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732

Eligibility for Prisoner Transfer

The requirements for transfer are set forth in the enabling statute, 18 U.S.C. §§ 4100-4115, and in the transfer treaties. The basic eligibility requirements are: (1) the prisoner must be a citizen or national of the country to which he/she wishes to transfer; (2) a transfer treaty relationship must exist between the United States and the prisoner's country; (3) the prisoner must be convicted and sentenced; (4) the judgment and conviction must be final, meaning that there are no pending appeals or other collateral attacks against the conviction or sentence; (5) dual criminality must exist—the offense for which the prisoner is incarcerated must be a crime under the laws of the receiving country; (6) in the absence of exceptional circumstances, a minimum period of time (typically 6 months) must be left to serve on the sentence at the time of application; (7) there can be no other pending criminal charges against the prisoner; and (8) the prisoner, the sentencing country and the receiving country must all consent to the transfer. Depending on the treaty, additional requirements may also be present. For example, the bilateral treaty between the United States and Mexico precludes the transfer of immigration offenses and prisoners who have become "domiciliaries," of the United States. The Mexican treaty defines a domiciliary as a person who has been present in the territory of one country for at least five years with an intent to remain permanently therein.

[updated March 2012] [cited in USAM 9-35.010; Criminal Resource Manual 733]