Foreign Extradition

We represent clients who are facing extradition from the United States to foreign countries, where criminal charges are pending against them. Extradition is the formal process whereby an individual who is facing criminal charges in a foreign country is found in the United States and surrendered to the foreign government. Extradition is a unique procedure based on federal statute, its own body of case law, and interpretation of the extradition treaty between the United States and the requesting country (if one exists). We have substantial experience and understand this area of law, with which few other attorneys have experience.

Before extradition proceedings are even initiated, our attorneys would immediately coordinate representation in the requesting country. Retaining counsel in the requesting country is critical so that the client can have access to a lawyer who will begin investigating the facts on the ground and communicate with prosecuting attorneys about the timing of possible extradition, the possibility of bail in the foreign country, and the possibility of a plea deal with or without a waiver of extradition.

Ensuring that a client retains competent and experienced counsel in the requesting country early on is particularly important for the question of bail. In extradition proceedings in the United States, an individual is not entitled to a presumption in favor of bail, which is contrary to typical bail practice in a run-of-the-mill criminal case in the United States. Bail is rarely granted in extradition cases and is the exception, rather than the rule. In the context of extradition, an individual must meet the high bar of proving special circumstances, in addition to proving that they are not a flight risk or a danger to the community, in order to be released on bail pending extradition proceedings. Some factors that have been found by federal courts to constitute special circumstances warranting bail include: high probability of success on the merits; serious deterioration of health while detained; unusual delay in the appeals process; unusually long and complex extradition proceeding; proof that the requesting country would grant bail in a comparable extradition case; or proof that bail is available for the substantive offense in the requesting country.

Thus, whether bail is available in the requesting country is an important question that should be evaluated early on to ensure that it can be raised to argue in favor of bail. Proving that factor requires an affidavit or testimony from a competent local criminal attorney in the requesting country, who would attest that the individual would likely receive bail based on the charges at issue, the law on bail in the requesting country, and his or her individual circumstances. We have successfully obtained bail for a client based on this argument. Keeping an individual out of federal detention pending extradition is not only helpful for the client’s own personal needs, but also provides important negotiating leverage in dealing with foreign authorities.

We also have experience defending clients against extradition in federal court from initial appearance before the federal magistrate or judge, to filing for habeas corpus relief in federal court, through appeal and submitting a petition for relief to the Secretary of State, who has final authority to surrender the individual. Under federal law, specifically 18 U.S.C. § 3184, a federal magistrate or judge must certify the extradition to the Secretary of State. An order of extradition is not directly appealable, but may be challenged in federal court based on a petition for habeas corpus under 28 U.S.C. § 2241 and then appealed to the federal court of appeals. If the court of appeals affirms an order of extradition, relief may be sought directly from the Secretary of State.

Valid defenses to extradition include whether the magistrate properly has jurisdiction, whether the offense charged is within the treaty, whether there is probable cause to believe the accused guilty, and whether there are constitutional infirmities in the extradition procedures. Based on our experience and familiarity in federal court and with criminal law, we have researched and made novel arguments opposing extradition on these grounds. Although denial of extradition is rarely granted, pursing a legitimate argument against extradition through to appeal can provide an individual with negotiating leverage with the prosecuting authority and time to investigate the case and lay the groundwork for a vigorous defense of the substantive charges should extradition be granted.

If you are facing criminal charges abroad and expect to be surrendered or extradition proceedings have already been initiated against you and need legal advice, please call our attorneys at 617-742-6020.

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