Today, the U.S. Immigration and Customs Enforcement (ICE) issued new agency-wide guidelines regarding how its employees will address situations in which Red Notices and Diffusions exist.

The guidelines, found here, contain several important provisions that should significantly affect the experiences of people who seek immigration benefits or relief while being the subjects of Red Notices or Diffusions. Currently, Red Notice and Diffusion subjects often face a dizzying disparity in the approaches of various ICE officials vis-a-vis their use of INTERPOL data in detention and/or immigration proceedings. The lack of uniformity, and often the lack of knowledge, regarding INTERPOL data in a U.S. detention or immigration proceeding, creates unnecessary difficulty for applicants. These changes will allow for a more streamlined, fair, and predictable process.

ICE personnel are the people who often initiate the detention of individuals who are not citizens of the U.S., and the reasons for the detention are various. Until now, ICE officials may have detained people based solely on Red Notices or Diffusions, in a “better safe than sorry” approach. The detention of persons amid proceedings for immigration benefits can turn the proceedings in a completely different direction, radically changing the applicant’s strategy and options. This policy changes that.

This policy also profoundly affects the obligations of ICE officials who encounter people who are in the U.S. without proper documentation.

Among other provisions, ICE personnel are now:

• prohibited from relying exclusively on Red Notices or Diffusions as a basis for action in immigration proceedings;
• required to verify the validity of such data to make sure it is still current and active;
• required to conduct a preliminary review of available information for evidence of abuse or non-compliance with INTERPOL’s rules;
• required to get the approval of a supervisor to act on the Red Notice or Diffusion;
• required to obtain the underlying documentation from the U.S. National Central Bureau (NCB), the U.S. liaison with INTERPOL, in Washington, D.C.;
• required to request the authority to use the data from the U.S. NCB if ICE plans to use the data in immigration proceedings;
• required to provide the Red Notice / Diffusion subject with the underlying documentation and provide a meaningful opportunity to contest it or its contents;
• prohibited from representing/implying that the data is an arrest warrant or conveys independent legal authority or any independent judgment by INTERPOL regarding probable cause or the validity of the underlying criminal proceedings.

The portions of these policy changes that will likely be the most useful are noted in bold, above. Their practical implications are addressed in the next post. The items in italics may prove less so and are addressed in part three of this series.

As always, thoughts and comments are welcomed.

*Thanks to Daniel Celayas, attorney extraordinaire at Saleh and Associates, P.A., for bringing this release to us in real time.

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