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In Padilla v. Kentucky, 559 U.S. 356 (2010), the Supreme Court established that a criminal defense counsel is constitutionally required to advise a noncitizen defendant that the offense to which the accused intends to plead guilty could, upon conviction, result in the defendant's removal from the United States and a return to the country of the client's citizenship, via deportation. But, regardless of whether a noncitizen client faces deportation if convicted of the charged criminal offense, competent defense counsel should be aware of the International Transfer of Prisoners Act, which governs the transfer of convicted noncitizen prisoners from both state and federal prisons in the United States to the country of their citizenship before completion of the sentence being served.
The International Prisoner Transfer Program was a result of the United States negotiating in 1977 a treaty permitting the transfer of prisoners from the country where convicted and sentenced to the country of their citizenship or nationality. That same year, the Transfer of Offenders to and from Foreign Countries Act (Act) was enacted. (Pub. L. No. 95-144, 91 Stat. 1212 (codified at 18 US.C. §§4100 e?xe?.).)This legislation resulted in the creation of the International Prisoner Transfer Unit (IPTU), situated in the US Department of Justice, to administer the transfer of convicted prisoners to and from the United States.
In principle, the function of the Act is to mitigate the unique detrimental effects that prisoners confined outside their home countries suffer and to enhance the rehabilitation of these inmates, whether a noncitizen confined in the United States or an American citizen confined in a foreign prison. The IPTU functions as a two-way bridge between the United States and other countries for prisoners seeking to return to their home countries to complete their sentences.
To achieve transfer of a noncitizen confined in either a state or federal prison in the United States to the prisoner's country of citizenship/nationality, a number of factors come into play First, is there an international treaty in place for the transfer of prisoners between the United States and the noncitizen's home country? Absent such a treaty, the noncitizen inmate has no vehicle for transfer, save where the applicant has significant ties to a second country that is a party to a...