(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.

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.