# Petition for Writ of Certiorari — Mora v. New York (No. 08-106) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1156%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2008 ## Text Supre:.ne Court, U.S. FILED 98-10 & 2 3 7008 No. 08-___ OFFICE OF THE CLERK Supreme Court of the Gnited States RICARDO A. DE LOS SANTOS MoRa, Petitioner, We THE PEOPLE OF THE STATE OF NEW YORK, RICHARD A. BROWN, DISTRICT ATTORNEY, AND FLUSHING QUEENS POLICE DEPARTMENT, Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit PETITION FOR A WRIT OF CERTIORARI JON ROMBERG WALTER DELLINGER Seton Hall University SRI SRINIVASAN School of Law (Counsel of Record) Center for Social Justice IRVING L. GORNSTEIN 833 McCarter Highway O’MELVENY & MYERS LLP Newark, NJ 07102 1625 Eye St., N.W. (973) 642-8700 Washington, D.C. 20006 (202) 383-5300 Attorneys for Petitioner i QUESTION PRESENTED Article 36(1)(b) of the Vienna Convention on Con- sular Relations provides that local authorities “shall . inform” the appropriate consular post of the de- tention of a foreign national, “if he so requests,” and “shall forward” any communication addressed to the consular post by that person. Article 36(1)(b) further provides that the authorities “shall inform” the per- son detained of “his rights under this’ sub- paragraph.” The question presented is: Whether Article 36(1)(b) grants a detained for- eign national a judicially enforceable right to be in- formed of his entitlement to consular notification and communication. ii PARTIES TO THE PROCEEDING BELOW Pursuant to Rule 14.1(b) of the Rules of this Court, petitioner states as follows: Appellant before the court of appeals was peti- tioner Ricardo A. de los Santos Mora. Appellees before the court of appeals were the People of the State of New York, the Queens County District Attorney, and the New York City Police De- partment. App., infra, 16a. The caption used by pe- titioner in his complaint and by the court of appeals in its opinion refers to the New York City Police De- partment as the “Flushing Queens Police Depart- ment.” Jd. at 16a n.11. li TABLE OF CONTENTS QUESTION PRESENTED TABLE OF AUTHORITIES A. There Is A Conflict In The Circuits On The Question Presented B. The Question Presented Is One Of Recurring National And International Importance C. The Court Of Appeals’ Decision Is Incorrect D. This Case Presents A Favorable Vehicle For Review Of The Question Presented CONCLUSION APPENDIX A: Court of Appeals Opinion APPENDIX B: District Court Opinion APPENDIX C: Relevant Treaty Provisions iv TABLE OF AUTHORITIES CASES Asakura v. Seattle, 265 U.S. 332 (1924) Case Concerning Avena and Other Mexican Nationals (Mex. v. U:S.), 2004 I.C.J. 12 (Mar. 21) Bacardi Corp. of Am. v. Domenech, 311 U.S. 150 (1940) Breard v. Greene, 523 U.S. 371 (1998) Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998) Cannon v. Univ. of Chicago, 441 USS. 677 (1979) Christ v. Detroit Police Dep’t, 2007 WL 2050793 (E.D. Mich. July 13, 2007) Cornejo v. County of San Diego, 504 F.3d 853 (9th Cir. 2007) De Lima v. Bidwell, 182 U.S. 1 (1901) District of Columbia v. Heller, 128 S. Ct. 2783 (2008) Erickson v. Pardius, 127 S. Ct. 2197 (2007) Gamez-Reyes v. Dobre, 2007 WL 954238 (E.D. Tex. Mar. 26, Gandara v. Bennett, --- F.3d ---, 2008 WL 2130577 (11th Cir. May 22, 2008) Vv TABLE OF AUTHORITIES Gardner v. Meggs, 2007 WL 3231734 (N.D. Fla. Oct. 30, Gomez v. Cal. Bd. of Prison Terms, 2008 WL 1946540 (E.D. Cal. May 1, Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) Hauenstein v. Lynham, 100 U.S. (10 Otto) 483 (1880) Jacko v. Mich. State Police, 2007 WL 1017648 (E.D. Mich. Mar. 30, 2007) Jogi v. Voges, 480 F.3d 822 (2007) Johnson v. Browne, 205 U.S. 309 (1907) Keszthelyi v. Bowman, 2007 WL 626221 (E.D. Tenn. Feb. 23, 2007) Kolovrat v. Oregon, 366 U.S. 187 (1961) LaGrand Case (F.R.G. v. U.S.), 2001 I.C.J. 466 (June 27) Leka v. United States, 2008 WL 686797 (N.D.N.Y. Mar. 10, Lopez v. Wallace, 266 Fed. App’x 882 (11th Cir. 2008) Medellin v. Dretke, 544 U.S. 660 (2005) vl TABLE OF AUTHORITIES Perkins v. Elg, 307 U.S. 325 (1939) Sanchez-Llamas v. Oregon, 126 S. Ct. 2669 (2006) Shanks v. Dupont, 28 U.S. (3 Peters) 242 (1830) United States v. Alvarez-Machain, 504 U.S. 655 (1992) United States v. Emuegbunam, 268 F.3d 377 (6th Cir. 2001) United States v. Jimenez-Nava, 243 F.3d 192 (5th Cir. 2001) United States v. Li, 206 F.3d 56 (1st Cir. 2000) United States v. Lombera-Camorlinga, 206 F.3d 882 (9th Cir. 2000) United States v. Stuart, 489 U.S. 353 (1989) 42 U.S.C. § 1983 TREATY PROVISIONS Vienna Convention on Consular Relations, 21 U.S.T. 77, 596 U.N.T.S. 261 vii TABLE OF AUTHORITIES OTHER AUTHORITIES Amnesty International, United States of America: A time for action — Protecting the consular rights of foreign nationals facing the death penalty (Aug. 2001) Br. of Honduras, et al. as amici curiae, Bustillo v. Johnson, No. 05-51 (Sept. 23, 2005) Br. of United States as Amicus Curiae in Support of Petition for Rehearing and Rehearing En Banc, Jogi v. Voges, No. 01-1657 (7th Cir. Nov. 16, Mark J. Kadish, Article 36 of the Vienna Convention on Consular Relations: A Search for the Right to Consul, 18 Mich. J. Intl L. 565 (1997) 1 Official Records, United Nations Conference on Consular Relations 338 (1963) U.S. Census Bureau, The Foreign-Born Population: 2000 (Dec. 2003) Mark Warren, Human Rights Research, Foreign Nationals and the Death Penalty in the United States (updated Feb. 29, 2008) nl 7 1 PETITION FOR A WRIT OF CERTIORARI Petitioner Ricardo A. de les Santos Mora respect- fully prays that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the Second Circuit in this case. OPINIONS BELOW The opinion of the court of appeals (App. A) is re- ported at 524 F.3d 183 (2d Cir. 2008). The opinion of the district court (App. B) is unreported. JURISDICTION The judgment of the court of appeals was entered on April 24, 2008. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). TREATY PROVISIONS INVOLVED Relevant provisions of the Vienna Convention on Consular Relations, 21 U.S.T. 77, 596 U.N.T.S. 261 (1969), are set forth in the appendix to the petition (App. C). STATEMENT OF THE CASE Petitioner has alleged that respondents violated his right under Article 36(1)b) the Vienna Conven- tion to be informed of his entitlement to consular no- tification and communication. Consistent with the directive in the Convention that remedies are de- termined in the first instance by the law of the host country, see Article 36(2), petitioner seeks relief un- der, inter alia, 42 U.S.C. & 1983, for respondents’ al- leged violation of his treaty rights. The court of appeals ruled against petitioner on the threshold ground that Article 36(1)(b) of the Vi- enna Convention does not confer on detained foreign 2 nationals a judicially enforceable right to be in- formed of their entitlement to consular notification and communication. The court expressly declined to decide whether, if Article 36(1)b) confers such a right, petitioner would be able to seek relief under § 1983 for respondents’ violation of that right. This case therefore presents a single question: whether Article 36(1)(b) of the Vienna Convention confers on detained foreign nationals a judicially enforceable right to be informed of their entitlement to consuiar notification and communication. This Court has previously granted certiorari to decide that question; there is a square conflict in the circuits on the question; the question is one of recur- ring national and international importance; the deci- sion below is incorrect; and this case presents a fa- vorable vehicle for resolving the issue. This Court should therefore grant review. 1. Because the courts below dismissed peti- tioner’s complaint for failure to state a claim, the facts in the complaint must be assumed to be true for purposes of review. Erickson v. Pardus, 127 S. Ct. 2197, 2197 (2007) (per curiam). Those facts are as follows: Petitioner is a native and citizen of the Domini- can Republic. In 1991, petitioner immigrated to the United States. In 1992, petitioner was arrested in Queens, New York, and charged with attempted robbery. At the time of the arrest, petitioner did not speak English. App., infra, 15a. Although petitioner told his arresting officers in Spanish that he did not understand their questions and that he wanted to speak with someone in Span- ish, the arresting officers interrogated petitioner in 3 English. Petitioner later received court-appointed counsel, but that attorney did not speak Spanish ei- ther. Without the benefit of an interpreter, peti- tioner was coerced into pleading guilty. Petitioner was sentenced to six months of imprisonment and _ five years of probation. App. 15a. The district attorney and the arresting officers knew that petitioner was a citizen of the Dominican Republic. App. 15a-16a. Under Article 36(1)b) of the Vienna Convention on Consular Relations, 21 U.S.T. 77, 100-01, 596 U.N.T.S. 261 (1969), they were therefore obligated to inform petitioner that he was entitled to communicate with his home consu- late. Yet petitioner was never informed that he could communicate with the Dominican consulate. App. 15a-16a. 2. Petitioner filed a pro se complaint in the United States District Court for the Eastern District of New York, alleging that respondents, the Queens County District Attorney and New York City Police Department, violated his rights under Article 36 “by failing to inform him that he could contact the Do- minican consulate.” App. 16a &n.11. Petitioner fur- ther alleged that if he “would [have] known of his Vienna Convention rights,” then “[t]he outcome of [his] case would have been different.” App. 16a. Pe- titioner also alleged that the failure to provide notice was a “serious error” that cost petitioner “his free- dom.” Jd. Petitioner has not challenged the underly- ing criminal conviction, but instead has requested damages and other appropriate relief, including nominal damages. See id.; C.A. App. A6; Pet. C.A. Supp. Br. 6. A The district court dismissed petitioner’s com- plaint for failure to state a claim upon which relief can be granted, holding that “(t]he Vienna Conven- tion was meant to protect the rights of states to care for their nationals traveling abroad, not to protect the rights of individuals.” App. 18a; see also id. at 6la. The court certified that any appeal from its or- der would not be taken in good faith. Jd. at 62a. Petitioner filed a timely notice of appeal, and the court of appeals appointed counsel to represent him. The court also invited the United States to file a brief as amicus curiae. 3. The court of appeals then affirmed. The court noted that “[{ojur sister Courts of Appeals are split” on the question whether the Vienna Convention con- fers judicially enforceable rights. App. 7a. The court explained that the Fifth, Sixth, and Ninth Circuits had held that “Article 36’s obligation to inform aliens of their right to consular notification does not create judicially enforceable individual rights,” while the Seventh Circuit had held that “Article 36 creates in- dividual rights to be informed of consular notifica- tion and access that can be vindicated in a private action.” Jd. Agreeing with the position of the Fifth, Sixth, and Ninth Circuits, the court of appeals held that Article 36(1)(b) does not confer on detained for- eign nationals a judicially enforceable right to be in- formed of their entitlement to consular notification and communication. Id. at 25a. The court of appeals relied on two textual consid- erations in Article 36(1)(b) to support that conclu- sion. First, the court noted that, while at least some of the requirements in Article 36(1) “are explicitly referred to as rights,” the entitlement to notice of 5 those rights “is never itself specifically referred to as a ‘right.” App. 23a. Second, the court found it sig- nificant that the Convention contains no express statement that “private individuals can seek redress for violations of this obligation—or any other obliga- tion set forth in Article 36—in the domestic courts of States-parties.” Id. The court of appeals also relied on a statement in the preamble to the Convention noting generally that “the purpose of [consular] privileges and immu- nities is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States.” 21 U.S.T. at 79. That language, the court concluded, reflects a broad principle “that the Convention is concerned primar- ily, if not exclusively, with establishing relationships and rights as between States and Stcste officials.” App. 29a. In addition, the court of appeals invoked a legal presumption “against inferring individual rights from treaties.” App. 42a. In the court’s view, the language of Article 36(1) was not sufficiently clear to overcome that presumption. Jd. at 46a. The court of appeals also assigned “great weight” to the United States’ view that that no provision of Article 36 cre- ates a judicially enforceable individual right. Jd. The court of appeals recognized that the Interna- tional Court of Justice (ICJ) had held that Article 36 grants foreign nationals an individual right to be no- tified that they may communicate with their home consulate, and that those rights may be “asserted ... within the domestic legal system of the United States.” Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar. 21); see 6 also LaGrand Case (F.R.G. v. U.S.), 2001 I.C.J. 466 (June 27) (“The clarity of these provisions, viewed in their context, admits of no doubt.”). The court dis- agreed with the ICJ’s conclusion, however, empha- sizing that “[wle are not bound .. . to give [the ICJ’s] interpretation any particular weight when consider- ing the text and context of a treaty.” App. 51a. Moreover, the court of appeals rejected peti- tioner’s reliance on the references in the treaty’s ne- gotiating and drafting history (travaux prépara- toires) to the “sacred rights” of foreign nationals to communicate with their consular officials. App. 54a. Those statements were unhelpful to petitioner, the court concluded, because they did not specify that those rights could be enforced by individuals in judi- cial proceedings. Id. The court of appeals observed that, in Sanchez- Llamas v. Oregon, 126 S. Ct. 2669 (2006), this Court “assumied], without deciding,’ that Article 36 cre- ated a judicially-enforceable right to consular notifi- cation and access,” and decided the case on the sepa- rate ground “that an exclusionary remedy was inap- propriate.” App. 35a-36a n.23. The court of appeals expressly declined to follow that approach, i.e., that of “avoid[ing] the question whether the treaty cre- ate[s] an individual right.” Jd. Instead, the court held that Article 36 does not create an individual right, and specifically declined to reach the separate remedial question whether, if there were such a right, it could be vindicated in an action for damages under § 1983. Id. In fact, the court stated that “assuming arguendo that [petitioner] has an individual right under the Convention, his claim for damages pursuant to 7 § 1983 would likely be actionable” because “§ 1983 would likely provide a cause of action for damages in the case of a treaty violation in the same manner that [it] provides a cause of action for remedying a statutory violation.” Jd. Accordingly, while the court of appeals at certain points characterized its decision as addressing whether Article 36(1)(b) con- fers a judicially enforceable right that can be vindi- cated in an action for damages, see, e.g., id. at 5a, 9a, 19a, the court in fact ultimately rested its decision solely on the determination that, even assuming any right conferred by Article 36(1)(b) could be vindi- cated in an action for damages under § 1983, Article 36(1)(b) fails as an antecedent matter to confer on a foreign national a judicially enforceable right to be informed of his entitlement to consular notification and communication. Id. at 20a-22a, 35a-36a n.23. REASONS FOR GRANTING THE WRIT In Sanchez-Llamas v. Oregon, 126 S. Ct. 2669 (2006), this Court granted certiorari to decide the question “whether Article 36 of the Vienna Conven- tion grants rights that may be invoked by individu- als in a judicial proceeding.” Jd. at 2677. Because the Court concluded that the petitioners in that case would not be entitled to the relief they sought in any event, however, the Court did not resolve that fun- damental threshold question. Instead, “it assumed, without deciding,” that Article 36 grants foreign na- tionals “an enforceable right to request that their consular officers be notified of their detention, and an accompanying right to be informed by authorities of the availability of consular notification,” and ruled against the petitioners on other grounds. /d. 8 Like Sanchez-Llamas, this case presents the question whether Article 36 confers on foreign na- tionals a judicially enforceable right to be informed of their entitlement to consular notification and communication. For the same reasons that the Court granted certiorari on that question in San- chez-Llamas, it should also grant certiorari on that question here. Indeed, the importance of resolving that threshold question has only increased since the Court’s decision in Sanchez-Llamas. First, the decision below is in direct conflict with a decision of the Seventh Circuit, deepening an ac- knowledged circuit split. That conflict can only be resolved by this Court. The issue is also one of substantial national and international importance. The issue “has arisen hundreds of times in the lower federal and state courts,” Sanchez-Llamas, 126 S. Ct. at 2694 (Breyer, J., dissenting), evidencing a disturbing lack of com- pliance with Article 36’s terms. See Medellin v. Dretke, 544 U.S. 660, 674 (2005) (O’Connor, J., dis- senting) (“In this country, the individual States’ (of- ten confessed) noncompliance with the treaty has been a vexing problem.”). The decision below is also incorrect. As the four Justices who have addressed the question have con- cluded, Article 36 confers on foreign nationals a judi- cially enforceable right to be informed of their enti- tlement to consular notification and communication. Sanchez-Llamas, 126 S. Ct. at 2694-98. (Breyer, J., dissenting); cf. Breard v. Greene, 523 U.S. 371, 376 (1998) (per curiam) (Article 36 “arguably confers on an individual the right to consular assistance follow- ing arrest”). 9 Finally, this case provides a favorable vehicle for resolving that question because it is the only ques- tion presented by the petition. While petitioner has argued that he can vindicate his right through an action for damages under § 1983, the court of ap- peals declined to reach that question, and instead rested its decision solely on the absence of an indi- vidual right. This Court should therefore grant re- view and hold that a detained foreign national has a judicially enforceable right to be informed of his enti- tlement to consuiar notification and communication. A. There Is A Conflict In The Circuits On The Question Presented There is a square conflict in the circuits on the question presented in this case. The holding of the court below that Article 36 does not confer on foreign nationals a judicially enforceable right to be in- formed of their entitlement to consular notification and communication is consistent with the decisions of four other circuits. In particular, the Fifth, Sixth, Ninth, and Eleventh Circuits have held that Article 36 does not create judicially enforceable rights. United States v. Jimenez-Nava,‘ 243 F.3d 192, 198 (5th Cir. 2001) (rejecting argument that “Article 36 creates judicially enforceable rights”); United States v. Emuegbunam, 268 F.3d 377, 391-94 (6th Cir. 2001) (“[T]he Vienna Convention does not create a right for a detained foreign national to consult with the diplomatic representatives of his nation that the federal courts can enforce.”); Cornejo v. County of San Diego, 504 F.3d 853, 855 (9th Cir. 2007) (“Arti- cle 36 does not create judicially enforceable rights.”); Gandara v. Bennett, --- F.3d ---, 2008 WL 2130577, at *4-5 (11th Cir. May 22, 2008) (“[T]he Vienna Con- 10 vention does not confer enforceable individual rights.”). As the court below acknowiedged (App. 7a), those decisions directly conflict with the Seventh Circuit’s decision in Jogi v. Voges, 480 F.3d 822 (2007). In Jogi, the question presented was “whether a foreign national who is not informed of his right to consular notification under Article 36 of the Vienna Conven- tion .. . has any individual remedy available to him in a U.S. court.” Id. at 824. The Seventh Circuit re- solved that question by squarely holding that “Arti- cle 36 confers individual rights on detained [foreign] nationals.” Jd. at 835. The court specifically relied on the language in Article 36 specifying that au- thorities “shall” inform a detained foreign national of “his rights.” Jd. at 833. The court explained that be- cause this text emphasizes that Article 36 rights “are the citizen’s,” and because the language is “manda- tory and unequivocal,” Article 36 satisfies the test for the creation of judicially enforceable individual rights. Id. Thus, in the Seventh Circuit, detained foreign nationals have a judicially enforceable right to be in- formed of their entitlement to consular notification and. communication, while detained foreign nationals in the Second, Fifth, Sixth, Ninth, and Eleventh Cir- cuits have no such right. That circuit conflict is also firmly entrenched. Five circuits have held that Article 36(1) does not create judicially enforceable rights, and there is no realistic possibility that the Seventh Circuit will re- consider its position that Article 36(1) does create judicially enforceable rights. At the time the Sev- enth Circuit issued its unanimous decision in Jogi, 11 the Fifth and Sixth Circuits had already; held that Article 36(1) does not confer judicially enforceable rights. Moreover, the Seventh Circuit’s decision re- flects a careful consideration of all the major argu- ments bearing on the question presented. In addition, after the Seventh Circuit issued its initial decision in Jogi holding that Article 36(1) con- fers on foreign nationals judicially enforceable rights, the defendants sought rehearing en banc. The United States filed a brief as amicus curiae in support of that petition, arguing that Article 36(1) does not create judicially enforceable rights.! In re- sponse to the petition, no judge in the Seventh Cir- cuit voted to grant rehearing en banc. See Jogi, 480 F.3d at 824-25 & n.*. Instead, the court issued a de- cision on rehearing unanimously reaffirming its ini- tial conclusion that Article 36(1) confers judicially enforceable rights. Thus, there is an entrenched conflict in the circuits on the question presented that can only be resolved by this Court. Nor does it matter that the circuits are aligned 5- 1 in favor of the Second Circuit’s position. The fact remains that foreign nationals have rights in one circuit that they do not have in others. That 5-1 alignment also masks a substantial division of opin- ion among the judges that have considered the ques- tion. In particular, a number of judges have written concurring and dissenting opinions concluding that 1 See Br. of United States as Amicus Curiae in Support of Petition for Rehearing and Rehearing En Banc, at 6-10, Jogi v. Voges, No. 01-1657 (7th Cir. Nov. 16, 2005), avail- able at http://‘www.ca7.uscourts.gov/efn/efns.fwx?submit =showbr&caseno=01-1657 &shofile=01-1657_ 008.pdf. 12 Article 36(1)(b) creates a judicially enforceable right to be informed of the entitlement to consular notifi- cation and communication. For example, Judge Nel- son has concluded that “foreign nationals have a right to be informed that the competent authorities are required upon request of the foreign national to notify the sending State of the arrest or detention” under the “clear language in Article 36(1)(b).” Cornejo, 504 F.3d at 864-73 (Nelson, J., dissenting). Judge Tourella has stated that “I have some diffi- culty envisioning how it is possible to frame lan- guage that more unequivocally establishes that the protections of Article 36(1)(b) belong to the individ- ual national, and that the failure to promptly notify him/her of these rights constitutes a violation of these entitlements by the detaining authority.” United States v. Li, 206 F.3d 56, 68-76 (1st Cir. 2000) (en banc) (Tourella, C.J., concurring in part and dissenting in part). And Judge Butzner has noted that “the text emphasizes that the right of consular notice and assistance is the citizen’s” and this language is “mandatory and unequivocal.” Breard v. Pruett, 134 F.3d 615, 622 (4th Cir. 1998) (Butzner, J., concurring), affd sub nom., Breard v. Greene, 523 U.S. 371 (1998) (per curiam); see also United States v. Lombera-Camorlinga, 206 F.3d 882, 890 (9th Cir. 2000) (en banc) (Boochever, J., dissent- ing); Gandara, 2008 WL 2130577 at *5-12 (Rodgers, J., specially concurring). Those opinions underscore what the Eleventh Circuit acknowledged even while ultimately conclud- ing that Article 36(1)(b) fails to confer judicially en- forceable rights: that the “arguments in favor of in- dividual rights under the Treaty are impressive.” Gandara, 20008 WL 2130577, at *3. Indeed, the 13 four Justices of this Court who have addressed the question presented in this case have all concluded that Article 36(1) creates judicially enforceable rights. Sanchez-Llamas, 126 S. Ct. at 2694-98 (Breyer, J., dissenting). Given the division in the circuits and the division in judicial opinion on the question presented, this Court’s review is warranted. B. The Question Presented Is One Of Recur- ring National And International Importance The question whether Article 36 creates judicially enforceable individual rights “has arisen hundreds of times in the lower federal and state courts.” San- chez-Llamas, 126 S. Ct. at 2694 (Breyer, J., dissent- ing). That litigation attests to the recurring impor- tance of the question presented. Those cases also reflect a disturbing reality: de- spite the efforts of the federal government, see App. 31a n.22, notifying arrested foreign nationals of their rights under the Article 36 has been the exception, rather than the rule, in the United States. An ex- amination of New York City arrest records from 1997 revealed that 53,000 foreign nationals were ar- rested, but consulates were notified of the arrests in only four cases.? Even in capital cases, less than five percent of foreign nationals sentenced to death re- ceived timely notification of their rights under Arti- cle 36.3 Because of the “vexing problem” of state and 2 Mark Warren, Human Rights Research, Foreign Na- tionals and the Death Penalty in the United States (up- dated Feb. 29, 2008), available at http:// www.deathpenaltyinfo.org/article.php?did=198&scid=31. 3 Id. (concluding that “only 7 cases of complete compliance with Article 36 requirements have been identified so far, out of more than 160 total reported death sentences”); see 14 local authorities’ “(often confessed) noncompliance” with Article 36, such cases present “questions that will inevitably recur.” Medellin, 544 U.S. at 674-75 (O’Connor, J., dissenting). There is no evidence that compliance with the ob- ligations in Article 36(1) has substantially improved since this Court’s decision in Sanchez-Llamas. Moreover, in the two years since Sanchez-Llamas, the question whether Article 36(1) creates judicially enforceable rights has continued to arise with regu- larity. See, e.g., App. 16a n.12 (citing cases); Gan- dara, 2008 WL 2130577; Lopez v. Wallace, 266 Fed. App’x 882, 883 (11th Cir. 2008); Cornejo, 504 F.3d at 854-55.4 The frequent litigation confirms the con- tinuing importance of the issue. This Court’s responsibility to ensure the uniform interpretation and application of federal law is par- ticularly important in this context. As five nations that are signatories to the Vienna Convention ex- plained in urging the Court to grant review in the companion case to Sanchez-Llamas: “When nations also Amnesty International, United States of America: A time for action — Protecting the consular rights of foreign nationals facing the death penalty, at 4 (Aug. 2001). 4 See also, e.g., Gomez v. Cal. Bd. of Prison Terms, 2008 WL 1946540, at *1 (E.D. Cal. May 1, 2008); Leka v. United States, 2008 WL 686797, at *2 (N.D.N.Y. Mar. 10, 2008); Gardner v. Meggs, 2007 WL 3231734, at *1-2 (N.D. Fla. Oct. 30, 2007); Christ v. Detroit Police Dep’t, 2007 WL 2050793, at *2 (E.D. Mich. July 13, 2007); Jacko v. Mich. State Police, 2007 WL 1017648, at *2 (E.D. Mich. Mar. 30, 2007); Keszthelyi v. Bowman, 2007 WL 626221, at *4 (E.D. Tenn. Feb. 23, 2007); Gamez-Reyes v. Dobre, 2007 WL 954238, at *3 (E.D. Tex. Mar. 26, 2007). 15 such as amici treat with the United States on impor- tant matters such as the right to consular notifica- tion, it is essential that they have assurance that the United States will be able to ensure compliance with its treaty obligations by all organs of the govern- ment. ... [Cjonflicting judicial decisions on the ap- plication and interpretation of a treaty undermine this assurance.” Br. of Honduras, et al. as Amici Cu- riae, Bustillo v. Johnson, No. 05-51, at 11 (Sept. 23, 2005), available at 2005 WL 2376680. The question presented is therefore one of recur- ring national and international importance. “(Given its importance,” Sanchez-Llamas, 26 S. Ct. at 2694 (Breyer, J., dissenting), review is warranted. C. The Court Of Appeals’ Decision Is Incorrect Review is also warranted because the court of ap- peals’ decision is incorrect. As four Justices of this Court have concluded, Article 36(1)(b) grants de- tained foreign nationals a judicially enforceable right to be informed of their entitlement to consular notifi- cation and communication. Sanchez-Llamas, 126 S. Ct. at 2694-98 (Breyer, J., dissenting). 1. In determining whether a treaty creates a ju- dicially enforceable right, the Court begins with an examination of the text. United States v. Alvarez- Machain, 504 U.S. 655, 661 (1992). Subparagraph 1(b) of Article 36 provides as follows: (if he so requests, the competent authorities of the receiving State shall, without delay, in- form the consular post of the sending State if, within its consular district, a national of that State is arrested...or is detained in any other manner. Any communication addressed to the consular post by the person ar- 16 rested ... shall also be forwarded by the said authorities without delay. The said authori- ties shall inform the person concerned without delay of his rights under this sub-paragraph. 21 U.S.T. at 101 (emphasis added). That language establishes that Article 36(1)(b) creates three judicially enforceable rights. Each sen- tence of the subparagraph uses mandatory language (“shall”) and expressly links the duty described to the detained foreign national (“if he so requests,” “communication ... by the person arrested,” “inform the person concerned”). The final sentence uses not only the term “rights,” but also the possessive adjec- tive “his,” making clear that the rights belong to “the person” arrested or detained. Thus, the plain lan- guage of Article 36(1) creates judicially enforceable rights. Sanchez-Llamas, 126 S. Ct. at 2694-98 (Breyer, J., dissenting). This Court’s approach to deciding whether a statute creates a judicially enforceable right con- firms that conclusion. In that context, this Court asks whether the statute uses “rights-creating” lan- guage—language that is both mandatory and “indi- vidually focused.” Gonzaga Univ. v. Doe, 536 US. 273, 284 n.3, 287 (2002); see Cannon v. Univ. of Chi- cago, 441 U.S. 677, 692 n.13 (1979). Because Article 36(1) uses language that is both mandatory and in- dividually focused, applying that approach here leads to the conclusion that Article 36(1) creates ju- dicially enforceable rights. 2. The court of appeals’ reasons for reaching a contrary conclusion are unpersuasive. First, the court concluded that, while “at least some of thel[] requirements [of subparagraph (1)(b)] are explicitly 17 referred to as ‘rights’ of the individual foreign na- tionals, . . . a receiving State’s obligation to inform a detained foreign national of his ‘rights’ under para- graph 1(b)” is “never itself expressly referred to as a right.” App. 23a. (emphasis added). That distinction is untenable. All three sentences share the same structure, describing what local au- thorities “shall” do. The first and third sentences even use the same verb: the authorities shall inform the consulate of the arrest upon request, and shall inform the arrested person of his rights. Moreover, all three sentences frame the obligation as one run- ning to a specific class of detained foreign nationals. The common structure of the three sentences estab- lishes that they have a common effect, and that all three create judicially enforceable rights. Indeed, the provision establishing a duty to in- form foreign nationals of their entitlement to consu- late notification and communication is especially clear in creating a judicially enforceable individual right. While the first two obligations refer to the right of both the detained individual and the consu- late, the obligation to inform a foreign national of his rights “exclusively concerns the detained individual.” Medellin, 544 U.S. at 687 (O’Connor, J., dissenting). Furthermore, obligations to provide notice of other rights are readily understood as creating rights themselves. As Justice O’Conner has ex- plained, if a statute required “that arresting authori- ties ‘shall inform a detained person without delay of his right to counsel,” it is difficult to imagine what “more would be required before a defendant could invoke that statute to complain in court if he had not been so informed.” Jd. 18 The court of appeals’ distinction also makes little sense. There is no plausible reason to confer on a foreign national a judicially enforceable right both to consular notification and to consular communication, only to deny judicial enforcement of the closely re- lated entitlement to be informed of those rights, and to require resort to claims by national governments in the international arena. That is particularly true because when, as here, a foreign national is unaware of his rights to consular notification and communica- tion, a violation of his right to notice operates as a denial of the other two rights. The court of appeals offered no reason why the parties to a treaty would create such an incoherent scheme. The court of appeals also erred in emphasizing the absence of an express statement in the treaty to the effect that “private individuals can seek redress for violations of this obligation ... in the domestic courts of States-parties.” App. 23a (emphasis added). This Court “has repeatedly enforced treaty- based rights of individual foreigners” based on trea- ties that “do not share any special magic words.” Medellin, 544 U.S. at 687 (O’Connor, J., dissenting). For example, in Kolovrat v. Oregon, 366 U.S. 187, 192 (1961), the Court held that a treaty provision that conferred on foreign nationals “rights which the {United States’? laws grant” created a judicially en- forceable individual right. Similarly, in Asakura v. Seattle, 265 U.S. 332, 340 (1924), the Court held that a treaty provision granting foreign nationals “liberty ... to carry on trade... upon the same terms as na- tive citizens or subjects” created a judicially enforce- able individual right. Neither of those treaties ex- pressly referred to “domestic courts” or judicial en- 19 forcement. See Medellin, 544 U.S. at 687 (O’Connor, J., dissenting). The court of appeals’ insistence on such language is particularly inappropriate in the context of the Vi- enna Convention because Article 36(2) of the Con- vention provides that “[t]he rights referred to in paragraph 1 of this Article shall be exercised in con- formity with the laws and regulations of the receiv- ing State,” provided that “the said laws and regula- tions must enable full effect to be given to the pur- poses for which the rights accorded under this Arti- cle are intended.” 21 U.S.T. at 101. As the Court explained in Sanchez-Liamas, that provision makes clear that the Vienna Convention “expressly leaves” the remedies for violation of the rights protected by Article 36 to “domestic law.” 126 S. Ct. at 2678. The court of appeals (App. 29a-30a) also relied on the language in the Convention’s preamble stating that the “purpose” of the consular privileges and immunities described in the treaty “is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respec- tive States.” 21 U.S.T. at 79. The general language of a preamble, however, cannot trump the plain lan- guage of Article 36(1). Jogi, 480 F.3d at 834; cf. Dis- trict of Columbia v. Heller, 128 S. Ct. 2783, 2789 (2008) (a prefatory clause “does not limit or expand the scope of the operative clause”). In any event, the preamble is not in any tension with the conclusion that Article 36(1) creates judicially enforceable rights. Granting foreign nationals a judicially en- forceable right to be informed of their entitlement to consular notification and communication plainly ad- vances the purpose of ensuring “the efficient per- 20 formance of functions by consular posts.” 21 U.S.T. at 79. 3. Other considerations also support the conclu- sion that Article 36(1) creates judicially enforceable individual rights. In LaGrand, the ICJ found it “(slignificant[]” that subparagraph 1(b) obligates au- thorities to inform an arrested person of “his rights” and that paragraph 1(c) allows the person to refuse consular assistance by “expressly oppos[ing] such ac- tion.” 2001 I.C.J. at 494. The court concluded that “(t]he clarity of these provisions, viewed in their con- text, admits of no doubt” and that the rights belong to individuals. Jd. In Avena, the court further held that “the individual nghts of nationals under para- graph 1 (b) of Article 36 of the Vienna Convention are rights which are to be asserted, at any rate in the first place, within the domestic legal system of the United States.” 2004 I.C.J. at 35. As an “inter- pretation of an international agreement by an inter- national court,” those decisions are entitled to “re- spectful consideration” by United States courts. Sanchez-Llamas, 126 S. Ct. at 2685 (internal quota- tion marks omitted). The negotiating and drafting history (travaux préparatoires) of Article 36 reinforce the conclusion that the drafters intended to confer judicially en- forceable rights on foreign nationals. See, e.g., 1 Of- ficial Records, United Nations Conference on Consu- lar Relations 338 (1963) (“Official Records”) (state- ment of Korea) (calling Article 36(1)(b) “extremely important because it relate[s] to one of the funda- mental and indispensable rights of the individual”); id. at 332 (statement of Spain) (“the rights of the na- tionals of a sending State” to consular access are among “the most sacred rights of foreign residents in 21 a country”). Indeed, some delegates opposed the language of Article 36(1)(b)—and unsuccessfully at- tempted to amend it to omit any mention of individ- ual rights—precisely because it “introduced a nov- elty to the convention by defining the rights of the nationals of the sending States and not... the rights of consular officials.” Jd. (statement of Kuwait); see Mark J. Kadish, Article 36 of the Vienna Convention on Consular Relations: A Search for the Right to Consul, 18 Mich. J. Intl L. 565, 596 (1997). In addition, this Court has held that “where a provision of a treaty fairly admits of two construc- tions, one restricting, the other enlarging, rights which may be claimed under it, the more liberal in- terpretation is to be preferred.” Bacardi Corp. of Am. v. Domenech, 311 U.S. 150, 163 (1940). This Court has consistently followed that principle of treaty construction for two centuries. See United States v. Stuart, 489 U.S. 353, 366 (1989); Kolovrat, 366 U.S. at 193; Hauenstein v. Lynham, 100 U.S. (10 Otto) 483, 487 (1880); Shanks v. Dupont, 28 U.S. (3 Peters) 242, 249 (1830). As Justice Story put it for the Court in Shanks: “If the treaty admits of two in- terpretations, and one is limited, and the other lib- eral; one which will further, and the other exclude private rights; why should not the most liberal expo- sition be adopted?” 28 U.S. at 249. Thus, even if Ar- ticle 36(1) were ambiguous, it should be interpreted to create judicially enforceable rights. 4. The court of appeals held that there is a pre- sumption against treaties creating judicially en- forceable rights that can be overcome only by a clear showing that the drafters intended to “confer rights that could be vindicated in the manner sought by the affected individuals.” App. 45a. That clear state- 22 ment rule is inconsistent with the principle of liberal construction articulated by Justice Story, and this Court has never adopted it. See Sanchez-Llamas, 126 S. Ct. at 2697 (Breyer, J., dissenting) (“The prob- lem with that argument is that no such presumption exists.”). Even if treaties generally do not create ju- dicially enforceable rights, there is no basis for deny- ing judicial enforceability in circumstances in which, as with Article 36(1)(b), the terms of the treaty in- voke mandatory, rights-creating language directed to a specific class of individuals. Decisions like Kolov- rat and Asakura demonstrate that the treaty lan- guage in Article 36(1) is sufficiently clear to create judicially enforceable rights. Finally, the court of appeals assigned “great weight” to the government’s position that Article 36 creates no individual rights that can be invoked in court under any circumstances. App. 46a. This Court, however, has not hesitated to reject the gov- ernment’s interpretation of a treaty when, as here, it is contrary to the text of the treaty. See Perkins vu. Elg, 307 U.S. 325, 328, 337-42 (1939); Johnson v. Browne, 205 U.S. 309, 319-21 (1907); De Lima uv. Bidwell, 182 U.S. 1, 181, 194-99 (1901). As Justice Breyer stated for four members of this Court in San- chez-Liamas: Because the “language, the nature of the right, and the ICJ’s interpretation of the treaty taken separately or together so strongly point to an intent to confer enforceable rights upon an individ- ual, I cannot find in the simple fact of the Executive Branch’s contrary view sufficient reason to adopt the Government’s interpretation of the Convention.” 126 S. Ct. at 2698 (Breyer, J., dissenting). 23 D. This Case Presents A Favorable Vehicle For Review Of The Question Presented This case presents a favorable vehicle for resolv- ing the question whether Article 36 confers on for- eign nationals a judicially enforceable right to be in- formed of the entitlement to consular notification and communication. Petitioner’s complaint ex- pressly alleges that respondents failed to inform him of his right to contact his consulate, in violation of his rights under Article 36 of the Vienna Convention. Because petitioner's complaint was dismissed for failure to state a claim, petitioner’s allegation must be accepted as true for purposes of review. Erickson, 127 S. Ct. at 2197. Moreover, the court below ruled against peti- tioner solely on the ground that Article 36 does not confer on foreign nationals a judicially enforceable right to be informed of the their entitlement to con- sular notification and communication. App. 20a-22a, 35a-36a n.23. The court expressly declined to reach the question whether, if Article 36 does confer such a right, petitioner may seek damages under 42 U.S.C. § 1983. Id. at 35a-36a n.23. Thus, this case squarely oresents only the threshold question whether Article 36 confers on fore*