On September 29, 2023, the U.S. Immigration and Customs Enforcement (ICE) issued new agency-wide guidelines regarding how its employees will address cases in which Red Notices and Diffusions.
The complete guidelines are found here, and the most relevant provisions (in my estimation) are listed in our last blog post.
In part one of this series, we referenced the fact that some of the new provisions would likely be more impactful in a practical sense than others. The provisions that are likely to have the strongest impact, and the reasons for that, are:
ICE officials must verify the validity of such data to ensure it is still current and active. This new requirement should eliminate the possibility that an outdated piece of data from INTERPOL is used improperly to detain a person in the U.S. in any situation. For people with pending immigration proceedings, this should prevent an unjustified detention, which can severely affect the direction of an immigration case.
ICE officials are required to get the approval of a supervisor to act on the Red Notice or Diffusion. Though likely to take the form of a brief review and authorization, this requirement places another roadblock against the possibility of ICE officials detaining a person “just in case” and instead only detaining people when doing so is based on valid information.
ICE officials must obtain the underlying documentation from the U.S. National Central Bureau (NCB), the U.S. liaison with INTERPOL, in Washington, D.C., and request the authority to use the data from the U.S. NCB if ICE plans to use the data in immigration proceedings. This is critical. In many cases, until now, an immigration finder of fact often does not receive the underlying documentation from the government, and the petitioner or detainee is left to attempt to obtain it from the foreign government. Frequently, the person cannot access that information either in time for the proceedings or at all, given their absence from the country or lack of funds required to hire someone to assist in obtaining the documents. This new policy element will be key to people receiving fairer proceedings.
ICE officials are required to provide the Red Notice / Diffusion subject with the underlying documentation and provide a meaningful opportunity to contest it or its contents. This new requirement is clearly designed to provide a Red Notice or Diffusion subject with a chance to defend against invalid information. Currently, petitioners are often denied an opportunity to contest the information underlying a Red Notice or diffusion because they cannot obtain the information in time, and there is no specific requirement that they be permitted a meaningful opportunity to defend against it. This provision changes that.
It will be interesting to see how this provision is implemented for detention cases, particularly how the opportunity to contesting the information is implemented.
ICE officials are prohibited from representing/implying that the data is an arrest warrant or that it conveys independent legal authority or any independent judgment by INTERPOL regarding probable cause or the validity of the underlying criminal proceedings. This new requirement is a game-changer. While INTERPOL has always clearly stated that Red Notices and Diffusions do not constitute probable cause, immigration officials have often relied upon and/or presented them as substantial evidence of crimes. This clear directive should prevent such representations in the future.
In the next post, we’ll address why some of the remaining new provisions may have little effect on the treatment of Red Notices and Diffusions in detentions and immigration proceedings.
As always, thoughts and comments are welcomed.