Criminal Defense of Immigrants

(B)  Procedure.[134]  The International Prisoner Transfer Unit at the DOJ processes applications for transfer, and examines several factors.  If the client is in State custody, as opposed to federal, an additional layer of approval is needed.  The first issue is whether or not the particular state participates in this program.  Most states, but not all, have passed the statutes necessary to allow inmates from that state to participate in the transfer program.  If the particular state has passed this legislation, the client should be informed of this option by the prison authorities upon entering the prison system. 

                Second, the government will get feedback from the law enforcement official involved in investigating the case and from the prosecutor’s office.  This is usually a sticking point.  Law enforcement typically did not care where the person served the time.  The prosecutors were another story.  They almost always had objections based on the fact that once the transfer occurred, the defendants are no longer under their jurisdiction and are then subject to the laws of the country to which they are transferred.  They typically fear that once the person is transferred they will just get be released without serving the time.

                The applicant must also have good behavior in prison.  If no, this will be a negative factor.  Other factors include the nature of the offense, the length of the sentence, the amount of time already served, family ties in the home country, and family ties in the United States.  If the client is in state custody, the state (typically, the governor’s office) will have to approve the transfer.  Then the federal authorities can approve the transfer.  Then the receiving country will have to accept the transfer. 

                If the client receives a fairly lengthy sentence, it is less likely s/he will receive a quick transfer.  The government would probably prefer s/he serve some of the sentence here in the United States, unless the inmate has strong humanitarian factors in his or her favor. 

                If the client is a Lawful Permanent Resident, s/he will have to give up his or her rights to remain in the country and not fight deportation.  If this is not done, there will be no transfer. 

[134] Thanks to Jeanne Brennan Funk.