The transfer decision is a discretionary judgment made by the sentencing country and the receiving country. A prisoner does not have a "right" to transfer nor can the sentencing country or receiving country force the prisoner to transfer. Each transfer application submitted to the Department presents a unique set of facts that must be evaluated on its individual merits. In addition to ensuring that the applicant satisfies the statutory and treaty requirements for transfer (see Criminal Resource Manual at 732), the IPTU examines other factors in making its transfer decisions. To assist it in evaluating the hundreds of transfer applications that it receives each year and to ensure consistency in decisionmaking, the Department has formulated guidelines to assist its consideration of these transfer requests. Although these guidelines are neither mandatory nor inflexible, they represent the views of the Department as to the importance of various factors in the transfer decision. These guidelines focus on four areas: the likelihood of social rehabilitation of the prisoner; law enforcement interests that are implicated by the transfer of the prisoner; the likelihood that if the prisoner is transferred, he will subsequently return to the United States; and the presence of any humanitarian concerns.
Rehabilitation is one of the objectives of incarceration in civilized societies and is stated as a goal in the preambles to most of the prisoner transfer treaties. It is a fundamental belief of the program that returning the prisoner to his home environment where there is familial and peer support provides the most advantageous environment for the successful rehabilitation and reintegration of the prisoner into society. In addition, since most foreign national prisoners are deported when they are released from custody, it may not make sense to allow them to remain in a U.S. prison where they must adjust to a society different from the one to which they will ultimately be deported. To assess the likelihood of social rehabilitation, the IPTU examines various factors including: (1) the strength of the prisoner's family and other social ties to the sentencing and receiving countries; (2) whether the prisoner accepted responsibility for his criminal conduct; (3) whether the prisoner cooperated with law enforcement; (4) the criminal history of the prisoner; (5) the seriousness of the offense; (6) the role of the prisoner in the offense; (7) the presence of aggravating and mitigating circumstances; and (8) the prisoner's remaining criminal ties to the sentencing and receiving countries.
The second focus of the transfer guidelines is on law enforcement concerns. Although social rehabilitation issues are extremely important, they cannot be the sole focus in making the transfer determination nor can they be assumed to always take precedence over serious law enforcement interests. Law enforcement concerns include: (1) the seriousness of the offense, including if public sensibilities would be offended by the transfer; (2) any public policy issues that would be implicated by the transfer; (3) the possibility that the transfer would facilitate the prisoner's renewed association with his criminal associates in his home country; (4) possible sentencing disparity in the home country (of greatest concern for the most serious offenses); (5) whether law enforcement or the prosecutor needs the prisoner for assistance in pending or future trials, investigations, or debriefings; and (6) the existence of unpaid fines, assessments, and restitution.
The third major concern that is addressed by the guidelines is the likelihood that the prisoner will return to the United States. Allowing a foreign national to serve his remaining sentence in his home country makes sense only if the prisoner will remain in his own country after release. A fundamental reason for the transfer is the belief that rehabilitation is most likely to occur in the prisoner's home environment, an objective that would not be realized if the prisoner were to return to the sentencing country. A number of factors are considered in making this determination, including: (1) the strength of the prisoner's ties to the United States; (2) the strength of the prisoner's ties to his home country; (3) the location of the prisoner's family; (4) previous deportations and illegal entries; and (5) previous prisoner transfers. With respect to this last factor, it is the policy of the Department to deny all transfer requests if the prisoner participated in a previous prisoner transfer.
The final factor evaluated—whether any serious humanitarian concerns exist—arises infrequently. Humanitarian concerns typically involve the terminal illness of the prisoner or a close family member. Although humanitarian concerns are never viewed in isolation, it is possible that when compelling humanitarian concerns are present, a transfer will be approved unless outweighed by other negative variables.
Although most of the foreign nationals transferred are in federal custody, state prisoners are also eligible for transfer. However, before obtaining federal approval of the transfer request, a foreign national incarcerated in a state prison must obtain the state's approval of the transfer. Like the federal government, each state has the discretion to approve or deny a transfer request. Once state approval is given, the federal government can examine the transfer request. Many of the guidelines used to evaluate federal cases are not as important when considering state transfer cases. For example, because the law enforcement interest at issue in state cases are usually limited to state concerns, the Department does not believe it should second guess a state's assessment of the importance of its law enforcement concerns. The federal government approves the majority of the cases approved by the states and will only deny transfer if there is an overriding federal interest or if an essential statutory or treaty requirement has not been satisfied.
[New March 2012] [cited in JM 9-35.010]