Consular Notification & Access

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This directive is for internal use only and does not enlarge an employee’s civil liability in any way. The directive should not be construed as creating a higher duty of care, in an evidentiary sense, with respect to third party civil claims against employees. Violations of this directive, if proven, can only form the basis of a complaint by the San Juan County Sheriff’s Office for non-judicial administrative action in accordance with the rules and laws governing employee discipline.
DIRECTIVE TYPE: POLICY SUBJECT: Consular Notification & Access NUMBER: OPER-331.00
APPROVED BY: Sheriff Ken Christesen EFFECTIVE DATE: 7/17/2016
NMLEA STANDARDS: ADMN.02.06 (a – h) LAST MODIFIED: 6/16/2016 LAST REVIEW: 6/16/2016


PURPOSE:


Consular notification and access is governed by the Vienna Convention on Consular Relations. These treaties are mutual obligations that also apply to foreign authorities when they arrest or detain U.S. citizens abroad. In general, a foreign national should be treated as one would want a U.S. citizen facing a similar situation to be treated when in a foreign country. This means prompt and courteous compliance with all notification requirements. This policy details the procedures to ensure all consular notification and access requirements are met when required.


POLICY:


It is the policy of the San Juan County Sheriff’s Office to comply with consular notification and access requirements in accordance with international treaties when a foreign national has been arrested or detained by a member of this agency; or when a death, serious illness/injury, or the transfer of guardianship of a foreign national is being considered.


DEFINITIONS:


The following definitions shall apply for the purposes of this policy:


  • Detain – Any arrest, detention, or other commitment to custody which results in a foreign national being incarcerated. A brief traffic stop, traffic crash investigation, or an arrest resulting in a citation for a misdemeanor and release at the scene does not constitute a detainment.


  • Foreign National – All persons who are not citizens of the United States, whether or not they are legally in, or allowed to work in the United States. It would not apply to a person who is a dual citizen of the United States and another country. If a person is a dual citizen of countries other than the United States, both countries may have to be notified in some cases.


  • VCCR – The Vienna Convention on Consular Relations is a multilateral agreement codifying consular practices originally governed by customary practice and bilateral agreements between States. Most countries, including the United States, are parties to the Convention.


  • Without Delay – The Vienna Convention on Consular Relations requires that a foreign national be informed “without delay” of the option to have a consular officer notified of an arrest or detention. There should be no deliberate delay, and notification must occur as soon as reasonably possible under the circumstances.
    • The obligation to provide such consular information is triggered by knowledge that the person is a foreign national. Once foreign nationality is known, advising the national that he or she may have a consular officer notified must follow promptly.
    • Ordinarily, a foreign national must be informed of the possibility of consular notification by, or at the time, the foreign national is booked for detention, which is a time when identity and foreign nationality can be confirmed in a safe and orderly way. If the identity and foreign nationality of a person are confirmed during a custodial interrogation that precedes booking, consular information should be provided at that time; however, there is no requirement to stop the interrogation if the foreign national requests that a consular officer be notified of the detention, but nevertheless agrees to provide a statement voluntarily.
    • If foreign nationality only becomes known during arraignment, consular notification procedures should be followed at that time. If the fact that the person is a foreign national only becomes known after arrest, booking, or arraignment, the required procedures must be followed at that time.
    • Specific time frames vary from country to country. Table A (Provisions from Bilateral Agreements Requiring Mandatory Notification) of the U.S. Department of State “Consular Notification and Access” manual provides preferred and absolute time limits.


PROCEDURE:


GENERAL


When a deputy detains or arrests any foreign national, the procedures outlined in this policy must be adhered to. The contents of this policy have been derived from the U.S. Department of State publication titled “Consular Notification and Access” which is available online at


https://travel.state.gov/content/dam/travel/CNAtrainingresources/CNAManual_Feb2014.pdf. Furthermore, this manual is made available at all Sheriff’s Office stations, on the Sheriff’s Office intranet system, and should be referred to in the event this policy does not cover a specific situation.


Deputies are not required to ask all persons being detained if they are citizens of the United States without reason to do so. If a deputy has a reason that can be articulated, such as possession of foreign identification documents, information from reliable third parties, etc., they should ask. If a detainee is asked and claims to be a United States citizen, and there is no documentation to the contrary, such as a foreign passport, or other foreign identification of the detainee, then the requirements of this policy are met.


For consular notification purposes, an up-to-date list of contact information for foreign embassies is provided by the U.S. Department of State at http://travel.state.gov/CNA. All consular notifications must be made directly to the appropriate embassy and not the U.S. Department of State.


SUMMARY OF REQUIREMENTS PERTAINING TO FOREIGN NATIONALS


When a foreign national from most countries is arrested or detained, they may, upon request, have their consular officer notified without delay of their arrest or detention, and may have their communications (letters and/or written correspondence) to their consular officer forwarded without delay. In addition, foreign nationals must be advised of this information without delay. (ADM.02.06(a))


Generally it is the foreign national’s right to refuse to have a consular notified; however, there is a list of countries in the “Consular Notification and Access” manual that require notification regardless of the wishes of the foreign national.


For foreign nationals of some countries, a consular officer must be notified of the arrest or detention of a foreign national even if the foreign national does not request or want notification. (ADM.02.06(b))


Consular officers are entitled to communicate with, and have access to, either physical or telephonic, their national(s) in detention, and to provide consular assistance to them, including arranging for legal representation. (ADM.02.06(c))


When a deputy works a case involving the death of a foreign national or become aware of the death, serious injury, or serious illness of a foreign national, a consular officer must be notified, regardless of the notification status of the country. For the purpose of this policy, a serious injury or illness is one in which the foreign national is incapable of communicating to their consular on their own accord. Furthermore, this consular notification is required even when other family members are present. (ADM.02.06(d))


When a guardianship or trusteeship is being considered with respect to a foreign national who is a minor or an incompetent adult, a consular officer must be notified. An example of this would be the parent(s) of a foreign national minor who become incapacitated, arrested, etc. and the minor child or incompetent adult needs to be placed with a guardian (i.e. family, friend, social services etc.). In these cases, the consular must be notified prior to that decision being made and the minor placed with that guardian. (ADM.02.06(e))


If a foreign aircraft crashes in U.S. territory, resulting in the death or serious injury to a foreign national, a consular officer must be notified, regardless of the notification status of the country.


When a deputy arrives at a place of detention such as the Sheriff’s Office or prior to booking at the San Juan County Detention Center, the foreign national will be advised of their rights for consular notification without delay. Only in cases of the countries with mandatory notification will notification be made regardless of the foreign nationals’ wishes. In these cases the foreign national will be told that notification is being made regardless of their wishes.


It is reasonable for a deputy to return to the office after booking to make the notification but documented attempts must be made before the end of the shift. A fax sent to the relevant foreign embassy or consulate to the fax number provided on the U.S. Department of State Consular Notification and Access web page at http://travel.state.gov/CNA under Foreign Consular Offices or a documented conversation with a named person at the consulate will meet the requirements of this policy and no further follow-up is necessary.


In order to comply with applicable treaties, deputies will provide the statements listed in the “Consular Notification and Access” manual to foreign nationals arrested or detained that have been translated into the foreign national’s own language.


Deputies should give Statement #1 to those foreign nationals who are not from a mandatory notification country. The foreign national should answer “yes” or “no” to this question and their answer recorded. The foreign national should be asked to sign and date the form to confirm his or her answer and the date he or she was informed.


Deputies should give Statement #2 to those foreign nationals who are from a “mandatory notification” country. A foreign national from such a country does not need to answer any questions, but a record should be kept that this information was provided to the foreign national. (ADM.02.06(g))


The English version of statements #1 & #2 are included as an attachment to this policy. Translated versions are available in the “Consular Notification and Access” manual.


Consular notification may be made by telephone, and it is permissible to allow the foreign national to speak to the consular, but this is not required. If direct contact is not made by phone, a message may be left on a voicemail but a follow-up fax will be sent by the end of the deputy’s shift. Notification may also be made by fax using the form in the “Consular Notification and Access” manual. Notifications will be made without delay, and in all cases, documented attempts will be made before the end of the deputy’s shift. Deputies will document their notification attempts in the incident report and include copies of any documents faxed for the case file.


If law enforcement officials from the detainee’s country are assisting in the investigation or are aware of the detention, it does not relieve a deputy of the responsibility to follow these procedures.


In the event this policy does not address a specific situation encountered by a deputy, and the relevant question(s) cannot be answered in the “Consular Notification and Access” manual, a deputy may contact the U.S. Department of State for clarification during business hours at (202) 485-7703 or the U.S. Department of State Operations Center at night, weekends, or holidays at (202) 647-1512.


DIPLOMATIC AND CONSULAR OFFICERS


The handling of Diplomatic Officers and Consular Officers is a sensitive situation. Some foreign officials are granted either full immunity or official acts immunity which means that they may not be arrested or significantly detained or prosecuted for a crime; however, even officials with full immunity may be stopped and issued citations for traffic violations. Additionally, the existence of full immunity does not bar deputies from attempting to interview or obtain consent to search from these officials or to intervene in cases where public safety is in imminent danger or it is apparent that a grave crime may otherwise be committed. In cases where subjects claim diplomatic immunity, the Diplomatic Security Command Center may be contacted 24 hours a day at 1-866-217-2089 or 1-571-345-3146 for assistance. (ADM.02.06(f))


DOCUMENTATION OF NOTIFICATION


Deputies will document sufficient information in an incident report to show compliance with the above notification requirements. At a minimum, this should include:

  • The date and time the foreign national was informed that he or she could communicate with a consular officer and, if applicable, could request that a consular officer be notified without delay of the arrest or detention.
  • Whether the foreign national requested notification (if applicable).
  • Whether the foreign consulate was notified and, if so, the date and time of notification, method of notification, and confirmation of receipt (if available). If notification is sent via fax, a copy of the delivery receipt printed by the fax machine should be retained. If notification is sent via email, a copy of the sent email should be retained.
  • If information was provided in writing, a copy should be retained.
  • Other relevant actions taken. (ADM.02.06(h))


CROSS REFERENCES:


  1. “Consular Notification and Access” – March 2014: United States Department of State
  2. Consular Notification Statements 1 & 2 – Attachment A