Treaty Transfers
Prisoners may be transferred to or from countries with which the United States has a treaty to serve their sentence closer to home and facilitate their reentry.
The Treaty Transfer Program is the implementation of Public Law 95-144 (18 USC 4100 et seq.) which authorizes the Director of the Bureau of Prisons to transfer inmates to or from foreign countries, pursuant to the conditions of the treaty agreement which allows for such transfers. All inmates are initially notified of the Treaty Transfer Program when they first enter federal prison, through the Admissions and Orientation Program.
Eligibility
The Office of Enforcement Operations and the foreign country make the final determination on a Treaty Transfer. Several factors will determine whether or not an inmate is eligible, examples include:
The inmate must be a citizen or national of a foreign country having a treaty relationship with the United States. In the instance of inmates who claim dual citizenship, it will be the responsibility of the inmate to provide proof of citizenship or nationality for the foreign country.
The inmate must not be committed for a military offense.
The inmate must not be sentenced to the death penalty.
The inmate must not be committed for a political offense.
Mexican inmates who are serving a sentence exclusively for Immigration Law Violations are not eligible for treaty transfer consideration, unless the sentence is absorbed by another current sentence and the time served to date is equal to or greater than the sentence imposed for the immigration offense.
Mexican inmates must not be serving a life sentence.
The inmate must have at least six months remaining on his current sentence at the time of his request. (Certain countries may require a longer period).
POST-APPROVAL PROCEDURES
Outgoing federal prisoners remain in the custody of the U.S. Bureau of Prisons until they can be turned over to foreign corrections officials, usually at our border (in the case of Canada and Mexico) or at an international airport. Prior to transfer, prisoners receive a “consent verification hearing,” in which a United States Magistrate Judge determines that the prisoner understands the effect of his transfer and confirms that he consents to transfer. (See 18 U.S.C. § 4107.) State prisoners are usually turned over to federal custody following their consent verification hearing. Sometimes state prisoners will remain in state custody pending the foreign country confirming its retrieval arrangements. Incoming American prisoners also receive a consent verification hearing in the foreign country before transfer. (See 18 U.S.C. § 4108.) All prisoners are assisted at these hearings by Federal Public Defenders or, if desired, by private counsel. BOP will make arrangements with the foreign governments to retrieve the prisoners. When American prisoners are involved BOP also relies on assistance from the U.S. Embassy. The time between the approval of a transfer request by both countries and the actual transfer varies widely. A wait of at least three months is typical.
Once the prisoner is transferred to another country, the completion of the transferred offender’s sentence is carried out in accordance with the laws and procedures of the receiving country, including those governing the reduction of the term of confinement by parole, conditional release, or otherwise. The term of incarceration cannot exceed that imposed by the foreign government. In the case of a returning American, the United States Parole Commission determines the release date in accordance with 18 U.S.C. § 4106A. Jurisdiction over the underlying conviction and over proceedings to modify or set aside the sentence remains with the country in which sentence was imposed.
Approvals
The inmate will be scheduled for a verification of consent hearing before a magistrate judge. He either agrees to transfer or can at this time, decline transfer. Once an inmate agrees to transfer, the foreign country is notified and a schedule for the inmate’s transfer is established.
Denials
An inmate must be approved by both the US and the foreign country in order for an inmate to be transferred to his or her country of citizenship. Program Statement 5140.42 states that the inmate may re-apply two years from the date of the denial. However, the re-application process only applies to cases where the US denies the transfer. If the foreign country denies a transfer there is no need to resubmit a packet. If the inmate is dissatisfied with the foreign countries decision, they need to discuss that with their consulate.
In the matter of The Union Of India vs Shaikh Istiyaq Ahmed the Hon’ble Supreme Court of India held that :
“Detention of foreign prisoners was a matter of concern for the Government of India as well as foreign Governments for which the Repatriation of Prisoners Act, 2003 was enacted in conjunction with bilateral treaties enabling the Central Government to transfer foreign convicted persons to their country and vice versa. One of the objectives of the 2003 Act was the transfer of foreign convicted nationals to their respective nations in order to take care of the human aspect in as much as the said convicts would be near their families and have better chances of social rehabilitation. One of the salient features of the legislation is that the enforcement of the sentence shall be governed by the law of the receiving State.
However, the receiving State shall be bound by the legal nature and duration of the sentence as determined by the transferring State. Section 12 and 13 of the 2003 Act, which are relevant for the adjudication of this case, are as follows:
“12. Transfer into India. — (1) The Central Government may accept the transfer of a prisoner, who is a citizen of India, from a contracting State wherein he is undergoing any sentence of imprisonment subject to such terms and conditions as may be agreed to between India and that State. (2) If the Central Government accepts the request for a transfer under sub-section (1), then, notwithstanding anything contained in any other law for the time being in force, it may issue a warrant to detain the prisoner in prison in accordance with the provisions of section 13 in such form as may be prescribed.
- Determination of prison and issue of warrant for receiving transfer in India. — (1) The Central Government shall, in consultation with a State Government, determine the prison situated within the jurisdiction of such State Government where the prisoner with respect to whom a warrant has been issued under sub-section (2) of section 12, shall be lodged and the officer who shall receive and hold him in custody. (2) The Central Government shall authorize any officer not below the rank of a Joint Secretary to that Government to issue a warrant under sub-section (2) of section 12 and to direct the officer referred to in sub-section (1) to receive and hold the prisoner, with respect to whom the warrant is issued, in custody.
(3) It shall be lawful for the officer referred to in sub-section (1) to receive and hold in custody any prisoner delivered to him under the direction made in the warrant issued under sub-section (2) of section
12 and to convey such prisoner to any prison determined under sub-section (1) for being dealt with in accordance with the said warrant and if the prisoner escapes from such custody, the prisoner may be arrested without warrant by any person who shall without undue delay deliver such prisoner to the officer in charge of the nearest police station and the prisoner so arrested shall be liable for committing an offence under section 224 of the Indian Penal Code (45 of 1860) and shall also be liable to be dealt with in accordance with the said warrant.
(4) A warrant under sub-section (2) of section 12 shall provide for—
(a) the bringing of the prisoner into India from a contracting State or a place outside India;
(b) the taking of such prisoner in any part of India being a place at which effect may be given to the provisions contained in the warrant;
(c) the nature and duration of imprisonment of the prisoner in accordance with the terms and conditions referred to in sub-section (1) of section 12 and the imprisonment of such prisoner in India in such manner as may be contained in the warrant; and
(d) any other matter which may be prescribed.
(5) Notwithstanding anything contained in any other law for the time being in force, the imprisonment of a prisoner in compliance with a warrant issued under sub-section (2) of section 12 shall be deemed to be imprisonment under a sentence of a court competent to pass such a sentence of imprisonment in India.
(6) If the sentence of imprisonment passed against the prisoner in the contracting State is incompatible with the Indian law as to its nature, duration or both, the Central Government may, by order, adapt the sentence of such punishment as to the nature, duration or both, as the case may be, as is compatible to the sentence of imprisonment provided for a similar offence had that offence been committed in India:
Provided that the sentence so adapted shall, as far as possible, correspond with the sentence imposed by the judgment of the contracting State to the prisoner and such adapted sentence shall not aggravate the punishment, by its nature, duration or both relating to the sentence imposed in the contracting State.”
