Foreign Nationals: What Law Enforcement Needs to Know

Foreign Nationals: What Law Enforcement Needs to Know Henry McGowen Attorney Advisor Instructor Federal Law Enforcement Training Centers / DHS Henry.McGowen@fletc.dhs.gov

Foreign Nationals: What Law Enforcement Needs to Know Why we need to look at this area of law: Millions of foreign nationals in the U.S. Some of them break the law while here We need to know how to handle them Foreign suspects; victims; other categories U.S. Citizens abroad reciprocal treatment Vienna Conventions re: foreign nationals 2

Topics We Will Cover: Foreign Nationals: What Law Enforcement Needs to Know What are the VCDR & VCCR? How/when are they applied in the U.S.? What is diplomatic immunity? Who does it apply to and who not? Basically, what are the rules of engagement when we encounter a foreign suspect? How does this apply on college campuses? 3

Introduction The Vienna Conventions Guiding documents Established protocols for the treatment of foreign nationals (FN) detained/arrested in the U.S. Implemented directly; and through bilateral treaties between countries Has the effect of a treaty, i.e. law in the U.S. Mutual obligations applies to US citizens abroad 4

Vienna Convention on Diplomatic Relations Introduction The VCDR was launched in 1961 Purpose is to help regularize diplomatic relations among member States Promotes diplomatic intercourse and friendly relations among nations It adopted by the UN in 1961; U.S. in 1964 Currently 191 countries have ratified it Diplomatic Relations Act of 1978 (22 U.S.C. 245) 5

Vienna Convention on Diplomatic Relations Diplomats Official representatives of foreign nations Recognized by the foreign country & U.S. i.e. diplomatic status Usually assigned to an embassy or to a consular office Some are sent on short term diplomatic missions Perform important functions 6

Vienna Convention on Diplomatic Relations Diplomatic Immunity Diplomats have diplomatic immunity The purpose of these privileges and immunities is to ensure the efficient and effective performance of their official missions on behalf of their governments It is not to benefit individuals 7

Vienna Convention on Diplomatic Relations Diplomatic Immunity They are not subject to the jurisdiction of our courts They cannot be arrested or prosecuted For any offense no matter how serious The purpose is to shield them to do their job This usually extends to their families too, including their children in college 8

Vienna Convention on Diplomatic Relations Encountering suspects with diplomatic status Normally diplomats carry documentation Inform the suspect(s) they will be detained until their diplomatic status is verified Identify the suspect and verify their status; through your supervisor usually Contact Department of State DSS Command Center (571) 345 3146 Must be verified, do not take their word for it, even if they have documentation 9

Vienna Convention on Diplomatic Relations Encountering suspects with diplomatic status Detain the individual respectfully Do not arrest no matter the crime Do not handcuff unless the diplomat poses an immediate threat to safety Do not search or frisk the person, the vehicle or personal belongings, unless it is necessary for officer safety or safety of 3 rd parties 10

Vienna Convention on Diplomatic Relations Encountering suspects with diplomatic status Investigate and prepare a report. Make a record of what occurred: reason for the stop, who was contacted, what steps were taken, etc. Records of police encounters can be reviewed by State Dept. if questions ever arise Officers may stop and cite for moving traffic violations; not considered detention or arrest However, a diplomat may not be compelled to sign a citation 11

Vienna Convention on Diplomatic Relations Diplomats in Serious Traffic Incidents DWI/DUI, and accidents involving personal injury (to FN and/or others) Secure the scene; call EMS public safety first Field sobriety tests may be offered, but not compelled Vehicles may not be impounded or booted Vehicles may be towed to prevent obstructing traffic 12

Vienna Convention on Diplomatic Relations Diplomats in Serious Traffic Incidents, cont. If impaired, do not let them drive away Intoxicated/impaired diplomats should be offered a ride, call a taxi, or to have their embassy or possibly a friend transport them If s/he refuses offers to assist, contact supervisor If impaired diplomat still persists in driving, use common sense to prevent that from happening (e.g. secure their keys; block their car; etc.) 13

Vienna Convention on Diplomatic Relations Other safety and common sense concerns In an assault situation (e.g. DV), if a diplomat is trying to strike his/her spouse; notify your supervisor and the diplomat's embassy Offer protection to the victim of an assault If diplomat presents a threat of injury to the officer or another person, use reasonable force to prevent injury Finally, if diplomatic status cannot be confirmed, treat them as any other FN suspect 14

Vienna Convention on Diplomatic Relations Embassies & consular offices Embassies are representative offices of foreign nations; they are foreign soil Home to the ambassador and other staff Official links to home country Passports; Visas; Notary Services; etc. Cannot search/seize without their permission; even with a warrant 15

Vienna Convention on Consular Relations Introduction VCCR was adopted by the UN in 1963 Purpose is to help regularize relations among member States for dealing with each other s citizens Main body of convention and optional protocol It became ratified in 1967; U.S. in 1969 Currently 179 countries (States) have ratified the convention 16

Vienna Convention on Consular Relations Diplomat vs. Non-diplomatic Foreign Nationals Most foreign nationals (FN) in the U.S. do not have diplomatic status Some are here legally as tourists, students, visiting family or on business In the U.S. with a short or long term visa Other foreign nationals are in the U.S. illegally Who does this apply to? Arrestees; detainees; imprisoned 17

Vienna Convention on Consular Relations Determination of FN Suspect s Citizenship How do we know if a suspect is a FN? How do we go about this legally? 5 th Amendment Implications Ask about citizenship without asking about legal status Role of U.S. Probation Office / Pre-trial Services 18

Vienna Convention on Consular Relations FN suspects with no diplomatic status If suspect claims diplomatic status, inform them they will be detained until their status is verified If no claim of diplomatic status, or if the status is not confirmed, the following rules apply: Advise the FN of the right to have their consular officials notified of their situation Determine whether FN is from a country that must be notified (next slide) 19

Vienna Convention on Consular Relations Arrest of FN with no diplomatic status Notification of FN s home government Mandatory notification some treaties with other nations require notification (57) Discretionary notification some treaties allow discretion whether to notify the foreign government, or not List of these countries is at the end 20

Vienna Convention on Consular Relations Federal Rule of Criminal Procedure 5(d)(1)(F) Takes place during the initial appearance FN may request that an attorney for the government or a federal law enforcement official notify a consular officer from the defendant s country of nationality that the defendant has been arrested Again: must determine whether notification is mandatory at this stage - confirmation 21

Vienna Convention on Consular Relations FN suspects with no diplomatic status Be allowed reasonable access to consular and/or legal officials from their country Consular officer may arrange for legal representation for the suspect The legal status of the arrestee doesn t matter Legally or illegally present in U.S. Does not affect the notification requirement 22

Vienna Convention on Consular Relations The usual Constitutional protections apply 4 th Amendment (search & seizure) 5 th Amendment (right to silence) 6 th Amendment (right to counsel) 8 th Amendment (bail; cruel & unusual punishment) 23

Vienna Convention on Consular Relations Other situations related to the VCCR you may encounter Foreign nationals killed or seriously injured (victims) Minors / guardianships Plane or boat crash in the U.S. 24

Vienna Convention on Diplomatic Relations Resources: Vienna Convention on Diplomatic Relations (http://legal.un.org/avl/pdf/ha/vcdr/vcdr_e.pdf) State Department s Diplomatic and Consular Immunity: Guidance for Law Enforcement and Judicial Authorities manual: (https://www.state.gov/documents/organization/15 0546.pdf) DoS/DSS Command Center (571) 345 3146 25

Vienna Convention on Consular Relations Resources: Vienna Convention on Consular Relations (http://legal.un.org/avl/pdf/ha/vccr/vccr_e.pdf) State Department s Consular Notification and Access manual, 2014 edition, for federal and state officials, including law enforcement (https://travel.state.gov/content/dam/travel/cnatr ainingresources/cna_manual_4th_edition_august 2016.pdf) https://travel.state.gov/content/travel/en/consular notification.html (general CNA site for State Dept.) 26

Vienna Convention on Consular Relations Resources: Medellin v. Texas, 552 U.S. 491 (2008) Avena and Other Mexican Nationals (Mexico v. the United States) (http://www.worldcourts.com/icj/eng/decisions/ 2004.03.31_avena.htm) Sanchez-Llamas v. Oregon, 548 U. S. 331 U.S. v. Chen, 439 F.3d 1037 27

The End 2/15/2018 Fed Ct Procedure 28