N.Y. Comp. Codes R. & Regs. tit. 7 § 130.2

Current through Register Vol. 46, No. 45, November 2, 2024

Section 130.2 - Procedure

(a) Reception. Newly received inmates who are identified as foreign nationals of treaty nations shall, as part of the reception process, be advised of the existence of prisoner transfer treaties and the possibility of the initiation of a transfer request.

(b) Law libraries. To inform all prisoners who are citizens of another country, each general confinement facility law library shall contain:

(1) a copy of this regulation and New York State Correction Law;

(2) a listing of nations that have prisoner transfer treaties with the United States;

(3) the most recent Amnesty International report describing prison conditions in each treaty nation;

(4) other information on prison conditions in treaty nations published by the United Nations, the U.S. Department of State, or human rights organizations, if available; and

(5) to the extent practicable, information on each treaty nation's provisions for the reduction of terms of sentence, or a listing of officials in the U.S. Department of Justice or the embassy of the foreign country to whom an inmate may write for information.

(c) Application.

(1) An inmate who wishes to be considered for voluntary transfer must complete and sign the transfer request form and forward it to the facility superintendent.

(2) Upon receipt, the superintendent shall forward a copy to the commissioner.

(3) Upon assessment of eligibility, the commissioner's designee shall forward the request to the commissioner, or designee, along with a recommendation and copies of:

(i) the inmate's request;

(ii) sentence conversion certificate (see subdivision [d] of this section);

(iii) a copy of the sentence and commitment order;

(iv) a copy of the most recent legal date computation printout;

(v) a copy of the statute(s) under which the inmate was convicted;

(vi) a copy of the final order of deportation against the inmate from the U.S. Immigration and Customs Enforcement;

(vii) description of the inmate's intake interview;

(viii) inmate family and residence information; and

(ix) any other forms or information that may be required by the foreign country or treaty.

(d) Conversion of indeterminate sentence to determinate sentence. Where it is necessary to convert an indeterminate sentence to a determinate sentence in order to make an applicant eligible for international transfer, the sentence shall be calculated as equal to two-thirds of the maximum or aggregate maximum term imposed. Indeterminate sentences with a maximum term of life imprisonment may not be converted to a determinate sentence.

(e) Commissioner's decision.

Within 30 days of receipt, the commissioner, or designee, shall acknowledge receipt of the application. If the application is approved, the commissioner, or designee, shall follow the procedure set forth in subdivision (f) of this section. If the application is disapproved, the inmate and referring superintendent shall be so advised.

Note: This entire process, from the inmate's application through the final decision, typically requires up to one year, and may take longer. Upon receipt of notification of the decision, the inmate will be informed by letter from the commissioner or commissioner's designee.

(f) Approvals. Upon approval, the following actions shall be taken:

(1) The commissioner, or designee, shall write to the Office of Enforcement Operations, International Prisoner Transfer Unit, U.S. Department of Justice, advising that New York State is willing to transfer a prisoner. The documentation listed in paragraph (c)(3) of this section shall be enclosed with this communication, and the inmate shall be provided with a copy of the cover letter.

(2) The Department of Justice will approve or disapprove the request and will follow with documentation and instructions.

(3) The Department of Justice will notify the appropriate embassy of its decision and, in cases where it has approved the request, will ask if the other country is willing to accept the prisoner.

(4) If accepted, the Department of Justice will arrange for a verification proceeding before a U.S. Magistrate Judge who will have authority to order the prisoner accepted into Federal custody.

(g) Costs. The facility is responsible for transporting the inmate to a U.S. Magistrate Judge for a consent verification hearing at the time of the transfer.

(h) Counsel. The Federal Government provides counsel for these hearings. When requested, the superintendent shall allow counsel to interview an inmate prior to a hearing.

(i) Property. The inmate is responsible for disposing of his or her property prior to the consent verification hearing. Upon completion of the hearing, the inmate will be in the custody of the U.S. Marshal's Service and will not be permitted to have any property in his or her possession.

(j) Qualifications for transfer to foreign countries.

(1) The inmate must be a citizen of the receiving country.

(2) The inmate must be convicted and sentenced to a term of imprisonment.

(3) The inmate must not be committed solely for a military or immigration offense.

(4) The inmate must have served at least one-half of the minimum term and have at least one year of the instant sentence remaining to be served at the time of request for transfer.

(5) The inmate must have no pending proceeding by way of appeal or collateral attack upon the instant conviction or sentence.

(6) The inmate must be convicted of a crime which is generally punishable as a crime under the laws of the other country.

(7) The inmate, the commissioner, the United States Department of Justice, and the receiving country must all consent to the inmate's transfer.

(8) The inmate must have received an order of deportation from the U.S. Immigration and Custom Enforcement.

(k) Rescission of approval. The commissioner may withdraw prior approval of a transfer application if the inmate engages in criminal conduct or any serious disciplinary infraction(s) following his or her request for transfer pursuant to this regulation, or if the commissioner becomes aware of any information which would have led to disapproval of the application.

N.Y. Comp. Codes R. & Regs. Tit. 7 § 130.2

Amended New York State Register November 27, 2019/Volume XLI, Issue 48, eff. 11/27/2019