Mora v. People of State of New York, Docket No. 06-0341-pr.

• Citation: 524 F.3d 183
• Decision Date: 24 April 2008
• Docket Number: Docket No. 06-0341-pr.
• Parties: Ricardo A. de los Santos MORA, Plaintiff-Appellant, v. The PEOPLE of the STATE OF NEW YORK, Richard A. Brown, District Att., FLushing Queens Police Dept., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

524 F.3d 183

Ricardo A. de los Santos MORA, Plaintiff-Appellant, v. The PEOPLE of the STATE OF NEW YORK, Richard A. Brown, District Att., FLushing Queens Police Dept., Defendants-Appellees.

Docket No. 06-0341-pr.

United States Court of Appeals, Second Circuit.

Argued: April 9, 2007.

Decided: April 24, 2008.

Michael Dover, Jae Lee¹ (Irena Nikolic, Jon Romberg, on the brief), Seton Hall University School of Law, Center for Social Justice, Newark, NJ, for Plaintiff-Appellant.

Alan Beckoff, Assistant Corporation Counsel (Michael A. Cardozo, Corporation Counsel of the City of New York, Leonard Koerner, Assistant Corporation Counsel, on the brief), New York City Law Department, New York, NY, for Defendants-Appellees.

Sharon Swingle, Attorney, Appellate Staff, Civil Division, United States Department of Justice, Washington, DC (James H. Thessin, Acting Legal Adviser, United States Department of State, Washington, DC; Peter D. Keisler, Assistant Attorney General, United States Department of Justice, Washington, DC; Roslynn R. Mauskopf, United States Attorney, United States Attorney's Office for the Eastern District of New York, Brooklyn, NY; Douglas N. Letter, Attorney, Robert M. Loeb, Attorney, Appellate Staff, Civil Division, United States Department of Justice, Washington, DC, on the brief), for Amicus the United States in Support of Defendants-Appellees.

Before: LEVAL, CABRANES, and RAGGI, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge:

This appeal concerns obligations imposed by Article 36 of the Vienna Convention on Consular Relations ("the Vienna Convention" or "the Convention"), Apr. 24, 1963, [1970] 21 U.S.T. 77, 100-101, T.I.A.S. No. 6820. When a national of one country is detained by authorities in another country, paragraph 1 of Article 36 imposes several requirements. Paragraph 1(b) contains three obligations: (1) "the authorities must notify the consular officers of the detainee's home country if the detainee so requests"; (2) any communication to the consular officials by a detained alien "shall also be forwarded by the said authorities without delay"; and (3) the detaining authorities "shall inform the person concerned without delay of his rights under this sub-paragraph." 21 U.S.T. at 101-02. Under paragraph 1(c), consular officials of the state of the detained alien "shall have the right to visit." We consider here the third of the paragraph 1(b) requirements—the obligation of States-parties to inform a detained alien of the availability of consular notification and access.²

For three decades after the ratification of the Convention by the United States in 1963, it appears that no claim was asserted that the Convention generally, or Article 36(1)(b)(third) in particular, conferred rights upon individuals that could be enforced in our domestic courts, as distinguished from the customary claims of treaty violations asserted by and between States-parties in their international relations. Understandably, a passing suggestion by the Supreme Court in Breard v. Greene, 523 U.S. 371, 376, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998) (per curiam), that the Convention "arguably confers on an individual the right to consular assistance following arrest," triggered an outpouring of conflicting case law on various permutations of the broad question of whether the Convention confers upon individuals any rights that can be enforced in our courts. The particular settings in which this broad question has arisen are many, and some are set forth in the margin.³ We consider here only the narrow question of whether a detained alien may vindicate in an action for damages the failure of the detaining authority to inform him of the availability of consular notification and access.⁴ For the reasons set forth below, we conclude that no such action can be maintained.

Similar questions have arisen both in the context of civil suits for damages by foreign nationals, such as the case presented here, and in the context of criminal trials and postconviction proceedings involving foreign nationals, see note 3 ante. The Supreme Court has thus far avoided answering those questions, see Medellín v. Texas, 552 U.S. ___, n. 4, 128 S.Ct. 1346, 1357 n. 4, ___ L.Ed.2d ___ (2008) (assuming, without deciding, that Article 36 creates judicially enforceable individual rights); Sanchez-Llamas v. Oregon, 548 U.S. 331, ___, 126 S.Ct. 2669, 2677-78, 165 L.Ed.2d 557 (2006) (same), although four Justices have expressed the view that these questions should be answered in the affirmative, see id. at 2693-98 (Breyer, J., dissenting, joined by Stevens, Souter, & Ginsburg, JJ.). Our sister Courts of Appeals are split. Compare Cornejo v. County of San Diego, 504 F.3d 853, 859-64 (9th Cir.2007) (concluding that Article 36's obligation to inform aliens of their right to consular notification does not create judicially enforceable individual rights), United States v. Emuegbunam, 268 F.3d 377, 391-94 (6th Cir.2001) (same), and United States v. Jimenez-Nava, 243 F.3d 192, 196-98 (5th Cir.2001) (same), with Jogi v. Voges, 480 F.3d 822, 834-35 (7th Cir.2007) (concluding that Article 36 creates individual rights to be informed of consular notification and access that can be vindicated in a private action). And in cases where the majority did not reach the question, non-majority opinions reflect similarly divergent conclusions. Compare United States v. Santos, 235 F.3d 1105, 1109 (8th Cir. 2000) (Beam, J., concurring) (concluding that Article 36 does not create a judicially enforceable individual right to be informed of a right to consular notification upon arrest), and United States v. Li, 206 F.3d 56, 66-68 (1 st Cir.2000) (en banc) (Selya & Boudin, JJ., concurring) (same), with Li, 206 F.3d at 68-76 (Torruella, J., concurring in part and dissenting in part) (concluding that Article 36 creates a judicially enforceable individual right to be advised about the prospect of consular assistance).

Our Court has yet to speak definitively on the question. In United States v. De La Pava, 268 F.3d 157 (2d Cir.2001), an appeal from a criminal conviction, we considered whether it was necessary to vacate a conviction where the defendant argued that he had received ineffective assistance of counsel because his lawyer had not moved to dismiss the indictment on the basis of an alleged violation of Article 36(1)(b) (third), id. at 163. We determined that a violation of Article 36's obligation to inform aliens of the prospect of consular notification and access does not provide a basis for the dismissal of an indictment, and therefore it is not ineffective assistance of counsel for a lawyer not to request dismissal on this basis. See id. at 165-66.

We are thus required to consider the thoughtful, if conflicting, arguments of some of our colleagues elsewhere in the federal courts. For the reasons stated below, and in keeping with the apparent practices of the other States-parties to the Convention,⁵ we conclude that Article 36's obligation to inform detained aliens of the prospect of consular notification and access cannot, when violated, be vindicated by a private action for damages filed in our courts. We find that the text of the Vienna Convention and its context make clear that Article 36(1)(b)(third) does not afford detained aliens with individual rights that they can assert through such litigation. Interpretive principles, such as the presumption that treaties do not create privately enforceable rights in the absence of express language to the contrary, counsel against such an interpretation here. See Medellín, 552 U.S. at ___ n. 3, 128 S.Ct. at 1357 n. 3 (collecting cases in the court of appeals acknowledging such a presumption). Pursuant to the instructions of the Supreme Court with respect to the deference owed to the views of the Executive on issues of treaty interpretation, we accord "great weight," Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 184, 102 S.Ct. 2374, 72 L.Ed.2d 765 (1982), to the settled view of the Executive under successive national administrations. See Li, 206 F.3d at 63 (noting in 2000, during the Clinton Administration, the view of the Executive that the Vienna Convention does not create individual rights); id. at 63-64 (charting the views of the Executive since 1970); see also Amicus's Br. 5; note 28 post. Finally, the views of the International Court of Justice ("ICJ") on this issue do not persuade us otherwise. We further conclude that plaintiff's claims for violation of Article 36(1)(b)(third) do not give rise to a cause of action under the Alien Tort Statute.

The judgment of the United States District Court for the Eastern District of New York (Raymond J. Dearie, Judge), which dismissed plaintiff-appellant's complaint pursuant to 28 U.S.C. § 1915A⁶ for failure to state a claim upon which relief can be granted, is therefore affirmed.

BACKGROUND

A. The Vienna Convention

The Vienna Convention is the product of the United Nations Conference on Consular Relations ("the Conference"), which met in the capital of Austria in March and April of 1963. Working from a draft prepared by the International Law Commission,⁷ representatives from the governments of 92 countries, including the United States, came together to draft the final document. See generally Luke T. Lee, Vienna Convention on Consular Relations 15-18 (1966). One commentator has noted that, "[a]s the first conference of this kind participated in by states from all parts of the world, it had to strive toward as broad an area of agreement as possible, acceptable to states old and new, whatever their political and economic systems." Id. at 16. The President of the United States, upon the advice and consent of the Senate, ratified the Convention in 1969. 21 U.S.T. at 77. As of 2006, 170 countries were party to the Convention. Sanchez-Llamas, 126 S.Ct. at 2674.

The Vienna Convention consists of a preamble and 79 articles. Article 36, which "concerns consular officers' access...