(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).

EXTRADITION " BURDEN OF PROOF ON HABEAS PETITIONER, NOT THE GOVERNMENT
Skaftouros v. United States, ___ F.3d ___, 2011 WL 6355163 (2d Cir. Dec. 20, 2011) (the burden of proof in the habeas proceeding challenging extradition is on the petitioner, not the United States).

Second Circuit

EXTRADITION " U.S. COURT SHOULD NOT ANALYZE FOREIGN LAW EXCEPT TO ENSURE THE TREATY REQUIREMENTS HAVE BEEN SATISFIED
Skaftouros v. United States, ___ F.3d ___, 2011 WL 6355163 (2d Cir. Dec. 20, 2011) (district courts considering habeas petitions stemming from extradition orders should not engage in an analysis of the demanding country's laws and procedure, except to the limited extent necessary to ensure that the requirements of the applicable extradition treaty have been satisfied, and it was therefore error for the district court to conclude that the petitioner was being held unlawfully due to the Government's failure to prove that a Greek arrest warrant was valid as a matter of Greek law and that the applicable Greek statute of limitations had not expired); distinguishing Sacirbey v. Guccione, 589 F.3d 52 (2d Cir.2009).

Other

DETENTION " CANADIAN PRISONER TRANSFER " PROCESS
The process starts with the submission of all forms by the prisoner to the OEO through the prison counselor. This includes the Canadian forms which are forwarded to the Canadian counterparts. The Canadians do not appear to take any action until the United States agrees to the transfer. Action by Canada has been the problem in recent years. Thanks to Mark J. Mahoney. See Department of Justice Office of Enforcement Operations website. www.justice.gov/criminal/oeo/iptu/ Counsel must obtain the clients signature on a waiver, and submit it to the OEM, to allow them to discuss a specific case. A copy of this form is on the website). The agency can, however, answer a generic question without a waiver. Thanks to Theodore Simon.

CRIM DEF - TREATY TRANSFERS FROM UNITED STATES TO CANADA
Having filed an appeal is not a bar to a treaty transfer, and the client does not have to irrevocably give up the right to appeal to get a transfer, despite a common belief to the contrary. The necessary forms can be obtained from the Canadian consulate in New York City. They should be completed and submitted before the defendant goes into custody. Then the inmate just hands the completed forms to their counselor. That will speed up the process considerably. In addition, if possible, counsel should have asked the prosecutor in the plea agreement or at sentencing to put on the record their lack of opposition to the treaty transfer. If that was not done, counsel can seek the prosecutor's consent after the fact, which if granted will save time. If the judgment does not contain an unambiguous statement by the judge favoring the transfer, provide a copy of the reporter's transcript if that will help. Check the treaty to be sure there are no disqualifying aspects of your case. A Canadian attorney can be of assistance to liaison with Canadian officials to help speed things along. Canada offers parole after serving only 65% of the sentence. Thanks to Mark J. Mahoney.

TREATY TRANSFER -- CANADA
Ted Simon in Philadelphia (215) 563-5550 has had considerable experience with treaty transfers, and helped set up the transfer treaties. The Canadian consulate will supply the treaty transfer forms and counsel can begin the paperwork before the client goes into custody. At sentencing, counsel can request that the client be designated to FCI Raybrook because he will be transferred to Canada from there. The client must be in custody when he is transferred. He is entitled to much more good time in Canada than he would receive in the United States and will be out much sooner. If restitution has been ordered but not yet paid, there will be no transfer. Thanks to Jonathan Marks, 212-545-8008

CRIM DEF " SENTENCE " INTERNATIONAL PRISONER TRANSFER
The DOJ OIG has released a 200 page review of the DOJ International Prisoner Transfer Program (Dec. 2011). www.justice.gov/oig/reports/2011/e1202.pdf Thanks to Neal R. Sonnett.

CRIM DEF " DETENTION " PRISONER TRANSFER TREATY " BOLIVIA " CANADA " FRANCE " HONG KONG S.A.R. " MARSHALL ISLANDS " MEXICO " MICRONESIA " PALAU " PANAMA " PERU " THAILAND " TURKEY
The Department of State reports there is a prisoner transfer treaty with Peru. http://travel.state.gov/law/legal/treaty/treaty_1989.html (The United States has 12 bilateral prisoner transfer treaties in force in Bolivia, Canada, France, Hong Kong S.A.R., Marshall Islands, Mexico, Micronesia, Palau, Panama, Peru, Thailand and Turkey. In addition, the United States is a party to two multilateral prisoner transfer treaties.). Thanks to Jonathan Moore.