International Extradition: United States Law and Practice: United States Law and Practice (6th Edition)
Contents
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1. The Review Process 1. The Review Process
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1.1. Introduction 1.1. Introduction
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1.2. Scope of Habeas Corpus Review 1.2. Scope of Habeas Corpus Review
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1.3. Characteristics of Habeas Corpus Review 1.3. Characteristics of Habeas Corpus Review
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1.4. Habeas Corpus and the Rule of Non-Inquiry 1.4. Habeas Corpus and the Rule of Non-Inquiry
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1.5. Appeal by the Government 1.5. Appeal by the Government
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1.6. Injunctive Relief: Declaratory Judgment, and Mandamus, and Stay of Extradition 1.6. Injunctive Relief: Declaratory Judgment, and Mandamus, and Stay of Extradition
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1.6.1. The Declaratory Relief Judgment Act’s Application to Extradition 1.6.1. The Declaratory Relief Judgment Act’s Application to Extradition
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2. Prosecutorial Misconduct as Grounds for Review of the Proceedings 2. Prosecutorial Misconduct as Grounds for Review of the Proceedings
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3. Standing and the Firewall between U.S. Judicial Proceedings and Foreign Legal Proceedings 3. Standing and the Firewall between U.S. Judicial Proceedings and Foreign Legal Proceedings
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4. Issues of Standing 4. Issues of Standing
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5. Excessive Delays in Judicial Review 5. Excessive Delays in Judicial Review
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6. Executive Discretion 6. Executive Discretion
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6.1. General Considerations 6.1. General Considerations
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6.2. Conditional Extradition: A Corollary of Executive Discretion 6.2. Conditional Extradition: A Corollary of Executive Discretion
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XI The Review Process and Executive Discretion
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Published:01 February 2014
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The Review Process
Introduction
An extradition order is not a final order within the meaning of Title 28 U.S.C. § 1291. Thus, there is no direct appeal from the decision of the judicial officer conducting the extradition proceedings.1 There is, however, a limited form of review available by means of habeas corpus.2
The petition for a writ of habeas corpus is presented to the federal district court following a grant of extradition. However, the decision of the judge or magistrate in extradition proceedings need not be final before the accused can seek such extraordinary relief. Habeas corpus may be sought at any stage of the extradition proceedings.3 The relator can also seek review before the circuit court of appeals from a denial of habeas corpus by the district court, and if that is denied, he/she can petition the U.S. Supreme Court for a writ of certiorari.
During a habeas corpus proceeding, the federal district court will only consider matters relating to jurisdiction, the existence of a valid treaty of extradition, whether the accused is actually the person whose extradition is sought, whether there is “probable cause”—both to believe he/she is the person sought and that the evidence presented is sufficient to convince a reasonable person that there are reasonable grounds to believe that he/she should be brought to trial, and finally that there are no grounds under the treaty or U.S. law that would preclude his/her extradition.4 Violations of “due process” can always be raised as grounds for habeas corpus relief.5 A petition for review, whether before the district, circuit, or Supreme Court, is limited to these areas of review.
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