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      POLICY AND PROCEDURE               NO.455   
  
 
  
  
 
 
This policy discusses two related yet distinct concepts. It is importa nt that all officers and officials 
thoroughly familiarize themselves with both of them, as well as their respective requisite procedures.   
 
1. DIPLOMATIC IMMUNITY DEFINED: 
 
Diplomatic immunity is a principle of international law by which certain foreign gove rnment 
officials are not subject to the jurisdiction of local courts and other authorities for both their 
official and, to a large extent, their personal activities. As a matter of international law, diplomatic 
immunity was primarily based on custom and international practice until quite recently. In the 
period since World War II, a number of international conventions (most noteworthy, the Vienna 
Convention on Diplomatic Relations and the Vienna Convention on Consular Relations) have been 
concluded. These c onventions have formalized the customary rules and made their application 
more uniform. 
 
The purpose diplomatic immunity is often misunderstood by the citizens of this and other 
countries, often on account of occasional abuses of diplomatic immunity. Dealing with the concept 
of immunity poses particular problems for law enforcement officers who, by virtue of their oath 
and training, are unaccustomed to granting special privileges or concessions to individuals who 
break the law. On the other hand, police off icers that understand the importance of diplomatic 
immunity may be inclined to be overly generous in its application if they do not have a full 
understanding of its parameters. 
The term diplomatic immunity is popularly, and erroneously, understood to refer  to special 
protections afforded all employees of foreign governments who are present in the United States as 
official representatives of their home governments. Law enforcement officials, however, must 
have a more sophisticated understanding of the concept. There are over 100,000 representatives of 
foreign governments, including dependents, in the United States. Many of these persons may be 
entitled to some degree of immunity under international law. Some of these persons are members 
of diplomatic missions , others are assigned to consular posts, and still others are employees of 
international organizations or members of national missions to such international organizations. 
For each of these categories of persons, particular rules apply and, even within the se categories, 
different levels of immunity may be accorded to different classes of persons. Most of these persons 
are assigned to Washington, D.C., and New York City, but large numbers are assigned in other 
major cities around the country. Moreover, nearl y all of these persons are free to travel around the 
country either on official business or for pleasure. 
The special privileges and immunities accorded foreign diplomatic and consular representatives 
assigned to the United States reflect rules developed among the nations of the world regarding the 
manner in which civilized international relations must be conducted. The underlying concept is 
that foreign representatives can carry out their duties effectively only if they are accorded a 
Detention of Foreign Nationals 
Date Issued 
March 3, 2006 
Date Effective 
March 3, 2006 
Revision No.  
        
No. of pages 
19 
1 
 

certain degree of ins ulation from the application of standard law enforcement practices of 
the host country. The United States benefits greatly from the concept as it protects U.S. diplomats 
assigned to countries with judicial systems far different from our own. 
While customar y international law continues to refine the concepts of diplomatic and consular 
immunity, the basic rules are currently embodied in international treaties. These treaties have been 
formally adopted by the United States and are, therefore, pursuant to the U .S. Constitution, ‘the 
supreme law of the land." The U.S. Government is legally bound to ensure that its states and 
municipalities respect such privileges and immunities. 
U.S. law regarding diplomatic immunity has been codified in the Diplomatic Relations Act (22 
U.S.C. 254). The principal purpose of this 1978 Act was to bring U.S. law into line with the 1961 
Vienna Convention on Diplomatic Relations (which entered into force for the United States in 
1972). The 1978 Act imposed a more precise regime and reduced the degree of immunity enjoyed 
by many persons at diplomatic missions. 
On a practical level, failure of the authorities of the United States to respect fully the immunities of 
foreign diplomatic and consular personnel may complicate diplomatic relations between the United 
States and the other country concerned. It may also lead to harsher treatment of U.S. personnel 
abroad. The principle of reciprocity has, from the most ancient times, been integral to diplomatic 
and consular relations. 
It should he em phasized that even at its highest level, diplomatic immunity does not exempt 
diplomatic officers from the obligation of conforming with national and local laws and 
regulations. Diplomatic immunity is not intended to serve as a license for persons to flout the law 
and purposely avoid liability for their actions. The purpose of these privileges and immunities is 
not to benefit individuals, but to ensure the efficient and effective performance of their official 
missions on behalf of their governments. This is a crucial point for law enforcement officers to 
understand in their dealings with foreign diplomatic and consular personnel. While police officers 
are obliged, under international customary and treaty law, to recognize the immunity of the 
envoy, they must not ignore or condone the commission of crimes.  As is explained in greater 
detail below, adherence to police procedures in such cases is often essential in order for the 
United States to formulate appropriate measures through diplomatic channels to deal wi th 
such offenders. 
2. DETERMINING WHETHER A PARTICULAR INDIVIDUAL POSSESSES VALID 
DIPLOMATIC IMMUNITY:  
 
A person is not entitled to Diplomatic Immunity merely because he or she is a foreign 
national/citizen of another country. Diplomatic Immunity is reserved  to A) Ambassadors; B) 
Consular Officials and members of diplomatic missions; C) employe es of international 
organizations or members of national missions to such international organizations; and D) 
Immediate family members of A&B who are in the United States as representatives of their 
country and on official business. Thus, if during the response or investigation of a crime a 
person claims that he is entitled to Diplomatic Immunity, the investigating officer shall 
request that the person produce official U nited States Department of State Identification, in 
order to confirm that person’s claimed status. Thus, the issue is raised only  when a person 
claims diplomatic immunity and presents a valid official United States Department of State 
Identification.  
2 
 

 
If such identification is not or cannot be produced at the time that the officer encounters such 
person, or if it’s validity and or the identity of the person actually entitled to diplomatic immunity 
is in question, and the situation would normally require ar rest or detention, the officer shall notify 
the individual he/she will be detained until proper identity can be confirmed. 
3. HANDLING INCIDENTS: 
A FIELD PROCEDURE AFTER DETERMINING THAT IMMUNITY EXISTS -- During the 
response to or investigation of a crime whe re a person claims diplomatic immunity, the 
investigating police officer should request official United States Department of State 
Identification.  In most cases, diplomatic immunity precludes arrest, detention and intrusion of 
residences, automobiles and other property. However, some exceptions exist for extra -ordinary 
circumstances, e.g., where danger to public safety is imminent, or when it is necessary to prevent 
the commission of a crime. In such circumstances, police may intervene to the extent necess ary to 
halt such activity. 
I. Immunity Confirmed: No Suspicion of Criminal Activity--The most likely scenario for this 
occurrence during an encounter with the police will be a routine traffic stop. Normal 
procedures are to be followed regarding traffic enforcement, and issuing traffic citations is 
permissible.  However, the vehicle of a person who has bona fides diplomatic immunity may 
not be impounded or towed unless it is stolen has been used in the commission of a crime, or it 
presents an imminent danger to public safety. Under these circumstances, the usual 
inviolability of such vehicles is relinquished. 
II. Immunity Confirmed: Suspicion of Criminal Activity --It is the policy of the U.S. Department 
of State, with respect to alleged criminal violations by person s with immunity from criminal 
jurisdiction, to encourage law enforcement authorities to pursue investigations vigorously, to 
prepare cases carefully and completely, and to document properly each incident so that charges 
may be pursued as far as possible in  the U.S. judicial system.
1  When a law enforcement 
officer is called to the scene of a criminal incident involving a person who claims 
diplomatic or consular immunity, the first step should be to verify the status of the 
suspect. Should the person be unable to produce satisfactory identification and the situation is 
one that would normally warrant arrest or detention, the officer should inform the individual 
that he or she will be detained until his or her identity can be confirmed. In all cases, 
including those in which the suspect provides a State Department issued identification 
card, the officer shall verify the status with the U.S. Department of State or in the case of 
the United Nations (UN) community, with the U.S. Mission to the United Nations.  Once 
the status is verified, the officer shall prepare his or her report, fully describing the 
details and circumstances of the incident in accordance with normal police procedures. If 
the suspect enjoys personal inviolability, he or she may not be handcuffed,  except when 
that individual poses an immediate threat to safety, and may not be arrested or detained. 
Once all pertinent information is obtained, that person must be released.  A copy of the 
incident report should be faxed or mailed to the U.S. Department of State in Washington, D.C. 
or to the U.S. Mission to the UN in New York in cases involving the UN community, as soon 
as possible. Detailed documentation of incidents is essential to enable the U.S. Department of 
State to carry out its policies. 
III. Traffic E nforcement: Stopping a mission member or dependent and issuing a traffic 
citation for a moving violation does not constitute arrest or detention and is permitted. 
However, the subject may not be compelled to sign the citation.  In all cases, officers shall 
3 
 

follow the department’s normal guidelines and procedures and document the facts of the case 
fully. A copy of the citation and any other documentation regarding the incident should be 
forwarded to the U.S. Department of State as soon as possible. For "must appear" offenses, the 
Department uses the citation and any report as the basis for requesting an "express waiver of 
immunity." Individuals cited for pre-payable offenses are given the option of paying the fine or 
obtaining a waiver in order to contest the charge. 
In serious cases (e.g., OUI, personal injury, accidents), telephonic notification to the U.S. 
Department of State is urged. The officer shall follow the department’s guidelines with respect 
to the conduct of a field sobriety investigation. If appro priate, standardized field sobriety 
testing should be offered and the results fully documented. The taking of these tests may 
not be compelled.  If the officer judges the individual too impaired to drive safely, the 
officer should not permit the individual to continue to drive (even in the case of 
diplomatic agents). Depending on the circumstances, there are several options. The officer 
may, with the individual’s permission, take the individual to the police station or other 
location where he or she may reco ver sufficiently to drive; the officer may summon, or 
allow the individual to summon, a friend or relative to drive; or the police officer may call 
a taxi for the individual. If appropriate, the police may choose to provide the individual 
with transportation.
2 
IV. Searches & Towing After a M.V. Stop:  The property of a person enjoying full criminal 
immunity, including his or her vehicle, may not be searched or seized. Such vehicles may 
not be impounded or "booted" but may be towed the  distance necessary to remov e them 
from obstructing traffic or endangering public safety . If a vehicle that is owned by a 
diplomat is suspected of being stolen or used in the commission of a crime, occupants of the 
vehicle may be required to present vehicle documentation to permit police verification of the 
vehicle’s status through standard access to NLETS (use access code US). Should the vehicle 
prove to have been stolen or to have been used by unauthorized persons in the 
commission of a crime, the inviolability to which the vehicle would normally be entitled 
must be considered temporarily suspended, and normal search of the vehicle and, if 
appropriate, and its detention, are permissible. 
V. Parking Violations: Vehicles registered to consular officials, including those with full criminal  
immunity, and consulates are not inviolable and may be towed, impounded, or booted in 
accordance with local procedures. The U.S. Department of State should be notified if a 
consular vehicle has been detained or impounded so that its Office of Foreign Miss ions can 
follow up with the proper consular official or mission. 
VI. Federal License Plates: These plates, which are issued by the U.S. Department of State, are not 
the property of a diplomat or of a diplomatic mission and remain the property of the State 
Department at all times. As such, they must be surrendered to the U.S. Department of State 
when recalled. Similarly, these license plates may not be transferred from the vehicle to which 
they were assigned by the U.S. Department of State without the authorizat ion of its Office of 
Foreign Missions. 
 
In cases where the officer at the scene has determined that the vehicle is being operated 
without insurance and/or has verified with the U.S. Department of State that the vehicle 
bearing U.S. Department of State lice nse plates is not the vehicle for which those plates were 
intended, the State Department may request that the local law enforcement agency impound the 
plates and return them to the State Department. Such impoundment should only be upon the 
4 
 

request of the U .S. Department of  State. Subsequent detention of the vehicle must conform 
to the guidelines above. 
4. CONCLUSION/SUMMARY OF DIPLOMATIC IMMUNITY:  
It is important that law enforcement and judicial authorities of the United States always treat foreign 
diplomatic and consular personnel with respect and with due regard for the privileges and immunities 
to which they are entitled under international law. Any failure to do so has the potential of casting 
doubt on the commitment of the United States to carry out its international obligations or of negatively 
influencing larger foreign policy interests. As stated above, however, appropriate caution should not 
become a total "hands off’ attitude in connection with criminal law enforcement actions involving 
diplomats. 
Foreign diplomats who violate traffic laws should be cited. Allegations of serious crimes should be 
fully investigated, promptly reported to the U.S. Department of State, and procedurally developed to 
the maximum permissible extent. Local law enforcement aut horities should never be inhibited in their 
efforts to protect the public welfare in extreme situations. The U.S. Department of State should be 
advised promptly of any serious difficulties arising in connection with diplomatic or consular 
personnel. Law enforcement and judicial authorities should feel free to contact the U.S. Department of 
State for general advice on any matter concerning diplomatic or consular personnel. For further 
information call Clay Hays at 202-895-3519. 
5. NOTIFICATION PROCEDURE AFTER DETENTION/ARREST OF FOREIGN 
NATIONAL:
3 
 
Whenever a foreign national is taken into custody or detained, the official in- charge of the Service 
Division shall be notified.  If the detainee is a national of a country, which requires mandatory 
notification (see attachment), the nearest consulate or embassy shall then be notified without delay and 
the detainee should be advised:   
“Because of your nationality, we are required to notify your country’s consular  representatives 
here in the United States that you have  been arrested or detained. After your consular officials 
are notified, they may call or visit you.  You are not required to accept their assistance, but they 
may be able to help you obtain legal counsel and may contact your family and visit you in 
detention among other things.  We will be notifying your country’s consular officials as soon as 
possible.” 
Where notification is at the foreign national’s option the detainee should be advised: 
“As a non-U.S. citizen who is being arrested or detained, you are en titled to have us notify your 
country’s consular representatives here in the United States.  A consular official from your 
country may be able to help you obtain legal counsel, and may contact your family and visit you 
in detention, among other things.  If  you want us to notify your country’s consular officials, you 
can request this notification now, or at any time in the future.  After your consular officials are 
notified, they may call or visit you.  Do you want us to notify your country’s consular officials?” 
 
If notification is requested, it must be given without delay to the nearest consulate or embassy. 
 
In exceptional cases and urgent situations/inquiries after normal business hours, personnel may be 
guided in their decision(s) by contacting the State Department Center at (202)-647-1512.  
 
SUMMARY OF REQUIREMENTS PERTAINING TO FOREIGN NATIONALS: 
5 
 

 
1. Determine the foreign national's country. In the absence of other information, assume this is 
the country on whose passport or other travel documents the foreign national travels. 
2. When foreign nationals are arrested or detained, they must be advised of the right to have their 
consular officials notified. In some cases, the nearest consular officials must be notified of the 
arrest or detention of a foreign national, regardless of the national's wishes. (Please refer to the 
list of countries in this category at the end of this document.) If the foreign national's country is 
not on the mandatory notification list:  
• Offer, without delay, to notify the foreign national's consular officials of the 
arrest/detention.  
• If the foreign national asks that consular notification be given, notify the nearest consular 
officials of the foreign national's country without delay.  
3. Consular officials are entitled to access to their nationals in detention, and are entitled to 
provide consular assistance, including the rights to converse and correspond with them, and to 
arrange for their legal representation. 
4. When a government official becomes aware of the death of foreign national, consular officials 
must be notified.  
5. When a guardianship or trusteeship is being considered with respect to a foreign national who 
is a minor or incompetent, consular officials must be notified.  
6. When a foreign ship or aircraft wrecks or crashes, consular officials must be notified. 
7. Keep a written record of the provision of notification and actions taken. A written report fully 
documenting any incident and notifications involving a foreign national will be forwarded 
through channels to the Chief’s Office.  A copy of this report will be forwarded to the 
Department of State.  The Department of State can suspend the foreign national’s license and 
its policy in DWI infractions. 
8. Regardless of detention and/or release of foreign nationals, any criminal investigations will be 
continued to their natural conclusion.  Immunity is not an absolute bar to prosecution but is 
merely a legal barrier to jurisdiction.  Subsequent prosecution may be possible if there is a 
waiver of immunity or the person leaves their protected position or immunity is otherwise 
terminated. 
Always remember, these are mutual obligations that also pertain to American citizens abroad. In 
general, you should treat a foreign national as you would want an American citizen to be treated in a 
similar situation in a foreign country. This means prompt, courteous notification to the foreign national 
of the possibility of consular assistance, and prompt, courteous notification to the foreign national's 
nearest consular officials so that they can provide whatever consular services they deem appropriate.  
Inquiries concerning the foregoing may be addressed to: 
Office of Public Affairs and Policy Coordination for Consular Affairs 
CA/P, Room 4800 
United States Department of State 
Washington, D.C.   20520 
Telephone: (202)-647-4415;  Fax: (202)-736-7559 
Email: consnot@state.gov 
  
Telephone inquiries after normal business hours may be directed to the State Department 
Operations Center at (202)-647-1512. 
  
  
6 
 

COUNTRIES WITH MANDATORY NOTIFICATION: 
  
ALGERIA     MALAYSIA 
ANGUILLA     MALTA 
ANTIGUA AND BARBUDA  MAURITIUS 
ARMENIA     MOLDOVA 
AZERBAIJAN    MONGOLIA 
BAHAMAS     MONTSERRAT 
BARBADOS     NIGERIA 
BELARUS     PHILIPPINES 
BELIZE     POLAND 
BERMUDA     ROMANIA 
BRITISH VIRGIN ISLANDS  RUSSIA 
BRUNEI     ST.  KITTS/NEVIS 
BULGARIA     ST. LUCIA 
CHINA     ST. VINCENT/GRENADINES 
COSTA RICA     SEYCHELLES 
CYPRUS     SIERRA LEONE 
CZECH REPUBLIC    SINGAPORE 
DOMINICA     SLOVAKIA 
FIJI      TAJIKISTAN 
GAMBIA     TANZANIA 
GEORGIA     TONGA 
GHANA     TRINIDAD AND TOBAGO 
GRENADA     TUNISIA 
GUYANA     TURKMENISTAN 
HONG KONG    TURKS AND CAICOS ISLANDS 
HUNGARY     TUVALU 
JAMAICA     UKRAINE 
KAZAKHSTAN    UNITED KINGDOM 
JAMAICA     U.S.S.R. (Former) 
KIRIBATI     UZBEKISTAN 
KUWAIT     ZAMBIA 
KYRGYZSTAN    ZIMBABWE 
  
F.A.Q.’S4 
QUESTIONS ABOUT CONSULAR OFFICERS: 
Q. What is a "consular officer?"  
A. A consular officer is a citizen of a foreign country employed by a foreign 
government and authorized to provide assistance on behalf of that government to that 
government's citizens in a foreign country. Consular officers are generally assigned to 
the consular section of a foreign government's embassy in Washington, DC, or to 
consular offices maintained by the foreign government in locations in the United States 
outside of Washington, DC.  
Q. What is a "consul?"  
7 
 

A. The terms "consular officer" and "consul" mean the same thing, for purposes of the 
issues discussed in this booklet.  
Q. How is a consular officer different from legal "counsel?"  
A. The term "consul" should not be confused with "couns el," which means an attorney-
at-law authorized to provide legal counsel and advice.  
Q. What is an "honorary consul?"  
A. An honorary consul is a citizen or lawful permanent resident of the United States 
who has been authorized by a foreign government to perform official functions on its 
behalf in the United States.  
Q. Is an honorary consul to be treated in the same way as a consular officer?  
A. Yes, when an honorary consul is performing the kinds of functions addressed in this 
booklet. A foreign governme nt can authorize its honorary consuls to perform prison 
visits or even to accept consular notification on the government's behalf. As a practical 
matter, however, since honorary consuls and their addresses and phone numbers may 
change more frequently than the phone numbers of embassies and consulates, the 
Department of State assumes that consular notification will generally be given to 
consular officers who serve at an embassy or consulate. Such officers may then ask an 
honorary consul closer to the actual place of detention to visit the detained alien.  
Q. How are diplomatic officers different from consular officers?  
A. A diplomat is an officer of a foreign government assigned to an embassy in 
Washington, DC Many diplomatic officers are authorized by their  governments to 
perform consular functions, and thus to act as consular officers.  
Q. Should I treat a diplomatic officer the same as a consular officer?  
A. Yes, for purposes of the matters discussed in this booklet. Consular notification can 
be given to a diplomatic officer if no consular officer is closer or available. A 
diplomatic officer should be permitted to conduct prison visits and to perform the other 
kinds of consular functions discussed herein.  
Q. How can I be sure that someone who claims to be  a consular officer, a consul, an honorary consul, 
or a diplomatic officer is in fact one?  
A. Diplomatic and consular officers (including consuls and honorary consuls) have 
identification cards issued by the Department of State. The cards look like the cards 
shown in Part One. If you have any doubt about the authenticity of a State Department 
identification card, you can call the State Department's Office of Protocol at 202 -647-
1985 to have the identity and status of the official verified during business hours (8:15 
a.m. - 5:00 p.m., EST). Outside of those hours, you may call 202-647-7277.  
8 
 

QUESTIONS ABOUT FOREIGN NATIONALS: 
 
Q. Who is a "foreign national?"  
A. For the purposes of consular notification, a "foreign national" is any person who is 
not a U.S. citizen.  
Q. Is a foreign national the same as an "alien?"  
A. Yes. The terms "foreign national" and "alien" are used interchangeably.  
Q. Is a person with a U.S. "green card" considered a foreign national?  
A. Yes. Lawful permanent resident aliens, who have a resident alien registration card 
(BCIS Form I-551), commonly known as a "green card," retain their foreign nationality 
and must be considered "foreign nationals" for the purposes of consular notification.  
Q. Do I have to ask everyone I arrest or detain whether he or she is a foreign national?  
A. No, although some law enforcement entities do routinely ask persons taken into 
detention whether they are U.S. Citizens. If a detainee claims to be a U.S. citizen in 
response to such a question, you generally can rely on that assertion and assume that 
consular notification requirements are not relevant. If you have reason to question 
whether the person you are arresting or detaining is a U.S. citizen, however, you should 
inquire further about nationality so as to determine whether any consular notification 
obligations apply.  
Q. Short of asking all detainees about their nationality, how might I know that someone is a foreign 
national?  
A. A foreign national may present a foreign passport or an alien registration document 
as identification. If they present a document that indicates birth outside the United 
States, or claim to have been born outside the United States, they may be a foreign 
national. (Most, but not all, persons born in the United States are U.S. cit izens; most, 
but not all, persons born outside the United States are not.) Unfamiliarity with English 
may also indicate foreign nationality. Such indicators could be a basis for asking the 
person whether he/she is a foreign national.  
Q. What about undocumented and "illegal" aliens?  
A. All foreign nationals are entitled to consular notification and access, regardless of 
their visa or immigration status in the United States. Thus "illegal" aliens have the same 
rights to consular assistance as do "legal" ali ens. There is no reason, for purposes of 
consular notification, to inquire into a person's legal status in the United States.  
Q. What about dual nationals?  
9 
 

A. A person who is a national/citizen of two or more countries other than the United 
States should be treated in accordance with the rules applicable to each of those 
countries.  
A person who is a citizen of the United States and an- other country may be treated 
exclusively as a U.S. citizen when in the United States. In other words, consular 
notification is not required if the detainee is a U.S. citizen. This is true even if the 
detainee's other country of citizen-ship is a mandatory notification country.  
QUESTIONS ABOUT WHO IS RESPONSIBLE FOR CONSULAR NOTIFICATION: 
  
Q. Who is actually responsible for notification?  
A. The responsibility for consular notification, whether in the case of an arrest and 
detention, a death, or the appointment of a guardian for a foreign national, lies with 
what are generally called "competent authorities." This term is und erstood to mean 
those officials, whether federal, state, or local, who are responsible for legal action 
affecting the foreign national and who are competent, within their legal authorities, to 
give the notification required. This interpretation makes sense  as a practical matter: 
compliance with the notification requirements works best when it is assumed by those 
government officials closest to the foreign national's situation and with direct 
responsibility for it.  
Q. Who is responsible for notification of arrests and detentions?  
A. The law enforcement officers who actually make the arrest or who assume 
responsibility for the alien's detention ordinarily should make the notification.  
Q. What is the responsibility of judicial officials and prosecutors for notification of arrests and 
detentions?  
A. Because they do not hold foreign nationals in custody, judicial officials and 
prosecutors are not responsible for notification. The Department of State nevertheless 
encourages judicial officials who preside over a rraignments or other initial appearances 
of aliens in court to inquire at that time whether the alien has been provided with 
consular notification as required by the VCCR and/or any bilateral agreement providing 
for mandatory notification. The Department a lso encourages prosecutors to make 
similar inquiries. Inquiries such as these will help promote compliance with the 
consular notification procedures and facilitate the provision of consular assistance by 
foreign governments to their nationals.  
Q. Who is responsible for notification of deaths and of sea and air wrecks?  
A. Notification should be made by the appropriate state or local authority, be it a 
coroner or a probate court official. In cases of serious injury, wrecks, accidents, or 
major disasters (su ch as an airline crash), the competent authority may vary, but 
government officials responsible for such situations should ensure that notification is 
given when required.  
10 
 

Q. Who is responsible for notification of appointments of guardians?  
A. Notification should be made by probate court officials or by representatives of the 
state or local equivalent of an attorney general, or by any other appropriate official 
involved in the guardianship process.  
Q. Why are state and local government officials expected to provide such notification?  
A. State and local governments must comply with the consular notification and access 
obligations because these obligations are embodied in treaties that are the law of the 
land under the Supremacy Clause of the United States  Constitution. The federal 
government, however, would be responsible for a dispute with a foreign government 
concerning obligations under the relevant treaties.  
QUESTIONS ABOUT WHEN CONSULAR NOTIFICATION SHOULD BE GIVEN: 
 
Q. What kinds of detentions are covered by this obligation?  
A. The VCCR provides for informing the foreign national of the right to consular 
notification and access if the national is "arrested or committed to prison or to custody 
pending trial or is detained in any other manner." While there is no explicit exception 
for short detentions, the Department of State does not consider it necessary to follow 
consular notification procedures when an alien is detained only momentarily, e.g., 
during a traffic stop. On the other hand, requiring a f oreign national to accompany a 
law enforcement officer to a place of detention may trigger the consular notification 
requirements, particularly if the detention lasts for a number of hours or overnight. The 
longer a detention continues, the more likely it is that a reasonable person would 
conclude that the Article 36 obligation is triggered.  
Q. Do we have to inform and notify even when the detention is only while a traffic citation is written, 
or for a similar brief time?  
A. No. The VCCR on its face requi res informing a foreign national that a consular 
official may be notified whenever a foreign national is arrested or detained in any 
manner, without distinguishing arrests that do not result in a significant detention. The 
purpose of this requirement, howe ver, is to ensure that a government does not place an 
alien in a situation in which the alien cannot receive assistance from his/her own 
government. When an alien is cited and immediately released, this consideration is not 
relevant because the alien is fr ee to contact consular officials independently. The 
Department of State therefore does not consider brief routine detentions, such as for 
traffic violations or accident investigations, to be the type of situation contemplated by 
the VCCR.  
Q. If we have a foreign national detained in a hospital, do we have to provide consular notification?  
A. Yes, if the foreign national is detained pursuant to governmental authority (law 
enforcement, judicial, or administrative) and is not free to leave. He/she must be tr eated 
like a foreign national in detention, and appropriate notification must be provided.  
11 
 

Q. Are aliens in immigration detention covered by the consular notification requirement?  
A. Yes, as a general matter. Consular notification is provided for in the Bureau of 
Citizenship and Immigration Services in the Department of Homeland Security's 
regulations (8 C.F.R. 236.1(e)). The Department of State does not, however, ordinarily 
consider aliens who are found inadmissible at a port of entry and required to rem ain 
there until they can depart to be detained within the meaning of the VCCR. 
Immigration officials may permit such aliens access to consular officials as a matter of 
discretion, however--e.g., in situations where the detention becomes prolonged because 
onward transportation is significantly delayed.  
Q. Do I have to give a foreign national consular notification even if I give the Miranda warning?  
A. Yes. Consular notification should not be confused with the Miranda warning, which 
is given regardless of n ationality to protect the individual's constitutional rights against 
self-incrimination and to the assistance of legal counsel. Consular notification is given 
as a result of international legal requirements, so that a foreign government can provide 
its nationals with whatever consular assistance it deems appropriate. You should follow 
consular notification procedures with respect to detained foreign nationals in addition to 
providing Miranda or other warnings when required.  
Q. If the alien's government is aware of the case and helping with our investigation, should we still go 
through the process of notification?  
A. Yes. It is important to distinguish between a government's consular officials and 
other officials, such as law enforcement officers, who have different functions and 
responsibilities. Even if law enforcement officials of the alien's country are aware of the 
detention and are helping to investigate the crime in which the alien was allegedly 
involved, it is still important to ensure that consular notification procedures are 
followed.  
QUESTIONS ABOUT HOW CONSULAR NOTIFICATION SHOULD BE GIVEN: 
 
Q. How quickly do I need to inform the detainee of the right to consular notification?  
A. The VCCR requires that a foreign national be notified "without delay" of the right to 
consular assistance. There should be no deliberate delay, and notification should occur 
as soon as reasonably possible under the circumstances. Once foreign nationality is 
known, advising the national of the right to consular notificati on should follow 
promptly.  
In the case of an arrest followed by a detention, the Department of State would 
ordinarily expect the foreign national to have been advised of the possibility of consular 
notification by the time the foreign national is booked f or detention. The Department 
encourages judicial authorities to confirm during court appearances of foreign nationals 
that consular notification has occurred as required.  
Q. Does the notification to the foreign national have to be in writing?  
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A. No. You may inform the detainee orally or in writing. Providing the notification in 
writing may be helpful, however, particularly when the foreign national does not 
clearly understand English. A sample notification statement is on page 7 of this 
booklet; translations of the statement into a number of foreign languages are in Part 
Four. In addition, the Department of State strongly recommends that a written record of 
the fact of notification be maintained.  
Q. If the foreign national requests that consular officials be notified, how quickly do I have to do so?  
A. This notification should also occur "without delay" after the foreign national has 
requested that it be made. The Department of State also considers "without delay" here 
to mean that there should be no deli berate delay, and that notification should occur as 
soon as reasonably possible under the circumstances. The Department of State would 
normally expect notification to consular officials to have been made within 24 hours, 
and certainly within 72 hours. On t he other hand, the Department does not normally 
consider notification of arrests and detentions to be required outside of a consulate's 
regular working hours. In some cases, however, it will be possible and convenient to 
leave a message on an answering machine at the consulate or to send a fax even though 
the consulate is closed. (If a message is left on an answering machine, the Department 
of State encourages a follow -up call during normal business hours to ensure that it was 
received.) In addition, in cas es of emergencies (such as deaths or serious accidents), 
efforts should be made to contact consular officials outside of normal hours.  
Q. In the case of a "mandatory notification" country, how quickly must the notification be provided to 
consular officials?  
A. The bilateral agreements that provide for mandatory notification use such 
formulations as "without delay" and "immediately." A few provide that notification 
should occur immediately and not later than within two, three, or four days. Thus, the 
same guidance as above would generally apply: there should be no deliberate delay, 
and notification should occur as soon as reasonably possible under the circumstances.  
Q. Can we simplify the process by always notifying consular officials, regardless of the alien's wishes, 
instead of worrying about which countries are "optional" and which are "mandatory?"  
A. No. You should not adopt a policy of notifying consular officers in every case 
regardless of whether notification is mandatory. The VCCR provides for givi ng the 
foreign national the option of having consular officials notified in part because of a 
concern that some foreign nationals will not want the fact of their arrest or detention 
disclosed unnecessarily. In some cases, a foreign national may be afraid o f his/her 
government and may wish to apply for refugee status/asylum in the United States. The 
privacy wishes of the foreign national should therefore be respected unless there is a 
mandatory notification requirement. Only in mandatory notification cases s hould you 
notify consular officials regardless of the alien's wishes.  
Q. When we notify the consulate, should we tell them the reasons for the detention?  
A. Generally you may use your discretion in deciding how much information to provide 
consistent with  privacy considerations and the applicable international agreements. 
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Under the VCCR, the reasons for the detention do not have to be provided in the initial 
communication. The detainee may or may not want this information communicated. 
Thus we suggest that  it not be provided unless requested specifically by the consular 
officer, or if the detainee authorizes the disclosure. Different requirements may apply if 
there is a relevant bilateral agreement. (Some of the bilateral agreements require that 
the reasons for the detention be provided upon request.) If a consular official insists that 
he/she is entitled to information about an alien that the alien does not want disclosed, 
the Department of State can provide guidance.  
Q. Isn't it wrong to follow "mandatory  notification" procedures if the alien doesn't want his consular 
officials notified? What about the alien's privacy interests? What if the alien is afraid of his own 
government?  
A. If the alien is from a "mandatory notification" country, notification must  be given 
even if the alien objects or claims to be afraid. If the alien is an asylum seeker, 
arrangements can be made to protect the alien while ensuring that his/her government's 
right to notification is protected. Under no circumstances should the fact that a foreign 
national has applied for asylum or withholding of removal be revealed to that national's 
government. Specific guidance on such cases may be obtained from the Department of 
State.  
Q. If the foreign national is from a "mandatory notification"  country and I notify the consulate as 
required, should I tell the foreign national?  
A. Yes. The alien should always be told that his consulate has been notified. While the 
mandatory notification agreements generally do not expressly require that the nati onal 
be informed of such notification, informing the national is provided for in the VCCR. 
Most countries with which the United States has a bilateral agreement also belong to 
the VCCR.  
Q. Can I comply with consular notification requirements by simply letting the detained alien have 
access to a telephone?  
A. Not necessarily. It is the responsibility of the government officials responsible for 
the detention to ensure that consular notification is made. If the alien is from a 
mandatory notification country, you must ensure that notification is given to the 
consular officials; permitting the alien access to a phone, without taking further action, 
will not be sufficient for this purpose. If the alien is not from a mandatory notification 
country but wants consular notification, simply making a phone available also may not 
be sufficient. There must be adequate arrangements to ensure that the alien is actually 
able to make contact with his/her consular officials, and the responsible law 
enforcement officials must be able to confirm that contact was in fact made.  
Q. Is there a guiding principle I can follow in applying the consular notification requirements?  
A. Yes. Remember, always, that these are mutual obligations. In general, you should 
treat the foreign natio nal as you would want an American citizen to be treated in a 
similar situation in a foreign country. This means prompt, courteous notification to the 
foreign national of the possibility of consular assistance, and prompt, courteous 
14 
 

notification to the fore ign national's nearest consular officials so that they can perform 
whatever consular services they deem appropriate.  
QUESTIONS ABOUT FAILURE TO NOTIFY:  
 
Q. If we failed to provide notification at the time of arrest and the alien is still in custody, what should 
we do?  
A. Consular notification is "better late than never." You should follow the instructions 
in this booklet as soon as you become aware that a foreign national is in detention but 
consular notification procedures were not followed. A foreign g overnment may 
commence providing consular assistance at any time, and should be given the 
opportunity to do so.  
Q. If we failed to provide consular notification but the alien is receiving consular assistance, should 
we still go through the process of notification?  
A. If the foreign national has already established contact with his/her consular officials, 
the Department of State does not consider it necessary to remedy a failure to provide 
consular notification by going through the procedures described in this booklet. The 
consular notification procedures are a mechanism to ensure that a foreign government 
can provide consular assistance to its nationals who are detained. Once the foreign 
government's consular officials are aware of the detention it is not necessary, for the 
mere sake of formality, to follow consular notification procedures. If the foreign 
government officials involved are not consular officials, however (e.g., if they are law 
enforcement officials), then consular notification procedures should still be followed.  
Q. If we failed to provide consular notification and the alien has already been released from detention, 
should we still go through the process of notification?  
A. If the alien is still involved in proceedings related to the reason s for which he/she 
was originally detained, the Department of State would recommend that he/she be 
advised of the possibility of consular assistance even if no longer detained, because 
consular assistance could still be useful. If proceedings against the a lien have ended, so 
that consular assistance is unlikely to have any continuing relevance, the Department 
does not consider that it is necessary to provide notification.  
Q. What is the remedy if we failed to give consular notification?  
A. If the foreign national is still in detention, you should provide notification as soon as 
you become aware that it was not provided. This will ensure that the foreign 
government is given the opportunity to provide consular assistance for the remaining 
period of detention.  
If the Department of State receives a complaint that consular notification was not 
provided, it will take appropriate action. For example, the Department may request the 
relevant facts from the detaining federal, state, or local authority; discuss the matter 
with the foreign government involved; apologize on behalf of the Government of the 
United States to the concerned foreign government for a failure to provide consular 
15 
 

notification; intervene to ensure that consular access is permitted; or seek to wor k with 
the involved federal, state, or local detaining officials to improve future compliance.  
Some aliens are attempting to obtain judicial remedies (such as new trials or sentencing 
hearings) for failures to give notification. Others have sought executi ve clemency. For 
further information on these developments, consult with the appropriate federal or state 
authorities, or call the Department of State.  
QUESTIONS ABOUT CONSULAR ACCESS AND ASSISTANCE: 
  
Q. What can we expect a consular officer to do once notified?  
A. A consular officer may do a variety of things to assist a foreign national. The 
consular officer may speak with the detained foreign national over the phone and/or 
arrange one or more consular visits to meet with the detainee about his/her situation and 
needs. A consular officer may assist in arranging legal representation, monitor the 
progress of the case, and seek to ensure that the foreign national receives a fair trial 
(e.g., by working with the detainee's lawyer, communicating with prosecutors, or 
observing the trial). The consular officer may speak with prison authorities about the 
detainee's conditions of confinement, and may bring the detainee reading material, 
food, medicine, or other necessities, if permitted by prison regulations. A c onsular 
officer frequently will be in touch with the detainee's family, particularly if they are in 
the country of origin, to advise them of the detainee's situation, morale, and other 
relevant information.  
The actual services provided by a consular offic er will vary in light of numerous 
factors, including the foreign country's level of representation in the United States and 
available resources. For example, some countries have only an Embassy in 
Washington, DC, and will rarely be able to visit their nati onals imprisoned in locations 
remote from there. Other countries have consulates located in many major U.S. cities 
and may regularly perform prison visits throughout the United States. Each country has 
discretion in deciding what level of consular services it will actually provide.  
Q. Can we rely on the consular officer to arrange for legal counsel?  
A. No. If the foreign national has a right to counsel and requests that he/she be given a 
court-appointed lawyer, the usual process of arranging counsel shoul d be followed. 
While a consular officer is permitted to assist in arranging counsel, the consular officer 
may or may not actually choose to take such action.  
Q. Is a consular officer entitled to act as legal counsel for a detained alien?  
A. No. Consular officers are not permitted to practice law in the United States. They 
may, however, participate in litigation as "friends of the court," and they may assist an 
alien and his/her legal counsel in preparation of the alien's defense.  
Q. Do I have to permit a consular officer to have access to a detainee?  
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A. Yes. Consular officers are entitled to visit and to communicate with their detained 
nationals. This is true even if the foreign national has not requested a visit. The consular 
officer must refrain from t aking action on behalf of the foreign national if so requested 
by the national, however.  
Q. Are consular officers entitled to visit whenever they want to?  
A. No. Law enforcement authorities may make reasonable regulations about the time, 
place, and manne r of consular visits to detained foreign nationals. Those regulations 
cannot, however, be so restrictive that the purpose of consular assistance is defeated. 
These matters are addressed in Article 36 of the VCCR. The Department urges law 
enforcement author ities to grant foreign consular officials liberal access to detained 
persons, granting the consular officer every courtesy and facility consistent with local 
laws and regulations. Liberal visiting privileges are particularly important when 
consular officers have to travel long distances to visit their nationals.  
Q. Do consular officers have to comply with prison security regulations?  
A. Yes. If the consular officer questions having to follow a particular security rule, the 
consular officer should be advis ed to address the question to the Department of State. 
Such questions may arise occasionally because, while not exempt from security 
regulations, under rules relating to the privileges and immunities of diplomatic and 
consular officers, consular officers c onducting prison visits are entitled to be treated 
with respect.  
Q. Can a consular officer be subject to search prior to visiting a prisoner?  
A. Yes. Even though a consular officer has certain privileges and immunities, the 
officer must comply with applicable prison security rules. On the other hand, because a 
consular officer is entitled to be treated with respect, any search of a consular officer 
should not be unnecessarily intrusive.  
Q. Is a consular officer entitled to meet privately with a detained foreign national?  
A. Yes, as a general rule. The VCCR entitles consular officers to converse with their 
nationals. It does not explicitly state that such conversations may be private, but some 
of the bilateral agreements do contain such explicit requirements. The Department of 
State believes that consular officers should normally be able to converse in private. 
This does not mean, however, that the conversation cannot be observed for security 
reasons.  
If a consular officer insists upon a private meeting but the detained national objects to 
meeting privately, you should seek guidance from the Department of State.  
Q. Is there a guiding principle I can follow in providing consular access?  
A. Yes. Remember, always, that these are mutual obligations. In gener al, you should 
permit a consular officer the same access to a foreign national that you would want an 
17 
 

American consular officer to have to an American citizen in a similar situation in a 
foreign country.  
QUESTIONS ABOUT CONTACTING THE DEPARTMENT OF STATE: 
  
Q. Do we need to notify the U.S. Department of State when we detain a foreign national?  
A. No. Your obligations are to inform the detainee of the right to consular notification, 
and to make the notification to the detainee's embassy or consulate if the  detainee 
requests or if the detainee is from a "mandatory notification" country. You do not need 
to inform the State Department about the detention, and in fact we generally prefer that 
you not do so, since informing the State Department often causes conf usion about 
whether the foreign consulate has been informed properly in a timely manner. On the 
other hand, it may be appropriate to in- form us of unusual cases, provided that this is 
not done in lieu of making any required notification to a foreign consul ate. Also, if you 
have questions about the VCCR consular notification obligation or related matters, the 
Department stands ready to help with information and advice.  
Q. How can I get answers to other questions?  
A. Additional inquiries may be directed to the Office of Public Affairs and Policy 
Coordination for Consular Affairs, CA/P, Room 6831, U.S. Department of State, 
Washington, DC 20520; telephone number 202- 647-4415; facsimile number 202- 736-
7559. Urgent telephone inquiries after regular business hour s may be directed to the 
State Department Operations Center, 202-647-1512.  
 (Policy #455 Detention of Foreign Nationals 5-4-93 was revised 3-3-06). 
Per: 
 
 
Gary J. Gemme 
Chief of Police 
 
__________________________________________ 
 
1The U.S. Department of State will, in all incidents involving persons with immunity from criminal 
jurisdiction, request a waiver of that immunity from the sending State if the prosecutor advises that but 
for such immunity he or she would prosecute or otherwise pursue the crimina l charge. If the charge is 
a felony or any crime of violence, and the sending State does not waive immunity, the U.S. 
Department of State will require that person to depart the United States and not return, but to submit to 
the jurisdiction of the court wi th subject matter jurisdiction over the offense. Upon departure, the 
Department will request that law enforcement issue a warrant for the person’s arrest so that the name 
will be entered in NCIC.  The vast majority of persons entitled to privileges and immu nities in the  
United States are judicious in their actions and keenly aware of the significance attached to their 
actions as representatives of their sending State. On occasion, however, one of them may become 
18 
 

involved in criminal misconduct. The more comm on violations are traffic (illegal parking, speeding, 
reckless driving, and DWI), shoplifting, and assault. 
2The U.S. Department of State’s Diplomatic Motor Vehicle Office maintains driver histories on all its 
licensees and assesses points for moving viola tions. Drivers who demonstrate a pattern of bad driving 
habits or who commit an egregious offense such as OUI are subject to having their licenses suspended 
or revoked as appropriate. This policy can be enforced effectively only if all driving infractions (OUI, 
reckless driving, etc.) are reported promptly to the U.S. Department of State. It is U.S. Department of 
State policy to assign "points" for driving infractions and to suspend the operator’s license of foreign 
mission personnel who abuse the privilege  of driving in the United States by repeatedly committing 
traffic violations and demonstrating unsafe driving practices. 
3N.B.—This issue is separate from diplomatic immunity, and it must not be confused with it. Thus, the 
following provision functions independently of the immunity issue, and it therefore applies to all 
foreign nationals without regard to possible immunity. 
 
4The follow ing material was obtained from the U.S. State Department Web site, and is used with 
permission. 
 
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