7 FAM 1640
OTHER EXTRADITION matters
(CT:CON-811; 06-06-2018)
(Office of Origin: CA/OCS)
7 FAM 1641 SECONDARY ASPECTS OF
EXTRADITION
(CT:CON-595; 08-06-2015)
a. Some extradition cases raise peculiar or unique
issues. Such situations may include temporary surrender of fugitives for the
purpose of prosecution, in absentia convictions, death penalty assurances,
parental child abduction cases, and handling of public inquiries about extradition
matters. Additionally, it may be more effective in some cases to deport or
expel a fugitive rather than to extradite.
b. Not all posts will have to deal with these special
issues arising in extradition and some posts will encounter them only rarely.
However, all posts should be aware of these issues.
7 FAM 1642 DEPORTATION OF FUGITIVES TO
THE UNITED STATES (U.S.)
7 FAM 1642.1 Post Requests to
Foreign Authorities for Deportation or Expulsion of Fugitive
(CT:CON-595; 08-06-2015)
a. Formal extradition of a fugitive is not always
feasible. The crime may not be an extraditable one or the United States may
not have a treaty with the country where the fugitive is located. In such
situations, the United States may seek the persons return by way of
deportation or expulsion, particularly if the fugitive is a U.S. citizen.
b. After the U.S. prosecutor and the Department of
Justice, Criminal Division, Office of International Affairs (OIA) have decided
to seek deportation or expulsion of a fugitive, OIA asks the Office of Legal
Affairs and Law Enforcement Liaison, Legal Affairs division in the Bureau of
Consular Affairs' Passport Directorate (CA/PPT/S/L/LA) to revoke the fugitives
U.S. passport and provides CA/PPT/S/L/LA with a copy of the federal warrant for
the persons arrest. (If the fugitive is charged in state court, not federal
court, the federal prosecutor may charge him with the federal crime of Unlawful
Flight to Avoid Prosecution (UFAP), and a federal UFAP warrant will be
issued). In the absence of a U.S. request for the fugitives extradition, this
federal warrant is a prerequisite for the revocation or denial of a U.S. passport. Presented with a copy of the federal warrant, CA/PPT/S/L/LA will revoke the
passport and place the person in a lookout system to prevent him from obtaining
a new or renewed passport and provide specific instructions to post(s) by
telegram.
c. Both CA/PPT/S/L/LA and the U.S. Department of
State, Office of the Legal Adviser for Law Enforcement and Intelligence (L/LEI)
will communicate with post. CA/PPT/S/L/LA will send a telegram to post
informing it of the passport revocation and asking that post deny a new or
renewed passport to the fugitive. L/LEI will send a telegram to post that
requests that post approach the host government and seek the persons
deportation or expulsion. The telegram will summarize the charges against the
fugitive, provide a brief recitation of the facts of the case, confirm the fact
of an outstanding U.S. warrant for the persons arrest, supply the persons
physical description and whereabouts (the individual may already be in custody
in the foreign country for immigration violations), and refer to the
CA/PPT/S/L/LA telegram regarding the revoked U.S. passport. (See 7 FAM Exhibit
1642.1c for example of telegram requesting
deportation or expulsion of U.S. citizen.)
d. Post will approach the authorities of the host
government through a diplomatic note:
(1) Informing them that a U.S. citizen fugitive from
U.S. justice is in their country without a valid travel document, or a foreign
fugitive from U.S. justice is in their country; and
(2) Requesting, if the individual is not already in
custody, that the authorities apprehend the person as an undesirable and
illegal alien, and, if authorized by their laws, that they deport or expel the
fugitive to the United States. The request may further ask that the person be
held until U.S. Marshals arrive to remove him and accompany him on his return
to the United States. Finally, the post informs the authorities that the
United States will pay the cost of the fugitives transportation (the marshals
would provide the persons ticket).
e. Some governments do not require possession of a
passport for an alien to enter and stay in their country. In such cases,
revocation of a fugitives U.S. passport may not affect the persons visitor or
resident status in the asylum country. Even in those instances, however,
CA/PPT/S/L/LA, at the request of OIA, asks posts to revoke the passport of U.S.
citizens as a means of hampering their further flight from U.S. justice.
f. If a post has reason to believe that the revocation
of a fugitives U.S. passport does not make the persons presence illegal in
the host country, the post, in seeking the persons deportation, should
emphasize to host authorities that the person is charged or convicted of a
crime, that is, that the person is an undesirable alien, if not an illegal
one. If the fugitive concealed the fact of his or her fugitive status in
applying for entry to the foreign country, that may give the local authorities
a legal basis to deport or expel the person (or to prosecute the individual for
violation of their immigration laws).
g. In certain cases, even if the fugitive is not a U.S. citizen, OIA may wish to seek the persons return by deportation or expulsion. The
fugitives country of origin ties may be weak; the person may have had
long-term alien resident status in the United States; or the persons crimes in
the United States may be particularly heinous. If there is reason to believe
that the country in which the fugitive is located may be willing to deport a
third country national to the United States rather than to the fugitives own
country, L/LEI may instruct the post to attempt to obtain the fugitives return
by such means. The post should pursue such efforts with the same vigor used to
obtain the return of a U.S. citizen fugitive.
h. Because U.S. immigration laws give illegal aliens
the opportunity to depart the United States voluntarily or to undertake a
lengthy process to contest deportation, the post is also asked to inform the
foreign authorities that while we would welcome their deporting the fugitive,
the United States, because of U.S. legal restrictions, cannot guarantee
reciprocity. Some countries may not initially realize that we cannot promise
reciprocity, and posts should make the U.S. position clear to the host
government to avoid any misunderstandings. See 7 FAM 1643.
i. Upon receipt of telegrams from CA/PPT/S/L/LA and
L/LEI regarding revocation of fugitives passport and proposed deportation to
the United States, the post should delay its process of notifying the person
that his passport has been revoked until it knows the fugitive is in custody.
The posts premature mailing of a passport revocation notice would alert the
fugitive that U.S. authorities know his or her location and provide an
opportunity for flight. CA/PPT/S/L/LAs revocation decision, reflected in its
telegram to the post, is a sufficient basis for the post to inform the host
government that the fugitives passport has been revoked, even though it still
may be in the fugitives possession.
.7 FAM 1642.2 Post Responsibilities
in Arranging the Transit of the Deportable Fugitive
(CT:CON-595; 08-06-2015)
a. CA/PPT/S/L/LAs revocation telegram also normally
instructs the post regarding issuance of a travel letter or a passport limited
for immediate and direct return to the United States. The consular officer
should give the travel letter or limited validity passport to the escorts, not
the fugitive. Should the fugitive be deported without escorts, the action
officer should give the travel letter or limited passport to the pilot or chief
purser of the flight.
b. If the fugitive is allowed to use his or her
passport limited for immediate and direct return, the post should advise the
U.S. Marshals to return the passport to CA/PPT/S/L/LA after it has served its
purpose. (See 7
FAM 1625.5, paragraph c.)
c. U.S. Marshals may accompany fugitives who are
deported or expelled by foreign countries to the United States. If U.S. escort
agents will be delivering the person to U.S. custody, the transfer arrangements
are the same as for a fugitive being extradited. The USMS will work directly
with the ARSO, FBI legal attach, or Department of Justice attorney
at Post regarding these arrangements.
d. Fugitives being returned to the United States by deportation or expulsion do not fall under extradition treaty
requirements. Nonetheless, if the deported or expelled fugitive must transit a
third country en route to the United States in the company of U.S. escorts, the post in the third country may still have to notify authorities in the
third country and make a formal request for transit authorization. (See 7 FAM 1625.3.)
7 FAM 1643 Deportation of Fugitives
from the United States
(CT:CON-811; 06-06-2018)
a. Occasionally a host country will approach a post to
see if the United States would deport one of its nationals who is a fugitive
from local justice. Such an approach can be made in the absence of a bilateral
extradition treaty or lack of treaty coverage for a specific offense.
Deportation is rarely a viable means of obtaining the return of a fugitive from
the United States (see 7 FAM 1642).
Posts should not encourage host country authorities to pursue this avenue.
b. A post may point out that deportation proceedings do
not ensure a fugitives return. In most cases, the person whose deportation is
sought has the choice of voluntarily departing the United States (presumably
for a country other than the one in which the person is charged with or
convicted of a crime) before the adjudication of deportability. The fugitive
also may apply for political asylum in the United States.
c. Should the fugitive challenge deportation and
litigate the case, he will remain in the United States throughout the
protracted proceedings. Nor is it guaranteed that, at the end of the
proceedings, he will be deported to the requesting country, since he will have
the option of designating the country to which he or she wishes to be
deported. If the designated country is willing to accept the fugitive, it is
usually not possible for the United States to return the fugitive to the
country of his or her nationality.
d. Should the host government, after the post has
explained U.S. deportation procedures, persist in seeking the deportation of a
fugitive, the post should report the matter with all available information to
the Department. L/LEI will refer the case to OIA for consultation with the
Department of Homeland Security on the possibilities
of deportation and inform the post in due course of OIAs findings.
7 FAM 1644 Temporary Surrender of
Fugitives for Prosecution
(CT:CON-595; 08-06-2015)
a. If an extraditable fugitive is being prosecuted or
is serving a sentence in the requested state, his surrender may be deferred
until after the conclusion of the proceedings and the full execution of the
sentence. This deferral of surrender is authorized in most extradition
treaties, and many countries apply this stipulation stringently.
b. Some newer treaties, however, also provide that a
fugitive who is facing proceedings or punishment in the requested state may be
surrendered to the requesting country temporarily for the purpose of
prosecution. In addition, a few countries will temporarily surrender an
extraditable fugitive for this purpose pursuant to their own domestic legislation,
even without a treaty provision. Such temporary surrender serves the cause of
justice by permitting a timely prosecution of the fugitive while the evidence
against the person is still fresh and witnesses are readily available.
c. After the prosecution in the requesting state is
completed, the fugitive, whether found guilty or not, must be returned to the
requested state. All expenses in connection with the round trip transportation
of the fugitive are borne by the requesting state, which also provides escort
agents for the fugitive.
d. When a requested state offers to surrender a
fugitive temporarily to the United States for prosecution, the modalities of
the fugitives temporary transfer are the same as those for a person being
extradited to the United States (see 7 FAM 1625).
This transfer is usually arranged directly between OIA and the Ministry of
Justice of the requested state. By email, the USMS asks the designated
"extradition officer" at post to assist the U.S. Marshals with their
hotel reservations. The consular section will work with the designated POC at
post to provide a travel document for the fugitive, if necessary.
e. When the U.S. Marshals return the fugitive to the
requested state after prosecution, the post will be notified so that the post,
if the fugitive is a U.S. citizen, can resume consular visitations while the
fugitive is in custody in the host country. If the fugitive was convicted and
sentenced in the criminal proceedings in the United States, after he completes
his sentence in the host country he may again be surrendered to the United States. Again, all the modalities for transfer of an extradited person will apply.
7 FAM 1645 In Absentia Convictions
(CT:CON-595; 08-06-2015)
a. Many countries, particularly those with civil law
systems, legally convict defendants in their absence (in absentia or par
contumace) if they have fled the country or otherwise fail to appear for trial
after due notice. Generally, in such cases the defendant is tried by the
court, without a jury, usually on the basis of documents without the live
testimony of witnesses. Under the laws of many such countries, if the
defendant is convicted in absentia and later is arrested or surrenders, the
conviction and sentence may be voided and new proceedings are instituted at
which the defendant may be given a full hearing with the aid of counsel.
b. A request to the United States for the extradition
of a person convicted in absentia poses potential complications and may require
close consultation between the post and L/LEI.
c. Depending on the specific facts of the case, the
United States might treat requests for the extradition of a fugitive convicted
in absentia as if the person were merely charged with, and not convicted of, a
crime. The United States might require the requesting state to submit the same
probable cause evidence that would be necessary if the fugitive were facing
criminal charges. It also may require an explanation of the procedures that
would be available to a fugitive who wishes to reopen the case after
extradition to the requesting state. In addition, it might ask the requesting
state to give formal assurances that the fugitive, if extradited, would receive
a new trial upon return to that state.
d. The Department of State, in providing the surrender
warrant to the embassy of the requesting state for a fugitive convicted in
absentia, may ask the embassy to remind the authorities of that country of the
need for a new trial or for judicial review, as applicable. L/LEI may also
notify the post in the requesting state by telegram that the surrendered
fugitive was convicted in absentia.
e. To the extent feasible, the post monitors the
subsequent proceedings if the fugitive chooses to reopen the case. If the
extradited fugitive alleges that he or she has been deprived of the right to a
new trial or judicial review, the post informs L/LEI by telegram, providing
appropriate information.
7 FAM 1646 Death Penalty and Other
Assurances
(CT:CON-811; 06-06-2018)
a. The penal codes of many countries prohibit the
imposition of the death penalty for any crime, including first-degree murder.
Most of the U.S. extradition treaties allow the requested state to require the
requesting state to provide assurances that, if the fugitive is extradited, a
death penalty will not be imposed or carried out. Other countries will request
such assurances even though the extradition treaty may be silent on this point.
b. If a post receives such a request from the host
government, the post should notify L/LEI of the request and pouch or email a
copy of the Foreign Ministrys note to L/LEI. The post should make no response
to the note until or unless the Department instructs the post to do so.
c. Upon receipt of such a request, L/LEI asks OIA to
obtain the necessary written assurances from the appropriate federal or state
authorities.
d. When assurances are provided, OIA and L/LEI
carefully examine them and, if they are acceptable to the Departments of
Justice and State, L/LEI instructs the post to submit by note the formal
assurance of the U.S. Government and will provide the exact text of the
assurance to be provided by post.
e. Some countries also ask for assurances that the
requesting state will not impose a life sentence or a sentence exceeding a
certain duration on a fugitive as a condition to his extradition. The
authority to seek such a condition is rarely based on a treaty provision, but
states may demand them nonetheless because their own constitutions or penal
codes prohibit sentences exceeding a certain number of years. Such requests
are handled on a case-by-case basis.
f. Because such demands do not have a treaty basis,
the U.S. Government resists them in principle. The process for handling such
requests for assurances by post and the Departments of State and Justice is the
same as one for death penalty assurances. See 7 FAM Exhibit 1646 for a sample post cable regarding host country
requests for assurances.
7 FAM 1647 Extradition and Parental
Child Abduction
(CT:CON-508; 03-12-2014)
a. Posts receiving inquiries or requests for assistance
from the left-behind parent of a child abducted internationally or the attorney
of the parent should draw on 7 FAM 1710 for
guidance. The left-behind parent or attorney who inquires about the
possibility of extraditing the taking parent may be referred to the Bureau of
Consular Affairs, Possible Solutions - Pressing Criminal Charges website.
Posts should never counsel left-behind parents to seek the return of their
children through the extradition of the taking parent. Rather, the left-behind
parent should be referred to the Department of State, Bureau of Consular
Affairs, Directorate of Overseas Citizens Services, Office of Children's Issues
(CA/OCS/CI) for consultation and information about civil and criminal remedies
which may be available. A civil remedy that may be available is the Hague
Convention on the Civil Aspects of International Child Abduction of October 25,
1980 (Hague Abduction Convention).
b. Criminal charges in international parental child
abduction (IPCA) cases are rare and, when criminal charges have been filed, it
is up to the individual prosecutor to decide whether to pursue extradition in a
particular case. If a prosecutor does seek extradition, the request then needs
to be processed through the Department of Justice, Office of International
Affairs (DOJ) and the Office of the Legal Adviser, Law Enforcement and
Intelligence (L/LEI), which determine whether all of the legal requirements are
met under the relevant extradition treaty; among other considerations, if IPCA
is not a crime in the country in which the taking parent resides, an
extradition request may prove impossible. Furthermore, just because a request
is sent does not mean the receiving country will act on it. Finally, and most
importantly, successful pursuit of extradition does not guarantee that the
child will return to the United States.
c. The nationality of the taking parent may be an
obstacle. Many taking parents flee to their country of origin, and some
countries, particularly civil law countries, do not extradite their own
citizens. Even if the offense is extraditable and nationality is not an issue,
the U.S. government has observed that foreign governments may be reluctant or
unwilling to extradite anyone, including U.S. citizens, for international
parental child abduction.
d. In those cases in which L/LEI and OIA, after
consultation, agree that an extradition request is appropriate, L/LEI will
transmit a cable, instructing the post to submit a formal request for the
provisional arrest and/or extradition of the abducting parent (following
procedures set forth in 7 FAM 1620).
If the abducting parent is apprehended at the request of the United States,
post should immediately verify the welfare and whereabouts of the abducted
child and report to CA/OCS/CI. If the child will also return to the United
States, post should coordinate with CA/OCS/CI, CA/OCS/ACS, and CA/OCS/L to
facilitate the childs return.
7 FAM 1648 Public Inquiries about
Extradition
(CT:CON-595; 08-06-2015)
a. L/LEI and OIA occasionally receive inquiries from
the public, private attorneys, and the media regarding extradition generally or
individual extradition cases specifically. In cases with sensitive political
and public relations aspects, the Department furnishes press guidance to
appropriate posts. Should a post anticipate inquiries in an extradition
matter, the post may request or propose press guidance by a telegram captioned
for L/LEI and the public affairs officer of the relevant geographic bureau.
b. The policy of the U.S. Departments of State and
Justice in dealing with such inquiries is stated in the following paragraphs.
To ensure consistency in the handling of public inquiries in Washington, DC,
and in the field, posts should follow this guidance in responding to inquiries
made directly to the posts.
c. It is the policy of L/LEI and OIA, and of the
public affairs officers of the Departments of State and Justice, regardless of
whether L/LEI and OIA are aware of an incipient extradition case or of a
provisional arrest or extradition request already made to or received from
another country, to respond to inquiries about specific individuals by neither
confirming nor denying the fact of a U.S. or foreign provisional arrest or
extradition request:
(1) If the inquiry is a general question about
extradition procedures or a request to verify whether the United States has an extradition treaty with a certain country, L/LEI and OIA are
responsive within reason.
(2) If the inquiry appears to be motivated by interest
in a particular matter currently in litigation in which the U.S. Government is
a party, U.S. officials are circumspect in their response.
(3) After a fugitive has been taken into custody in
the United States or in a foreign country, L/LEI and OIA acknowledge that a
provisional arrest or extradition request has been made and that the fugitive
is in custody for the purpose of extradition. No further information is
provided because the case is before the courts and authorities of the requested
country and any comment or speculation about the case would be inappropriate
while the request is under consideration by those authorities.
d. The government gives a noncommittal response to
public inquiries because the premature release of news that the United States or another state has made a provisional arrest or extradition request could
alert the fugitive or his confederates, friends, or family, enabling the
fugitive to flee and/or avoid apprehension. Likewise, after the arrest of a
fugitive and while the case is before the courts, it is not in the interest of
justice for L/LEI, OIA or a post to provide information that could be used by
the fugitive and fugitives counsel in contesting extradition. Finally, for
security reasons, the government will not give any information about the
surrender, including timing, process, or itinerary, until the fugitive is
safely in the requesting state.
7 FAM 1649 Unassigned
7 FAM Exhibit 1642.1c
Sample Cable Requesting Deportation or Expulsion of U.S. Citizen
(CT:CON-595; 08-06-2015)
UNCLASSIFIED
L/LEI:
11/09/2014 tel:xxx
L/LEI:
DOJ/OIA
CA/PPT/S/L/LA, CA/OCS/ACS/XXX. CA/OCS/L
IMMEDIATE ROSSLYN
E.O. 13526: N/A
TAGS: CJAN, CASC, CPAS, KCRM, SNAR [for cases involving
narcotics], xx
SUBJECT: RETURN OF U.S. CITIZEN FELON FUGITIVE FROM
ROSSLYN
1. The Department requests assistance in effecting the
return of U.S. citizen fugitive felon [name of fugitive], by way of deportation
or expulsion. Per DOJ, the subject was last known to be [location
information]. Further information concerning the fugitive's whereabouts may be
obtained from [FBI, DEA or other law enforcement contact].
2. [This paragraph will include the charges for which the
fugitive's return is sought.]
3. [This paragraph will include a short summary of the
facts upon which the charges are based.]
4. [This paragraph will include a physical description of
the fugitive.]
5. [Name of fugitive]'s passport is being revoked at the
request of DOJ and instructions will be sent by CA/PPT/S/L/LA by septel.
Embassy is asked to approach the Rosslyn authorities and inform them that [Name
of fugitive], a U.S. citizen felon fugitive from U.S. justice (cite above
offenses) is in Rosslyn without a valid travel document. His or her U.S.
passport has been revoked, although it still may be in his/her possession.
Also inform the Rosslyn authorities that because of the seriousness of the charges
against [Name of fugitive], the U.S. government would welcome his or her
apprehension and detention, and any assistance Rosslyn authorities may be able
to provide in his/her return to the United States.
6. If this proposal is acceptable to Rosslyn authorities
and [Name of fugitive] is apprehended, we would request the authorities'
assistance in detaining [Name of fugitive] for the brief time it will take to
get U.S. Marshals to Rosslyn, and to assist in placing [Name of fugitive]
aboard a flight to the United States in the company of U.S. Marshals.
7. In making the above approach, the Embassy should make
clear to Rosslyn authorities that while we would appreciate their assistance in
returning [Name of fugitive], because of limitations imposed by U.S. law we
would not be in a position to guarantee reciprocity in the event Rosslyn were
interested in returning someone to Rosslyn in a similar manner.
8. Please send a scanned copy of the Embassy's note to
L/LEI. Please also keep the Department and DOJ informed of developments in the
case, captioning cables for L/LEI and DOJ/OIA. The Embassy's assistance is
appreciated.
SEC STATE
YY
UNCLASSIFIED
7 FAM Exhibit 1646
Sample Cable Host Country Request for Assurances
(CT:CON-595; 08-06-2015)
P 152114Z OCT 14
FM AMEMBASSY ROSSLYN
TO SECSTATE WASHDC PRIORITY 12345
DOJ WASHDC PRIORITY
INFO DEA WASHDC
UNCLAS ROSSLYN 12345
STATE FOR WHA/AND
STATE FOR L/LEI
JUSTICE FOR DOJ/OIA
E.O. 13526: N/A
TAGS: KCRM, SNAR, PREL, CJAN, XX
SUBJECT: EXTRADITION: FIRST MIDDLE LAST NAME -
EXTRADITION
FULLY APPROVED - ASSURANCES REQUIRED
REF: 03 STATE 56789
1. This contains an action request -- see paragraph 5.
2. The Embassy has been officially notified by the GOZ
that the extradition of Zian national FIRST MIDDLE LAST NAME has been approved
on the counts in paragraph 3 pursuant to Resolutions No. 141, dated August 4,
2004, and No. 187, dated September 6, 2004.
3. According to reftel, FIRST MIDDLE LAST NAME is the
subject of indictment No. 03-xxxxxx-CR-xxxx, filed on September 15, 2003, in
the United States District Court for the Southern District of Florida, charging
him with:
-- Count One: Conspiracy to import a controlled substance
(heroin) into the United States from a place outside thereof;
-- Count Three: Aiding and abetting the importation of a
controlled substance (heroin) into the United States from a place outside
thereof;
-- Count Four: Conspiracy to possess with the intent to
distribute a controlled substance (heroin); and
-- Count Six: Aiding and abetting the possession of a
controlled substance (heroin) with the intent to distribute.
4. According to the aforementioned Resolution No. 140,
FIRST MIDDLE LAST NAME has a pending criminal case in Z. Under Zian law, the
GOZ may defer the surrender of an individual until the criminal trial is
completed and the sentence, if any, is served in Z. However, the GOZ has
decided to waive this provision and surrender this individual to the United
States.
5. Assurances have been officially requested by the GOZ.
Accordingly, Post requests that DOJ/OIA and L/LEI forward assurances, as
appropriate, that FIRST MIDDLE LAST NAME will not receive life imprisonment,
cruel and unusual punishment, etc., in return for his extradition.
6. Please note that FIRST MIDDLE LAST NAMEs date of
birth is MMM, DD, YYYY.
7. Copies of the aforementioned GOZ resolutions will be
pouched to STATE/L/LEI and sent by FEDEX to DOJ/OIA.
KERRY
UNCLASSIFIED