Factors Used in Determining Whether to Grant/Deny A Foreign National Prisoner Transfer
Prisoners in both federal and state custody can request an international prison transfer to serve the remainder of their sentence in their home country. Prior to initializing such transfer process, compliance with treaty provisions, federal legislations, and state laws (if relevant) is required. For instance, prisoners can only be transferred to foreign countries with which the United States has a valid treaty regulating prison transfers. These transfers must also comply with federal legislation, state laws (if the prisoner is in state custody), and Department of Justice (“DOJ”) guidelines.
In the United States, Congress delegated the authority to administer international prisoner transfer cases under all applicable treaties to the U.S. Attorney General. The Attorney General then delegated this duty to the Criminal Division and the Office of International Affairs (“OIA”). The OIA within the DOJ is in charge with transferring prisoners to their home country to serve the remainder of their sentences. The International Prisoner Transfer Unit (“IPTU”) within the OIA is responsible for administering the International Prisoner Transfer Program and deciding whether to approve or deny a transfer request based on certain guidelines and factors.
Because this process can be highly complex and involves coordination at multiple levels—including at the federal, state (sometimes), and international levels—retaining a qualified attorney to help individuals prepare and navigate the transfer process is recommended.
The Two Types of Foreign National Prisoner Transfer Applications
The first type of foreign national seeking prison transfer includes those who have been convicted and sentenced in federal courts and therefore under the custody of the Federal Bureau of Prisons (“BOP”). The second type of foreign national seeking prison transfer includes those who have been convicted in state court and serving time in state prisons.
A successful transfer cannot occur unless the Department, the prisoner, and the receiving foreign country consent to receive the prisoner. If the prisoner is in state prison, the state must first consent to the transfer before the Department considers the prisoner’s transfer application.
Factors Considered When Deciding Whether or Not to Grant the Foreign National Prisoner’s Transfer Request
Prisoners in Federal Custody
It is the responsibility of the BOP to determine whether the prisoner is eligible to apply for a prison transfer. A prisoner must satisfy three basic elements to be eligible for transfer:
- The prisoner’s home country is a country with which the United States has a treaty regulating international prisoner transfers;
- The prisoner has sufficient time remaining on their prison sentence; and
- Regarding Mexican applicants, the offense is not an immigration offense (with some exceptions).
Once the BOP determines that the prisoner is eligible to continue with a prison transfer application, that application is forwarded to the OIA. The OIA—particularly the IPTU within the OIA—then considers whether the applicant would be a suitable applicant for prison transfer. This consideration is based on certain criteria, factors, and guidelines, all of which are weighed to form a decision to either grant or deny the transfer application.
These criteria, factors, and guidelines are discussed below.
The Relevant Treaty Provisions Have Been Satisfied
The United States cannot transfer a prisoner to a foreign country unless it has a treaty relationship regulating prison transfers. The basic requirements of the treaties and implementing federal legislation that must be satisfied prior to transfer include the following:
- The prisoner is a national of the country to which they seek to be transferred;
- The convicted offense is also a crime in the receiving country—called dual criminality;
- Both the judgment and sentence are final;
- There are no pending appeals or collateral attacks;
- All parties to the transfer must consent: (a) the sentencing country—the United States; (b) the receiving country—the prisoner’s home country, and (c) the prisoner; and
- A minimum period of time, which is usually about 6 months, remains on the prisoner’s sentence at the time the application is submitted.
Other relevant factors that could affect the decision to grant or deny a transfer request include whether the prisoner became a domiciliary of the sentencing country; whether the sentence is a capital offense; or whether the offense was a military or political offense, as some examples.
The Potential Social Rehabilitation of the Prisoner
The purpose of transferring foreign national prisoners is to enable them to be socially rehabilitated back into the society of their home country. In fact, this “rehabilitation” goal is a critical factor of consideration in many prison transfer treaties. A prisoner’s rehabilitation assumes that he or she can best integrate back into society in an environment and culture that is familiar to them and that is surrounded by family and friends. Some factors that the Department considers here include:
- Contacts in the sending and receiving countries: The location of family members, length of time spent in the United States, and employment and educational history are all relevant factors in determining the prisoner’s connections.
- History of deportation and removal: Recent deportations and removals have a negative impact on the transfer decision.
- Prisoner’s acceptance of responsibility: Whether the prisoner has accepted responsibility for their offense is considered in assessing the prisoner’s rehabilitation potential.
- Criminal history: A prisoner’s history of crimes is an important predictor of the ability of the prisoner to rehabilitate into society.
- Seriousness of offense: This is a critical factor in determining whether the prisoner will be better rehabilitated by staying in the United States for the remainder of their sentence or being transferred to the receiving foreign country.
- Criminal ties to the prisoner’s home country: Whether the prisoner has criminal ties in their home country weighs against rehabilitation and against transfer.
- Conduct of prisoner while incarcerated: This factor is also predictive of the prisoner’s rehabilitative potential.
- Any prior transfers of prisoner: The Department’s policy is not to transfer a prisoner when that prisoner had already been transferred and then commits another offense in the United States.
- The prisoner is a dual national: If the prisoner is a dual national, the transfer decision is based on determining the country with which the prisoner has more ties and where rehabilitation of the prisoner can be best served.
Needs, Interests, and Concerns of Law Enforcement
Another important consideration when evaluating the prisoner’s transfer application is law enforcement concerns. Examples of such concerns are listed below:
- The seriousness of the offense: If the offense was serious and impacted many victims, law enforcement interests may conclude that the prisoner ought to serve the remainder of their sentence in the convicting country, United States.
- U.S. law enforcement and prosecutorial concerns: These concerns consider whether the prisoner’s testimony is needed in other cases, whether the prisoner has other pending charges or has unpaid restitution, or whether U.S. law enforcement agents need the prisoner for more debriefings.
- The foreign country’s law enforcement interests: After a prisoner is transferred, the receiving country becomes privy to critical information about the prisoner that bears on the prisoner’s rehabilitation and the receiving country’s custody and jurisdiction over that prisoner. This information affects the receiving country’s efforts to rehabilitate the prisoner into its society.
- Public policy issues: The transfer may be denied if it contradicts the public policy, national security, or other interests of the United States.
- Return to criminal activity in the receiving country: Data which indicates that the prisoner may return to criminal activity in the receiving country will negatively impact the decision to transfer.
- Possibility of sentencing disparity: In serious cases, the Department will need to consider whether there will be a disparity in sentences when making the decision to transfer.
Compelling Humanitarian Concerns Regarding the Prisoner
Humanitarian concerns are a powerful consideration and may overpower other considerations. Prominent examples of humanitarian concerns include instances where the prisoner is suffering from a terminal illness or the prisoner’s close family member has a grave illness. Absent other circumstances, whether the prisoner could be treated in the United States if they are ill or whether the prisoner has a parent of an advanced age do not justify a transfer under this factor.
Prisoners in State Custody
Every state has enacted legislation that allows them to take part in the International Prisoner Transfer program. When a foreign national prisoner has been convicted in state court and is serving time in state prison, that prisoner can request a prison transfer. In such cases, the prisoner must first obtain the state’s approval for the international transfer prior to having their case considered by the federal government. The prisoner must take care to follow their state’s rules and procedures regarding the transfer application process, which could differ from state to state.
If the state denies the prisoner’s transfer request, the transfer will not occur, and the federal government cannot compel a state to complete the transfer of the foreign national. If the state approves the prison transfer, the case is given to the Department. The Department generally defers to the decision of the state unless there is a compelling federal interest to the contrary or an unsatisfied treaty requirement.
An Attorney’s Role in the Prisoner Transfer Process
Foreign national prisoners who are seeking a transfer to their home country are not required to be represented by counsel. However, there are several reasons why retaining an attorney can be beneficial, including helping prisoners understand the transfer process and what to expect, coordinating with state/federal and international counterparts, and counseling the prisoner’s family members. Contact the attorneys of Oberheiden P.C. today.
Dr. Nick Oberheiden, founder of Oberheiden P.C., focuses his litigation practice on white-collar criminal defense, government investigations, SEC & FCPA enforcement, and commercial litigation.