Arresting Foreigners? It’s Easier than You Think!


Ricardo de los Santos Mora, a native of the Dominican Republic, entered the United States in 1991.  The following year, he was arrested by New York City police and charged with attempted robbery.  As set forth in the appellate court opinion, de los Santos Mora:

did not speak English at the time of his arrest, and the arresting officers did not speak Spanish. He was interrogated without an interpreter present, although he told police in Spanish that he did not understand and wanted to speak with somebody in Spanish. After appearing before a judge, plaintiff was appointed counsel who did not speak Spanish. Plaintiff was then, according to his allegations, “coerced into taking a plea without the benefit of an interpreter.” He was sentenced to six months’ incarceration and five years’ probation.

More photogenic than the Vienna Convention

Vienna: More photogenic than the Vienna Convention

And thus began de los Santos Mora’s strange odyssey through the American legal system, a journey that will end some time during the recently opened Supreme Court term.  For de los Santos Mora, a citizen of the Dominican Republic, may have had the right under the Vienna Convention on Consular Relations to be advised by the police at the time of his arrest that he could have requested assistance from the Dominican consulate.  Or maybe not.  Or maybe he had that right, but the courts can’t do anything about it if local authorities ignore those rights.

First, some background: the US, along with a bunch of other countries, entered into the Vienna Convention, which, in Article 36, requires signatory states to inform arrested or imprisoned foreign nationals that they have the right to contact their own consular officials.  Under the constitution, treaties have the same force as federal statutes, which, pursuant to the supremacy clause, overrule any inconsistent state laws.  Thus, the states are required, in theory, to abide by the Vienna Convention.

The Convention, however, was not, in legal terms, “self-executing,” which means that it didn’t contain any enforcement provisions, and Congress never passed any laws that would put the Convention’s rules into effect.  So the states were largely free to ignore Article 36 since there were no consequences for failure to adhere to its rules.

That didn’t sit well with other nations that had signed the Convention, nor with the International Court of Justice (ICJ).  The ICJ had a hard time accepting the notion that a nation could enter into a treaty but not find the means to persuade or compel its territorial sub-units to obey that treaty.  In a series of cases, the ICJ found that the US had violated the Convention when states failed to inform criminal suspects of their rights to consular assistance.  The Bush administration, in response, withdrew from the part of the Convention that granted jurisdiction over disputes to the ICJ.

The US, on the other hand, did not withdraw from the Convention itself, so the courts still had to deal with the question of whether foreign nationals had a right to consular assistance.  In Sanchez-Llamas v. Oregon, the Supreme Court, in effect, said that failure to advise a foreign national of his Article 36 rights didn’t amount to a constitutional deprivation of rights that would require the suppression of incriminating statements that the suspect made to authorities.  Left unanswered, however, was whether the Convention granted individuals any judicially enforceable rights.

That’s not an academic question.  According to Justice Breyer’s dissent in Sanchez-Llamas, this issue “has arisen hundreds of times in the lower federal and state courts.”  Moreover, it’s not an insignificant problem.  Three death-row inmates who won favorable rulings from the ICJ, Jose Ernesto Medellin and brothers Karl and Walter LaGrand, were nevertheless executed by Texas and Arizona respectively, and there are currently over 100 foreign nationals on death row in the US.

And that brings us to Ricardo de los Santos Mora.  Knowing that, under the ruling in Sanchez-Llamas, he could not fight his conviction because of the state’s failure to advise him of his Article 36 rights, he instead sued New York for $1 million under the Alien Tort Statute, which allows foreign nationals to sue in federal court for violations of their rights under treaties or international law.  It should be noted here that de los Santos Mora has filed similar suits in Virginia in connection with a 1997 drug trafficking conviction (where he sought $2 million in damages) and in Delaware in connection with a similar offense in 1996 (amount demanded unknown).  Like many immigrants before him, de los Santos Mora evidently saw America as the land of opportunity, or at least as the land of second and third opportunities.  Of course, after the first arrest, one would think that he might actually suggest, on his own, that he talk to the local Dominican consulate, but that thought apparently never occurred to him.  What with all the drug running and robbing and such it probably just slipped his mind.

In any event, de los Santos Mora had as much success with the Second Circuit Court of Appeals as with his other lawsuits.  The court said that the Convention did not confer a judicially enforceable right upon de los Santos Mora, and it affirmed the dismissal of his lawsuit.  But because the Seventh Circuit, located in Chicago, reached the opposite conclusion, the US Supreme Court has decided to hear this case during its current term in order to resolve the split in the circuits.

This may all seem like a small matter, but it illustrates why many nations think the United States can’t be trusted to follow international law or agreements.  While agreeing to abide by the Vienna Convention, the US did practically nothing to enforce its rules.  When it finally did, the federal government proved powerless to do anything when local officials ignored it.  And after repeatedly losing in the ICJ, the US simply took its ball and went home, declaring that it would no longer play by the rules to which it had initially agreed.

It’s likely that the conservative majority on the Supreme Court will uphold the Second Circuit and find that there are no individual rights under the Convention.  Which makes one wonder why any other nation would extend to US nationals the same rights to consular assistance that the US seems unwilling to extend to foreign nationals within its borders.

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