An extradition hearing is not a trial, and treating it as one is the most common and most costly error in these cases. The court is not deciding whether you did it.
It is deciding a much narrower set of questions, on a much lower standard, with most of the tools of a criminal defense unavailable. Understanding what the proceeding actually is determines whether the right arguments get made while they can still be made.
What extradition is
Extradition is the surrender of a person by one sovereign to another for prosecution or to serve a sentence. In the United States it is a creature of treaty: absent a treaty obligation there is ordinarily no authority to surrender, which is why the question “is there a treaty” precedes every other question.
Two points are commonly misstated. The requesting country need not be the country where the conduct occurred — it needs jurisdiction under its own law and a treaty basis. And extradition is not the only route by which someone ends up in another country’s custody; deportation, removal, visa revocation and informal rendition arrangements can produce the same result without the procedural protections extradition carries.
The sequence
The process is a hybrid, judicial in the middle and executive at both ends.
- Request, or provisional arrest. Where there is urgency, a country can seek a provisional arrest before submitting the full documentary request, which then has to follow within a period the treaty specifies.
- Complaint and arrest here. Filed by the United States on the requesting country’s behalf. The United States Attorney appears for the foreign government, not against it.
- Detention. Release pending an extradition hearing is harder to obtain than bail in an ordinary federal case. There is a presumption against it, and it generally requires special circumstances in addition to showing you are neither a flight risk nor a danger.
- The hearing. A judicial officer decides whether the request satisfies the treaty and whether there is sufficient evidence under the applicable standard.
- Certification. If the court finds the requirements met it certifies extraditability to the Secretary of State. It does not order surrender.
- The executive decision. The Secretary decides whether to surrender, and may decline for reasons a court cannot consider.
What the hearing is not
This is where expectations and reality separate.
The evidentiary standard is probable cause, not proof beyond a reasonable doubt. The requesting country’s submissions are generally admissible in documentary form; the rules of evidence that govern a criminal trial do not apply in the ordinary way, and hearsay is received. There is no right to confront the foreign witnesses, no discovery of the kind a federal defendant expects, and courts generally do not entertain challenges to how the evidence was gathered abroad.
Most significantly, the court does not weigh guilt. Evidence that contradicts the request is generally excluded; only evidence that obliterates probable cause is received, and that line is drawn narrowly. An alibi is usually a trial argument, in a trial that will take place in the other country.
There is also no direct appeal from a certification. Review is sought collaterally, by petition for habeas corpus, and it is correspondingly limited.
Where the arguments actually are
Because the merits are off the table, the contestable ground is the treaty and the record.
- Dual criminality. The conduct must be criminal in both countries. The analysis looks at the conduct rather than the label, and offenses that exist abroad with no domestic analogue are vulnerable here.
- Treaty coverage. Whether the offense is within the treaty, whether applicable limitation provisions are satisfied, and whether the documents conform to what the treaty requires.
- The political offense exception. Present in most treaties and construed narrowly, but live in a defined set of cases.
- Specialty. A surrendered person may generally be tried only for the offenses for which surrender was granted. Specialty is often the most durable protection in the case, but whether it is enforced often depends on the surrendering country, including whether it objects. In this circuit, whether an individual can raise it at all is unsettled.
- Sufficiency. Whether what has been submitted establishes probable cause at all — which in a documentary case is a question about the documents.
Humanitarian considerations, the conditions a person would face, and the good faith of the request are generally matters for the Secretary of State rather than for the court. They are real arguments; they are made in the right forum, at the right stage, and in writing.
What we do
We appear in extradition proceedings in federal court, contest certification, seek release pending the hearing, and pursue habeas review where certification issues. We also work the parts of these matters that sit outside the courtroom: submissions to the Department of State, challenges to Interpol notices, and coordination with counsel in the requesting country, where the shape of the eventual case is often determined.
The earlier the involvement, the more that can be done. A provisional arrest with a looming documentary deadline is an opportunity. So is a request that has not yet been transmitted.
Questions we are asked
Can I just explain that I did not do it?
Not at this stage, and attempting it wastes the hearing. The court is assessing probable cause on the requesting country’s submission, and contradictory evidence is largely excluded.
Is there a treaty with every country?
No. The United States has bilateral treaties with a large number of countries but not with all of them, and the terms differ — including on nationality, limitation periods, and which offenses are covered. The specific treaty governs, not a general rule.
Can I be held the whole time?
Often, yes. The presumption against release in extradition cases is stronger than in ordinary federal practice, which makes the release application a serious piece of work rather than a formality.
If the judge certifies, is it over?
No. Certification goes to the Secretary of State, who decides whether to surrender. Habeas review of the certification tests only its legality; the Secretary’s decision is a separate step.
Can they add charges once I arrive?
The rule of specialty is designed to prevent exactly that, subject to treaty exceptions and to consent procedures. How well it holds frequently depends on the surrendering country, including whether it objects.
This page is general information about how extradition proceedings are structured. It is not legal advice, and the governing treaty controls in any particular case. Results depend on the facts of each matter. Prior results do not guarantee or predict a similar outcome in any future matter.