DM 06.08 - Foreign Nationals and Diplomats, U-Visa Request and Colorado State Officials.pdf

AURORA POLICE DEPARTMENT DIRECTIVES MANUAL 06.08 Title: FOREIGN NATIONALS, DIPLOMATS, U-VISA REQUESTS AND COLORADO STATE OFFICIALS Approved By: Nick Metz, Chief of Police Effective: 09/01/1998 Revised: 11/18/2016 Associated Policy: References: Article V, Section 16 of the Colorado Constitution Revie...

AURORA POLICE DEPARTMENT DIRECTIVES MANUAL 06.08 Title: FOREIGN NATIONALS, DIPLOMATS, U-VISA REQUESTS AND COLORADO STATE OFFICIALS Approved By: Nick Metz, Chief of Police Effective: 09/01/1998 Revised: 11/18/2016 Associated Policy: References: Article V, Section 16 of the Colorado Constitution Review: Department Legal Advisor 6.8 Page 1 of 6 FOREIGN NATIONALS AND DIPLOMATS For purposes of this directive, a foreign national is any person in this country who is not a United States citizen AND is not an official member of any foreign diplomatic consul. These individuals are not entitled to diplomatic or personal immunities. However, under international treaties and customary international law, the United States is obligated to notify foreign authorities when foreign nationals are arrested or incarcerated (e.g., including but not limited to Detoxification Hold, Mental Health Hold, etc.) in the United States. Foreign Diplomats are members of a diplomatic consul and are entitled to special immunities while in the United States. 6.8.1 Definitions The following definitions apply to those situations when a member is dealing with a person(s) not legally present in the United States. Criminal Offense includes any violation of a state statute for which a fine or imprisonment may be imposed, down to and including any petty offenses. A violation of an Aurora Municipal ordinance is considered a criminal offense if there is a counterpart state criminal statute or the ordinance carries a possible penalty of jail time. De-criminalized traffic offenses (infractions), both at the state level or at the municipal level are not considered criminal offenses. The status of a person “not legally present in the United States” is not in itself a criminal offense. Custodial Arrest is when a suspect is actually taken into custody and transported to a detention facility. Non-custodial Arrest is when a suspect is temporarily detained for the purposes of issuing a summons for a criminal offense, but is not formally taken into custody and transported to a detention facility. Directive Manual 6.8 FOREIGN NATIONALS, DIPLOMATS AND STATE OFFICIALS 6.8.2 Page 2 of 6 Identification of Foreign Nationals and/or Diplomats Sworn members intending to affect the arrest of a person, custodial or non-custodial, will inquire of the person’s diplomatic status. 6.8.3 Arresting Foreign Nationals When a police officer has probable cause to arrest or incarcerate a foreign national (other than a person entitled to diplomatic immunity), the following actions are required: (a) Immediately inform the foreign national of their right to have their government notified concerning the arrest or incarceration. (b) If the foreign national asks that such notification be made, the involved officer should do so as quickly as possible. The officer must notify a Detention Supervisor, who will consult the foreign embassies and consulates list in the Detention Lead office and will notify the appropriate consulate (c) If the foreign national requests that such notification not be made, the officer will notify a Detention Supervisor. Because certain countries have special treaties with the United States which requires mandatory notification without delay regardless of whether the arrestee/detainee so wishes, a Detention Supervisor will determine from the embassies and consulates list if the country in question requires notification. If required, the Detention Section Supervisor will make the notification. If not required, a Detention Supervisor will make that known to the officer and no further notification actions are necessary. The officer will document in the appropriate report that the foreign national declined notification after being advised of the right to have such notification made on their behalf. (d) If a consulate or embassy is notified, the foreign national will be advised of the action without delay. A record of the notification will be made by the officer in the offense or custody report. (e) If the designated consulate or embassy cannot be contacted by telephone, detention center personnel will contact the United States Department of State by telephone and advise a State Department member of the situation. That telephone number will also be in the Watch Commander’s office. Foreign consular officials have the right to visit their arrested or incarcerated national unless that national objects to such visits. Foreign consular officers should not take any action on behalf of that national if that national expressly opposes such action. The Aurora Detention Center S.O.P. regulates visitation. 6.8.4 Diplomatic Immunity On rare occasions, persons entitled to privileges and immunities in the United States become involved in criminal or traffic law violations. When proper identification is Directive Manual 6.8 FOREIGN NATIONALS, DIPLOMATS AND STATE OFFICIALS Page 3 of 6 available, the individual's immunity should be fully respected to the degree to which the particular individual is entitled. 6.8.5 Verifying Diplomatic Immunity When a police officer is confronted with a person claiming immunity, official Department of State identification should be immediately requested to verify the person's status and immunity. Should the individual be unable to produce satisfactory identification, and the situation would normally warrant arrest or detention, the officer should inform the individual that they will be detained until proper identity can be confirmed. 6.8.6 Immunities for Consular Officials Under prevailing international law and agreement, e.g., - The 1961 Vienna Convention on Consular Relations, a foreign career consular officer is not liable to arrest or detention pending trial except for a grave crime (a felony offense that would endanger the public safety) and pursuant to a decision by the competent judicial authority. Immunity from criminal jurisdiction is limited to acts performed in the exercise of consular functions and is subject to court determination. 6.8.7 Offense Involving Family Members of a Consular Officer Family members of a Consular Officer cannot claim immunity. However, consideration should be given to the special nature of this type case. Family members will be accorded appropriate courtesy and respect. 6.8.8 Honorary Consuls These individuals are not immune from arrest or detention. They are not entitled to personal immunity from the civil and criminal jurisdiction of the receiving state except as to official acts performed in the exercise of their consular functions. 6.8.9 Diplomatic Officers Ambassadors and Ministers are the highest-ranking diplomatic representatives of a foreign government. Other diplomatic titles are Minister Counselor, First Secretary, Second Secretary, Third Secretary, and Attaché. These officials are usually located either in Washington, D.C. or in New York City. Diplomatic officers, members of their families and their administrative and technical staff who are not nationals of the United States, have full immunity from arrest, detention, or prosecution for any criminal offense unless such immunity is expressly waived by the sending State. The above individuals also enjoy immunity from civil process except in certain actions involving private activities outside their official functions. Directive Manual 6.8 FOREIGN NATIONALS, DIPLOMATS AND STATE OFFICIALS 6.8.10 Page 4 of 6 Traffic Violations Stopping a diplomatic or consular officer and issuing a traffic summons does not constitute an arrest or detention, and is permissible even if immunity bars any further action at the scene. Officers may stop diplomats or consuls committing moving violations and issue a summons if appropriate. The diplomat or consul will not be required to sign the summons. The primary consideration in Driving Under the Influence is to see that the official is not a danger to themselves or the public. Sobriety tests may not be required. Based upon a determination of the circumstances, the following options are suggested: 6.8.11 (a) Take them to a telephone to call a relative or a friend to respond. (b) Arrange for transportation to their home or office. (c) They may be voluntarily transported to the station or other location to recover sufficiently to enable them to proceed safely. Reporting Requirements Information that may relate to the person’s citizenship to include, among other information, place of birth will be recorded on the Arrest / Booking form as an effort to properly identify a person. Information related to an arrested person’s diplomatic status (verified diplomat or not a diplomat) will be recorded in the narrative portion of the member’s report. The member will include all information related to the verification process. Requests for specific documents for the sole purpose of determining someone’s immigration status is not permitted. However, if offered by the person and not specifically at the request by the officer, it is permissible to rely on immigration documents to establish someone’s identity in response to a general request for identification. 6.8.12 U-Visa A U-Visa grants temporary resident status to a non-citizen victim or witness of crime to remain in the United States, obtain employment authorization, apply for lawful permanent resident status, and help certain family members obtain immigration status for up to four years. Directive Manual 6.8 FOREIGN NATIONALS, DIPLOMATS AND STATE OFFICIALS 6.8.13 Page 5 of 6 Qualification Requirements Congress created the U-Visa non-immigrant status in 2000 with the intention of protecting victims of certain crimes who have agreed to cooperate with law enforcement in reporting a crime and assisting in the investigation and prosecution of the incident. The U-Visa is available to non-citizens who suffer substantial physical or mental abuse resulting from a wide range of criminal activity, including domestic violence, sexual assault, felonious assault, kidnapping and many other crimes. The U.S. government has an annual limit of 10,000 U-Visas that can be issued. To qualify for a U-Visa it must be shown that: 1. The applicant has suffered substantial physical or mental abuse as a result of having been a victim of certain criminal activity; and 2. The applicant (or his/her parent, guardian, or friend if the applicant is under 16 years of age) possesses information concerning the criminal activity and “has been helpful, is being helpful, or is likely to be helpful” in the investigation or prosecution of that activity; and 3. The criminal activity occurred in the United States or its territories or possessions. 6.8.14 Application Process The applicant must submit a written certification from a federal, state, or local law enforcement official, prosecutor, judge or local authority investigating criminal activity, or from a U.S. immigration official, stating that the applicant has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the criminal activity. Application for the U-Visa is typically made through an immigration attorney and forwarded to those agencies qualified to verify the victim or witness status and level of cooperation. 6.8.15 Aurora Police Department’s Process All applications received by a member of the Aurora Police Department will be forwarded to the Office of the Chief of Police for review and consideration. The Chief of Police, or his/her designee, is the only authorized person to endorse the U-Visa application to verify the status and cooperation of the victim. Each U-Visa Directive Manual 6.8 FOREIGN NATIONALS, DIPLOMATS AND STATE OFFICIALS Page 6 of 6 application for which the Aurora Police Department is asked to provide comment will be reviewed on a case-by-case basis. The Chief of Police, or his/her designee, will consider signing the application under the following circumstances: 1. The petitioning victim or witness has provided substantial assistance during a criminal investigation; and 2. While not required, the petitioning victim or witness may be needed to testify in future trials, court hearings, appeals, parole hearings, etc; and 3. The qualifying criminal event or victimization must not be substantially attributable to, or as a result of a wrongful or criminal act on the part of the petitioning victim; and 4. Corroboration that the qualifying criminal event took place must be firmly established. The above information will be researched and corroborated by the Executive Officer of the Investigations Bureau or his/her designee. The Executive Officer of the Investigations Bureau or his/her designee will notify the prosecuting authority of the status of the U-Visa request as required by that authority and provide a copy of this directive with the notification. The Chief or his/her designee has authority to consider other factors before signing of the U-Visa application based upon the facts of each case under consideration. 6.8.16 Immunity to Colorado State Officials Article V, Section 16 of the Colorado Constitution states in part: “The members of the general assembly shall, in all cases except treason or felony, be privileged from arrest during their attendance at the sessions of their respective houses, or any committee thereof, and in going to and returning from same…” Unless the conduct of a member of the general assembly is directly related to their duty as a legislator, traffic laws, including enforcing DUI laws is permitted. Members of the general assembly can be arrested if probable cause exists for a felony charge. Summons can be issued for minor traffic violations. However, the legislator will not be arrested or detained for an undue amount of time. Immunities are not given to other Colorado State Officials.