Challenging a Red Notice: What Immigration Attorneys Need to Know About Interpol

• Publication year: 2019

Ted R Bromund and Sandra A. Grossman^*

Abstract: The central challenge facing immigration attorneys in the context of INTERPOL is to understand and make clear that INTERPOL's publications—including its famous "Red Notice"—are the result of an administrative procedure, not a judicial process. They do not prove guilt and they are not based on evidence. Yet INTERPOL publications are used by authoritarian regimes to persecute dissidents and politically active people abroad, including through the U.S. immigration system. This article will provide immigration attorneys with the background and tools they need to effectively advocate for their clients and successfully challenge Department of Homeland Security assertions about INTERPOL.

Introduction

The International Criminal Police Organization—officially ICPO-INTERPOL, commonly known simply as INTERPOL—plays an important role in international law enforcement, and its publications are often used in U.S. immigration and asylum cases. But neither INTERPOL nor its publications, such as its famous "Red Notice," are well understood. This can lead attorneys to fail to appropriately challenge Department of Homeland Security (DHS) or immigration judge (IJ) assertions about INTERPOL that are often incorrect. For example, too often IJs uncritically defer to INTERPOL publications in their decisions, resulting in extended detention time or denials of bonds and other requests for immigration benefits, and in general causing serious damage to an individual's U.S. immigration case.

This article will educate attorneys on the meaning of INTERPOL Red Notices and other INTERPOL publications, give background on INTER-POL as an organization, and provide attorneys with the tools and knowledge they need to effectively advocate for their clients when an INTERPOL issue arises. The existence of an INTERPOL issue in any particular case can provide immigration attorneys with an opportunity for advocacy before an IJ, the DHS, and at an international level before the Commission for the Control of INTERPOL'S Files (CCF).

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What INTERPOL Is and What It Isn't

To understand INTERPOL'S various publications, attorneys must first understand INTERPOL itself. Contrary to the image fostered by Hollywood, INTERPOL is not an international law enforcement agency. No one who works for INTERPOL has the power to make an arrest as a result of his or her position in INTERPOL. Rather, INTERPOL is an international organization that has the primary aim of advancing international police cooperation. It is based on the sovereignty of its member nations, and therefore respects the independence of their separate judicial and law enforcement systems. It works by holding databases of nation-provided information, by maintaining a communications system for messages between law enforcement agencies in different nations, and by publishing notices—including its Red Notice.

INTERPOL currently has 194 member nations. (North Korea is one of the few well-known nations that is not a member of INTERPOL.) INTERPOL's supreme body is its one-nation, one-vote general assembly. Below the assembly, INTERPOL has a president, a 12-member executive committee chosen on a geographically representative basis, a secretary-general who has operational control of INTERPOL, and, finally, INTERPOL's staff in its General Secretariat. All INTERPOL member nations are required to establish a National Central Bureau (NCB) to manage all liaison with INTERPOL. In the United States, the NCB is co-managed by DHS and the Department of Justice. Many U.S. state and local law enforcement agencies have "read access" to databases maintained by INTERPOL, but only the U.S. NCB can request a Red Notice or other INTERPOL publication or transmit messages on behalf of the United States.

All INTERPOL activity, including all communications over its network, must respect its Constitution and subsidiary rules adopted by the general assembly, including its Rules on the Processing of Data (RPD).¹ All of INTERPOL's foundational documents and other relevant legal documents can be reviewed on INTERPOL's thorough website at www.interpol.int/About-INTERPOL/Overview.

The purpose of the Constitution and the subsidiary rules is to ensure that INTERPOL is used only against "ordinary-law crime,"² and is not in any way involved in politics, or for purposes of a political, and therefore illegitimate, persecution. In this way, INTERPOL is supposed to be beholden to a general principle also contained in U.S. asylum law, which establishes that while any country has the right to prosecute its own citizens, it must do so for legitimate purposes.

The Constitution's most-cited portions are its Article 2, which requires that international police cooperation be conducted within the "spirit of the Universal Declaration of Human Rights,"³ and, in particular, its Article 3, sometimes referred to as the neutrality clause, which states that it is "strictly forbidden for the Organization [INTERPOL] to undertake any intervention

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or activities of a political, military, religious, or racial character."⁴ INTERPOL cannot stop its sovereign member nations from creating and prosecuting political offenses. All it can and is required to do by its Constitution is ensure that it is used only in connection with genuinely criminal offenses. Unfortunately, as discussed below, INTERPOL's system of publications and other communications is subject to abuse by member nations.

INTERPOL Publications: Introduction to the Red Notice

The value of INTERPOL rests largely in the structured communications system it provides. This system facilitates three kinds of messages. First, there are simple messages between one or more NCBs. A message is analogous to an everyday email and is only seen by the INTERPOL headquarters in Lyon, France, if the sending nation includes it in the recipient list.

Second, there are "diffusions," a more structured email that can be sent to one or more NCBs, and can concern a wide variety of subjects, up to and including identifying an individual as a suspect and requesting his or her arrest.⁵ A diffusion is not subject to any prior review by INTERPOL before it is transmitted, but a diffusion is copied automatically to INTERPOL, and can be reviewed by INTERPOL for compliance with its rules after it is received.

Finally, there is INTERPOL's system of colored notices, including its Red Notice. Any NCB can request the publication of a notice, but all requests are subject to review by INTERPOL for administrative compliance with its rules before publication. By rule, all notices must be published to all INTERPOL member nations.⁶ Yellow Notices (to alert police to a missing person), Blue Notices (to collect additional information about a person in relation to a crime), and Green Notices (to provide warnings about persons who have committed criminal offenses and are likely to repeat those offenses in other countries) are all relatively common, but by far the most-used notice is the Red Notice, of which 13,048 were published in 2017.

The purpose of a Red Notice, according to INTERPOL, is to "seek the location and arrest of wanted persons with a view to extradition or similar lawful action."⁷ The requesting NCB can choose to make public a...