Extradition to Thailand—McNabb Associates Cited by Ninth Circuit

The Ninth Circuit Court of Appeals, in an opinion that cites one of our extradition sites,^[1] has ruled that an American citizen, Suwit Prasoprat, can be extradited to Thailand to face trial for smuggling heroin between Bangkok and Los Angeles.^[2] Mr. Prasoprat argued against extradition on humanitarian grounds because he faces the death penalty if he is convicted in Thailand.

The extradition treaty between the United States and Thailand includes narcotics smuggling as a crime for which extradition is available, because it is “punishable under the laws of both Contracting Parties by imprisonment or other form of detention for a period of more than one year or by any greater punishment.”^[3]

The treaty also covers the scenario seen in this case. When the offense for which extradition is sought is punishable by death in the Requesting State—in this case, Thailand—and is not punishable by death in the Requested State—the United States—the extradition of the defendant may be refused unless murder was involved or the Requesting State assures the Requested State that the death penalty will be commuted if it is imposed.^[4] In the United States, the decision rests with the Executive Branch whether to extradite someone in this situation.

As the Court of Appeals noted in its opinion,

The extradition magistrate’s authority has been constrained by statute and caselaw to a narrow inquiry, such that the magistrate judge does not have any discretion to exercise. Once the magistrate judge determines that the crime is extraditable and there is probable cause to sustain the charge, “it is the Secretary of State, representing the executive branch, who determines whether to surrender the fugitive.^[5]

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[1] Prasoprat v. Benov, No. 03-57253 at 5 n.3 (9th Cir. 2005). Note that http://www.usextradition.com is a mirror site of our International Extradition site.
[2] American Can Be Extradited to Face Thai Death Penalty, Wash. Post, Aug. 31, 2005, available here.
[3] Extradition Treaty, Dec. 14, 1983, U.S.-Thai., art. 2, para. 1, S. Treaty Doc. No.98-16 (1991).
[4] Id. art. 6.
[5] Prasoprat at 12 (quoting Blaxland v. Commonwealth Dir. of Pub. Prosecutions, 323 F.3d 1198, 1207 (9th Cir. 2003)).

Posada Update

The deportation hearing for Luis Posada Carriles took yet another fascinating turn yesterday when Mr. Posada withdrew his request for asylum in the United States.^[1] The goal for Mr. Posada at this point seems to be merely preventing his return to Venezuela, where he maintains he will be tortured.^[2]

Mr. Posada’s attorney, Matthew Archambeault, told Immigration Judge Abbott that Posada withdrew his asylum request to avoid embarrassing the US government, because having to explain some aspects of Mr. Posada’s background “may step in areas sensitive to the US government and other … governments.”^[3]

Venezuela is thought to be where Mr. Posada will be deported, but lawyers for the DHS have requested that they receive more information before they decide whether to oppose that decision.^[4] A hearing for that determination is scheduled for September 26.^[5]

The strategy now is to resist being sent to Venezuela by finding a third country to which Mr. Posada could be deported.^[6]

In the event that a suitable country cannot be found, Mr. Posada cannot be detained indefinitely. In the 2001 US Supreme Court case Zadvydas v. Davis,^[7] two individuals were ordered to be deported but a suitable country could not be found.^[8] They were then kept in detention beyond the 90-day period authorized for removal.^[9] 8 U.S.C. § 1231(a)(6) states that an alien which cannot be deported, and can’t be granted asylum, can be detained beyond the removal period. However, the Supreme Court held that the statute “read in light of the Constitution’s demands, limits an alien’s post-removal-period detention to a period reasonably necessary to bring about that alien’s removal from the United States. It does not permit indefinite detention.”^[10]

The ruling was explained a little more in the 2005 Supreme Court case Clark v. Martinez.^[11] Martinez stated that the question was whether the holding in Zadvydas, that an alien detained beyond a reasonable time might be eligible for conditional release, could apply to detainees who had been ruled inadmissible under 8 U.S.C. § 1182.^[12] Mr. Posada might fall under this category.^[13] The court held that the answer “must be yes.”^[14]

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[1] Alicia Caldwell, Cuban Militant Withdraws Request for Asylum, Associated Press, Aug. 31, 2005, available here.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] 533 U.S. 678 (2001).
[8] Id. at 684-86.
[9] Id.
[10] Id. at 689.
[11] 125 S. Ct. 716 (2005).
[12] Id. at 722.
[13] See 8 U.S.C. § 1182(a)(3)(B)(i)(I) (anyone who has engaged in terrorist activity is inadmissible).
[14] Martinez at 722.

McNabb in the News

Senior Principal Douglas McNabb was quoted in this month’s Inside Counsel magazine, in connection to Ian Norris, a retired CEO of The Morgan Crucible Co.

“If Norris is extradited, he’ll be handcuffed, shackled, denied bail, detained in a high-security facility for up to a year awaiting trial, have limited access to a lawyer and the documents he needs for his defense, and be facing a sentence of 20 to 25 years in a federal facility without hope of parole,” says Douglas McNabb, senior principal of the Washington, D.C.-based global criminal defense firm McNabb Associates.^[1]

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[1] Julius Melnitzer, U.S. Tries to Extradite British CEO Under Terrorist Act, Inside Counsel, Aug. 2005.

Extradition from Britain

For over seven years, Khalid al-Fawwaz has been fighting extradition to the United States to stand trial for the 1998 East Africa embassy bombings that killed 224 people.^[1] He is currently in prison in the United Kingdom, and the struggle may finally be coming to a conclusion.^[2] According to a report in the Times of London, “Mr. Fawwaz’s lawyers have been given a deadline by which they must submit last-ditch pleas against his surrender to the American authorities.”^[3] Mr. Fawwaz’s case is one of at least two embarrassing cases for the British government because of its dragged-out pace; another man, wanted by the French for terror charges, has been in jail for over a decade.^[4]

In December 2001, the House of Lords sanctioned the extradition of Mr. Fawwaz, but since then, responses and counter-responses between Mr. Fawwaz’s lawyers and US authorities have been protracted.^[5] When the Home Office gave Mr. Fawwaz’s lawyers the opportunity to argue against extradition, they provided over 750 pages of arguments.^[6] It took until last year for the US government to respond to all the issues.^[7] After that response, Mr. Fawwaz’s lawyers replied with yet more argumentation; the US reply finally arrived this year.^[8]

The head of the Home Office extradition unit, Irving Jones, wrote: “We should perhaps stress here that the purpose was not to engage in endless dialogue but rather to satisfy the interests of fairness that the courts expect to be met in the decisionmaking process. … The overall process has taken longer than was ever expected.”^[9]

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[1] Sean O’Neill, Bin Laden’s London Man May Finally Be Sent to US After 7 Years, Times Online, Aug. 31, 2005, available here.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.

Extradition from Switzerland Update Continued

We have been following two very interesting extradition-related stories this week. One is the deportation hearing for Luis Posada Carriles, which we have discussed here, here, and here. The other is the extradition hearing for Yevgeny Adamov, which we first mentioned a couple of weeks ago, and more recently here.

Mr. Adamov accepted a simplified extradition to Russia last week, but the Swiss judge ruling on the dueling extradition requests wanted to see if the United States would accept Mr. Adamov being sent to Russia to be prosecuted there. It now seems that the US will not accept a simplified extradition to Russia.^[1]

As we mentioned the other day, the factors that the Swiss judge will have to consider in determining to which country Mr. Adamov is to be sent are the relative seriousness and place of commission of the offenses, when the judge received the extradition requests, the nationality of the person, and the possibility of subsequent extradition to another state.

It initially seemed that the only factor working in Russia’s favor is Mr. Adamov’s nationality. The alleged crimes in question were committed in the US, and it seemed that the US requested Mr. Adamov’s extradition before Russia did.

However, that is not entirely accurate. It is clear that Switzerland arrested Mr. Adamov at the request of the United States on May 3, but he refused “quick extradition” which forced the US to make a formal extradition request within forty days.^[2] A formal extradition request, however, was not sent to the Swiss judge until June 24,^[3] over a month after Russia submitted their formal request on May 17.^[4] This situation has no clear outcome. According to the Swiss Federal Office of Justice,

there are no clear rules in the extradition treaties regarding priority. The requested State takes into account the seriousness of the offences, the place of commission of the offences, the dates of the extradition requests and the possibility of a subsequent re-extradition. The offender’s native country is last if it does not extradite its own nationals.^[5]

It will be very interesting to see what the outcome of these extradition requests will be.

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[1] See U.S. Department of Justice Will Not Cancel Extradition Request for Former Russian Nuclear Power Minister, RIA Novosti, Aug. 30, 2005, available here; U.S. Justice Calls for Adamov, Kommersant.com, Aug. 31, 2005, available here.
[2] Balz Bruppacher, Ex-Russian Nuclear Energy Minister Arrested in Switzerland, Accused of Defrauding Safety Funds, Associated Press, May 4, 2005, not readily available online.
[3] See US Asks Swiss to Extradite Russian Ex-minister, Agence France Presse, Jun. 24, 2005, not readily available online.
[4] Russia Asks Swiss to Extradite Ex-minister, Agence France Presse, May 19, 2005, not readily available online.
[5] Office Fédéral de la Justice, Extradition Fact Sheet 8, April 2004, available here (PDF).

Posada Deportation Update Continued

The deportation hearing for Luis Posada Carriles took yet another interesting turn today. Joaquin F. Chaffardet Ramos, a lawyer and former Venezuelan official who claims that he has known Mr. Posada since the 1960s when they worked together as security officials, testified today that Mr. Posada would be tortured if the United States deports him to Venezuela.^[1] Mr. Chaffardet said that the Venezuelan government has denounced Mr. Posada as a terrorist on that country’s state-run media, and that Mr. Posada would almost certainly be sent to Cuba.^[2] Furthermore, while Mr. Posada’s age, 77, would keep Venezuela from imprisoning him for more than four years, Mr. Chaffardet said that the country would likely strip Mr. Posada of his citizenship, which could open the door for his deportation to Cuba.^[3]

After initially refusing to answer any questions about former aliases, and about whether he had committed document fraud,^[4] Mr. Posada finally acknowledged using several aliases and fake passports during a later round of questioning.^[5]

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[1] Alicia A. Caldwell, Militant Said Faces Torture if Extradited, Associated Press, Aug. 30, 2005, available here.
[2] Id.
[3] Id.
[4] Alicia A. Caldwell, Posada Refuses to Answer Questions from U.S. Attorneys, Associated Press, Aug. 30, 2005, not readily available online.
[5] Alicia A. Caldwell, Posada Acknowledges Aliases After Initial Refusal to Respond, Associated Press, Aug. 30, 2005, available here.

Posada Deportation Update

Following on yesterday’s story about Luis Posada Carriles, it seems that the United States does not think that Mr. Posada should be deported to Cuba because it is feared that he will be subject to torture in that country.^[1] The Department of Homeland Security continues to argue that Mr. Posada should not be granted asylum in the United States, while Mr. Posada’s attorneys continue to argue that deportation to Venezuela should not be granted on concerns that he will be tortured in that country.^[2] Immigration Judge William Abbott, however, has said that he will order Mr. Posada deported to Venezuela if asylum cannot be granted.^[3] This announcement received no objection from DHS prosecutors.^[4] Gina Garrett-Jackson, the lead DHS prosecutor, said that the Department would not object to designating Venezuela as the country of deportation, but she did reserve the right to elaborate on the Department’s decision after consulting the departments of State and Justice.^[5]

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[1] Alfonso Chardy, Posada May Be Venezuela-bound, Miami Herald, Aug. 30, 2005, available here.
[2] Id.
[3] Id.
[4] Id.
[5] Id.

Deportation Hearing for Luis Posada

A deportation hearing before a US Immigration Judge is set to begin in the case of Luis Posada Carriles, who is accused of orchestrating the 1976 bombing of a Cuban airliner.^[1] The Immigration Judge in the case, William Abbott, will consider whether Mr. Posada had ever helped commit terrorist acts, and whether he should be granted asylum in the US despite requests by the Venezuelan government that he be deported or extradited to that country.^[2]

After being arrested in Miami in May, Mr. Posada is being held on charges that he entered the US illegally through Mexico in March.^[3] He was apparently trained by the CIA in 1961 to participate in the Bay of Pigs invasion of Cuba, and Immigration Judge Abbott has asked lawyers to prepare briefs on whether the invasion was a terrorist act.^[4] Mr. Posada, however, denies any involvement in that operation, and he denies being involved in the airliner bombing.^[5]

Mr. Posada is seeking asylum in the United States because he claims if he is deported to Cuba, where he was born, or Venezuela, where he holds citizenship, he will be tortured.^[6] However, US immigration law prohibits asylum for people who commit acts of terrorism or serious crime.^[7] Furthermore, the applicant must demonstrate that he has a well-founded fear of persecution because of his race, religion, nationality or membership in a particular social group.^[8] Mr. Posada claims that the social group to which he belongs consists of former CIA operatives trained to fight Castro in the 1960s.^[9]

It should be noted that the terms “deported” and “extradited” are not synonyms. Deportation is governed by immigration law, which is found in Title 8 of the US Code. It is defined as “[t]he act or an instance of removing a person to another country; esp., the expulsion or transfer of an alien from a country.”^[10] An Immigration Judge rules over deportation hearings. Extradition, however, is governed by Chapter 209 of Title 18 of the US Code. Extradition is defined as “the surrender by one nation to another of an individual accused or convicted of an offence outside of its own territory, and within the territorial jurisdiction of the other, which, being competent to try and to punish him, demands the surrender.”^[11] The terms of extradition are covered by an applicable treaty, and extradition hearings are conducted before a US District or Magistrate Judge.

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[1] Hearing Starts in Anti-Castro Militant’s Case, Intl. Herald-Tribune, Aug. 30, 2005, available here.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Alfonso Chardy et al., Cuban Exile Accused of Terrorist Acts to go Before Immigration Judge, San Luis Obispo Tribune, Aug. 28, 2005, available here.
[7] See 8 U.S.C. § 1158(b)(2)(A)(v) (asylum is not available to aliens who have engaged in terrorist activity).
[8] See 8 U.S.C. § 1158(b)(1)(A) (asylum may be granted if the alien is a refugee); 8 U.S.C. § 1101(42) (“refugee” means a person who is unwilling to return to his country because of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion); see also Chardy, supra note 6.
[9] Chardy, supra note 6.
[10] Black’s Law Dictionary 471 (8th ed. 2005).
[11] Terlinden v. Adams, 184 U.S. 270, 289 (1902).

Extradition from Switzerland Update

Several days ago we told you that the United States was attempting to have former Russian nuclear energy minister Yevgeny Adamov extradited to the United States to stand trial for a number of financial fraud charges. Mr. Adamov has now accepted a simplified extradition to Russia,^[1] which means that he has waived the right to a formal extradition hearing.^[2] Mr. Adamov has consented to having Russian authorities prosecute him for the crimes that he is accused of committing in the United States.^[3]

The decision was actually made last week, and the Swiss Federal Ministry of Justice asked US officials whether they would accept the decision.^[4] No reply has been given at this time.^[5] Until an answer is given, Mr. Adamov will remain in Swiss custody.^[6]

If the US decides not to accept the decision, Switzerland will have to continue considering the requests.^[7] Under the terms of the treaty, the factors that Swiss judge will consider are the relative seriousness and place of commission of the offenses, when the judge received the extradition requests, the nationality of the person, and the possibility of subsequent extradition to another state.^[8]

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[1] Russian Ex-nuclear Minister Opts for Extradition Home, Swiss Official Says, Associated Press, Aug. 29, 2005, available here; see also Former Nuclear Minister Adamov Accepts Extradition to Russia, Mosnews.com, Aug. 29, 2005, available here; Russian Ex-nuclear Power Minister Accepts Simplified Extradition Procedure to Russia, RIA Novosti, Aug. 29, 2005, available here.
[2] Extradition Treaty, Nov. 14, 1990, U.S.-Switz., art. 18, S. Treaty Doc. No. 104-9 (1995).
[3] Associated Press, supra note 1.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Treaty, art. 17.