738

Alerting Defense Counsel to Issues Concerning Defendant's Immigration Status

When an Assistant United States Attorney intends to support the transfer of a foreign national who has been convicted of a serious offense, consideration should be given to the immigration status of the offender. Although both legal and illegal aliens may be transferred, it is the position of the Department that prisoners who fall into one particular category of legal aliens, i.e., Mexican nationals who are lawful permanent residents of the United States, are not eligible for transfer unless an order of deportation has been entered against them. Accordingly, obtaining such an order is an absolute prerequisite to the transfer of prisoners in this category. In addition, the entry of an order of deportation against other deportable criminal aliens, both legal and illegal, will generally serve to streamline the transfer process. Thus, in the case of any defendant for whom the United States Attorney's Office expects to support an eventual treaty transfer, it is advisable to alert defense counsel to the importance of resolving issues relating to the defendant's immigration status and of obtaining, where feasible, an order of deportation, either in the form of (1) a stipulated administrative or judicial deportation order in connection with plea agreements or (2) a (non-stipulated) judicial order of deportation. For information and policy guidance on stipulated administrative or judicial deportation orders, see the Attorney General's April 28, 1995, directive on Deportation of Criminal Aliens in this Manual at 919. [cited in USAM 9-35.010]