North Carolina law allows certain inmates to be released from incarceration to return to another country.
Rapid REPAT. Since 2008, certain inmates have been eligible for an early conditional release from an active sentence in North Carolina to be removed from the United States. The Division of Adult Correction refers to the program as Rapid REPAT, as it shares characteristics with the Immigration and Customs Enforcement (ICE) program of the same name. In the ICE program, REPAT stands for “Removal of Eligible Parolees Accepted for Transfer.”
Under G.S. 148-64.1, the Post-Release Supervision and Parole Commission may conditionally release an inmate into ICE custody if all of the following requirements are satisfied.
- The inmate is subject to a final order of removal. (Sejal Zota and John Rubin cover the details of the removal process in their excellent and recently revised manual on the Immigration Consequences of a Criminal Conviction in North Carolina.)
- The inmate was convicted of a “nonviolent criminal offense,” which is defined to include only the following offenses:
- Breaking or entering buildings under G.S. 14-54 (prison regulations say this provision also covers larceny);
- Breaking or entering into a motor vehicle, etc., under G.S. 14-56;
- Possessing stolen goods under G.S. 14-71.1;
- Obtaining property by false pretenses (less than $100,000) under G.S. 14-100;
- Possession of a Schedule VI controlled substance under G.S. 90-95(d)(4);
- An impaired driving offense that does not result in death or serious bodily injury. (The law appears to have been written with DAC in mind, but it seems like it could also apply to an inmate housed in a jail through the Statewide Misdemeanant Confinement Program, as all active-sentence DWI inmates are nowadays.)
If the inmate is incarcerated for more than one offense, then all of those offenses must be on the list for the inmate to be eligible.
- The inmate has served at least half of the minimum sentence imposed by the court, or, in the case of an impaired driving inmate, the inmate has met the parole eligibility requirements of G.S. 15A-1371 (generally, service of the imposed minimum sentence or one fifth of the statutory maximum, whichever is less). The defendant need not obtain a substance abuse assessment and complete treatment as ordinarily required under G.S. 20-179(p)(3) to be eligible.
- The inmate agrees not to reenter the United States unlawfully.
Prison regulations add one additional requirement beyond the statutory requirements: that the inmate not have any pending charges in North Carolina or elsewhere.
Even if a person satisfies all of those requirements, the decision to release him or her rests with the Parole Commission. G.S. 148-64.1(b). If a release is approved but ICE does not actually remove the person, he or she gets returned to prison to serve the remainder of the sentence.
If a person removed through the program reenters the United States unlawfully, the Parole Commission shall, after notice and hearing, revoke the early release and reimprison him or her for the balance of the sentence. G.S. 148-64.1(f). Once an early release has been revoked, the person is not eligible for any other release (aside from ordinary post-release supervision).
Transfer under Treaty. Under G.S. 148-122, the governor may allow the prison system to transfer an inmate who is a citizen or national of another country to that country if a treaty between the United States and that country provides for such transfers. The regulation implementing that law adds some additional requirements that go beyond the short statute, including that the inmate not have any pending charges or outstanding monetary obligations, that he or she must have at least 12 months of active sentence remaining, that the inmate is not a dual citizen of the United States and the other country, and that the inmate hasn’t previously been removed from the United States and returned unlawfully. The United States has treaties with prisoner transfer agreements with many countries (the U.S. Department of Justice lists them here), but as a practical matter such transfers are rarely approved out of North Carolina.