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 every foreign national, who has been arrested, of his or her right to contact the embassy for assistance.  In United States v. Lombera-Camorlinga,[443] 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, such as by invalidating a guilty plea that would not have been entered if the treaty had not been violated.

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.  See § 6.8(B), supra.

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.

            The issue may be raised during state criminal proceedings.[444]

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

[444] Zapata v. State, 12 S.W.3d 178 (Tex.App. Feb. 23, 2000), opinion withdrawn and superseded on reconsideration, see Zapata v. State, 15 S.W. 3d 661 (Apr. 26, 2000) (Vienna Convention on Consular Relations conveys standing to contest violations of  treaty).