Foreign requests for extradition of fugitives located in the United States are ordinarily submitted by the embassy of the country making the request to the Department of State, which reviews and forwards them to the Criminal Division's Office of International Affairs (OIA). Such requests may seek the fugitive’s provisional arrest for purposes of extradition or may seek extradition and be fully supported by all documents required under the applicable treaty. (Under more contemporary extradition treaties, requests for provisional arrest may be transmitted directly to the Department of Justice if the treaty permits. See JM 9-15.230 for an explanation of provisional arrest.)

The Department of State works with OIA to determine compliance with the treaty requirements. The Department of State will separately verify in a transmission to OIA that there is a treaty in force between the United States and the country making the request, that the crime or crimes are extraditable offenses under the terms of the treaty, and that the supporting documents are properly certified.

When OIA receives a foreign extradition request, in summary, the following occurs:

1. 1. OIA reviews the request, and, if it is sufficient and appropriate, forwards it to the U.S. Attorney’s Office in the district where the fugitive is located.
2. 2. An Assistant United States Attorney will be assigned to the case and will seek a warrant for the fugitive’s arrest. Once arrested, the fugitive is brought before the magistrate judge or the district judge, who informs the fugitive of the reasons for the arrest and the nature of the proceedings. The prosecutor, when appearing in court in support of the request for extradition, is representing the United States in fulfilling its obligations under the extradition treaty.
3. 3. The government opposes bond in extradition cases.
4. 4. Neither the Federal Rules of Evidence nor the Federal Rules of Criminal Procedure apply. Fed. R. Evid. 1101(d)(3), Fed. R. Crim. P. 1(a)(5)(A). Both the extradition statute, 18 U.S.C.§ 3184, and the local rules of most federal courts provide that a magistrate judge may conduct extradition proceedings.
5. 5. A hearing under 18 U.S.C. § 3184 is scheduled to determine whether the fugitive is extraditable. When scheduling the extradition hearing in cases of provisional arrest, prosecutors should ensure that courts are cognizant of the time allotted in the treaty for submission of the documents in support of the request. Prosecutors should also take into account the transmission of the documents from the Department of State to the court and counsel. If the court finds the fugitive to be extraditable, it certifies the extradition and sends the record to the Secretary of State, who decides whether to surrender the fugitive. In some cases a fugitive may waive the extradition process or consent to extradition.
6. 6. Although the certification of extradition following the hearing is not appealable (by either the fugitive or the government), the fugitive may petition for a writ of habeas corpus under 28 U.S.C. § 2241 as soon as the certification is issued. The district court's decision on the writ of habeas corpus is subject to appeal, and the extradition may be stayed if the court so orders.
7. 7. Prosecutors must notify OIA immediately if a habeas petition is filed.
8. 8. Following the decision of the Secretary of State (or his or her designees) to issue the surrender warrant, OIA notifies the foreign government and arranges for the transfer of the fugitive to the custody of the agents of the country requesting extradition.

OIA attorneys are subject-matter experts on extradition, and OIA is responsible for ensuring that the government’s position in such cases remains consistent. Therefore, prosecutors must consult with OIA regarding both pleadings and significant legal issues arising in extradition litigation.

[updated June 2018]