Brazil does extradite people to the United States, but only under a 1961 bilateral treaty and only after the request survives review by Brazil’s Ministry of Justice, a legality ruling from Brazil’s Supreme Federal Court, and a final sign-off from the executive branch. The largest limit is constitutional: native-born Brazilian citizens cannot be extradited at all. Requests that could lead to the death penalty or life imprisonment also require formal US assurances before Brazil will proceed.
Who Brazil Will Not Hand Over
Native-Born Brazilian Citizens
Article 5(LI) of the Brazilian Constitution flatly prohibits the extradition of Brazilians by birth, and Brazilian legal doctrine treats this as absolute with no exceptions.1Law Library of Congress. Brazil – Waiver of the Constitutional Right To Not Be Extradited If a person born in Brazil commits a crime in the United States and returns home, no US request will succeed. The only remaining option is to ask Brazil to prosecute the person locally for the foreign conduct, which is a separate and more complicated route.
Naturalized Brazilians have less protection. They can be extradited for crimes committed before naturalization, and they can be extradited for drug trafficking regardless of when the conduct occurred.2Organization of American States. Requirements for Extradition in Brazil
People Granted Asylum or Refugee Status
If Brazil has granted a person political asylum or refugee status, extradition is generally barred. Surrendering someone to the country they fled would contradict the protection Brazil has already extended, and a request that arrives after asylum has been granted faces a very steep climb.
Which Crimes Actually Qualify
Dual Criminality
The conduct has to be a crime in both countries. Article 82 of Brazil’s Migration Law bars extradition when “the fact motivating the request is not considered a crime in Brazil or in the requesting State.”3Ministério da Justiça e Segurança Pública. Law 13445 – Migration Law The offense doesn’t need to share a name or classification across the two legal systems, but the underlying conduct must be punishable in both.
How Serious the Offense Has to Be
Minor crimes don’t reach the treaty. The 1961 treaty requires a potential sentence of more than one year of imprisonment under the laws of both countries.4United Nations Treaty Series. Treaty of Extradition Between the United States of America and the United States of Brazil Brazil’s Migration Law then adds its own floor and denies extradition when the equivalent Brazilian offense carries less than two years.3Ministério da Justiça e Segurança Pública. Law 13445 – Migration Law Both thresholds have to be met.
Time Limits
If prosecution is time-barred under either country’s law, extradition is denied.2Organization of American States. Requirements for Extradition in Brazil The requesting country also has to show proper jurisdiction over the offense.
Political Offenses
Brazil’s Constitution bars extradition for political crimes or crimes of opinion.2Organization of American States. Requirements for Extradition in Brazil The Migration Law narrows the protection where the conduct is primarily an ordinary crime with a political connection, and the Supreme Federal Court can decide that attacks on heads of state, crimes against humanity, war crimes, genocide, and terrorism do not qualify as political offenses.3Ministério da Justiça e Segurança Pública. Law 13445 – Migration Law
The Death Penalty and Life Sentence Problem
Brazil’s Constitution prohibits the death penalty outside a declared war and prohibits punishment of a “perpetual nature,” which includes life imprisonment.5STF. Constitution of the Federative Republic of Brazil Article 96 of the Migration Law carries those values into extradition: Brazil will not surrender anyone unless the requesting country commits to commuting any death sentence or life sentence to a term of imprisonment not exceeding 30 years.3Ministério da Justiça e Segurança Pública. Law 13445 – Migration Law
This shapes many US requests. A lot of federal charges carry potential life sentences, and some state offenses are capital. Before Brazil will proceed, the United States has to provide a formal guarantee that neither penalty will be imposed. US prosecutors typically deliver those assurances through diplomatic channels, but the requirement adds time to every serious case.
How a US Request Moves Through the System
Starting the Request in the United States
Every formal US extradition request begins at the Department of Justice’s Office of International Affairs, which must review and approve outgoing requests. Federal prosecutors prepare the documentation, but the Office of International Affairs runs the process. The request then goes through the Department of State by diplomatic note to the US Embassy in Brazil, which presents it to the Brazilian government.6US Department of Justice. Justice Manual 9-15000 – International Extradition and Related Matters Prosecutors and federal agents are not permitted to contact Brazilian counterparts directly to request an arrest for extradition purposes.
Ministry of Justice and the Supreme Federal Court
Once the request reaches Brazil, it goes to the Compulsory Measures Division of the Ministry of Justice for an admissibility check.7The Law Library of Congress. Brazil – Extradition Procedures If it clears that stage, it moves to the Supreme Federal Court, known as the STF. The Migration Law is explicit that no extradition can proceed “without prior ruling of the Federal Supreme Court on its legality and provenance.”3Ministério da Justiça e Segurança Pública. Law 13445 – Migration Law The person sought can challenge the request and raise any of the constitutional bars. The STF’s decision on legality cannot be appealed.
The Executive Decides Whether to Deliver
If the STF blocks the extradition, that is the end of the matter and the executive branch cannot override it. If the STF finds the request legally proper, the “competent body of the Executive Branch” then authorizes the surrender under Article 92 of the Migration Law, and it retains some discretion at that stage.3Ministério da Justiça e Segurança Pública. Law 13445 – Migration Law Once authorization is granted, the United States has 60 days to remove the person from Brazilian territory.
Provisional Arrest and the 60-Day Clock
Because a formal request takes time to assemble, the treaty lets either country ask for the provisional arrest of a fugitive through diplomatic or consular channels before the full paperwork is ready.4United Nations Treaty Series. Treaty of Extradition Between the United States of America and the United States of Brazil The provisional request has to identify the crime, describe the person, and declare that the formal documents exist and are on the way.
There is a hard deadline. If the formal extradition request does not arrive within 60 days of the provisional arrest, the person must be released, and a fresh request will only be accepted if the full documentation is included from the start.4United Nations Treaty Series. Treaty of Extradition Between the United States of America and the United States of Brazil Cases sometimes collapse here, because assembling, translating, and authenticating documents across two legal systems under a running clock is harder than it looks.
What the US Can Do With the Person After Extradition
Once someone is extradited to the United States under this treaty, US authorities cannot try or punish them for any pre-extradition crime other than the specific offense that justified the surrender, and they cannot re-extradite the person to a third country without Brazil’s consent.4United Nations Treaty Series. Treaty of Extradition Between the United States of America and the United States of Brazil This is the rule of specialty. The protection expires if the extradited person is released and voluntarily stays in the United States for more than 30 days, and upon release the person must be told of that consequence. If US prosecutors want to pursue additional charges, they have to go back through diplomatic channels.