Can Former President Bolsonaro Be Removed or Extradited from the U.S.?

Former President of Brazil, Jair Bolsonaro, according to some media reports, arrived in the United States two days before the end of his term. As a foreign leader, Former President Bolsonaro is entitled to an A1 visa, which is a diplomatic visa extended to heads of state and other leaders of foreign governments. Apparently, Former President Bolsonaro currently has no arrest warrant or official pending process in Brazil, nor has he been formally accused or indicted in his home country.

Some members of the American Congress have expressed their opinions on the presence of Former President Bolsonaro in the U.S. They have issued requests to President Biden for Former President Bolsonaro to be removed or even extradited from the U.S., citing the latest events in Brazil. According to Dr. Ingrid Domingues McConville of DM Visa Law, an immigration lawyer with over 27 years of experience, she says, “Based on precedents and basic immigration law, it would be highly unlikely for President Biden to expel Former President Bolsonaro from the U.S. at this time. However, it is possible for an American President to use executive power to revoke someone’s visa.

Although it appears that Former President Bolsonaro is not “currently” in the U.S. in an official capacity, his removal would cause significant political turmoil. The request for “extradition” of an individual is something extremely serious, complex, and can take years to be fulfilled. Moreover, there are strict criteria that must be met before an official “extradition” determination. Currently, according to the media, there is no formal extradition request made by Brazil to the U.S. regarding Former President Bolsonaro.

The U.S. Secretary of State is responsible for determining whether to surrender a fugitive to a requesting state. According to 18 U.S.C. §§ 3186 and 3188, the Secretary or their designee makes this determination after a magistrate or judge of a U.S. district court transmits to the Department a certification of extradition concluding that the extradition of the fugitive would be legal under the relevant extradition treaty and applicable U.S. law.

It is important to understand the basic principles of immigration law when it comes to diplomatic visas, such as the A1 visa that Former President Bolsonaro likely had as the President of Brazil. An A1 visa is issued to heads of state, foreign diplomats, and representatives. In general, these visas are amended once the A1 visa holder is no longer in office or no longer officially represents the foreign government.

In the case of Former President Bolsonaro, if his presence in the U.S. is NOT in an official capacity as a representative of the Brazilian government, he would, in principle, have 30 days after the end of his “status” as a representative of a foreign state (in this case, his term as President of Brazil, which ended on January 1, 2023) to leave the U.S. or seek a change of status to another visa category. Currently, there is no public information detailing Former President Bolsonaro’s immigration intentions.

Could Biden do something under pressure? “This response would be purely opinion… It’s important to understand that extradition only begins with the FORMAL REQUEST from BRAZIL. President Biden DOES NOT have the power to extradite on his own, and I detailed the steps of extradition… Whether he will succumb to pressure, impossible to say, but in my opinion, I believe not, as it would open an immensely chaotic and controversial Pandora’s box that could create a very dangerous precedent…”