Guidelines for the Arrest & Detention of Foreign Nationals in the U.S.

Special Advisory

Guidelines for the Arrest & Detention of Foreign Nationals in the U.S.
(Updated March 29, 2005)

Law Enforcement Obligations When Foreign National Is Arrested Or Detained Remain UNCHANGED Despite Recent U.S. Actions

The United States' recently formally withdrew from the "Optional Protocol" to the Vienna Convention on Consular Relations (VCCR). It is the Vienna Convention that obligates law enforcement to notify consular officials when foreign nationals are arrested or detained. You may have wondered what effect the United States' withdrawal from the Optional Protocol might have on NOTIFICATION obligations. The United States' actions DO NOT AFFECT notification obligations.

ALL CONSULAR NOTIFICATION AND ACCESS REQUIREMENTS ARE COMPLETELY UNCHANGED AND REMAIN IN EFFECT. The United States has not withdrawn from the Vienna Consular Convention, and remains committed to its principles and provisions. The U.S. State Department has posted an announcement regarding this matter on its consular notification and access website, at http://travel.state.gov/.


(Updated July 31, 2002)

There are special procedures governing the arrest and detention of foreign nationals, deaths of foreign nationals, the appointment of guardians for minors or incompetent adults who are foreign nationals, and related issues pertaining to the provision of consular services to foreign nationals in the United States. These procedures govern all foreign nationals, whether they are this country legally or illegally. Instructions, forms, prepared statements and guidance can be found on the U.S. Department of State web site at http://travel.state.gov/

Included below is information pertaining to steps to follow when a foreign national is arrested or detained, as well as details regarding mandatory notification of consular officials.

Additional Links:

U.S. Guidelines for Notification and Access re: Foreign Nationals: http://travel.state.gov/
1999 Archived U.S. Guidelines: www.state.gov/www/global/legal_affairs/ca_notification/ca_prelim.html


Steps to Follow When a Foreign National is Arrested or Detained
(For full instructions, you are advised to review the U.S. Department of State web publication located at http://travel.state.gov/
  1. Determine the foreign national's country. In the absence of other information, assume this is the country on whose passport or other travel document the foreign national travels.
  2. Determine from the mandatory notification list below whether or not notification must be made to the consulatre of the foreign national's country.
  3. If the foreign national's country is not on the mandatory notification list:
  4. If the foreign national's country is on the list of mandatory notification countries:
  5. Notify that country's nearest consular officials, without delay, of the arrest/detention. Phone and fax numbers are at http://travel.state.gov/content/travel/en/consularnotification.html and you may use the suggested fax sheet for making the notification.
  6. Tell the foreign national that you are making this notification. A suggested statement to the foreign national is found in Statement 2 below, and translations into selected languages are found at http://travel.state.gov/content/dam/travel/CNAtrainingresources/CNAManual_Feb2014.pdf
  7. Keep a written record of the provision of notification and actions taken.

Suggested Statements to Arrested or Detained Foreign Nationals

Statement 1
When Consular Notification is at the Foreign National's Option
As a non-U.S. citizen who is being arrested or detained, you are entitled to have us notify your country's consular representatives here in the United States. A consular official from your country may be able to help you obtain legal counsel, and may contact your family and visit you in detention, among other things. If you want us to notify your country's consular officials, you can request this notification now, or at any time in the future. After your consular officials are notified, they may call or visit you. Do you want us to notify your country's consular officials?

Statement 2
When Consular Notification is Mandatory
Because of your nationality, we are required to notify your country's consular representatives here in the United States that you have been arrested or detained. After your consular officials are notified, they may call or visit you. You are not required to accept their assistance, but they may be able to help you obtain legal counsel and may contact your family and visit you in detention, among other things. We will be notifying your country's consular officials as soon as possible.

Suggested Fax Sheet for Notifying Consular Officers of Arrests or Detentions

Date: __________

Time:__________

To: Embassy/Consulate of_______________(Country) in _________________(City), ______________ (State)

Subject: NOTIFICATION OF ARREST/DETENTION OF A NATIONAL OF YOUR COUNTRY

From:

Name: _____________________________________________________

Office: _____________________________________________________

Street Address: ______________________________________________

City: ______________________________________________________

State: _____________________________________________________

ZIP Code: __________________________________________________

Telephone: (____)____________________________________________

Fax: (____)_________________________________________________

We arrested/detained the following foreign national, whom we understand to be a national of your country, on _____________, ______________.

Mr./Ms. ____________________________________________________

Date of birth: _______________________________________________

Place of birth: _______________________________________________

Passport number: ___________________________________________

Date of passport issuance: _____________________________________

Place of passport issuance: _____________________________________

To arrange for consular access, please call ______________________________ between the hours of ___________ and __________. Please refer to case number ______________________when you call.

Comments:


Mandatory Notification

While all foreign nationals must be advised of their right to contact their Consulate, not all countries require mandatory notification upon the arrest or detention of a foreign national. In fact, several countries are under the portion of the treaty that vests the decision to notify the consul solely in the detainee/arrestee's discretion. This means that unless the country is a mandatory "must notify" country, an agency violates the treaty by notifying a consul against the foreign national's wishes. A "notify every consul when a foreign national is arrested or detained" policy is illegal because it will violate the treaty unless the country is a "must notify" country.

Here are the countries that are "must notify" countries as of January, 2006. If your foreign national is from one of these countries, the consul MUST be notified regardless of the national's wishes. If your foreign national is from a country not on this list, the consul should be notified only if the the national requests notification.

 
Mandatory Notification Countries and Jurisdictions
Algeria Fiji Mauritius Tajikistan
Antigua and Barbuda Gambia, The Moldova Tanzania
Armenia Georgia Mongolia Tonga
Azerbaijan Ghana Nigeria Trinidad and Tobago
Bahamas, The Grenada Philippines Tunisia
Barbados Guyana Poland
(non-permanent residents only)
Turkmenistan
Belarus Hong Kong2 Romania Tuvalu
Belize Hungary Russia Ukraine
Brunei Jamaica Saint Kitts and Nevis United Kingdom3
Bulgaria Kazakhstan Saint Lucia U.S.S.R.4
China1 Kiribati Saint Vincent and the Grenadines Uzbekistan
Costa Rica Kuwait Seychelles Zambia
Cyprus Kyrgyzstan Sierra Leone Zimbabwe
Czech Republic Malaysia Singapore  
Dominica Malta Slovakia  

1 Notification is not mandatory in the case of persons who carry "Republic of China" passports issued by Taiwan. Such persons should be informed without delay that the nearest office of the Taipei Economic and Cultural Representative Office ("TECRO"), the unofficial entity representing Taiwan's interests in the United States, can be notified at their request.

2 Hong Kong reverted to Chinese sovereignty on July 1, 1997, and is now officially referred to as the Hong Kong Special Administrative Region or "SAR." Under paragraph 3(f)(2) of the March 25, 1997, U.S.-China Agreement on the Maintenance of the U.S. Consulate General in the Hong Kong Special Administrative Region, U.S. officials are required to notify Chinese officials of the arrest or detention of the bearers of Hong Kong passports in the same manner as is required for bearers of Chinese passports--i.e., immediately, and in any event within four days of the arrest or detention.

3 British dependencies also covered by this agreement include Anguilla, Ascension, Bermuda, Cayman Islands, the Chagos Archipelago (British Indian Ocean Territory), Falkland Islands, Gibraltar, Montserrat, Pitcairn Islands, St. Helena, South Georgia & South Sandwich Islands, Tristan da Cunha, the Turks and Caicos Islands, and the British Virgin Islands. Their residents carry British passports. In addition to the preceding, United Kingdom citizenship also covers persons carrying U.K. passports or who indicate that they are from Great Britain, Wales, Scotland, and Northern Ireland.

4 Although the U.S.S.R. no longer exists, some nationals of its successor states may still be traveling on its passports. Mandatory notification should be given to consular officers for all nationals of such states, including those traveling on old U.S.S.R. passports. The successor states are listed separately above.

The Secretary of State also advises that agencies are "well advised to retain a written record of the fact of notification or that the arrestee declined consular notification." The US Department of State indicates a fax transmittal confirmation sheet indicating when notification was sent to a consulate should suffice as the written record, when coupled with the master copy of the notification that was faxed.

For Further Information Contact:
Michael Ramage, General Counsel
Florida Department of Law Enforcement
(850) 410-7676