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Old 03-09-2019, 04:47 AM
fokysss fokysss is offline
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Default Treaty Transfers

Hi all,
I have a question , how does it work and how likely it is for a prisoner to serve his sentence in his home country via Treaty Transfers?
I will tell a little more about my case -
He got extradited to the states and is currently awaiting trial.
It is a non violent crime (white collar).
He is not a US citizen and has not lived in US before nor does he have any family in the US , all his family is in his home country in Europe ( son, step daughter and wife, mom etc) basically he does not have anyone in the US not even friends.

From the information on the BOP website he has ticked most of the boxes to be eligible for a transfer to serve his time in his home country, however I was told by some people that it is only allowed in rare cases and it is not a common practice and it makes me wonder why, because why would US want to keep the person and pay for them to whilst they serve their time when they could send them home to serve the sentence as it would be better for US and for the person in custody.
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Old 03-09-2019, 05:04 AM
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I don't know the frequency of treaty transfers versus the number of applications, but I do know they are possible. Since your country is involved in the process, and has to approve the transfer too, it may be helpful to work it from your end. I hope you are successful.
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Old 03-09-2019, 05:16 AM
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He spoke to his lawyer and he said they probably wount do it, his home country would not have any issues with him coming back. But he has only spoken to the public lawyer , the one you get provided for free. To me it makes no sense to keep him in US but then again BOP probably has a different point of view. He could be stuck in US for years without seeing his family/friends cause it is too expensive to travel from Europe , one visit would cost thousands, he doesnt mind doing his time as he has commited crime however it would be much better to do it closer to your loved ones.
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Old 03-09-2019, 05:46 AM
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Hi fokysss,

I know nothing of the BOP or USA system, but we have a similar situation going on. My husband is from overseas, his family is over there [ except me, wife, but he married in CAN, but I, too, am a foreign national ] and he has shown interest in an international transfer.

I know that your friend said he spoke to his public defender but in this case, one definitely needs some one more accustomed to the applicable treaties and transfers. But, I am unsure how one can find an immigration lawyer on his end.

FBOP is correct in that the other country must approve the application. Between the feds that typically drag their feet doing any thing and bureaucrats that go through the application, it takes a long time to complete a transfer. More time than it need to take.

Your friend is from a European country so I doubt this applies to him as no European countries seem to be guilty of this but, some countries do not answer the queries for transfer. That gives it „ not - doable ” reputation too.

As for the idea of number of applications ≠ number of transfers, I am willing to bet that some foreign nationals do not even apply based on the conditions in which they will be imprisoned in their home countries. For instance, speaking specifically for the USA, Mexico. My husband was asked if he was „ mad / insane ” cause he sought / seeks / not so sure an international transfer to his home country where conditions are more strict.

If your friend is denied transfer, it is my understanding that he can appeal under a certain time frame. He is also able to rectify why his application was denied and apply again. However, that is more appropriate for longer sentences. Good luck.
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Old 03-09-2019, 06:34 AM
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Thanks for all the info. I know that if receiving country refuses to take the person back then thats it, this is where it ends and you cant even appeal anymore, case closed.
I think he would have a good case as he has nobody in US and this program is specifically design for people like him. But in my opinion with public defender it will be hard to achieve this.
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Old 03-09-2019, 06:55 AM
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I heard of someone a few years ago that transferred bk to Germany. I assume it would depend on the country he is from .Wonder if the country's consulate in USA could give you some info as assume they would be involved in travel etc if you can get approved. Just a thought.
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Old 03-09-2019, 07:04 AM
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I’m not going to act as if I have the answers to your question but I sincerely hope that some one knowledgeable will reply if possible / how to retain an immigration attorney while in BOP custody.

My husband has immigration attorneys prior to his incarceration so, they are there for questions / answers.

But from basic information, as I know, you are right in that your friend has a very good chance of a positive result with the proper resources. European countries are really good with accepting their nationals’ applications. I hope that it happens for him!

Believe me, I know the stress in having family overseas and not seeing their loved one. It must be worse for your friend with a spouse and children.

As I said, I do not know of the USA and BOP procedures but we are working with the Convention on the Transfer of Sentenced Persons. That probably covers your friend unless a bilateral agreement takes precedence. You can message me if you need general information. Again, good luck.
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Old 03-09-2019, 07:09 AM
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I am not sure which country you are in but you can contact the authorities in your country to start the process.
I am sure there are different rules applicable in each country.

In the UK a prisoner is eligible to apply for transfer.if they have been sentenced and have no outstanding charges, have exhausted any appeals ( you can not appeal a sentence imposed by a US court in another country), You do not owe any fines or restitution.

The UK address to contact is

Safer Custody and Offender Policy Group
Cross Border Transfer Section
Ministry of Justice
1st Floor, Fry Building
2 Marsham Street
London, SW1P 4LN

Other countries should have similar processes and an address to contact for further information.

He may also be eligible for consular services from your country.
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Old 03-09-2019, 07:34 AM
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For a foreign inmate in the CAN or USA system, that is not true. The inmate has to request a transfer on their end, within the institution and through institutional authorities, first. Not from the outside or through any sort of official office in their home country : the BOP and DoJ do that.

During intake and assessment, the foreign inmate is educated on the opportunity for transfer. The inmate then, if interested, asks whoever is in charge of their file, in our case a PO, for more information, run down of process and the subsequent form. From there, that is how the process gets underway.

If there is a bilateral agreement between the USA and foreign nation, that is what governs the process. If the person is a European national, but no bilateral agreement, they are covered, by many states where the Council of Europe Convention on the Transfer of Sentenced Persons is ratified.

EDITED TO ADD

This is off topic but I wanted to provide a note re : consular affairs.

It is known by many here, I think, they are limited in what they can do for a foreign inmate. They definitely cannot aid in legal affairs.

They can, and often will, provide an inmate with a list of available lawyers who may be available to take a case. But they cannot recommend one nor the other.

Representatives of consular affairs will let you know if there are any streams of funding available, if any, to pay for legal counsel, in jurisdictions lacking public defenders.

They can facilitate communication between a foreign inmate and legal counsel ie : translation but they cannot become involved.

Representatives can contact legal authorities in the country and enquire about the status of a case. Such as, where it is in the process, and kindly remind them to „ keep on track “ and not cause „ unnecessary delays. ”

Other than that, they are limited to ensuring a foreign inmate’s well - being. They can give overseas family updates and enable communication. Consular affairs provides family with information re : the legal system of the imprisoning country [ USA ] and how they can assist in sending funds from the family. If being really concerned, they can provide reading materials to the inmate, but they are often bland.

Consular affairs does welfare checks in some ways. Such as, they ensure that a foreigner is not being treated differently under the law compared to a citizen of that country. They can request access to the foreign national but some times, this is denied by the state of incarceration. Usually it happens unless it is a suspicious case, though. Consular affairs also seeks to ensure the inmate receives adequate nutrition and medical care.

However, they definitely cannot become involved in legal matters, such as those between a client and attorney, besides facilitating communication. They are not allowed to provide any sort of legal advice either.

My husband has communication with consular affairs from time to time. It began since his arrest. They provided reading materials and [ hopefully. . . ] informed his family on things, but I doubt they did. It is „ nice “ to have them on your side, so to speak, but it does not make a big difference. His country has been working for years to get a guy moved to a more appropriate medical facility in the USA . . . so like all things, their services are slow.

Their importance is probably more evident when some one is incarcerated in harsher places like Thailand, the Philippines, India et cetera.

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Old 03-09-2019, 09:28 AM
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Its really important to know what the recieving country you are dealing with. As each country is different and different rules can apply.It doesnt mean those rules arent "true", it just means they are different.Canada has different rules to Europe and countries within Europe have different rules.

The best place to start is to find the treaty transfer document applicable to your country . Most are available on line.
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Old 03-09-2019, 09:37 AM
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It's important that you, and he not be disappointed to the point of giving up by anything the bop does. He must apply, following every bop rule exactly, and file a timely appeal if he receives a negative reply from anyone, bop, dept. of justice, dept of state, whoever. If he is denied by the US, that is probably a good time to try for pressure from your country's authorities.

Read the actual treaty too, both countries are bound by its terms and the bop has a history of ignoring such things in the name of expediency. If the treaty requires a transfer under certain conditions (I don't know if it does or not) citing it in an appeal, or court filing may force a different result.
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Old 03-09-2019, 11:51 AM
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Quote:
Originally Posted by maytayah View Post
Its really important to know what the recieving country you are dealing with. As each country is different and different rules can apply.It doesnt mean those rules arent "true", it just means they are different.Canada has different rules to Europe and countries within Europe have different rules.

The best place to start is to find the treaty transfer document applicable to your country . Most are available on line.
If they ratified the CoE Convention on the Transfer of Sentenced Persons, those are terms that the countries in Europe must abide. Individual countries do not have different regulations as they fall under this treaty. For instance, CoE Treaty covers over 60 countries, not necessarily in Europe. This is the standard for them unless there is a bilateral agreement. It is not the case of all these nations dealing with the DoJ on individual terms. For the treaty, see here : https://www.coe.int/en/web/conventio...ons/treaty/112

USA has bilateral agreements with 12 countries : https://www.justice.gov/criminal-oia...ting-countries

But here it seems, the CoE takes precedence over the bilateral agreement in the case of 4 states. So, again, not all that different in regard to requirements of the receiving country.

How the receiving country acts towards accepting the inmate may differ [ yes or no decisions ] but process remains similar.

Now, what happens once that person is in their home country is no concern of the BOP or DoJ as they have no jurisdiction over domestic laws. All these signatory states must prove is they will apply the sentence given and give basic information in regard to what they do with the inmate. That is the basis of the multilateral treaty that applies to numerous countries as an umbrella.

As for the process on how an inmate starts the process, the receiving country has very little say. The correctional authorities, in this case BOP, have guidelines how the inmate begins the process. Originating country is not involved at this point. Inmate must involve them later on but to simply begin it, no. It is standard no matter the country involved.

Here is a 2015 DoJ document that states the information, requirements and procedures of a Treaty Transfer. Who knows what has changed since then but here is the guidelines : https://www.bop.gov/policy/progstat/5140_042.pdf

This is extremely similar to the process that my husband is experiencing and he is not even sure if he’s to go all the way.

The inmate obviously knows which country is involved but, at the beginning of the process, these states only need forwarning and proof of citizenship. Main discussions go to the DoJ to initiate that process and for them to be aware of the treaty applicable and information. Information is the best determinant of action so inmates should know the treaty that governs their situation.

See, the form to start the process is simple :
https://www.bop.gov/policy/forms/BP_A0297.pdf

Inmate must contact consular services to prove nationality and to share intent. It notes that at that point, the receiving country starts their own transfer procedures in that country.

It was explained to me by the immigration attorneys, that similar wording in a document received means what happens internally, as in, for the country to prepare transfer within their jurisdiction. This is where different policies come into action but again, this is administrative, on their end. USA is not supposed to care. Cause they need to be made aware too that an inmate is entering their system, logistics & placement.

Our form is different in that it is simpler and it came with a secondary privacy release form to share with the International Transfers Unit but, different system, but the origins are similar. The process is similar too.
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Old 03-09-2019, 01:04 PM
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Originally Posted by Ne Plach’ View Post
If they ratified the CoE Convention on the Transfer of Sentenced Persons, those are terms that the countries in Europe must abide. Individual countries do not have different regulations as they fall under this treaty. For instance, CoE Treaty covers over 60 countries, not necessarily in Europe. This is the standard for them unless there is a bilateral agreement. It is not the case of all these nations dealing with the DoJ on individual terms. For the treaty, see here : https://www.coe.int/en/web/conventio...ons/treaty/112

USA has bilateral agreements with 12 countries : https://www.justice.gov/criminal-oia...ting-countries

But here it seems, the CoE takes precedence over the bilateral agreement in the case of 4 states. So, again, not all that different in regard to requirements of the receiving country.

How the receiving country acts towards accepting the inmate may differ [ yes or no decisions ] but process remains similar.

Now, what happens once that person is in their home country is no concern of the BOP or DoJ as they have no jurisdiction over domestic laws. All these signatory states must prove is they will apply the sentence given and give basic information in regard to what they do with the inmate. That is the basis of the multilateral treaty that applies to numerous countries as an umbrella.

As for the process on how an inmate starts the process, the receiving country has very little say. The correctional authorities, in this case BOP, have guidelines how the inmate begins the process. Originating country is not involved at this point. Inmate must involve them later on but to simply begin it, no. It is standard no matter the country involved.

Here is a 2015 DoJ document that states the information, requirements and procedures of a Treaty Transfer. Who knows what has changed since then but here is the guidelines : https://www.bop.gov/policy/progstat/5140_042.pdf

This is extremely similar to the process that my husband is experiencing and he is not even sure if he’s to go all the way.

The inmate obviously knows which country is involved but, at the beginning of the process, these states only need forwarning and proof of citizenship. Main discussions go to the DoJ to initiate that process and for them to be aware of the treaty applicable and information. Information is the best determinant of action so inmates should know the treaty that governs their situation.

See, the form to start the process is simple :
https://www.bop.gov/policy/forms/BP_A0297.pdf

Inmate must contact consular services to prove nationality and to share intent. It notes that at that point, the receiving country starts their own transfer procedures in that country.

It was explained to me by the immigration attorneys, that similar wording in a document received means what happens internally, as in, for the country to prepare transfer within their jurisdiction. This is where different policies come into action but again, this is administrative, on their end. USA is not supposed to care. Cause they need to be made aware too that an inmate is entering their system, logistics & placement.

Our form is different in that it is simpler and it came with a secondary privacy release form to share with the International Transfers Unit but, different system, but the origins are similar. The process is similar too.
They do actually have differences in some countries in Europe an application can be made from the country of origin as well as the country of incarceration. Although the UK is currently a European state member , this will not be the case following Brexit, Also in the UK the applicant may be a UK citizen but can also apply if the inmate has significant ties to the UK.

Therefore that is a difference in regulation, I am currently involved in a process with a family member so that is where my knowledge comes from not through googling.

However, the best process for the OP is to seek advice from the FBOP and from an attorney experienced in such matters .
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Old 03-09-2019, 02:11 PM
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I, too, have experience in this, as I said numerous times, we are undergoing this with a possible transfer to the Russian Federation.

Due to this, I have had numerous conversations with immigration attorneys. 3 of them ; 2 in a firm that deal with serious criminal inadmissibility issues.

The CoE regulations are drilled in my head as this is the only treaty that applies to numerous countries.

What you are referring to is national implementation legislation. That reflects how a treaty manifests under specific domestic law but it must align with the overall multilateral treaty in place. It is laws like these that shift internally within a state in reflection of changes in the treaty, as we are in discussion of a vast treaty. These may be unique to individual states but they do not reflect how the treaty is applied by public servants or bureaucrats. The treaty itself is not shifted within its adherent countries.

The correctional system, respective of jurisdiction, notes how to apply for transfer, for easy access of inmates.

So, no, not all my information comes from Google, either.

The documents came from Google, obviously, but that was to show how a] what treaties are applicable since that kept being left out b] USA BOP requirements on how to initiate a transfer, which says in the process begins within the institution [ see pg. 8 ]. The same as happened for my husband. He did not have the option to tell consular affairs and was directed to apply within the institution. Again, different system, but similar to „ official “ BOP policy. And, this was for transfer to the Russian Federation.

UK is also under CoE guidance for transfers between USA to UK. That is of what I speak when discussions happen internationally and their communal guidance, rather than vast differences in international law.

It says by the UK government „ that you should normally apply through the prison authorities where you are detained ” which has been noted. You obviously know you are correct that such a citizen can write to a UK consulate to begin the process by the government. But that is not necessarily available to all foreign inmates, especially when the process is noted black and white to apply through the institution, by BOP. This is a situation over a dispute over regional differences but the BOP has the common solution : apply from inside.

OP is in Europe thus I assumed a continental. I got one country’s domestic procedures wrong [ I can admit I am wrong without projection, ура !! ] but what will be similar throughout is that an inmate can apply from within the USA federal institution.

The docs were for the OP mainly so perhaps he Googled them for his friend too.

First advice was to seek aid from an immigration lawyer and hopefully, some one can advise him on that. I easily admit I am a layperson and simply having experience does not make one an expert. And using Google does not mean one has no experience either.
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Old 03-09-2019, 02:26 PM
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The OP needs to consult with a subject matter expert and an attorney with experience in the process. One persons experience is not going to be the same as the OP's experience.

The OP's consular services and the FBOP are the best places for the OP to go for advice.
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Old 03-09-2019, 05:27 PM
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My experience with the federal government, and especially with the bop, is to be careful not to give them any reason to deny whatever it is you are requesting. If their rules say to submit an application that doesn't contain any words with double letters (or anything else you consider to be ridiculous) then make sure you do it exactly their way.

The most frequent problem comes from deadlines on when something has to be filed. They apparently only apply to you, so file everything well in advance, but know that if the bop has 30 days to decide an issue, that will be an extremely flexible 30 days.
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Old 03-10-2019, 03:17 AM
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Somebody sent me a link to transfer statistics and it is very odd that basically since 2000 up to 2018 only 1/3 of applications got approved every year. Looks strange cause basically every year about the same percentage of applications is approved/declined!
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Old 03-11-2019, 11:04 AM
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You may not be aware that US has the highest incarceration rate in the world. To get a treaty transfer is very complicated, requires dual attorneys and cooperation of multiple layers of government officials. The best way to have a fighting chance is if the defendant is a cooperating witness and the prosecutor has agreed to help with the process. But I have been in this world long enough to know that anything is possible and I never say never. But the reality is that there are a number of approvals that have to be in place for the request to even become viable.



Here is a legal blog addressing transfers: https://www.puglisilaw.com/2018/12/2...aty-transfers/


If you want to be have any chance of success, you will need to find lawyers for both countries who have been able to accomplish this more than once. In my experience, it is possible to achieve, but not quickly and the roadblocks are often many and unfortunately hidden.
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