The U.S. Code - Title 8 - Chapter 12 - § 1231 (accessed Aug. 23, 2007), entitled "Detention and Removal of Aliens Ordered Removed," mandates:
"(A) In general:
...the Attorney General may not remove an alien who is sentenced to imprisonment until the alien is released from imprisonment. Parole, supervised release, probation, or possibility of arrest or further imprisonment is not a reason to defer removal.
(B) Exception for removal of nonviolent offenders prior to completion of sentence of imprisonment:
The Attorney General is authorized to remove an alien in accordance with applicable procedures under this chapter before the alien has completed a sentence of imprisonment ...in the case of an alien in the custody of the Attorney General, if the Attorney General determines that the alien is confined pursuant to a final conviction for a nonviolent offense (other than an offense related to smuggling or harboring of aliens)... and the removal of the alien is appropriate and in the best interest of the United States; or in the case of an alien in the custody of a State (or a political subdivision of a State), if the chief State official exercising authority with respect to the incarceration of the alien determines that... the alien is confined pursuant to a final conviction for a nonviolent offense the removal is appropriate and in the best interest of the State, and submits a written request to the Attorney General that such alien be so removed."
The U.S. Government Accountability Office (GAO), in an Apr. 7, 2005 report to Congress entitled "Information on Criminal Aliens Incarcerated in Federal and State Prisons and Local Jails," informed:
"When the United States incarcerates criminal aliens--noncitizens convicted of crimes while in this country legally or illegally--in federal and state prisons and local jails, the federal government bears much of the costs. It pays to incarcerate criminal aliens in federal prisons and reimburses state and local governments for a portion of their costs of incarcerating some, but not all, criminal aliens illegally in the country through the Department of Justice's State Criminal Alien Assistance Program (SCAAP) managed by the Bureau of Justice Assistance (BJA). Some state and local governments have expressed concerns about the impact that criminal aliens have on already overcrowded prisons and jails and that the federal government reimburses them for only a portion of their costs of incarcerating criminal aliens...
At the federal level, the number of criminal aliens incarcerated increased from about 42,000 at the end of calendar year 2001 to about 49,000 at the end of calendar year 2004--a 15 percent increase. The percentage of all federal prisoners who are criminal aliens has remained the same over the last 3 years--about 27 percent. The majority of criminal aliens incarcerated at the end of calendar year 2004 were identified as citizens of Mexico. We estimate the federal cost of incarcerating criminal aliens--Bureau of Prisons (BOP)'s cost to incarcerate criminals and reimbursements to state and local governments under SCAAP--totaled approximately $5.8 billion for calendar years 2001 through 2004."
The U.S. Government Accountability Office (USGAO), in an Oct. 1998 report entitled "Criminal Aliens - INS' [Immigration and Naturalization Service] Efforts to Remove Imprisoned Aliens Continue to Need Improvement," stated:
"several major laws were passed between 1986 and 1996 that provided for the initiation of removal proceedings for certain criminal aliens while they were incarcerated, expanded the types of crimes for which aliens could be deported, and sought to facilitate the expeditious removal of those aliens found to be deportable...
Currently, INS [U.S. Immigration and Naturalization Service] may release deportable criminal aliens, including aggravated felons, from custody only if the aliens were lawfully admitted to the United States, or were not lawfully admitted to the United States but the designated country of removal will not accept the aliens, and the aliens satisfy the Attorney General that they will not pose a danger to the safety of other persons or of property and that they are likely to appear for any scheduled proceeding."
The U.S. Department of State (USDOS), in the section entitled "Prisoner Transfer Treaties" on its website (accessed Aug. 8, 2007), offered the following:
Under U.S. law [U.S. Code - Title 18 - Chapter 306 - § 4100 (PDF) 46 KB] foreign nationals convicted of a crime in the United States, and United States citizens or nationals convicted of a crime in a foreign country, may apply for a prisoner transfer to their home country if a treaty providing for such transfer is in force between the United States and the foreign country involved. The United States has 12 bilateral prisoner transfer treaties in force in Bolivia, Canada, France, Hong Kong S.A.R., Marshall Islands, Mexico, Micronesia, Palau, Panama, Peru, Thailand and Turkey.
In addition, the United States is a party to two multilateral prisoner transfer treaties: The Council of Europe Convention on the Transfer of Sentenced Persons (Strasbourg Convention), [and] The Inter-American Convention on Serving Criminal Sentences Abroad (OAS [Organization of American States] Convention). The Convention entered into force for the U.S on June 24, 2001. [it] is in force in the following countries: Brazil, Canada, Chile, Costa Rica, Mexico, Nicaragua, Panama, the United States and Venezuela."
Margaret H. Taylor, JD, Professor of Law at Wake Forest University School of Law, and T. Alexander Aleinikoff, JD, former Senior Associate at the Carnegie Endowment for International Peace, in a 1998 Carnegie Endowment publication entitled "Deportation of Criminal Aliens: A Geopolitical Perspective," wrote:
"Criminal aliens' first contact with the INS now usually comes while they are incarcerated in a state prison. Through an enhanced Institutional Hearing Program (IHP), states cooperate with the INS to commence deportation proceedings for foreign-born inmates before they get out of prison... As the Institutional Hearing Program becomes more effective, state prison systems increasingly are releasing foreign-born offenders directly to the custody of the INS. This process ensures that many more criminal aliens are removed from the country. It also might motivate states to release inmates who would otherwise remain incarcerated in exchange for immediate deportation.
Criminal aliens who have been sentenced to a term of incarceration in the United States cannot be removed by the INS until they are released from prison. But the new immigration law explicitly authorizes the INS to deport nonviolent offenders who are not otherwise eligible for release from incarceration when early removal 'is appropriate and in the best interest' of the United States or the state where the alien is incarcerated."