Department of Corrections and Community Supervision

Rules & Regulations

Transfer of Foreign Nationals (Sections 130.1(b), 130.2(c), (d), (e), (f)(2), (g), (i) and (j) of 7 NYCRR)

Date filed with the Department of State (DOS): 02/22/2011

DOS #: COR-10-11-00003

Date adopted: 06/01/2011

Description: To provide clarity regarding eligibility requirements, revise terminology, and to update an employee job title.

TEXT OF RULE

The Department of Correctional Services amends the following sections of 7NYCRR, Part 130: 130.1(b), 130.2(c), 130.2(d), 130.2(e), 130.2(f)(2), 130.2(g), 130.2(i) and 130.2(j).

Section 130.1(b) is amended as follows:

(b) Correction Law, section 5(4) authorizes the commissioner to convert the sentence of a person serving an indeterminate sentence, except for a person serving a sentence with a maximum term of life imprisonment, [for one with a life term maximum] to a determinate sentence equal to two-thirds of the maximum or aggregate maximum term imposed where such conversion is necessary to make the person eligible for transfer to Federal custody for transfer to foreign countries under treaties that provide for voluntary transfers.

Section 130.2 (c) is amended as follows:

(c) Application.
(1) An inmate who wishes to be considered for voluntary transfer must complete and sign the transfer request form and forward it to the facility superintendent.
(2) Upon receipt, the superintendent shall forward a copy to the executive deputy commissioner[ and counsel].
(3) Upon assessment of eligibility, the executive deputy commissioner , or designee [and counsel]shall forward the request to the commissioner, or designee, along with a recommendation and copies of:
(i) the inmate's request;
(ii) sentence conversion certificate (see subdivision (d) of this section);
(iii) a copy of the sentence and commitment order;
(iv) a copy of the most recent legal date computation printout;
(v) a copy of the statute(s) under which the inmate was convicted;
(vi) a copy of the final order of deportation against the inmate from the U.S. Immigration and Customs Enforcement ;
(vii) description of the inmate's intake interview;
(viii) inmate family and residence information; and
(ix) any other forms or information that may be required by the foreign country or treaty.

Amend section 130.2 (d) as indicated below:

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

The note after section 130.2(e) is amended as follows:

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


Section 130.2(f)(2) is amended as follows:

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

Section 130.2(g) is amended as follows:

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

Section 130.2(i) is amended as follows:

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

Section 130.2 (j) is amended as follows:

(j) Qualifications for transfer to foreign countries.
(1) The inmate must be a citizen of the receiving country.
(2) The inmate must be convicted and sentenced to a term of imprisonment [which means there can be no outstanding appeals of conviction].
(3) The inmate must not be committed solely for a military or immigration offense.
(4) The inmate must have served at least one-half of the minimum term and have at least one year [six months] of the instant sentence remaining to be served at the time of request for transfer[ and must not be serving a sentence with a maximum of life].
(5) The inmate must have no pending proceeding by way of appeal or collateral attack upon the instant conviction or sentence.
(6) The inmate must be convicted of a crime which is generally punishable as a crime under the laws of the other country.
(7) The inmate, the commissioner [New York], the United States Department of Justice , and the receiving country must all consent to the inmate's transfer.
(8) The inmate must have received an order of deportation from the U.S. Immigration and Customs Enforcement [Naturalization Service].

Changes in the proposed text are indicated by underlining new text and [bracketing] text to be deleted. Rules that are new are presented as regular text without underlining or brackets. New and/or repealed rules are noted in the description heading at the top of the document.

The complete listing of New York Codes, Rules, and Regulations (NYCRR) is available online through the NYS Department of State website.