Statutory and Treaty Requirements

The United States has entered into 12 bilateral transfer treaties and has acceded to two multilateral transfer conventions, the Council of Europe Convention on the Transfer of Sentenced Persons (the COE Convention) in 1985, and the Inter-American Convention on Serving Criminal Sentences Abroad (the OAS Convention) in 2001. [

https://www.justice.gov/criminal/criminal-oia/list-participating-countriesgovernments

] The basic requirements and procedures for transfer are set forth in these international agreements and in the enabling statute (18 U.S.C. §§ 4100 – 4115). As set forth in these authorities, the basic eligibility requirements for transfer are:

the prisoner must be a national or citizen of the country to which he/she wishes to transfer;

a transfer treaty relationship must exist between the United States and the prisoner’s country;

the prisoner must be convicted and sentenced;

the judgment and sentence must be final, meaning that there are no pending appeals or other collateral attacks against the conviction or sentence;

dual criminality must exist – the offense for which the prisoner is incarcerated must be a crime under the laws of the receiving country;

in the absence of exceptional circumstances, a minimum period of time (typically 6 months) must be left to serve on the sentence at the time of application; and

the prisoner, the sentencing country and the receiving country must all consent to the transfer. Depending on the treaty, additional requirements may also be present. For example, the bilateral treaty between the United States and Mexico precludes the transfer of prisoners who are serving sentences for immigration offenses and prisoners who have become “domiciliaries,” of the sentencing country. The U.S.-Mexican treaty defines a domiciliary as a person who has been present in the territory of one country for at least five years with an intent to remain permanently therein.

[updated January 2020]