7 FAM 480
INTERNATIONAL PRISONER TRANSFER PROGRAM
(Office of Origin: CA/OCS/L)
7 FAM 481 BACKGROUND AND AUTHORITIES
The International Prisoner Transfer Program (IPTP) began in 1977, when the United States negotiated the first in a series of treaties that would permit the transfer of prisoners from the countries in which they had been convicted to their home countries, where the home country becomes responsible for enforcing or administering the transferred sentences. Almost 80 countries and nationalities are now parties to either bilateral transfer treaties or multilateral prisoner transfer conventions with the United States (See 7 FAM Exhibit 481 for a list of participating countries.) Prisoner transfers under the various treaties are available to U.S. citizens incarcerated abroad as well as to foreign nationals incarcerated in the United States. Currently the United States transfers more foreign nationals from the United States than it receives U.S. citizens from other countries. Although most inmates who are transferred out of the United States under these treaties are federal prisoners, some U.S. states also actively participate in the IPTP.
7 FAM 481.1 Purpose
The treaties and implementing legislation are intended to:
(1) Enable the United States to bring back U.S. citizen prisoners incarcerated abroad, often under particularly harsh conditions;
(2) Enable the United States to transfer foreign national prisoners incarcerated in the United States back to their home countries to serve their remaining sentences;
(3) Relieve the special hardships that fall upon offenders incarcerated in foreign countries, far from home;
(4) Allow U.S. citizen prisoners' spouses, parents and other family members to visit the prisoners on a more regular basis;
(5) Facilitate the rehabilitation of these offenders; and
(6) Ameliorate the diplomatic and law enforcement tensions that may arise between nations when one country’s nationals are incarcerated in another country’s prisons.
7 FAM 481.2 Authorities and Statutory Requirements
a. The Attorney General of the United States is the designated Central Authority for prisoners transferring into and out of the United States. Pursuant to the power granted in 18 U.S.C. 4102(11), the Attorney General has delegated this authority to the Office of Enforcement Operations in the Criminal Division, U.S. Department of Justice.
b. Federal implementing legislation is contained in 18 U.S.C. Part III Chapter 306, Sections 4100 – 4115 (18 U.S.C. 4100 - 18 U.S.C. 4115). The basic requirements for transfer include:
(1) A transfer agreement must exist between the United States and another country before a transfer can occur;
(2) A prisoner must be a citizen or national of the country to which he is seeking transfer;
(3) The sentencing country, the receiving or administering country, and the prisoner must all consent to the transfer;
(4) The offense being transferred must also constitute an offense in the receiving country at the time of transfer. This is referred to as “dual criminality”;
(5) The judgment must be final and there can be no appeal or collateral attack pending that challenges the underlying conviction or sentence; and
(6) Prior to being transferred to or from the United States and after the sentencing and receiving countries have consented to the transfer, an offender must participate in a Consent Verification Hearing (CVH) to ensure that his/her consent is voluntary and that his/her consent is given with full knowledge of the consequences of the transfer. The IPTU arranges the CVH, which is conducted by a U.S. federal magistrate judge. The prisoner has the right to advice of counsel and, if he/she is financially unable to afford counsel, counsel can be appointed for him/her pursuant to 18 U.S.C. 3006A. CVHs for transferring U.S. citizens are normally conducted 5-6 weeks before the physical transfer occurs. 7 FAM 483 provides further guidance about CVHs.
c. See also 28 CFR 527 and 28 CFR 0.64-2.
d. Consent Verification Hearings: Neither an inquiry nor even a request for transfer binds a prisoner prior to the CVH. Generally, once a prisoner gives final consent during the CVH, however, the consent may be irrevocable depending on the laws of the country where the hearing was held. For example, in the Netherlands, Dutch laws permit a prisoner to withdraw his/her consent while on Netherlands soil. Very rarely, a country may have sovereignty concerns over a U.S. magistrate judge conducting a judicial hearing in its country. If this is a serious issue, another U.S. official, such as a consular officer, can be commissioned to act as the verification officer.
e. Legal Representation: Prisoners have the right to consult an attorney at their expense, and to be represented by counsel at the CVH:
(1) A prisoner who cannot afford an attorney may request an appointed attorney at U.S. government expense.
(2) The Chief of the Defender Services Division, Administrative Office of United States Courts, will designate a federal public defender to respond to correspondence from the prisoner.
(3) The appointed attorney will travel to the host country and discuss with the prisoner the consequences of transferring.
(4) The appointed attorney will attend the CVH with the prisoner.
f. Minors and Mentally Ill Prisoners: The U.S. Department of Justice (DOJ), with the assistance of other government agencies, normally makes special arrangements for persons in these categories (See 18 U.S.C. 4102(8) and 18 U.S.C. 4102(9));
g. Physical Return: The United States Bureau of Prisons (BOP) takes custody of the transferee and arranges transportation to a federal facility;
h. No Appeals: Once a prisoner is transferred under the bilateral or multilateral treaty/convention to the United States, he/she cannot appeal or “attack” the foreign conviction in U.S. courts; and
i. Parole: Transferred prisoners who committed offenses on or after November 1, 1987, are not eligible for parole as specified in 18 U.S.C. 4106A). However, each transferee is entitled to a Release Determination Hearing before the U.S. Parole Commission after transfer (See 7 FAM 483). (See 18 U.S.C. 4106A).
Council of Europe Tools for Implementation – Transfer of Sentenced Persons CETS 112
DOJ International Prisoner Transfer Program
UN Office of Drugs and Crime Handbook on International Transfer of Sentenced Persons
7 FAM 481.3 Current Treaties
The major requirements of all the transfer treaties and conventions to which the United States is a party are very similar. All of them require that: (1) the transferring person must be a national or citizen of the country to which he/she is seeking transfer; (2) the sentencing country, the receiving country, and the prisoner must all consent to the transfer; (3) the judgment and sentence must be final with no pending appeals or collateral attacks on the judgment or conviction; and (4) dual criminality must exist, meaning that the transferred offense must also constitute a crime in the receiving country.
7 FAM 481.3-1 Bilateral Treaties
a. The United States has bilateral prisoner transfer treaties with 12 countries or governments, most dating back to the late 1970s when the Department negotiated the first of these treaties with Mexico.
The United States has 12 bilateral prisoner transfer treaties in force in Bolivia, Canada, France, Hong Kong S.A.R., Marshall Islands, Mexico, Micronesia, Palau, Panama, Peru, Thailand, and Turkey.
b. See 7 FAM Exhibit 481 and Treaties in Force on the Department of State website. The text of individual treaties may be obtained from the website of the International Prisoner Transfer Unit, DOJ.
NOTE: Applications for prisoners seeking transfer to/from Canada, France, Panama, and Turkey are normally processed under the Council of Europe Convention
c. In recent years, the United States has recommended that countries seeking to enter into a prisoner transfer relationship with the United States consider acceding to one of the two multilateral transfer conventions, which are available for accession by non-member States. (See 7 FAM 481.3-1; 7 FAM 481.3-2; and 7 FAM 488.1 Questions From The Host Government).
d. While there are some minor differences among provisions of the bilateral treaties, most include the following requirements for a prisoner transfer:
(1) Tripartite Agreement: The sentencing country, the receiving country, and the prisoner must all agree to the transfer;
(2) Finality of Judgment: the prisoner must be serving his/her final sentence, with no appeals pending, or other litigation challenging the validity of the conviction or sentence;
(3) Dual Criminality: the offense for which the prisoner was sentenced must be an offense in both the transferring and receiving countries at the time of transfer;
(4) Nationality/Citizenship: the prisoner requesting transfer must be a citizen or national of the country to which he/she is seeking transfer, and must establish his/her citizenship or nationality by appropriate documentation;
(5) Duration of Sentence: In the absence of exceptional circumstances, the length of time remaining on the prisoner’s sentence at the time of application must be sufficient to allow for the completion of the entire transfer process; most treaties require six months. (See 7 FAM 484); and
Note: the bilateral treaties with France, Hong Kong SAR and Thailand all require that a minimum of 12 months remain to serve on the sentence at the time of application.
(6) Restitution and Fines: Any outstanding fines and/or restitution must usually be paid before the transfer, although practices vary among countries.
7 FAM 481.3-2 Council Of Europe (COE) Multilateral Convention
a. The Council of Europe (COE) Convention on the Transfer of Sentenced Persons entered into force for the United States on July 1, 1985. Since that time, 64 nations have become parties to the COE Convention. A list of current participants may be found at 7 FAM Exhibit 481. A complete text of the Convention may be found on the COE web site under Convention Europe Treaty Series (CETS) CETS # 112, (see Treaties in Force).
Note: Article 19 of the COE Convention provides that even countries that are not members of the COE may be invited to become a party to the convention by a decision of the parties. The United States welcomes the accession of other states to the COE Convention; however, only member states may act as sponsors. If a country is interested in joining the COE Convention, post should contact CA/OCS/L (Ask-OCS-L@state.gov) for guidance.
b. The following are the major provisions of the COE Convention as it affects U.S. prisoners abroad:
(1) Tripartite Agreement: The sentencing country, the receiving country, and the prisoner must all agree to the transfer;
(2) Finality of Judgment: the prisoner must be serving his/her final sentence, with no appeals pending or other litigation challenging the validity of the conviction or sentence;
(3) Dual Criminality: The offense for which the prisoner was sentenced must be an offense in both the transferring and receiving countries at the time of transfer;
(4) Nationality/Citizenship: The prisoner requesting transfer must be a citizen or national of the country to which he/she is seeking transfer, and must establish his/her citizenship or nationality by appropriate documentation;
(5) Duration of Sentence: In the absence of exceptional circumstances, prisoners with fewer than six months left to serve on their sentences at the time of application are generally not eligible for transfer;
Note: Article 3 Subparagraph 2 of the Convention does permit Parties, under exceptional circumstances, to agree to a transfer even if the time to be served is fewer than six months. Consult with CA/OCS/ACS and DOJ as early as possible if a case appears to merit transfer.
(6) Restitution and Fines: Any outstanding fines and restitution must generally be paid before the transfer, although practices vary among countries;
NOTE: The United States submitted a communication to the COE informing it, that with respect to U.S. state cases, the states must first consent to the transfer before the U.S. federal government can consider the case.
7 FAM 481.3-3 The Organization of American States (OAS) Multilateral Convention
The Inter-American Convention on Serving Criminal Sentences Abroad (OAS Convention) entered into force for the United States on June 24, 2001. See 7 FAM 480 Exhibit 1 for a list of countries party to the Convention, and Treaties in Force. A complete text of the Convention and instruments of accession may be found online at the OAS Web site, Treaties, A-57. The following are the major provisions of the OAS Convention as it affects U.S. prisoners abroad:
Note: The OAS Convention provides that any State, even ones that are not OAS members, may join the treaty by accession. Acceding governments must deposit an instrument of accession with the General Secretariat of the Organization of American States. The United States welcomes the accession of other states to the OAS Convention. However, as a matter of policy, the United States does not sponsor individual foreign states.
(1) Tripartite Agreement: The sentencing country, the receiving country and the prisoner must all agree to the transfer. The OAS Convention also specifically requires that, in addition to the federal government, the individual U.S. states must also approve a transfer of the alien citizen of a member country being imprisoned by a state. This requirement has no impact on transferring U.S. citizens.
(2) Finality of Judgment: The prisoner must be serving his/her final sentence, with no appeals pending or other litigation challenging the validity of the conviction or sentence;
(3) Restitution or Fines Paid: Any outstanding fines and/or restitution must generally be paid before the transfer can be authorized;
Note: The DOJ advises that the United States does not view payment of fines as an absolute requirement.
(4) Dual Criminality: The offense for which the prisoner was sentenced must be an offense in both the transferring and receiving countries at the time of transfer;
(5) Nationality/Citizenship: The prisoner requesting transfer must be a citizen or national of the country to which he/she is seeking transfer, and must establish his/her citizenship by appropriate documentation;
(6) Duration of Sentence: At least six months of the sentence must be left at the time the transfer application is made. (See 7 FAM 484);
7 FAM 482 PRELIMINARY STEPS
While there are minor differences among the various treaties referenced above, they all require that a prisoner receive a final sentence, with no appeals pending, before he/she may formally request transfer. However, there are preliminary steps that can be taken to assist a U.S. citizen/national prisoner before the formal application is filed.
7 FAM 482.1 Discussion With The Prisoner
a. Advise the prisoner of the applicability of an existing treaty, and provide some basic information about the transfer process.
b. Get an initial indication from the prisoner as to whether or not he/she is interested in applying for a transfer.
NOTE: See the following U.S. Department of Justice resources:
U.S. Department of Justice Prisoner Transfer Background Information for U.S. Citizens
What Prisoners and Families Can Do
Note: Assure the prisoner that no decision made at this early point is final – a prisoner may initially request transfer and then change his/her mind up to the time of the Consent Verification Hearing.
c. Ensure that the prisoner has, or obtains, documentary evidence of U.S. citizenship or nationality.
d. With the prisoner’s permission, provide interested family members with information on the transfer process.
Note: You may want to refer family members and other interested parties to:
The Prisoner Transfer Treaties feature on the U.S. Department of State, Bureau of Consular Affairs website home page
DOJ International Prisoner Transfer Unit website
7 FAM 482.2 Deciding Whether To Transfer
Each prisoner must decide if transfer is in his/her best interests. For example, some prisoners may spend less time incarcerated if they remain in the host country than if they transferred and had the United States administer their sentences.
7 FAM 482.2-1 The Consular Role In the Decision to Transfer
As a consular officer, you may provide general information regarding the transfer treaty and process, but you should not attempt to assist prisoners in determining the merits of transfer in individual cases. Instead, you should refer them to the Defender Services Division of the Administrative Office of U.S. Courts.
7 FAM 482.2-2 The Prisoner’s Responsibilities in the Decision to Transfer
a. In order to make an informed decision as to whether or not to apply for transfer, the prisoner should write directly to:
Chief, Defender Services Division
Administrative Offices of the United States Courts
Washington DC 20544
ATTN: Prisoner Transfer Treaty Matters
b. The prisoner’s letter should contain as much of the following information as possible:
(1) Full name, including maiden name, and any aliases;
(2) Date and place of birth;
(3) Date of offense;
(4) Date of arrest;
(5) Precise offense for which convicted, and any statutory cites;
(6) A detailed description of the offense, including:
(a) The foreign government’s version, and if possible exact wording;
(b) Whether or not a weapon was used or present when the offense was committed;
(c) If a drug offense, the type and quantity of drugs involved;
(d) A description of the prisoner’s role in relation to any others participating in the offense; and
(e) Whether the prisoner cooperated, confessed, or took any other action accepting responsibility for unlawful conduct.
(7) Sentence imposed or expected, including any fines or restitution;
(8) Any projected release dates after considering parole or other forms of early release;
(9) Any labor credits or prisoner work credits the prisoner earned; and
(10) An accurate description of prior misdemeanor or felony records in the United States including:
(a) Any prior sentences received;
(b) Prior time actually served;
(c) Whether under probation, parole, or criminal justice supervision at the time of the offense; and
(d) Whether there are any outstanding warrants.
(11) An accurate mailing address.
7 FAM 482.2-3 The Role of the Defender Services Division, DOJ
a. The Defender Services Division will assign the prisoner’s letter to a Federal Public Defender (FPD) for review and response.
b. Once the case has been assigned, it usually takes an FPD four to eight weeks to respond.
c. Assuming the prisoner has provided all the necessary information, the FPD will provide the prisoner with a reasonably-informed estimate of how the foreign sentence will be administered in the United States if the prisoner is transferred.
Note: While a prisoner is free to write to the Defender Services Division at any time, as a practical matter FPDs cannot provide specific information or opinions unless the prisoner has a final sentence, that is, he/she has been convicted, sentenced and all appeals have been completed.
7 FAM 482.3 Formally Requesting Transfer
a. Once the prisoner has received information from the Federal Public Defender (FPD), and there are no appeals pending, the prisoner may make formal application for transfer.
b. The prisoner should complete and sign the Prisoner Transfer Application Questionnaire. This document is part of the “Transfer Packet” that the Department of Justice (DOJ) sends once it is aware that a prisoner is eligible for transfer. The consular section may already have a set of transfer forms and information sheets as the Justice Department sends this material to posts when each country becomes a party to the treaties. You may also make copies from the attached 7 FAM Exhibit 482.3.
7 FAM 482.3-1 The Consular Role In Requesting Transfer
The Consular role in this process will vary, depending on local circumstances.
(1) Most treaties provide for direct communication by the prisoner with the central authorities of both governments. Consular officers should, however, be prepared to assist the prisoner in getting his/her request properly formatted and sent to the appropriate host government authorities.
(2) A few treaties require a formal transmission of the transfer request through diplomatic channels to the central authorities. For these cases, consular officers should prepare and submit the necessary documents under diplomatic note. (Japan, Republic of Korea, Peru, and Thailand are current examples.)
7 FAM 482.4 Prisoner Transfer Case Summary
At this point, using the information in the questionnaire and post files, consular officers should prepare the Prisoner Transfer Case Summary (see 7 FAM Exhibit 482.4) with as much detail as possible. The sample at 7 FAM Exhibit 482.4-1 may prove helpful.
7 FAM 482.4-1 Case Summary Key Items and Definitions
a. Name: Provide the name known to prison authorities and the real name, if different, as well as maiden name, or any other known aliases;
b. Case or Document Number: Whatever the host authorities use to identify and locate their file on the prisoner;
c. Date of Birth: Please write out the month to avoid confusion.
d. Evidence Of U.S. Citizenship Or Nationality: Passport number and issue date, birth certificate filing date, etc. Attach a copy if available. It is critical that the consular officer collect documentation establishing that the prisoner is a U.S. citizen. The Department of Justice relies on this determination when making its transfer decision and in representing to the foreign government that the prisoner is a citizen of the United States;
e. Social Security Number: Necessary to determine if there are outstanding warrants;
f. U.S. Address: Used to help determine where the prisoner will ultimately be placed;
g. Date and Place of Arrest: Needed to compute the sentence;
h. Total Charges: Translate all offenses and cite the foreign statutes violated. This should include any charges that were later dropped, or for which the prisoner was found innocent;
i. Sentence: The DOJ will request formal sentencing documents from the host government as part of the notification that the United States has approved the transfer. However, it is important that you provide much of this information in advance, drawing from official host government documents if possible. At a minimum, include:
(1) Date of arrest;
(2) Date of conviction;
(3) Offense of conviction;
(4) Date of sentencing; and
(5) Sentence imposed.
j. Date of Final Sentencing and Status of Appeals: The date when the sentence is considered final. A sentence does not become final until the conclusion of any appeals, including automatic appeals, and the end of any collateral attacks on the judgment.
NOTE: A collateral attack on a judgment is an attempt to impeach or overturn a judgment rendered in a judicial proceeding, made in a proceeding other than within the original action or an appeal from it.
k. Fine and/or Restitution Amounts and Payment Status: If paid, indicate the date and amounts paid, and attach a copy of the receipt, if available. If not paid, indicate whether this will likely affect the host government’s agreement to transfer. Some countries, such as Mexico, require the payment of all fines before transfer can occur.
l. Offense Description: This is a key item. You should prepare a short paragraph or two on the offense or offenses of conviction (as opposed to the total charges listed above), with the following guidelines in mind.
(1) Include the “who, what, when, where, and why” of the crime.
(2) Relate the official version of events, not the prisoner’s.
(3) For drug offenses, include the type and amount of drugs involved.
(4) Note the existence of any co-defendants and, if possible, their role in the offense.
(5) Indicate whether a firearm or other dangerous weapon was used and how.
(6) Indicate any identified victims and describe the nature of harm done to them.
(7) Describe any aggravating or mitigating circumstances.
m. Termination Date of Sentence: The date that the sentencing country considers the completion of the full term of the sentence.
n. Date Eligible for Release: This often differs from the Termination Date.
o. Parole: If parole or conditional release is a possibility, compute the date the prisoner would first be eligible for release, assuming release would be granted.
p. Good Conduct: Compute the number of credits earned and the earliest date the prisoner would earn enough credits for release, assuming good conduct for the entire period.
q. Labor Credits: Assuming the prisoner is eligible for early release based on work; compute the number of credits earned and the earliest date he/she could be released.
r. Adverse Incidents: Include any significant information regarding the prisoner’s conduct during incarceration, including:
(1) Any escape attempts;
(2) Fights with guards or other prisoners;
(3) Disciplinary actions taken (e.g.: solitary confinement, loss of privileges, etc.); and
(4) Illicit Drug use.
s. Security/Custody Level: The name of the prison, its security level or purpose, and the security level in which it held the prisoner if different than the prison norm.
t. Prior Criminal Record: Include information from the host authorities and from the prisoner. Remind the prisoner that DOJ will make a complete record check in any event.
u. Social Data: Include brief information on the prisoner’s immediate family (parents, spouse, ex-spouse, and children), including:
(1) Names, relationship and locations;
(2) Prisoner’s current marital status;
(3) Indicate the current state of relations between the prisoner and family members, such as whether the prisoner is in touch with relatives (frequently or occasionally) or even wants them to know about his incarceration;
(4) State when the prisoner last spoke or saw family members; and
(5) Indicate who, if anyone, has provided financial assistance.
v. Psychological Evaluation: Indicate here if the prisoner:
(1) Has undergone psychiatric or psychological treatment or evaluation while in prison, including the diagnosis and prognosis if known;
(2) Has exhibited any aberrant behavior, according to prison authorities or embassy officers performing consular visits; and
(3) Has been appointed a guardian by the host authorities, or appears to need one.
w. Current Medical Condition: It is important to note if the prisoner:
(1) Is disabled (blind, confined to a wheelchair, etc.);
(2) Has a serious, chronic condition (diabetes, asthma, cardiac problems, etc.);
(3) Has recently required any significant medical treatment; and
(4) Has or may have a communicable disease.
Note: The Bureau of Prisons will require a recent tuberculosis (TB) test before it will take the prisoner into custody. If the prisoner tests positive for TB, the Bureau of Prisons will not transport him or her until after a rigorous course of treatment, or x-rays demonstrate no active TB. Posts should arrange for early testing of all potential transferees.
x. Substance Abuse History: If there is any known history, include:
(1) The type of drugs or substance and duration of abuse;
(2) Any substance abuse treatment already provided by host authorities; and,
(3) The results of such treatment.
7 FAM 482.5 Transmitting Documents To DOJ
a. Email a copy of the Prisoner Transfer Case Summary and other supporting documents to the International Prisoner Transfer Unit (IPTU), DOJ, and Washington DC (firstname.lastname@example.org). Supporting documents include:
(1) A copy of post's original ACS System arrest report and any updates that outline the conviction and sentencing;
(2) A copy of the prisoner’s evidence of U.S. citizenship or nationality; and
(3) Foreign sentencing documents, if available.
b. Mail a signed original of the case summary and other documents to the IPTU.
Office of Enforcement Operations
International Prisoner Transfer Unit
U.S. Department of Justice
10th Floor, John C. Keeney Building
Washington, DC 20530
7 FAM 482.6 Approval Of Transfer
The International Prisoner Transfer Unit of the Department of Justice makes the decision to permit transfer of a U.S. citizen prisoner to the United States. Ordinarily it will approve all U.S. citizens where the eligibility requirements of the treaty are satisfied and there is sufficient time remaining on the sentence.
Note: For detailed information on how the IPTU evaluates a prisoner transfer request, see: Guidelines for Evaluating Prisoner Applications for Transfer. These guidelines focus on transferring foreign nationals from the United States. The standards for transferring U.S. citizens are less stringent and focus largely on whether the U.S. citizen has established his/her citizenship and has stronger contacts with the United States than with any other country.
7 FAM 482.7 Notifying Host Government
Once DOJ has approved the transfer request, the IPTU will provide written notification of the approval to the central authority of the host government, and will send a copy to post. This notification generally consists of the following:
(1) Letter from the IPTU advising that the United States has approved the transfer (See 7 FAM Exhibit 482.7a);
(2) Statement confirming that the prisoner is a U.S. citizen or national. (DOJ Attachment A) (See 7 FAM Exhibit 482.7b);
(3) Statement of dual criminality, including a copy of the relevant law(s) (DOJ Attachment B) (See 7 FAM Exhibit 482.7c);
(4) Statement confirming that the United States will abide by the continuing enforcement provisions of the relative treaty. (DOJ Attachment C) (See 7 FAM Exhibit 482.7d); and
(5) Statement as to the Methods of Sentence Calculation in the United States(DOJ Attachment D) (See 7 FAM Exhibit 482.7e).
Note: Verify that each prisoner has received a copy of Attachment D. If not, provide a copy from the info set sent by IPTU to post. It is critical that the prisoner have the opportunity to thoroughly review and understand this document before the Consent Verification Hearing (CVH). Sending a U.S. Magistrate Judge and Federal Public Defender abroad for a CVH is expensive and requires a significant amount of administrative time. If a prisoner no longer wishes to transfer, it is best if this is determined before a CVH is arranged.
7 FAM 482.8 Host Government Approval
The host government may have already advised DOJ of its approval of the transfer based on the prisoner’s request to the host government. If not, DOJ will request host government consent in the above letter. In addition, unless the host government has already provided these documents to the consular officer or directly to DOJ, the IPTU letter will request:
(1) Foreign Sentencing Documents: DOJ needs the host government documents. They prefer these be in English and, indeed, many of the treaties and/or reservations to the treaties specify that the documents be translated into English. If translation cannot be obtained, a short English summary of the documents and the sentencing information should be provided. The consular officer may assist in this when necessary. For questions on whether circumstances merit post's assistance in translation and how to cover costs of those translations, contact ASK-OCS-L@state.gov; Posts should not incur outside expense for translations without consulting CA/OCS/L which will consult with the Department of Justice.
(2) Offense Behavior Report: DOJ does not need all of the documents generated in the criminal proceeding. Frequently these documents can be quite voluminous and may contain information not necessary to the administration of the transferred sentence. Instead, DOJ requires a concise accurate summary of the offense behavior, as found by the sentencing country, preferably in English. While it is generally the host government’s responsibility to provide translations, consular officers may have to assist with this, rather than delay the transfer process unnecessarily; Posts should not incur outside expense for translations without consulting CA/OCS/L which will consult with the Department of Justice.
NOTE: Most documents do not need to be translated. Generally, the Department of Justice IPTU does not have a budget for translating documents for U.S. citizens incarcerated abroad. Ordinarily, the IPTU receives sentencing documents from the foreign country that are not translated. The IPTU relies on the consular posts to provide it with information regarding sentence length and a brief description of the offense and the offense of conviction so that the IPTU can determine if there is dual criminality. When the IPTU corresponds with the MOJ of another country, it corresponds in English and they will translate the IPTU's letter for their use. This is not usually a problem. Some governments require a translation in advance and the IPTU will carefully weigh what needs to be translated to control the costs.
(3) Prisoner Classification and Behavior: DOJ requires documentation from the host government Department of Corrections or equivalent entity covering all vital information such as health, security risk, aberrant or dangerous behavior, etc.
Note: The health information should include the results of a recent TB test.
7 FAM 483 THE CONSENT VERIFICATION HEARING
A basic requirement of all transfer treaties is that the prisoner must consent to the transfer. To ensure that such consent is received, Congress enacted legislation requiring that a Consent Verification Hearing (CVH) be held for all foreign nationals transferring to their home countries and all U.S. citizens transferring to the United States. (18 U.S.C. 4107-18 U.S.C. 4108)Host governments may or may not have their own similar legal requirements to ensure that the prisoner has consented to the transfer.
7 FAM 483.1 Verifying Official
The law provides for a CVH for a U.S. citizen to be conducted by a Federal Magistrate Judge or by a U.S. citizen designated by a judge of the United States as set forth in 18 U.S.C. 4108..
FYI: In those cases where the presence of a U.S. judicial authority is problematic for the host government, or raises serious sovereignty issues, (e.g. Turkey) a federal judge may designate a U.S. citizen who is an employee or officer of a U.S. agency or Department to act as the verifying officer. The head of the employee's agency or Department must approve the designation (18 U.S.C. 4108(a)). In this event, DOJ will provide information and guidance to the officer on how to conduct the hearing.
7 FAM 483.2 Hearing Venue
Consular officers will need to work with host government authorities to establish an appropriate and secure site for the hearings. Often this will be within the penal institution itself, particularly when there are several eligible transferees approved for transfer.
7 FAM 483.3 Attendees
a. Verifying Officer (United States Magistrate Judge);
c. Prisoner’s legal representative, if any, which could include:
(1) Private attorney retained by the prisoner or family; and
(2) Federal Public Defender (FPD) who provides the prisoner with guidance on the transfer decision;
d. Consular Officer;
e. Guardian (if necessary); and
f. Security personnel as required.
7 FAM 483.4 The Hearing Process
a. The Verifying Officer (VO) ensures that the prisoner understands the procedures and ramifications of transferring, and the procedures for determining his/her sentence once he/she is returned to the United States in the custody of U.S. Bureau of Prisons escorts.
b. The prisoner provides his/her final consent to the transfer by completing and signing three copies of the Form DOJ-20, Verification of Consent to Transfer to the United States for Execution of Penal Sentence from (name of country). (See 7 FAM Exhibit 483.4a). Should the prisoner at this point decide not to go through with the transfer, he/she will complete and sign Form DOJ-22 Withdrawal of Consent to Transfer (see 7 FAM Exhibit 483.4b)
c. The Verifying Officer countersigns and dates the Form DOJ-20, Verification of Consent to Transfer. If the prisoner has decided not to transfer, the VO countersigns the Withdrawal form (Form DOJ-22)
d. This completes the hearing, and the prisoner returns to host government incarceration until the physical transfer takes place.
7 FAM 483.5 Distribution of Completed Verification Form
The completed verification form is distributed as follows:
(1) Copy retained by the Verifying Official;
(2) Copy provided to the prisoner;
(3) Copy to Consular Officer to be retained at post; and
(4) Original is sent to the IPTU. The IPTU will send a copy to the United States. Bureau of Prisons.
Note: If possible, a signed copy of the Verification of Consent form should be emailed directly to the IPTU on the day of the hearing (email@example.com). This allows IPTU to begin the process of arranging with the U.S. Bureau of Prisons (BOP) for escorts and transportation. Failure to email a copy will delay the transfer, since BOP will not arrange escorts until it has a copy of the signed CVH form in hand.
7 FAM 484 THE TIME REQUIRED FOR THE TRANSFER PROCESS
As noted above, most treaties provide that at the time of application, a prisoner have at least six months left to serve on his sentence to be eligible for transfer. While this would imply that the transfer process could be accomplished within that period, the process generally takes longer.
7 FAM 484.1 Estimating Processing Times Is Difficult
Timing of the process is driven by how rapidly and efficiently each of the major players in the process performs his/her assigned responsibilities. This varies widely, not only from country to country, but also from transfer to transfer within the same country.
(1) Even in individual urgent cases, six months is more a minimum than maximum time period.
(2) Most model timelines developed by the IPTU at DOJ run closer to 12 months.
7 FAM 484.2 The Consular Role in Determining Timeframes
a. While the time required is largely out of the control of the consular officer, it may be useful to review the history of transfers involving the post.
(1) Try to identify those areas where the post can perform more efficiently, or exert some positive influence on the process.
(2) Based on the review, develop a model time line for the post and provide a copy to the Department (CA/OCS/ACS).
b. Consular officers should be both realistic and honest in providing U.S. citizen prisoners general information regarding timing.
(1) It is appropriate, for example, to tell them the elapsed times for earlier transfers.
(2) Consular officers should neither discourage nor unduly influence a prisoner who has less than six months remaining and chooses to file for transfer even if his/her sentence falls short of the estimated time to process the request, assuming he/she is otherwise eligible.
7 FAM 485 PHYSICAL TRANSFER OF PRISONERS
The actual transfer of prisoners back to the United States can be a complex process and requires close coordination among the IPTU, the BOP, and the post.
7 FAM 485.1 International Prisoner Transfer Unit (IPTU) and Bureau of Prisons (BOP) Responsibilities
a. Upon receipt of the signed verification of consent form, the IPTU contacts the Central Office of the Bureau of Prisons (BOP) and requests they provide escorts and transport for whatever numbers of prisoners have been certified eligible for transfer.
b. The Central Office of BOP notifies the admitting institution(s) to which the U.S. citizen prisoner will be transferred, and assigns action to the Correctional Programs Division, BOP.
c. The Correctional Programs Division works with the IPTU to ensure that all paperwork is complete, the verification hearing has taken place, and each prisoner has been tested for TB.
d. The BOP and the IPTU work with the host government central authority and with post to establish a date and scenario for the actual handover.
e. The BOP will provide the names and bio information of escorts, and itinerary to CA/OCS/ACS.
f. The BOP will submit the usual country clearance request electronically through eCountry Clearance.
7 FAM 485.2 Consular Responsibilities
The level of the direct working relationship that exists between IPTU and the reciprocal coordinating office of the host government central authority will drive your activity level in this part of the transfer process. In general, however, consular officers should plan on the following:
(1) Issue or verify citizenship or nationality and travel documentation. (See 7 FAM 485.3 below);
(2) Keep host government updated on travel plans;
(3) Advise IPTU and BOP of any host government restrictions on escorts entering with firearms or restraint devices;
(4) Verify the mode of transportation to be used, and ensure that the host government authorities are prepared to grant any necessary clearances. Generally, transportation is by air, with BOP using one of the following:
(a) Commercial Air: While still utilized, particularly in transfers involving only one to seven prisoners, many commercial carriers are becoming increasingly reluctant to board restrained passengers and armed escorts.
(b) U.S. Government Aircraft: On rare occasions, BOP will utilize aircraft of other federal enforcement agencies.
(c) Charter Aircraft: On occasion, BOP will charter commercial aircraft.
(d) Foreign Government Aircraft: Occasionally, foreign countries may provide aircraft to facilitate the transfers.
(5) Assist with arrival, immigration and customs clearances, and lodging for the incoming BOP escorts as required;
(6) Ensure that the U.S. citizen transferees are prepared and ready for transfer; and
(7) Accompany the U.S. citizen transferees from the time they leave prison until their departure.
Note: Do NOT, however, take formal custody of prisoners or accept responsibility for executing the physical transfer from foreign custody to BOP escorts.
7 FAM 485.3 Citizenship Or Nationality and Travel Documents
The BOP escorts must have the documentary evidence of citizenship or nationality and whatever travel documentation is necessary for the prisoner to leave the host country and clear immigration and customs in the United States.
7 FAM 485.3-1 Using a Valid U.S. Passport
a. If the prisoner already has a valid U.S. passport, you should cancel it and issue a passport limited for direct return to the United States at no charge. Limit the validity to a period sufficient to accomplish the transfer travel.
b. If the prisoner does not have a valid U.S. passport, he or she should execute a passport application. Post will then process the application in accordance with 7 FAM 1300 guidance. If the prisoner cannot or will not execute the application, the consular officer may do so “without recourse.”
EMERGENCY OVERSEAS PASSPORT ISSUANCE PROGRAM
“Emergency passports may be issued at no fee, with the proper endorsements and limitations, for emergency travel related to law enforcement such as extraditions, deportations, prisoner transfers and/or travel of witnesses.”
7 FAM 485.3-2 Using A Valid Travel/Transportation Letter
a. While the Department generally discourages the use of Travel Letters in lieu of valid passports, in the case of prisoner transfers, the Department authorizes issuance of Travel and Transportation letters by posts provided:
(1) The subject is being returned to the United States in the custody of law enforcement officers;
(2) The accompanying officers will maintain control of the travel document at all times; and
(3) The subject's identity and U.S. citizenship or nationality status are certain.
b. The travel letter format should be similar to the one shown in 7 FAM Exhibit 485.3-2, which post may adapt for local requirements as necessary. The U.S. Customs and Border Protection (CBP) requires the letter to:
(1) Contain the citizen’s name, date and place of birth;
(2) Have a recognizable photo affixed under consular seal;
FYI: Standard visa or passport photos are NOT required. You may use any photo available, including photo machine strips, instant photos, etc.
(3) State the reason why the passport is not available; and
(4) Be signed and sealed by the consular officer.
c. 7 FAM 1300 Appendix N provides further guidance regarding the very limited circumstances when travel letters may be issued.
d. Prepare and sign the Travel Letter in quadruplicate. Seal each of the first three copies in a separate official envelope addressed to the appropriate authority:
(1) Host country immigration officials;
(2) Airline officials;
(3) The BOP escort to present to U.S. Customs and Border Protection (CBP) at the port of entry (POE); and
(4) Post’s files.
7 FAM 485.4 Personal Effects
a. Well before the scheduled transfer date; ensure that the prisoner understands he/she must dispose of most personal belongings by discarding them, donating them to charity, selling or giving them to fellow inmates, or mailing them back to family in the United States at their own expense.
b. The BOP escorts will decide which items the prisoner may bring. Generally, allowable items include:
(1) Prescription eyeglasses or contact lenses;
(2) Prescribed medications limited to a one-month supply and medical devices;
(3) Money: A reasonable amount, preferably converted into a U.S. dollar instrument, such as a money order;
(4) Wedding band with no stones;
(5) Identification cards;
(6) Religious medal or daily prayer items, such as a Bible, Quran, or other religious text; and
(7) Clothing actually worn for the trip.
FYI: Since most prisoners will wear leg irons for the transfer, they should be advised to have a pair of socks for the day of transfer.
c. Items to be disposed of in advance include:
(1) Clothing: All clothing except what the prisoner intends to wear on the day of transfer (clothing will be issued by BOP when the prisoner reaches the United States);
(2) Jewelry. All jewelry, including watches, earrings and necklaces (except wedding bands without stones);
(3) Books (except religious texts), appliances, personal radios, or tape/CD players;
(4) Hair or body adornments, including hair-bands, hair weaves, clasps, berets, decorative combs, etc; and
(5) Any other items prohibited by the BOP escorts.
Note: Advise all prisoners that they will be subject to a full body search before transfer.
7 FAM 486 AFTER THE TRANSFER
While the responsibility of the consular officer generally ends with the physical departure of the prisoner from your district and reporting the fact of the departure to CA/OCS/ACS, you may find the following information helpful.
7 FAM 486.1 Arriving in the United States
Upon arrival in the United States, the prisoner will be taken immediately to a designated Admitting Institution (AI). The AI:
(1) Obtains a medical clearance from the institution’s Health Services Administrator;
(2) Notifies the U.S. Probation Office so that a post-sentence report can be prepared;
(3) Arranges with the local FBI Office for a full-fingerprint National Crime Information Center (NCIC) check; and
(4) Reviews the documents and requests the BOP sentencing office to compute the sentence and a full term date.
7 FAM 486.2 Determining Release, Parole, etc.
The Admitting Institution (AI) takes the following actions depending on the date of the foreign crime and the computed release date:
(1) For prisoners who committed the foreign crime(s) on or after November 1, 1987, AND have fewer than six months to serve according to the Admitting Institution (AI) sentence computation:
(a) The AI immediately notifies the United States Parole Commission;
(b) The U.S. Parole Commission will obtain a copy of the post sentence report from the United States Probation Office; and
(c) The Parole Commission will determine a release date and any period and conditions of supervised release. No in-person parole hearing is necessary in these cases.
(2) Prisoners who committed the foreign crime on or after November 1, 1987, AND have more than six months to serve according to the AI computation:
(a) The AI will request assignment of the case to a United States Probation Officer and will forward copies of all documents to that officer;
(b) The United States Probation Officer will review the documents and conduct a brief investigation, including an interview with the prisoner;
(c) The United States Probation Officer will prepare a Post-Sentence Report and forward it to the Admitting Institution (AI), normally within 30-60 days;
(d) The AI will notify the U.S. Parole Commission of the inmate’s arrival and projected release date; and
(e) The prisoner is scheduled for a hearing before the United States Parole Commission, normally within 180 days of the transfer date.
(3) A prisoner who committed the foreign crime prior to November 1, 1987, is by law eligible for immediate parole:
Note: Eligible for parole does not mean the same thing as suitable for parole. The U.S. Parole Commission will determine suitability.
(a) The prisoner is scheduled for a hearing before the U.S. Parole Commission, OR a parole decision is made solely by review of the record to expedite release;
(b) The AI immediately notifies the U.S. Probation Officer of the impending release on parole; and
(c) The prisoner is released once the medical clearance and FBI check are complete.
NOTE: This applies only if the Parole Commission finds the prisoner suitable for parole.
7 FAM 487 PRISONERS TRANSFERRING FROM THE UNITED STATES
Prisoner transfer treaties make foreign national prisoners in United States Federal and State prisons eligible for transfer back to their home countries. Posts typically have little to no involvement in this process. The IPTU and the BOP in the United States have established working relationships with their counterpart officials abroad and generally arrange these transfers directly. If the person was convicted of a crime by a state in the United States, and is serving a sentence in a state facility, consent of the state is also required.
FYI: Approximately 3 foreign prisoners transfer from the United States for each U.S. citizen transferee returning to the United States. It is important to remember that the prisoner transfer program is not a prisoner exchange program where one prisoner is transferred to a foreign country in return for one transferring U.S. citizen prisoner.
7 FAM 487.1 The Consular Role in Prisoner Transfers Originating in the United States
The Department wants to ensure that we scrupulously meet our obligations under these prisoner transfer treaties. Consular officers should be prepared to assist whenever called upon by the Department of State or the Department of Justice. Such assistance would normally include:
(1) In the few cases where a treaty requires that all communications be through diplomatic channels, consular officers will relay information and questions between the host government and the IPTU, usually by diplomatic note.
(2) If asked, consular officers should assist IPTU and BOP with flight clearances, reception arrangements, etc.
(3) Respond to host government queries or complaints by putting officials in touch with the appropriate people in IPTU or BOP.
(4) Issuing timely visas for qualified foreign escorts to pick up their nationals.