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who were in Argentina, or Chilean nationals who were detained in Chile. The United States had earlier authorized, on June 12, 1975, parole of 400 Chilean refugees, detainees, and their families into the United States.
Refugees in Argentina were required to meet the following criteria for parole:
1. they must have been in Argentina prior to October 20, 1976; 2. they must be certified as refugees by the United Nations High Commissioner for Refugees under the U.N. Refugee Protocol (TIAS 6577; 19 UST 6223);
3. they must be eligible to enter the United States under terms of the Immigration and Nationality Act (requirements of Labor Department certification, proof that they would not become public charges and issuance of an immigrant visa would be waived); 4. they must sign a statement that they have not engaged in any persecution because of race, religion or political opinion; 5. they must not have engaged in terrorist activities;
6. they must express a desire to come to the United States; 7. they must establish that they have fled from Chile, Bolivia or Uruguay because of persecution or fear of persecution and have also been persecuted in that country or have a well-founded fear of persecution.
The INS announcement stated that Chileans considered as detainees were those in actual physical detention, those released to exile in a specific area or who served time in prison for political reasons and were fearful of rearrest, and those unable to obtain employment because of prior confinement.
The INS stated that applicants for parole were required to undergo security checks before being allowed to enter the United States, and that no Government funds were to be used to relocate the parolees.
Dept. of Justice News Release, INS, Oct. 27, 1976. For the discretionary authority of the Attorney General in the parole of aliens into the United States, see § 212(d) (5) of the Immigration and Nationality Act (8 U.S.C. 1182(d) (5) ).
The views of the United States concerning the Draft Convention on Territorial Asylum drawn up by a U.N. Group of Experts at Geneva April 28-May 9, 1975, were transmitted to the U.N. SecretaryGeneral on October 29, 1976. The United States suggested certain improvements in the draft convention with respect to article 3 on nonrefoulement and article 4 on provisional stay pending consideration of request. The following is an excerpt from the U.S. comments:
Article 2.1(a) of the draft convention would entitle a person to the benefits of the convention if he was unwilling to return to the country of his nationality or former habitual residence because of a well-founded fear of persecution for reasons of “race, religion, nationality, membership of a particular social group or political opinion including the struggle against colonialism and apartheid.' The reference to the struggle against colonialism and apartheid is redundant in that it is necessarily comprehended by the reasons for persecution previously enumerated in that provision.
Articles 3.1 and 4 are contradictory in that the former contemplates that a state shall use its best endeavors to ensure that a refugee is not rejected at its frontiers while the latter provides that a person seeking asylum at the frontier shall be admitted provisionally. The best endeavors to admit a refugee pursuant to article 3.1 necessarily entail an initial assessment by the state into which entry is sought whether that person may plausibly be a potential asylee, based on the facts of the case and the applicable domestic law and treaty obligations of that state. The obligation under article 4 would require that a person be admitted solely on the ground that he is seeking entry. Once admitted, a person may avail himself of substantial legal procedures to delay, perhaps even to avoid, his expulsion. The United States Government assumes that a state, in using its best endeavors to admit a person, would be motivated by the humanitarian considerations that underly the institution of territorial asylum, but it does not assume that a person should have a right of entry into a state merely because he seeks it. It accordingly believes that the provisions of article 4 relating to compulsory admission at the frontier should be deleted.
Article 4, also provides that a person seeking asylum in a state while present in that state shall be allowed to remain there while his request is determined. Since such a person would, in any case, have access to whatever legal and treaty measures of protection are available, the United States Government does not believe that this provision of article 4 imposes undue burdens on the state where asylum is sought. It accordingly does not object to the provisions of article 4 relating to persons already present in the state where asylum is sought.
U.N. Doc. A/CONF. 78/5/Add. 1, Dec. 9, 1976. For the text of the Draft Convention on Territorial Asylum, see the 1975 Digest, pp. 156-158; U.N. Doc. A/10177, Corr. 1.
Department of State Requirements
The Office of the Legal Adviser, Department of State, issued a memorandum in January 1976 on the preparation and handling of applications for the extradition of fugitives from justice located abroad. The memorandum follows:
The extradition of a fugitive located abroad pursuant to treaty should be requested only by the Department of State. Extradition will be sought only from a government with which the United States has an extradition treaty, and only in accordance with the provisions of that treaty. The countries with which the United States has extradition treaties and the citations of those treaties are listed in a note to title 18 of the United States Code, section 3181, and are updated in the supplements.
All applications for requisitions [a_request for extradition] should be addressed to the Secretary of State, accompanied by the necessary papers as herein stated. When extradition is sought for an offense within the jurisdiction of a State or other local court, the application must come from the Governor of the State, commonwealth or territory. When the offense is against the United States, the application must come from the United States Department of Justice.
In every application for a requisition it must be made to appear that one of the offenses enumerated in the extradition treaty between the United States and the government from which extradition is sought has been committed within the jurisdiction of the United States or of some one of the States or territories, and that the person charged therewith has been found, or is believed to be located, within the territory of such foreign government or one of its dependent territories to which the treaty applies.
The extradition treaties of the United States ordinarily provide that the surrender of a fugitive shall be granted only upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his commitment for trial if the crime or offense had been committed there.
The application for the extradition of a fugitive should state his full name, if known, and his alias, if any, the offense or offenses in the language of the treaty for which his extradition is sought and the full name of the person or persons proposed for designation to receive and convey the prisoner to the United States. It should also contain a statement to the effect that it is made solely for the purpose of bringing about the trial and punishment of the fugitive, and not for any private purpose, and that if the application is granted, the criminal proceedings will not be used for any private purpose.
Three sets of all papers herein required in support of an extradition request must be supplied to the Department of State. One set will be retained in the files of the Department of State. The original set, duly authenticated by the Secretary of State, will be transmitted with an appropriate instruction to the appropriate American embassy or consulate in the foreign country for ultimate use in the presentation of the request by the prosecuting authority or foreign attorney representing the State or territory. The third set is submitted by the embassy for the use of the Ministry of Foreign Affairs.
The requesting State should indicate in its application that it is prepared to pay the expense of the extradition.
The practice of some countries with which the United States has treaties requires that in order for copies of the depositions to be received in evidence, the party producing them must declare under oath that they are true copies of the original depositions. It is desirable, therefore, that they be certified as true copies. When original, signed depositions are forwarded in all three sets, such a declaration is not required.
Extradition of Person Charged with Crime
If the person whose extradition is sought has not been convicted of, but is merely charged with, a crime, at least the following documents should be submitted:
1. A duly certified and authenticated copy of the indictment or warrant of arrest or order of detention issued by a judge or other judicial officer.
2. Certified and authenticated depositions or affidavits on the basis of which such warrant or order may have been issued. It is preferable that these include the depositions or affidavits of private individuals, if possible, in addition to those of police and other law enforcement officials.
Such depositions should contain:
a) a precise statement of the criminal act or acts with which the person sought is charged;
b) the date and place of the commission of the criminal act c) statements by witnesses which would be used to establish the commission of a crime.
Mexico requires, in cases of murder, a certified copy of the coroner's report or other medical report to prove the existence of a corpus delicti
3. An authenticated copy of the texts of applicable laws including:
a) the law defining the offense;
b) the law prescribing the punishment for the offense;
c) the law relating to the limitation of the legal proceedings or the enforcement of the penalty for the offense; and
d) the affidavit or deposition of a practicing attorney that the laws were in effect when the crime was committed.
4. Data necessary to establish identity of the fugitive. Preferably such data will include a fingerprint record, photographs or affidavits describing the fugitive and distinguishing physical marks. Photographs should be permanently attached to affidavits by one or more identifying persons who have also signed the photographs on the back.
Extradition of Convicted Fugitive
If the person whose extradition is sought has been convicted of a crime or offense, and escaped thereafter, the following should be supplied:
1. A certified copy of the judgment of conviction and sentence passed against the fugitive. If the person sought was convicted, but sentence has not yet been passed, an affidavit should explain how
this is possible under State criminal procedure and indicate the proceedings the person sought faces upon his return in extradition. In any event, the prosecuting attorney should furnish in affidavit form a short narrative statement of the essential facts of the offense or offenses that satisfy the elements of the offense as defined in the applicable law.
2. Data necessary to establish identity as in 4 above.
3. Texts of applicable laws as in 3 above.
4. If punishment has been imposed, an affidavit describing the extent to which the punishment has not been carried out.
If the extradition of the fugitive is sought for several offenses, copies of the several convictions, indictments, or informations and of the documents in support of each should be furnished. Extradition requests should be limited to offenses listed in the appropriate treaty.
Requests for provisional arrest (in advance of presentation of the formal documents) will be entertained by the Department of State. States or territories making such requests should:
a) describe the fugitive;
b) indicate his precise location in the asylum country;
c) enumerate the treaty offense with which he is charged; d) describe the circumstances of the crime as fully as possible, including the date and place of the crime;
e) state the date and place of the issuance of the warrant of arrest or judgment of conviction, and the name of the issuing judge and court; and
f) describe the circumstances of urgency which led to the request for provisional arrest, e.g., the fugitive has a pattern of moving quickly and without warning.
All papers constituting the evidence supporting an extradition request, transmitted as herein required, including the record of conviction, the indictment or information, and the warrant of arrest, must be duly certified and then authenticated under the great seal of the State or of the Secretary of State of the State making the application, or the seal of the Federal Department of Justice, as the case may be. The Department of State can authenticate only the seal of the State or of its Secretary of State, or of the Department of Justice. Thus, for example, if a deposition is made before a judge or justice of the peace, the official character of the justice and his authority to administer oaths should be attested to by the county clerk or other superior certifying officer; the certificate of the county clerk should be authenticated by the State Governor or Secretary of State under the seal of the State or of its Secretary of State, and such seal will be authenticated by the Department of State. If there is only one authentication, it should clearly cover all the papers and be attached to them. Representation
Should the treaty not provide that the legal officers of the requested state shall assist the requesting State before the