28 C.F.R. § 50.5

Notification of Consular Officers upon the arrest of foreign nationals

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(a) This statement is designed to establish a uniform procedure for consular notification where nationals of foreign countries are arrested by officers of this Department on charges of criminal violations. It conforms to practice under international law and in particular implements obligations undertaken by the United States pursuant to treaties with respect to the arrest and detention of foreign nationals. Some of the treaties obligate the United States to notify the consular officer only upon the demand or request of the arrested foreign national. On the other hand, some of the treaties require notifying the consul of the arrest of a foreign national whether or not the arrested person requests such notification.

(1) In every case in which a foreign national is arrested the arresting officer shall inform the foreign national that his consul will be advised of his arrest unless he does not wish such notification to be given. If the foreign national does not wish to have his consul notified, the arresting officer shall also inform him that in the event there is a treaty in force between the United States and his country which requires such notification, his consul must be notified regardless of his wishes and, if such is the case, he will be advised of such notification by the U.S. Attorney.

(2) In all cases (including those where the foreign national has stated that he does not wish his consul to be notified) the local office of the Federal Bureau of Investigation or the local Marshal's office, as the case may be, shall inform the nearest U.S. Attorney of the arrest and of the arrested person's wishes regarding consular notification.

(3) The U.S. Attorney shall then notify the appropriate consul except where he has been informed that the foreign national does not desire such notification to be made. However, if there is a treaty provision in effect which requires notification of consul, without reference to a demand or request of the arrested national, the consul shall be notified even if the arrested person has asked that he not be notified. In such case, the U.S. Attorney shall advise the foreign national that his consul has been notified and inform him that notification was necessary because of the treaty obligation.

(b) The procedure prescribed by this statement shall not apply to cases involving arrests made by the Immigration and Naturalization Service in administrative expulsion or exclusion proceedings, since that Service has heretofore established procedures for the direct notification of the appropriate consular officer upon such arrest. With respect to arrests made by the Service for violations of the criminal provisions of the immigration laws, the U.S. Marshal, upon delivery of the foreign national into his custody, shall be responsible for informing the U.S. Attorney of the arrest in accordance with numbered paragraph 2 of this statement.

[Order No. 375-67, 32 FR 1040, Jan. 28, 1967]

Notes of Decisions

Cited in 34 cases (2 in the last 5 years), 1999–2024 · leading case: Sorto v. State, 173 S.W.3d 469 (Tex. Crim. App. 2005).

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Sorto v. State, 173 S.W.3d 469 (Tex. Crim. App. 2005). · cites it 3× “5 (a)(1) ("In every case in which a foreign national is arrested the arresting officer shall inform the foreign national that his consul will be advised of his arrest unless he does not wish such notification to be given”); 28 C.F.R. § 50.5 (a)(2) (requiring the arresting agent…”

Osagiede v. United States, 543 F.3d 399 (7th Cir. 2008). · cites it 4× “See 28 C.F.R. § 50.5 (2003) (requiring the Department of Justice to comply with Article 36); 8 C.”

Rocha v. State, 16 S.W.3d 1 (Tex. Crim. App. 2000). · cites it 2× “" 28 C.F.R. § 50.5 (1). [5] *28 The Vienna Convention itself clearly states that it is to be enforced in accordance with the laws of Texas and of the United States.”

United States v. Alejandro Bustos De La Pava, 268 F.3d 157 (2d Cir. 2001). · cites it 2× “See Vienna Convention, art. 36(l)(b) (the “consular-notification provision”).”

Cauthern v. State, 145 S.W.3d 571 (Tenn. Crim. App. 2004). “See Notification of Consular Officers Upon the Arrest of Foreign Nationals, 28 C.F.R. § 50.5 (2004); Apprehension and Detention of Inadmissible and Deport-able Aliens, 8 C.”

Tejpaul S. Jogi v. Tim Voges, 480 F.3d 822 (7th Cir. 2007). “5(a)(1), the alien has the right to request the authorities not to notify his or her home country, unless some other treaty takes' that right away from him or her; the DHS regulation also acknowledges that particular treaties may require notification.”

Mora v. People of State of New York, 524 F.3d 183 (2d Cir. 2008). “at 9 (citing 28 C.F.R. § 50.5 (Department of Justice); 8 C.”

Bieregu v. Ashcroft, 259 F. Supp. 2d 342 (D.N.J. 2003). · cites it 2× “The provisions of Article 36 have been implemented in federal regulations, including 28 C.F.R. § 50.5 (a)(1) (“In every case in which a foreign national is arrested the arresting officer shall inform the foreign national that his consul will be advised of his arrest unless he…”

United States v. Robert Banks, Jaime Gomez, Thomas Marmolejas, Danny Mercedes, Andres Peralta, & Diego Mojica, Johnny Martinez, 464 F.3d 184 (2d Cir. 2006). “77; 28 C.F.R. § 50.5 (a)(1). It is undisputed, however, that the Dominican Republic arrested Martinez before transferring him to United States custody.”

United States v. Briscoe, 69 F. Supp. 2d 738 (D.V.I. 1999). · cites it 2× “ghts or waiver of rights form; (3) his statement was involuntary and obtained against his will; (4) the agents did not present him to the magistrate judge "without unnecessary delay" as required under Federal Rule of Criminal Procedure 5(a); (5) the agents did not tell him of…”

Hernandez v. United States, 280 F. Supp. 2d 118 (S.D.N.Y. 2003). · cites it 2× “261, and 28 C.F.R. § 50.5 , by failing to advise him of his rights to notify and communicate with his consulate, specifically the consulate of the Dominican Republic.”

Tejpaul S. Jogi v. Tim Voges, Ron Carper, David Madigan, & John Piland, 425 F.3d 367 (7th Cir. 2005). “See 28 C.F.R. § 50.5 (DOJ); 8 C.F.R. § 236.1 (e)(DHS).”

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— 28 C.F.R. § 50.5(a)(1) — 1 case

United States v. Cisneros, 397 F. Supp. 2d 726 (E.D. Va. 2005).

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