Grounds for refusal of extradition to the USA

Extradition to the USA is not a sentence but a legal process where the defense has real tools to stop the transfer. Despite Washington’s influence and global extradition agreements, not all requests are granted. International law provides several grounds for refusal. Even the presence of a request from the USA does not mean that a decision on extradition will be made: everything depends on the arguments and the quality of the defense. In such cases, a competent legal strategy is crucial: from analyzing the extradition treaty to presenting arguments in court.

Our lawyers specialize in international extradition cases and know how to use legal mechanisms to protect the client. We analyze legal risks, prepare a position for the court, interact with attorneys, and support the process until the final decision.

At the judicial level, a U.S. federal court does not determine the guilt of a person. Its task is limited to reviewing the legal grounds that permit or prohibit extradition. The judge acts as a filter, assessing whether the request complies with international treaties, U.S. laws, and standards of fair process. If at least one of the key criteria is not met, the court issues a decision to deny extradition.

Extradition is possible only if there is a valid international treaty between the United States and the requesting country. This is a basic principle enshrined in federal legislation and judicial practice. Without a treaty, the court has no legal basis to transfer a person to a foreign state, even if it has brought serious charges. Exceptions are extremely rare. They pertain to specific international agreements where extradition may be carried out on the principle of reciprocity or based on a special act of Congress.

If a treaty previously existed but lost its force (for example, was denounced or terminated by one of the parties), the court automatically loses jurisdiction to consider the request. Similarly, if a document is signed but not ratified by the United States Senate, it does not create obligations. In the absence of a formal treaty, extradition is practically impossible, regardless of the severity of the crime or diplomatic pressure.

The principle of dual criminality is one of the key requirements in the consideration of extradition cases. It means that the act for which extradition is requested must be recognized as a criminal offense under the laws of the requesting country and under U.S. laws (federal or the legislation of most states). This ensures that the U.S. does not extradite individuals for actions that are not considered crimes within the country.

For example, if the requesting state accuses a person of “insulting religion” or “defaming the state”—charges not provided for under American criminal law—the court will refuse. Similarly, if the crime is of a political nature, such as participation in protests or publications in the media, it does not fall under the dual criminality standard. The judge is obligated to examine not the wording of the charge but its essence, that is, the legal nature of the act. If there is no equivalent in American criminal law, extradition is impossible.

Extradition is possible only if there is sufficient evidence that the person could have committed the crime. The court uses the standard of probable cause, similar to that applied when issuing an arrest warrant in the United States. This is not a requirement to prove guilt “beyond a reasonable doubt,” but the evidence must be convincing enough for the judge to consider the accusation justified.

If the case presents only assumptions, rumors, testimonies obtained under pressure, or unverified documents, the court denies extradition. In some cases, American courts have rejected requests even when there was a warrant from another country if the evidence was clearly insufficient or obtained in violation of international standards (for example, without a lawyer, through torture, or with procedural deadlines violated). Thus, a weak evidentiary base is one of the most common reasons for denying extradition.

It is especially important that the court does not accept new evidence from the USA. Its task is only to evaluate the materials provided by the requesting country. Therefore, professional legal defense is often built on identifying procedural errors, contradictions, or questionable sources in the submitted package of documents.

If, under the laws of the United States or the laws of the requesting country, the statute of limitations for the alleged crime has expired, this serves as an independent basis for refusing extradition. The court applies the principle of legal fairness. If the crime is no longer prosecutable in the accused’s home country or in the United States, transferring the individual loses its meaning.

In practice, the statute of limitations is checked according to two systems: first under American criminal law, then under the law of the requesting country. If prosecution is no longer possible under at least one of them, the judge may reject the request. Circumstances that suspend the statute of limitations are also taken into account (for example, being wanted, hiding from investigation, staying abroad).

This filter is especially important in cases where accusations are made decades later: for economic, political, or military actions. U.S. judicial practice emphasizes: extradition cannot be a way to resume criminal prosecution that has lost its legal force.

If a U.S. federal judge has determined that extradition is legally permissible, this does not mean that the individual will automatically be surrendered. After the case is “certified” by the judicial authority, the second stage begins – the Executive Stage, during which the final decision is made by the Secretary of State. It is at this point that discretionary powers come into play, allowing for a denial of extradition on political, humanitarian, or foreign policy grounds. At this stage, law and politics intersect, and the defense can present additional arguments that the court does not consider.

1. Political exemption from offences

The State Department may deny extradition if the prosecution has a political nature or is connected to opposition against the regime, participation in protests, expression of opinion, or membership in opposition structures. This rule is enshrined in most U.S. extradition treaties. The court does not deeply analyze the political context but only examines the legal basis. However, the Secretary of State has the right to consider ideological motivation, the regime’s dynamics, and the risk of persecution for beliefs.

Important! If a crime is related to violence against people (terrorist attacks, murders, explosions, kidnappings), it is not considered “political,” even if there is an ideological motive. This is reflected in many U.S. treaties and is one of the most controversial provisions. Countries often interpret the boundary between “political protest” and “crime against life” differently.

2. Humanitarian grounds and the risk of human rights violations

The Secretary of State may refuse issuance if there are serious grounds to believe that the person:

The principle applied here is similar to Article 3 of the European Convention on Human Rights: extradition is not allowed if there is a risk of inhumane treatment. Importantly, the court in the USA does not have the authority to assess such circumstances: they are considered only by the State Department.

3. National Security and Foreign Policy of the USA

The Secretary of State can stop extradition, even if the court has approved it, if the extradition:

The court does not interfere in this sphere: it has no right to assess political consequences, international negotiations, or classified information. The discretion of the Secretary of State here is absolute and not subject to judicial review.

The court considers only laws. The State Department considers people, circumstances, and the consequences of the decision. Therefore, even after losing in court, the defense can:

Extradition is a procedure for verifying whether a person can be handed over to another state according to the law. Therefore, many arguments that seem logical from a human perspective have no legal force at the judicial stage. Incorrect arguments not only fail to help: they waste time, complicate the defense, and cause distrust in the court.

1. “I am innocent, I didn’t do it.”

This is a key misconception. An extradition court does not determine guilt or innocence. It does not examine evidence on the merits, call witnesses, or conduct cross-examinations. The court only reviews legal criteria: the treaty, dual criminality, and the presence of probable cause. Guilt will only be considered in the court of the requesting country. Therefore, claims of innocence are not grounds for denying extradition.

2. “I have family, business, property, or work in the USA”

Family circumstances, the presence of a visa, green card, business, children, tax residency – none of this is considered by the court as a reason for refusal. Extradition is not a process under immigration law, and the judge cannot weigh humanitarian factors at this stage. Such arguments can only be used later at the level of the State Department, but not in court.

3. “The conditions in the prisons of the requesting country are poor.”

Poor living conditions, overcrowded prisons, lack of hot water or individual cells are not considered grounds for refusal of extradition. For this argument to have legal significance, it is necessary to prove a real risk of torture, inhuman or degrading treatment. If there is no threat of torture or violence, the judge has no right to refuse. Arguments about “poor conditions” without evidence of threats to life or health do not work.

4. “I am a US citizen, I cannot be extradited.”

Unlike Germany, France, and other countries, the USA allows the extradition of its own citizens if it is provided for by a treaty. The U.S. Supreme Court, back in the case of Valentine v. United States, confirmed that the refusal to extradite citizens is not a constitutional guarantee but merely a political decision. If a treaty permits the extradition of a U.S. citizen, the court cannot deny it on the basis of citizenship. An exception is possible only at the level of the Secretary of State, but not in court.

“Many years have passed, and I built a new life.”

Even if a person has been living in the USA for a long time, has created a family, works, pays taxes, and obtained resident status – this is not a legal basis for refusal. The court only examines the statute of limitations, not the social adaptation of the individual. Personal circumstances are a humanitarian argument that can only be considered by the State Department, but not by the judicial system.

6. “The requesting country is corrupt/unfair”

The court does not assess the judicial system of another state unless a specific and provable risk of torture, extrajudicial execution, or the death penalty is presented. General statements about corruption, political influence, or distrust in the courts are not accepted as grounds for refusal.

The Habeas Corpus petition is filed in the U.S. District Court after the judge has issued a decision on the certification of extradition. The purpose of the procedure is not to review the case on its merits, but to verify:

If the court determines that the extradition was carried out with violations, it may suspend the process or revoke the certification decision.

After filing the Habeas Corpus petition, the court schedules a hearing where the defense and representatives of the U.S. Department of Justice present their positions. The arguments must be strictly legal. The court evaluates whether the magistrate acted within the law and whether there were legal grounds for certification.

It is important to understand: filing a petition does not automatically suspend extradition. The lawyer must separately file a motion for a stay of extradition to prevent the transfer until the complaint is reviewed.

Habeas Corpus – the last chance to stop extradition at the judicial level. After this, the case moves to the executive stage to the U.S. Secretary of State, where the decision is made based on political and humanitarian considerations. Therefore, success at the petition stage depends on the accuracy of legal argumentation and the attorney’s ability to identify violations made in the first instance.

The team of lawyers at our company supports clients at all stages: from preparing objections in court to filing a Habeas Corpus petition and a motion to suspend extradition. We analyze the process for errors, prepare appeals to U.S. courts, and protect the client’s interests in coordination with American partners. If you or your client are facing an extradition decision, time is of critical importance. Contact us as soon as possible to utilize all legal mechanisms to protect freedom and stop the extradition before its execution.