Introduction

On March 6, 2020, the Board of Immigration Appeals published an important decision in Matter of W-E-R-B-, 27 I&N Dec. 795 (BIA 2020) [PDF version]. The decision dealt a situation wherein the Department of Homeland Security sought to establish that an asylum applicant was ineligible for asylum on account of having committed a serious nonpolitical crime outside the United States. In this particular case, there was an Interpol Red Notice against the applicant. The Board’s decision was concerned with how to weigh the Interpol Red Notice as evidence in this context.

Asylum and the Serious Nonpolitical Crime Bar

In order to be eligible for asylum [see category], an alien must establish that he or she has a well-founded fear of persecution in his or her home country on account of his or her race, religion, nationality, political opinion, or membership in a particular social group. INA 208(b); 101(a)(42)(A). However, even if the alien is otherwise eligible for asylum, there are several statutory bars to a grant. This article focuses primarily on the bar set forth in INA 208(b)(2)(iii): “there are serious reasons for believing that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States.” Note that the serious nonpolitical crime bar also prevents a grant of statutory withholding of removal (INA 241(b)(3)(B)(iii)) and withholding of removal under the Convention Against Torture (8 C.F.R. 1208.16(d)(2)).

As a threshold matter, the Department must first establish that there are “serious reasons for believing” that an alien is subject to the serious nonpolitical crime bar. Matter of W-E-R-B-, 27 I&N Dec. at 797; Matter of M-B-C-, 27 I&N Dec. 31, 36-37 (BIA 2017) [PDF version]. The Board has held that this is equivalent to establishing probable cause. Matter of W-E-R-B-, 27 I&N Dec. at 796; Matter of E-A-, 26 I&N Dec. 1 (BIA 2012) [PDF version]. If the government meets its initial burden, the burden then shifts to the alien to establish that there is not probable cause for believing that he or she is subject to the serious nonpolitical crime bar.

There are essentially two types of serious nonpolitical crime disputes: Cases where there is arguably a political dimension to the offense and cases where there is not. In cases where a political dimension is at issue, adjudicators must consider whether the “political aspect of the offense outweigh[s] its common law character.” Matter of E-A-, 26 I&N Dec. at 3; quoting Matter of McMullen, 19 I&N Dec. 90, 97-98 (BIA 1984) [PDF version]. Crimes of “an atrocious nature” invoke the bar regardless of the political dimension. Id. In other cases, the sides may agree that there is no political element whatsoever. Where there is no political dimension to the offense or alleged offense, the only issue is whether there is probable cause to believe that the alien committed a serious enough offense abroad to trigger the bar. See e.g., Matter of E-A-, 26 I&N Dec. at 4 n.2.

In this article, we are solely concerned with the role an Interpol Red Notice may play as evidence pertaining to serious nonpolitical crime questions rather than the parameters of the serious nonpolitical crime definition.

Matter of W-E-R-B on Considering Interpol Red Notices

The Board described the Interpol Red Notice at issue in Matter of W-E-R-B-:

The DHS submitted an Interpol Red Notice showing that the respondent is wanted in El Salvador based on allegations that he violated article 345 of the Salvadoran Penal Code for participating in an ‘illicit organization’ and is a ‘hit man’ for a gang organization. The DHS also submitted background information regarding Interpol Red Notices.
Matter of W-E-R-B-, 27 I&N Dec. at 797.

In short: The DHS argued that there were serious reasons for believing that the respondent committed a serious nonpolitical crime in El Salvador. It submitted an Interpol Red Notice issued by the El Salvadoran government in support of its charge. The DHS also submitted a Form I-213, Record of Deportable Inadmissible Alien, showing that it notified Interpol when processing the respondent and that Interpol confirmed that the respondent was the person described in the Notice. Id. at 798.

The respondent did not deny that the Interpol Red Notice described him. Instead, he argued “that the Red Notice does not have any probative value because such a notice is insufficient to establish probable cause for an arrest in the United States under the Fourth Amendment…”

The Board granted that an Interpol Red Notice is not a formal international arrest warrant, but it rejected the respondent’s view that it could not support finding probable cause that he committed a serious nonpolitical crime in El Salvador. The Board explained that the U.S. Department of Justice describes Interpol Red Notices as “the closest instrument to an international arrest warrant in use today.” Id. at 799. Based on the nature of Interpol Red Notices and the Immigration Judge’s careful consideration of the evidence in this particular case, the Board affirmed “the Immigration Judge’s determination that on this record, the DHS has met its burden to show that the serious nonpolitical crime bar may apply to the respondent…” Id.

Practical Effect of Decision

The DHS may use an Interpol Red Notice as evidence that a particular respondent committed a serious nonpolitical crime outside the United States. Provided that the DHS establishes that the Red Notice corresponds to the respondent, it may be sufficient to shift the burden to the respondent to establish through the preponderance of the evidence that he or she is not subject to the serious nonpolitical crime bar.

Depending on the facts of a particular case, a respondent may be able to prevail even when there is an Interpol Red Notice. For example, in certain cases, the respondent may be able to attack the credibility of the Notice itself. We have, in the past, prevailed in cases involving Red Notices from countries such as Russia where there is a well-documented history of the abuse of Interpol Red Notices for political reasons. In such cases, the respondent may be wise to challenge the basis of the Notice with Interpol itself.

In other cases, the respondent and his or her attorney may review whether the Department did the necessary work to establish that the Notice describes the respondent and that its content is plausible. The Board determined that the Immigration Judge correctly found that the Department did so in the case at issue in Matter of W-E-R-B-, but this may not be the case in every instance.

Finally, the respondent may be able to argue that the conduct described in the Red Notice either has a distinct political element (thus not being a nonpolitical crime) or that it does not cross the seriousness threshold to trigger the asylum/withholding bar. Whether this is a viable approach will always depend on the particular facts of the case in question.

The existence of an Interpol Red Notice describing an asylum applicant does, at a minimum, raise bona fide serious nonpolitical crime bar concerns. In some cases, such as Matter of W-E-R-B-, the notice itself, supported by the DHS tying it to the respondent, may be too much to overcome. Moreover, it is important to remember that the serious nonpolitical crime bar is triggered by probable cause to believe that the alien is subject, not by proof of guilt.

As always, we recommend that those who are considering applying for asylum or raising an asylum/withholding claim as a defense against removal should consult with an experienced immigration attorney for case-specific counsel.