Office of the Inspector General
U.S. Department of Justice

Status Review on the Department’s

International Prisoner Transfer 

Program


Evaluation and Inspections Division 15-07

August 2015

EXECUTIVE SUMMARY

Introduction
This is the second Office of the Inspector General (OIG) report on the
International Prisoner Transfer Program (treaty transfer program), which Congress
created to allow selected foreign national inmates in federal prisons to complete
their prison terms in their home countries’ prisons. 1 The OIG’s first report found
that of the over 40,000 inmates from treaty transfer nations in Federal Bureau of
Prisons (BOP) custody in fiscal year (FY) 2010, less than 1 percent of these inmates
were ultimately transferred back to their home countries. This report finds that
while some progress has been made in addressing the issues identified in our initial
report in 2011 and there are some factors largely outside the control of the
Department of Justice (DOJ or Department), more can be done by the Department
to improve the effectiveness of the treaty transfer program. We believe that
Department leadership needs to address this challenge to ensure that the
Department is more fully utilizing this important program.
The OIG’s 2011 report found that the Department’s treaty transfer program
was ineffective in several significant respects and that by increasing the number of
inmates transferred the Department could reduce its incarceration costs and relieve
overcrowding in federal prisons. For foreign inmates who are subject to deportation
following the completion of their federal prison sentence, transfer avoids the cost to
the Department of Homeland Security of undertaking a deportation proceeding and
of housing the foreign nationals during those proceedings. 2 For those foreign
inmates who may not be deportable, transfer ensures that the inmates do not
remain in this country at the conclusion of their prison sentence. We made 14
recommendations for the Department to more effectively manage the program, 13
of which have been closed and 1 of which is still being implemented. This status
report describes actions the Department has taken to improve the management of
the program and further evaluates factors that may continue to limit the number of
foreign national inmates transferred.
The Department administers the treaty transfer program principally through
the Criminal Division’s Office of Enforcement Operations’ (OEO) International
Prisoner Transfer Unit (IPTU) and the BOP. The BOP is responsible for explaining
the program to foreign national inmates, determining if a current treaty agreement
exists for the home countries of interested inmates, and preparing application
packets for interested inmates whom BOP staff determines to be eligible to apply
for transfer. In our 2011 review, we found, for example, that the BOP did not
1

DOJ, OIG, The Department of Justice’s International Prisoner Transfer Program, Evaluation
and Inspections Report I-2012-02 (December 2011),
http://www.justice.gov/oig/reports/2011/e1202.pdf.
2

As opposed to traditional deportation, costs associated with the transfer of inmates through
the treaty transfer program are born by the treaty nation.

i

communicate effectively with inmates about the program and sometimes incorrectly
declared inmates ineligible.
Once the BOP forwards an eligible inmate’s application packet, the IPTU is
responsible for reviewing the packet and approving or denying the transfer request
based on law enforcement concerns about the inmate, the likelihood of the inmate’s
social rehabilitation, and the possibility that the inmate would return to the United
States. In our 2011 review, we found that the IPTU did not consistently evaluate
inmate suitability, resulting in some inmates being denied for transfer even though
other inmates in similar situations had been approved. We also found that the IPTU
did not provide sufficient information to inmates concerning the reasons for a denial
of transfer so that they could address any issues for future application.
Results in Brief
The Number of Foreign National Inmates in Federal Prisons Continues To Increase
Substantially
Since the OIG’s 2011 review, the number of foreign national inmates from
treaty nations in BOP custody continues to grow substantially, increasing
31 percent, from 32,912 in FY 2005, the first year examined in our previous review,
to 42,954 in FY 2013, the last year examined in this current status review.
The Number of Inmates Applying for Transfer Also Has Increased Substantially
Based on our current review of Department data and interviews with Criminal
Division and BOP staff, it appears that changes the Department has made to the
management of the treaty transfer program since our last review have contributed
to an increase in the number of inmates requesting and being found suitable for
transfer. We found that between FY 2010, the last year examined in our previous
review, and FY 2013, the last year in this status review, inmate requests to the BOP
for transfer rose by 72 percent, from 14,020 to 24,122. We further found that the
BOP took a number of important steps that likely contributed to this result,
including improving its ability to effectively communicate with foreign national
inmates by translating all documents related to the treaty transfer program into all
languages associated with treaty nations. The BOP also revised its program
statement to direct case managers to discuss the transfer program at an inmate’s
initial classification and at every subsequent program review.
The Number of Inmates Approved for Transfer Has Increased Modestly
Despite the important steps the BOP has taken and the substantial increase
in the number of inmate transfer requests, the number of inmates the BOP has
deemed eligible and that the IPTU has approved for transfer has increased only
modestly and the percentage increase was far less than the increase in the number
of inmates requesting transfer. For example, the number of applications from
inmates determined eligible for transfer that BOP forwarded to the IPTU grew from
1,170 in FY 2010 to 1,422 in FY 2013, an increase of 22 percent. Similarly, the
ii

number of inmates approved for transfer by IPTU grew from, on average, 368
applications from FY 2005 through FY 2010 to, on average, 450 per year from FY
2011 through FY 2013, also an increase of 22 percent. We found that the IPTU
took steps to improve the consistency of its suitability determinations, including
regular meetings between IPTU management and staff to review the suitability
criteria and clarify their application. Nevertheless, the number of inmates approved
for transfer still represents only a tiny fraction of the estimated 24,122 inmates
from treaty transfer nations who requested transfer in FY 2013. 3
The Number of Inmates Ultimately Transferred Has Decreased
Moreover, the average number of inmates the Department transferred to
serve the remainder of their sentences in their home countries actually decreased
since our report in 2011: An average of 238 foreign national inmates were
transferred from FY 2005 through FY 2010, while an average of only 227 inmates
were transferred between FY 2011 and FY 2013.
As a result, we remain concerned that the Department is not fully utilizing
the transfer authority Congress gave it to return eligible and suitable foreign
national inmates to their home countries. We did not undertake as part of this
status review an evaluation to determine why, in FY 2013, for example, the 24,122
requests for transfer resulted in only 494 inmates being approved for transfer. 4
However, if the Department wants to ensure it uses this program to the fullest
extent possible, we believe it should undertake such a review of BOP eligibility and
IPTU suitability determinations. We also remain concerned about the timeliness of
the Department’s review process. The IPTU reported to us that a backlog of about
400 applications were pending a transfer decision, which can affect a potentially
suitable inmate’s ability to remain eligible for transfer to complete his or her
sentence in the home country. 5 The Department must consider the IPTU’s
appropriate staffing needs to process applications and ensure both the BOP and the
IPTU have guidelines to target the best possible candidates for transfer. We intend
to follow up further as we continue our work in this area.
Also, while the BOP and the Criminal Division worked together to revise the
BOP’s program statement to accurately and completely establish transfer eligibility
requirements after our 2011 report, the jointly revised program statement was not
issued until April 2015.

3
In addition to being a citizen of a treaty nation, an inmate must also have at least 6 months
remaining on his or her sentence and must not be incarcerated for certain types of crimes. We
discuss the basic treaty requirements further in Appendix 1.
4

Our analysis of the 24,122 requests in FY 2013 includes those inmates whom the BOP
determined eligible and forwarded to the IPTU (1,422), as well as those inmates who requested
transfer but the BOP determined ineligible (22,700).
5

In response to a working draft of this report, the Criminal Division stated that as of June 18,
2015, there were 55 cases pending a transfer decision by IPTU. We discuss IPTU’s backlog below.

iii

We recognize that several factors outside the Department’s direct
management of the program contribute to keeping the number of inmates
ultimately transferred low, including: (1) the program is voluntary and inmates
who could be suitable for transfer may prefer to serve their sentences in U.S.
prisons; (2) many foreign national inmates in BOP custody are not from treaty
nations and thus cannot be transferred; (3) restrictions in treaties, most notably
with Mexico, limit the offenses for which an approved transfer can be effected; and
(4) the failure of treaty nations to approve their nationals for transfer and the slow
decisional process existing in many countries.
Foreign inmates from treaty nations who are eligible and suitable but not
transferred contribute to the overcrowding of the federal prison system and
particularly of federal contract prisons where, in FY 2013, foreign national inmates
from treaty nations constituted 82 percent of the total BOP contract prison inmate
population. Foreign national inmates also add to the Department’s prison costs: In
fact, our review of BOP and IPTU data found that, from FY 2011 through FY 2013,
the Department had incurred costs of $26 million to continue incarcerating 959
inmates whose transfer requests already had been approved by the Department but
remained in BOP custody because the request was still pending a decision by the
home treaty nation, denied by the home treaty nation, or withdrawn by the
Department because the home treaty nation did not make a decision with enough
time left on the inmate’s sentence to permit transfer. Because these costs do not
include the many thousands of inmates who will not or cannot apply and be
approved for transfer, they represent just a fraction of the total cost to the
American taxpayer of incarcerating foreign nationals.
Conclusions and Recommendations
The OIG believes the Department can take a number of discrete steps to
improve the effectiveness of the treaty transfer program by reviewing data to
determine why so many inmate applications result in only a handful of transfers, as
well as by ensuring that the IPTU has the necessary resources to ensure the timely
processing of applications and reviewing IPTU guidelines to target the most suitable
and eligible inmates for transfer. Finally, senior Department leadership should
convene and support a high-level working group with treaty transfer partners to
assess factors that limit the number of inmates ultimately transferred from BOP
custody. For example, by working with treaty partners, such as the Department of
State and treaty nation officials, the Department should develop an interagency
strategy to increase the number of foreign national inmates transferred to serve the
remainder of the sentences in their home countries’ prisons. We therefore make
five recommendations in this report to further improve the management and
effectiveness of the treaty transfer program.

iv

TABLE OF CONTENTS

INTRODUCTION ............................................................................................. 1

Primary Department Components and Other Organizations

Involved in Treaty Transfer .................................................................... 2

Foreign National Inmates in BOP Custody ................................................ 3

Foreign National Inmates’ Interest in and Eligibility for 

Treaty Transfer..................................................................................... 4

The OIG’s 2011 Report on the Treaty Transfer Program ............................. 5

Scope and Methodology of the OIG Review .............................................. 7

RESULTS OF THE REVIEW ............................................................................... 8

Numbers of Transfer Requests and Actual Transfers .................................. 8

Changes to the Treaty Transfer Program................................................ 12

Factors That Continue To Limit the Program’s Effectiveness...................... 24

CONCLUSION AND RECOMMENDATIONS......................................................... 36

Conclusion ......................................................................................... 36

Recommendations............................................................................... 37

APPENDIX 1: INTERNATIONAL TREATIES AND TRANSFER 

REQUIREMENTS GOVERNING TREATY TRANSFER ............................................. 38

APPENDIX 2: THE DEPARTMENT’S RESPONSE TO RECOMMENDATIONS 

THE OIG MADE IN ITS 2011 REPORT .............................................................. 43

APPENDIX 3: METHODOLOGY OF THE OIG STATUS REVIEW ............................. 51

APPENDIX 4: THE DEPARTMENT'S RESPONSE TO THE DRAFT REPORT ............... 54

APPENDIX 5: OIG ANALYSIS OF THE DEPARTMENT'S RESPONSE ...................... 58

The Department's General Comments ................................................... 58

The Departments’s Responses to Recommendations................................ 63


INTRODUCTION
The International Prisoner Transfer Program (treaty transfer program) began
in 1977 when the United States and Mexico entered into a bilateral treaty primarily
to return American citizens incarcerated in Mexico to U.S. prisons, but also to
return Mexican inmates in the United States to Mexican prisons. Currently, the
United States has transfer agreements with 79 countries negotiated principally by
the U.S. Department of State. The benefits of the treaty transfer program include
greater rehabilitative potential for inmates by allowing them to be closer to their
families in their country of citizenship, which aids in their reintegration into society
upon release; cost savings for institutions, such as the Federal Bureau of Prisons
(BOP), that would otherwise house foreign nationals; and reductions in federal
prison populations, freeing up bed space in already overcrowded BOP institutions.
Additionally, for foreign inmates who are subject to deportation following the
completion of their federal prison sentence, transfer not only results in cost savings
for the BOP but also avoids the cost to the Department of Homeland Security of
having to undertake deportation proceedings and house the foreign nationals during
those proceedings. And for any foreign inmates who may not be deportable,
transfer results in the inmates being in their home country, rather than the United
States, upon completion of their prison sentence.
This status review examined the progress the Department of Justice (DOJ or
Department) has made in managing the treaty transfer program since its Office of
the Inspector General’s (OIG) 2011 report finding that few foreign national inmates
from treaty transfer nations were transferred to their home countries each year to
complete their sentences. 6 In the current review, we analyzed recent program data
and assessed how the Department informs inmates about the program, determines
transfer eligibility, and evaluates suitability for transfer. We further assessed how
limitations on the number of inmates who are ultimately transferred affects the
costs and overcrowding of the federal prison system.
In this introduction, we first discuss the primary Department components,
other organizations, and foreign national inmates involved with the treaty transfer
program. We then discuss the number of foreign national inmates in BOP custody
and foreign national inmates’ interest in and eligibility for treaty transfer. Finally,
we discuss findings related to the OIG’s 2011 report examining whether the
Department is effectively managing its treaty transfer program.

6

DOJ, OIG, International Prisoner Transfer Program.

1


Primary Department Components and Other Organizations Involved in
Treaty Transfer
The Department’s treaty transfer program is administered primarily by the
BOP and the Criminal Division. 7 In addition, foreign governments and their
embassies and consulates within the United States have a role in the process. The
following paragraphs briefly describe each organization’s role.
The Federal Bureau of Prisons
BOP case managers are responsible for explaining the treaty transfer
program to inmates and determining whether inmates interested in the program
are eligible to apply. Eligibility is based on treaty and statutory requirements, such
as whether the inmate is from a treaty nation, whether the inmate has any pending
appeals or collateral attacks on the underlying judgment or sentence, and whether
the time remaining on the inmate’s sentence satisfies the period specified by the
treaty for the inmate to be eligible to apply for transfer. When BOP case managers
determine an interested inmate is eligible, they assemble and send the application
packet to the BOP’s Central Office. The BOP’s Central Office then reviews the
packet and forwards it to the Criminal Division. If the Criminal Division and treaty
nation approve an inmate for transfer, the BOP helps coordinate the transfer and
transports the inmate to a departure institution for return to his or her country of
citizenship.
The Criminal Division
The Criminal Division’s Office of Enforcement Operations’ (OEO) International
Prisoner Transfer Unit (IPTU) receives the application packet from the BOP and
determines the suitability of an inmate for transfer based on factors such as views
of the prosecutor, law enforcement concerns about the inmate, the likelihood of the
inmate’s social rehabilitation, and the possibility that the inmate would return to the
United States. 8 The IPTU also responds to inquiries from inmates or inmates’
representatives, such as their attorneys or family members, and communicates
with, meets, and trains officials from countries having prisoner transfer treaties
with the United States. After both the OEO and the receiving country approve a
transfer, the IPTU coordinates a consent verification hearing at which a
U.S. Magistrate Judge determines whether an inmate understands the ramifications
7
Two other components have limited roles in the treaty transfer program: the U.S.
Attorneys’ Offices (USAO) and the U.S. Marshals Service. In this status report, we discuss conclusions
and findings from our 2011 report related to the USAOs, as well as corrective actions the Executive
Office for U.S. Attorneys (EOUSA) has taken. However, we do not reexamine the USAOs’ role in the
program. We also do not reexamine the role of the U.S. Marshals Service, which manages the
transport of foreign national inmates within the United States.
8
The law enforcement agencies the IPTU consults include the Department of Homeland
Security’s Immigration and Customs Enforcement; the Drug Enforcement Administration; the Federal
Bureau of Investigation; the Bureau of Alcohol, Tobacco, Firearms and Explosives; and the U.S. Postal
Service.

2


of the transfer and confirms that the inmate consents to transfer. 9 The IPTU then
helps coordinate the transfer of the inmates to foreign authorities.
Foreign Countries and Their Embassies and Consulates within the United States
Foreign governments and their embassies and consulates throughout the
United States also assist inmates with the transfer program. 10 The IPTU notifies the
foreign government’s central authorities for prisoner transfer when it determines
that a transfer is or is not appropriate. If the IPTU determines that a transfer is
appropriate, the foreign government then decides whether to approve or deny
transfer. The foreign authorities may also arrange for their consular officials to
interview an inmate who has applied for the program. Additionally, foreign
authorities provide escorts to accompany an approved inmate from the BOP
departure institution to the inmate’s home country.
For information related to international treaties and transfer requirements
governing treaty transfer, as well as national and Department policies governing
treaty transfer, see Appendix 1.
Foreign National Inmates in BOP Custody
From fiscal year (FY) 2011 through FY 2013, the BOP’s sentenced inmate
population ranged from 203,592 to 205,184. 11 During that time, foreign nationals
represented 25 percent of the total sentenced inmate population, while foreign
nationals from treaty nations represented, on average, 21 percent of the BOP’s
total sentenced inmate population (see Table 1).

9

The OEO reported to us that it plans to test a process that will permit an inmate represented
by counsel to waive his or her consent verification hearing. According to the OEO, although this
process will not increase the number of inmates approved for transfer, it will save government
resources usually spent on the consent verification hearings.
10
The assistance provided by foreign authorities represents their obligations related to their
citizens, and not their actions related to carrying out the treaty transfer program related to United
States citizens overseas who are eligible for transfer.
11

Our analysis excludes pre-trial inmates because only sentenced inmates are eligible to
apply for treaty transfer. In FY 2013, the BOP held approximately 14,000 pre-trial inmates in addition
to 205,184 sentenced inmates.

3


Table 1

Citizenship of BOP Sentenced Inmate Population

FY 2011 through FY 2013

Total Inmates
Fiscal
in BOP
Year
Custody

Foreign National
U.S. Citizen
Inmates from
Inmates
Treaty Nations

Foreign National
Inmates from
Inmates of
Non-Treaty
Unknown
Nations
Citizenship*

2011

203,592

150,747

43,703

9,028

114

2012

203,396

151,577

43,286

8,451

82

2013
205,184
154,048
42,954
8,124
58
Note: Inmates with unknown citizenship are those whose proof of citizenship is not available to
BOP staff at the time the inmate is assigned to BOP custody.
Source: BOP.

Also, the number of foreign national inmates from treaty nations in BOP custody
has increased 31 percent, from 32,912 in FY 2005, the first year examined in our
2011 review, to 42,954 in FY 2013, the last year of this status review. Over this
same period, the population of foreign national inmates from treaty nations
increased from 19 percent of the BOP’s total population to 21 percent.
Foreign National Inmates’ Interest in and Eligibility for Treaty Transfer
The treaty transfer program is voluntary, and an inmate must request
transfer. Requirements established in treaty agreements between the United
States and treaty nations require that the inmate must also consent to transfer. In
a 2013 report to Congress, the Department stated that of the inmates eligible to
apply for transfer, most decide not to request transfer. 12 The Department reported
that many inmates had resided in the United States for a significant period of time
and chose not to request transfer because of the presence of family and friends and
employment opportunities here. Also according to the Department’s report, other
inmates believe the prison conditions in their home countries are harsher; the
administration of their sentence in their home countries would result in more time
in prison; or that the transfer would result in a prison record in their home
countries, which may result in restrictions within their home countries.
Not all inmates are covered by transfer agreements. While the United States
has transfer agreements with 79 countries, the BOP housed inmates from as many
as 100 countries in FY 2013, leaving 8,124 foreign national inmates from countries
that do not have a transfer treaty with the United States. 13 As noted in the OIG’s
2011 report, the United States did not have a transfer agreement with Colombia,
Cuba, or the Dominican Republic, which in FY 2013 collectively represented 5,241
12

DOJ, Attorney General, The Effectiveness of the International Prisoner Transfer Treaties to
Which the United States Was a Party in FY 2012, Report to the Committees on the Judiciary of the
U.S. Senate and House of Representatives (June 2013).
13

In 2014, India and Argentina acceded to the OAS multilateral convention and became new
transfer treaty partners of the United States.

4


inmates of the BOP’s foreign national inmate population from countries without
treaty agreements with the United States. The decision of whether to negotiate
new bilateral prisoner transfer treaties rests within the authority of the Department
of State. According to the Department of State, at this time, it is the policy of the
United States not to negotiate any new bilateral prisoner transfer treaties, mostly
due to the arduous nature of getting a treaty in force. The United States
encourages countries to consider acceding to one of two multilateral conventions on
this subject to which the United States is a party: the Organization of American
States’ Inter-American Convention on Serving Criminal Sentences Abroad (OAS),
and the Council of Europe Convention on the Transfer of Sentenced Persons (COE).
Foreign national inmates who are covered by transfer agreements must
satisfy a number of treaty requirements to be eligible for transfer. As detailed in
our 2011 report, restrictive criteria imposed by treaty agreements significantly limit
the number of foreign national inmates eligible for the Department’s consideration.
For example, the treaty with Mexico prohibits the transfer of inmates incarcerated
for immigration offenses. 14 Mexican inmates consistently represent the majority of
foreign national inmates in BOP custody, and half of them are incarcerated for
immigration offenses. 15 Consequently, more than 18,000 Mexican nationals in BOP
custody are ineligible for transfer consideration because they are in custody for
immigration offenses.
The voluntary nature of the transfer program, the lack of treaty agreements
with all foreign countries represented by the foreign national inmate population in
BOP custody, and restrictive criteria imposed by treaty nations significantly limit the
number of foreign national inmates eligible for transfer consideration. Later in this
report, we discuss other factors outside the Department’s management of the
program that limit the number of foreign national inmates ultimately not
transferred.
The OIG’s 2011 Report on the Treaty Transfer Program
The OIG’s 2011 report found that each year few foreign national inmates
from treaty transfer nations were transferred to their home countries to complete
their sentences. For example, in FY 2010, slightly less than 1 percent of the 40,651
foreign national inmates from treaty nations in federal prison were transferred to
14

However, the COE multilateral convention, to which the United States and Mexico are both
signatories, does not prohibit the transfer of inmates with immigration offenses. Department of State
officials told us that when a bilateral treaty exists between two treaty nations that are also signatories
of a multilateral convention, the bilateral treaty takes precedence unless both countries agree to give
precedence to the multilateral convention. According to the Department, the Mexican government
preferred the use of the bilateral treaty for several reasons, including the immigration provisions. By
contrast, the IPTU website states that requests for transfer to and from Canada are processed under
the terms of the COE Convention. See http://www.justice.gov/criminal/oeo/iptu/lists.html (accessed
May 14, 2015).
15

Of the 51,078 foreign national inmates in BOP custody in FY 2013, 36,898 (72 percent)
were from Mexico, 18,662 of whom (51 percent) were incarcerated for immigration offenses.

5


their home countries. We found several reasons for the low transfer rate, most
significantly the restrictions imposed on the BOP and the IPTU by the transfer treaty
with Mexico. Other reasons for the low transfer rate included the following:
•	 The BOP did not effectively inform inmates about the treaty transfer
program. The BOP’s insufficient translation services may have kept some
inmates from fully understanding and participating in the program.
•	 The BOP sometimes determined incorrectly that inmates were ineligible for
the program, in part because its program statement on treaty transfer was
incomplete and inaccurate.
•	 The IPTU did not consistently evaluate inmates’ suitability for transfer, which
resulted in disparate treatment of inmates in similar circumstances.
•	 Factors largely outside the Department’s control limited the number of
transfers that could be effected. These included the voluntary nature of the
program; the reluctance of other countries, especially Mexico and Canada, to
approve transfer requests their nationals made and the Department
approved; and the lack of treaties with countries that have many nationals in
the BOP’s foreign inmate population.
Overall, our 2011 report found that from FY 2005 through FY 2010, the BOP
and the IPTU combined rejected 97 percent of requests from foreign national
inmates because they determined that the inmates were ineligible or not suitable
for transfer. Specifically, the BOP rejected 67,455 of 74,733 transfer requests
(90 percent) and forwarded 7,278 applications to the IPTU for consideration. Of
these 7,278 applications, the IPTU denied 5,071 of the applications (70 percent) it
received from the BOP. Although the majority of the denied requests appeared to
have resulted from treaty restrictions, we found that the Department could have
considered more inmates for transfer.
Finally, the OIG determined in our 2011 report that the Department incurred
an estimated $15.4 million in unnecessary incarceration costs from FY 2005
through FY 2010 because of the BOP’s and the IPTU’s untimely processing of
requests for inmates who were ultimately transferred.
The OIG’s 2011 report concluded that the Department could realize cost
savings by reducing process delays and could achieve potentially significant savings
by increasing the participation of eligible inmates in the treaty transfer program.
The OIG made 14 recommendations to help the Department improve its efforts to
effectively manage the treaty transfer program. For example, we recommended
that the BOP and the IPTU coordinate to ensure that the BOP’s program statement
accurately reflected eligibility criteria based on treaty requirements and IPTU
considerations. To reduce erroneous determinations and ensure denials were
limited to cases where transfer is inappropriate, we recommended that the BOP

6


establish a process for reviewing case managers’ eligibility determinations to ensure
their accuracy. 16
Scope and Methodology of the OIG Review
Our current status review assessed the Department’s efforts from FY 2011
through FY 2013 to transfer foreign national offenders in compliance with the
conditions of treaties between the United States and other countries. Our
fieldwork, conducted from February 2014 through August 2014, examined the roles
in the transfer process of the BOP and the Criminal Division, the Department of
State, and other nations’ embassies or ministries of justice. 17 We interviewed DOJ
officials and staff, as well as Department of State staff. We also reviewed
documents, including those the DOJ provided in response to the recommendations
in our 2011 report. In addition, we evaluated the number of inmates who
requested transfer, were determined eligible and suitable, and were transferred
from FY 2011 through FY 2013. Finally, using BOP data, we evaluated the effect on
incarceration costs and prison overcrowding when foreign national inmates
approved by the Department for transfer ultimately are not transferred to their
home countries. See Appendix 3 for more information about the OIG’s
methodology.

16

As of April 2015, 13 recommendations had been closed and the BOP reported that it was
implementing the remaining recommendation. See Appendix 2 for more details on the Department’s
response to the recommendations contained in the OIG’s 2011 report.
17

Our review did not address the transfer of foreign nationals incarcerated in state prisons in
the United States or Americans requesting transfer from foreign nations to the United States.

7


RESULTS OF THE REVIEW
Since the OIG’s 2011 report on the treaty transfer program, the number of
foreign national inmates applying and approved for transfers has risen. However,
the number actually transferred to serve the remainder of their sentences in their
home countries has remained at the levels we reported in 2011 but decreased, on
average, throughout the scope of this review. In the sections below, we examine
data on treaty transfers, changes the Department has made to the program that
may explain changes in that data, and factors that continue to significantly limit the
treaty transfer program’s effectiveness.
Numbers of Transfer Requests and Actual Transfers
In our 2011 report, we found that from FY 2005 through FY 2010 the number
of inmate requests for treaty transfer had ranged from a low of 10,985 in FY 2006
to a high of 14,020 in FY 2010. After the OIG’s report was issued and the
Department took steps to make inmates more aware of the opportunity to request
transfer, the number of transfer requests increased substantially, totaling 21,921 in
FY 2011 for a 56 percent increase. 18 By the end of FY 2013, requests had risen
another 10 percent, to 24,122 (see Figure 1).
Figure 1: The Number of Requests for Transfer

FY 2005 through FY 2013

28,000

24,000


Requests

20,000

16,000

12,000

8,000

4,000

0


2005

2006

2007

2008

2009

2010

2011

2012

2013

Source: BOP.

Also, the number of applications for inmates the BOP determined eligible for
transfer and forwarded to the IPTU for transfer consideration increased since our
18

The numbers of transfer requests are based on the number of applications the BOP
forwarded to the IPTU and the number of foreign national inmates who requested transfer that the
BOP determined ineligible.

8


last report. In FY 2010, the BOP forwarded to the IPTU applications for
1,170 inmates. According to our analysis of IPTU and BOP application data, in
FY 2013 the BOP forwarded applications for 1,422 inmates — an increase of
22 percent since the 2011 review. However, despite this increase in the number of
applications the BOP forwarded to the IPTU, we also found that it did not keep pace
with the increase in the number of inmate requests since the time of our last
review. From FY 2005 through FY 2010, the BOP forwarded 7,278 applications
from 74,733 requests for transfer made by foreign national inmates, or about
10 percent of all requests. By contrast, from FY 2011 through FY 2013, the BOP
forwarded 3,890 applications from 69,848 requests for transfer, or only 6 percent
of all requests. We believe the following contributing factors may limit the
percentage of applications submitted to the IPTU compared to the number of
requests for transfer foreign national inmates made, including:
•	 As discussed above, while the number of foreign national inmates from treaty
nations in BOP custody increased 31 percent (32,912 foreign national
inmates in FY 2005 to 42,954 foreign national inmates in FY 2013), not all of
these inmates are eligible for transfer consideration. For example, Mexican
inmates incarcerated for immigration offenses are not eligible for transfer.
•	 BOP case managers told us that a revised program statement implemented
during the fieldwork of our 2011 review contributed to the increase in
inmates determined eligible and thus the number of applications forwarded
to the IPTU by helping them to better determine an inmate’s eligibility. 19
However, a revised program statement drafted to address additional
inaccuracies the OIG previously identified was not implemented until April
2015.
We discuss concerns we continue to have regarding the BOP’s eligibility
determinations, factors that may limit the number of inmates eligible for transfer
consideration, and the BOP’s revised program statement later in this report. 20

19
In August 2011, the BOP updated the December 2009 version of the program statement
that we had analyzed during the fieldwork for our 2011 report. During that prior review, we identified
inaccuracies in the program statement and recommended that the BOP and the IPTU coordinate to
ensure that the BOP’s program statement accurately reflected eligibility criteria based on treaty
requirements and IPTU considerations. The August 2011 version corrected some of the inaccuracies
we had identified in the program statement but did not address all the weaknesses we found. The
BOP and the IPTU have since further revised the program statement. We discuss the program
statement more fully later in this report.
20

As part of our 2011 review, we analyzed a limited sample of cases in which the BOP
determined inmates were ineligible to apply for treaty transfer and found that the BOP sometimes
determined incorrectly that inmates were ineligible, in part because its program statement was
incomplete and inaccurate. The OIG did not review cases in which the BOP determined inmates were
ineligible for transfer as part of this status review.

9


In addition, according to IPTU data, the number of applications it approved
for transfer increased since our 2011 report. 21 Since the end of our last review, the
average number of applications the IPTU approved each year increased 22 percent,
from an average of 368 approvals per year between FY 2005 and FY 2010 to an
average of 450 approvals per year between FY 2011 and FY 2013. 22 While the
number of applications the IPTU approved for transfer increased since our 2011
report, IPTU management reported to us that the IPTU had a backlog of about
400 cases of inmates the BOP determined eligible for transfer that were pending
the IPTU’s decision. In response to a working draft of this report, the Criminal
Division reported to us that the IPTU’s backlog has been significantly reduced. We
further discuss this backlog below.
Although we found an increase in the numbers of voluntary requests for
transfer, applications of inmates the BOP determined eligible for transfer, and
applications the IPTU approved for transfer, the number of inmates ultimately
transferred to serve the remainder of their sentences in their home countries
remains low. In FY 2010, slightly less than 1 percent of the 40,651 foreign national
inmates from treaty nations in BOP custody were transferred to their home
countries. 23 We found that in FY 2013, 245 of the 42,954 foreign national inmates
from treaty nations in BOP custody were transferred, still representing less than
1 percent of those potentially eligible for transfer (see Table 2). 24

21

The OIG did not independently assess IPTU approval and denial data as part of this status
review. The numbers we cite here of applications approved or denied are based on data the IPTU
reported to the OIG. The percentage of applications the IPTU approved or denied is based on the
number of cases the IPTU processed each year, not the number of applications the IPTU received each
year from the BOP. Furthermore, the number of applications the IPTU approved for transfer is based
on the OIG’s analysis of BOP and IPTU data regarding the number of eligible inmate applications. We
discuss our analysis of discrepancies between BOP and IPTU application data below.
22
While outside of the scope of this status review, by contrast, the IPTU approved 152 of
158 applications (96 percent) from American national inmates requesting transfer back to the United
States from FY 2011 through FY 2013, according to IPTU data. By contrast, the IPTU approved only
33 percent of applications from foreign national inmates requesting transfer out of the United States.
The Criminal Division told us that, historically, the United States approves virtually all American
nationals for transfer, but that different considerations and factors are used to assess the suitability of
Americans for transfer.
23

Inmates approved for transfer in a given year may not actually be transferred during that
same year because of the time it takes for treaty nations to decide about possible transfers.
24

The number of inmates ultimately transferred is based on the OIG’s analysis of BOP and
IPTU data regarding the number of inmates transferred. We discuss our analysis of discrepancies
between BOP and IPTU transfer data below.

10


Table 2

Foreign National Inmates from Treaty Nations

in BOP Custody and Transferred,

FY 2005 through FY 2013

Fiscal
Year

All Foreign National
Inmates from Treaty
Nations in BOP Custody

Foreign Nationals
from Treaty Nations
Transferred

Percentage
Transferred

2005

32,912

99

0.3%

2006

32,686

209

0.6%

2007

35,769

284

0.8%

2008

36,413

260

0.7%

2009

38,385

268

0.7%

2010

40,651

305

0.8%

2011

43,703

206

0.5%

2012

43,286

231

0.5%

42,954

245

0.6%

2013
Source: BOP.

When discussing these statistics with the OIG, multiple Department officials
requested that the percentage of inmates ultimately transferred be determined
based on the number of eligible inmates, not the number of foreign national
inmates from treaty nations in BOP custody. 25 When calculated based on eligibility,
however, our analysis still revealed that only 1.3 percent of inmates the BOP
determined eligible were ultimately transferred. 26 In response to a working draft of
this report, Criminal Division officials stated that the calculation should be based on
inmates determined both eligible and interested in transfer by the BOP, who
comprised the 1,422 inmates for whom the BOP forwarded an application to the
IPTU. When calculated based on that subset, 17 percent of inmates the BOP
determined eligible and who were interested in transfer were ultimately transferred.
Finally, we found that the average number of inmates transferred to serve
the remainder of their sentences in their home countries actually decreased since
our report in 2011. Specifically, an average of 238 foreign national inmates were
25
Other Department officials said that the percentage of inmates transferred should be based
only on those inmates who are eligible and suitable for transfer. However, we could not determine all
inmates deemed suitable for transfer because it is a subjective decision that only the IPTU can
determine after it receives an application packet from those inmates interested in transfer and
determined eligible by the BOP.
26

This analysis is based on a total of 18,505 inmates - 1,422 whom the BOP determined
eligible for transfer and forwarded an application to the IPTU and 17,083 inmates that the BOP
determined were eligible but not interested in transfer and so not forwarded to the IPTU. The
resulting percentage assumes that all eligibility and suitability determinations for transferred inmates
were appropriately made. In response to a working draft of this report, the Criminal Division did not
agree with this calculation because it was its understanding that BOP did not fully evaluate eligibility
for those inmates that the BOP determined eligible but were not interested in transfer. However, this
is contrary to the OIG’s understanding of the BOP’s process to determine an inmate’s eligibility for
transfer. We discuss this further below.

11


transferred each year between FY 2005 through FY 2010, while an average of only
227 inmates were transferred each year between FY 2011 and FY 2013. 27
Discrepancies in BOP and IPTU Data
We found that the BOP’s and the IPTU’s case management systems do not
maintain consistent data on the number of applications from eligible inmates who
request transfer or the number of inmates actually transferred. 28 We requested
and received data on the number of applications and the number of inmates
transferred from both the BOP and the IPTU. Each component reported different
numbers of applications and inmates transferred. We provided the discrepancies to
each component and asked why the discrepancies existed. Both the BOP and the
IPTU reported that data entry problems by staff had resulted in inaccuracies in the
application and transfer data. 29
We also found that the BOP and the IPTU do not compare data on the
numbers of applications or inmates approved, denied, and transferred through the
treaty transfer program. The IPTU Chief told us that the IPTU relies on its own
records and that there is no standard practice to double check the data against the
BOP’s data. A BOP official told us that the BOP reports to the IPTU only the number
of foreign national inmates in its custody.
For further discussion of our analysis of and the discrepancies in BOP and
IPTU application and transfer data, see Appendix 3.
Changes to the Treaty Transfer Program
Since the OIG issued its previous report in 2011, the Department has made
several changes to the treaty transfer program. These changes included steps to
better inform inmates and staff about the program and to improve the consistency
of IPTU suitability determinations. Also, the BOP, in cooperation with the IPTU,
27

The IPTU reported that a transfer of Mexican nationals was canceled in FY 2013. If the
transfer had occurred, 278 total foreign nationals from treaty nations would have been transferred in
FY 2013. However, we did not include these inmates in our analysis of transferred inmates because
they were transferred in FY 2014. In response to a working draft of this report, OEO reported that the
decrease in the number of inmates transferred was attributable to lower approval rates of Mexico and
Canada, the United States’ two largest treaty transfer partners.
28
Three case management systems track information related to prisoner transfer. First, BOP
institution staff enters a foreign national inmate’s interest and eligibility in the BOP’s SENTRY system.
The BOP’s Central Office also tracks information in SENTRY, including whether an inmate’s request is
approved but pending a treaty nation decision, approved and awaiting a consent verification hearing,
denied by the IPTU, or denied by the treaty nation. Second, the BOP’s Central Office maintains the
International Treaty Transfer System, which captures information on the status of application packets
institutions submit. Third, the IPTU tracks transfer requests through its Prisoner Transfer Tracking
System.
29

The IPTU stated it was considering implementing quality control measures to avoid data
entry problems.

12


revised its program statement to address weaknesses in eligibility determinations
the OIG previously identified.
Informing Inmates and Staff about the Treaty Transfer Program
In our 2011 report, we found that language barriers, especially for inmates
who did not speak English, French, or Spanish, may have kept some inmates from
fully understanding the program. The BOP has since translated all documents and
forms related to the transfer program into every language associated with treaty
nations. The BOP also revised its program statement to direct case managers to
discuss the transfer program at the inmate’s initial classification and at every
subsequent program review. 30 Each of the eight BOP case managers we
interviewed during this status review told us that they discuss the treaty transfer
program with inmates during initial classification and discuss re-application with all
inmates previously denied at each subsequent program review. Case managers
also stated that the treaty transfer program is a required aspect of institution
Admission and Orientation meetings with newly arrived inmates.
Our previous report also found that BOP case managers and inmates
generally did not understand why the IPTU denied transfer requests, which limited
the inmates’ ability to successfully reapply. 31 We recommended that the IPTU
include in its denial letters a description of how inmates could obtain further
information regarding the reasons for denial, and that the IPTU provide information
on what an inmate could do to become a better candidate for transfer, if applicable.
In response, the IPTU revised its denial letters to state that the inmate could write
to the IPTU to request more specific information about the reasons for denial and
also that, if the inmate believes circumstances have changed significantly, the
inmate may write to the IPTU to seek a reconsideration of the transfer decision
without having to wait the 2 years from the date of the denial letter that an inmate
must generally wait to reapply for a transfer. 32
30

The BOP made these revisions as part of Program Statement 5140.40, Transfer of
Offenders to or from Foreign Countries (August 4, 2011), which was implemented during our 2011
review. The BOP also stated that discussion of the transfer program at the initial classification and
subsequent program reviews is required to be documented in the inmate’s central file.
31
IPTU denial letters provide a brief explanation of the reason(s) why a transfer request had
been denied, which mirror the IPTU’s denial codes. Denial letters do not, however, discuss in detail
the individual facts in each case that resulted in denial. In reviewing denial letters during our 2011
review, we found that while IPTU provided reasons for denial, the reasons cited were often vague or
lacked detailed information as to how an inmate could be a better candidate for transfer, where
possible. For example, letters stated “the inmate is more likely to be approved in the future” if the
inmate has “attempted to address those reasons for denial [over] which the inmate has some control”
but did not state what the inmate specifically needed to do to improve the likelihood of Department
approval. In response to our 2011 review, the OEO provided the OIG a copy of a revised denial letter
reflecting that it no longer includes this sentence.
32

In response to our 2011 report, the Criminal Division issued a memorandum to all U.S.
Attorneys and Department litigating components, which stated that, in determining whether to
approve a transfer, the Criminal Division very seriously considers legitimate law enforcement concerns
that U.S. Attorney’s Offices (USAO) and Department litigating components raise. For example, in
most cases, information that an inmate is a subject of another criminal investigation, is needed to
(Cont’d.)

13


In addition, our 2011 report recommended that the Executive Office for U.S.
Attorneys (EOUSA) develop a strategy with the IPTU for communicating about the
treaty transfer program to the Federal Public Defender and the courts so that
defendants would be informed of the opportunity to apply for transfer. In response,
EOUSA and the IPTU distributed letters to the Federal Public Defender and Federal
Probation Office in each judicial district explaining the treaty transfer program and
asking them to inform foreign national defendants about the program and how to
apply for transfer. BOP case managers told us they have since observed that more
inmates arriving at a BOP institution for the first time are already aware of the
treaty transfer program.
Finally, as discussed above, the BOP informs inmates about the transfer
program and forwards to the IPTU an application packet for those inmates
interested in transfer and determined eligible by the BOP. However, according to
BOP data, the number of inmates who are eligible but indicate that they are not
interested in transfer has increased (see Figure 2).
Figure 2

Inmates Determined Eligible To Apply for Transfer but

Not Interested, FY 2011 through FY 2013

20,000

Inmates

16,000
12,000
8,000
4,000
0

2011

2012

2013

Fiscal Year
Source: BOP.

As shown in Figure 2, in FY 2011, 15,646 inmates from treaty nations were
eligible but indicated they were not interested in transfer. 33 This increased
testify, or has threatened the safety of a witness will result in a denial of a transfer request. See
Appendix 2 for more information.
33

In response to a working draft of this report, the Criminal Division stated that the data
presented in this figure erroneously suggests that BOP made full eligibility determinations for inmates
who stated they were not interested in transfer. The Criminal Division further stated that the BOP
staff members have little knowledge as to what, if any, ineligibility factors may be present, and only
know that the inmate is a foreign national from a treaty nation. They further stated that, if an inmate
stated that he has no interest in transfer, there will be no indication on the Transfer Inquiry form
whether the inmate would have been eligible had he wanted to pursue the transfer, nor will the BOP
(Cont’d.)

14


9 percent in FY 2013 to 17,083 inmates, or 40 percent of all foreign national
inmates in BOP custody from treaty nations in FY 2013. While the BOP has access
to pertinent information that the IPTU could use to identify potentially suitable
candidates for transfer from those already deemed eligible, the BOP reports to the
IPTU only the number of foreign national inmates in its custody. Below, we discuss
further informing about the program those inmates eligible but not interested in
transfer.
Weaknesses in the Current BOP Program Statement on Eligibility Determinations
According to BOP data, from FY 2005 through FY 2010, 90 percent (67,455
of 74,733) of inmates’ transfer requests were deemed ineligible by the BOP and
never forwarded to the IPTU for consideration. In our 2011 report, we concluded
that the BOP was not correctly determining inmate eligibility in many instances for
three reasons: (1) inaccurate information in the BOP’s program statement about
the eligibility requirements contained in the treaties; (2) inadequate training of case
managers on how to determine eligibility; and (3) insufficient BOP management
reviews of application packets and of case managers’ decisions about eligibility. We
discuss progress made to address these areas of concern below.
Eligibility Requirements in Treaty Agreements
As discussed in our 2011 report, the BOP’s 2009 program statement
contained four types of errors about the eligibility requirements contained in the
treaties: (1) not all treaty transfer nations were listed; (2) information was
incorrect regarding whether inmates with appeals in progress are eligible for
transfer; (3) information was also incorrect regarding exceptions to the rule that
inmates must have at least 6 months remaining on their sentences to be eligible;
and (4) information was incomplete regarding whether inmates with committed
fines are eligible for treaty transfer. 34
The BOP issued a revised program statement while our previous review was
in progress. 35 BOP case managers we interviewed during this status review verified
staff have a reason to conduct further research concerning eligibility. However, according to the BOP,
case managers make a full eligibility determination at initial classification and thereafter review the
determination at each subsequent program review along with asking if the inmate is interested. The
information regarding eligible (“interest” or “no interest”) or ineligible is entered into SENTRY. A
determination has to be made to enter the appropriate information in SENTRY. For those inmates who
are eligible and interested the application packet is prepared by the case manager and forwarded to
BOP headquarters for processing and forwarding to IPTU.
34

Our fieldwork and analysis was based on BOP Program Statement 5140.39, Transfer of
Offenders to or from Foreign Countries (December 4, 2009), which we found did not define
“committed fine” or refer to BOP Program Statement 5882.03, Fines and Costs for “Old Law” Inmates,
(February 4, 1998), which defines a committed fine as “a monetary penalty imposed with a condition
of imprisonment until the fine is paid.” Committed fines apply only to those inmates convicted of
offenses committed before November 1, 1987.
35

BOP, Program Statement 5140.40 (August 2011), replaced BOP Program Statement
5140.39 (December 2009), which we analyzed during our fieldwork for the 2011 report.

15


that the revised program statement was being used to determine inmates’ eligibility
for transfer and that it provided more information for determining eligibility.
However, the revised program statement did not address all the weaknesses we
found in the previous version, including clarifying information on the eligibility of
inmates with pending appeals. In our previous report, we recommended that the
BOP and the IPTU coordinate on further revisions to ensure that the program
statement accurately reflects eligibility criteria based on treaty requirements and
IPTU considerations. In April 2015, the BOP and the IPTU issued a second revised
program statement in this regard.
According to the BOP and the IPTU, the latest revisions to the program
statement also required revisions to the C.F.R. governing the administration of the
program. The BOP’s Office of General Counsel prepared proposed C.F.R. changes
and submitted them to the Federal Register for a public comment period that ended
in March 2014. In November 2014, the BOP reported that the final rule was
approved by the Department, published in the Federal Register, and finalized. The
second revised program statement was negotiated with the BOP union in January
2015 and was signed by the BOP Director and implemented in April 2015.
Case Manager Training on Inmate Eligibility
Our 2011 report found that training the BOP provided case managers on how
to determine an inmate’s eligibility for treaty transfer was based on the program
statement that contained inaccuracies regarding eligibility requirements. We
recommended that the BOP ensure proper training for all staff involved in treaty
transfer determinations. The BOP concurred and provided to staff refresher training
that focused on the eligibility criteria. Case managers we interviewed as part of
this status review confirmed that they have since received training on the treaty
transfer program, including the application process and eligibility determinations.
According to the BOP, the eligibility criteria explained in its refresher training
includes clarification on committed fines, pending appeals, and collateral attacks. 36
The BOP also stated that all staff involved in transfer determinations will also be
provided training on the second revised program statement.
Institution Management Review of Case Managers’ Eligibility Determinations
Our 2011 review found that BOP management did not sufficiently review case
managers’ eligibility determinations. 37 We concluded that errors made by case
managers could have been discovered if prison management had reviewed
determinations. We recommended that the BOP establish a process for reviewing
36

“Collateral attack” is a broad term that refers to a motion, other than a direct appeal, filed
by an inmate seeking to overturn his conviction or sentence.
37

According to 28 C.F.R. § 527.44, BOP management is required to verify that the inmate is
qualified for transfer. Of the 18 prison management officials we interviewed for our 2011 report, only
2 said they verified the case managers’ eligibility determinations, while 16 said they reviewed
application packets only for spelling and grammar mistakes, and to ensure that all required documents
were included.

16


case managers’ eligibility determinations to ensure their accuracy. In response, the
BOP revised its program statement to include a process for supervisors to review
eligibility determinations made by staff. 38 The case managers we interviewed as
part of this status review told us that their supervisors review application packets to
ensure eligibility determinations are accurate.
Despite the BOP’s efforts to improve the accuracy of eligibility
determinations, we continue to have concerns. For example, in FY 2013 the BOP
deemed 22,700 foreign national inmates ineligible for transfer consideration,
according to BOP data. A large portion of these foreign national inmates are likely
to be ineligible for transfer because they are Mexican nationals incarcerated for
immigration offenses (18,662 in FY 2013). However, not all Mexican nationals are
incarcerated for immigration offenses, leaving thousands of Mexican inmates and
other foreign national inmates from treaty nations potentially eligible for transfer.
In addition:
•	 The BOP’s second revised program statement, intended to address
incomplete and incorrect information regarding inmate eligibility that we
identified during our 2011 report, was not implemented until April 2015 —
well over 3 years after the OIG issued our last report. Therefore, during the
intervening period, case managers were determining eligibility based on
incomplete and incorrect information.
•	 Inmates initiate the application process by reviewing and signing a transfer
inquiry form, after which the inmate’s case manager determines his or her
eligibility to apply for transfer. The transfer inquiry form states that an
inmate is not eligible to apply for transfer if the inmate has a pending appeal
or collateral attack. 39 However, based on our review of IPTU denial codes,
the IPTU tracks inmates denied transfer who have a pending appeal or
collateral attack, indicating that the IPTU incorrectly receives applications
from the BOP for inmates who are ineligible to apply for transfer
consideration at the time of request. 40
•	 In response to our 2011 report, the BOP revised its Program Review
Guidelines for Correctional Programs (guidelines) to, in part, determine
whether case manager decisions regarding eligibility were made correctly.
According to the BOP, from FY 2011 through FY 2013, deficiencies related to
38

The BOP has also revised its transfer inquiry form, which indicates an inmate’s interest in
treaty transfer and his or her eligibility as determined by a BOP case manager, to require supervisory
review and signature. The revised transfer inquiry form was published in April 2015.
39

The transfer inquiry form also states that the inmate may apply when the appeal or
collateral attack has concluded.
40

The IPTU also has denial codes for “unpaid fines” and “insufficient remaining sentence,”
indicating that the IPTU also incorrectly receives applications from the BOP for inmates with
committed and non-committed fines, as well as less than 6 months remaining to serve on their
sentences, which are two eligibility requirements established in each program statement we have
assessed during both of our reviews of the treaty transfer program.

17


the treaty transfer program based on its revised guidelines were found in
10 of 106 institution program reviews (9 percent). Of the 10 deficiencies,
3 were related to staff making incorrect decisions on program eligibility. See
below for more information.
We believe the additional information in the BOP’s second revised program
statement addresses the errors we previously identified and may help improve the
accuracy of eligibility determinations. For example, rather than having a list of
treaty nations as an attachment to the program statement, the second revised
program statement refers BOP staff, inmates, and the public to three different
sources where the most-up-to-date list of treaty nations is available. Also, the
second revised program statement clarifies that inmates with an outstanding fine or
unpaid restitution are eligible to apply for transfer and provides more information
regarding those inmates who had “committed fines.” 41 In addition, we previously
found that neither an appeal nor a collateral attack was clearly defined in the
program statement. However, the second revised program statement defines
both. 42 Finally, like the previous program statement, the second revised program
statement states that an inmate is ineligible for transfer if he or she has less than
6 months of the current sentence remaining to be served at the time of request for
transfer. However, unlike the previous program statement, the second revised
program statement acknowledges that exceptional circumstances could warrant
consideration of an inmate with less than 6 months remaining on his or her
sentence, such as if the inmate is suffering from a life-threatening illness and could
die before the completion of his or her sentence.
While the second revised program statement may help improve the accuracy
of eligibility determinations, if the Department wants to ensure it appropriately uses
this program to the fullest extent possible, we believe it should undertake a review
of data to determine why more eligible inmates are not approved for transfer.
Department Efforts To Make IPTU Suitability Determinations More Consistent
Our 2011 report found that the IPTU’s determinations of inmates’ suitability
for transfer were inconsistent and that the lack of consistency resulted in disparate
treatment of inmates in similar circumstances. In response, OEO and IPTU
management took a number of steps to improve the consistency of suitability
determinations:
•

reviewing the suitability criteria with all IPTU attorneys and analysts,
41

The second revised program statement states that a small class of inmates who committed
their offense before November 1, 1987, and have had court-imposed committed fines are ineligible for
consideration for transfer until the committed fine is paid or until the court imposing the committed
fine permits the inmate to proceed with his/her transfer request.
42

The second revised program statement defines an appeal as a challenge to the decisions
made on an inmate’s conviction and a collateral attack as a motion that challenges some aspect of a
former judgment due to an allegation of injustice or unconstitutional treatment.

18


•	 holding regular meetings with IPTU staff to routinely review the suitability
criteria and to clarify their application, and
•	 adding a level of review in cases dealing with proposed denials.
During our status review, the IPTU Unit Chief told us that these changes remained
in place. She said that she holds one-on-one discussions with staff if she becomes
concerned that guidelines are being interpreted inconsistently. She also said that
IPTU management holds biweekly meetings with staff to discuss the application of
denial codes associated with the IPTU’s guidelines, as well as any issues she
identifies with the application of the guidelines. 43
We re-interviewed six IPTU attorneys and analysts we met with during our
previous review to discuss for this status review the changes to the suitability
process. These IPTU staff told us that the one-on-one meetings and biweekly
meetings with IPTU management provide them an opportunity to discuss the
application of suitability criteria. For example, an IPTU attorney told us that
Mexican inmates’ domiciliary status is an issue frequently discussed because the
term “domiciliary” is defined in the treaty as someone with “intent to remain” in a
country. The meaning of “intent to remain” is a frequent topic of discussion. 44
Also, we found that the OEO had created an additional level of review to
consider those applications the IPTU recommends for denial. The OEO Director told
us that the OEO Deputy Director reviews all cases the IPTU recommends for denial.
In those cases where a disagreement between the IPTU and the OEO Deputy
Director occurs, the OEO Director further reviews the case.
In addition, during our 2011 review, we were told that it was easier for IPTU
staff to deny than to approve a request because finding a single reason to deny was
viewed as easier than collecting adequate support to approve a transfer. In
comparison, as part of this status review, IPTU officials and staff told us that IPTU
staff is now reviewing inmate requests for reasons to approve them rather than to
deny them. For example, an IPTU attorney told us that staff is approving more
cases and attributed it to the fact that IPTU management is approving more of the
cases. The IPTU’s Chief described the IPTU as more “forward leaning” than it used
to be and told us that the IPTU is now less likely to deny a request as a “knee-jerk
reaction.” She added that although there was never any intent to deny requests
and that there has been no change in the IPTU’s policy in how it determines an
inmate’s suitability, there has been a push to approve applications. As a result, the
IPTU is looking more closely at each case and being more flexible with how IPTU
43
The 2003 Prisoner Transfer Treaty Requirements and Guidelines govern how the IPTU
evaluates treaty transfer requests and how analysts record the reasons for denials using codes derived
from the guidelines.
44

Article IX(4) of the bilateral treaty between the United States and Mexico states that “A
‘domiciliary’ means a person who has been present in the territory of one of the parties for at least
five years with intent to remain permanently therein.”

19


suitability guidelines are applied. The Deputy Assistant Attorney General for the
Criminal Division told us that there is now more emphasis on the importance of
approving applications than in the past. However, we have concerns regarding the
low number of applications the IPTU approves. For example, in FY 2013, the BOP
forwarded to the IPTU applications for 1,422 inmates determined eligible for
transfer. While the IPTU does not make determinations on each application it
receives each year, IPTU approved only 494 applications in FY 2013.
Although we did not examine case files as part of this status review, based
on interviews with IPTU staff and management and OEO officials, it appears the
steps IPTU and OEO officials told us they have implemented represent a meaningful
effort to improve and to ensure the consistent application of suitability guidelines.
To determine whether an inmate is suitable for transfer, the IPTU provides its
analysts with Prisoner Transfer Treaty Requirements and Guidelines (guidelines)
that govern how they are to evaluate treaty transfer requests. The IPTU is in the
process of revising its suitability guidelines. The IPTU Chief told us that there are
no “drastic changes” planned but that the addition of examples and clarifications,
particularly concerning an inmate’s domiciliary status or the effect of any weapons
charges, were under consideration. We believe the Department should participate
in the revisions of the IPTU guidelines to facilitate targeting the most suitable
inmates for transfer. 45
Formal Reconsideration Process
In our 2011 report, we found that no formal reconsideration process existed
for inmates whose transfer requests were denied and that the only form of appeal
was for inmates to write to ask that their cases be reconsidered. Inmates whose
transfer requests the IPTU deny must generally wait 2 years before reapplying. We
concluded that a more formalized reconsideration process would provide more
opportunities for an inmate to be considered for transfer. We recommended that
the IPTU fully implement a reconsideration process that requires IPTU staff to follow
up on the requests they have denied so that inmates may reapply for transfer when
their circumstances change before the 2 year waiting period ends. The IPTU has
since implemented a system to ensure timely follow-up on cases and a mechanism
to track and monitor cases for reconsideration.
The IPTU Chief told us that cases that are denied because of “potentially
removable” reasons are now tracked in a “tickler” system. 46 An IPTU attorney told
45

In the past, the Department has used working groups when revising inmate eligibility for
programs that may affect their release. For example, the Department formed a working group in
2013 to consider changes to the BOP’s compassionate release policy. The working group revised the
BOP policy to expand eligibility guidelines for aging inmates, and the Department included these
revisions in its Smart on Crime initiative. See DOJ, OIG, The Impact of an Aging Inmate Population on
the Federal Bureau of Prisons, Evaluation and Inspections Division Report 15-05 (May 2015),
https://oig.justice.gov/reports/2015/e1505.pdf#page=1 (accessed May 14, 2015).
46
Potentially removable reasons are those that may be resolved by a change in the inmate’s
circumstances. For example, if an inmate was denied transfer because of a pending appeal and the
(Cont’d.)

20


us that when an inmate is denied a transfer for potentially removable reasons, the
IPTU secretary sets an alert in the internal e-mail system to remind the analyst
6 months after the denial date to determine whether the reasons for denial have
been resolved. The attorney stated that when she receives a reminder, she
contacts the relevant agency. If the denial reasons have been resolved, the IPTU
moves forward with the transfer rather than making the inmate wait 2 years from
the date of the previous denial. If the denial reasons have not changed, the
secretary sets a new alert. IPTU staff told us that while they had always informally
tracked potentially removable denial reasons, the formal alert system allows
inmates whose requests have been denied to have those requests reconsidered
sooner.
IPTU Resources for Improving the Transfer Program’s Management
We found that actions the BOP and the IPTU have taken to improve the
management of the treaty transfer program have increased the caseload and other
responsibilities of the IPTU staff, but that there has not been a corresponding
increase in available resources. As discussed above, the number of applications the
BOP submits for consideration has increased significantly. As a result, we found
that while caseloads vary by employee, the average annual caseload for the IPTU
staff increased 14 percent, from 138 cases per employee in FY 2011, to 158 cases
per employee in FY 2013. An IPTU attorney told us that she used to have 20 to
25 cases to review at any time but now has about 40 cases; if she was not working
extended hours on her caseload she would have about 50 cases. The IPTU Chief
said at that time IPTU staff each had a backlog of 50 cases or more and that
sometimes, due to other responsibilities, they were unable to satisfy IPTU’s target
of processing 15 cases per month. The IPTU Chief added that the IPTU had a
backlog of about 400 cases caused by an influx of cases from the BOP, as well as
the impact of the October 2013 furlough of the entire IPTU staff. 47 Some of these
cases had been pending a transfer recommendation for over 90 days but the
majority had not. In response to a working draft of this report, OEO informed us
that the backlog and caseload issues no longer exist in the IPTU, and reported that,
as of June 18, 2015, there were only 55 pending cases in the IPTU and all had been
pending less than 70 days.
In our 2011 report, we noted that the IPTU was not evaluating applications
for transfer within the time the IPTU management expected. 48 We attributed some
of the IPTU’s untimeliness to a lack of staff, the additional responsibilities staff have
appeal is resolved, the reason for the original denial can be removed to make the inmate more
suitable for transfer.
47

A furlough occurs when there is a lapse in government funding. During a furlough, an
agency must shut down all activities funded by annual appropriations that are not accepted by law.
48
Assessing the timeliness of the IPTU’s processing of requests received, approved, or denied
was not within the scope of this status review. However, we note that delays in transferring
potentially suitable inmates can result in unnecessary incarceration costs and make inmates who are
approaching 6 months remaining on their sentence ineligible for transfer.

21


to fulfill, as well as the lack of a system to track staff’s evaluation of application
packets. In response, the IPTU implemented formal timeliness requirements to
evaluate application packets within 90 days and instituted a tracking system. We
also found that the IPTU staff is now required to report to the IPTU management
every 2 weeks on the status of cases pending for 70 days or more. 49 IPTU staff told
us that completing status reports requires tracking down specific case details and
dates and describing what has been done on the case and what remains to be
done. While these changes document the information necessary to track the
processing of the cases, IPTU staff expressed concern that the time spent on this
documentation takes time away from reviewing cases.
Another finding in our 2011 report was that the IPTU did not provide enough
information in denial letters, resulting in inmates not fully understanding the
reasons for denial or what they can do to address those reasons. As discussed
previously, the IPTU revised its denial letters to state that inmates can write to the
IPTU to obtain further information regarding the reasons for denials and how to
become a better candidate for transfer. IPTU staff said they now receive many
more letters from inmates requesting information about denials. They told us that
they respond to every letter from inmates and that the effort was “burdensome”
and “resource and time intensive,” taking time away from reviewing applications for
transfer. Despite the increase in transfer applications and inmate correspondence,
we found that the Department has not increased the IPTU’s permanent staff.
Finally, we found that the IPTU lacks staff to further improve the
effectiveness of the transfer program. According to the IPTU Chief, most IPTU
resources are focused on processing requests, managing transfers, and responding
to urgent requests for information or assistance related to the transfer program. As
a result, time and resources to consider how to improve the effectiveness of the
transfer program are limited. When asked what new actions she believed would
improve the effectiveness of the transfer program, the IPTU Chief offered the
following examples:
•	 planning and conducting regular training with the treaty nations;
•	 planning and conducting regular meetings with the treaty nations to discuss
all aspects of the program, including transfers and the speed with which
treaty nations process and decide cases;
•	 enlisting the support of Department officials in targeting treaty nations
having low approval rates and working to develop strategies to encourage
greater participation of the treaty nations in the transfer program; and

49
The IPTU Chief also told us that she and the OEO Director meet every other week and
review cases coming up on 90 days of processing time, the number of cases likely to be completed
before the 90-day deadline, and what is preventing a case from making the deadline. She said that
she also reviews status reports to assess productivity and ensure the staff moves all cases forward.

22


•	 collecting information on how each treaty nation administers sentences and
on the availability of conditional release to prepare a resource for IPTU staff
to use when answering inquiries from U.S. Attorneys’ Offices (USAO), law
enforcement, and other sources.50
We inquired of the IPTU whether it has the resources to identify inmates who
could potentially file meritorious treaty transfer requests. The IPTU Chief told the
OIG that she believes that proactively identifying potentially eligible inmates for
transfer would be a poor and ineffective use of government resources. The IPTU
Chief said that without an application packet, the only source of information that
the IPTU has about an inmate is from the BOP’s SENTRY case management system,
which lacks information critical to determining whether an inmate is suitable for
transfer. 51 She also noted that using data to identify potentially eligible inmates
would not address situations where an inmate has made a conscious decision not to
apply or where a treaty nation will not approve the transfer of an inmate.
In addition, the IPTU Chief said that without an increase in resources the
IPTU cannot strategize or “be creative” as to how the Department could further
improve the effectiveness of the transfer program. 52 For example, the IPTU Chief
50

In response to our 2011 report, the Criminal Division issued a memorandum to all U.S.
Attorneys and litigating components that, among other things, sought to address and dispel
misconceptions prosecutors may have regarding the treaty transfer program. For example, some
prosecutors mistakenly believe that an inmate would serve less time in custody or be immediately
released if transferred to his or her home country. The memorandum states that treaties require
receiving countries to apply their own laws and procedures regarding the execution of a sentence and
that sometimes this will result in an inmate serving less time. But in other cases, an inmate may
serve more time than he or she would have served in the United States. Regardless, this concern
alone is not a sufficient reason for the United States to deny an inmate’s request for transfer.
The memorandum also addresses concerns that transferred inmates will return to the United
States and commit new crimes. The memorandum states that, although there is no guarantee against
recidivism, the possibility that a foreign national will return to the United States after completing a
transferred sentence can be minimized by ensuring that removal orders are obtained prior to transfer
and by limiting transfer approvals to candidates who have strong family ties to their home countries
and minimal or no prior criminal record. Also, the IPTU Chief told us that the IPTU provides
immigration authorities and the Department of State with lists of transferred inmates for their
information. In addition, the IPTU Chief said that it is policy to deny transfer on those uncommon
occasions when a transferred inmate returns to the United States, commits a new crime, and seeks to
transfer for a second time. Finally, we found in our 2011 report that of 1,100 foreign national inmates
transferred from FY 2005 through FY 2010, only 33 (3 percent) later returned to the United States and
were re-arrested within a 3 year period.
51
For example, the IPTU Chief said that SENTRY does not contain information about the
location of the inmate’s family and friends, the length of time the inmate has been in the United
States, or residential and work history in the United States. Also, she said that SENTRY does not
contain complete information about the specifics of the inmate’s crime, immigration history or criminal
record, or any indication of what positions the USAO or law enforcement would take on the potential
transfer of the inmate. Finally, she said that SENTRY contains no indication of whether the inmate has
a pending appeal that would preclude eligibility for transfer.
52

In response to a working draft of this report, the Criminal Division stated that the IPTU
Chief did not intend to suggest that with the current level of resources IPTU staff would be unable to
develop any strategy or approach that could advance the program.

23


suggested to us that BOP could increase the number of applications forwarded to
the IPTU by providing a detailed document to foreign national inmates from treaty
nations that outlines the transfer program, its requirements, and the processing
steps for transfer application. However, she said that the IPTU is not in a position
to provide this document because the BOP maintains custody of inmates and is best
positioned to inform inmates, such as those eligible but not interested in transfer,
about the transfer program. 53
Finally, the IPTU Chief added that increasing the number of applications
would be successful only if the treaty countries obliged by accepting a greater
number of their nationals for transfer. The IPTU Chief said additional resources
could help the IPTU better address the treaty nations’ reluctance to take back their
nationals or adjudicate IPTU-approved requests more quickly. We discuss these
issues further below.
In response to a working draft of this report, the Criminal Division stated that
the Department is committed to doing what it reasonably can to ensure that eligible
inmates are informed about the availability of the transfer program. Although it
maintains that it would be neither practical nor productive for IPTU staff to scan
SENTRY records in search of suitable transfer candidates, it acknowledges that
there are positive actions that can be taken to raise the profile of the transfer
program in federal prisons. It further reports that OEO and BOP have plans to
prepare jointly a brochure that will discuss all stages of the transfer process and to
distribute the brochure to foreign national inmates, and that work on this brochure
will begin in the summer of 2015.
Also, as discussed above, EOUSA and the IPTU distributed letters to the
Federal Public Defender and Federal Probation Office in each judicial district
explaining the treaty transfer program, asking them to inform foreign national
defendants about the program and how to apply for transfer. In response to a
working draft of this report, the Criminal Division stated that it plans to re­
distribute its letters to federal public defenders and criminal defense organizations
to remind them of the availability of the transfer program.
Factors That Continue To Limit the Program’s Effectiveness
Although we believe the Department has taken a number of steps to increase
the number of applications and improve the management of the treaty transfer
program, factors largely outside the Department’s direct control continue to
significantly limit the number of foreign national inmates from treaty nations who
53

As discussed above, the BOP discusses the transfer program at each inmate’s admission
and orientation, initial classification, and every program review. The IPTU Chief stated that a detailed
document could be provided by the BOP to foreign national inmates from treaty nations to reiterate
information provided by the BOP, as well as to provide additional details that are not possible to
present during these required meetings. She stated that the document, provided to inmates when
designated to an institution and again at subsequent program reviews, could provide an inmate with
information about the program that encouraged them to consider applying.

24


are ultimately transferred. As discussed in the Introduction, four of those factors
are the voluntary nature of the transfer program, the lack of treaty agreements
with all foreign countries represented in the BOP’s inmate population, the restrictive
criteria imposed by treaty nations that significantly limit the number of foreign
national inmates eligible for transfer consideration, and the failure of foreign
countries to accept inmates whom the United States has approved for transfer.
Inmates approved by the Department but ultimately not transferred affect
incarceration costs and the BOP’s ability to manage its inmate population. We
discuss these effects in the sections below.
Cost of Incarcerating Inmates Approved for Transfer but Ultimately Not Transferred
Although the Department has increased the number of inmates approved for
transfer, the Department’s approval does not ensure that a treaty nation will also
approve a transfer. According to IPTU data, an additional 959 inmates who had
been approved for transfer by the Department were still in BOP custody as of
February 2014 because their transfer was still pending home nation adjudication,
had been denied by the home nation, or was withdrawn by the Department because
the home nation did not make a decision with enough time left on the inmate’s
sentence to permit the transfer. 54 Our analysis of IPTU and BOP data showed that
the Department spent $26 million from FY 2011 to FY 2013 to house these inmates
in BOP custody.
Of these 959 inmates approved by the Department for transfer, 281 (29
percent) were denied transfer by treaty nations. 55 According to our analysis, the
Department incurred approximately $8 million in costs to incarcerate these 281
inmates until their requests were ultimately denied by a treaty nation (see
Figure 3). 56

54

Of the 959 inmates, the Department approved 171 prior to FY 2011. We included these
inmates in our analysis because their requests were denied, still pending adjudication by a treaty
nation, or withdrawn during the period of our review.
55

Of the 281 inmates whose applications were denied by their respective foreign country
from FY 2011 through FY 2013, 154 remained in BOP custody as of October 2014 and 127 had been
released. Of the 127 inmates who were released, 80 (63 percent) were deported and 47 were
released from BOP custody to the custody of ICE.
56

We used BOP cost data and IPTU approval dates to determine the costs to incarcerate
these 959 inmates. For example, we applied the daily cost to incarcerate 281 inmates approved by
the Department but ultimately denied by a treaty nation from the date the IPTU approved the request
to the date the treaty nation denied the request. The BOP incurs additional costs to incarcerate these
inmates from the dates their transfer requests were denied to the end of their sentences, but neither
we nor the BOP can project these costs, some of which will not be incurred until future years. For
more information, see Appendix 3.

25


Figure 3

Incarceration Costs Incurred for Requests 

Ultimately Denied by a Treaty Nation

5%


(15 requests)


22%

(60 requests)

Mexico: $4.9 million
Canada: $2.3 million
Other: $0.4 million
Total: $7.6 million

73%

(206 requests)

Source: OIG analysis of BOP and IPTU data.

According to IPTU data, 538 of these 959 transfer requests approved for
transfer by the Department were still pending adjudication by the home treaty
nation as of February 2014, and 140 were withdrawn by the Department because
the home treaty nation had not made a decision on the transfer request and the
inmate’s remaining sentence was insufficient under the treaties for transfer. 57
We found that, on average, for the 538 inmates whose transfer requests
were pending treaty nation adjudication as of February 2014, the inmates had been
waiting for a decision from the treaty nations for 371 days. 58 Based on our review
of BOP and IPTU data, the Department incurred $13 million in incarceration costs
for these 538 inmates to remain in BOP custody while their requests were pending
adjudication from 31 treaty nations. Figure 4 shows the costs to incarcerate
inmates who were approved for transfer by the Department but were pending

57

In response to a working draft of our 2011 report, the Criminal Division stated that all
transfer treaties require that for an inmate to be eligible for transfer a certain minimum period,
typically 6 months, must remain on their sentence. The Criminal Division stated that there are two
reasons for this requirement. First, for there to be a reasonable chance of rehabilitation, there must
be a sufficient period of time to allow the inmate to transfer to his or her home country and to become
re-acclimated with its culture. Second, it usually takes considerably longer than 6 months for both the
United States and the home country to process the transfer request and to execute the transfer.
When less than 6 months remain on a sentence, there will be too little time to complete the transfer
process. Thus, in all likelihood, the inmate would be released before the home country is able to
escort the inmate home. Due to these reasons, the Department withdraws its approval for transfer
when a home country does not approve a request with enough time remaining on the inmate’s
sentence.
58

In 2013, the IPTU began periodically reviewing cases pending responses and contacting
treaty nations twice a year to remind them of the cases. To give treaty nations a reasonable time to
respond, the IPTU sends notices only for cases that have been pending for at least 6 months.

26


treaty nation adjudication, as well as the percentage of the costs incurred by
country.
Figure 4

Department-Approved Requests Pending Treaty Nation

Adjudication and Percentage of Incarceration Costs

Pending a Treaty Nation Decision by Country

17% Other
6%
Venezuela

Mexico: $7.2 million
Honduras: $2.1 million
Canada: $0.9 million
Venezuela: $0.8 million
Other: $2.1 million

7%
Canada

Total: $13.1 million
54% Mexico

16%
Honduras
Source: OIG analysis of BOP and IPTU data.

For those 140 inmates whose transfer approval the Department withdrew
because the treaty nation failed to decide the case and the inmate’s remaining
sentence was insufficient for transfer, we found the Department incurred $5 million
in costs to incarcerate them while their requests were pending a decision by their
home country. In addition, of those 140 inmates whose applications were
withdrawn, 132 were released from BOP custody. 59 Of these 132 inmates, 26
(20 percent) were deported and 105 inmates were released to the custody of the
Department of Homeland Security’s Immigration and Customs Enforcement (ICE). 60
Once transferred to the custody of ICE, the BOP cannot confirm whether inmates
were deported or released into the United States.
Inmate Management and Prison Overcrowding
Our 2011 report noted that from FY 2005 through FY 2010, foreign national
inmates from treaty nations represented, on average, 19 percent of the BOP’s total
inmate population. From FY 2011 through FY 2013, that increased to 21 percent.
The BOP has been housing fewer of these inmates in the 118 facilities that it
59

According to BOP data, six of these inmates remained in BOP custody as of October 2014.
Two additional inmates were released after we completed our analysis.
60

charges.

One inmate was released to the custody of the State of California because of pending

27


manages and more in its 14 privately managed contract prisons. 61 For example,
according to BOP data, in FY 2013 foreign national inmates comprised more than
82 percent of the contract prisons’ inmate population. Table 3 shows the shift in
where foreign national inmates are housed.
Table 3
Sentenced Inmates in BOP and Contract Prisons,
FY 2011 through FY 2013

Fiscal Year

BOP Institutions

Contract Prisons

Treaty
Nation
Inmates

Treaty
Nation
Inmates

Inmates

Other
Foreign
Nationals

Inmates

Other
Foreign
Nationals

2011

165,842

22,111

4,815

25,869

20,253

4,155

2012

164,257

20,417

4,551

28,253

22,856

3,882

2013
164,566
18,967
4,224
29,086
23,970
3,875
Note: The numbers of inmates in BOP institutions and contract institutions do not include
inmates with “unknown citizenship” and inmates housed in residential reentry facilities.
Source: BOP.

We found that the increase in the foreign national inmates housed in contract
prisons results from the BOP’s use of Criminal Alien Requirement (CAR) contracts,
which are firm-fixed price, performance-based service contracts. 62 The BOP uses
CAR contracts for the management and operation of correctional facilities housing
low-security, non-U.S. citizen male inmates in BOP custody. 63 Based on our review
of the statement of work for CAR contract prisons, we found that contract prisons
are utilized to house adult male inmates, primarily Mexican nationals with
90 months or less remaining on their sentences.
From FY 2011 through FY 2013, the population of the BOP’s contract prisons
increased 12 percent, from 25,869 to 29,086. Over that same time, we found that
contract prisons were consistently 13 percent overcrowded. (See Table 4.) 64

61
During the time of our review, the BOP managed 118 institutions. In the course of our
review, the BOP activated three additional institutions. These institutions were not included in our
analysis.
62

The BOP reported to us that when beds in contract prisons are available, inmates who are
deportable aliens and meet other criteria are moved from BOP-managed institutions to contract
prisons to help alleviate the crowding in low-security BOP institutions. As of September 2014, male,
low-security BOP institutions were operating at 29 percent over rated capacity, according to the BOP.
63
The OIG is currently examining how the BOP monitors its contract prisons, whether
contractor performance meets certain inmate safety and security requirements, and how contract
prisons compare to similar BOP institutions according to certain inmate safety and security indicators.
64

Overcrowding means that the number of inmates incarcerated in any institution exceeds
the institution’s rated capacity. The rated capacity is the number of inmates an institution is designed
to hold.

28


Table 4

Overcrowding in BOP Contract Prisons and Percentage of

Treaty Nation Inmates in Contract Prisons

FY 2011 through FY 2013

Percentage of
Foreign
National
Inmates from
Treaty Nations

Rated
Capacity

Total
Inmates

Percentage
Over Rated
Capacity

Foreign
National
Inmates

Treaty
Nation
Inmates

2011

22,268

25,236

13.3%

23,778

19,674

83%

2012

22,268

25,141

12.9%

23,630

19,889

84%

2013

23,005

25,936

12.7%

24,695

20,907

85%

Fiscal
Year

Note: Table 4 excludes data from a contract prison opened in FY 2011 with a rated capacity of
2,760 but a population of just 130 inmates. By FY 2013, this prison’s total inmate population
had increased to 3,150 inmates, 97 percent of whom were treaty nation inmates. Also, the
contract prisons’ rated capacity increased in FY 2013 because two prisons increased their rated
capacity.
Source: BOP.

Table 4 also illustrates the effect of incarcerating foreign national inmates
from treaty nations on contract prisons’ overcrowding. Specifically, from FY 2011
through FY 2013, the number of foreign national inmates in contract prisons
increased 4 percent, from 23,778 in FY 2011 to 24,695 in FY 2013. Over that same
time, foreign national inmates from treaty nations in contract prisons increased
6 percent, from 19,674 in FY 2011 to 20,907 in FY 2013. As a result, 85 percent of
all foreign national inmates in contract prisons were from treaty nations in
FY 2013. 65
As the BOP’s foreign national inmate population increases and more foreign
national inmates are designated to contract prisons, the populations of these
prisons will increase and could approach limits stipulated in the BOP’s contracts. 66
We found that increasing the transfer of inmates approved by the Department to
serve their sentences in their home country could help the BOP alleviate

65

The BOP considers all foreign national inmates to be “deportable aliens” unless ICE or the
Department’s Executive Office for Immigration Review has determined that deportation proceedings
are unwarranted or if there is a finding not to deport at the completion of deportation proceedings.
See BOP Program Statement 5100.08, Inmate Security Designation and Custody Classification
(September 12, 2006). At the end of FY 2013, 98 percent of all foreign national inmates in BOP
custody were identified as deportable aliens. We did not evaluate as part of this status review
whether deportation proceedings were initiated at the end of foreign national inmate sentences.
66
The Government Accountability Office (GAO) reported in September 2012 that, “according
to BOP officials, by contract with BOP, privately run prisons cannot exceed 15 percent overcapacity.”
GAO, Bureau of Prisons Growing Inmate Crowding Negatively Affects Inmates, Staff, and
Infrastructure, GAO-12-743 (September 12, 2012).

29


overcrowding in general, particularly in contract prisons. 67 For example, as
discussed above, we found that 959 inmates were approved by the Department for
transfer but had remained in BOP custody during the period from FY 2011 through
FY 2013 because the request was still pending a home treaty nation decision, had
been denied by the home treaty nation, or had been withdrawn by the Department
because the home treaty nation did not make a decision with enough time left on
the inmate’s sentence to permit the transfer. Of those 959 inmates, 693 (72
percent) were incarcerated in contract prisons. We found that had these 693
inmates been approved for transfer by their home countries, overcrowding in
contract institutions would have decreased from approximately 13 to 10 percent in
FY 2013.
Potential Cost Savings
In FY 2013, 20,907 inmates from treaty nations were housed in BOP contract
prisons. 68 Using FY 2013 BOP annual cost data to incarcerate an inmate at a
contract prison ($21,838), we determined that if only 1 percent of the inmates
(204) applied and were transferred to serve their sentences in their home
countries, the BOP could potentially save $4.5 million in annual incarceration
costs. 69 If 3 percent (611) or 5 percent (1,018) of the inmates applied and were
transferred to serve their sentences in their home countries, the BOP could
potentially save $13.3 million or $22.2 million, respectively, in annual incarceration
costs.
Recently, the Department has announced initiatives intended to address
prison overcrowding and rising incarceration costs. For example, in August 2013,
the Department announced the Smart on Crime initiative with five goals, including
ensuring that finite resources are devoted to the most important law enforcement
priorities. Attorney General Holder stated that the Smart on Crime initiative would
“help to rein in federal prison spending while focusing limited resources on the most
serious threats to public safety” and help to ease the nation’s overcrowded prison
system. 70
67

As discussed in the OIG’s Top Management and Performance Challenges Facing the
Department of Justice for 2014, the Department’s FY 2014–2018 strategic plan includes an outcome
goal to reduce system-wide crowding in federal prisons to 15 percent by FY 2018.
68
For the purpose of this analysis, we determined potential cost savings based on 20,368
inmates housed in contract prisons. We excluded 539 inmates from the 20,907 inmates housed in
BOP contract prisons in FY 2013. We excluded 245 inmates who were ultimately transferred because
the Department experienced these cost savings. We also excluded 294 inmates whose Departmentapproved transfer requests were either denied by a treaty nation or withdrawn because treaty nations
failed to make a decision with enough time left on an inmate’s sentence to justify the transfer. In
both cases, the Department incurred all the costs to incarcerate the inmates.
69

Our analysis assumes that inmates were determined eligible for transfer by the BOP,
suitable for transfer by OEO, and that, if OEO approved the transfer, the treaty nation would have
consented to the transfer in a timely manner.
70

Justice News, Press Release, Attorney General Holder Urges Changes in Federal Sentencing
Guidelines To Reserve Harshest Penalties for Most Serious Drug Traffickers, March 13, 2014.

30


In response to our 2011 report, the Department stated that among the
benefits of the treaty transfer program is that the program assists in reducing the
size of the large and costly population of foreign nationals in overburdened federal
correctional facilities. However, the Department also stated that even if the IPTU
increases the number of inmates approved for transfer, cost savings would be
contingent upon the approval of the request by the transfer applicant’s receiving
country. Below, we discuss the Department’s efforts to address treaty nation
actions which, if improved, could result in cost savings to the Department and
assist the BOP in managing its inmate population.
Efforts To Address Factors That Limit the Effectiveness of the Transfer Program
In this status review, we found that prisoner transfer agreements for which
the United States is signatory lack enforcement measures that would allow OEO and
IPTU officials to address factors that limit the program’s effectiveness.
Nevertheless, we found that OEO and IPTU officials have tried to address factors
that limit the program’s effectiveness and have made senior government leaders
aware of the obstacles that limit the number of inmates ultimately transferred. For
example, OEO and IPTU officials have consistently engaged with their treaty nation
counterparts, including those representing Canada and Mexico, in an effort to
secure the ultimate transfer of more Department-approved inmates in specific
cases and in general. Also, the IPTU annually reports to Congress and describes in
detail the difficulties of securing more approvals. In comparison, we found that
senior Department leadership has not directly helped to address the factors that are
leading to approved inmates not being transferred but has delegated responsibility
for doing so to OEO and IPTU officials. We discuss the lack of enforcement
measures in transfer agreements, as well as OEO and IPTU efforts to overcome
obstacles that limit the program’s effectiveness, below.
Lack of Enforcement Measures in Treaty Agreements
There are no enforcement measures within transfer treaties that would allow
OEO or IPTU officials to gain treaty nation approval of more Department-approved
transfers or to address treaty nations’ slow adjudication of transfer requests. A
Department of State official told us that a treaty’s existence presumes its use and
that “enforcement amounts to reciprocity.” 71 The official also said that treaties
work when both countries get something out of them.
In addition, the IPTU Chief told us that there is no governing body within the
multilateral conventions that oversees treaty nations’ actions. However, the
Council of Europe (COE) Convention on the Transfer of Sentenced Persons has
established a process to mediate disputes between member states. While there are
no prohibitions to keep the Department of Justice or the Department of State from
voicing concerns through such a provision, neither Department has done so,
71

Reciprocity is a situation or relationship in which two parties agree to do something similar
for each other, to allow each other to have the same rights, etc.

31


according to Department of Justice and State officials we interviewed. 72 The IPTU
Chief said that it is more effective to engage international counterparts individually
rather than collectively.
Engaging Treaty Nation Officials
As discussed in our 2011 report, OEO and IPTU officials regularly meet with
treaty nation officials from Canada and Mexico to discuss their concerns about
Department-approved inmate requests denied by treaty nations and about the
timeliness of treaty nations’ adjudication of requests. During this review, we found
that OEO and IPTU officials’ engagement of their treaty nation counterparts has
continued but has not resulted in the transfer of more of the inmates whom the
Department has approved for transfer.
For example, the IPTU regularly communicates with representatives from the
Corrective Services of Canada, the IPTU’s point of contact with the Canadian
government. However, the IPTU has no regular contact with Canada’s Minster of
Public Safety. An IPTU attorney told us that since the Minister of Public Safety
makes the final decision on transfer requests, neither the IPTU nor the Corrective
Services of Canada have “much influence” on securing more transfer approvals
from the Canadian government.
In addition to regular communication, the IPTU also has annual bilateral
meetings with its counterparts at the Corrective Services of Canada. Most recently,
in May 2014, OEO and IPTU officials attended a bilateral meeting with the IPTU’s
Canadian counterparts. According to the IPTU Chief, the meeting went well; but
she does not anticipate a dramatic shift in the number of inmates Canada accepts
for transfer. 73
OEO and IPTU officials also have annual bilateral meetings with their
counterparts in the Mexican government. According to OEO, IPTU, and Department
of State officials, the meetings consistently address concerns regarding Mexico’s
reluctance to accept more of its nationals for transfer, as well as its slow

72

In response to a working draft of this report, the Criminal Division stated that the COE
Convention provision is rarely used and is intended to resolve a specific transfer case rather than
address a generic problem one country might have with multiple countries. Also, it indicated that in
late 2013, OEO responded to a COE questionnaire, in which it identified the long decisional time of
some of its treaty partners as a problem that results in the expenditure of additional resources, the
duration of a prisoner’s time in the United States, and, in some cases, ultimately renders transfer
impractical.
73

In our 2011 report, we referenced a 2007 report to Congress that stated the increase in the
Canadian government’s denials may be attributed to changes in the Canadian government. See DOJ,
Attorney General, The Effectiveness of the International Prisoner Transfer Treaties to Which the United
States Was a Party in FY 2005 and FY 2006, Report to the Committees on the Judiciary of the U.S.
Senate and House of Representatives (April 2007).

32


adjudication time and restrictive criteria for suitable candidates. 74 OEO, IPTU, and
Department of State officials also told us that problems with securing more
approvals from Mexico are related to the security of Mexico’s prisons. Specifically,
Mexico has consistently defended its low approval rate as a response to its
overcrowded prisons and the need to reject inmates who will threaten prison
security. During the course of this status review, the ITPU’s Chief told us that
Mexico is making progress on building new prisons. But during a May 2014
bilateral meeting with the IPTU’s Mexican counterparts, Mexican officials stated that
Mexico’s new prisons would be used for reasons other than inmate transfers. 75
Finally, the United States is signatory to two multilateral prisoner transfer
conventions, the COE Convention and the Inter-American Convention on Serving
Criminal Sentences Abroad. 76 The signatories to the COE Convention regularly hold
meetings where representatives discuss a number of criminal justice matters,
including prisoner transfer. The IPTU Chief told us that in 2013, she was invited to
chair a panel discussion on prisoner transfer at a meeting of COE representatives
but the Department denied her request to attend the meeting due to budget
restrictions. The IPTU Chief said COE meetings usually have discussion forums in
which concerns can be addressed and that the 2013 meeting would have been an
opportunity to further discuss treaty nations’ slow adjudication and the number of
Department-approved inmates denied by treaty nations.
Annual Reports to Congress
We also found that the OEO and IPTU annually reports to Congress on behalf
of the Department and describes many of the factors that limit the program’s
effectiveness. 77 For example, the June 2012 report to Congress describes the
eligibility restrictions established in the bilateral treaty with Mexico, the low number
of Mexican nationals accepted for transfer, and the length of time it takes Mexico to
make decisions on requests. 78 The report also describes changes in Canada that
affect the program. For example, the June 2013 report to Congress states:
“Historically, Canada has been an extremely active participant in transfer process
74
These concerns are also expressed during working group meetings between IPTU officials
and staff and Mexican embassy staff in Washington, D.C. Working group meetings occur twice a year
and are generally intended to discuss procedures for the physical transfer of inmates.
75

In its June 2012 report to Congress, the Department stated that it continues to argue that
a very modest increase in Mexican transfers — 100 to 200 additional inmates — could be
accommodated in the Mexican correctional system and would not constitute a significant or dangerous
burden on Mexican prisons. See DOJ, Attorney General, The Effectiveness of the International
Prisoner Transfer Treaties to Which the United States Was a Party in FY 2011, Report to the
Committees on the Judiciary of the United States Senate and House of Representatives (June 2012).
76

See Appendix 1 for more information.

77

Annual reports to Congress also describe the program’s history, management overview,
statistics, and descriptions of prisoner transfer relationships with treaty partners.
78

DOJ, Attorney General, The Effectiveness of the International Prisoner Transfer Treaties to
Which the United States Was a Party in FY 2011, Report to the Committees on the Judiciary of the
United States Senate and House of Representatives (June 2012).

33


and has accepted most of its nationals for transfer. However, a political change in
the Government has resulted in Canada approving fewer of its nationals for transfer
and a significant increase in processing time.” 79 Finally, we found that annual
reports to Congress describe difficulties in securing more transfers from additional
treaty partners. For example, the 2013 report to Congress states that the transfer
process has not functioned well with countries such as Guatemala and Honduras for
various economic, political, and governmental issues. In FY 2012, Honduras had
not made any decisions on 37 requests for transfer approved by the Department.
Department Leadership
While OEO and IPTU officials consistently engage treaty partners and
annually report to Congress on the difficulties of securing more transfers and timely
request adjudications, senior Department leadership has not directly assisted the
IPTU and the OEO with these issues. The IPTU Chief told us that she has not been
involved in a meeting with senior Department leadership with a goal to address
obstacles to securing more transfers. In addition, a Department of State official
told us that while OEO and IPTU officials “constantly raise the issue” of securing
more approvals with Mexico and push to get more information on the status of
pending cases, they have not seen the issue of securing more approvals raised in
the Department at a level higher than the Mexican Working Group. 80 The Deputy
Assistant Attorney General for the Criminal Division told us that he has had
infrequent meetings with foreign national delegations to discuss the treaty transfer
program and is notified only when high-profile inmates are transferred. He added
that the transfer of more inmates is an issue within the purview of the OEO
Director, which he described as a significant, career Senior Executive Service
position. 81
Several Department of Justice and State officials told us that efforts to
improve the effectiveness of the transfer program will require additional effort from
senior Department of Justice leadership. For example, the OEO Director told us
that many changes have been made within the Department since the OIG’s 2011
report and that the next step is to develop a strategic engagement with transfer
partners, including the treaty nations, the Department of State, and the
Department itself, to determine where the most progress can be made to secure
more transfers. The OEO Deputy Director told us that it may be worthwhile to be
79

DOJ, Attorney General, The Effectiveness of the International Prisoner Transfer Treaties to
Which the United States Was a Party in FY 2012, Report to the Committees on the Judiciary of the
United States Senate and House of Representatives (June 2013).
80

The IPTU Chief told us that Mexican Working Group meetings are held with Mexican
Embassy attachés and “key players” involved in the transfer process. Department representatives
include the IPTU Chief, Deputy Chief, and attorneys and paralegals who have a particular role in the
transfer of Mexican national inmates to Mexico.
81
The Deputy Assistant Attorney General was appointed on December 7, 2012. Prior to his
appointment, he served in an acting capacity and as OEO Director. While in his role as the OEO
Director, he told us that he was responsible for all interaction with senior officials in the Mexican and
Canadian governments.

34


more proactive with treaty partners that have the biggest impact on the
Department, including working more closely with the Department of State and
transfer partners. The IPTU Chief said that the Department needs to create more
incentives for treaty nations to accept transfers: “You’ve got to think of that carrot
that would get [treaty nations] more involved.” She added that it would be helpful
for “higher-ups” in the Department to talk to their counterparts in the Mexican
government and determine whether there is something that Mexico wants in return.
Finally, a Department of State official said that if the United States signs a treaty,
the government will take action and expects treaty partners to do the same. The
official said there are several ways for the United States to convey concerns that
another country is not fulfilling its treaty obligations, such as undertaking a
systematic review of waiting times for transfer decisions and discussing the results
with the appropriate officials.

35


CONCLUSION AND RECOMMENDATIONS

Conclusion
The Department has taken a number of steps to improve the management of
the treaty transfer program, including ensuring that inmates fully understand the
program and that the Department considers transfer requests consistently. We
believe these steps may have contributed to the increase in the number of
applications received and approved by the Department from FY 2011 through
FY 2013. However, a second revised BOP program statement, cooperatively
developed between the BOP and the IPTU, to ensure BOP case managers have
accurate and complete information for determining an inmate’s eligibility for
transfer consideration was not implemented until over 3 years after the issuance of
our 2011 report. This means that the program has continued to operate during the
intervening period under the prior, flawed program statement.
In our 2011 report, we stated that increasing the number of foreign national
inmates transferred from BOP custody to serve the remainder of their sentence in
their home countries would result in cost savings to the Department. As part of
this review, we found that increasing the number of foreign nationals transferred
could particularly help alleviate overcrowding in contract prisons. However, even if
the IPTU increases the number of inmates approved for transfer, any cost savings
or reduction in the prison population is contingent upon the treaty nations’
approving requests and that approval is not always forthcoming. We found that
from FY 2011 through FY 2013, due to treaty nations’ reluctance to accept for
transfer or make a timely decision on those inmates the Department had approved,
the Department incurred $26 million in incarceration costs for over 900 inmates.
We concluded that the BOP could incur potential cost savings from the transfer of
inmates housed in BOP contract prisons. For example, our analysis revealed that, if
only 1 percent (204) of the inmates incarcerated in contract institutions applied and
were transferred to serve their sentences in their home countries, the BOP could
potentially save $4.5 million in annual incarceration costs.
The Department has recently begun to implement initiatives, including Smart
on Crime, intended in part to reduce incarceration costs and help alleviate prison
overcrowding. We believe the Department can do more to utilize the existing treaty
transfer program to achieve the same benefits. For example, and most important,
Department leadership should address factors that continue to limit the
effectiveness of the treaty transfer program. As part of this effort, Department
leadership should consider whether other steps are necessary to further inform
eligible but uninterested inmates about the benefits of the program, and what, if
anything, the Department can do to address the reasons eligible inmates are not
interested in transfer. Department leadership should also consider providing the
IPTU with appropriate resources to review transfer applications and pursue how to
further improve the program’s effectiveness. Finally, working with the treaty
transfer partners, including the Department of State and foreign national
36


representatives, Department leadership should develop and support a strategy to
increase the number of foreign national inmates ultimately transferred.
Recommendations
To further improve the management of the treaty transfer program, the BOP
and the Criminal Division (the IPTU) should:
1.	

Regularly exchange, and reconcile as necessary, data on foreign national
transfer requests: those determined eligible, approved, denied, and
ultimately transferred from Bureau of Prisons custody.

2.	

Consider whether other steps are necessary to further inform eligible but
uninterested inmates about the benefits of the treaty transfer program and
what, if anything, the Department can do to address the reasons eligible
inmates are not interested in transfer.

To improve the effectiveness of the treaty transfer program, including the
consideration of more foreign national inmates for transfer, the Criminal Division
should:
3.	

Monitor staffing levels at the International Prisoner Transfer Unit and
consider whether its resources are appropriate to enable them to timely
review transfer applications.

4.	

Review the data to determine why more eligible inmates are not approved for
transfer, and consider whether further revisions to the International Prisoner
Transfer Unit’s guidelines or other steps would facilitate such approvals.

To further improve the effectiveness of the treaty transfer program, including
the ultimate transfer of more Department-approved foreign national inmates, the
Office of the Deputy Attorney General should:
5.	

Actively support a high-level working group with its treaty transfer partners,
including the Department of State, and bilateral meetings with foreign
national representatives, when necessary, to develop and support a strategy
to facilitate the transfer of more foreign national inmates from Bureau of
Prisons custody.

37


APPENDIX 1
INTERNATIONAL TREATIES AND TRANSFER REQUIREMENTS

GOVERNING TREATY TRANSFER

International prisoner transfers were established through treaties that govern
the legal requirements for transferring foreign national inmates to their home
countries to serve the remainder of their sentences. This appendix briefly describes
those treaties, the related U.S. laws and regulations, and Department policy
regarding treaty transfer.
Treaties
Treaty on the Execution of Penal Sentences between the United States and Mexico
The treaty between the United States and Mexico was prepared, signed by
Mexico, and forwarded to Congress in November 1976. Congress approved the
treaty in 1977. The treaty stated that any Mexican citizen jailed in the United
States could be sent, with his consent, back to Mexico to serve the remainder of his
sentence; and any U.S. citizen jailed in Mexico could, with his consent, return to the
United States to serve the remainder of his sentence.82
Council of Europe Convention on the Transfer of Sentenced Persons
The United States acceded to participate in the Council of Europe (COE) in
1983, and the COE Convention was entered into force on July 1, 1985. It was the
first of the multilateral prisoner transfer treaties that the United States entered
into. The COE Convention is the guiding document for the United States’ treaty
transfer of inmates to and from European countries. 83 The Convention’s primary
purpose is to facilitate the social rehabilitation of inmates, as well as to consider
humanitarian reasons for transfer. The COE Convention also recognized that
language barriers and the lack of contact with relatives may prove detrimental to
the inmate; thus, the council determined that inmates would be best served by
being incarcerated in their own society.

82

The consent of Mexico and the United States is also essential.

83

COE Convention countries include: Albania, Andorra, Armenia, Australia, Austria,
Azerbaijan, Bahamas, Belgium, Bolivia, Bosnia and Herzegovina, Bulgaria, Canada, Chile, Costa Rica,
Croatia, Cyprus, Czech Republic, Denmark, Ecuador, Estonia, Finland, France, Georgia, Germany,
Greece, Honduras, Hungary, Iceland, Ireland, Israel, Italy, Japan, Latvia, Liechtenstein, Lithuania,
Luxembourg, the former Yugoslav Republic of Macedonia, Malta, Mauritius, Mexico, Moldova,
Montenegro, Netherlands, Norway, Panama, Poland, Portugal, Romania, Russia, San Marino, Serbia,
Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, Tonga, Trinidad and Tobago, Turkey,
Ukraine, United Kingdom, and Venezuela. Source:
http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=112&CM=8&DF=&CL=ENG (accessed
May 14, 2015).

38


APPENDIX 1

Inter-American Convention on Serving Criminal Sentences Abroad
The Organization of American States (OAS) Convention was adopted on
April 12, 1996, and “entered into force” for the United States on May 25, 2001. 84
The OAS Convention states that its goals are to ensure improved administration of
justice through rehabilitation of the sentenced person. It states that in order to
meet these goals, “it is advisable that the sentenced person be given an
opportunity to serve the sentence in the country in which the sentenced person is a
national.” This agreement allows the United States to transfer offenders to and
from 17 countries. 85
Treaty Transfer Requirements
Inmates who request to be transferred must meet basic eligibility
requirements based on the international treaties:
•	 The inmate must have been convicted and sentenced.
•	 The judgment must be final, with no pending appeals or collateral attacks.
•	 The inmate must be a national of the receiving country.
•	 The inmate, the sentencing country, and the receiving country must all
consent to the transfer.
•	 Dual criminality must exist (that is, the crime for which the inmate was
convicted must also be a crime in the receiving country).
•	 A minimum period of time must remain on the sentence, typically at least
6 months.
Individual countries may have additional requirements. For example, the
bilateral treaty with Mexico does not permit the transfer of offenders who have
committed an immigration offense, become a domiciliary of the sentencing state, or
are serving a life sentence.86 In addition:

84

Inter-American Convention, http://www.oas.org/juridico/english/sigs/a-57.html (accessed
May 24, 2015).
85

OAS Convention countries include: Argentina, Belize, Brazil, Canada, Chile, Costa Rica,
Czech Republic, Ecuador, El Salvador, Guatemala, India, Kingdom of Saudi Arabia, Mexico, Nicaragua,
Panama, Paraguay, Uruguay, and Venezuela. Source: http://www.oas.org/juridico/english/sigs/a­
57.html (accessed July 1, 2015).
86

Article IX(4) of the bilateral treaty between the United States and Mexico states, “A
‘domiciliary’ means a person who has been present in the territory of one of the parties for at least
five years with intent to remain permanently therein.”

39


APPENDIX 1

•	 Ten countries (Bolivia, Canada, France, Marshall Islands, Mexico, Palau,
Panama, Peru, Thailand, and Turkey) will not accept inmates committed for a
military offense.
•	 Six countries (Bolivia, Marshall Islands, Palau, Panama, Peru, and Turkey)
will not accept inmates who have been sentenced to death.
•	 Two countries (Mexico and Turkey) will not accept inmates sentenced for a
political offense.
U.S. Laws and Regulations and Department Policies Governing Treaty
Transfer
The legal requirements for transferring foreign nationals to their countries to
serve sentences imposed by the United States are established through federal
statutory and regulatory provisions. Below are brief descriptions of those
provisions and related Department component policy.
Federal Statutes and Regulations
18 U.S.C. §§ 4100 – 4115
Congress passed Public Law 95-144 giving the Attorney General the authority
to act on behalf of the United States to oversee the administration of the treaty
transfer program; the President signed it on October 28, 1977. The law establishes
the framework and requirements for the treaty transfer program. The provisions of
these sections apply only when there is a transfer treaty in place and to transfers of
offenders to and from a foreign country pursuant to the treaty. Among other
things, the sections also state that the offender must be a national or citizen of the
receiving country and must consent to the transfer. Finally, the sections state that
an offender will not be transferred if an appeal or collateral attack upon the
conviction is pending.
28 U.S.C. § 2255
In 1948, Congress enacted 28 U.S.C. § 2255 as a substitute for habeas
corpus for federal inmates. 87 The section allows a federal inmate to collaterally
attack his or her conviction by filing a motion rather than a habeas petition in the
district in which he/she was convicted and sentenced rather than in the district of
confinement.

87
Habeas corpus can be defined as any of several writs originating at common law that are
issued to bring a party before the court. The most commonly used of those writs is called habeas
corpus ad subjiciendum, which is defined as an extraordinary writ issued upon a petition challenging
the lawfulness of restraining a person who is imprisoned or otherwise in another’s custody.

40


APPENDIX 1

28 C.F.R. § 0.96b
In 1977, the BOP Director and his or her designees were authorized to
receive custody of inmates and to transfer inmates to and from the United States
under a treaty as referred to in 18 U.S.C. §§ 4100 – 4115.
28 C.F.R. §§ 527.40 – 527.46
Sections 527.41 and 527.43 – 46 (enacted in 1981) and Section 527.42
(enacted in 1983) establish the BOP’s role and present the BOP’s responsibilities in
the treaty transfer process. The BOP’s responsibilities include: (1) that BOP case
managers will notify inmates of the program so that the inmates may have an
opportunity to accept or decline; (2) wardens will verify that inmates are qualified
for transfer and forward the applications to the Assistant Director, Correctional
Programs Division; and (3) the Assistant Director will review the submitted material
and then forward the applications to the Office of Enforcement Operations (OEO).
The Assistant Director is also responsible for notifying an inmate as to whether the
OEO has decided in favor of or against the inmate’s request to transfer. Finally, if a
request is approved, the Assistant Director will arrange for the inmate to have a
consent verification hearing, take the inmate to a departure institution, and transfer
the inmate to authorities from the inmate’s country of nationality. 88
28 C.F.R. § 0.64-2
This subsection, enacted in 2007, authorizes the Assistant Attorney General
of the Criminal Division to determine whether the transfer of offenders to or from a
foreign country under a treaty as referred to in 18 U.S.C. §§ 4100 – 4115 is
appropriate or inappropriate. The Assistant Attorney General of the Criminal
Division has delegated his authority to the Deputy Assistant Attorney General for
the Criminal Division, the Director of the OEO, and the Associate Directors of the
OEO.
Department Component Policy
BOP Program Statement 5140.40
The BOP’s program statement, last revised on August 4, 2011, establishes
policies and procedures to govern the BOP’s administration of the treaty transfer
program, including informing inmates about the program and determining an
inmate’s eligibility for treaty transfer. 89 The program statement also states the
program’s objectives, including:
88

The BOP and the Criminal Division are both involved with the consent verification hearing
process at various stages.
89

On April 10, 2015, the BOP issued program statement 5140.42, Transfer of Offenders To or
From Foreign Countries, which rescinded program statement 5140.40 of the same name. Program
statement 5140.42 includes the following summary of changes: 1) modifies Form BP-A0297, Transfer
(Cont’d.)

41


APPENDIX 1
•	 Inmates will be notified of the treaty transfer program at the admission and
orientation meeting.
•	 Transfers will be voluntary and subject to both countries’ approval.
•	 Inmates with committed fines will be transferred only after receiving

permission from the court.

•	 Eligible inmates will be transferred to or from foreign countries pursuant to
the treaty.
The program statement also discusses what each level of BOP management
is required to do. For example, the warden must forward the application packet to
the BOP’s Central Office within 60 days. Then, the Assistant Director, Correctional
Programs Division, must review the application packet and forward it to the IPTU
within 10 days.
IPTU Guidelines for the Evaluation of Transfer Applications of Federal Inmates
The treaty transfer program has no formal regulations that govern the
considerations applied to inmate transfer requests. The IPTU has guidelines,
implemented in February 2003, for evaluating whether the inmate requesting treaty
transfer is a suitable candidate. These guidelines set forth a number of suitability
factors, such as the likelihood of social rehabilitation, law enforcement concerns,
and the risk that the inmate will return to the United States. The IPTU’s guidelines
state that to determine the likelihood of social rehabilitation, the IPTU evaluates an
inmate’s acceptance of responsibility for the offense, criminal history, seriousness
of the offense, criminal ties within the sending and receiving countries, family and
social ties to the sending or receiving country, whether the inmate is a citizen of a
treaty country, humanitarian concerns, and the length of time in the United States.
However, because social rehabilitation is not the only reason an inmate is
incarcerated, a number of law enforcement and justice concerns need to be
considered when evaluating an inmate for treaty transfer. To evaluate law
enforcement concerns regarding an inmate’s incarceration, the IPTU considers the
seriousness of the inmate’s offense, public sensibilities, public policy, possible
sentencing disparity, and law enforcement or prosecutorial needs. Finally, the IPTU
evaluates the risk that the inmate would return to the United States because the
IPTU will allow an inmate to serve his sentence in his own country only if he or she
will stay there after release. To determine the risk that the inmate will return to
the United States, the IPTU evaluates existing ties to the United States, any
previous inmate transfer, and previous deportations or illegal reentries.
Inquiry, to include a list of possible ineligible criteria and requires a review and signature of the Unit
Manager; 2) provides that inmates with pending appeals or collateral attacks for the underlying
criminal judgment or sentence may not apply for transfer; 3) provides clarification regarding dual
citizenship, committed fines, and cases with detainers or pending charges; and 4) provides that the
OEO will inform inmates who are not appropriate for treaty transfer by letter indicating the reasons for
denial. While we briefly discuss in this report how revisions incorporated in program statement
5140.42 address errors we previously identified and may help improve the accuracy of eligibility
determinations, program statement 5140.40 was utilized by the BOP at the time of our fieldwork.

42


APPENDIX 2

THE DEPARTMENT’S RESPONSE TO RECOMMENDATIONS

THE OIG MADE IN ITS 2011 REPORT

In our 2011 report, we made 14 recommendations to the BOP, the Criminal
Division (IPTU), and the Executive Office for U.S. Attorneys (EOUSA) to help the
Department more effectively manage the treaty transfer program. 90 This appendix,
based on subsequent status reports provided to the OIG, describes the
Department’s response to those recommendations. We made several of the
recommendations to multiple components. In those cases, we provide each
component’s response to the recommendation and identify whether each
component’s role in response to the recommendation is “Resolved” or “Closed.” In
those instances where a component’s role is “Resolved,” the recommendation
remains open until the OIG determines that the component has fulfilled its role for
the recommendation.
Recommendation 1: Make all documents related to the treaty transfer
program available to staff on the BOP internal Intranet for all treaty nation
languages.
BOP Response: The BOP provided the OIG with screenshots of its internal
Intranet indicating that the treaty transfer program statement was translated into
all languages associated with the treaty transfer program.
Status: Closed.
Recommendation 2: Update its policies to require BOP staff to discuss the
treaty transfer program at each program review.
BOP Response: The BOP stated that Program Statement 5140.40, Transfer
of Offenders to or from Foreign Countries, August 4, 2011, directs case managers
to discuss the transfer program at the inmate’s initial classification and at every
subsequent program review. 91 Further, the discussion of the transfer program at
the initial classification and subsequent program reviews is required to be
documented in the inmate’s central file.
Status: Closed.
Recommendation 3: The BOP and the IPTU coordinate to ensure that the
BOP’s program statement accurately reflects eligibility criteria based on treaty
requirements and IPTU considerations, and that the BOP provide a revised program
statement to its union for review.
90

The OEO responded to the OIG’s recommendations on behalf of the IPTU.

91

BOP, Program Statement 5140.40 (August 4, 2011), was implemented during the fieldwork
for our 2011 report.

43


APPENDIX 2
BOP Response: The BOP coordinated with the IPTU to ensure the program
statement accurately reflects eligibility criteria based on treaty requirements and
IPTU considerations. The BOP stated it would, if necessary, provide a revised
program statement to the Bureau of Prisons’ Council of Prison Locals/American
Federation of Government Employees (union) for review by January 2012.
However, in subsequent status reports, the BOP stated that changes to the
program statement required significant revisions to the Code of Federal Regulations
and that the BOP’s Office of General Counsel prepared proposed rule changes for
Department review. The BOP stated that the Department had approved the final
rule document. Before publishing the final rule, the Office of General Counsel
forwarded the program statement to the BOP’s executive staff and the union to
determine whether to pursue national negotiations or work through a Joint Policy
Committee (JPC). Once union had reviewed the program statement, either through
negotiations or the JPC, the BOP would publish the final rule and program
statement. In March 2015, the BOP reported that during the week of January 26,
2015, the BOP successfully negotiated the program statement with the union after
the BOP’s executive staff had determined the program statement would be
negotiated with the union rather than be reviewed through the JPC. The BOP
Director signed the revised program statement, and it was issued on April 10,
2015.
Status as to the BOP: Closed.
OEO Response: The OEO provided the OIG with a copy of the OEO’s
proposed revisions to the BOP’s program statement. The OEO stated that
representatives from the Criminal Division and the BOP met to discuss the OEO’s
revisions, the OIG’s concerns, and to ensure that the proposed revisions addressed
the areas noted by the OIG. The OEO’s suggested revisions to the BOP’s program
statement included: (1) the special requirements of the Mexican transfer treaty
and who is responsible for evaluating their application to an inmate’s transfer
request; (2) clarification of the differences between a fine and a committed fine and
the circumstances in which those differences affect a determination of transfer
eligibility; and (3) how BOP case managers should assess whether exceptional
circumstances exist that would preclude the requirement that a treaty-specific
period of time remain to be served on a sentence.
Status as to IPTU: Closed.
Recommendation 4: The BOP ensure that all staff involved in treaty
transfer determinations are properly trained.
BOP Response: The BOP provided staff involved in transfer eligibility
determinations with refresher training that focused on educating staff on the
eligibility criteria for treaty transfer determinations. The BOP provided the OIG with
copies of lesson plans and other training materials it will use to educate staff on
treaty transfer. In subsequent status reports, the BOP stated that all staff involved
in treaty transfer determinations will be provided training on policy changes made
in response to Recommendation 3 once the revised program statement is
44


APPENDIX 2
negotiated with the union and issued to the field. The revised program statement
was issued in April 2015. The BOP subsequently reported that it anticipates
developing training by the end of June 2015. When the training is ready, all staff
involved in treaty transfer determinations will be required to complete it.
Status: Resolved.
Recommendation 5: The BOP establish a process for reviewing eligibility
determinations made by case managers to ensure their accuracy.
BOP Response: The BOP amended Program Statement 5140.40, August 4,
2011, to include a process for supervisors to review eligibility determinations made
by unit management staff. The BOP also revised the Transfer Inquiry and Review
Form (BP-A0297), which requires a supervisory review and signature on case
managers’ eligibility determinations. In subsequent status reports, the BOP stated
that the revised program statement described in the BOP’s response to
Recommendation 3 reflects the new requirement for supervisors to review eligibility
determinations. The revised program statement and revised transfer inquiry form
would be issued to the field after each is reviewed by the union either through
negotiations or the JPC. In March 2015, the BOP reported that during the week of
January 26, 2015, the program statement was successfully negotiated with the
union after the BOP’s executive staff determined the program statement would be
negotiated with the union rather than be reviewed through the JPC. The BOP
Director signed the revised program statement, which the BOP implemented on
April 10, 2015. The BOP also issued the revised transfer inquiry form on that date.
Status: Closed.
Recommendation 6: The BOP and IPTU coordinate with each other to
update the BOP’s program statement to accurately reflect the process by which
inmates can obtain more information from IPTU regarding the reasons for denial.
BOP Response: The BOP coordinated with the IPTU to ensure the program
statement accurately reflects the process by which an inmate can obtain more
information from the IPTU regarding the reasons for denial. The BOP provided
Program Statement 5140.40, August 4, 2011, to the IPTU for its review and
recommendations. The BOP stated that the IPTU’s proposed revisions were
incorporated into the second revised program statement issued on April 10, 2015.
Status as to BOP: Closed.
OEO Response: The OEO provided the OIG a copy of the OEO’s proposed
revisions to the BOP’s program statement and stated that representatives from the
Criminal Division and the BOP met to discuss OEO’s revisions, the OIG’s concerns,
and to ensure that the proposed revisions addressed the areas the OIG had noted.
The OEO’s suggested revisions to the BOP’s program statement included
improvements to the description of the transfer program’s decisional process,
expansion of the explanation concerning how the transfer decision is communicated
45


APPENDIX 2

to the prisoner, discussion of the process and requirements for seeking
reconsideration and re-application, and discussion of the ability to request
additional information from OEO about a transfer determination.
Status as to IPTU: Closed.
Recommendation 7: IPTU fully implement its plan to include in denial
letters a description of how inmates can obtain further information regarding the
reasons for denials, as well as information on what an inmate can do to become a
better candidate for transfer, if applicable.
OEO Response: The IPTU deleted from denial letters the sentence that
states, “The application is more likely to be approved in the future if the prisoner
has maintained the best possible prison record and has attempted to address those
reasons for denial over which the prisoner has some control.” The IPTU also added
the following language to its denial letters:
If the prisoner believes that the circumstances relating to the denial of
the transfer application have changed significantly, the prisoner may
write to the Department of Justice to seek a reconsideration of the
transfer decision earlier than two years from the date of this letter.
Unless the prisoner is able to show that the reasons supporting the
denial of his transfer application have changed substantially, it is
unlikely that the United States will change its decision.
The OEO provided the OIG an example of a revised denial letter that reflected these
changes.
Status: Closed.
Recommendation 8: IPTU fully implement its plan for a reconsideration
process that requires IPTU analysts to follow up on the reasons an inmate’s request
was denied so that inmates whose circumstances change before the 2-year waiting
period may reapply.
OEO Response: The IPTU implemented a computerized notification system
to ensure that timely follow-up occurs and developed a spreadsheet to track and
monitor cases. The OEO provided the OIG with copies of both.
Status: Closed.
Recommendation 9: Work with the IPTU to update information available to
USAOs about the prisoner treaty transfer program through the EOUSA Intranet,
updates to the USAM, or other appropriate means.
EOUSA Response: The EOUSA worked with the IPTU to update information
available to the U.S. Attorney’s Offices (USAO) about the treaty transfer program.
EOUSA provided the OIG with copies of revised sections of the United States
46


APPENDIX 2
Attorneys’ Manual (USAM) and updated portions of the Criminal Resource Manual.
EOUSA also provided a memorandum from the Criminal Division’s Assistant
Attorney General to all United States Attorneys and Heads of the Department’s
litigating components. EOUSA sent the memorandum to ensure USAOs and
Department litigating components are familiar with the treaty transfer program, to
provide updates on the program, to address areas where assistance is needed, and
to seek continued participation and cooperation in the administration of the
program. In addition, EOUSA provided a memorandum from the EOUSA Director to
all United States Attorneys, First Assistant United States Attorneys, and Criminal
Chiefs on the revised sections of the USAM, updated portions of the Criminal
Resource Manual, and the issuance of the Criminal Division’s Assistant Attorney
General’s memorandum. EOUSA stated that all materials provided to the OIG are
available to all USAOs on the EOUSA Intranet. 92
Status: Closed.
Recommendation 10: Provide USAOs with sample plea agreement
language which explains that the USAO can agree to recommend or not oppose a
transfer request while also making clear that the determination rests with IPTU and
the USAO concession in the plea agreement does not bind IPTU.
EOUSA Response: EOUSA provided the OIG with a copy of revisions to
Section 740 of the Criminal Resource Manual, which provides sample plea language
clarifying that the USAOs can agree to recommend or not to oppose a transfer
request. The language also makes it clear that the determination rests with the
IPTU and that the USAO concession in the plea agreement does not bind the IPTU.
EOUSA stated that the sample plea language was highlighted in the EOUSA
Director’s memorandum to USAOs that EOUSA provided the OIG in response to
Recommendation 9.
Status: Closed.
Recommendation 11: Work with IPTU to develop a strategy for
communicating to the Federal Public Defender and the courts information about the
availability of the program.
EOUSA Response: EOUSA provided copies of letters to the Federal Public
Defender and Federal Probation Office that EOUSA created in consultation with the
IPTU. EOUSA stated that the IPTU determined that the most effective means of
ensuring that inmates were aware of the treaty transfer program was to direct
letters explaining the program to the Federal Public Defender and Federal Probation
Office, which provide legal representation and prepare pre-sentencing
92
The OEO also responded to Recommendation 9. The OEO reiterated actions reported by
EOUSA to the OIG and reported that senior members of the IPTU prepared a videotape about the
operation of the transfer program to be used as internal training in the IPTU, as well as training for
USAOs and Department attorneys.

47


APPENDIX 2

investigations, respectively, in each judicial district. The letters asked that the
recipients inform foreign national defendants about the existence of the program
and the procedures for applying for transfer. EOUSA provided input to the IPTU on
the text of the letters that the IPTU distributed to every judicial district. 93
Status: Closed.
Recommendation 12: The BOP establish reporting requirements to
measure the timeliness for completing application packets at all prisons, including
contract prisons, as a measurable element of case manager performance reviews.
BOP Response: The BOP provided the OIG copies of the revised Program
Review Guidelines for Correctional Programs and a Correctional Programs Program
Review Report using the revised guidelines. The BOP implemented revised Program
Review Guidelines to determine whether transfer application packets have been
completed on time, the decisions regarding program eligibility were made correctly,
and inmates were informed and notified about the transfer program during initial
classification and subsequent unit management reviews. 94
According to the BOP, from FY 2011 through FY 2013 deficiencies related to
the treaty transfer program based on its revised program review guidelines were
found in 10 of 106 (9 percent) institution program reviews. Specifically, the BOP
found no deficiencies during 31 institution program reviews in FY 2011. 95 In
FY 2012, the BOP conducted 35 institution program reviews and found only
1 deficiency related to the timely processing of transfer application packets.
Finally, in FY 2013, the BOP found 9 deficiencies in the course of 40 institution
program reviews. Of these 9 deficiencies:
•	 one was related to the timely completion of application packets;
•	 three were related to staff making correct decisions on program eligibility;
and

93

The OEO also responded to Recommendation 11. The OEO reiterated actions EOUSA had
reported to the OIG. Letters explaining the transfer program request that both Federal Public
Defenders and Probation Officers tell foreign national defendants about the transfer program when
representing the defendant and preparing the pre-sentencing investigation, respectively. This being
done before a defendant reaches his or her designated place of confinement would give the defendant
notice at a much earlier date to seek information about the transfer program and the transfer
application process.
94
The BOP stated that staff decisions on program eligibility were made correctly, and whether
inmates were informed and notified about the transfer program during initial classification and
subsequent program reviews, are closely related. For example, staff could classify an inmate in
SENTRY as ineligible and, as a result, the inmate would not be informed and notified about the treaty
transfer program during initial classification and subsequent review.
95

The revised guidelines were published on June 3, 2011.

48


APPENDIX 2

•	 five were related to informing and notifying inmates about the transfer 

program during initial classification and subsequent program reviews.

According to the BOP, corrective actions were taken in response to the
deficiencies found during program reviews. For the deficiency found in FY 2012,
the institution conducted monthly rosters to ensure treaty transfer packets were
completed and mailed within the required timeframes and completed a monthly
memorandum certifying the timeliness of mailing treaty transfer packets. In
addition, corrective actions taken in response to deficiencies found in FY 2013
included:
•	 completing monthly rosters to identify and monitor treaty transfer 

classification,

•	 developing and using a treaty transfer classification checklist,
•	 conducting quarterly treaty transfer classification audits,
•	 conducting treaty transfer training,
•	 completing staff certification memorandums to ensure inmates are notified of
the treaty transfer program,
•	 conducting perpetual audits to ensure inmates are notified of the treaty
transfer program, and
•	 managing tracking of individual cases to ensure timely mailing of treaty
transfer consideration requests.
A BOP official told us that the Central Office is notified when a program review
identifies an institution with deficiencies related to the treaty transfer program. He
stated that if a program review finds a deficiency related to the treaty transfer
program, it is communicated to Central Office officials while program review staff is
at the institution. He also said that BOP officials will receive a copy of the report
identifying the deficiencies found and the determined corrective actions.
Status: Closed.
Recommendation 13: IPTU fully implement formal timeliness requirements
for evaluating treaty transfer requests and institute a system to track IPTU
analysts’ evaluation of application packets.
OEO Response: The OEO provided documentation of the establishment of
formal timeliness standards and of the implementation of a system to track IPTU
analysts’ evaluation of application packets. Specifically, the OEO provided the OIG
a screen shot of its system to track IPTU staff’s evaluation of application packets
pending in the IPTU for 90 days or longer. The system included a list of IPTU staff,
49


APPENDIX 2

the case and name, the number of days pending, and a history of the case,
including reasons for a delay.
Status: Closed.
Recommendation 14: IPTU update its information request forms to USAOs
and law enforcement agencies to request a response within 21 days and state that
failure to respond will result in IPTU proceeding with its evaluation under the
assumption the agency has no objection to transfer.
OEO Response: The OEO provided copies of revised information requests to
USAOs and many law enforcement agencies, including the Bureau of Alcohol,
Tobacco, Firearms and Explosives; the Drug Enforcement Administration; and the
Federal Bureau of Investigation. The revised information requests state: “FAILURE
TO RESPOND WITHIN 3 (THREE) WEEKS WILL BE TREATED AS EITHER TAKING NO
POSITION OR HAVING NO OBJECTION TO THE TRANSFER.” 96
Status: Closed.

96

In response to a working draft of this report, the Criminal Division stated that IPTU
instructs prosecutors and law enforcement agencies to respond to its inquiries within 14 not 21 days.
Although the early drafts of these documents used the 21-day response period, it was decided later
that 14 days was a reasonable period for response and could contribute to a faster overall processing
time.

50


APPENDIX 3

METHODOLOGY OF THE OIG STATUS REVIEW
For this status report, we reviewed whether the Department and its
components are effectively managing the treaty transfer program for foreign
national inmates. We reviewed federal laws and regulations; BOP program
statements; and BOP and IPTU policies, procedures, and guidelines. We also
analyzed BOP and IPTU data on the number of applications forwarded by the BOP to
the IPTU for transfer consideration and the number of inmates ultimately
transferred. Finally, we interviewed Department officials with the BOP and the
Criminal Division, as well as officials with the Department of State. Below, we
provide additional information related to the methodology of our review.
Data Analysis
Applications and Transfers
To determine the number of applications the IPTU received from the BOP and
the number of inmates ultimately transferred, we analyzed BOP and IPTU data on
applications and transferred inmates from FY 2011 through FY 2013. We requested
BOP data on all applications forwarded to the IPTU for each fiscal year and IPTU
data on all applications received from the BOP over the same period. We compared
the data provided by the BOP and the IPTU and found a number of discrepancies
between the datasets. We provided these discrepancies to the BOP and the IPTU
and requested that each component clarify the reasons for each discrepancy. The
reasons for discrepancies between BOP and IPTU data include:
•	 Not all re-applications were included in BOP data.
•	 There were keying errors (since corrected) in the BOP’s data system that
prevented inmates’ names from appearing on BOP reports on the number of
applications. 97
•	 The BOP and the IPTU counted inmates in different fiscal years.
•	 IPTU data on inmate applications included re-applications the Canadian
government submitted directly to the IPTU and therefore not included in the
BOP’s data. 98
97

When we requested clarification for applications reported by the OEO but not included in
BOP application data, the BOP responded: “There are no indications from BOP regarding how these
inmate’s applications were submitted to OEO. The easiest explanation would be that they were not
logged into BOP’s database, but the fact that SENTRY indicates they have the (Case Management
Activity) assignment(s) of ‘Treaty Transfer Ineligible’ or ‘Treaty Transfer Not Interested’ is
perplexing.”
98

Canadian inmates must complete a "Request for Transfer to Canada" form and the
"Information form in support of a request for transfer to Canada" to the Canadian government.

51


APPENDIX 3

Similarly, we analyzed BOP and IPTU data on the number of transferred
inmates from FY 2011 through FY 2013. We compared BOP and IPTU data and
found discrepancies between the datasets. We provided these discrepancies to the
BOP and the IPTU and requested that each clarify the reasons for each. In some
cases, the BOP later confirmed that inmates included in the IPTU’s data but not in
the BOP’s data actually had been transferred through the program. Additional
reasons for discrepancies between BOP and IPTU data include:
•	 An inmate identified as transferred actually withdrew the request and was
not transferred.
•	 Inmates identified as transferred were actually released to Immigration and
Customs Enforcement while their treaty transfer requests were pending
treaty nation approval.
•	 Incorrect release codes entered into the BOP’s SENTRY database resulted in
inmates being omitted from data provided to the OIG.
We found other discrepancies between BOP and IPTU data that did not affect
our analysis. For example, we found instances in which the BOP’s data indicated
that transferred inmates were citizens of countries that were not treaty nations or
that an inmate was transferred to the United States. 99 The IPTU later clarified the
citizenship of these inmates and confirmed that they were ultimately transferred
back to treaty nations. Finally, BOP and IPTU data contained different names for
the same transferred inmate. We were able to verify that each dataset listed the
same person using other identifiable information, including the inmate’s BOP
number.
Incarceration Costs
To determine the costs the Department incurred to incarcerate foreign
national inmates, we used BOP and IPTU data. The BOP provided cost estimates on
daily and annual costs for its institutions from FY 2005 to FY 2013. The IPTU
provided the specific dates for which each inmate’s application was pending a treaty
nation decision, denied, or withdrawn.
To calculate the cost of inmates denied transfer, we used the IPTU’s approval
date and treaty nation denial date to determine the duration of time in between.
From those dates, we calculated the number of days a prisoner was incarcerated
during each fiscal year (“fiscal days”). Using BOP cost data and IPTU dates, we
determined how much each inmate cost the Department to remain in BOP custody.

99

BOP Central Office officials told us that to eliminate confusion the BOP’s SENTRY database
has been revised to remove countries with which the United States has no prisoner transfer
agreement.

52


APPENDIX 3
By the same method we calculated the costs for inmates whose applications
were withdrawn or still pending a treaty nation decision. For cases withdrawn, the
fiscal days amounted to the time from the IPTU approving a case until the date of
application withdrawal. For cases pending adjudication, the fiscal days amounted to
the time the IPTU approved transfer until the time an inmate was released,
deceased, or the OIG received the data (February 2014). In the instances where
the duration extended to FY 2014, we applied the cost estimates for FY 2013. We
were unable to account for inmate transfers to a higher or lower security institution
during the course of our review.
Interviews
We interviewed BOP Central Office officials and staff, including the
Administrator, Assistant Administrator, and Senior Correctional Program Specialist
for the Correctional Programs Division; the Deputy General Counsel; the Chief of
Policy and Information Management; and the Acting Chief of the Labor Relations
Office. We also re-interviewed eight case managers we randomly selected from
those we interviewed at institutions we visited during our 2011 review. At the
Criminal Division, we interviewed the Deputy Assistant Attorney General, the OEO
Director and Deputy Director, and the IPTU Chief and Deputy Chief. We also reinterviewed six IPTU analysts we interviewed during our 2011 review. At the
Department of State, we interviewed the Director and an Attorney Advisor with the
Office of Legal Affairs, Overseas Citizens Services, Bureau of Consular Affairs.

53


APPENDIX 4

THE DEPARTMENT’S RESPONSE TO THE DRAFT REPORT


u.s. l><portmenl or Justl ••
eri",i"..1 [)ivision

w.._nelD""
AU8Wt 7. 2015

MEMORANDUM
To;

Michael E. Horowitz
Inspector General
U.S. Department of !"'tice

1am<.A. T)'T"11
Deputy Assistant lrupecto, 0.:0. ..1
Evaluation and Inspections Division

rtj;J

raul M. O·Brie"
Deputy A .. istant Attorney (k,..,.,,)
Subi_d ;

Response I<> the Office of !he InspecIOr Ger:eral Stlltus Report Revicwing the
[)"port",,,,,,'. Intern.,w.",1 J>rison<.r T ... ""fn ProW"",

TIle Department al'P""'ialeO the opportunity to ~ the ' IlIXImmendations and finding'
cootoined in the Office of the Inspector Gonotll! (OIO) S!aIUS Report on tbe Department'.
Inwnational PriS<.lIl<' Transfer Pl'OJIl"IIl (~lnInsfer program'). As acknowledged in !he Statu,
Report, since the OIG'. initial review of tbe 1n1lIsfer proiJWII in 2011. tbe Dcpanmcnt t...
expended considerable cfJon and made significant progresl to succesofull y add""", [H"eVio\13
ooncems raised by 1IIe OIG. lbe 010 fUI1heT focogniw/ that while the Deportment "has taken a
number of steps I<> inc"""", !he numbel of applications and i,..m>ve the managtn><:nt of the treaty
transfer program. racton< largely outside !he Department's direct control continue I<> significantly
limit the number offurcign national inmates ... ultimately tmru;fcrrcd.'· (Stlllus ReJXll1 at 25).

As the Still"" Report expressly acknowledges, ~Itloo voluntary nature of the tJansf.r
program, Ihe lack of treaty ogreemeots wilh all fo.-eign countries 1"<pl"tsentD;i by the f01"<ign
national inmate population in BOP CUSIOdy. and rt"Strictive erileria impooe<! by trealy natiOM
significantly limit tho number of forcign naliooaJ inmates eligible fo, lransfer OOfISide'otion."
(StotU$ Report at 5). The Dqwtmenl remains concemod, lowever, with lhe 010', conlinued
emphasis on !he notion thai I.... than one percent of inmates from moly countri", are ultim~tely
traruferred . This conclu,ion is distorltd .. it disregards the ract tna, a significant p<n:;Cncagc of
foreign national ;ornate • ...., ineligible for tIan$fcr bO$td on Irelly or _ utory restrictions. or. even
if e~gible. choose not I<> scek t"",sfe"T. In addition, as dioou"td funher helow, even those inmates
who are detennintd to be statutorily eligible to participale in thoe transfe, program may not he
suitable fOT uan<for. When ihe.«l constraints are properly ta.<en into tICCOUnt, 100 Depanmenn
overall transfer ,ale WIlS acmaUy 17 p<rcenlof e~gib l c and int~ed inmar •• in IT 2013. (Statuo
Repon al II). MoteO""', il should be noted that based OIl our mconls. Ihe Do:pa.nment·s overall
appro""] rate otapplication. by eligible. int.""ted inmalcO proceSS«! in FY 2013 "'" 36 percent.
but appro~imatcly half of tho"" inmates ""'''' not ultimatdy transferred for reas<>ns beyond the
Dopanment·s contro\.

54


APPENDIX 4


The I ~pa ... m. nl H .. "'.. de Significanl Enhan«men t. to tbe AdminlOfrotlon of lhe
In lern.llono lPrisoner Tran,f<r Prn!;J"'m in R •• pon.. 10 Previous O tG Reo.mm e ndolion.
In il!l SIAl", Report, the OIG detailed the mOllY actions thaI the Departm::nt ha$ !3ion to
improv<: thc administration of the tran.f~r program, indudin3 successfully closing 13 of thc 14
ora recommendalions issut<l in 2011 . As the O IG notes, "it avrears that changes \be Department
has made to \be managemenl of tho trealy tran.f<r progrnrn since our last lcview .l ave cootributed
to an inc",ase in the number ofinnalCS requesting and being found suitable f<>r 11'lII.fer.~ (Stalus
Report ot ii). BOP Iw improved il!l communication about the transfer program, increased
",,·a rm..., and provided funhcr mcOlli.ngful opportunilies 10 apply for transfer. For a:amp1c,
BOP Iw included lhe I""'.rec rrogram as pan of priooner orientation and mtpha,iud it in
.<UMequ.en1 program revie"'l with the pri......,-', c.ue manager, os well as trarulating all trclty.
",1.1ed documents into the language of treaty nati"".. Likewi .., lite Department's Internalional
Prisoner TlIlIlSfer Unit bo, !Olen" number of stepS to ensurt uniformity in rmking "'itobility
de\erminatio"., to encourage a forward-leaning view towards Il"8ruJfet. 10 ""I'".lle processing of
"",,"s, and to provide f<>r recoosidemt ion of decisions. A, the Status Kepot1 ackllOwlodges, 1Itese
. tcps ''rqm:$<;DI a meaningful etToT! to improve and to ensu", the consistent al'Plicalion of
sultablUty guldel~." (StalUil Rep<.>n aI20).
The !'u'pose or Ihe T realy Pl'tIgnom
In both the 20 II OIG rer<>rt ..,d the current Status Report, the 010 h'" dcscribeJ lhe
traIIsfer program as a mochanism ~ nxlucc prison costs and aUeviate prison overcrowdingand flu
criticized the Department for not making more effective use of the program. Allhough the
Department agrees that ancillary benefits of tho program include potcntial cost ... ings and
red!lC1ion in prison overcrowding, these we ... nolthe reasorul why Cong",.. QriginaiJy authoJized
the t",n~fcr program. The tf3l\Sfor prognun was cruNisllcd in 1977, p.muanllu Congnssiooal
enabling legislation codifiod 01 )g USC §§ 4100 el Jeq. COttgreS1l articulaled threo k~.lative
plllJlOS"S underlying thc ClttriO" of lhe tmnsfer progrnm: first, to f""iUtate rehabilitation of
offenders; second, to improv<: biiltcral ",Iatioll$ bctween I"",.ret noliOIl$; and (hird, to encourage
bumanitarian treatment of
AI the time of the hill', pusog., legislalolS were primarily
"",,,,em«! '00,,1 ""'""ring ,he ffit1m of Americ""" ioc....,<n1<d in po<>< conditio"" in fo... ign
prisons. Although the tmnsfel offoreign national prisoners has bad" modest, incremental imp;>ct
<>It U.S. prison costs, lhe tnmsf.,,- Jl"ogmm WlIS nevcr envisiotled OS a me""" to ,ignificantly ml,,",
the population of inmate< in U.s. prisons.

pri"''''''"''

The S\alUS Report suggesu thaI the Department has the In<ans to .ignifi<3ttly in<rease the
number of prisoners 1r0000fclTed from the United Stat.. each year bul is not malcing full use ofthc
tran,fer program he<:ause only D Mnall number of foreign nalional, arc actually transf=oo caclt
year. The StalU$ Report reaches lIli, concl ...ioo by measuring (he actual numbel- oflnlnsfcn thaI
occur against the lotal foreign national inmate populatioo from treaty nations _ roughly over
40.000 prisoners. ThIll calculation, bowever, igoo",. the fact that lite overwhelllling majority of
lhose inmoles are ineligible bftse<l on statute or treaty, uninlC1t:sltd in transfer, or ut1.'lUitoble for
nan,fer. Funbcm:lore. even those irtmatcs who ore approved for lran. f..- by the D<partment may
$Iill ha,,, th. ir application. denied or not octed upon by their heme country, furthCT roo,",i"g Ihe
fmal number oftransfcns that acttnlly oo<ur.
, H.R. RLr. No. 9l--120. at 26 ( 1917),

,,,,""ell '" tm

U.s.C C .A.N. ] 1<16, ]14H9.

,
55

APPENDIX 4


Muy Inrnot., from T"",ty Countries ar. Ineligib l. for Tran,f.r Hased DO Statutory fl r
Truty_Based R.. trktIOd.

A .ignificaot number of inmates are probibited from participating in the transfer program
due to .itIv:T statut<>ry or t~y-based restrictions. I'or example, Mexican national. woo have
be<:n con .. ictecl ""Idy of immigration crime. or who are serving life sent~ are ""dudtd from
transfer by the United States' bilateral treal)' with Mexico. l:Iocouse the majority of foreign
natiOMl priS01ltl'S in federal priOOflj are MfXitan nationals ond """'Y of the", otTcnde ... W<:re
convicted of immigration off<1l.'iO.'l, this treaty requirement $ U b.tantially red"""" the pool o f eligible
transfer candidal... In FY 2013, a large proportion of the 22,700 foreign national. that BOP
found iocligiblc for t""",fer were Mexican nationoIs convicted of immigration offense. ",,<I, os the
Slat ... Rep<>rt no"" \hi. factor alone likely =unted f'" a significant portion oflh<; total numbcr
of ineligible transfer e...didat"". (SIAIUS R<:port at 17). Other restrictions bar prisoDefS with I<:$s
than six months reft'lllining on their .. otence, Or with a pending oppeol. from transferring.

Mony lnmalo, From Tnaty CountM Do Not Wa nt to 'Tran, fer
Tho \Jan'fer I'fOI:r3.m i. volunlAry and requires the OOMenI oftlle pri~, ttt.. .. ntcncing
country, and tM admini<t<ring country. Thus, neither a pri""oer nor. receiving country CHII b.
compelled to proceed with a transfer e,'Cn if the United Stareo ..,.k, Doe. A significant proportion
of inmates !rom tre<ity countries arc oot considered for \Jansfer because they have indicated that
they arc oot intcrostod in scrvinj their ",monee in their bome country. In fact, out of a popUlation
of "vcr 40.000 inmate. from trenw transfer nations, a significant portion- erumated at mo<e than
40 pereent in FY 201) - indicated they were oot ime."s1ed in transfer when informed by HOP
about the t""",for program. Jkcaw;e the consent of the pri"" ... r i, a prerequisite for transf~r, a
sizeable group of priSODefS are eliminated on thi~ basis alone. Out of tlle o".r 40,000 inmates
from treaty countries incarcerated by BOP in I'Y 2013, the application> of 1.422 ",Iling and
eligible inmates we", fOJ'-'--arded to the Department for furil>er con,ide",tion.
Su itability CTit~ r i.Jo for Pr-iWfler Tran. f. rs ore Balled 011 Kehbil/tatioll, La ...
Publi. Safety, . nd Other Im p~rt'Dt Con. id .... tion.

EnfDr <e m~nt.

EveD if the BOP h,.. determined that 311 inmate is eligible to transfer. the Dcpanment must
carefully evaluate """h application to onsure lhai the pri'<Ol\er i. suilAble for tramfer. A , ignificant
number of inmat .. 1m: not. For """",pie, in FY 2013, of the 1,422 applications by in!cJ'csted and
el igible inmates forwonled from BOP to the Department'. Intern.tional Prisoner Transfer Unit.
most were deemed unsuitable for transfer. Thi. i. bcca""" the t11l1l1lfer of an inmate requires
bal.nci"3 ..veml facto," irICludi~ public saf<1)', consideration for victim .. law ..,foroement
intereoto, OS well as the reh.NlilAtion of the inmate.'

, Tho focton

_Il10 n.portm ..t """,-"100_, 1h< =n&tb <>fhmily ond other "",ialliH" tho "",t,,,,,,",, .,,d

.-..::<,..... ~: 0<C<f0"""'" of",,,,,,,,,;!)ility Il>o-Iho crime; ~ioo with low .nf""".....: eriminlll hi>t"'];

_ _ ~r,t.o om..•• ;Iho pri><Jo<o-' . mnainiDl ",imi"t1 !in to Iho ".!«><ini ond r«ri.u.g _ _ ; ..-he<ha
tIw: prioonor' • .,. i . _~ ~ J«j.nd in pe~ or I'uIur< n ials or io=tiptioo>: I"""ible ""'!«><ins ~i""'- ;
wh<Iba tr.." fer ""ul<l f.<il ita!.!be prumeo-', .... wtd liSOCwioo witH;, ";mh..I ..""" i&tco in h~ I>ome
""""try; interoou orvidim~ ud 1;fe.thmo<oI.", m",.... oflho p<i>oo>a or rn. imme<lia,. famoty.

,
56

APPENDIX 4


FOO" exam"le, be<a_ the Jll.If1Xl$< of the 1",,,,,feT progJam i, to rehabiliUlle lhe pri",,1ICI" in
hi. ho~ ceuntry, in a familiar c~lture and noaJ f",nily and friend., t"",sfe' may be denied if the
priso".,. has II<> actual cennection or tie, 10 the roquested country, or if the majority oh prisoner's
impnrtarll oocial cnnlaCt. remain here, A lart;e percentage of Mexican natiotl/ll applicant>. for
example, are denied because they have become domiciliaries of lhe United States. In fac t, the
Mexican bilalerallrealy expressly exclude, the tran,fer of domiciliaries, Others may be denied
be<a""" tbcir PreseJlCC is roquirod for lCSIimony or in;jJl OII3oillj! criminal inye.IiBation. There
...., also siW'ificant »\lblic saftly concerns that must he cnnsiokn:d IS well. If a prisoner has a
rerord of m ultipl. illegal cnltie! into and rrmo,... ls from the United SI.nc$ and i. likely 10 return
to the United States a fter t"""fer, that inmate may be d.<med unsuitable. Fitl/llly, be<:ause a
lransferred ,entence i, administered according to lhe laws and procedures oftbo """,ioing colDluy
(including provisions for conditional release), in some cases, the inl"""'" of jUSlice, i".,luding
impooct on victims, may not be ful\hered if an offer>det will be released early and """e a
signific3Jltly shortcr sentence abroad than imposed in the United States.
Employing these guidelines in a prindplod, reasoned, timely, and ce...i.telll manne', the
Department approved apprmcimately 36 percent of applications by .~gible inte~ted illmale;s
processed in FY 20 13.

Treaty Coun ,ri.. May Abo n e..y Tnn, fer nr [)oIay 'he Proces, lng of Appll.all",,,. Tho.
Further Redudng The Numher ..fT .. D. r. ...

Even after the Deparunem has approved !he app~cat ioo of a willing, eligible, and suitabk
inmate, the receiving country may "'ill deny the 1Jan,fer. The Sial'" Report has aclrnov.ledgcd
thaI ",ven if the II'TU increase. tho "umbor of iumat.. approved for transfeT, any cost savings or
n:d""tion in the prison populMion i$ C(lmingeTIt up<>n tho trealy nat ion, approving "'quests...."
(Status Report at 36). Many ceunlties, most notably Mexico and Canr>da, deny significant
nwnbe" ofthcir nalionals for transfer. while others fail to p,mide the DcparIm!:nt with a deci5ioll
on cases approved by the United S1Il\ell. Moreover, decisions"", sometimes not made Unlil only
""vera) months remain 01\ Ibc ..menee, aI which poinl lnUI,fer become. impractical. Despit.
the$e limitations. as thee Status Rcpon indicalc.!. when calculated based on inmates who are bolh
eligible and interested and whose applications ''',f<; forwarded by BOP. 17 p<=nt ofinmates were
ultimately transferred. (Status Report at II).
Th e D."artm ent COd CU ... In lht ReflI mmoodal ioo. Sot Fu.'h by tb~ St.tu. R<port
The Ocpartmrnt remain. C(l!flmi1ted to increasing the numbo, of approved transfers as a
result of ongoing improvements 10 lhe adrninistrntion of the tnl1lsfcr program. Since tbe issuance
of the 2011 Report. the Ocpartment has worked oollabonttive1y with the 0 10 to implementall of
iu prior recommcoomiO!1.'! and will centinue to do so. The Depanm""l fully C(lnC .... with all five
recommendations as set fort h in tho SIaIUS Repon. ",hlch arc de';gned to improve both the
management and effect;...,., .. of tbe mosf", prognun and we bave already takCD Sleps to
implement lhem.

•
57

APPENDIX 5

OIG ANALYSIS OF THE DEPARTMENT’S RESPONSE
This report provides the status of the recommendations from the Office of
the Inspector General’s (OIG) previous review of the treaty transfer program in
2011, and contains five additional recommendations. 100 New recommendations 1
and 2 are directed to both the BOP and the Criminal Division. Recommendations 3
and 4 are directed only to the Criminal Division. Recommendation 5 is directed to
the Office of the Deputy Attorney General. The OIG provided a formal draft of this
status report to the Department of Justice’s (Department) Criminal Division, the
Federal Bureau of Prisons (BOP), and the Office of the Deputy Attorney General.
The Criminal Division responded to the report on behalf of the Department of
Justice (Department), including the BOP and the Office of the Deputy Attorney
General. The Department’s response (see Appendix 4) combined general
comments and responses to this report’s five recommendations. In its response to
the working draft of this report, the Department had provided comments describing
actions taken or planned in response to the OIG’s recommendations. We discuss
the OIG’s analyses of the Department’s responses, as well as the actions necessary
to close the recommendations, below.
The Department’s General Comments
Department Comment: The Department remains concerned with the OIG's
continued emphasis that less than one percent of inmates from treaty countries are
ultimately transferred. The Department stated that the OIG’s conclusion disregards
that a significant percentage of foreign national inmates are ineligible for transfer
based on treaty or statutory restrictions, or, if eligible, choose not to seek transfer,
and that even those inmates who are determined to be statutorily eligible may not
be suitable for transfer. When these constraints are taken into account, the
transfer rate was 17 percent of eligible and interested inmates in FY 2013. The
Department states that based on its records the overall approval rate of
applications by eligible, interested inmates processed in FY 2013 was 36 percent,
but approximately half of these inmates were not ultimately transferred for reasons
beyond the Department's control.
OIG Analysis: The OIG determined the percentage of ultimately transferred
inmates based on data provided by the BOP and the Office of Enforcement
Operations’ (OEO) International Prisoner Transfer Unit (IPTU). It is correct that less
than 1 percent were transferred. In FY 2013, 245 foreign national inmates from
treaty nations were ultimately transferred, representing less than 1 percent (0.6
percent) of the 42,954 foreign national inmates from treaty nations in BOP custody.
The OIG recognizes that there are many reasons for the low transfer rate, including
100

DOJ, OIG, The Department of Justice’s International Prisoner Transfer Program, Evaluation
and Inspections Report I-2012-02 (December 2011).

58


APPENDIX 5
those the Department cited, which are discussed in this status report. In addition,
the OIG specifically acknowledges the Department’s interpretation of the transfer
rate in the report. However, as discussed above, the OIG correctly determined that
less than 1 percent of all inmates from treaty nations are ultimately transferred
based on data the BOP and the IPTU provided. Overall, despite the reasons the
Department cited for the low transfer rate, all of which we discuss in the status
report, the fact remains that very few inmates from treaty nations are transferred
to their home countries each year.
Department Comment: The Department stated that the OIG detailed the
many actions that the Department has taken to improve the administration of the
transfer program. The BOP has improved its communication about the transfer
program, increased awareness, and provided further meaningful opportunities to
apply for transfer. The IPTU has taken a number of steps to ensure uniformity in
making suitability determinations, to encourage a forward-leaning view towards
transfer, to expedite processing of cases, and to provide for reconsideration of
decisions.
OIG Analysis: The report discusses many actions that the Department has
taken to improve the administration of the treaty transfer program since the OIG’s
first report in 2011. However, the OIG believes the Department can still take a
number of discrete steps to improve the program’s effectiveness. For example, and
perhaps most importantly, Department leadership can work with the treaty transfer
partners, including the Department of State and foreign national representatives, to
develop and support a strategy to increase the number of foreign national inmates
ultimately transferred.
Department Comment: The Department stated that, in both the 2011 OIG
report and the current Status Report, the OIG has described the transfer program
as a mechanism to reduce prison costs and alleviate prison overcrowding and has
criticized the Department for not making more effective use of the program. The
Department agrees that ancillary benefits of the program include potential cost
savings and reduction in prison overcrowding, but stated that these were not the
reasons why Congress originally authorized the program. Congress, which at the
time of the bill's passage was primarily concerned about securing the return of
Americans incarcerated in poor conditions in foreign prisons, articulated three
legislative purposes underlying the creation of the program: (1) facilitate
rehabilitation of offenders; (2) improve bilateral relations between transfer nations;
and (3) encourage humanitarian treatment of inmates.
Also, the OIG suggests that the Department has the means to significantly
increase the number of inmates transferred each year but is not making full use of
the program because only a small number of foreign nationals are actually
transferred each year. The OIG reaches this conclusion by measuring the actual
number of transferred inmates against the number of inmates from treaty nations
(over 40,000). The OIG’s calculation ignores the fact that the majority of those
inmates are ineligible based on statute or treaty, uninterested in transfer or
unsuitable for transfer, and that even inmates who are approved for transfer by the
59


APPENDIX 5

Department may still have their applications denied or not acted upon by their
home country.
OIG Analysis: While outside of the scope of this status review, the OIG
notes that the IPTU approved 152 of 158 applications (96 percent) from American
national inmates requesting transfer back to the United States from FY 2011
through FY 2013. By contrast, the IPTU approved only 33 percent of applications
from foreign national inmates requesting transfer out of the United States. As
reflected in the OIG’s 2014 report on the Top Management Challenges facing the
Department, the OIG believes that the Department continues to face two
interrelated crises in the federal prison system. 101 First, the Department projects
that in the years ahead the costs of the federal prison system will continue to
increase, consuming a large share of the Department’s budget. Second, federal
prisons remain significantly overcrowded and therefore face a number of important
safety and security issues. The Department agrees that ancillary benefits of the
treaty transfer program include potential cost savings and reduction in prison
overcrowding. The OIG continues to assert that a more effective treaty transfer
program would advance the purposes of the program as Congress articulated it in
1977 and assist the Department in addressing the crises it faces today.
As discussed above, the OIG reached its conclusion regarding the number of
ultimately transferred inmates based on data the BOP and the IPTU provided. We
examined in detail the circumstances that continue to limit the number of foreign
national inmates from treaty nations who are transferred. This includes the failures
of treaty nations to accept inmates whom the United States has approved for
transfer. The OIG also discussed that while OEO and IPTU officials consistently
engage treaty partners and annually report to Congress on the difficulties of
securing more transfers and timely adjudications, senior Department leadership has
not directly assisted these officials. Several Department of Justice and Department
of State officials told us that the transfer program would become more effective
only if senior Department of Justice leadership became more involved.
Department Comment: The Department stated that a significant number
of inmates are prohibited from participating in the transfer program due to either
statutory or treaty-based restrictions. Mexican nationals, for example, who have
been convicted solely of immigration crimes or who are serving life sentences are
excluded from transfer by the United States' bilateral treaty with Mexico. Because
the majority of foreign national inmates in federal prisons are Mexican nationals
and many of these offenders were convicted of immigration offenses, this treaty
requirement substantially reduces the pool of eligible transfer candidates. Other
restrictions bar inmates with less than six months remaining on their sentence, or
with a pending appeal, from transferring.

101

DOJ, OIG, Top Management and Performance Challenges Facing the Department of Justice
- 2014, https://oig.justice.gov/challenges/2014.htm.

60


APPENDIX 5

OIG Analysis: The report acknowledges that statutory and treaty
restrictions affect the transfer eligibility of foreign national inmates. As the
Department stated, the OIG specifically notes that Mexican nationals convicted
solely of immigration crimes are excluded from transfer by the United States'
bilateral treaty with Mexico. The OIG also discusses OEO and IPTU officials’ annual
reports to Congress on behalf of the Department that describe many of the
circumstances that limit the treaty transfer program’s effectiveness.
Department Comment: The Department stated that the transfer program
is voluntary and requires the consent of the inmate, the sentencing country, and
the administering country. Therefore, neither an inmate nor a receiving country
can be compelled to proceed with a transfer even if the United States seeks one. A
significant proportion of inmates from treaty nations are not considered for transfer
because they have indicated that they are not interested in serving their sentence
in their home country. Out of over 40,000 inmates from treaty nations, more than
40 percent in FY 2013 indicated they were not interested in transfer. Because the
consent of the inmate is a prerequisite for transfer, a sizeable group of inmates are
eliminated on this basis alone. Of the over 40,000 inmates from treaty nations
incarcerated by BOP in FY 2013, the applications of 1,422 willing and eligible
inmates were forwarded to the Department for further consideration.
OIG Analysis: In Appendix 1 of this status report, the OIG delineates all
transfer requirements, including the requirement that the inmate, the sentencing
country, and the receiving country must all consent to the transfer. In body of this
status report, the OIG discusses the number of inmates from treaty nations who
are not interested in transfer and includes the percentage referenced by the
Department, as well as the number of applications the BOP forwarded to the IPTU
for consideration. As the Department points out, a significant proportion of inmates
from treaty nations are not considered for transfer because they have indicated that
they are not interested in serving their sentence in their home country. As such,
the OIG recommends that the BOP and the Criminal Division consider whether
other steps are necessary to further inform eligible but uninterested inmates about
the benefits of the program and determine what, if anything, the Department can
do to address the reasons eligible inmates are not interested in transfer.
Department Comment: The Department stated that even if the BOP has
determined that an inmate is eligible to transfer, the Department must carefully
evaluate each application to ensure that the inmate is suitable for transfer. A
significant number of inmates are not suitable because the transfer of an inmate
requires balancing several factors including public safety, consideration for victims,
law enforcement interests, as well as the rehabilitation of the inmate. For example,
because the purpose of the program is to rehabilitate the inmate in his home
country, transfer may be denied if the inmate has no actual connection or ties to his
home country, or if the majority of an inmate's important social contacts remain in
the United States. Also, a large percentage of Mexican nationals are denied
because they have become domiciliaries of the United States, and the bilateral
treaty with Mexico expressly excludes the transfer of domiciliaries. Other inmates
may be denied because their presence is required for testimony or an ongoing
61


APPENDIX 5
criminal investigation. In addition, inmates may be unsuitable for transfer because
of multiple illegal entries into and removals from the United States and is likely to
return after transfer. Finally, because a transferred sentence is administered
according to the laws and procedures of the receiving country (including provisions
for conditional release), in some cases, the interests of justice, including impact on
victims, may not be furthered if an inmate will be released early and serve a
significantly shorter sentence abroad than imposed in the United States.
OIG Analysis: The report states that the IPTU determines the suitability of
an inmate for transfer based on factors such as views of the prosecutor, law
enforcement concerns about the inmate, the likelihood of the inmate’s social
rehabilitation, and the possibility that the inmate would return to the United States.
In determining whether an inmate is suitable for transfer, the IPTU provides its
analysts with guidelines that govern how they are to evaluate transfer requests.
In this review, the OIG does not evaluate the IPTU analysts’ substantive decisions
on transfer requests. Rather, in the 2011 report, the OIG found that the IPTU’s
suitability determinations were inconsistent and resulted in disparate treatment of
inmates in similar circumstances. The OIG based that conclusion on interviews with
OEO and IPTU officials and analysts, as well as reviews of 511 IPTU case files. In
this status review, the OIG found that OEO and IPTU management had taken a
number of steps to improve the consistency of suitability determinations. However,
to improve the effectiveness of the treaty transfer program, we recommend that
the Criminal Division review the data to determine why the IPTU does not approve
more eligible inmates and consider whether further revisions to the IPTU’s
guidelines or other steps would facilitate such approvals.
Department Comment: The Department stated that after the application
of a willing, eligible, and suitable inmate is approved, the receiving country may still
deny the transfer. Many countries, most notably Canada and Mexico, deny
significant numbers of their nationals for transfer, while others fail to provide the
Department with a decision on cases approved by the United States. Decisions are
sometimes not made until only several months remain on the sentence, at which
point transfer become impractical. Despite these limitations, 17 percent of inmates
were ultimately transferred.
OIG Analysis: The limitations on the number of inmates ultimately
transferred are discussed in the OIG’s 2011 report and at length in this status
report, specifically including Canada’s and Mexico’s actions in response to inmate
applications the Department approved for transfer. The OIG also discusses OEO
and IPTU officials’ efforts to mitigate these limitations, as well as the difficulties
these officials encounter when attempting to secure more transfers and timely
adjudications. Finally, as discussed above, the OIG determined that less than
1 percent of inmates from treaty nations were ultimately transferred based on data
the BOP and the IPTU provided, though the OIG also acknowledges the
Department’s position that 17 percent of inmates who were eligible, interested, and
forwarded were transferred.

62


APPENDIX 5

The Department’s Response to Recommendations
Recommendations for the BOP and the Criminal Division
Recommendation 1: Regularly exchange, and reconcile as necessary, data
on foreign national transfer requests: those determined eligible, approved, denied,
and ultimately transferred from Bureau of Prisons custody.
Department Response: The Department concurred with the
recommendation, stating that BOP will provide monthly data to the OEO and the
OEO will reconcile all the numbers at the end of each fiscal year. Also, the OEO
continues to monitor and instruct its employees to ensure they enter data correctly.
OIG Analysis: The Department’s actions are responsive to the
recommendation. By February 19, 2016, please provide copies of the monthly data
the BOP provides to the OEO, a summary of the OEO’s efforts to reconcile any
disparities between BOP and IPTU data, and a description the OEO’s efforts to
monitor and instruct its employees to ensure they enter data correctly.
Status: Resolved.
Recommendation 2: Consider whether other steps are necessary to
further inform eligible but uninterested inmates about the benefits of the treaty
transfer program and what, if anything, the Department can do to address the
reasons eligible inmates are not interested in transfer.
Department Response: The Department concurred with the
recommendation, stating it is committed to doing what it reasonably can to ensure
that eligible inmates know about the availability of the transfer program. The
Department stated that, although it would be neither practical nor productive for
IPTU staff to scan SENTRY records for suitable candidates, there are positive
actions that the Department can take to raise the profile of the transfer program in
federal prisons. The BOP and the OEO will work on a joint brochure to distribute to
foreign national inmates in federal custody. Also, the OEO plans to redistribute its
letters to federal public defenders and criminal defense organizations to remind
them of the availability of the transfer program.
OIG Analysis: The Department’s actions are responsive to the
recommendation. However, the OIG believes that the BOP could assist the OEO
and the IPTU with data for analysis on inmates it has deemed eligible, as well as
reasons why inmates are not interested in transfer. The OIG encourages OEO and
IPTU officials to discuss with the BOP what data would be useful for identifying
potentially suitable inmates for transfer and whether that data is available from the
BOP. In addition, OEO and IPTU officials should discuss with the BOP what data can
be obtained regarding the reasons why eligible inmates are not interested in
transfer so that the Department can determine what, if anything, can be done to
address these reasons. By February 19, 2016, please provide a copy of the joint
BOP/OEO brochure, as well as copies of letters redistributed to federal public
63


APPENDIX 5

defenders and criminal defense organizations to remind them of the availability of
the transfer program.
Status: Resolved.
Recommendations for the Criminal Division
Recommendation 3: Monitor staffing levels at the International Prisoner
Transfer Unit and consider whether its resources are appropriate to enable them to
timely review transfer applications.
Department Response: The Department concurred with the
recommendation, stating that that when the OIG last visited the IPTU there was a
large backlog of cases that the IPTU has since reduced. Although the Department
states that the IPTU does not currently need additional resources, Criminal Division
management will continue to monitor the IPTU’s workload closely to ensure that the
IPTU processes transfer cases in a timely manner and is appropriately staffed using
established budgetary processes.
OIG Analysis: The Department’s actions are responsive to the
recommendation. In this status report, the OIG acknowledges the Criminal
Division’s progress in eliminating the backlog of cases pending the IPTU’s transfer
decision. Also, the OIG recognizes the Criminal Division’s efforts to monitor the
IPTU’s workload to ensure cases are processed in a timely manner. However, the
OIG believes the Criminal Division should consider additional permanent staff for
the IPTU so that, in addition to current responsibilities, the IPTU can further
improve the effectiveness of the transfer program, as described in this status
report. By February 19, 2016, please provide a summary of how the Criminal
Division monitors the IPTU’s workload and whether the IPTU needs additional
permanent staff to further improve the effectiveness of the transfer program.
Status: Resolved.
Recommendation 4: Review the data to determine why more eligible
inmates are not approved for transfer, and consider whether further revisions to the
International Prisoner Transfer Unit’s guidelines or other steps would facilitate such
approvals.
Department Response: The Department concurred with the
recommendation, stating that on a regular basis the Criminal Division will review
the OEO’s suitability guidelines to ensure they are not unnecessarily restrictive.
The OEO has instituted procedures and guidelines to ensure that suitability
decisions are correctly made and that the decisions are consistent with and further
the goals of the transfer program. The OEO regularly provides statistics about
these decisions to the Office of the Assistant Attorney General.
OIG Analysis: The Department’s actions are responsive to the
recommendation. By February 19, 2016, please provide a description of the
64


APPENDIX 5
Criminal Division’s review of the suitability guidelines, including frequency and any
steps taken to ensure the IPTU makes correct suitability decisions and the
guidelines are not unnecessarily restrictive, as well as copies of statistics about OEO
decisions that are provided to the Office of the Assistant Attorney General.
Status: Resolved.
Recommendation for the Office of the Deputy Attorney General
Recommendation 5: Actively support a high-level working group with its
treaty transfer partners, including the Department of State, and bilateral meetings
with foreign national representatives, when necessary, to develop and support a
strategy to facilitate the transfer of more foreign national inmates from the custody
of the Bureau of Prisons.
Department Response: The Department concurred with the
recommendation, stating that Criminal Division leadership will engage strategically
with foreign partners that have low transfer approval rates in an attempt to
increase the number of transfers authorized by those treaty partners. Also,
Criminal Division leadership will continue efforts to identify opportunities to engage
with such strategic treaty partners and to solicit opportunities for senior
Department officials, such as the Attorney General, Deputy Attorney General, or
Assistant Attorney General, to encourage their counterparts in these countries to
increase their approvals. Finally, the Criminal Division intends to have a Deputy
Assistant Attorney General meet with foreign counterparts from Mexico, Canada,
and other designated countries to discuss ways to increase the number of foreign
nationals transferred from BOP custody.
OIG Analysis: The Department’s actions are partially responsive to the
recommendation. The OIG believes that the Department’s response represents a
meaningful attempt to facilitate the transfer of more foreign national inmates from
BOP custody. However, the Department’s response does not describe the creation
of a high-level working group, efforts to develop a strategy, or efforts to engage the
Department of State with the active support of Department leadership. The OIG
believes that the challenges associated with facilitating the transfer of more foreign
national inmates approved by the Department requires a plan developed and
supported by a high-level working group in consultation with its treaty transfer
partners, including the Department of State, actively supported by Department
leadership. Please clarify whether the Department intends to develop such a plan.
Also, please provide a description of how Criminal Division leadership engaged
“strategically” with foreign partners whose transfer approval rates are low. In
addition, please identify the opportunities identified for senior Department officials,
such as the Attorney General, Deputy Attorney General, or Assistant Attorney
General, to engage with treaty partners and encourage their foreign counterparts to
increase their approvals and describe the outcomes of those efforts. Finally, please
identify all engagements between the Criminal Division’s Deputy Assistant Attorney
General and his foreign counterparts from Mexico, Canada, and other designated
65


APPENDIX 5

countries and describe the outcome of these engagements. Please respond to the
above requests by February 19, 2016.
Status: Resolved.

66


The Department of Justice Office of the Inspector General
(DOJ OIG) is a statutorily created independent entity
whose mission is to detect and deter waste, fraud,
abuse, and misconduct in the Department of Justice, and
to promote economy and efficiency in the Department’s
operations. Information may be reported to the DOJ
OIG’s hotline at www.justice.gov/oig/hotline or
(800) 869-4499.

Office of the Inspector General
U.S. Department of Justice
www.justice.gov/oig