The International Bar Association (IBA) published an article, authored by Sandra Grossman and Meg Hobbins, detailing the issue of Red Notice abuse and strategies attorneys can use to challenge these often persecutory INTERPOL publications.
A guide to understanding and challenging persecutory Interpol Red Notices in immigration court and before Interpol
Thursday 1 October 2020 – Published by the International Bar Association on IBANET.ORG
The International Criminal Police Organization, commonly known as Interpol, is a legitimate international police organization with an important mandate to fight transnational crime. Unfortunately, the organization is subject to abuse and manipulation by autocratic member states. This translates into instances of trans-national persecution of dissidents and sometimes their arrest and detention for reasons that are not in compliance with Interpol’s own rules and constitution.
Countries such as China, Russia and Venezuela regularly deploy a powerful weapon against dissidents who flee persecution: an Interpol Red Notice or diffusion. By submitting a facially valid but illegitimate request for a dissident’s apprehension and extradition, they are then able to accomplish in United States immigration proceedings what they could not do under the scrutiny of formal extradition proceedings. In turn, US immigration practitioners are increasingly confronted by such persecutory Red Notices, whether in court, when their client is arrested at their house or at a US Citizenship and Immigration Services interview.
In a precedent decision, the Board of Immigration Appeals (BIA) recently addressed the probative value of Red Notices and provided Department of Homeland Security (DHS) attorneys with another tool to bolster the value of these notices in court. Now more than ever, it is up to immigration practitioners to aptly identify a persecutory Red Notice and educate the court and DHS about instances of Interpol abuse in their client’s case. This article will provide an explanation of the Interpol information sharing system, explain what a Red Notice is and isn’t, and show how practitioners may defend against illegitimate Red Notices both before US immigration courts and Interpol itself.
What is a Red Notice and how might it impact an immigration proceeding?
Red Notices are colloquially referred to as ‘international arrest warrants’. This is incorrect. Interpol is an international organization with the mission of advancing police cooperation on an international level. Interpol is not an international law enforcement agency and no one who works for Interpol has the power to make an arrest by virtue of their position in the organization. Simply, Interpol is responsible for holding databases of nation-provided information, maintaining a structured communication system for messages between law enforcement agencies in different countries and for publishing notices, including the infamous Red Notice. Interpol acts as a message board for its 194 member nations and respects the independence of each country’s unique judicial and law enforcement systems.
In plain terms, a Red Notice is merely a ‘lookout’ notice – a request to law enforcement worldwide to locate and provisionally arrest a person pending extradition, surrender or similar legal action. Red Notices apply to people wanted for prosecution or to serve a sentence. Currently, there are about 62,000 active Red Notices, of which some 7,000 are public.[1] The majority of Red Notices are restricted to law enforcement use only but, in some cases, where the public’s help is needed to locate an individual, a public extract of the Red Notice is published to the website.
Interpol’s publications are often used in US immigration and asylum cases but the abundance of misinformation surrounding the agency and Red Notices may mean attorneys fail to appropriately challenge the DHS or immigration judge (IJ), whose assertions about Interpol are often incorrect. For example, IJs often uncritically defer to Interpol publications in their decisions as conclusive evidence of criminality, generally causing serious damage to an individual’s US immigration case.
Misuse of Interpol may affect foreign nationals at many stages of the immigration process. People may be improperly arrested, denied bond, detained for extended periods of time or denied a discretionary benefit like asylum or permanent residence. For these reasons, it is critical that the attorney representing the target of a persecutory Red Notice be prepared to advocate on their client’s behalf by challenging the Red Notice and educating the Court about its meaning.
Matter of W-E-R-B
In early March 2020, the BIA published a decision, Matter of W-E-R-B, holding that an Interpol Red Notice may constitute reliable evidence that an asylum applicant has committed a serious non-political crime, rendering the applicant ineligible for asylum.[2] This holding could – and surely will—be misinterpreted as shorthand for ‘Red Notices are reliable’. However, a closer look at Matter of W-E-R-B reveals a holding that is narrow in scope, limited to a particular factual scenario and which may be easily distinguished in cases where evidence demonstrates that the respondent’s persecution includes the publication of an illegitimate Red Notice.
Most importantly, the respondent’s attorney in W-E-R-B conceded that the alleged crimes were not political in nature, and the Red Notice was issued by El Salvador, a country that is not notorious for Interpol abuse.[3] In a critical footnote, the BIA writes: ‘In a case unlike this, where an alien has put forth evidence of the political nature of his crime to meet his burden, an Immigration Judge should consider evidence in the record that the foreign country issuing the Red Notice abuses them for political reasons.’[4]
While Matter of W-E-R-B contains dicta that overstates the reliability of Red Notices and the vetting procedures employed by Interpol, there is also sufficient positive dicta to harness for clients subject to persecutory Red Notices. This case invites immigration advocates to challenge the legitimacy of the Red Notice through solid evidence. Additionally, one of the best ways to prove the illegitimacy of a Red Notice in removal proceedings is to successfully challenge it before Interpol itself.
How to challenge a Red Notice before Interpol?
Aside from challenging the use of Red Notices in immigration court proceedings, which would likely require testimony from a legal expert from the country issuing the notice, a Red Notice may be challenged directly through the Commission for the Control of Interpol’s Files (‘CCF’). The CCF is an independent, impartial body, responsible for ensuring that the processing of personal data complies with applicable Interpol rules. The Commission has two chambers:
- the Supervisory and Advisory Chambers, which advise on the operations and processing of personal data; and
- the Requests Chamber, which has the power to examine and decide on individual requests for revisions to and/or deletions of data and previous decisions.
The process for appealing a decision or revising data with the CCF is similar to presenting an asylum case but is rooted in international human rights law and Interpol’s foundational documents. Interpol’s own constitution requires it to comply with two broad protections set forth in Articles 2 and 3. Article 2 states that the organization aims to promote international police cooperation within the ‘spirit of the Universal Declaration of Human Rights’.
Article 3, sometimes referred to as the neutrality clause, states that it is ‘strictly forbidden for the Organization [Interpol] to undertake any intervention or activities of a political, military, religious, or racial character’.[5] Despite these safeguards against persecutory requests, Interpol does not properly vet Red Notice requests for compliance with these protections.
When the subject of a Red Notice is located in the US, the only legal way to arrest the individual is by obtaining an arrest warrant issued by a US Attorney’s Office. According to US law, the Red Notice alone is not a sufficient basis for arrest. Interpol’s own website acknowledges that Red Notices are not reliable indicators of guilt.[6] To properly take action, the criminal division of the US Attorney’s office must determine whether a valid extradition treaty exists between the US and the country issuing the notice for the specified crime. If the subject may be extradited and the US receives a diplomatic request for provisional arrest, then the US Attorney’s office reviews the facts and decides whether to file a complaint and issue a warrant for extradition.
Although Interpol’s constitution and US law are clear about proper use of Red Notices, US Immigration and Customs Enforcement regularly uses Red Notices as a basis to target foreign nationals for detention and deportation. Immigration attorneys representing clients who are illegitimately targeted through Interpol, should consider filing a claim before the CCF or working with an attorney who regularly handles such cases.
Interpol abuse and the TRAP Act
‘Interpol abuse’ occurs when Interpol’s channels or publications are used by a member nation for predominantly political, military, racial or religious reasons. This type of abuse is a violation of Interpol’s own Constitution, as outlined above. Governments, international organizations, non-governmental organizations and experts have attested to the reality of Interpol abuse. Immigration attorneys also witness first-hand the damage that a Red Notice can do to an innocent client who is processing a visa, a green card, a naturalization case or an asylum case, among other applications for immigration benefits.
Countries with corrupt or autocratic governments are most notorious for abusing Interpol’s system of notices. Turkey is believed to be the country to have most abused the Red Notice system. Russia is second, followed by China, Kazakhstan, Tajikistan and Uzbekistan. Belarus, Venezuela, Sri Lanka and Indonesia have also been investigated by Fair Trials International for misuse of Interpol.
In 2019, the congressional Commission on Security and Cooperation in Europe, also known as the Helsinki Commission, introduced the Transnational Repression Accountability and Prevention (TRAP) Act to address Interpol abuse at an international level and the misuse of its communications by US authorities. The TRAP act would enhance the screening process for Interpol communications to ensure they do not violate Interpol’s constitution or rules for data processing. It would also seek to obtain more transparency and accountability at the CCF by requiring countries found to be in violation of the agency’s rules to seek prior approval before submitting any further complaints about the same individual and would impose penalties for egregious abuse. The Act would also fill vacant CCF positions with candidates who demonstrate a record of respect for the rule of law. Additionally, it would oppose the appointment to senior Interpol positions of candidates from countries that regularly abuse Interpol.
The Congressional Helsinki Commission was working with the House Foreign Affairs Committee to prepare a mark-up of the legislation in May but plans were derailed by the Covid-19 pandemic. The Commission is still hoping to get back on track once Congress returns to some semblance of regular legislative activity but, as of yet, the future of this important legislation remains unclear.
Conclusion
Interpol communications are far too often used as conclusive evidence of criminality by US immigration authorities, upending the lives of foreign nationals who are legitimately seeking asylum and other benefits. In order to effectively advocate for these clients, and stand against transnational repression, immigration attorneys must familiarize themselves with how Interpol functions, and learn how to successfully challenge persecutory Red Notices and diffusions.
[1] See Interpol, ‘Red Notices’, available at https://www.Interpol.int/en/How-we-work/Notices/Red-Notices.
[2] Matter of W-E-R-B, 27 I&N Dec. 795 (BIA 2020).
[4] Matter of W-E-R-B-at Footnote 5.
[5]Interpol Const., Art. 2, available at https://www.Interpol.int/About-Interpol/Legal-materials/The-Constitution (last visited 8 January 2019).
[6]See Interpol, ‘Red Notices’, available at https://www.Interpol.int/en/How-we-work/Notices/Red-Notices.
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