The International Prisoner Transfer Program began in 1977 after Congress passed enabling legislation (18 U.S.C. §§4100-4115) and the Federal Government negotiated the first in a series of treaties to permit the transfer of prisoners from countries in which they had been convicted and sentenced of crimes to their home countries. After transfer, the home or receiving country assumes responsibility for administering the transferred sentence. In addition to foreign national prisoners in federal custody and Americans sentenced abroad, foreign national prisoners in state custody are also eligible to participate in the program. Congress conferred the power to administer the transfer program on the U.S. Attorney General. The Attorney General has delegated this authority to the Criminal Division and to its Office of International Affairs (OIA). Within OIA, the International Prisoner Transfer Unit (IPTU) oversees the daily administration of the program.
Foreign Nationals in Federal Custody
Although either the prisoner or the prisoner’s country can initiate the transfer process, most applications begin with the prisoner. A federal prisoner who wishes to apply for transfer to a prison in his home country should contact his case manager at the Federal Bureau of Prisons (BOP) facility where he has been designated to serve his sentence and request to execute a BOP Form 297. If the prisoner expresses an interest to transfer on this form, the case manager will prepare a transfer application package. Thereafter, BOP will review the package for completeness and then send it to the IPTU, where an IPTU analyst will research the case and prepare a recommendation memorandum. The OIA Director, OIA Deputy Director or the Associate Director of the IPTU will review the case and make the final transfer decision. (See Guidelines for Evaluating Transfer Requests.) The DOJ will notify the prisoner and the prisoner’s home country of its transfer decision. If the transfer is denied, the prisoner may reapply in two years from the date of denial or seek reconsideration in the interim if significant evidence is provided demonstrating that the identified impediment to transfer has been removed. Occasionally, the denial may be based on one factor, such as a pending appeal, which is expected to only be a temporary impediment to transfer. In those situations, the IPTU will entertain an earlier reapplication and frequently will reconsider the case without a specific request.
If DOJ approves the transfer, the prisoner’s home country must also review the prisoner’s transfer request and make a decision whether to approve the transfer. DOJ will prepare an approval package for the foreign country to review. If the receiving country approves the transfer, the next step is for the IPTU to make arrangements for a consent verification hearing (CVH). See Post Approval Procedures. The purpose of the CVH is to confirm that the prisoner consents to the transfer and understands the consequences of transfer. The IPTU is responsible for arranging the CVH. These arrangements include coordinating with: the Administrative Office of the Courts which will arrange for the attendance of a Federal Magistrate Judge and a Federal Public Defender to represent the prisoner at the hearing; the responsible USAO which will secure a write of habeas corpus or order to produce or move the foreign national prisoner from the prison to the courthouse; and with BOP and USMS to ensure the efficient movement of the foreign national prisoner to the CVH. When the prisoner is represented by private counsel, he has the option of waiving the consent hearing.
Once the prisoner provides his consent at the CVH or completes the waiver procedure, the IPTU notifies the receiving country and instructs it to contact BOP to make the arrangements to retrieve the prisoner. BOP then moves the prisoner to the departure site, works with the foreign escorts and completes the physical transfer of the prisoner. Once transfer occurs, the foreign country assumes custody of the prisoner and the responsibility to administer the sentence.
Foreign Nationals in State Custody
A foreign national prisoner who is in state custody must follow the transfer application procedure required by the state which sentenced him. In order for a state prisoner to obtain a transfer to his home country, his application must be approved at both the state and federal levels. If the state denies the transfer request, it cannot be reviewed by DOJ. When the state approves the transfer, it forwards application materials to DOJ for consideration. If DOJ approves the transfer, it will send an approval package to the foreign government. Should the foreign government approve the transfer, a consent verification hearing will be held as with federal prisoners. Thereafter, the foreign government will make arrangements with BOP to retrieve the prisoner.
American Nationals in Foreign Custody
Americans incarcerated abroad who wish to transfer to a prison in the United States must apply for transfer with the government of the country in which they are incarcerated, either directly or through the American Embassy in that country. They must also submit an application to the Department of Justice. A consular official will assist in assembling the application package. Information about the application process for Americans seeking a transfer to the United States can be found at the Americans Incarcerated Abroad (PDF).