As matter of first impression, Fifth
Circuit rules that Vienna Convention on Consular Relations does not grant
arrested foreign nationals private, judicially enforceable rights to consult
with consular officials
The
Immigration and Naturalization Service (INS) suspected that Alejandro
Jimenez-Nava, an illegal alien from Mexico, was making fraudulent immigration
documents and social security cards. Suspicion ripened into belief when INS
agents questioned Jimenez-Nava and he showed them the document laboratory where
he worked. The agents read Jimenez-Nava his Miranda rights on several
occasions, advised him of his right to confer with Mexican consular officers
and charged him with document fraud.
During
his suppression hearing, Jimenez-Nava admitted that he had received the Miranda
advice and had a chance to contact consular officers. Having allegedly declined
because he did not understand the function of consular officers, he appeals his
conviction based on alleged violations of the Vienna Convention on Consular
Relations (April 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820). The U.S. Court of
Appeals for the Fifth Circuit affirms, finding no error in the denial of
Jimenez-Nava’s motion to suppress.
Jimenez-Nava
argued that Article 36 of the Vienna Convention grants foreign nationals a
private, judicially-enforceable right to consult with consular officials of
their home country. In his view, the court should have suppressed his
post-arrest statements and the evidence obtained from the document laboratory.
This
is a matter of first impression in the Fifth Circuit. So far, courts have
avoided the issue of whether the Vienna Convention provides individually
enforceable rights of consultation with consular officials. Moreover, there is
a presumption against implying private rights. The U.S. State Department has
posited that the Vienna Convention does not establish rights for individuals
but only state-to-state rights and obligations.
“First,
by dwelling on the plain language concerning ‘rights’ in Article 36, Jimenez-Nava
must discount the equally plain language in the Preamble that the treaty’s
purpose ‘is not to benefit individuals’. Appellant would confine the limitation
to consular officials, but that interpretative route hardly assists him, since
consular officials are the specific beneficiaries of many of the treaty
provisions. ... If the treaty cannot benefit them by creating individually
enforceable rights, how can it intend to confer enforceable rights on all
foreign nationals detained in the receiving state?”
“Second,
while acknowledging the general rule against implication of personal rights in
treaties, Jimenez-Nava notes that, like any agreement, treaties may explicitly
confer individual rights. ... He cites as an example [the] Supreme Court’s
construction of an extradition treaty ... Unlike the Vienna Convention,
[however] the purpose and provisions of the extradition treaty related directly
to the individual right asserted.” [Slip op. 13-14]
Finally,
the Court rejects the argument that consular notification and communication is
a “fundamental right” analogous to the Fifth and Sixth Amendments. All sister
circuits have held that suppression of evidence is not a remedy for an Article
36 violation.
“Article
36 does not articulate a specific remedy. The treaty states that the rights of
consultation ‘shall be exercised in conformity with the laws and regulations of
the receiving State, subject to the proviso, however, that the said laws and
regulations must enable full effect to be given to the purposes for which the
rights accorded under this Article are intended.’ Vienna Convention, Art.
36(2). The treaty leaves the implementation to the discretion of each signatory
state so long as its ‘purposes’ to ensure free communication and access are
given full effect. ...”
”Finally,
most countries do not have a suppression remedy. [Cit.] No other signatories to
the Vienna Convention have suppressed statements under similar circumstances
and two have rejected this remedy. [Cit.] If suppression becomes the remedy in
the United States, the treaty would have an inconsistent meaning among
signatory nations. Thus, refusing to resort to the exclusionary rule promotes
‘harmony in the interpretation of an international agreement.’” [Slip op.
20-22]
Citation: United States v. Jimenez-Nava, No. 99-11300 (5th Cir.
February 26, 2001).
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