If the extradition court determines that the fugitive is extraditable, it certifies the fact and the record of the proceedings to the Secretary of State. The final decision to surrender the fugitive is made by the Secretary of State. Neither the extradition judge's determination of extraditability nor the Secretary's decision is appealable. However, the fugitive may petition for a writ of habeas corpus. See this Manual at 622.
The following is a sample certification of extraditability prosecutors may use as a model.
UNITED STATES DISTRICT COURT
FOR THE ____________ DISTRICT OF ___________
In the Matter of the Extradition
CERTIFICATION OF EXTRADITABILITY
AND ORDER OF COMMITMENT
These extradition proceedings were commenced by the United States pursuant to 18 U.S.C. § 3184 and the Treaty on Extradition between the United States and [country] of [date of treaty], (treaty citation), (hereinafter "Treaty"). ____________ (hereinafter "defendant") was [provisionally] arrested at the request of [country] on [date]. Pursuant to the Treaty, [country] authorities presented a formal request for the defendant's extradition on [date], supported by appropriate documentation.
The defendant's extradition is sought by [country] for prosecution for the offenses of [list offenses].
On [date], this Court conducted an extradition hearing pursuant to 18 U.S.C. § 3184. Based on consideration of the documentary evidence introduced on behalf of [country], the defendant's opposition to extradition, oral arguments of counsel, and written memoranda, the Court finds that the terms of the Treaty and 18 U.S.C. § 3184 have been met.
Specifically, the Court finds the following: [expand this section as necessary to address specific issues raised]
- That there is an extradition treaty in force betweenthe United States and [country], namely, the Treaty, and this Court has jurisdiction in this matter;
- That there are criminal charges pending against the defendant in [country] charging him with [list offenses], in violation of [citations to foreign penal code];
- That the crimes with which the defendant is charged are extraditable offenses within the terms of Article __ of the Treaty;
- That the defendant who appeared before this Court is the same person who is charged in [country] in an order of arrest issued by the [name of foreign court] on [date]; and
- That the evidence establishes probable cause to believe that the defendant committed the charged offense(s).
For the foregoing reasons, this matter is certified to the Secretary of State in order that a warrant may issue for the surrender of the defendant to the proper authorities of [country] in accordance with the Extradition Treaty between the United States of America and [country].
ORDERED that _________________ is committed to the custody of the United States Marshal, or his authorized representative, to be confined in appropriate facilities and to remain until he is surrendered to [country] pursuant to applicable provisions of the Treaty and United States law.
It is further
ORDERED that the United States Attorney for this judicial district shall forward a copy of this Certification and Order together with a copy of all transcripts of proceedings and copies of documents received into evidence in this matter, to the Secretary of State.
ENTERED this ____ day of ______, 199_, at _________, ____________.
UNITED STATES MAGISTRATE JUDGE
Office of International Affairs
U.S. Department of Justice
1400 New York Avenue, N.W.
Washington, D.C. 20005