Why Immigration Lawyers Should Care about the TRAP Act – It Will Address INTERPOL Abuse

Have you ever represented an immigrant in removal proceedings, or attended an asylum or adjustment interview, only to have your client arrested and detained due to a bogus INTERPOL Red Notice or diffusion? As an attorney practicing in the field of U.S. immigration law for over 15 years, I have witnessed far too often how illegitimate Red Notices have further ruined the lives of already vulnerable immigrants. In a world of transnational crime, the International Criminal Police Organization (INTERPOL) is a necessary and valuable law enforcement agency. Located in France, its main goal is to promote police cooperation across borders. However, its system of color-coded notices and diffusions, often utilized to help locate wanted individuals, has become increasingly subject to abuse by autocratic regimes. Countries such as Russia, China, Turkey, and Venezuela, among others, have successfully manipulated INTERPOL to persecute dissidents abroad and manufacture immigration violations in the United States.

There are many myths surrounding INTERPOL and how the organization works. INTERPOL’s main function is to manage criminal databases and a network over which different types of communications are transmitted between 194 member countries, including the United States. The organization does not involve itself in investigations or prosecutions. It is merely a conduit for communicating information from member states. The most well-known communications are “Red Notices.” Despite popular misconception, Red Notices are not an international arrest warrant.  A Red Notice is a “request to law enforcement worldwide to locate and provisionally arrest a person pending extradition, surrender, or similar legal action.” Red Notices apply to persons who are either wanted “for prosecution or to serve a sentence.” Red Notices are published at the request of a member country.

In the U.S., action against any particular individual pursuant to a Red Notice must originate through an arrest warrant issued by the U.S. Attorney’s Office. Yet, acting in contravention to the Department of Justice’s (DOJ) policy on Red Notices, U.S. immigration officials continue to utilize them to target and arrest lawful immigrants. In particular Immigration and Customs Enforcement (ICE) is utilizing Red Notices to target foreign nationals for detention and deportation. A recent survey by AILA returned numerous examples of such unlawful action. In most cases described, including in cases in which I have personally been involved as legal counsel, ICE arrested clients at asylum interviews for no other reason than the existence of a Red Notice. Additionally, there were numerous examples of immigration judges denying bond or refusing to set reasonable bond in cases involving Red Notices. Across the removal process, immigration officials, including ICE attorneys, seem to be classifying Red Notices as conclusive evidence of criminality. This absolute deference to Red Notices is not only misplaced, but is creating further due process violations in cases involving already vulnerable immigrants. Additionally, it is turning ICE agents into unwitting agents of autocratic regimes persecuting immigrants abroad.

The good news is that U.S. Congressmembers are taking note of the problem and considering bipartisan legislation to curb INTERPOL abuse.

On September 12th, I had the honor of testifying before the bipartisan Commission on Security and Cooperation in Europe, also known as the U.S. Helsinki Commission, in order to introduce and help advocate for passage of the Transnational Repression Accountability and Prevention (TRAP) Act. The TRAP Act (S.2483) was introduced on September 10th in the Senate and in the House on September 12th (H.R. 4330), the same day of the hearing.

If passed, the bill would put in place crucial monitoring mechanisms and safeguards to address INTERPOL abuse, including enhanced transparency and accountability. Most importantly for immigration lawyers and their clients perhaps, the TRAP Act will require a description of how the U.S. monitors and responds to instances of abuse of INTERPOL communications by member countries that could affect the interests of U.S. citizens, individuals lawfully admitted for permanent residence, and individuals that have pending asylum, withholding or removal, or convention against torture claims. Further, it will require a report of any incidents in which the DOJ assesses that U.S. courts and executive departments or agencies have relied on INTERPOL communications in contravention of existing law or policy to seek the detention of individuals or render judgments concerning their immigration status. In this sense, the Act will help hold U.S. agencies accountable for misuse of Red Notices, which lead to due process violations.

In addition, the TRAP Act would establish a system of checks and balances for U.S. agencies concerning how they should proceed when encountering a Red Notice lodged against an individual. An agency would have to first verify through the U.S. Interpol Office, in coordination with the Department of State and other relevant U.S. government agencies that the Red Notice complies with INTERPOL’s Constitution.

Congressional hearings like the one in which I participated are much needed to address the worsening problem of INTERPOL abuse and ultimately to prevent our justice system from being manipulated by autocratic regimes. The hearing demonstrated that this issue is an immediate concern, not only for organizations and lawyers on our field, but for Congress as well.

I am hopeful that the momentum surrounding curtailing Red Notice abuse will continue and believe that immigration attorneys should stand behind the TRAP Act. Its passage would make a statement that the U.S. government is willing to use its voice, vote, and influence to compel INTERPOL to improve transparency, enhance its screening of communications, and deter the abuse of these Red Notices through cooptation of our own immigration system.

by Sandra Grossman