If the fugitive is not a national or lawful resident of the country in which he or she is located, the Criminal Division’s Office of International Affairs (OIA), through the Department of State or other channels, may ask that country to deport, expel, or otherwise effectuate the lawful return of the fugitive to the United States.

In United States v. Alvarez-Machain, 504 U.S. 655 (1992), the Supreme Court held that a court has jurisdiction to try a criminal defendant even if the defendant was abducted from a foreign country against his or her will by United States agents. Though this decision reaffirmed the long-standing proposition that personal jurisdiction is not affected by claims of abuse in the process by which the defendant is brought before the court, see Ker v. Illinois, 119 U.S. 436 (1886); Frisbie v. Collins, 342 U.S. 519 (1952), it sparked concerns about potential violations of foreign sovereignty, territorial integrity, and criminal law.

Due to the sensitivity of abducting defendants from a foreign country, prosecutors may not take steps to secure custody over persons outside the United States (by government agents or the use of private persons, like bounty hunters or private investigators) by means of Alvarez-Machain type returns without advance approval by the Department of Justice. Prosecutors must consult with OIA before they undertake any such operation. If a prosecutor anticipates that a defendant may raise a claim that his return was illegal, the prosecutor must consult with OIA before such return.

Fugitives deported to the United States or otherwise legally returned without a formal order of extradition may claim that they were returned illegally to the United States. The courts generally dispose of those arguments under the Ker-Frisbie doctrine.

[cited in JM 9-15.600]

[updated April 2018]