How extradition works in the U.S.: steps, deadlines and who decides

Extradition, deportation and a Red Notice are different things

Extradition is a request from one government to another to hand over a named person for trial or to serve a sentence. The Justice Manual describes it as a process regulated by treaty and conducted between the U.S. federal government and a foreign government (JM 9-15.100).

Deportation, called removal in U.S. law, is an immigration process. The country where the person lives starts it under its own immigration law, without a request from another country. The Justice Manual lists deportation and expulsion as separate routes prosecutors may consider when extradition is not available (JM 9-15.610).

A Red Notice is an INTERPOL alert asking police worldwide to locate and provisionally arrest a person. INTERPOL says it is not an arrest warrant, and each member country decides what legal value to give it. See INTERPOL Red Notice removal.

Turkey links the two processes in its own law. Under Law No. 6706 (Article 12), a foreigner in an extradition process may not be deported without the opinion of the Ministry of Justice, and may not be deported to a state whose extradition request was refused without that opinion.

When a foreign country asks the U.S. to extradite someone

A person may also waive the process or consent to extradition (JM 9-15.700). That decision should be made with a lawyer who has read the treaty and the documents.

1. The foreign embassy sends the request to the State Department. The Department checks that a treaty is in force, that the offense is covered and that the documents are certified, and forwards the request to the Justice Department's Office of International Affairs (OIA) (JM 9-15.700).
2. OIA reviews the request and sends it to the U.S. Attorney's Office where the person is located. A federal prosecutor files a complaint under oath and asks for an arrest warrant (18 U.S.C. 3184).
3. After the arrest, the person appears before a magistrate judge or district judge, who explains the reasons for the arrest and the nature of the proceedings. The Justice Manual says the government opposes bond in extradition cases.
4. The court holds a public hearing (18 U.S.C. 3189). The Federal Rules of Evidence and of Criminal Procedure do not apply, and properly authenticated foreign documents are admitted (18 U.S.C. 3190; JM 9-15.700).
5. If the judge finds the evidence sufficient to sustain the charge under the treaty, the judge certifies the case to the Secretary of State and commits the person to custody (18 U.S.C. 3184).
6. The Secretary of State decides whether to order surrender (18 U.S.C. 3186). Under 22 CFR 95.3, the Secretary may surrender, deny surrender or surrender subject to conditions.
7. If the person is not delivered within two calendar months after commitment, a judge may order release on application, after notice to the Secretary of State, unless sufficient cause is shown (18 U.S.C. 3188).

Provisional arrest: the 60-day clock under the U.S.–Turkey treaty

Most treaties let a country ask for provisional arrest in urgent cases, before the full request is ready. The Justice Manual says the formal request must then follow within the time the treaty sets, from 30 days to three months depending on the treaty (JM 9-15.230).

Under the 1979 U.S.–Turkey treaty (Article 10), a provisional-arrest request may go through diplomatic channels or directly between the two Ministries of Justice. If the formal documents are not received within 60 days of the arrest, the person is released. The release does not stop a new request once the documents arrive.

The same treaty requires the formal request in writing, through diplomatic channels, in the requesting country's language with certified translations (Article 6).

When the U.S. asks another country

A federal or state prosecutor prepares the case with OIA, which must review and approve every formal request based on federal charges (JM 9-15.210). The State Department sends the request by diplomatic note to the foreign government (JM 9-15.240).

From that point the foreign country's courts and procedures apply. The foreign court usually decides on the written request and any evidence the person presents (JM 9-15.300). If surrender is granted, OIA arranges the escort, most often by the U.S. Marshals Service (JM 9-15.400).

Some countries do not extradite their own nationals. Turkey's Constitution (Article 38) says a Turkish citizen may not be handed over to a foreign country for an offense, except for obligations arising from the International Criminal Court. In such cases the Justice Manual says the U.S. may ask the other country to prosecute the person itself (JM 9-15.650).

What the person sought can do

Rights and defenses are set out in more detail in Extradition request: your rights and the main defenses.

• Get a lawyer before the first appearance. The hearing is narrow, and points not raised there are harder to raise later.
• Check the treaty: whether the offense is covered, whether the penalty threshold is met (more than one year under both Turkish law and U.S. federal law under Article 2 of the U.S.–Turkey treaty) and whether an exception applies. See U.S. extradition treaties.
• Check identity and the documents. The Justice Manual warns prosecutors that people may contest extradition on the basis of inconsistencies in the documents (JM 9-15.240).
• Raise torture concerns with the State Department. Under 22 CFR 95.2, the Department considers whether the person is more likely than not to be tortured in the requesting state.
• After certification, file for habeas corpus under 28 U.S.C. 2241. The certification itself is not appealable, the district court's habeas decision can be appealed, and surrender is stayed only if a court orders it (JM 9-15.700).

How long it takes

No statute sets a total time. The Justice Manual says the time needed to return a person is difficult to predict and depends on the case and on the practice of the country involved (JM 9-15.300). Some fixed points do exist:

Note 1

If an asylum or other protection claim is pending

Asylum and extradition run in different systems. Immigration courts and USCIS decide protection claims; the extradition court and the Secretary of State decide surrender.

The torture question in an extradition case is decided by the Secretary of State under 22 CFR Part 95. The regulation says these decisions are matters of executive discretion and are not subject to judicial review (22 CFR 95.4). Evidence of persecution or torture risk should therefore be put before the State Department as well, not only before the immigration authorities.