Tooby's California Post-Conviction Relief for Immigrants

The Vienna Convention on Consular Relations (VCCR) is a treaty to which the United States is a party and which requires local law enforcement officers to advise a foreign national, who has been arrested, of his or her right to contact the embassy for assistance.  In United States v. Lombera-Camorlinga,[444] the Ninth Circuit, sitting en banc, found that the VCCR does not provide personal rights that are enforceable by the defendant for the failure to advise with a motion to suppress any subsequent statement.  The court did not address whether the treaty creates personal rights that can be enforced by individual defendants in other ways.

          California courts have also held that suppression of evidence is not a remedy for a violation of the Vienna Convention.[445]  This does not necessarily negate the somewhat different argument that a guilty plea, entered as a result of the arresting officer's error in failing to tell the defendant of the right to contact the consulate, must be set aside upon a showing of prejudice, i.e., that the plea would not have been entered absent the treaty violation.  This is not a suppression-of-evidence argument.

Where the courts have rejected arguments that violations of the VCCR require suppression of evidence, they appear motivated to some extent by reluctance to create a new “suppression of evidence” remedy that might result in the unavailability of valid evidence of guilt and the freeing of the guilty.  These concerns are not present, when the noncitizen is not arguing that evidence should be suppressed, but rather that an invalid guilty plea flowed from the treaty violation.  In this latter case, prejudice is shown if there is a reasonable probability, absent the treaty violation, that the plea would not have been entered.  This is a familiar prejudice test, analogous to that required in the context of a claim of ineffective assistance of counsel, or prosecutorial suppression of evidence.  Indeed, the Seventh Circuit has held that foreign nationals may bring ineffective assistance of counsel claims based on violations of Article 36 of the Vienna Convention, and that failure to notify of the petitioner of the right to consular assistance constituted an Article 36 violation.[446]  The court went on to hold that counsel’s failure to raise the violation was deficient performance.[447]

The argument holds that if the defendant had been informed of his or her right to contact the consulate, the Consul would have informed the noncitizen, either directly or through counsel experienced in immigration consequences, of the immigration consequences of the situation.  Counsel would have been retained who would have known how to prevent the adverse immigration consequences from occurring.  Thus, it can be argued where the advice was lacking, that there is a reasonable probability that a plea with damning immigration effects would not in fact have been entered. 

California courts require claims under the Vienna Convention to be brought in a habeas corpus petition, rather than direct appeal.[448]  Extensive internet resources exist on this issue.[449]

[444] United States v. Lombera-Camorlinga, 206 F.3d 882 (9th Cir. 2000).

[445]  People v. Corona (2001) 89 Cal.App.4th 1426.  Cf. Penal Code § 834(c)(effective 1/1/00).

[446] Osagiede v. Untied States, 543 F.3d 399 (7th Cir. 2008). 

[447] Ibid.

[448] People v. Mendoza (2007) 42 Cal.4th 686, 171 P.3d 2.

[449] The State Department advisory to all law enforcement on the arrest of foreign national can be found at: http://www.state.gov/www/global/legal_affairs/ca_notifications/. 

The State Department site includes a 60+ page manual designed for local law enforcement on implementing the Vienna Convention.  This is a great resource which includes all of the phone numbers and addresses of the consulate offices as well as the official State Department interpretation of what the treaty means: http://www.state.gov/www/about_state/ca_prelim.html.  To get a copy of the treaty itself: click on Treaties and Convenants at: http://www.findlaw.com/12international/index.html.  The Death Penalty Information Center has an article on the execution of foreign nationals in the U.S. and says they will soon be posting pleadings from other states in which the issue was raised in trial court, particularly in the area of confessions.  http://www.essential.org/dpic/foreignnatl.html.