’s 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. the undersigned judicial officer is authorized under Title 18,

United States Code, Section 3184, to conduct an extradition 

hearing;

2. the Court has personal jurisdiction over [Extraditee] and subject-matter jurisdiction over the case;
International Extradition: A Guide for Judges

32

3. 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];

4. [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];

5. these charges constitute extraditable offenses within the meaning of [section, subsection] of the Treaty;

6. the requesting state seeks the extradition of [Extraditee] for 

trial for these offenses;

7. [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;

8. that there is probable cause to support [Extraditee]’s extradition to [Country] for the charges for which extradition was 

sought; and

9. [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 
International Extradition: A Guide for Judges

33

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
International Extradition: A Guide for Judges

34

Appendix B

UNITED STATES DISTRICT COURT FOR THE

[Jurisdiction]

IN THE MATTER OF THE EXTRADITION ) Hon. [Judge]

 )

OF )

 )

[EXTRADITEE] ) 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.
International Extradition: A Guide for Judges

35

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 Extraditee’s 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.
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. §§ 620–629), on the recommendation of the Judicial Conference of the United States. 

By statute, the Chief Justice of the United States chairs the Center’s 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 Center’s 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 Director’s Office—the Information 

Technology Office and Communications Policy & Design Office—support Center missions through technology, editorial and design assistance, and organization and dissemination of Center resources.