Criminal Defense of Immigrants

(A)  In General.  Under prisoner transfer treaties, nationals of 59 signatory nations[1] who are serving state[2] or federal sentences[3] in the United States, could be transferred back to their native land to complete service of their sentences.  The embassy of the home country may be contacted for information on the terms of the treaty.  For a thorough review of the history and practice of prisoner transfer, see Simon, et al., The United States Treaties on Transfer of Prisoners: A Survey, 17 Pacific L. J. 823 (1986).

                A prisoner — adult or juvenile — may be transferred only to a nation of which s/he is a citizen or national, and only with his or her consent, which, once given and verified, is irrevocable.[4]  Federal prisoners convicted of certain immigration offenses or who have appeals or post-conviction relief pending are ineligible for transfer.  In order to qualify for transfer, the offense for which the sentence is being served must be a crime in both countries at the time of the transfer, and the prisoner must have at least six months left to serve, and must not be committed for civil contempt.  If the inmate has an outstanding, the transfer may not occur without the approval of the court imposing the fine.  The individual treaties may have additional or different requirements.

                The Bureau of Prisons, the relevant investigative agency (such as FBI, DEA, etc.), and the U.S. Attorney’s office that prosecuted the case are consulted, and the Department of Justice decides whether to approve the transfer based on the seriousness of the offense, the existence of outstanding fines or restitution, the prior criminal history, the offender’s ties to each country, and the likelihood of rehabilitation.  If the Department of Justice approves the transfer, the case is forwarded to the receiving country’s embassy for a determination whether to accept the inmate.

                The advantages to the inmate include the benefits of being closer to friends and family and improved chances of rehabilitation in the home culture.  The amount of time to be served, parole eligibility, and good time are governed by the laws of the receiving country, which may result in earlier release.

                A noncitizen who is deportable but has been granted voluntary departure under INA § 240B and is transferred under treaty shall be deemed for all purposes to have voluntarily departed from the United States,[5] but a noncitizen who is the subject of a removal order under INA § 240 and is transferred shall be deemed for all purposes to have been removed from the United States.[6]

[128] The countries currently include: Austria, Bahamas, Belgium, Bolivia, Bulgaria, Canada, Chile, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Federated States of Micronesia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Israel, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Marshall Islands, Mexico, Netherlands (Netherlands Antilles and Aruba), Norway, Panama, Peru, Poland, Portugal, Republic of Palau, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland, Thailand, Trinidad/Tobago, Turkey, Ukraine, United Kingdom and U.K. Territories.  See Ellis, An Introduction to International Prisoner Transfers: Going Home, 23 the champion 32 n.1 (National Ass’n of Criminal Defense Lawyers, July, 1999).

[129]  Forty-four states — all but Delaware, Georgia, Mississippi, N. Carolina, Tennessee, and West Virginia — have enacted implementing legislation.  Prisoners in the Northern Mariana Islands, a United States territory, can also participate.  Inmates in Vermont may be transferred only to Canada.  (Ibid. n.2.) 

[130] 18 U.S.C. § § 4100, et seq.   Implementing regulations are contained in 28 C.F.R. § § 527.40 ff.

[131] Ibid.

[132] 18 U.S.C. § 4113(a).

[133] 18 U.S.C. § §   4113(b), (c).