INTERPOL: Success for Fair Trials over use of Red Notices in US asylum cases

Article by Fair Trials

The US Court of Appeals for the Eighth Circuit cast doubt that an INTERPOL Red Notice, on its own, constitutes necessary probable cause that an asylum-seeker committed a serious non-political crime. Fair Trials submitted an amicus brief in the immigration case.

Rebecca Shaeffer, Legal Director (Americas) said:

“We are delighted that the Eighth Circuit agrees that Red Notices should not, on their own, be considered evidence of criminal activity.

“This ruling has highlighted some of the problems with Red Notices, which are often issued for political reasons or based on unreliable evidence. While this is an important step in preventing their misuse in asylum cases in the US, we need more transparency from INTERPOL about how they are preventing Red Notices from being used against refugees.”

The amicus challenged the validity of INTERPOL Red Notices as sole evidence that an asylum seeker is ineligible for relief based on criminal activity. In this case, The Board of Immigration Appeals (BIA) had relied on an INTERPOL Red Notice to find that “serious reasons” existed to believe that the man seeking asylum had “committed a serious non-political crime outside the United States” and was therefore ineligible for asylum. Fair Trials put forward in its amicus that a Red Notice alone cannot provide this evidence and the Eighth Circuit reversed the BIA’s decision.

“I believe [the amicus brief] truly helped my client obtain this win” said Allison Heimes, Immigration Lawyer at Carlson & Burnett. “The probable cause argument was the strongest one we had, and it was vital we had additional, factual support from Fair Trials in order to push us into win territory.”

This new ruling is good news for US immigration lawyers as the case has created positive case law which will be used to hold the government to the proper standard and will offer clearer protection for asylum seekers who face exclusion unfairly.

Law firm Arnold & Porter worked pro bono on the amicus brief. “INTERPOL is issuing Red Notices more and more often, making it increasingly important for U.S. courts to understand what function these notices can and should serve”, said John Elwood, Counsel of Record on this case.

“It is especially important that judges appreciate that Red Notices are not sufficient on their own to show probable cause that a crime has occurred. In line with that point, the Eighth Circuit correctly held that the Board of Immigration Appeals had failed to make the proper probable cause finding in this case.”

An INTERPOL Red Notice is a global request for the provisional arrest of a wanted person. The notices contain identification information and the alleged facts and offence; countries must reference a national arrest warrant or judicial decision but do not have to provide a copy. Although INTERPOL attempts to remove politically motivated warrants, it does not have enough staff to effectively filter Red Notice requests. Only 30-40 employees are assigned to review 10,000 requests per year, as well as to re-review the 62,000 active Red Notices. Red Notices are often used as a tool to harass and threaten journalists, dissidents, and refugees.

Fair Trials has long been an advocate against the abuse of Red Notices, working with both global policymakers and INTERPOL itself. Our work has informed INTERPOL’s reforms since 2015, among which were: increasing the independence, capacity, and transparency of INTERPOL’s complaints mechanism; more robust processes for reviewing Red Notices, and special procedures to protect refugees and asylum-seekers.

Fair Trials is now calling for more transparency on how these reforms are being implemented and demanding further reforms to strengthen protections against misuse of INTERPOL’s other tools, including ‘Diffusions’. INTERPOL’s member countries must also strengthen their laws and policies to ensure that the abusive use of INTERPOL does not subject individuals to persecution.