Red Notices in Immigration Court: Countering the Serious Nonpolitical Crime Bar to Asylum

By Ariel Rawls, Attorney and Catherine Walker, Attorney

The serious nonpolitical crime bar is what it sounds like. It is a mandatory bar in U.S. immigration law that renders a noncitizen ineligible for asylum and withholding of removal when they are believed to have committed a serious nonpolitical crime prior to arriving in the United States. The evidentiary standard for triggering the bar — “serious reasons” — is universally interpreted by courts and the Board of Immigration Appeals (BIA) as equivalent to probable cause. Multiple circuit courts have found that an INTERPOL Red Notice standing alone is insufficient to meet that standard because it is not independently vetted for factual or legal accuracy, does not meet the Department of Justice’s own Fourth Amendment probable cause requirements, and typically lacks the specific factual allegations connecting an individual to a particular crime that probable cause demands. Counsel for the Department of Homeland Security (DHS), however, continue to argue that Red Notices trigger the bar, making understanding the nuances of the serious nonpolitical crime bar as applied to Red Notices critical for immigration counsel to understand.

Statutory and Regulatory Framework

The serious nonpolitical crime bar appears in two parallel provisions of the Immigration and Nationality Act (INA). For asylum, 8 U.S.C. § 1158(b)(2)(A)(iii) provides that a noncitizen is ineligible for asylum if “there are serious reasons for believing” that he has committed a “serious nonpolitical crime outside the United States” before he arrives in the United States. The identical standard applies to withholding of removal under 8 U.S.C. § 1231(b)(3)(B)(iii). The bar was first enacted as part of the Refugee Act of 1980 and was later codified in its current form by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. 

The Board of Immigration Appeals (BIA) has recognized that these provisions are designed “to protect the community of a receiving country from the danger of admitting a refugee who has committed a serious common crime.” Matter of C-P-Y-, 29 I. & N. Dec. 610 (BIA 2026). The regulatory framework at 8 C.F.R. § 1208.16 and 1240.8(d) establishes a burden-shifting mechanism: once evidence indicates the applicability of a mandatory ground for denial, the applicant bears the burden of proving by a preponderance of the evidence that such grounds do not apply.

The Balancing Test for “Serious Nonpolitical Crime”

The BIA applied the governing framework for determining whether a crime is a “serious non-political crime” in Matter of McMullen, 19 I&N Dec. 90 (BIA 1984), a decision affirmed by the Ninth Circuit and ultimately endorsed by the Supreme Court. The framework, originally established by the Supreme Court in Ornelas v. Ruiz, 161 U.S. 502 (1896), requires that “the political aspect of the offense outweigh its common law character.” This would not be the case if the crime is grossly out of proportion to the political objective or if it involves acts of an atrocious nature.

The BIA refined the framework further in Matter of E-A-, 26 I&N Dec. 1 (BIA 2012), establishing a two-step analytical structure. The adjudicator first asks whether the criminal conduct is of an atrocious nature — such as murder or terrorism targeting civilians. If the conduct is atrocious, the bar applies without further analysis. If not, the adjudicator proceeds to balance the seriousness of the criminal acts against the political aspect of the conduct to determine whether the criminal nature outweighs the political character. In assessing the political nature of a crime, relevant factors include: (1) whether the act was directed at a governmental entity or political organization rather than a private or civilian entity; (2) whether it was directed toward modification of the political organization of the State; and (3) whether there is a close and direct causal link between the crime and its political purpose. Even where a clear causal connection exists, a lack of proportion between means and ends may still render a crime nonpolitical.

The evaluation is conducted on a case-by-case basis. The BIA and courts have found the bar applicable to a wide range of conduct, including gang-related homicide, Villalobos Sura v. Garland, 8 F.4th 1161 (9th Cir. 2021), drug trafficking, Matter of D-G-B-L-, 29 I. & N. Dec. 392 (BIA 2026), financial crimes such as embezzlement, Guan v. Barr, 925 F.3d 1022 (9th Cir. 2019), and organized property destruction. Matter of E-A-, 26 I. & N. Dec. 1 (BIA 2012). Notably, the bar requires only commission of a crime, not a conviction — the statute asks only whether there are serious reasons for believing the alien “has committed” a serious nonpolitical crime. Matter of Mcmullen, 17 I. & N. Dec. 542 (BIA 1980); Matter of W-E-R-B-, 27 I. & N. Dec. 795 (BIA 2020).

The Evidentiary Standard: Probable Cause

Every circuit court that has addressed the question, as well as the BIA, has interpreted the “serious reasons” standard as equivalent to probable cause.  Probable cause, in this context, requires a “fair probability” that the noncitizen committed the alleged crime. Gonzalez-Castillo v. Garland, 47 F.4th 971 (9th Cir. 2022); Morgan v. Garland, 120 F.4th 913 (1st Cir. 2024).

The burden-shifting framework operates in two stages. DHS must first present evidence sufficient to indicate that the bar may apply — that is, evidence establishing probable cause that the noncitizen committed a serious nonpolitical crime. Once that threshold is crossed, the burden shifts to the noncitizen to prove by a preponderance of the evidence that the bar does not apply. 8 C.F.R. § 1208.16; Matter of W-E-R-B-, 27 I. & N. Dec. 795 (BIA 2020). Critically, as we discussed in the last part of this series, the Ninth Circuit held in Gonzalez-Castillo v. Garland, 47 F.4th 971 (9th Cir. 2022), 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.

Why a Red Notice Alone Is Insufficient To Trigger the Bar

An INTERPOL Red Notice is a request issued by Interpol’s General Secretariat, at the behest of a member country or an international tribunal, to locate and provisionally arrest an individual pending extradition. A prerequisite for a Red Notice to be published is that the requesting party provide INTERPOL with an active arrest warrant or judicial document to corroborate its contents. See INTERPOL Rules on the Processing of Data, Article 83(2)(b)(v). In many cases, the requesting party does not provide such documents or they are tainted by due process concerns. What is more, INTERPOL is not an investigative body or court; it does not independently verify the allegations in a Red Notice request for factual or legal justification. In publishing a Red Notice, INTERPOL is neither creating an international arrest warrant or opining on the criminality of the accused; it is merely disseminating information to INTERPOL member countries to act on in accordance with their domestic laws. See e.g., INTERPOL, Red Notices, https://www.interpol.int/en/How-we-work/Notices/Red-Notices (“Member countries apply their own laws in deciding whether to arrest a person.”); Guan v. Barr, 925 F.3d 1022 (9th Cir. 2019); Villalobos Sura v. Garland, 8 F.4th 1161 (9th Cir. 2021).

Both the Eighth and Ninth Circuits have squarely held that a Red Notice standing alone cannot establish the probable cause required to trigger the serious nonpolitical crime bar. The Eighth Circuit in Barahona v. Garland, 993 F.3d 1024 (8th Cir. 2021) held that the BIA could not find serious reasons for believing a noncitizen committed a serious nonpolitical crime based solely on an INTERPOL Red Notice, and that the statutory framework and relevant case law require something more than “some evidence” to meet the probable cause standard. The court noted that the parties did not cite, and the court could not find, a single case in which a court had found a Red Notice alone sufficient to meet the probable cause standard.

The Ninth Circuit in Gonzalez-Castillo v. Garland, 47 F.4th 971 (9th Cir. 2022) reached the same conclusion and provided a detailed explanation of why a Red Notice is structurally insufficient as standalone evidence. The court identified three independent reasons. First, because a Red Notice is not independently vetted for factual and legal justification, its reliability corresponds with that of the foreign nation’s arrest warrant. Second, the Department of Justice itself takes the position that a Red Notice “does not meet the requirements for arrest under the 4th Amendment to the Constitution” — that is, it does not satisfy probable cause, the very standard courts have defined as analogous to the “serious reasons to believe” standard. Third, the court found that the particular Red Notice at issue lacked the specific factual allegations necessary to support a probable cause finding: it did not allege specific facts connecting the petitioner to any identifiable crime, did not identify any victim, and used a placeholder date for the alleged offense.

Courts have found the probable cause standard satisfied when a Red Notice or foreign arrest warrant is accompanied by additional corroborating evidence. For example, in Villalobos Sura v. Garland, 8 F.4th 1161 (9th Cir. 2021), the Ninth Circuit found sufficient evidence where the government presented a Red Notice, a foreign arrest warrant containing specific identifying information, the names of victims, and the nature of the alleged crime, combined with the petitioner’s own testimony placing him near the scene of the crime. In Contreras-Gonzalez v. Barr, 839 F. App’x 611 (2d Cir. 2020), the Second Circuit found the bar satisfied where a Red Notice was accompanied by a foreign arrest warrant and the petitioner’s own admissions to being present at the scene of a murder and to knowledge of corruption. The Third Circuit in Marroquin-Retana v. Attorney General, 675 F. App’x 216 (3d Cir. 2017) similarly found probable cause satisfied where the government submitted a Red Notice, trial records, a sentencing order, and letters from the Chief of Police. The common thread across these cases is that the Red Notice must be accompanied by evidence that alleges specific facts connecting the individual to a specific, identifiable crime.

Practical Implications

Practitioners representing noncitizens potentially subject to the serious nonpolitical crime bar should scrutinize any Red Notice offered by DHS to determine whether it contains specific factual allegations connecting the client to a particular crime, identifies victims, specifies a date and location, and is accompanied by a copy of the underlying arrest warrant. A Red Notice that merely describes the general activities of a criminal organization without specifically connecting the noncitizen to a particular criminal act is insufficient to establish probable cause. Practitioners should also investigate whether the underlying charges have been dismissed, as the Eighth Circuit in Barahona found that unresolved questions about the status of the underlying charges further undermined the sufficiency of the Red Notice. Where the issuing country has a history of abusing Red Notices for political purposes, practitioners should present evidence of that abuse, as the Ninth Circuit in Gonzalez-Castillo noted that a Red Notice from a country that abuses them for political reasons may be insufficient even when accompanied by other evidence.

Furthermore, when a noncitizen is actively challenging the criminal charges in a foreign jurisdiction or where they have lodged a deletion request with the CCF that challenges the legitimacy of the underlying criminal proceedings, immigration practitioners should consider making the same arguments in immigration court, submitting copies of parallel filings, and, where possible, offering the testimony of other counsel and experts in domestic criminal law. The bar requires a showing that a noncitizen has committed a serious nonpolitical crime. In some cases, it may be possible to present evidence and testimony that the alleged conduct, even if true, does not meet the elements of the alleged crime under foreign domestic law or the crime itself is of a de minimis nature.

As has been the theme in this series, practitioners should hesitate before accepting a Red Notice as true, indicative or criminality, or a basis to deny U.S. immigration relief. Despite DHS’s arguments to the contrary, a Red Notice is not an international arrest warrant and its existence is insufficient to find that a noncitizen has committed a serious nonpolitical crime.

This is Part Six of our series on handling INTERPOL Red Notices in U.S. immigration court. Stay tuned for future installments, including how to engage with INTERPOL experts and deal with DHS-provided documents.