I - Introduction

These guidelines explain the criteria used by the Department of Justice (Department) to evaluate a request by a foreign national prisoner to transfer to his home country to serve a sentence imposed in the United States.

The international prisoner transfer program is intended to further the ends of justice and to facilitate the return of the sentenced person to his home country in appropriate cases.  The prisoner transfer program is informed by the understanding that rehabilitation of a prisoner is most likely to be achieved by having them transferred to their own countries to serve out their sentence and to have their home country assist with his reintegration into society.  Every transfer decision is also guided by law enforcement concerns, the interests of justice, and other important factors outlined below.   

The Department evaluates two categories of foreign national prisoner transfer applications.  The first consists of foreign national prisoners who have been convicted and sentenced in federal courts and are serving their sentences in the custody of the Federal Bureau of Prisons (BOP).  The second category consists of foreign national prisoners who have been convicted in a state court and are serving their sentences in state prisons.  In these cases, the sentencing state must first consent to the transfer before the Department can consider the application.  Transfer cannot occur for state or federal prisoners unless the Department, the prisoner, and the receiving country consent.  Transfer requests from state prisoners are addressed separately, in Section IV.

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II - Statutory and Treaty Requirements for Transfer

The United States can only transfer a prisoner to a country with which it has a prisoner transfer treaty relationship.  The bilateral treaties and multilateral conventions acceded to by the United States, as well as federal implementing legislation, impose basic requirements that must be satisfied for a transfer to occur.  These basic requirements include: (1) the prisoner must be a national or citizen of the country to which he or she is seeking transfer; (2) the offense of conviction must also be a crime in the receiving country (dual criminality); (3) the judgment and sentence must be final; (4) there can be no pending appeals or collateral attacks on the judgment or sentence; (5) the sentencing country, the receiving country, and the prisoner must all consent to the transfer; and (6) a minimum period of time (typically six months) must remain to be served on the prisoner’s sentence at the time that the application is submitted to ensure that there is sufficient time to complete the transfer and that the transfer will achieve the goals of re-integration into the society of the receiving country.

Moreover, some bilateral and multilateral treaties impose additional requirements that must be satisfied before a transfer can occur.  The following issues could impact a transfer determination:

• The prisoner has become a domiciliary of the sentencing country.  [2]
• The sentence is a capital sentence.  A few bilateral treaties and the Organization of American States Convention prohibit the transfer of prisoners sentenced to death.
• The sentence is indeterminate.  Some bilateral treaties (Mexico, Canada, and Thailand) require that a transferred sentence be determinate.  The Mexican treaty requires that the transferring sentence have a "specified duration or [that] such a duration has subsequently been fixed by the appropriate administrative authorities."  This requirement is especially relevant to prisoners serving life sentences in the United States, since such sentences are inherently indeterminate.  A Mexican national sentenced in the United States to a term of life imprisonment must have his sentence commuted to a definite term of years by appropriate United States federal or state judicial authorities.  The Canadian and Thai treaties require that the transferring sentence have a "definite termination date, or the authorities authorized to fix such a date have so acted," but specifically allow for the transfer of a life sentence, a juvenile sentence, and, in the case of the Canadian treaty, "indefinite confinement as a dangerous or habitual offender."
• The sentence is for an immigration offense.  The bilateral treaty with Mexico prohibits the transfer of a prisoner convicted of an immigration offense.  If the prisoner has been convicted of both an immigration offense and other transferable offenses, the prisoner will be eligible for transfer if, based on the terms of his sentence, he has already served the immigration portion of his sentence.  Although the Canadian bilateral treaty contains a similar provision, Canada is also party to the COE and OAS Conventions, which do not contain such a bar, and Canada is willing to use those agreements for the transfer if a Canadian national has committed an immigration offense and applied for transfer.
• The sentence is for a military or political offense.  Some treaties prohibit the transfer of a military or political offense. 

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III - Processing of Foreign National Prisoners in Federal Custody

BOP plays an important role in the prisoner transfer program.  Once foreign national prisoners have been designated to their assigned federal prison, a BOP case manager notifies the foreign national prisoners whether the United States has a treaty transfer relationship with the prisoners’ home country and explains how to apply for a prisoner transfer.  If the foreign prisoner expresses an interest in a transfer, the case manager prepares a transfer application package that is forwarded to BOP’s Central Office in Washington, D.C. for further review.  Complete transfer applications packages are forwarded to the Office of International Affairs in the Criminal Division for review and consideration. OIA carefully analyzes and considers all pertinent information presented in the transfer application to assess: (1) the eligibility and compliance with applicable treaty requirements (see section II supra); (2) law enforcement needs, interests, and concerns; (3) the likelihood of social rehabilitation of the prisoner, if transferred; (4) whether the transfer will further the ends of justice; and (5) any compelling humanitarian concerns that directly impact the prisoner.  

A.  Law enforcement needs, interests, and concerns. In making its transfer decision, the Department considers law enforcement concerns and the interests of justice.  The following law enforcement concerns are evaluated in the context of the prisoner’s transfer application:

1. Seriousness of the offense.   The more serious the offense and the more severe the impact on any victims, the greater the interest may become in having the prisoner serve his sentence in the jurisdiction where the offense was committed.  In assessing the seriousness of the underlying criminal conduct, the Department considers:  the amount of pecuniary loss; the number of victims and the nature of any physical, financial or psychological harm to them; harm to the public; whether the conviction was a crime of violence, with special emphasis on the use of weapons, or the disregard for human life and safety; whether the prisoner had direct ties or involvement with gangs, terrorist organizations and other organized criminal groups; the role of the prisoner in the offense; and the level of planning and preparation involved in the commission of the crime.
2. Law enforcement and prosecutorial needs and concerns in the United States.  Law enforcement interests that may be pertinent to the transfer decision include, but are not limited to, whether:
   1. the prisoner’s testimony or cooperation is needed against codefendants, in an ongoing investigation, before a grand jury or in a criminal trial;
   2. the prisoner has pending charges, detainers or other open cases, or investigations;
   3. law enforcement agents in the United States require further debriefing of the prisoner;
   4. the prisoner has unpaid restitution.  Before a prisoner with outstanding restitution is transferred, the Department considers carefully the impact to the victims.  The existence of court-ordered restitution is not a bar to transfer; however, the Department will consider unpaid restitution in evaluating the transfer request.
3. Law enforcement interests of the receiving country.  When the United States transfers a prisoner, the receiving country receives valuable law enforcement information about the prisoner.  In addition to knowing that the prisoner is within its jurisdiction, transfer provides the country with the opportunity to exercise control over the prisoner for a period of time, to learn the details about the offense the prisoner committed, and to be informed of important information about the prisoner’s criminal background, associations and behavior in prison, and the existence of any behavioral or mental issues.  All of this information assists the country in its efforts to rehabilitate the prisoner and safely reintegrate him into society.  Such information is also particularly important when the prisoner has committed a serious crime and the risk exists that the criminal behavior might be repeated in the receiving country upon release.  In such situations, transfer provides a country with the opportunity to avail itself of available monitoring and treatment options.
4. Public policy.  In rare situations, transfer might be denied if the return of the prisoner to a foreign country would be contrary to the public policy of the United States.  For example, transfer might be denied if the receiving country is in a state of political upheaval that would jeopardize the safety of returning prisoners; the foreign country is not equipped to transfer, receive or house prisoners; or if the transfer of the prisoner would compromise the national security or significant interests of the United States.
5. Renewed criminal activity in the receiving country.  See discussion at IIIA6, supra.  When available information indicates that the prisoner’s ties to criminal elements in the receiving country remain significantly intact so that it is reasonable to predict that the prisoner’s return to the receiving country would simply facilitate a resumption of serious criminal activity, the Department will weigh this factor against transfer.
6. Possible sentencing disparity.  When a prisoner is transferred, responsibility for administering his sentence belongs exclusively to the receiving country.  Under most treaties, the receiving country assumes responsibility for the execution of the transferred sentence, which is carried out under the laws and regulations of the receiving country, including any provisions for reduction of the term of confinement.  Under a few treaties, the receiving country has the additional option of converting the sending country’s sentence through either a judicial or administrative procedure into its own sentence, essentially substituting a penalty for a similar offense under its own laws.  Regardless of whether the sentence is continued or converted, the receiving country is responsible for administering it.  The Department accepts the fact that not all transferred sentences will be enforced exactly as they would have been had the prisoner remained incarcerated in the United States.  In the vast number of cases, sentence disparity should have no impact on the transfer determination.  However, occasionally, when the case is extremely serious or critical national security or law enforcement interests are implicated, the Department will consider potential disparity in sentences in making the transfer determination.

B, Likelihood of social rehabilitation

An additional rationale for transferring a foreign prisoner is to facilitate the prisoner’s social rehabilitation and reintegration into the society and culture of the receiving country.  A prisoner’s rehabilitation is more likely to occur when he is serving his sentence in a location where he can have personal contact with friends and family, and where the culture and language are familiar.  In evaluating whether transfer will further the goal of social rehabilitation, the Department may examine the following factors, the weight of which are determined by the unique circumstances of each case. 

1. Strength of Contacts with the Sending and Receiving Countries
   1. Location of family and other social ties.  Social rehabilitation is more likely to occur when family can visit the prisoner and when cultural and religious ties foster stability. In contrast, if the prisoner’s social network is in the United States, a transferred prisoner may attempt to return to the United States following his release from incarceration--thereby negating any anticipated rehabilitative benefits generated by the prisoner’s transfer.
   2. Length of time spent in receiving country and in the United States.  The Department considers the length of time he has spent in the United States and in the receiving country because it is listed as a criteria in some treaties and because it impacts rehabilitation potential. See discussion at II(1) supra.
2. Acceptance of responsibility.  The prisoner’s acceptance of responsibility reflects potential for rehabilitation.  Acceptance of responsibility may be demonstrated by cooperating with the authorities, providing complete and candid information about the prisoner’s involvement in the offense, testifying at trial or before a grand jury, and/or entering a timely guilty plea.
3. Criminal History.  The number and types of crimes committed, the role of the prisoner in these offenses, and the nature of harm caused may also be important predictors of the prisoner’s rehabilitative potential.  Reoffending or committing criminal conduct while on probation or parole are strong indicators of a prisoner’s inability or unwillingness to refrain from future criminal behavior.
4. Seriousness of the offense.  See discussion at IIIA1 supra.  Facts about the criminal conduct frequently provide information about the rehabilitative potential of the prisoner and his likelihood of reintegrating into the society of the receiving country.
5. Criminal ties to the receiving country.  If a prisoner maintains continuing ties to criminal activity or organizations in the receiving country, transferring the prisoner could facilitate reintegration into the prisoner’s former criminal associations, rather than promote the prisoner’s reentry into law abiding civil society.  Evaluation of this factor might include considerations such as whether the prisoner is a member of a gang, drug cartel or other organized criminal group and his role in that organization.
6. Conduct of the prisoner while incarcerated.  A prisoner’s conduct while incarcerated is predictive of the rehabilitative potential.  Serious or numerous infractions, especially those involving violence, drugs, weapons, and attempts to escape weigh against transfer.
7. Prisoner has received a prior prisoner transfer.  When a prisoner has been previously transferred and then re-enters the United States and reoffends, the Department usually does not approve subsequent transfer requests.  His actions reflect minimal chance for rehabilitation and a desire to be in the United States rather than the receiving country.
8. Prisoner is a dual national.  When a prisoner is a dual national of both the United States and the receiving country, the transfer decision must be based upon a determination of whether the prisoner’s ties with the receiving country are stronger than his ties to the United States, and an evaluation of whether the objectives of the international prisoner transfer program will be better served by a transfer to the receiving country.

C.  Humanitarian concerns

Occasionally, the Department may transfer a prisoner who would not otherwise be a suitable candidate for transfer because humanitarian concerns exist, for example, if the prisoner is suffering from a terminal illness and is in the final stages of that illness.  Illnesses for which the prisoner is being or could be treated in the United States, or the advanced age of a parent, absent other circumstances, do not typically justify a transfer on humanitarian grounds. 

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IV - Foreign National Prisoners in State Custody

All states have enacted legislation permitting them to participate in the International Prisoner Transfer program.  When a foreign national prisoner has been convicted of a criminal violation of a state law and is in state custody, the prisoner must first obtain the approval of the state authorities before he can be considered for transfer by the Federal Government.  Each state has its own application process and procedures, which a prisoner must follow.  If a state denies a transfer request, the transfer cannot occur.  The Federal Government cannot compel a state to transfer a foreign national.

If the state approves the transfer, it transmits the case to the Department for review.  Unless a treaty requirement has not been satisfied or a compelling federal interest is presented in the case, the Department generally defers to a state’s transfer decision, believing that the states are best equipped to assess if transfer would be consistent with state policy and the rights of any victims impacted by the crime.

The most common basis for the Department to deny the transfer of a state prisoner typically occurs when a prisoner has not satisfied a treaty requirement (e.g., a Mexican national has become a domiciliary of the United States, or the state has imposed an indeterminate sentence that cannot be satisfied under the terms of a treaty).  On occasion, the Department may also deny the transfer of a state prisoner based on law enforcement, national security, or public safety concerns.

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[1] These guidelines do not constitute formal standards or regulations. Nor do they create or impose any legal requirements or mandates on the federal government or create or confer any legal rights for, or on, any individual.

[2] The bilateral treaties of Mexico and Turkey have specific domiciliary clauses, which expressly prohibit the transfer of prisoners who have become domiciliaries of the sending country, even though the prisoners are nationals of the receiving country.  For example, the domiciliary clause of the Mexican treaty, found in Article II(3), defines a domiciliary as “a person who has resided in the sentencing country for at least five years with the intent to remain in that country.”