1.This Act may be cited as
the Consular Notification Compliance
Act of 2011
.
2.Purpose and
statement of authority
(a)The
purpose of this Act is to facilitate compliance with Article 36 of the Vienna
Convention on Consular Relations, done at Vienna April 24, 1963, and any
comparable provision of a bilateral international agreement addressing consular
notification and access.
(b)This Act is enacted pursuant to authority contained in
articles I and VI of the Constitution of the United States.
3.Consular
notification and access
(a)As required under, and consistent with, Article 36 of the
Vienna Convention on Consular Relations, done at Vienna April 24, 1963, and any
comparable provision of a bilateral international agreement addressing consular
notification and access, if an individual who is not a national of the United
States is detained or arrested by an officer or employee of the Federal
Government or a State or local government, the arresting or detaining officer
or employee, or other appropriate officer or employee of the Federal Government
or a State or local government, shall notify that individual without delay that
the individual may request that the consulate of the foreign state of which the
individual is a national be notified of the detention or arrest.
(b)
(1)The consulate of the foreign state of which an individual
detained or arrested is a national shall be notified without delay if the
individual requests consular notification under subsection (a), and an
appropriate officer or employee of the Federal Government or a State or local
government shall provide any other consular notification required by an
international agreement.
(2)If an appropriate officer or employee of the Federal
Government or a State or local government has not notified the consulate
described in paragraph (1) regarding an individual who is detained pending
criminal charges and the individual requests notification or notification is
mandatory under a bilateral international agreement, notification shall occur
not later than the first appearance of the individual before the court with
jurisdiction over the charge.
(c)An officer or employee of the Federal Government or a
State or local government (including an officer or employee in charge of a
facility where an individual who is not a national of the United States is held
following detention or arrest) shall reasonably ensure that the individual
detained or arrested is able to communicate freely with, and be visited by,
officials of the consulate of the foreign state of which the individual
detained or arrested is a national, consistent with the obligations described
in section 2(a).
(d)Nothing in this section is intended to create any
judicially or administratively enforceable right or benefit, substantive or
procedural, by any party against the United States, its departments, agencies,
or other entities, its officers or employees, or any other person or entity,
including, an officer, employee, or agency of a State or local
government.
4.
(a)
(1)Notwithstanding
any other provision of law, a Federal court shall have jurisdiction to review
the merits of a petition claiming a violation of Article 36(1) (b) or (c) of
the Vienna Convention on Consular Relations, done at Vienna April 24, 1963, or
a comparable provision of a bilateral international agreement addressing
consular notification and access, filed by an individual convicted and
sentenced to death by any Federal or State court before the date of enactment
of this Act.
(2)If a date for the execution of an individual described
in paragraph (1) has been set, the court shall grant a stay of execution if
necessary to allow the court to review a petition filed under paragraph
(1).
(3)To
obtain relief, an individual described in paragraph (1) shall make a showing of
actual prejudice to the criminal conviction or sentence as a result of the
violation. The court may conduct an evidentiary hearing if necessary to
supplement the record and, upon a finding of actual prejudice, shall order a
new trial or sentencing proceeding.
(4)
(A)A petition for review under this section shall be filed
within 1 year of the later of—
(i)the
date of enactment of this Act;
(ii)the date on
which the Federal or State court judgment against the individual described in
paragraph (1) became final by the conclusion of direct review or the expiration
of the time for seeking such review; or
(iii)the date on
which the impediment to filing a petition created by Federal or State action in
violation of the Constitution or laws of the United States is removed, if the
individual described in paragraph (1) was prevented from filing by such Federal
or State action.
(B)The
time during which a properly filed application for State post-conviction or
other collateral review with respect to the pertinent judgment or claim is
pending shall not be counted toward the 1-year period of limitation.
(5)A petition for review under this section shall be part
of the first Federal habeas corpus application or motion for Federal collateral
relief under chapter 153 of title 28, United States Code, filed by an
individual, except that if an individual filed a Federal habeas corpus
application or motion for Federal collateral relief before the date of
enactment of this Act or if such application is required to be filed before the
date that is 1 year after the date of enactment of this Act, such petition for
review under this section shall be filed not later than 1 year after the
enactment date or within the period prescribed by paragraph (4)(A)(iii),
whichever is later. No petition filed in conformity with the requirements of
the preceding sentence shall be considered a second or successive habeas corpus
application or subjected to any bars to relief based on pre-enactment
proceedings other than as specified in paragraph (3).
(6)
(A)A final order on a petition for review under paragraph
(1) shall be subject to review on appeal by the court of appeals for the
circuit in which the proceeding is held.
(B)An individual described in paragraph (1) may appeal a
final order on a petition for review under paragraph (1) only if a district or
circuit judge issues a certificate of appealability. A district judge or
circuit judge may issue a certificate of appealability under this subparagraph
if the individual has made a substantial showing of actual prejudice to the
criminal conviction or sentence of the individual as a result of a violation of
Article 36(1) of the Vienna Convention on Consular Relations, done at Vienna
April 24, 1963, or a comparable provision of a bilateral international
agreement addressing consular notification and access.
(b)
(1)An individual not covered by subsection (a) who is
arrested, detained, or held for trial on a charge that would expose the
individual to a capital sentence if convicted may raise a claim of a violation
of Article 36(1)(b) or (c) of the Vienna Convention on Consular Relations, done
at Vienna April 24, 1963, or of a comparable provision of a bilateral
international agreement addressing consular notification and access, at a
reasonable time after the individual becomes aware of the violation, before the
court with jurisdiction over the charge. Upon a finding of such a
violation—
(A)the consulate of
the foreign state of which the individual is a national shall be notified
immediately by the detaining authority, and consular access to the individual
shall be afforded in accordance with the provisions of the Vienna Convention on
Consular Relations, done at Vienna April 24, 1963, or the comparable provisions
of a bilateral international agreement addressing consular notification and
access; and
(B)the court—
(i)shall postpone
any proceedings to the extent the court determines necessary to allow for
adequate opportunity for consular access and assistance; and
(ii)may enter
necessary orders to facilitate consular access and assistance.
(2)The court may conduct evidentiary hearings if necessary
to resolve factual issues.
(3)Nothing in this subsection shall be construed to
create any additional remedy.
5.In this Act—
(1)the term
national of the United States has the meaning given that term in
section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(22)); and
(2)the term
State means any State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, and any territory or possession of
the United States.