Red Notices in Immigration Court: Countering DHS Arguments

By Ariel Rawls, Attorney, and Catherine Walker, Attorney

In immigration court, the Department of Homeland Security (“DHS”) often introduces or alleges the existence of an INTERPOL Red Notice as conclusive evidence of a noncitizen’s dangerousness, flight risk, or criminality, using it to oppose bond, to impeach credibility, or to support bars to relief. However, a Red Notice is far from sufficient to sustain such allegations or justify denial of relief.  

Practitioners should challenge the existence, authenticity, and reliability of the Red Notice, demand production of it and underlying materials, and frame evidentiary objections around due process and fundamental fairness. Included below are a few sample arguments to make.  

Arguments to Raise When DHS Alleges the Existence of a Red Notice, But Fails to Produce the Document 

As highlighted in previous parts of this series, DHS may invoke an INTERPOL Red Notice as a basis for detention, removal, or denial of immigration relief but fail to produce the actual document. This occurs even though DHS and the Department of Justice co-manage the U.S. National Central Bureau (NCB), which is the official U.S. counterpart of INTERPOL.  

Practitioners should demand production of the Red Notice and all underlying documentation at the earliest stage of proceedings. Consider filing a Motion to Compel Production with the court and filing FOIA requests to ICE, CBP, and the U.S. NCB. Practitioners should also vigorously object to DHS’s failure to produce the Red Notice by invoking constitutional protections, federal regulations, and DHS’s own directives.  

Argument 1: Noncitizens Enjoy a Constitutional and Regulatory Right to Review and Respond to Evidence Against Them  

The Fifth Amendment’s Due Process Clause requires, at a minimum, notice and an opportunity to respond before the government deprives a person of liberty. Furthermore, under 8 C.F.R. § 1240.10(a)(4), noncitizens in removal proceedings have the right to examine and object to the evidence against them. These fundamental rights are meaningless if DHS can invoke an unproduced document as its evidentiary basis for justifying detention or denying relief. 

Federal courts have applied the balancing test from the landmark Mathews v. Eldridge case in this precise scenario and have found due process violations. In G.R.R. v. Hermosillo, No. 2:26-CV-00097-GJL, 2026 WL 395268 (W.D. Wash. Feb. 12, 2026), the Western District of Washington granted habeas relief after ICE re-arrested a noncitizen based on an INTERPOL Red Notice that was never provided to the noncitizen. The court found all three Mathews factors favored the noncitizen: (1) the liberty interest in remaining free from detention was significant because it is the most elemental of liberty interests, (2) the risk of erroneous deprivation was high because unsubstantiated Red Notices raise inherent reliability questions and the noncitizen had no opportunity to contest the Notice’s contents; and (3) the government’s interest was minimal because it had waited over a month after obtaining use authorization before re-arresting the petitioner, demonstrating no urgency. The court found that DHS’s failure to provide the Red Notice and its underlying documentation to the noncitizen, along with a meaningful opportunity to respond to or contest its contents, was a constitutional violation.  

Moreover, in Gonzalez-Castillo, the Ninth Circuit identified specific deficiencies that undermined a Red Notice’s probative value, including errors in the Notice, failure to articulate specific facts connecting the individual to a crime, and the use of placeholder dates. 47 F.4th 971 (9th Cir. 2022). A court cannot evaluate any of these factors if the notice is never produced. Without the document, neither the court nor the noncitizen can assess the reliability of the document. 

Argument 2: ICE Directive 15006.1 Prohibits Exclusive Reliance on Red Notices and Mandates Disclosure 

ICE’s own internal directive, ICE Directive 15006.1 (Aug. 15, 2023), provides powerful arguments against reliance on an unproduced Red Notice. The directive expressly prohibits ICE personnel from relying exclusively on Red Notices or Wanted Person Diffusions “to justify enforcement actions or during immigration proceedings.” The directive also imposes affirmative obligations on ICE before relying on a Red Notice. The first thing ICE must do upon learning of a Red Notice is verify that it remains active and has not been suspended, withdrawn, or expired. The directive further requires that when there are indicia that a notice may be politically motivated or may target a person for retaliation, harassment, or persecution, ICE must request additional information and consult with the DOJ.  

When DHS fails to produce the Red Notice, it is impossible to verify whether the Notice is active and whether it was issued by a country known to abuse the INTERPOL system. In Nazarenko v. Genalo, No. 26-CV-3098-SJB, 2026 WL 1470394 (E.D.N.Y. May 26, 2026), the Eastern District of New York found that ICE violated Directive 15006.1 in multiple ways: it relied exclusively on an inactive diffusion notice for its dangerousness determination; it failed to investigate the petitioner’s claim that the Russian-issued notice was politically motivated; and it failed to consider the required factors in its custody determination form, including the petitioner’s lack of criminal history, seven-year compliance with immigration appointments, and family and business ties. The court held that this cavalcade of errors demonstrated that the petitioner was not provided with the process to which he was entitled, rendering his detention invalid. 

DHS may argue that internal agency directives do not create enforceable rights for individuals. While courts have generally agreed that directives do not create private rights of action, many have nonetheless used the directives as evidence of what process is constitutionally required and to demonstrate that the agency’s own standards were not met, supporting the due process claim. The nuances of ICE Directive 15006.1 will be further explored in a forthcoming part in this series.   

Argument 3: Burden-Shifting Cannot Substitute for Actual Evidence 

Under 8 C.F.R. § 1240.8(a), DHS bears the burden of proving deportability by clear and convincing evidence. DHS sometimes argues that, under 8 C.F.R. § 1240.8(d), the bare assertion that a Red Notice exists shifts the burden of proof to the noncitizen to prove by a preponderance of the evidence that he is eligible for relief. Both the Ninth and Eighth Circuits considered this argument within the context of the serious nonpolitical crime bar and squarely rejected that position.  

In Gonzalez-Castillo v. Garland, 47 F.4th 971 (9th Cir. 2022), the Ninth Circuit held that “the burden-shifting framework of 8 C.F.R. § 1240.8(d) cannot override the statutory requirement that there be ‘serious reasons’ to believe that the bar applies.” Similarly, the Eighth Circuit in Barahona v. Garland, 993 F.3d 1024 (8th Cir. 2021) held that “something more than ‘some evidence’ is required to meet the probable cause standard” for the serious nonpolitical crime bar. The government must first produce sufficient evidence to establish probable cause before any burden shifts to the respondent. A Red Notice that is never produced cannot constitute even the minimal showing required to trigger burden-shifting. 

Where DHS relies on a Form I-213 that references a Red Notice, practitioners should challenge the I-213’s adequacy as a substitute for the Notice itself. DHS may argue that the Form I-213 is sufficient to trigger the burden shifting framework. Courts have partially accepted this argument where the I-213 contains specific details about the Red Notice, but have also found that the I-213 alone cannot substitute for the Notice itself when the respondent contests its accuracy or validity. The respondent can argue that the I-213 is a secondary document that merely references the Red Notice without reproducing its contents, and that the respondent cannot challenge the accuracy of the underlying Notice—including whether it contains specific factual allegations, whether the arrest warrant is valid, or whether the issuing country is known to abuse the system—without seeing the actual document. 

Arguments to Challenge the Reliability of a Red Notice 

In addition to challenging DHS’s failure to produce a copy of the Red Notice, it is important to challenge the Red Notice’s reliability and flag any untoward political motivations. As discussed in last week’s post, practitioners can also use the Red Notice to their advantage and present it as proof of persecution for respondents seeking asylum and related forms of relief.   

Argument 1: The Red Notice Lacks Specificity/Corroboration 

Even where DHS produces a copy of the Red Notice, its probative value can be substantially diminished by attacking the specificity and reliability of its contents. The Ninth Circuit in Gonzalez-Castillo found a Red Notice insufficient in part because it failed to articulate any specific crime and did not allege specific facts connecting the petitioner to the crime. 47 F.4th 971 (9th Cir. 2022). The Notice in that case contained only a vague allegation that the petitioner was “responsible for strikes within the criminal organization” based on an anonymous witness, with no further detail about what a “strike” meant, no identification of any victim, and no description of where the alleged conduct occurred. The court also noted that the date of the alleged incident was after the petitioner had already entered the United States — a temporal inconsistency that further undermined the Notice’s reliability. 

Practitioners should scrutinize the Red Notice for: (1) vague or conclusory allegations without factual specificity; (2) failure to identify victims or the specific elements of the charged offense; (3) reliance on anonymous or unidentified witnesses; (4) absence of the underlying arrest warrant in the record; and (5) factual errors such as dates, locations, or identifying information inconsistent with the respondent’s actual circumstances. 

The above deficiencies in a Red Notices are not uncommon and often form the central part of a Request to Delete a Red Notice with the Commission for the Control of INTERPOL’s Files. Where INTERPOL defense counsel has filed such a request, immigration practitioners can submit the request to the immigration court with accompanying arguments.   

Argument 2: The Red Notice is Politically Motivated  

The evidentiary standard in immigration proceedings requires that evidence be both probative and fundamentally fair, with fairness closely related to the reliability and trustworthiness of the evidence. Aslam v. Mukasey, 537 F.3d 110 (2d Cir. 2008). Where the Red Notice originates from a country with a documented history of political repression, arbitrary criminalization, and/or abuse of INTERPOL’s notice system for political purposes, counsel can argue that the Notice is inherently unreliable and that reliance on it would be fundamentally unfair under the Fifth Amendment’s due process guarantee.  

The Ninth Circuit applied this principle in Tatintsyan v. Barr, vacating a denial of asylum and withholding of removal where the BIA relied on a Red Notice from Russia. 799 F. App’x 965 (9th Cir. 2020). The court found that the BIA had relied on “a single conclusory document, the reliability of which was undermined by both Tatintsyan’s presentation of credible testimony that Russia has political reasons for charging him and evidence indicating that Interpol’s red notices arising from Russia are not reliable.” The petitioner presented evidence that the Russian government had persecuted him before he left Russia and that Russia has abused INTERPOL’s Red Notice provisions for political reasons. 

Congress has expressly recognized this problem. The Transnational Repression Accountability and Prevention Act, 22 U.S.C. § 263b, expresses the sense of Congress that “some INTERPOL member countries have repeatedly misused INTERPOL’s databases and processes, including Notice and Diffusion mechanisms, to conduct activities of an overtly political or other unlawful character and in violation of international human rights standards, including by making requests to harass or persecute political opponents, human rights defenders, or journalists.” The statute requires the Attorney General and Secretary of State to publish biannual reports identifying countries that have repeatedly abused the Red Notice mechanism for political purposes. These reports can be introduced in immigration court as evidence of systemic abuse by the requesting country. 

Furthermore, the BIA acknowledged in Matter of W-E-R-B- that where a noncitizen presents evidence of the political nature of the alleged crime, the immigration judge should consider evidence that the foreign country issuing the Red Notice abuses them for political reasons. 27 I. & N. Dec. 795 (BIA 2020). Practitioners should therefore present country condition evidence, expert testimony, news reports, and CCF decisions documenting the requesting country’s pattern of abuse to the immigration court.  

Argument 3: A Red Notice Alone is Insufficient Evidence of the Serious Nonpolitical Crime Bar  

As we will discuss in depth in the next part of this series, an applicant is barred from asylum and withholding of removal where there are “serious reasons for believing” that the applicant has committed a “serious nonpolitical crime outside the United States[.]” 8 U.S.C. §§ 1158(b)(2)(A)(iii); 1231(b)(3)(B)(iii). A Red Notice alone is legally insufficient to establish the “serious reasons for believing” standard, which courts have equated with probable cause.  

The Eighth Circuit in Barahona v. Garland held that the BIA erred by accepting a Red Notice as “some evidence” without making a probable cause finding, noting that the parties “could not find” “a case in which a court has found a Red Notice, alone, is sufficient to meet this standard.” 993 F.3d 1024 (8th Cir. 2021). The court found this particularly significant where the respondent had submitted evidence that the underlying charges had been dismissed. The Ninth Circuit reached a similar conclusion in Gonzalez-Castillo v. Garland, holding that “it does not appear to us a Red Notice alone is ordinarily sufficient to establish probable cause that a crime has occurred.” 47 F.4th 971 (9th Cir. 2022). The court found that given the nature of Red Notices and the specific deficiencies in this Red Notice, it lacked sufficient probative value to establish probable cause.  

The BIA’s decision in Matter of W-E-R-B-, does not contradict this principle. 27 I. & N. Dec. 795 (BIA 2020). There, the BIA found the Red Notice reliable because it was corroborated by a Form I-213 that confirmed the notice was active, matched the respondent’s biographical information and photograph, and was accompanied by evidence that the underlying arrest warrant was on file with INTERPOL’s General Secretariat. Practitioners should clarify that W-E-R-B- stands for the proposition that a Red Notice may constitute reliable evidence, not that it is sufficient standing alone. Where the government presents only the Red Notice without corroborating documentation, argue that the Barahona and Gonzalez-Castillo framework controls. 

This is Part Five of our series on handling INTERPOL Red Notices in U.S. immigration court. Stay tuned for future installments, including a closer look at the serious nonpolitical crime bar and ICE Directive 15006.1.