While by no means an ordinary practice, there are limited situations where an individual who is not a United States citizen who is convicted of a criminal offense may be removed to his/her native country prior to completion of the criminal sentence. It is not available in every state but where it is available, it is coordinated through the ICE Rapid REPAT program, a smaller component of the ICE ACCESS (Agreements of Cooperation in Communities to Enhance Safety and Security) initiate. The three main elements of the program, as outlined on ICE’s fact sheets, are the following:
· In states where it is available, only aliens incarcerated in state prison who have been convicted of non-violent offenses would be eligible. They would agree to terms of early conditional release if they have a final order of removal and agree not to return to the United States
· Eligible aliens would have to agree to give up any right to appeal their state conviction(s) and must have a final order of removal
· The criminal alien must be at least 18 years of age and neither a native or citizen of the United States
· The participating state certifies that removal of the criminal alien is appropriate and in the best interest of the state
· The criminal alien has exhausted, or has freely and voluntarily waived, all administrative and judicial appellate rights to contest the criminal conviction
· The criminal alien agrees in writing to fully cooperate in obtaining a travel document
· If the alien re-enters the US, the state statute must provide for revocation of parole and confinement for the remainder of the original sentence. Moreover, aliens may be prosecuted for the additional federal crime of illegally reentering the United States, which carries very severe penalties.
What are the benefits of Rapid REPAT?
There are clear benefits to both the alien as well as to law enforcement. For the government, it allows for the expedient identification and processing of criminal aliens and their speedy removal. It is not uncommon for criminal aliens who have completed their sentence to languish in custody due to bureaucratic mix-ups and administrative delays, causing unnecessary taxpayer dollars to be spent as well as taking up detention space that should otherwise be available. And of course, for the criminal alien, it allows him/her to return to his/her country without having to suffer needlessly in prison when removal is already a foregone conclusion.
Why someone want to consider Rapid REPAT?
Again, this program is not available in every state. The ICE website, in fact, lists only seven participating states: Arizona, Georgia, Maryland, New Hampshire, New York, Puerto Rico, and Washington. Even if it is available in the alien’s state, it should only be pursued after consulting with both a criminal defense and immigration attorney about the viability of receiving early release and its ramifications. Since a final order of removal is a prerequisite, those individuals who want to preserve any chance of possibly staying here in the United States would not want to consider this alternative, since the individual would have to waive any right to appeal his/her removal order. (If the alien disagrees with a Removal Order issued by an Immigration Judge, he/she has the right to appeal the decision to the Board of Immigration Appeals.) Similarly, if there was some defect or legal error that occurred during the criminal proceeding, the individual would ordinarily want to consider appealing the criminal conviction or sentence. However, this early release program already assumes that the criminal alien has either exhausted his/her appellate rights or voluntarily given them up.
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