Red Notices in Immigration Court: Using Red Notices as Evidence of Political Persecution
By Senior Attorney Gianna Borroto
Discovering that a client is the subject of an INTERPOL Red Notice can feel like a significant hurdle for immigration practitioners. In removal proceedings, the Department of Homeland Security (DHS) often relies on Red Notices to attack a respondent’s credibility, to trigger the “serious nonpolitical crime” bar to asylum, or to oppose discretionary relief. However, rather than treating INTERPOL Red Notices solely as a threat to obtaining protection, practitioners can reframe them as compelling evidence of transnational repression and persecution. This installment in our series on Red Notices in Immigration Court guides how to do just that.
Red Notices as Transnational Repression
The misuse of INTERPOL is a recognized form of transnational repression. Authoritarian governments increasingly request an INTERPOL Red Notice as a means to internationally persecute individuals by impeding their freedom of movement. By issuing a Red Notice, governments can also effectively “manufacture” an immigration violation in the U.S., leading to visa revocation, lengthy detention, and denial of benefits such as permanent residency.
Expert testimony before the congressional Commission on Security and Cooperation in Europe, also known as the Helsinki Commission, highlighted how authoritarian regimes in Russia, China, Turkey, and Venezuela use Red Notices to target dissidents who have sought protection in the United States. The testimony underscored that Red Notices are often part of large-scale, politically motivated crackdowns on dissent.
In response to this testimony, the Helsinki Commission spearheaded the passage of the Transnational Repression Accountability and Prevention (TRAP) Act in 2021. The law prohibits U.S. federal agencies from arresting or extraditing individuals solely based on an INTERPOL notice or diffusion. It also states that U.S. law enforcement and immigration officials should not deny immigration benefits or to detain individuals solely based on a Red Notice or diffusion, without independent verification. Legislation like the TRAP Act was specifically introduced to counter INTERPOL abuse and prevent the U.S. justice system from being co-opted by oppressive foreign regimes.
The Role of the National Central Bureau
Understanding how INTERPOL operates is key to identifying when its channels are being abused. Each of INTERPOL’s 196 member countries operates a National Central Bureau (NCB), which acts as the liaison between the national government and INTERPOL’s General Secretariat. The U.S. NCB is co-managed by the Department of Justice (DOJ) and the Department of Homeland Security (DHS). Autocratic regimes in countries with weak procedural safeguards can easily direct their NCBs to request baseless Red Notices.
Because INTERPOL is not an investigative body and it operates on a “presumption of state legitimacy,” it presumes that any request submitted by a national NCB is legitimate unless it has reason to believe otherwise. Abusive regimes exploit this presumption, using their NCBs to bypass the formal extradition process and manipulate the U.S. immigration system into detaining and silencing political opponents.
Persecutory Red Notices are Not Always Supported by a Valid Arrest Warrant
A common misconception in immigration court, often perpetuated by DHS, is that a Red Notice is the functional equivalent of an international arrest warrant. As discussed earlier in our series, it is not.
INTERPOL is not an international law enforcement agency. It is an international organization with the mission of advancing international police cooperation. INTERPOL maintains databases of information provided by its member countries, disseminates communications from its member countries’ law enforcement agencies, and publishes notices and diffusions requested by its member countries. It does not independently vet the factual or legal justification for a Red Notice.
In some instances, Red Notices are published without a valid foreign arrest warrant or are based on facially defective warrants. As noted in Tatintsyan v. Barr, 799 F. App’x 965, 966 (9th Cir. 2020), some Red Notices even indicate that no arrest warrant is on file with INTERPOL’s General Secretariat. In those cases, the Ninth Circuit has found that the Red Notice lacks the probative value required to find “serious reasons for believing that the [noncitizen] has committed a serious nonpolitical crime outside the United States.” 8 U.S.C. § 1158(b)(2)(A)(iii). By identifying and highlighting any underlying procedural failures with the Red Notice, practitioners can reframe abusive Red Notices as instruments of persecution, rather than legitimate law enforcement tools.
Persecution, Not Prosecution
Generally, criminal prosecution does not constitute persecution for asylum eligibility. See, e.g., Matter of A-G-, 19 I&N Dec. 502 (BIA 1987); Matter of Sibrun, 18 I. & N. Dec. 354 (BIA 1983). However, courts have long recognized that some foreign governments use criminal charges and INTERPOL Red Notices as weapons of political oppression. A common fact pattern involves a newly installed foreign government pursuing baseless criminal charges against members of the prior administration.
Under U.S. immigration law, prosecution transforms into persecution when the prosecution:
- Is used as a pretext to persecute an individual on account of a protected ground
- Results in punishment that is disproportionate to the crime
See Matter of Izatula, 20 I&N Dec. 149 (BIA 1990).
Practitioners can point to a Red Notice as evidence of ongoing persecution. It can serve as valuable proof that a foreign government is expending international diplomatic and law enforcement resources to harm the respondent on a global scale. To overcome the prosecution presumption and prove that a Red Notice represents persecution, practitioners must meet one of two established legal exceptions:
1. Pretextual Charges and Political Nexus
When a foreign state brings ordinary criminal charges (e.g., fraud, tax evasion, money laundering) to punish an individual for a protected ground, such as their political opinion, the prosecution is a pretext for persecution. See Izatula, 20 I&N Dec. at 154.
Practice Pointer: Practitioners can use the timing of the criminal charges and Red Notice as support for its pretextual nature. Were the charges or Red Notice issued shortly after the client engaged in protected political activity, publicly spoke out against the government, or came into conflict with the government in some way?
2. Disproportionate Punishment and Severe Procedural Defects
Even if a foreign state has a legitimate interest in enforcing a statute, punishment that is grossly disproportionate to the alleged offense can turn legitimate prosecution into persecution.
Courts look to whether the judicial proceedings in the country of origin lack basic due process guarantees. See Beskovic v. Gonzales, 467 F.3d 223, 227 (2d Cir. 2006)(“The circumstances surrounding a petitioner’s arrest or detention require a case-by-case adjudication by the BIA”). Moreover, under Matter of McMullen, 19 I&N Dec. 90 (BIA 1984), a crime is considered political, and therefore exempt from the serious nonpolitical crime bar to asylum, if the political character of the act outweighs its common law character.
Practice Pointer: Submit expert reports detailing the lack of judicial independence and widespread human rights violations in the requesting country’s penal system. Engage independent INTERPOL experts to educate the court on the history of abuse in the requesting country and the lack of independent vetting by INTERPOL. In an upcoming blog post, we will provide guidance on working with INTERPOL experts.
Conclusion
Rather than remaining on the defensive when DHS introduces a Red Notice, immigration practitioners can reframe an abusive Red Notice as proof of persecution supporting a grant of asylum. In doing so, attorneys not only dismantle a key barrier to relief, but also ensure that the U.S. asylum system serves as protection against authoritarianism, rather than an unwitting accomplice to transnational repression.
This is Part Four of our series on handling INTERPOL Red Notices in U.S. immigration court. Stay tuned for future installments, including a closer look at countering common DHS arguments about Red Notices.
