810.10 ARREST OF FOREIGN NATIONALS
Universal Review: 03/08/2017-04/06/2017
- Title 8, US Code 1357(d) Detainer of Aliens for Violation of Controlled Substance Laws
- ORS 181.850 Enforcement of Federal Immigration Laws
- ORS 475.991 Unlawful Delivery of Imitation Controlled Substance
- ORS 475.992 Prohibited Acts Generally (Controlled Substances)
- ORS 475.999 Manufacture or Delivery of Controlled Substances within 1,000 Feet of School
- DIR 631.30 Cooperation with Other Agencies
- DIR 810.00 Arrest, Persons Exempt
- Detention of Foreign National Checklist (Operations Branch)
- INS Referral for Further Investigation Form (Operations Branch)
- US Department of State Website
It is the policy of the Bureau to investigate allegations of criminal conduct by suspects regardless of race, national origin or citizenship status. In such investigations, the Bureau will work with all federal, state and local law enforcement agencies.
The Bureau will comply with the Notification of Foreign Consulates Protocol of the Vienna Convention on Consular Relations and/or customary international law when individuals of a foreign nationality are arrested or otherwise detained.
Immigration Issues: Refer to ORS 181.850.
Arrest of Foreign Nationals (810.10)
Members will follow DIR 810.00 when dealing with individuals exempt from arrest. The burden of proof will rest with the person who claims diplomatic immunity from arrest by establishing identity that entitles them to immunity. The member may, if necessary, take the person to an appropriate location to establish immunity. Exempt for arrest refers to the status of an individual who will not be detained at the time by an arrest (this does not mean a person will not have to answer for a crime). Examples of exempt person are:
a. The head of a diplomatic mission or a member of his/her diplomatic staff.
b. Vehicles with foreign consul license plates.
c. Members of the U.S. Congress and the State Legislature while in session or travelling to attend the session.
Whenever any foreign national (having allegiance to a foreign state or sovereign) is taken into custody, the arresting member or supervisor will see if notification of the individual’s country is mandatory (see Mandatory Consular Notification Countries). It is the opinion of the State Dept. that stops for routine traffic violations and resultant citations are not arrests or detention for the purposes of notification.
a. No mandatory notification: Advise the individual without undue delay of his/her right to have his/her country notified. If requested, inform the nearest consulate (the residence or headquarters of a foreign consul) or embassy (the official residence and offices of an ambassador of a foreign state or sovereign) as soon as practical and before the end of shift.
b. Mandatory notification: Inform the nearest consulate or embassy as soon as practical and before the end of shift. The individual must then be advised that his/her consul was notified.
Members must complete the Detention of Foreign Nationals Checklist and attach to their report.
Foreign consular officials have the right to visit their arrested/detained nationals, subject to local laws and regulations regarding access to detained persons.
Members will arrange for an Oregon State Police courtesy notification (during business hours) of any arrest/detention made to facilitate any international contact through INTERPOL channels.
Additional resources are the Asst. Legal Advisor for Consular Affairs of the State Dept. and the CommandCenter of the Bureau of Diplomatic Security.
Working with Immigration and Customs Enforcement (ICE) (810.10)
Members will not assist ICE unless a crime is committed or in case of an emergency.
a. Investigations: Subject to approval by the RU manager, on a case-by-case basis, members may work jointly with ICE (this may include riding in the same vehicle) to investigate crimes:
1. To further the investigation of any felony that has been committed.
2. To investigate and make arrests for any controlled substance offense.
b. Back-up or Cover:
1. ICE may request members provide assistance during a mission to enforce federal immigration laws. Request for such services, except in an emergency, must be made through and approved by the appropriate RU manager.
2. In these situations, members will provide only peacekeeping or protective services to ICE. Peacekeeping means to provide a presence to ensure no offense is committed by others while ICE performs its lawful duties. If possible, members should speak the language of the people being contacted, investigated or detained by ICE.
c. Information Exchange: Members may exchange information with ICS in order to further the investigation of any federal, state or local crimes (i.e., obtaining suspect information or identifying witnesses/victims of a crime).
1. Title 8 of the U.S. Code 1357(d) mandates that all law enforcement officers/agencies must notify the ICE when an individual is arrested for a controlled substance offense whom they reasonably believe may not have been lawfully admitted into the U.S.
2. When a person is arrested for a felony or a controlled substance offense and there is a reasonable belief the arrestee may not have been lawfully admitted into the U.S., the member will refer the arrestee to ICE by completing an ICE Referral for Further Investigation form (RU managers may assign this referral responsibility to someone other than the arresting member).
3. Referral to ICE of persons arrested for committing state and local offenses other than felonies or controlled substance offenses will be the responsibility of the District Attorney upon conviction.
4. The ICE Referral form and the Custody Report face sheet will be faxed to ICE Portland.
5. Prior to making photocopies for booking purposes, members will mark ICE in large capital letters in the space at the top of the Custody Report. The ICE Referral form will then be attached to the Custody Report and forwarded to Records. Each RU making referrals must create/maintain a file to retain copies of all Custody Reports and Referral forms that are faxed to ICE.
6. Members completing the ICE Referral for Further Investigation form will make every reasonable attempt to obtain the arrested person’s true name, date of birth and other identification numbers such as PPDS, MCL, SID, FBI numbers and INS case number or “A” number by making the appropriate computer inquiries (PPDS, Oregon and FBI Criminal Histories, LEDS and NCIC). SID and/or FBI number(s) should be placed on the Custody Report face sheet in the section marked for other I.D.
Forensic Evidence Division (Forensics) Responsibilities (810.10)
Forensics will make every attempt to properly identify the arrested person through the Western Identification Network (WIN). Forensics will search all additional AFIS systems as needed in the identification of those subjects whose Custody Report is marked ICE.
Mandatory Consular Notification Countries (810.10)
Algeria Guyana St. Vincent/Grenadines
Antigua and Barbuda Hong Kong Seychelles
Armenia Hungary Sierra Leone
Azerbaijan Jamaica Singapore
Bahamas Kazakhstan Slovakia
Barbados Kiribati Tajikistan
Belarus Kuwait Tanzania
Belize Kyrgyzstan Tonga
Brunei Malaysia Trinidad and Tobago
Bulgaria Malta Tunisia
China (People’s Republic) Mauritius Turkmenistan
Costa Rica Moldova Tuvalu
Cyprus Mongolia Ukraine
CzechRepublic Nigeria United Kingdom
Dominica Philippines U.S.S.R.**
Fiji Poland* Uzbekistan
Gambia Romania Zambia
Georgia Russia Zimbabwe
Ghana St. Kitts and Nevis
Grenada St. Lucia
*Mandatory for nonpermanent residents only.
**Passports may still be in use.
Arrangements with these countries provide that U.S. authorities will notify responsible representatives within 72 hours of the arrest or detention of one of their nationals.
When Taiwan nationals (who carry Republic of China passports) are detained, notification should be made to the nearest office of the Coordination Council for North American Affairs, the unofficial entity representing Taiwan’s interests in the United States.
USSR successor states covered by this agreement are:
British dependencies are also covered by this agreement. They are:
British Virgin Islands
Turks and Caicos Islands
Their residents carry British passports.
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