Criminal Defense of Immigrants

Under prisoner transfer treaties, nationals of 59 signatory nations[133] who are serving state[134] or federal prison sentences[135] in the United States could be transferred back to their native land to complete service of their sentences.  See § 6.27, supra.  The courts will not intervene in the discretion of the executive branch over these decisions.[136]  A noncitizen with a final removal order is not statutorily entitled to be deported before completing the prison term.  Therefore, a noncitizen who was granted “conditional parole for deportation only” was still considered as serving the state sentence and could not challenge the failure of the immigration authorities to execute his removal order.[137]

[133] The countries currently include: Austria, Bahamas, Belgium, Bolivia, Bulgaria, Canada, Chile, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Federated States of Micronesia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Israel, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Marshall Islands, Mexico, Netherlands (Netherlands Antilles and Aruba), Norway, Panama, Peru, Poland, Portugal, Republic of Palau, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland, Thailand, Trinidad/Tobago, Turkey, Ukraine, United Kingdom and U.K. Territories.  See Ellis, An Introduction to International Prisoner Transfers: Going Home, 23 the champion 32 n.1 (National Ass’n of Criminal Defense Lawyers, July, 1999).

[134]  Forty-four states — all but Delaware, Georgia, Mississippi, N. Carolina, Tennessee, and West Virginia — have enacted implementing legislation.  Prisoners in the Northern Mariana Islands, a United States territory, can also participate.  Inmates in Vermont may be transferred only to Canada.  (Ibid. n.2.) 

[135] 18 U.S.C. § § 4100 et seq.   Implementing regulations are contained in 28 C.F.R. § § 527.40 ff.

[136] Bagguley v. Bush, 953 F.2d 660 (D.C. Cir. 1991). A noncitizen who was serving a lengthy sentence based on drug convictions requested transfer to England under the Convention on the Transfer of Sentenced Persons, T.I.A.S. No. 10824, 22 I.L.M. 530 (1988), ratified by the United States and the United Kingdom, and the Transfer of Offenders to and from Foreign Countries Act, 18 U.S.C. § § 4100 et seq., which authorized the Attorney General to implement the Convention. The court found that the Attorney General has unfettered discretion regarding transfer decisions, citing 5 U.S.C. § 701(a)(2); 18 U.S.C. § § 4100 et seq.; and Scalise v. Thornburgh, 891 F.2d 640 (7th Cir. 1989), cert. denied, 494 U.S. 1088 (1990).

[137] 8 U.S.C. § 1231(a)(4)(A); Duamutef v. INS, No. CV-02-1345(DGT) (E.D. N.Y. 2003).