7 FAM 1620
Extradition of fugitives to the united states
(CT:CON-815; 06-20-2018)
(Office of Origin: CA/OCS)
7 fAM 1621 First Steps in U.S.
extradition cases
7 FAM 1621.1 Purpose of
Provisional Arrest
(CT:CON-595; 08-06-2015)
a. Provisional arrest is the interim arrest of a
fugitive by the requested state before the requesting state submits a formal
extradition request. Its purpose is to prevent the fugitives flight from the
requested state before the requesting state has an opportunity to present the
full request. Commonly, provisional arrest requires only a statement by the
requesting state that the person is accused or convicted of an extraditable
crime, a brief summary of the facts, proof of identity, and an assurance that
the complete extradition request will be submitted within the period specified
in the treaty, which as a general rule will be within 40-60 days after the
fugitive is arrested. If the formal extradition request is not made by the
treaty deadline, the requested state may release the fugitive from custody.
Failure to submit the request by the treaty deadline ordinarily will not bar
the requesting state from submitting a later request for extradition. However,
since the provisional arrest has alerted the fugitive to the possibility of
extradition, once released he may flee before the formal request is submitted.
b. Because provisional arrests are sought in cases of
urgency, it follows that a request for provisional arrest might be made very
quickly. There may be cases in which the fugitive has been charged with or
convicted of multiple crimes, but the provisional arrest request refers only to
one or some, but not all, of the crimes for which extradition ultimately will
be sought. The requesting state may include additional related or unrelated
crimes in its subsequent formal request for extradition.
c. Not all countries welcome requests for provisional
arrest. Some foreign magistrates are reluctant to issue arrest warrants for
this purpose, particularly if the fugitive is a citizen and resident of the
host country, or if family members may be adversely affected. In such cases
the prosecutor is informed that provisional arrest is not appropriate.
d. Many U.S. extradition requests are preceded by a
request for provisional arrest. L/LEI and OIA screen requests before they are
made and will decline to seek provisional arrest unless there is a sufficient
justification, but U.S. prosecutors are generally able to justify the need for
or desirability of provisional arrest.
e. The arrest of a fugitive in response to a request
for provisional arrest results in considerable demands on the time of the
action officer. Once the fugitive is arrested, the "extradition officer"
must carefully monitor the progress of the case by close contact with local
officials, attending extradition hearings where possible, and reporting
significant developments to the L/LEI. When the fugitive is also a U.S.
citizen, developments should also be reported to CA/OCS.
7 FAM 1621.2 Requesting
Provisional Arrest
7 FAM 1621.2-1 The Role of the
Departments (LEI) of State and Justice (OIA)
(CT:CON-595; 08-06-2015)
a. When seeking the arrest of a fugitive, the
prosecutor provides the necessary information to the Department of Justice
(OIA). The information is then transmitted to the Department (L/LEI), and to
the post concerned by telegram in standard format, including the known or
presumed location of the fugitive.
b. In urgent cases, when time is of the essence and a
fugitive is known to be traveling to the country concerned on a specific air
carrier or other means of transport, the Department (L/LEI) may email
information to the post subject to procedures in 7 FAM 1616,
paragraph f, followed by a formal instruction telegram.
c. Upon receipt of a provisional arrest request
instruction, the post must make the request of the host country by the most
expeditious permitted means Posts should follow local practices concerning the
submission of formal notes of requests, such as providing copies to the host
country Ministry of Justice.
d. The post's note verbale may be prepared without
undue delay by using the Department's telegraphic text and format, modified as
appropriate by adding the complimentary opening and closing paragraphs, and by
including any special statements or formulations dictated by local procedures.
e. Absent specific instructions from the Department,
neither diplomatic nor consular officers should take part in the arrest or
detention of a fugitive in response to a U.S. request to the host country for
provisional arrest.
f. While the Regional Security Officer, FBI Legal
Attach, DEA Special Agent, or other U.S. government representatives may work
with host country law enforcement officials in locating and identifying a
fugitive, the apprehension of a fugitive is always the responsibility of
foreign officials.
g. As a rule, post officers should not participate in
any judicial procedures following such arrest or detention, other than as
observers in court sessions open to the public. For exceptions to this rule,
see 7 FAM
1624.1.
h. Most extradition treaties currently provide that
provisional arrest requests be submitted through the diplomatic channel,
although many treaties negotiated since the early 1980's state that such
requests may be handled directly between Justice Ministries. See 7 FAM 1621.2-3.
7 FAM 1621.2-2 The "Two
Foreign Countries" Route
(CT:CON-595; 08-06-2015)
a. Sometimes the United States can anticipate that a
fugitive believed to be in one country may travel to a second country. In
other instances, the United States may not know with certainty in which of two
or more countries the fugitive is seeking refuge. In these cases, the
Department (L/LEI) will send a separate telegram to the additional country
posts, also requesting provisional arrest there. Upon confirmation by one
country post of the fugitive's arrest and detention, the other posts should request
L/LEIs authorization to withdraw their request for provisional arrest, which
will be provided by L/LEI via telegram.
b. When it appears that the fugitive may not be
arrested or extradited, L/LEI may ask the other posts not to withdraw their
requests before the host government pending further instruction.
7 FAM 1621.2-3 The
"Justice-to-Justice" Route
(CT:CON-595; 08-06-2015)
Certain extradition treaties allow provisional arrest
requests to be made directly between the U.S. Department of Justice and the
appropriate ministry in the other country.
NOTE: The United States currently
has extradition treaties providing for the option to make Justice-to-Justice
provisional arrest requests with several countries, including the following:
Antigua & Barbuda, Austria, Argentina, Australia (Attorney General's
Department), Bahamas, Barbados, Belgium, Belize, Bulgaria, Canada, Costa
Rica, Cyprus, Denmark, Dominica, Estonia, Finland, France, Germany, Greece,
Grenada, Ireland, Israel, Italy, Jamaica, Jordan, Korea, Latvia, Lithuania,
Luxembourg, Malta, The Netherlands (and territories), Peru, The Philippines,
Poland, Portugal, Romania, Slovakia, Slovenia, Spain, St. Kitts & Nieves,
St. Lucia, St. Vincent & the Grenadines, South Africa, Sri Lanka, Sweden
(Ministry of Foreign Affairs), Switzerland, Thailand (Ministry of Interior), Trinidad &
Tobago, Turkey, United Kingdom (not territories) , Uruguay (Interior), and
Zimbabwe. Other countries will be added to this list as new treaties enter
into force.
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7 FAM 1621.3 Notification of
Provisional Arrest
(CT:CON-595; 08-06-2015)
a. After notification by a foreign government (whether
formally or informally) that a fugitive has been provisionally arrested on the
basis of a U.S. request, the post must immediately inform L/LEI by telegram of
the effective date of the arrest, since the arrest starts the clock for the
submission of a formal extradition request with supporting documents. The
treaty deadline the period stipulated by treaty for presenting the request
varies but is generally between 40 to 60 days.
b. Early notification of the deadline date to L/LEI is
essential, particularly when the extradition request and documents must be
translated and/or the treaty deadline is short (within 40 or 45 days). The
post must specify in its telegram the date the host government has set as the
deadline date for submission of a formal extradition request. (For a sample
post provisional arrest notification telegram to L/LEI, see 7 FAM Exhibit
1621.3.)
c. If a U.S. citizen fugitive is arrested
(provisionally or on a formal request) in a foreign country for extradition
even to the United States, the post having consular jurisdiction over the
fugitives place of detention should also report the arrest to the Department
in the standard telegraphic format and carry out its normal consular
responsibilities toward a U.S. citizen arrested abroad. (See 7 FAM 400.) If,
at the time of arrest, the fugitive was accompanied by a minor child who is a
U.S. citizen, the post should also report the welfare and whereabouts of the
child. In a child abduction case, when a
child custody order has been violated, the posts telegram should be captioned
for CA/OCS/CI.
d. Occasionally, after the provisional arrest of a
fugitive, Federal or state prosecutors or other U.S. law enforcement officials
may wish to interview a fugitive who is in foreign custody pending
extradition. This is a sensitive matter in many countries, particularly if the
object of the visit is perceived to be evidence taking. The foreign government
may require that such information be obtained by letters rogatory or mutual
legal assistance treaty (MLAT).
e. If U.S. law enforcement personnel contact a post
directly for assistance in setting up a meeting with a detained fugitive, they
should be referred to OIA. OIA screens all requests to interview detained
fugitives overs