WLG's latest installment of our newsletter, which focuses on the intersection of criminal and immigration law, has arrived!  You may read the full article below or view the full PDF here: 198-167-wilson-law-group-newsletter-arrests-non-citizens-and-right-consular-notification.did-law-enforcement-comply.pdf

Arrests of Non-citizens and the Right to Consular Notification: Did Law Enforcement Comply?     

Welcome to the latest Wilson Law Group Newsletter.  In this edition, we focus on the right foreign nationals have to speak with a representative from his or her consulate upon arrest or prior to interrogation.

The 1963 Vienna Convention on Consular Relations (“the Convention” or “VCCR”) was created by the United Nations Conference on Consular Relations to establish uniform duties and protections for consulates around the world. Article 36 of the Convention prescribes a foreign national’s rights when arrested outside his home country. A foreign national has the following rights under the VCCR: 1) the right to communication with consular officers of his home country upon being detained or imprisoned by local authorities; 2) the right to have local law enforcement inform the detainee of his right to request consular notification; and 3) the right to in-person visits by consular officers.

These rights apply to all foreign nationals regardless of their country of origin or their status in the United States.[1] However, there are some countries that have mandatory notification requirements under the Convention.[2] Upon the arrest of a foreign national from a mandatory notification country, law enforcement is required to notify the arrestee’s consulate regardless of the arrestee’s wishes.[3] There is no specific form of notification that is required, but the Department of State guide refers to e-mail or fax notification.[4] Law enforcement is prohibited from disclosing to the consulate confidential information such as whether the detainee has applied for asylum or cancelation of removal.[5] Law enforcement should maintain notes of their compliance with the VCCR, but it is not required under the Convention.[6]

Consular officials may communicate with detainees, visit them in person, and assist them in obtaining legal counsel. If a detainee does not want consular assistance, the consular official may be allowed one in-person visit with the detainee, but then may not have further contact without the detainee’s approval.[7] Law enforcement should grant consular officers the same in-custody visiting privileges as attorneys.[8]

Understanding the VCCR is imperative if your client is not a U.S. citizen. The United States Supreme Court has held that law enforcement’s failure to follow the Vienna Convention is not a per se basis for the suppression of evidence.[9] However, the VCCR may create individual enforceable rights if prejudice can be shown.[10] Defense counsel may also raise the lack consular notification “as part of a broader challenge to the voluntariness of [a defendant’s] statements to police.”[11] The Minnesota Court of Appeals has held, consistent with Sanchez-Llamas v. Oregon, that violations of the VCCR are only relevant in “assessing whether a statement was voluntary, knowing, and intelligent.”[12]

If a defendant raises a VCCR claim at any time during a criminal proceeding, the court may attempt to remedy the situation by giving him enough time to “secure, to the extent possible, the benefits of consular assistance.”[13] If raised in an appeal or postconviction proceeding, the defendant must show that failure to follow the VCCR caused actual prejudice.[14] Furthermore, the same local procedural default rules that apply to all post-conviction claims restrict VCCR claims.[15] If a defendant files a direct appeal, he must assert the VCCR claim at that time or the court may consider it waived.[16] Accordingly, it is imperative that defense counsel is aware of and asserts any VCCR violation claims in a timely manner.[17]

If law enforcement did not notify your non-citizen client or a defendant of the right to consular notification and you are in need of guidance, please contact an attorney at Wilson Law Group at 612-436-7100. 

 
[2] Id. at 4.
[3] Id. at 7-8.
[4] Id. at 8.
[5] Id.
[6] See id.
[7] See id. at 5.
[8] Id. at 103.
[9] Sanchez-Llamas v. Oregon, 548 U.S. 331, 350 (2006).
[10] See id. at 343; Gandara v. Benett, 528 F.3d 823, 828-29 (11th Cir. 2008) (holding that the VCCR does not create individual rights, agreeing with the 1st and 9th Circuits); Osagiede v. U.S., 543 F.3d 399, 406-08, (7th Cir. 2008) (finding that the VCCR does create individually enforceable rights and defense counsel’s failure to assert his client’s right to consular access may constitute deficient performance that should be analyzed under Strickland v. Washington, 466 U.S. 668 (1984)); Jogi v. Voges, 480 F.3d 822, 835 (7th Cir. 2007) (holding that the VCCR creates individually enforceable rights which can be pursued under a § 1983 claim).
[11] Sanchez-Llamas v. Oregon, 548 U.S. 331, 350 (2006); State v. Moralez-Mulato, 744 N.W.2d 679, 685-86 (Minn.  Ct. App. 2008).
[12] Moralez-Mulato, 744 N.W.2d at 686.
[13] Id.
[14] Arredondo v. State, 754 N.W.2d 566, 575-76 (Minn. 2008) (Arredondo based one of his VCCR claims on the fact that English was his second language. Although the Minnesota Supreme Court rejected his language-based claim, the ability to understand English and the American legal system is an important issue for foreign national defendants, which Wilson Law Group will address in an upcoming newsletter.) See also Ademodi v. State, 616 N.W.2d 716, 717-18 (2000) (holding that Ademodi waived his VCCR claims because he did not assert them in his direct appeal).
[15] Sanchez-Llamas, 548 U.S. at 360.
[16] Ademodi, 616 N.W.2d at 717-18 (2000).
[17] Id.

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