On March 6, 2020, the United States Department of Justice (DOJ) Board of Immigration Appeals ruled that, on its own, a Red Notice may be sufficient to prevent an asylum claim or a withholding of removal claim from being heard.
Specifically, the DOJ said that “An Interpol Red Notice may constitute reliable evidence that indicates the serious nonpolitical crime bar for asylum and withholding of removal applies to an alien.”
The DOJ made this ruling in response to an asylum case for a citizen of El Salvador who entered the U.S. in 2012. The Department of Homeland Security (DHS) placed him in removal proceedings and asserted that he was removeable under section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2018), as an alien who is present in the United States without admission or parole.
According to the DOJ, “He conceded removability and applied for asylum and withholding of removal under sections 208(b)(1)(A) and 241(b)(3)(A) of the Act, 8 U.S.C. §§ 1158(b)(1)(A) and 1231(b)(3)(A) (2018), and for protection under the Convention Against Torture.”
On July 10, 2018, the DHS submitted an Interpol Red Notice, explaining that the Magistrates Court of San Salvador issued a warrant on March 31, 2016 for the respondent’s arrest regarding participation in an “illicit organization.” This alleged act is considered a violation of article 345 of the Salvadoran Penal Code.
The Red Notice indicates that, according to an investigation conducted in 2010, the respondent is a “hit man,” for the MS-13 gang. The Immigration Judge found that there are serious reasons to believe the respondent had committed a serious nonpolitical crime prior to his entry into the United States.
The respondent argued that the Red Notice does not have any probative value because the notice is insufficient to establish probable cause for an arrest in the U.S. under the Fourth Amendment and, as a result, does not have any probative value. However, the DOJ explains that a Red Notice “is the closest instrument to an international arrest warrant in use today.”
The Immigration Judge found the Red Notice to be reliable as a request by El Salvador to provisionally arrest the respondent pending extradition based on a valid national arrest warrant for a crime that is not political in nature. Additionally, the DOJ found that the DHS has met its burden to show that the serious nonpolitical crime bar may apply to the respondent pursuant to 8 C.F.R. §§ 1208.16(d)(2) and 1240.8(d).
The onus was placed on the respondent to prove by a preponderance of the evidence that the serious nonpolitical crime bar does not apply. The respondent then submitted a letter from an attorney in El Salvador that explain the charges stemming from this incident were dismissed in October 2018. However, the Immigration Judge found this letter was not enough to show that the criminal charges had been dismissed. In other words, the judge found that the respondent did not meet his burden to prove by a preponderance of evidence that the serious nonpolitical crime statutory bar does not apply to him.
In addition, the judge noted that the respondent did not submit official court documents regarding these criminal charges. As a result, the judge found that the Red Notice was still active and trustworthy.
In sum, given that an alien is barred from obtaining asylum and withholding of removal when “there are serious reasons for believing that the alien committed a serious nonpolitical crime” before arriving in the U.S., this Red Notice was ruled sufficient to prevent asylum from being granted.
The decision illustrates the importance of supplying court documents beyond lawyer statements to immigration officials in order to prove that a Red Notice was improperly issued or is invalid.
According to Michelle Estlund, a criminal defense attorney, “The court…held that an applicant has the burden of showing that the Red Notice is not the type of evidence referenced above, once the government has asserted it as such. In order to meet that burden, an applicant would do well to submit a court order substantiating his claim whenever possible. Obviously, it can be quite difficult to obtain court documents in some jurisdictions; when that is the case, the court must be informed of that fact.”
Estlund makes a notable point. In fact, if the respondent had been able to prove by a preponderance of evidence that the serious nonpolitical crime statutory bar does not apply to him, the ruling could have been different.