Extradition vs. deportation in U.S. law: who decides, what is tested, where the person goes

Two different questions

Extradition asks whether one country should hand over a named person to another for trial or to serve a sentence. The Justice Manual describes it as a process regulated by treaty and conducted between the U.S. government and a foreign government (JM 9-15.100). The judge examines the request, the treaty and the evidence of criminality, and does not decide guilt.

Removal asks whether a noncitizen may stay in the United States. The statute lists classes of deportable noncitizens who are "in and admitted to" the United States (8 U.S.C. 1227(a)), and a proceeding before an immigration judge is the "sole and exclusive procedure" for deciding whether an admitted noncitizen may be removed (8 U.S.C. 1229a(a)(3)). The case is about immigration status, not about a foreign criminal charge.

This guide compares the two step by step. For the order of an extradition case, see how extradition works.

Side-by-side comparison

The table sets out the points where the two processes differ most, with the source for each.

Note 1

A U.S. citizen can be extradited; a citizen cannot be removed

Removal law applies to noncitizens. Extradition does not depend on citizenship. If a treaty does not oblige the United States to extradite its own citizens, the Secretary of State may still order surrender of a U.S. citizen if the treaty's other requirements are met (18 U.S.C. 3196). Under the 1979 U.S.-Turkey treaty, neither country must extradite its own nationals, and the U.S. executive authority may nonetheless extradite U.S. nationals at its discretion (Article 4(1)).

The reverse is also true. A lawful permanent resident can be removed only through immigration proceedings. A permanent resident with a pending foreign request may face an extradition case and, if DHS charges removability, a removal case as well.

When one person faces both

The two cases run in different forums with different decision-makers. A removal order does not itself surrender a person to the country that wants to prosecute, and an extradition certification does not itself end a person's immigration status. Each process has its own deadlines, and a point lost in one is not automatically saved by the other.

The Convention Against Torture bars both kinds of transfer. Article 3, quoted in the State Department's regulation, says no state party shall "expel, return (refouler) or extradite" a person where there are substantial grounds for believing the person would be in danger of being subjected to torture (22 CFR 95.2(a)). The U.S. applies the obligation through the State Department in extradition and through immigration judges in removal. Evidence of danger should therefore be prepared for the forum that will decide the question.

Protection claims in removal and extradition are discussed in extradition request: your rights and the main defenses.

Why the two are confused

From outside the result can look the same: a person leaves one country and arrives in another that wants to prosecute. The law treats the routes differently. The Justice Manual lists deportation, expulsion and other lawful methods of return as separate alternatives when a fugitive cannot be extradited (JM 9-15.600 and 9-15.610). When the U.S. is the country seeking a person, it may ask the other country to deport or expel the fugitive. The Justice Manual notes that fugitives deported or otherwise returned without a formal extradition order may claim they were returned illegally, and that courts generally dispose of those arguments under the Ker-Frisbie doctrine (JM 9-15.610).

The practical lesson is to read the first paper carefully. A complaint under 18 U.S.C. 3184 and a charging document from DHS start different cases, and the next steps, the deadlines and the places to raise a defense depend on which one a person has received.