## Facts

- Ezequiel Nunez Cornejo, a Mexican citizen, was arrested and detained in San Diego County on April 8, 2003.
- Cornejo alleged arresting authorities failed to tell him “without delay” that he could request notification of the Mexican consulate and communicate with consular officers, as described in Article 36(1)(b) of the Vienna Convention on Consular Relations (VCCR).
- Cornejo filed a putative class action on behalf of foreign nationals detained in San Diego County, seeking damages and other relief under 42 U.S.C. § 1983 for the alleged treaty violation.
- Defendants included the County of San Diego, deputy sheriffs, and certain municipalities and officers involved in arrests and detention.
- The district court dismissed under Rule 12(b)(6), concluding the VCCR did not create rights enforceable under § 1983, and the class allegations were not reached.
- Cornejo appealed; the United States participated as amicus curiae opposing recognition of a private § 1983 remedy for Article 36 violations.

## Issues

1. Whether Article 36 of the VCCR unambiguously confers an individual right on detained foreign nationals.
2. If so, whether that right is enforceable through 42 U.S.C. § 1983 based on officers’ failure to provide consular-notification information.

## Decision

- The Ninth Circuit affirmed dismissal of the complaint.
- The court held Article 36 does not create “individual rights” enforceable under § 1983.
- The court recognized the VCCR as self-executing but held self-execution alone does not establish a privately enforceable right or § 1983 cause of action.
- A dissent would have found Article 36’s text confers individual rights and would have allowed the § 1983 claim to proceed.

## Legal Principles

- A self-executing treaty may have domestic legal force, but a plaintiff seeking relief under § 1983 must still show the treaty unambiguously confers an individual right.
- Under the Gonzaga standard, enforceable rights require clear “rights-creating” language focused on persons benefited, not merely general obligations between governmental entities.
- Article 36 of the VCCR was construed as primarily regulating consular relations and intergovernmental obligations, not creating an individual entitlement to a domestic civil remedy.
- The absence of an express remedial scheme, coupled with language tying implementation to the receiving state’s laws and regulations, supported finding no § 1983-enforceable right.

## Conclusion

The Ninth Circuit held that failure to provide Article 36 consular-notification information does not support a § 1983 claim because Article 36 of the VCCR does not unambiguously confer an individually enforceable right, so the dismissal for failure to state a claim was affirmed.


Cornejo v. County of San Diego, 504 F.3d 853 (9th Cir. 2007)