Red Notices in Immigration Court: Dealing with “Underlying Documentation”

By Ariel Rawls, Attorney

In the last installment of this series, we discussed ICE Directive 15006.1 and how practitioners can use it to challenge DHS and EOIR reliance on INTERPOL Red Notices. The Directive instructs ICE personnel who intend to rely on a Red Notice to obtain documentation underlying the notice, such as an arrest warrant, and to provide that documentation to the noncitizen with a meaningful opportunity to respond. The Directive also makes clear that ICE should not characterize a Red Notice as an international arrest warrant, evidence of probable cause, or an independent determination by INTERPOL that the underlying criminal proceedings are valid.

That raises an important practical question for immigration attorneys: What exactly is the “underlying documentation” referred to in Directive 15006.1, and what does that documentation actually prove?

What Should “Underlying Documentation” Mean?

Ideally, the underlying documentation allows counsel to trace the Red Notice to the foreign criminal proceeding. The key document may be an arrest warrant or judicial order. Other relevant records may include charging documents, criminal court decisions, judgments, and sentencing records, among others.

In practice, DHS may provide only a few pages of foreign criminal records. Those records may offer little context or simply repeat the allegations in the Red Notice. Critically, a document can establish that a foreign government initiated a criminal proceeding without providing independent evidence that the allegations are true.

Remember: An Arrest Warrant Is Not a Conviction

Producing an arrest warrant does not, by itself, give DHS independent evidence of criminal conduct. An arrest warrant is generally an accusation coupled with judicial authorization to arrest. It is not a finding of guilt.

This is particularly important because INTERPOL does not independently investigate the allegations contained in a Red Notice before publishing it. As the Ninth Circuit explained in Gonzalez-Castillo v. Garland, 47 F.4th 971 (9th Cir. 2022), the reliability of a Red Notice corresponds to the reliability of the foreign arrest warrant on which it is based because INTERPOL does not independently vet the underlying allegations. The court also noted that the Department of Justice itself takes the position that a Red Notice does not satisfy the Fourth Amendment requirements for arrest.

The Eighth Circuit similarly held in Barahona v. Garland, 993 F.3d 1024 (8th Cir. 2021), that a Red Notice alone was insufficient to establish the probable cause required for the serious nonpolitical crime bar. The Ninth Circuit reached the same conclusion in Gonzalez-Castillo. See also Guan v. Barr, 925 F.3d 1022 (9th Cir. 2019).

These cases do not mean that an arrest warrant is never relevant. They mean that counsel should focus on what, if anything, the warrant adds to the government’s evidence. If the arrest warrant merely repeats the allegations contained in the Red Notice, counsel can argue that it provides no independent corroboration of those allegations. The Red Notice itself is based on information supplied by the requesting country, and the arrest warrant may be the very document—or one of the documents—that supplied the factual basis for the Red Notice. Because INTERPOL does not independently investigate or vet the underlying allegations, simply placing both documents in the record does not necessarily transform the same government accusation into independent evidence.

In other words, two documents do not necessarily equal two pieces of evidence. Where the Red Notice repeats allegations drawn from the foreign arrest warrant, and neither document contains independently developed evidence supporting those allegations, DHS may have two iterations of the same accusation rather than evidence that, taken together, establishes probable cause.

Compare the Red Notice with the Criminal Documents

When DHS provides an arrest warrant or other underlying documents, compare them carefully with the Red Notice, if a copy is available. Do the dates match? Is the alleged conduct the same? Are the victims, locations, amounts, and charges consistent? Does the arrest warrant actually contain the factual allegations described in the Red Notice?

Look for omissions as well as contradictions. A Red Notice may describe an elaborate scheme involving fraud, corruption, or money laundering, while the underlying warrant contains little more than a conclusory statement that the respondent committed an offense. The Red Notice may also characterize conduct in a way that does not appear to correspond with the actual criminal statute cited in the foreign proceeding.

The underlying documents may therefore provide an opportunity to challenge the government’s characterization of the case rather than simply corroborate it. For example, with respect to the serious nonpolitical crime bar, the existence of a Red Notice that does not contain specific facts connecting the petitioner to a crime is insufficient for a probable cause determination. See Villalobos Sura v. Garland, 8 F.4th 1161 (9th Cir. 2021), Contreras-Gonzalez v. Barr, 839 F. App’x 611 (2d Cir. 2020), and Marroquin-Retana v. Attorney General, 675 F. App’x 216 (3d Cir. 2017). The same analysis applies to a foreign arrest warrant and other underlying documentation that may be produced by DHS. See Part Six of this series for more on the topic of the serious nonpolitical crime bar.

Examine the Underlying Criminal Proceedings

Counsel should also examine whether the foreign prosecution comports with the law of the country that issued the warrant.

Governments sometimes use ordinary criminal charges to pursue political opponents, journalists, activists, business rivals, or other perceived adversaries. A government may label conduct as fraud, tax evasion, embezzlement, or another financial crime even when the surrounding circumstances suggest political retaliation.

As discussed in Part Four of this series, criminal prosecution can constitute persecution when authorities use criminal charges as a pretext to persecute someone on account of a protected ground or impose grossly disproportionate punishment. Matter of Izatula, 20 I&N Dec. 149, 154 (BIA 1990). Procedural defects and the circumstances surrounding arrest and detention can also matter. Beskovic v. Gonzales, 467 F.3d 223, 227 (2d Cir. 2006).

Counsel should consider the timing of the criminal case, the respondent’s protected activity (if any), the identity of the alleged victim, the government’s treatment of similarly situated people, and whether the charges are consistent with the country’s domestic laws.

Consider Challenging the Foreign Proceeding Directly

Counsel may also consider engaging with existing or new criminal defense counsel in the requesting country. Depending on the country and the circumstances, local criminal defense counsel may be able to determine whether the warrant remains valid, whether charges can be dismissed or resolved, whether the proceeding violated domestic law, or whether there is another mechanism for challenging the case.

Conclusion

A Red Notice asks authorities in INTERPOL member countries to locate and provisionally arrest a person. It does not establish guilt, and INTERPOL does not independently determine the truth of the underlying criminal allegations. An arrest warrant may provide the foundation for the notice, but it remains an accusation unless a later proceeding establishes otherwise.

The critical issue, then, is not whether DHS produced “underlying documentation.” It is what that documentation actually proves. If the documents merely establish that a foreign government accused the respondent of a crime, they may add little to the Red Notice itself. If they expose contradictions, procedural defects, political motives, or departures from the country’s own law, they may instead provide powerful evidence challenging the government’s case.

Those weaknesses can matter not only to the serious nonpolitical crime bar, but also to the respondent’s broader claim that the criminal proceeding itself forms part of a pattern of persecution.

This is Part Eight of our series on handling INTERPOL Red Notices in U.S. immigration court. Stay tuned for our last installment next week, where we will discuss engaging INTERPOL experts to identify patterns of misuse and misconduct, provide country-specific context, and strengthen challenges to Red Notices in immigration court and before the CCF.

www.grossmanyoung.com  |  info@grossmanyoung.com  |  (240) 403-0913  |  (301) 917-6900

*Disclaimer: This information is presented for the purposes of general education and does not constitute legal advice.