Every extradition treaty to which the United States is a party requires a formal request for extradition, supported by appropriate documents. Because the time involved in preparing a formal request can be lengthy, most treaties allow for the provisional arrest of fugitives in urgent cases. Once the United States requests provisional arrest pursuant to the treaty, the fugitive may be arrested and detained (or, in some countries, released on bail) following the issuance of an order of arrest by the foreign authorities. Thereafter, the United States must submit a formal request for extradition, supported by all necessary documents, duly certified, authenticated and, if necessary, translated into the language of the country where the fugitive was arrested, within a specified time (from 30 days to three months, depending on the treaty). See JM 9-15.240. Failure to follow through on an extradition request by submitting the requisite documents after a provisional arrest has been made will result in release of the fugitive, strains on diplomatic relations, and possible liability for the prosecutor.

The Criminal Division’s Office of International Affairs (OIA) determines whether the facts of the case meet the requirement of urgency under the terms of the applicable treaty. If they do, OIA requests provisional arrest; if not, the prosecutor assembles the documents for a formal request for extradition. The latter method is favored when the defendant is unlikely to flee because the time pressures generated by a request for provisional arrest may result in errors that can damage the case. If provisional arrest is necessary because of the risk of flight, the prosecutor should complete the form for requesting provisional arrest and forward it, along with a copy of the charging document and arrest warrant, to OIA by email. State prosecutors who request provisional arrest must also certify that they will submit the necessary documents on time and will cover all expenses, including the costs of translation and transportation by U. S. Marshals.

Prosecutors should complete a form requesting provisional arrest (available from OIA) in any case in which it appears that provisional arrest may be necessary. Once it is completed, it may be emailed directly to the OIA attorney or team responsible for the country in which the fugitive has been found or is believed to be located. A copy of the charging document, arrest warrant, and any other necessary documents to support the provisional arrest request to that country should be forwarded to OIA.

The form was created with both federal and state cases in mind. Thus, Assistant United States Attorneys are free to share the form with state and local prosecutors working on extradition cases. State prosecutors should email it to the OIA attorney who covers the relevant country.

[cited in JM 9-15.700]

[updated April 2018]