7 FAM 980
SUBPOENA OF CONSULAR OFFICER OR CONSULAR RECORDS
(CT:CON-813; 06-13-2018)
(Office of Origin: CA/OCS)
7 FAM 981 SUMMARY
(CT:CON-449; 03-25-2013)
You may be contacted directly by attorneys in the United
States or persons in the host country requesting your testimony or release of
consular records. Depending on where the evidence sought will be used, in a
court in the United States or in a court in the host country, specific
procedures summarized in this subchapter apply. You should immediately notify
CA/OCS/L (Ask-OCS-L@state.gov) when you receive such an inquiry. Do not
provide any oral or written testimony or release any official record without
the specific Department of State permission outlined in this subchapter.
CA/OCS/L will coordinate with the Office of the Legal Adviser (L) in the
Departments response to the subpoena. Private persons who do not attempt to
subpoena a consular officer, but simply inquire about how to obtain expert
consular testimony and release of records should be directed to 22 CFR 172
Service Of Process; Production Or Disclosure Of Official Information In
Response To Court Orders, Subpoenas, Notices Of Depositions, Requests For
Admissions, Interrogatories, or Similar Requests or Demands in Connection with
Federal or State Litigation; Expert Testimony.
7 FAM 982 APPEARANCE AT TRIAL
(CT:CON-127; 01-26-2006)
a. If the subpoena calls for the consular officer to
appear at a trial in the U.S., the officer generally may not testify unless
authorized by the Assistant Secretary of State for Consular Affairs, the
Director General of the Foreign Service (see 2 FAM 510), the
Legal Adviser, or their delegates. If approved the Department will provide a travel
itinerary. Expenses for the consular officers travel generally are borne by
the requesting authority unless the underlying cause of the action is related
to the consular function, as, for example, in a visa fraud prosecution. If the
subpoena is issued at the request of someone other than the Government, the
private party must bear all expenses.
b. If the subpoena calls for the consular officer to
testify in a foreign court, the officer may be required to appear, but may not
give testimony without the Departments approval (L/DL, L/CA, and the Assistant
Secretary for Consular Services). The Department may instruct the consular
officer to appear and claim immunity from testimony or to appear, to waive
immunity, and testify consistent with the waiver. The post should consult L/DL
(Diplomatic Law) in all cases concerning subpoenas that call for the appearance
or testimony of a consular officer or foreign service national employee of the
consular section. For information on waiver immunity see 2 FAM 221.5.
7 FAM 983 SUBMISSION OF DOCUMENTS
(CT:CON-449; 03-25-2013)
A subpoena that calls for producing documents in court
must take priority over other work. In some cases, however, it may be possible
to quash a subpoena, or to obtain an extension of time in which to respond.
Questions concerning response to a subpoena should be raised with the
appropriate office in the Legal Advisers Office (L). Consular Officers may
contact CA/OCS/L (Ask-OCS-L@state.gov) for assistance in relaying questions to
L.
7 FAM 984 COURT OR OTHER OUTSIDE
NOTIFICATION TO CONSULAR OFFICER
(CT:CON-449; 03-25-2013)
If the consular officer receives a subpoena or request
other than a subpoena directly from a foreign court or other foreign entity
without notification from the Department, the officer should report at once to
the Department (L/DL) by telegram, quoting the subpoena, or faxing a copy for
the Department, so that it may decide whether to approve the consular officers
appearance and/or compliance with the request for documents. If the consular
officer receives a subpoena or request from a U.S. court, L/CA and CA/OCS/L (Ask-OCS-L@state.gov)
should be notified at once.
7 FAM 985 FOREIGN COURT PROCEEDINGS
7 FAM 985.1 Testimony of Consular
Officer/Subpoena of Consular Records
(CT:CON-127; 01-26-2006)
a. Immunity of diplomatic or consular officers shall
not be waived except with the express prior consent of the Department (L/DL; 2 FAM 511).
b. In cases involving official activities of Department
personnel, the key factor in determining whether immunity may be waived is the
potential impact upon the U.S. government. If a consular officer or other
officer at post is requested to appear as a witness in a foreign court
proceeding in an official capacity or to produce evidence, forward such request
to the Department (L/DL) by scanned email, telegram or FAX for determination.
Likewise, forward requests for testimony of foreign service national employees
or consular agents to the Department (L/DL).
7 FAM 985.2 Release of Consular
Statements and Records
(CT:CON-127; 01-26-2006)
No U.S. government employee should furnish affidavits,
declarations, and or written testimony related to an official function unless
authorized to do so by the Director General of the Foreign Service and Director
of Personnel, the Assistant Secretary for Consular Affairs, or the Departments
Legal Adviser (see 22 CFR 172). This proviso applies to requests from foreign
officials and private individuals, such as private attorneys.
7 FAM 986 VISA RECORDS--SECTION 222(f),
INA
(CT:CON-813; 06-13-2018)
The records of the Department of State and of diplomatic
and consular offices of the United States pertaining to the issuance or refusal
of visas or permits to enter the United States are considered confidential.
They shall be used only for the formulation, amendment, administration, or
enforcement of the immigration, nationality, and other laws of the United
States except that, in the discretion of the Secretary of State, certified
copies of such records may be made available to a court which certifies that
the information contained in such records is needed by the court, in the
interest of the ends of justice, in a case pending before the court (see 22 CFR
40.4 and 9
FAM 603). Questions regarding release of visa records should be brought to
the attention of CA/VO and L/CA.
7 FAM 987 THROUGH 989 UNASSIGNED