Consequences in Criminal Proceedings of Foreign Consular Notification, or Failure to Notify

The arrest of a foreign national by the United States becomes an international affair. The United States has complex treaty obligations governing this situation. This article is intended to provide the practitioner with an overview of this process because Article 36 of the Vienna Convention creates obligations for arresting authorities.

The principal treaty obligations are contained in Article 36 of the Vienna Convention. As applicable to criminal proceedings, the convention requires that when a foreign national from most countries is arrested or otherwise detained, the arresting officers must take actions. If the detainee is from a country on the “mandatory list” under the Convention, the arresting officers must notify consular officials of the detainee’s country without delay. However, if the detainee is from a country not on the mandatory list, the arresting officers must only offer the detainee the option of having that person’s consular official notified.

Notification is done directly by the arresting authorities to the country’s consulate, not by the State Department. In federal cases, the agency which handled the arrest is responsible for the notifications. For arrests by agencies such as the U.S. Immigration and Customs Enforcement (ICE) or the U.S. Postal Inspection Service, the notification is handled by that agency. For agencies which are part of the U.S. Department of Justice (DOJ) such as FBI, DEA and U.S. Marshall’s Service, the U.S. Attorney’s Office handles the notification.1 However, in cases involving both ICE and a DOJ agency, ICE will handle the notification. In non-federal cases, the notification is handled by the local authorities. For example, arrests or detentions made by the Nassau County Police Department are handled by the arresting officer.
Although, as noted above, the U.S. State Department is not responsible for notifications, arresting agencies generally keep records to respond to inquiries made through the U.S. State Department or directly by a foreign consulate. In some cases, the court may inquire at the initial appearance whether the notification has been made.
The United States has treaty arrangements with some countries which require consular notification in every case including cases in which the foreign national may not request it or even ask that the consul not be notified. In such cases, the arresting authority should advise the detainee that notification will be made.
In mandatory notification cases, the obligation exists notwithstanding the detainee’s privacy concerns even if there is a legitimate fear of persecution or mistreatment. Local authorities cannot ignore treaty obligations because they have the force of federal law under the Supremacy Clause of the U.S. Constitution.2
However, the arresting authorities should not inform consulate of detainee’s refugee or asylum status. In most cases, there is no obligation for the U.S. authorities to disclose the reason for the detention, just the fact of it.
The Vienna Convention and other treaties not only create obligations for the government to notify the consulate, they also create rights for consulates to contact their nationals.
Consular officers are entitled to communicate with their nationals in detention. Even if the detainee does not want it, treaty obligations may still entitle consular officers to at least one face-to-face visit.
Such communication is subject to the security procedures of the place of detention. Such procedures may limit visiting hours and what materials may be brought into the visiting area. However, the security procedures may not be so restrictive as to defeat the purpose of treaty to allow communication Consular officers may arrange for legal counsel or provide other services to detainees, such as facilitating communication with family in the detainees home country. Of course, the consular officer may not act as an attorney for the detainee. In an appropriate case, a defense attorney should consider contacting the consulate to urge it to exercise its rights to contact the detainee. The Consular Officer will decide whether, when and how to respond to notification that a national has been detained, subject to its own laws, customs and resources.
While there are certain consequences in criminal proceedings of notification of Foreign Consuls, consular notification should have no direct effect on the criminal proceeding as the foreign country has no standing to participate in the criminal case. While consular officers may not practice law in the United States, in rare instances they may choose to participate in a friend of the court status, for example, to provide information of their country’s law and customs.
Consular notification obligations do not affect the rights of the person arrested. If the person has a right to counsel, s/he would still be entitled to a court appointed attorney. While the consular official may assist the national in obtaining counsel, there is no obligation to do so. As a result, courts should follow their usual procedures in appointing counsel.
Consular notification, however, may have some indirect effect on the criminal proceeding. The consular officer may assist in arranging for counsel and in the preparation of the defense, by, for example, locating interpreters, consultants, investigators and by obtaining information from the foreign country. The officers may also provide information regarding foreign laws and customs and verifying the authenticity of documents from the home country. The consular officer may also seek to ensure that the national receive a fair trial by monitoring the trial; communicating with defense counsel and the prosecutor.
A defense attorney should obtain his client’s consent before requesting or accepting the consular officer’s assistance, while under U.S. law the consular officer has no duty to the foreign national. Since consular officials can, and frequently do, assist American prosecutors and law enforcement officers, extreme care should be taken in what information is disclosed to the officers by the defense. While the consular officer may have immunity concerning the exercise of its duties, the officer may waive that immunity and divulge confidences to American prosecutors and law enforcement officers.
In a death penalty case, in particular, the consulate may provide substantially greater assistance. Most foreign countries oppose the death penalty and will assist their nationals to avoid it. Procedures in federal death penalty cases permit defendants to offer a wide range of mitigating evidence, which consulates may assist in obtaining foreign records in support of mitigation, i.e., a non-death sentence. Mitigation cases often rely on documents such as school records, birth certificates, health and military records, as well as criminal history checks (which may all be negative.) Of course, competent counsel will not rely on promises of political entities who may have competing interests.
The consular officer may seek to ensure that the national is treated properly in prison; for example, being allowed to engage in religious practices. The consular officer may also assist with the repatriation of the national after the disposition of the case.
At the same time, the practitioner should not ignore the potential negative consequences of consular notification. In some cases, consular notification may result in additional penalties or persecution by the home country. In other cases, the arrest may result in persecution of the client’s family members in the home country.
There are consequences in criminal proceedings when an arresting agency fails to notify a Foreign Consul. The consequences however are a matter of foreign relations only, not individual rights. The purpose of notification is merely to allow a foreign (“sending”) government to ensure that its national, temporarily residing in the “host” country, are properly represented. Nevertheless, counsel, may want to raise Vienna Convention violations especially in cases with demonstrable prejudice.
Courts have routinely rejected challenges from foreign nationals concerning their convictions and/or sentences on the basis that the consulate was not notified, even though such post-conviction relief strategies generally are based on ineffective assistance of counsel arguments.
Courts have generally held that consular notifications obligations in the Vienna Convention may not create individual rights which may be enforced in court. The Supreme Court in Sanchez-Llamas v. Oregon4 held that a violation of the Vienna Convention alone will not support suppression of post arrest statements. In De Los Santos Mora v. New York,5 the Second Circuit held that “Article 36’s obligation to inform detained aliens of the prospect of consular notification and access cannot, when violated, be vindicated by a private action for damages.” And the Second Circuit in United States v. Bustos De La Pava6 has also held that the Government’s failure to comply with the consular-notification provision is not grounds for dismissal of an indictment. Hence, failure to raise a claim for a Vienna Convention violation will not support a claim of ineffective assistance of counsel.
In United States v. Gomez7 then U.S. District Judge Denny Chin8 said that defense counsel’s failure to move to dismiss an indictment under Article 36 of the Vienna Convention does not constitute ineffective assistance of counsel “[b]ecause a foreign national cannot seek dismissal of an indictment on the basis of an alleged failure of the Government to notify him of his right to consular notification under the Vienna Convention.” And the burden is on government authorities, not the defendant’s attorney, to contact the defendant’s home country.9
Counsel, nevertheless, may want to raise Vienna Convention violations especially in cases with demonstrable prejudice. Courts have left the door open for remedies on this particular theory, if, in appropriate cases, it is not based on Article 36 issues.10
As discussed, while consular notification is a matter of foreign relations and not individual rights, a practitioner should not ignore these treaty obligations because they may still bear some effect, whether negative or positive, on the a foreign national’s case.
Peter J. Tomao has a multi-jurisdictional practice in criminal defense, tax and commercial litigation, is a member of the NCBA BOLD Task Force, past chair and director of the Federal Courts Committee.
1. 28 CFR § 50.5.
2. U.S. Constitution, Article VI, clause 2 (“all Treaties… shall be the supreme law of the land.”)
3. To establish a claim of ineffective assistance of counsel, a convicted defendant must show that: 1. Counsel’s performance fell below an objective standard of reasonableness, and 2. but for the deficiency, there is a reasonable probability that the outcome of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687-96 (1984); United States v. Bustos De La Pava, 268 F.3d 157, 163 (2d Cir., 2001)
4. 548 U.S. 331, 350 (2006).
5. 524 F.3d 183, 188 (2d Cir.), cert. denied, __ U.S. __, 129 S. Ct. 397 (2008), 6. 268 F.3d 157, 165 (2d Cir. 2001) 7. 644 F. Supp. 2d 362, 372 (S.D.N.Y. 2009)
8. Judge Chin is now a member of the Second Circuit.
9. Sandoval v. United States, 574 F.3d 847 (7th Cir. 2009)
10. De Los Santos Mora v. New York, 524 F.3d 183, 209 (2d Cir. 2008) and cases cited therein. Also see: Jogi V. Voges, 480 F.3d 822, 835-836 (7th Cir. 2007) (The Vienna Convention does not claim under 42 United States Code §1983).