An Interesting Case Illuminates the Difference Between Extradition and Deportation, and the Complexity of Our Laws

By Dan Cadman on August 20, 2018

An incredibly complex case has come up recently that illustrates the difference between deportation and international extradition.

Generally, deportation is the process of arresting and expelling a foreign national (usually but not always back to the country of origin) for violations of our nation's immigration laws, whereas extradition is the process of handing over an individual, without regard to citizenship, to another country seeking to prosecute that individual for crimes under that nation's laws.

The laws and the processes governing each are quite different. There are some interesting overlaps, however. For instance, both prohibit rendering an individual to a country based on "political offenses". In fact, an individual who successfully claims to U.S. immigration authorities that he is being unjustly pursued and persecuted by the government of a foreign country for political reasons (often using legal processes to arrest and prosecute) is entitled to refuge or asylum under our laws.

But what constitutes a political offense is nowhere defined in the law — and we as a people sometimes see such crimes through two sets of spectacles. For instance, on the one hand, we abhor tyrannical regimes that manipulate the law and justice system as tools to oppress. On the other hand, we also abhor terrorism, yet what is terrorism but a political offense undertaken by violent means?

The case in question has been lingering for quite a while and has its roots in the war and turmoil that occurred during and after the time when Bangladesh separated from Pakistan to form its own nation — which prior to the breakaway had been a geographically split country between East Pakistan (Bangladesh) and West Pakistan (now simply Pakistan), the two of which formed a saddle on either side of India's flanks. The separation process was bloody and opposed by West Pakistan, which had many supporters among those living in the east. Heinous crimes were committed, including wholesale murder of advocates for the new Bangladesh,  although in truth both sides had bloody hands.

One such crime resulted in the wiping out of almost the entire family of a man revered by many as a father of the independence movement. The alleged perpetrators got away and were sought for many years. One has since been returned and hanged.

Another, Major AM Rashed Chowdhury, was tried in absentia and convicted in 1998 of capital murder. Meanwhile, he had found his way to the United States and from that point the matter becomes murky on the question of his immigration status. He may have been granted asylum, although we don't know that as a certainty, or on what basis he sought it, although it may very well have been a claim that he was being pursued for "political" reasons. What we do know is that by 2004 or 2005 Bangladeshi authorities became aware of his presence here and sought his return through whatever means possible. They asked that he be extradited, but the law states, with a singular exception, that extradition is only possible when there is a treaty of extradition between the United States and the other nation (see 18 U.S.C. Section 3181).

Bangladesh had no such treaty but, wanting him badly, expeditiously went about negotiating one which got hung up in 2014 (roughly 10 years after the public sighting in Los Angeles that outed the major) and was never signed into law here, for unknown reasons. That same year, the Bangladeshi ambassador wrote an op-ed for U.S. News and World Report demanding his extradition.

The media is once again reporting on Chowdhury's case, this time with the headline that the Trump administration is poised to deport Chowdhury. Deportation is the only option for our government, given the lack of an extradition treaty.

If Chowdhury is to be removed from the United States through deportation, how could that come about if he's already been granted asylum? He would have to be found by an immigration judge not to have merited that status to begin with — quite possibly via a case made by the U.S. government that he withheld material information about his involvement in the murder of the Bangladesh head of state. In such an instance, the government would allege that he was removable as having been inadmissible at the time he entered the United States for having committed an act of terrorism, which, under immigration law, includes "[a] violent attack upon an internationally protected person ... or upon the liberty of such a person" or an assassination. (See 8 U.S.C. Section 1182(a)(3)(B)(iii), subclauses III and IV). Another ground of removability relates to those who have "[p]articipated in ... the commission of any act of ... extrajudicial killing". (See 8 U.S.C. Section 1227(a)(4)(D).)

That would not be the end of the story, however, because our immigration laws are, if nothing else, exceedingly complex. If found removable, Chowdhury would be entitled to ask the immigration court to withhold his removal. Interestingly, the grounds for claiming that relief are exactly the same as asylum — that one will be persecuted if returned. The difference is, though, that asylees can ultimately integrate into the fabric of America by becoming lawful residents and perhaps even naturalized citizens. Someone suffered to remain under the withholding statute lives in a kind of legal limbo — permitted to remain but never advance.

Withholding of removal is for those who aren't entitled to asylum because of legal bars, such as for commission of a particularly serious crime. But even withholding has its bars, and one of them is against individuals who have engaged in the kind of extrajudicial killing mentioned above.

What does that leave? Believe it or not, there is still more potential relief available to Chowdhury if the immigration judge (and appellate boards and courts) find him ineligible for asylum and withholding and determine him to be deportable: Convention Against Torture (CAT) relief.

According to the Justice Department's Executive Office for Immigration Review (which houses the immigration courts and Board of Immigration Appeals, or "BIA"), CAT protections "[r]equire applicants to establish that it is more likely than not that they would be tortured if removed to a specific country" and "[m]ay be granted to criminals, terrorists, and persecutors, as they cannot be returned to a country where they would face torture." (Emphasis added.)

So how can Bangladeshi officials surmount these obstacles in a way that meets our legal system's expectations and notions of justice?

First, they can provide the U.S. government with iron-bound assurances that Chowdhury will not be tortured or ill-used upon return. To enhance the credibility of such assurances, they can guarantee access to him by U.S. consular or other officials for the duration of any period of incarceration.

Second, considering that a capital murder case in Bangladesh can result in execution, they might consider offering to re-try Chowdhury if returned, given that in absentia trials are often viewed with skepticism. (Ironically, immigration removal proceedings in the United States can under certain circumstances, be held in absentia — but of course, such proceedings don't result in hanging of the accused).

A final observation: The multiplicity of chances that all of this due process provides may seem unbelievable to the average American, particularly when you consider as well that at every decision-point in the process, the individual may file appeals, first to the BIA and then to the federal circuit courts. The result, as is evident in this case, is a kind of slow-moving near paralysis that renders the concept of justice a mockery. The events of this man's case have been going on for at least 20 years now.

This is the dilemma that the U.S. government often finds itself in with regard to the most heinous individuals on the face of the earth, when they are lucky enough to penetrate our borders, because that is what Congress and the courts have mandated with their laws and binding case precedents. Imagine how we would feel if another country refused to render to us a man accused of assassinating our president.

Topics: Asylum