Criminal Defense of Immigrants
§ 6.27 (C)
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(C) Prisoner Transfer Treaty Between U.S. and Mexico. Mexico and the United States have entered a Prisoner Transfer Treaty, which became effective on November 30, 1977. Its eligibility requirements include that the person whose transfer is sought must:
(1) be a citizen of Mexico;
(2) be convicted and sentenced;
(3) have no appeals or collateral attacks upon the conviction pending;
(4) have at least six months of the sentence remaining to be served;
(5) be convicted of an offense which is not an immigration, military, or political offense;
(6) be convicted of an offense generally punishable as a crime under the laws of the United States;
(7) have not been living in the United States for a period of five years or more prior to the arrest; and
(8) have the consent of the governments of the United States and Mexico, and provide his or her own consent to the prisoner transfer.
The treaty and procedural requirements are available from the Department of State and from Mexican embassies and consulates.
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).
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).
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.