Harold Koh, a top legal advisor at the State Department, resigned after the Biden administration’s use of Title 42 to expel hundreds of thousands of migrants, calling it “inhumane” and “illegal.”
In late August 2021, the Gambian government said that any migrants wanting to return home to The Gambia would not be allowed to enter. The Banjul administration said it would not allow any flights carrying Gambian migrants coming from the EU.
This announcement came as Germany decided to expel several Gambian migrants in early September. And the DW media reports that “more than 2,000 Gambian migrants who have exhausted their asylum appeals in Germany are awaiting repatriation.” The country is not accepting its citizens back to the Gambia due to security concerns and difficulties in reintegration. Other issues cited related to the pandemic and the possibility that Gambian migrants could contribute to a rise in COVID-19 cases, thereby putting additional strain on public health facilities in the country.
This move could also be due to the upcoming election in the Gambia that is set for December 2021, which could be a way to boost electoral support in the polls. The forthcoming election will be the first one after oppressive dictator Yahya Jammeh ruled for nearly 22 years till he lost an election in 2017 to Adama Barrow.
The Gambian foreign ministry spokesman, Saikou Ceesay, explained that allowing migrants to return to the Gambia would cause a “social upheaval” he also added that Gambia is trying to perverse and “consolidate the peace, stability and democracy,” and presumably, allowing Gambian nations to reentry would hinder the country’s development.
Gambia’s decision could also be tied to an underlying political motive tied to the election, according to a European Union Diplomat.
The Gambia and the EU
The topic of immigration between The Gambia and the EU has long been sore spot for both parties. For example, in 2018, the two entities signed an agreement called the “Good Practices document on identification and return procedures.” Allegedly, Gambia has not fully upheld its end of the agreement.
The European Council is also looking into a proposal that would make it harder for Gambians to obtain an EU visa due to the country’s “failure to cooperate on readmission.”
A Ugandan expert in international law, Gawaya Tegulle, said that each country has a duty and obligation to accept its nationals back and The Gambia’s decision is unlawful and breaks international law. “Therefore, the action per se by the government of the Gambia has no place under international law,” Tegulle said to DW news, and further stated that “It is illegal before we start even to list the demerits of the circumstances surrounding the decision.” On the other hand, Tegulle disagrees with Germany’s decision to expel Gambians and says that both nations made the wrong decision.
Analysis and Implications
EU’s decision to expel Gambian migrants is not new. In 2019, migrant Gambians faced the same dilemma of having to leave their home in hopes of finding a safer home just to get deported to their country.
One issue is the proof required to establish that a migrant is a national of a country.
No human, especially a migrant fleeing their country in seeking better opportunities, should be left in limbo, not knowing where their permeant address lies. A problem is that the flood of migrants from Afghanistan, Syria, Iraq, the Northern Triangle, Myanmar, and many other countries is unsustainable. The tide of refugees imposes significant pressure on the existing international refugee law.
The September Issue of the IELR will have a more comprehensive discussion of this topic.
On June 22, 2021, the Portuguese Presidency of the Council of the European Union hosted the EU-U.S. Ministerial Meeting on Justice and Home Affairs in Lisbon and made progress on count-terrorism, violent extremism, Passenger Name Record (PNR) data exchange. They also discussed developing bilateral and multilateral instruments to combat cybercrime, using artificial intelligence, and developing well-managed and humane migration policies.
They underscored the need to cooperate against terrorism, including prevention, permanent vigilance, adaptation, and resilience from all relevant actors.
The U.S. and EU underscored their strong concern with the rise of violent extremism. They cited crimes inspired by hate speech, racism and xenophobia both in Europe and the U.S. Violent extremism constitutes a direct threat to democratic societies. It requires renewed attention by law enforcement, judicial authorities, the private sector and civil society. The U.S. and EU pledged to expand their information exchanges on violent extremist groups, especially those with transnational linkages.
The U.S. and EU underscored the importance of the Passenger Name Record (PNR) data exchange to prevent, detect, investigate and prosecute terrorism, combat serious crime, including child exploitation, and protect the safety of citizens.
Digital Aspects and Cybercrimes
The U.S. and EU discussed the need to cooperate to shape a digital future based on their shared democratic values. They acknowledged the potential benefits and risks of suing Artificial Intelligence technologies for law enforcement and the judiciary. They discussed the need to develop and use such technologies in a trustworthy way in conformity with human rights obligations.
They discussed current and upcoming EU efforts on combating illegal content online, including the need to improve the cooperation between the authorities and online platforms to detect ongoing criminal activity. The U.S. and EU pledged to continue cooperating to most effectively exercise their lawful authorities to combat serious crime both online and offline.
The two sides will focus on combating ransomware, including through law enforcement action, raising public awareness on how to protect networks, the risks of paying criminals responsible, and encouraging those states that have not cooperated to arrest and extradite or effectively prosecute criminals on their territory.
Concerning bilateral and multilateral instruments to combat cybercrime, the U.S. and EU reinforced their commitment to negotiate as soon as possible an Eu-U.S. agreement facilitating access to e-evidence to cooperate in criminal matters. They welcomed the recent approval by the Committee of State Parties to the Budapest Convention of the draft text of the Second Additional Protocol of the Budapest Convention, which is the main instrument for international cooperation on cybercrime. They observed the framework of negotiations on a possible future United Nations international legal instrument on cybercrime and committed to continue to closely coordinate their respective positions.
Migration and Travel
The two sides underscored the importance of well-managed and humane migration and discussed their respective efforts to develop comprehensive and enduring migration and asylum policies. Humanitarian protection should be available to qualifying persons. Unmeritorious claims must be detected quickly, including through information sharing and modern identity management techniques. Unmeritorious claims must be prevented from overwhelming migration systems or public confidence in them.
The agenda requires cooperation with third countries of origin, transit and destination. These jurisdiction also have a responsibility to discourage people from enlisting smugglers and traffickers and endangering the lives of migrants who take dangerous, irregular journeys. Both sides reaffirmed their interest in expanding the transatlantic dialogue on migration and mobility, focusing on sharing lessons learned, exploring complementary pathways to migration, addressing the root causes of migration, improving the return and readmission of irregular migrants and enhancing cooperation in and combatting migrant smuggling.
The U.S. and EU continued to endorse safe and secure mobility and the exchange of information on their respective measures towards the gradual resumption of non-essential international travel. Both sides pledged to restart secure travel between the U.S. and EU as soon as possible, based on the principles of mutual cooperation, efficient operation of the international travel system and scientific evidence.
The initial meeting of the Justice and Home Affairs Ministers of the two sides during the Biden Administration went quite well. Clearly, the priority of the Biden Administration for bilateral and multilateral cooperation contrasted with the America 1st unilateral approach of the Trump Administration. The visit of President to the NATO meeting and the EU itself as well as his removal of tariffs and support for the minimum global taxation and other initiatives of the OECD and EU were well received.
The threats of terrorism, organized crime, extremist and hate groups, cybercrime, and illegal migration are common to both sides.
The current issue of the IELR will have a more in depth discussion of the implications of the meeting.
By Yuriy Nemets*
Ability to Challenge INTERPOL Red Notices
It is well known that the redress mechanism that INTERPOL has established for individuals to challenge government use of its channels is far from meeting modern democratic due process standards. Among the rights without which it is difficult to imagine a modern democratic society but that are lacking within the INTERPOL framework are the right to a hearing, the right to examine evidence produced by a government and the right to appeal. Several years ago, INTERPOL carried out reforms aimed at making its redress mechanism more independent, transparent and better staffed for adjudicating complaints from individuals alleging violations of their rights through unlawful use of the Organization’s resources. The reforms have addressed only some of the most pressing issues, however. The redress mechanism still lacks a number of crucial elements, including the rights mentioned above, which to this day allows governments to use INTERPOL as a tool in politically motivated and otherwise corrupt prosecutions.
The INTERPOL redress mechanism is represented first and foremost by the Commission for the Control of INTERPOL’s Files (CCF), an independent body with exclusive jurisdiction to adjudicate complaints from individuals. With the obvious lack of urgency on the part of the INTERPOL General Assembly to address the ongoing abuse and close the loopholes that contribute to it, CCF seems to be stepping in. I have already written about a case in which CCF responded to the government’s abuse of its absolute right to deny an individual access to INTERPOL’s files by ordering the information deleted until the government agreed to provide access to the information or justified its refusal to do so. Fortunately, it appears that CCF’s quest for balance does not end there.
As mentioned above, INTERPOL’s rules do not guarantee individuals the right to appeal if CCF denies their complaints. The CCF Statute allows for revision of its decisions but “only when [the request for revision is] based on the discovery of facts which could have led the [CCF] Requests Chamber to a different conclusion if that fact had been known at the time at which the [complaint] was being processed.” A request for revision must be made “within six months after the discovery of [such] fact.” It is, therefore, up to CCF only to decide whether or not its decision to deny an individual’s complaint warrants its review, and CCF’s powers in this regard as described in its Statute are broad.
2018 Annual Report Indicates Broadening of Redress Mechanism
However, in its most recent (2018) annual report, CCF seems to indicate that it interprets the provisions regarding requests for revision broadly — “[a]lthough [in considering applications for revision,] the Commission is especially careful to ensure that the procedures in place do not jeopardize the binding character of its decisions, it may also consider revision under certain circumstances: for instance, when it appears necessary to correct a possible violation of a rule or procedure, or a mistake in the conclusions due to some missing information or a miscarriage of justice.” CCF, therefore, seems to interpret the provisions to mean that they apply not only when new and previously unavailable evidence is discovered, the concept that we usually use in the context of a motion for a new trial, but also when CCF makes a material error in its procedure or in interpretation of law or fact, the latter typical of an appeal. Although this broad interpretation of INTERPOL’s rules does not introduce appeal as of right, as the decision whether or not to review its previous conclusions remains CCF’s solely, it is a very serious step that suggests CCF’s recognition of the importance of that right which is still lacking and long overdue in the INTERPOL redress mechanism.
* Managing Member of Nemets, Wash., D.C. https://nyllaw.com. Yuriy is a graduate of Northwestern University School of Law (Chicago), from which he received his Juris Doctor (JD) and Master of Laws (LLM) degrees, and Moscow State Law Academy (Russia), from which he received his first law degree and his Ph.D. in law.
 Yuriy Nemets, The Absolute Right of Governments to Deny Individuals Access to INTERPOL’s Files and the Need for Due Process: CCF Seeks Balance, Red Notice Abuse Report (Dec. 19, 2019), https://rednoticeabuse.com/the-absolute-right-of-governments-to-deny-individuals-access-to-interpols-files-and-the-need-for-due-process-ccf-seeks-balance/
 Statute of the Commission for the Control of INTERPOL’s Files, art. 42(1), available at https://www.interpol.int/Who-we-are/Legal-framework/Legal-documents
 Id. art. 42(2).
 Activity Report of the Commission for the Control of INTERPOL’s Files for 2018 § 47, available at https://www.interpol.int/Who-we-are/Commission-for-the-Control-of-INTERPOL-s-Files-CCF/About-the-CCF
On August 12, 2020, the police in Suriname issued an arrest warrant for Gillmore Hoefdraad, the former Finance Minister. The warrant suspects him of 11 criminal offenses, including violations of the banking and anti-corruption laws, fraud and embezzlement.
At the end of July the Suriname Attorney General Roy Baidjnath Panday forbade Hoefdraad from leaving the country.
The investigation against Hoefdraad, 58 years of age, concern the irregularities at the Central Bank of Suriname (CBvS). In February, Surinamese authorities arrested former CBvS Governor Robert van Trikt. Suriname authorities discharged von Trikt for irregularities and misappropriations at the Central Bank. The alleged wrongdoing included the purchase of a custom-made $300,000 luxury Land Rover in the U.K., an armored Lexus vehicle, and his approval for the BvS to acquire several properties.
Surinamese authorities suspect Hoefdraad’s participation in the alleged real estate swindle. Investigators have discovered documents indicating that in June and September 2019, while Van Trikt was governor, Hoefdraad sold 17 buildings to CBvS for €105 million. Surinamese authorities have also arrested Van Trikt’s business partner Ashween Angnoe and Faranaaz Alibaks Hausil, manager Legal, Compliance & International Affairs at the Central Bank. Prior to his appointment as Minister of Finance, Hoefdraad was the governor of the Central Bank of Suriname.
In May Attorney General Baidjnath-Panday asked the National Assembly’s permission to initiate a criminal prosecution against then Minister Hoefdraad. However, the National Assembly did not grant the request due to ministerial immunity.
The Surinamese media has reported Hoefdraad has brought summary proceedings against the Surinamese government because he thinks he is unfairly being prosecuted. His counsel argue that, since the National Assembly’s permission was required and was not granted, the initiation of criminal charges constitutes double jeopardy. After elections on May 25, 2020, the government has changed.
Improving anti-corruption and governance is a priority of the new administration of Chan Santokhi, a former chief of police.
According to the Caribbean Financial Action Task Force 11th Report on the Mutual Evaluation Report of Suriname for the annual period on which it reported, Suriname made no extradition requests. However, if Hoefdraad entered Guyana improperly, Guyana can deport or surrender him to Suriname without the need to extradite. On August 9, 2020, Albert Ramchand Ramdin, the new Minister of Foreign Affairs in Suriname, held a joint press conference with his Guyanese counterpart Hugh Todd in Guyana. They promised to cooperate a broad range of topics. The two ministers are meeting in September to develop a strategic agenda for the next high-level meeting of the ministers, which is likely to be in Paramaribo. The current issue of the IELR will have additional discussion of this matter.
 Id. Implicated ex-minister may be hiding in Guyana, The Daily Herald, July 28, 2020.
 Implicated ex-minister may be hiding in Guyana, supra.
 For additional background on anti-corruption and governance issues in Suriname, see Bruce Zagaris, Legal aspects of helping Suriname achieve better anti-corruption and governance, GlobalAmericans, September 2, 2020 https://theglobalamericans.org/2020/09/legal-aspects-of-helping-suriname-achieve-better-anti-corruption-and-governance/; see also Dr. Scott MacDonald, Suriname and the Need for Good Governance, March 10, 2020, CSIS, https://www.csis.org/analysis/suriname-and-need-good-governance.
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.
On January 15, 2020, the American Civil Liberties Union, National Immigrant Justice Center, Center for Gender & Refugee Studies, and Human Rights First filed a federal lawsuit challenging the Trump administration’s policies concerning so-called “safe third country” agreements with Guatemala and other Northern Triangle countries that force individuals seeking asylum in the U.S. to apply for asylum in the same dangerous region from which they have fled.
The agreements and policies deprive asylum applicants from ever receiving an opportunity to apply for asylum in the U.S. Instead, they are sent to Guatemala – and soon to El Salvador and Honduras, even though the publications of the U.S. government state these countries are suffering from epidemic violence, instability and ill-equipped asylum systems.
U.T. v. Barr, the lawsuit, was filed in U.S. District Court in Washington, D.C. It cites violations of the Refugee Act, Immigration and Nationality Act, and Administrative Procedure Act. Plaintiffs are asylum applicants who fled to the U.S. and were unlawfully removed to Guatemala, as well as organizations that service asylum seekers.
U.T. is a gay man from El Salvador who fled his country for the U.S. after being threatened by an MS-13 gang member. He fears he will be attacked or killed for his sexual orientation if he tries to live openly as a gay man in his home country. He traveled through Guatemala on his way to the U.S. He was subjected to homophobic harassment in Guatemala. When he arrived to the U.S., border officials said he was being removed to Guatemala, where he also fears homophobic persecution.
M.H. is a Honduran memo who fled to the U.S. with her young daughter. Her common-law husband and her sister-in-law worked in the transportation business in Honduras and were forced to pay local gangs in order to work. They were both murdered. Fearing for their safety after being threatened, M.H. and her daughter fled to the U.S.
A plaintiff is Las Americas Immigrant Advocacy Center, a nonprofit legal services organization based in El Paso, Texas. It is dedicated to serving the legal needs of low-income immigrants, including asylum seekers.
Another plaintiff is the Tahirih Justice Center, the largest national direct service and policy advocacy organization focused on assisting immigrant women and girls fleeing violence.
Allegations in the Complaint
The complaint states that noncitizens who arrive or are physically present in the U.S. may apply for asylum, subject to three narrow exceptions. One of those exceptions is that noncitizens may be denied the opportunity to apply for asylum in the U.S. Instead the U.S. can remove them to seek protection elsewhere pursuant to a “safe third country” agreement. The exception only applies if strict statutory requirements are not met, including that the asylum applicant would have a full and fair opportunity to seek asylum in the “safe third country” and would not face persecution or torture there.
Last summer the U.S. signed three new “asylum cooperative agreements” (“ACA”) with Guatemala, Honduras, and El Salvador – all extremely dangerous, refugee-producing countries with asylum systems that are skeletal at best.
On November 19, 2019, the U.S. government issued an Interim Final Rule titled “Implementing Bilateral and multilateral Asylum Cooperative Agreements Under the Immigration and Nationality Act” (the “Rule”). It establishes procedures for the removal of asylum seekers to Guatemala, Honduras, and El Salvador, and to any other countries with which the U.S. signs future ACAs. The Rule’s goal is to allow the “distribution of hundreds of thousands of asylum claims” to other countries. 84 F.R. at 63,994.
On November 20, the government issued written guidance implementing its ACA with Guatemala and started removing non-Guatemalan asylum seekers there.
The lawsuit challenges the Rule, as well as agency guidance implementing the Guatemala ACA *the “USCIS Guidance”),. The lawsuit claims the ACA and Guidance unlawfully deprive asylum seekers of the right to right for asylum in the U.S. and sending them to dangerous countries where they have no chance to find refuge. The Rule has already the plaintiffs in the case, and others like them, in harm’s way by removing them too Guatemala and forcing them to decide between remaining there, where they fear for their lives, and returning to the countries from which they fled persecution.
The complaint alleges that the government’s willingness to sign ACAs with these countries illustrates that its true goal is not to promote burden sharing while ensuring the safety of refugees. Instead, the Rule and ACAs turn away asylum seekers and require the signatories of the ACAs to ensure them due process, care for them, and enable them to have a fair hearing on their asylum application.
The plaintiffs seek a declaration that the Rule and USCIS Guidance are contrary to law, arbitrary and capricious, and/or unconstitutional. They seek an injunction prohibiting the implementation or enforcement of the Rule and USCIS Guidance. They seek an order vacating the removal orders issued to the individual plaintiffs and an order paroling those individual plaintiffs into the U.S. for the duration of their removal proceedings.
The February issue of the IELR will have additional discussion of the complaint.
On September 20, 2019, the United States and El Salvador governments signed a Protection Cooperative Agreement. The Acting Secretary of the U.S. Department of Homeland Security, Kevin K. McAleenan signed on behalf of the United States. The Minister of Foreign Affairs, Alexandra Hill Tinoco signed on behalf of El Salvador.
According to a joint statement, the Agreement recognizes El Salvador’s recent decision to join the Comprehensive Refugee Response Framework. It states it will use U.S. and international best practices to “enhance collaboration on building protection capacity and increase protection options closer to home for vulnerable populations.”
The two governments commit to responding to “the issue of irregular migration in a joint and humane way that will contribute to greater prosperity and security of the region.” The Agreement shows the partnership between both governments “to discourage dangerous irregular migration across Central America toward the U.S. and to combat transnational criminal organizations, strengthen border security, and reduce human trafficking and smuggling.”
Once the Agreement becomes effective, it will further expand the capacity of protection systems in the region. The joint statement does not state when the agreement will take effect and what will be required. The U.S. and Guatemala signed a similar agreement in July in the waning days of the Jimmy Morales Administration. However, the Guatemala Constitutional Court ruled that the Parliament must approved the policy before it takes effect.
The Cooperative Agreement follows the Letter of Intent signed by Acting Secretary McAleenan with the Government of El Salvador last month in San Salvador to intensify bilateral cooperation in key areas.
A leading journal in El Salvador observes that the country with the most asylum applicants in 2018 has now agreed to accept asylum applicants that Trump rejects.
The joint statement expresses that “(i)n recent months, Acting Secretary McAleenan has also forged partnerships with Mexico, Guatemala, El Salvador, Honduras and Panama to disrupt human and drug smuggling operations and address the crisis at the U.S.-Mexico border.”
While the agreement aligns with the administration’s “third country” asylum rule, that term was not used in the press conference between the two signatories announcing the agreement.
The obligation for asylees to look for refuge in the countries from which they flee contradicts what travel warnings of the U.S. Department of State. As of January 28, 2019, the State Department issued a travel advisory with respect to El Salvador, advising:
“Reconsider travel to El Salvador due to crime…Violent crime, such as murder, assault, rape, and armed robbery, is common. Gang activity, such as extortion, violent street crime, and narcotics and arms trafficking, is widespread. Local police may lack the resources to respond effectively to serious criminal incidents.”
Various international human rights organizations observe that a country with the sixth highest number of persons seeking asylum in 2018 does not meet the conditions to protect asylees in its territory.
Charanya Krishnaswami, the advocacy director for the Americas at Amnesty International USA, criticized the agreement, stating: “This agreement makes a mockery of the right to asylum. People should not be forced to seek safety in countries where they will not be safe. She continued that “El Salvador has one of the highest rates of violence in the world, including gender-based violence so rampant that Amnesty International declared it one of the most dangerous countries in the world to be a woman. It is not safe for its own citizens, much less for asylum-seekers.”
The October issue of the IELR will have additional information on the agreement and the El Salvador initiative to strengthen patrolling of its borders, which the United States government is partially financing.
Helsinki Commission Chairman Rep. Alcee L. Hastings (FL-20) and Ranking Member Rep. Joe Wilson (SC-02) today introduced the Transnational Repression Accountability and Prevention (TRAP) Act in the House of Representatives. Helsinki Commission Co-Chairman Sen. Roger Wicker (MS) and Ranking Member Sen. Ben Cardin (MD) plan to introduce the TRAP Act in the Senate on Monday.
On September 12, 2019, the Commission on Security and Cooperation in Europe (CSCE), also known as the Helsinki Commission, convened a hearing on the Tools of Transnational Repression: How Autocrats Punish Dissent Overseas, focusing on the role of International Criminal Police Organization (INTERPOL).
The Commission issued an explanation for the hearing, state that, as modern technology permits political dissidents and human rights defenders to operate from almost anywhere on the planet, repressive regimes have increasingly tried to intimidate them. .
To silence dissent from abroad, autocrats often turn to INTERPOL to file bogus criminal claims seeking the arrest and extradition of their political targets. This abuse of INTERPOL Red Notices and Diffusions enables autocratic governments to harass and intimidate their opponents thousands of miles away, even within free and democratic societies.
The U.S. Helsinki Commission convened an expert panel to highlight how present-day autocrats use INTERPOL and other means such as surveillance, abduction, and assassination to punish dissent overseas. The witnesses suggested how the United States and other democratic nations can defend against these threats to the rule of law domestically and internationally.
Sen. Roger Wicker (R-Ms) chaired the hearing. He is the chair of the Commission and Vice-President of the OSCE Parliamentary Assembly. He said INTERPOL can be manipulated by autocratic governments. He said Red Notices and diffusions are constantly abused. INTERPOL regularly receives requests for human rights defenders and journalists on trumped up charges, such as the Kremlin’s efforts to go after Bill Browder. Russia has issued at least eight diffusions about Browder over a decade. INTERPOL has not punished Russia. In fact, last fall Russia proposed a candidate for Secretary General.
Before the hearing, the Commission received statements about persons targeted by Tajikistan, Uzbekistan, Turkey, and other governments.
Sen. Wicker will introduce legislation on limiting the use in U.S. immigration and law enforcement of INTERPOL notices and requiring the State Department to report on trends and transnational repression in its annual Human Rights report.
According to Sen. Wicker, INTERPOL is in need of greater transparency. The matter has been brought to the attention of the CSCE Parliamentary Assembly at its last meeting. The hearing will bring policy recommendations.
Senator Ben Cardin (D-Md.), a member of the Commission, commended Sen. Wicker’s role and said he looks forward to working with Mr. Wicker on his legislation. Sen. Cardin noted that the Magnitsky statute has been expanded. He lamented that the Magnitsky Act has not been sufficiently used against Saudi Arabia for the murder of the late Saudi journalist Jamal Khashogghi.
Rep. Joe Wilson (R-SC) and Sen. Sheldon Whitehouse (D-RI) also explained they supported the work of the hearing.
The following witnesses testified:
Alexander Cooley, Director, Columbia University’s Harriman Institute for the Study of Russia, Eurasia, and Eastern Europe; Claire Tow Professor of Political Science, Barnard College, testified about harassment of political exiles and the denial to them of due process. The rise of technology enables autocratic governments to intimidate political exiles more than ever. Autocrats are networking to try to repurpose international organizations to meet their goals. INTERPOL diffusion notices are mushrooming. Azerbaijan, Venezuela, India, and Tajikistan are among the governments that abuse the diffusions. The diffusion notices make it difficult for targets to travel and use bank accounts and it costs them significant legal fees to extricate themselves from the problems arising out of the diffusion notices. The proposed Transnational Repression Accountability Procedures (TRAP) Act will help combat some of these dangers. Cooley said the TRAP Act would send a powerful signal about the importance of maintaining clear international standards against the politicization of our most important international organizations.
Nate Schenkkan, Director for Special Research, Freedom House, discussed the global campaign by Turkey after the 2016 attempted coup. It uploaded tens of thousands of diffusion notices, kidnapped 104 of its nationals from other countries (at least one was the wrong person although that person is still in jail), and cancelled thousands of passports. The U.S. should support exiled political exiles and journalists, including diaspora in the U.S. Schenkkan also endorsed
Freedom House will publish a new study, documenting the transnational oppression and violence against political exiles.
Bruno Min, Senior Legal and Policy Advisor, Fair Trials (FT), testified that INTERPOL is not subject to oversight and hence the U.S. government’s role is very important. A major issue is how INTERPOL reviews Red Notices. We do not know how many Red Notices and diffusions are rejected and do not know what it would take to have INTERPOL review the requests more carefully. We see many abuses against refugees with high public profiles. INTERPOL only has a staff of about 30-40 persons to review 10,000 Red Notices and 50,000 diffusions each year. Diffusions are not subject to the same scrutiny. Hence, there is the risk that unchecked data will enter into national databases.
There is concern about procedures of the Commission for the Control of INTERPOL files (CCF). INTERPOL has improved it and made it more independent. FT has concerns about interpretation of INTERPOL’s rules with respect to international human rights. INTERPOL has taken steps to protect persons who have been accorded refugee status. However, INTERPOL needs to do more.
INTERPOL needs encouragement to implement the recent reforms and adopt more reforms.
A crucial issue is lack of funding and understaffing of INTERPOL, which makes them depend on member countries to do its work at the risk of compromising its independence.
Sandra A. Grossman, Partner, Grossman Young & Hammond, Immigration Law, LLC, testified how autocratic governments are using the U.S. immigration system to abuse exiles. U.S. Immigration and Customs Enforcement (ICE) uses Red Notice to detain people. ICE treaties many Red Notices as conclusive evidence of criminality. ICE and immigration judges use Red Notices to mistreat people. ICE and immigration judges often become tools of corrupt governments, often detaining asylum applications. Jurisprudence and reports by CCF must be published so that more transparency exists about CCF.
Question and Answer
To Sen. Wicker’s inquiry, Grossman said the U.S. contributed $19.4 million and Japan, China, and Europe followed. The U.S. government is by far the greatest contributor.
At the end of the hearing, Sen. Wicker expressed hope that he and the U.S. Congress can do something about some of the abuses both in the U.S. law enforcement system and INTERPOL itself.
Following reports that U.S. immigration authorities have cited such politically-motivated INTERPOL Red Notices and diffusions to detain some individuals and consider removing them from the United States, the TRAP Act formally codifies strict limitations on how INTERPOL requests can be used by U.S. authorities.
The TRAP Act further declares that it is the policy of the United States to pursue specific reforms within INTERPOL and use its diplomatic clout internationally to protect the rights of victims and denounce abusers. The bill requires the Departments of Justice, Homeland Security, and State, in consultation with other relevant agencies, to provide Congress with an assessment of autocratic abuse of INTERPOL, what the United States is doing to counteract it, and how to adapt United States policy to this evolving autocratic practice. The State Department would also be required to publicly report on the abuse of INTERPOL in its annual Country Reports on Human Rights to create a transparent, public record of these violations of the rule of law.
Original co-sponsors of the legislation include Helsinki Commission members Sen. Marco Rubio (FL), Sen. Cory Gardner (CO), Sen. Sheldon Whitehouse (RI), Rep. Steve Cohen (TN-09), Rep. Brian Fitzpatrick (PA-01), Rep. Richard Hudson (NC-08), Rep. Gwen Moore (WI-04), and Rep. Marc Veasey (TX-33). Rep. John Curtis (UT-03), Rep. Sheila Jackson Lee (TX-18), and Rep. Tom Malinowski (NJ-07) are also original co-sponsors.
Over the past few weeks, the Trump administration has taken a number of steps to slow the rate at which asylum seekers may receive admittance into the U.S.
On July 24, 2019, a federal court dealt yet another blow to the Trump administration’s asylum policy. Ruling from San Francisco, U.S. District Judge Jon S. Tigar struck down the Trump administration’s most recent effort to stem the flow of migrants attempting to apply for asylum. On July 16, the Trump administration issued a new rule, declaring that migrants must apply for – and be denied – asylum in all the countries that they pass through on their way to the U.S. if they want to be considered for asylum there. A migrant hoping to make their way to the U.S. from El Salvador or Honduras, for example, would have to apply for and be denied asylum in both Guatemala and Mexico if they simply wanted to apply in the U.S. While the Trump administration believed that such a policy would crack down on those seeking to “[exploit] American generosity,” Judge Tigar disagreed. He ultimately issued a preliminary injunction against the Trump administration, blocking the policy as well as ordering that the government reinstitute the previously-existing system.
This decision contradicted one made that same day, but in a different court. U.S. District Judge Timothy J. Kelly, ruling on a similar case in Washington, DC, argued that the Trump administration’s policy would not cause “irreparable harm” to the two advocacy groups who opposed the new rule. However, the ruling by Judge Tigar supersedes Kelly’s, as the rule does not have the possibility of being carried out until the proper judicial authorities may better understand the legal issues surrounding the case. If the Trump administration appeals the decision – which it is likely to – then the Ninth Circuit Court will review the case.
The Trump administration announced this policy without garnering the explicit consent of Guatemala and Mexico. However, it has since made some progress. On July 26, the U.S. and Guatemala signed a new migration agreement, in which Guatemala confirmed its status as a so-called “safe third country.” Yet Guatemala did not do so eagerly. Threatening to impose tariffs, the Trump administration mandated that Guatemala either implement a new migration accord on the U.S.’ terms or risk economic backlash. Even though the President achieved this deal, it is an ironic victory of sorts, as Guatemala actually has the highest number of asylum seekers and migrants captured at the U.S. southern border.
This step by the Trump administration to tighten U.S. migration policy is not the only one it has made in recent weeks. On July 22, the Trump administration announced that it will dramatically expand its fast-track deportation policy. Under the fast-track system, immigration officers may deport anyone that has illegally resided in the U.S. for less than two years, without allowing said individual to appear before a judge. Though implemented in 1996, the policy garnered little attention until 2004, when the Department of Homeland Security (DHS) stated that it would enforce the policy against those that were arrested within two weeks of arriving in the U.S. by land and detained within 100 miles of the border. With its broader scope, however, the Trump administration has expanded the policy’s reach. Acting DHS secretary Kevin McAleenan stressed that the administration is implementing this policy with the chief goal of reducing the immense case backlog, which is weighing down courts and overwhelming accommodations in southern border detention facilities.
The ACLU pledged to sue the administration and block the policy. “Under this unlawful plan, immigrants who have lived here for years would be deported with less due process than people get in traffic court,” stated Omar Jawdat, director of the ACLU’s Immigrants’ Rights Project. Critics of the policy also stressed that it may be difficult for those that have resided in the U.S. for more than two years to prove so, potentially leading to the deportation of individuals not targeted under the act. Only a limited set of exceptions may protect individuals from being deported under the policy, such as displaying fear at returning home.
In addition to both of these policies, the Trump administration announced that they would narrow the scope of individuals whom they would qualify as asylum seekers. Federal law allows migrants to apply for asylum if they meet at least one of a handful of preconditions, which include a fear of persecution in their home country because of their race, nationality, or political opinions. The law extends to cover members of “particular social groups,” which has included members of families specifically targeted by extremely dangerous groups, like drug cartels. Attorney General William P. Barr, speaking on behalf of the Trump administration noted that the U.S. now viewed members of families through a far narrower lens. Instead of simply possessing “genetic ties” to a family typically targeted by dangerous groups, the family in question should possess “socially distinct” traits. These families would likely include, according to Barr, “large and prominent clans” that have previously undergone persecution in certain countries.
Migrant advocacy groups are likely to challenge this policy in court. The Catholic Legal Immigration Network, for example, has already lamented the law as “shameful.”
Though these policies – or, more specifically, their interpretation – may be new, they reveal nothing new about the Trump administration’s migration policy. Earlier this year, President Trump issued a number of rules meant to tighten U.S. migration policy. These included charging a fee for those seeking to apply for asylum, as well as a fee for those pursuing employment authorizations while waiting for the processing of their asylum application. Continuing this approach with his most recent rules, the President has shown little hesitation in shrinking migration numbers at deep costs, even though almost every step is met with legal backlash. Additionally, the Trump administration’s willingness to pressure states like Guatemala into accepting a migration accord that better meets their interests emphasizes the short-term scope of the White House’s strategy. Even though the administration may achieve this deal and benefit from it in the short-term, it will invariably damage the U.S.’ relationship with Guatemala – and Central America – in the long-term. Not only will these states experience instability from the influx of asylum seekers, but they will resent being bullied into accepting an agreement they never wanted as well.
With approximately 14 months until Election Day 2020, President Trump will almost certainly continue to come down hard on migration, viewing it as a key issue with his political base. Yet the price of this political move has proven, and will continue to prove, steep, with U.S. migrant policy constant under question, and the fates of tens of thousands – if not hundreds of thousands – of asylum seekers perpetually up in the air.