Chapo's extradition might get blocked by a Mexican judge, but the government may have a way around it

Posted by Chuck B Almada, Republished from Business Insider
Written by Christopher Woody (Business Insider)
Saturday 1 October, 2016

Photo courtesy of BI

Joaquín "El Chapo" Guzmán's appeals against his extradition went before a judge in Mexico City on September 26, but that judge may takes weeks to rule, and the appeals process that is sure to play out after his decision is sure to drag on for weeks if not months. At the end of all that, a Mexican court may rule against the government's decision earlier this year to accede to extradition requests from two US District Courts, a possibility that can't be discounted, especially since Guzmán's legal team has argued that the kingpin was mistreated by state authorities.

But the disapproval of the Mexican judicial system would not be the death knell of the Peña Nieto government's efforts to rid itself, and Mexico, of Guzmán.

"As a technical matter, the Mexican executive [branch] is not at all dependent on the Mexican judicial system to approve of extradition," Peter Vincent, a former legal adviser at the US Department of Homeland Security, told Business Insider. "It in fact has unilateral authority ... to ultimately approve of extradition, because extradition is after all a diplomatic matter, best handled by the executive branch."

There is precedent for the Mexican government to overrule a decision by a court in order to carry out a high-profile extradition request. Alberto Benjamin Arellano Felix, reputedly the leader of the powerful Tijuana cartel at the time, was captured by Mexican authorities in March 2002. Arellano Felix was sentenced to 22 years in jail in Mexico, but efforts to extradite him to the US stalled.

The US government's extradition request was held for several months because of translation delays and other administrative issues. This was compounded by the change of government in Mexico at the end of 2006, when Felipe Calderon took office. The process hit another roadblock in May 2007, when a Mexican judge ruled against Arellano Felix's extradition saying that he would be tried for charges he had already faced in Mexico.

Photo courtesy of BI

But in 2008, the Mexican government dismissed this objection, paving the way for Arellano Felix to be sent to the US. At the time, the Mexican attorney general's office said Arellano Felix had been tried for drug trafficking and other offenses committed prior to 1997, and that he would face trafficking charges for years after that in the US. Moreover, according to USA Today, he was wanted in the US for money laundering, for which he wasn't tried in Mexico. That opinion was not binding on the government, though it was required to consider it.

"The ultimate decision on whether to extradite an individual rests exclusively with the Secretary of Foreign Affairs [SRE], which, of course, is part of the executive branch, which is controlled by the president," Vincent told Business Insider. "That is, the SRE is not required to follow the judge’s recommendation."

Arellano Felix's subsequent appeals were denied, and Mexican authorities surrendered him to US officials in San Diego in April 2011. He took a plea deal and was sentenced to 25 years in April 2012. The judge elected to credit him for the time he spent in US custody, but upon the completion of his US sentence, around the time he is 80, he will have to serve the remainder of his 22-year sentence in Mexico.

Mexico's reversal on Arellano Felix's extradition was part of a relaxation of the country's extradition policies that took place in the mid-2000s, as the Vicente Fox and Calderon governments' ramped up efforts to fight cartels. Mexico had previously refused to extradite high-profile drug bosses, as they could have faced the death penalty or life imprisonment — sentences Mexico's legal system does not issue — in a US court. The US eased the charges against Arellano Felix in 2003 to avoid those sentences, but Mexico later installed a legal workaround.

As Vincent noted:

 "In 2005, the Mexican Supreme Court struck down a constitutional provision that had banned life imprisonment with no chance of parole sentences. As such, Mexico can and had extradited Mexican citizens to the United States even when they would face a life sentence. They will not, however, extradite if the death penalty is being considered. The United States makes 'diplomatic assurances' that it will neither seek nor impose the death penalty in those cases."

But for Guzmán — a capo almost without rival who faces a bevy of charges in the US (and whose cartel won a bloody war with the Arellano Felix cartel in the 1990s and 2000s) — the Mexican government may not need to take executive action.

"What the Mexican authorities ... are sensitive to is allegations that the Mexican executive is essentially denying ... a Mexican citizen of his constitutional rights, and [they are] not likely to countermand in this ... very high-profile instance any decision by the Mexican judiciary not to extradite," Vincent told Business Insider.

"All indications are, however, that the Mexican judicial system ultimately will approve or allow the extradition of Mr. Guzmán," he stressed.