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 This new requirement should eliminate the possibility that an outdated piece of data from INTERPOL is used improperly to detain a person in the U.S. in any situation.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.

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.

A local reader recently asked a question, hoping to learn whether a message they received was a scam.

The reader was contacted by someone claiming to be an INTERPOL agent, who alleged that there were 2 cases held against the reader for committing several crimes. The reader was reached through WhatsApp, where the “agent” demanded 2 thousand dollars to close the cases or the reader would be arrested.

To answer the reader’s question, it is necessary first to understand that all civilian communication with INTERPOL regarding Red Notices takes place through the Commission for the Control of INTERPOL’s Files (CCF). INTERPOL will never contact a person to advise them that he or she is the subject of an INTERPOL notice, nor is it INTERPOL’s role to do so. INTERPOL’s role regarding Red Notices is to maintain the data submitted by its member countries in aid of the law enforcement efforts of those countries.

Unless they are of the small percentage of Red Notice Subjects displayed on INTERPOL’s website (interpol.int), the primary method of determining if one is a Red Notice subject is to inquire with INTERPOL’s CCF directly. 

It also must be understood that to remove a Red Notice, a subject cannot pay an INTERPOL agent for two reasons:

  1. INTERPOL agents of this type do not exist, as the organization is a data-sharing agency, and domestic law enforcement officials are the people charged with taking action to detain, arrest, or extradite people. 
  2. To remove a Red Notice, a subject must contact INTERPOL’s CCF with a removal request, which the CCF would then review and return having either accepted or denied said request. 

Although the threat of being arrested could have easily elicited a response out of fear, the reader’s suspicion was valid. The type of communication is a scam, and the reader .

As always, thoughts and comments are welcomed.

Estlund Law is proud to share the news that INTERPOL has removed the Red Notice in the name of our client, Derek Ong, a former executive at Deutsche Bank. After enduring the impact of 13 years of politically motivated charges against him, he has regained the freedom to travel, conduct business, and participate in everyday activities that had been impossible as a Red Notice subject.

Large index arbitrage unwinding leads to market instability despite all precautionary measures

Preceding his Red Notice, Mr. Ong’s employer, Deutsche Bank in Hong Kong, was poised to execute a trade to unwind its index arbitrage position in South Korea. This was also the time of the 2010 G-20 Summit event, which was being hosted in South Korea. In the months leading up to the summit, South Korea marketed itself as one of the most sophisticated investment markets in the world. 

During the unwinding, which was not particularly large by the standards of most of the world’s liquid futures and options markets, senior executives at Deutsche Bank approved the trade and Mr. Ong and his colleagues conducted the requisite backtesting and also gave all required notifications of the trade.  The trade was also spaced out to allow the market to adjust accordingly. Because Deutsche Bank was placing an offshore international order, the trade was approved by a member of the Korean Stock Exchange before it occurred. It was only in the aftermath of the trade that it became clear that the standard backtesting results were inaccurate predictors of the effect it would have on the market due to a liquidity black hole during the G20 summit. This caused the KOSPI response to drop by 2.7 percent, or 2.4 trillion won (USD 2 billion).  

This drop and the Korean market’s inability to remain stable caused great embarrassment on a global stage to Korean officials, particularly on the opening day of the G-20 summit.

Public embarrassment leads Korean officials to pursue politically motivated criminal charges

Though Deutsche Bank paid in full for the losses claimed by Korean officials, government officials prosecuted Mr. Ong and other mid-level employees within Deutsche Bank to avoid admitting the shortcomings of the South Korean Exchange systems and regulations.

His life took a drastic turn from working as a respected professional in the financial industry in support of his family to fighting for his livelihood and freedom on multiple fronts. Mr. Ong lost his job and was banned from the stock industry for ten years. Financial institutions were unwilling to work with him based on this case. His otherwise stellar reputation was called into question unjustly. 

During the investigation and the criminal court proceedings, Korean officials violated Mr. Ong’s due process rights. They failed to notify him of hearings and changed the charges as the case’s lack of evidence became apparent. Mr. Ong heard nothing of the criminal investigation for eight years until 2019, when he was detained due to the INTERPOL Red Notice that Korean officials had obtained against him.

At this point, Mr. Ong and his family reached out to Michelle Estlund of Estlund Law for help.

Results

Estlund Law has a successful track record of representing individuals who are facing INTERPOL Red Notices based on unfair charges of financial crimes related to public stock market and commodities trading activity, commercial invoice financing, or other investment activities. The firm used that knowledge and experience to build a strong case for removing Mr. Ong’s Red Notice. The focus of his case was the lack of transparency in proceedings, the oppressive delay of the pursuit of charges, the risk of inhumane and degrading treatment of Mr. Ong within the Korean prison system, and the evident political motivation behind the case. Mr. Ong and his family worked closely with the firm to prepare his case and remained strongly united during the entirety of the process.

INTERPOL’s CCF ultimately removed the Red Notice, recognizing “… that there is a predominant political dimension to this case and that maintaining the data challenged would have significant adverse implications for the neutrality of the organization.” 

Mr. Ong and his family are also grateful for the contribution of their UK and Hong Kong-based advocates: In the UK, Barrister Ben Keith, instructed by Fiona Haddadeen and led by Mark Summers KC; the team successfully fought extradition while the INTERPOL case was pending. In Hong Kong, Nathan Dentice provided continuous and effective representation since the civil matter began in 2010.

This lengthy ordeal resulted from an action that was not a crime, but an unfortunate outcome of an authorized trade that became politicized. Mr. Ong and his family were elated to receive the news of the Red Notice removal and are working on returning to a normal life.

In the INTERPOL practice, it is often beneficial to engage co-counsel in the country where the Red Notice, diffusion, or other notice originated. Toward that end, I often consult with colleagues in other countries regarding our mutual practices and cases.

As a member of the WORLDWIDE INDEPENDENT LAWYERS LEAGUE, I recently had the privilege of participating in a discussion with my fellow member and criminal defense attorney from Italy, Paola Turello. Many thanks to WILL and its leadership for this opportunity.

Below is the WILL publication and recording of the conversation:

📣 Recording Alert! Last Monday, July 17, we had the unique opportunity to host an enlightening presentation featuring attorneys Paola Turello and Michelle Estlund from WILL CRIMINAL LAW GROUP🏛️. They brilliantly navigated the complexities of comparative criminal law between Italy 🇮🇹 and Florida 🇺🇸.
We’ve now made this invaluable session available for all who missed it or wish to revisit these insights 📚. Don’t miss out!

🚩 https://lnkd.in/dR6Fbkdc
Passcode: 5eW?Kg+@

Malaysian Police Seek INTERPOL Help to Track Down Comedian After MH370 Joke

Malaysian police plan to seek help from INTERPOL to track down US-based comedian Jocelyn Chia, who joked about the missing Malaysia Airlines flight MH370. Ms. Chia, whose website states she is originally from Singapore, received backlash after statements made during a set at a New York Club that Malaysian Airlines “cannot fly” and that Malaysia had lagged behind Singapore after the 1965 separation of Malaysia and Singapore. 

Malaysia Airlines Flight MH370 went missing in 2014 after it disappeared from air traffic radar somewhere over the Indian Ocean, with 227 passengers and 12 crew onboard. On the ninth anniversary of the disappearance in March of 2023, Netflix began streaming a three-episode docuseries on the theories of the disappearance. The docuseries has renewed public interest in the disappearance referred to as one of the biggest aviation mysteries of all time. 

As CBS News stated in an article, Ms. Chia’s statements caused an uproar on social media, followed by condemnations by top Malaysian officials including the foreign minister.

“I am appalled by her horrendous statements,” Singapore’s foreign minister Vivian Balakrishnan tweeted.

“We treasure our ties with family and friends in Malaysia, and are sorry for the offence and hurt caused to all Malaysians.”

 As The Guardian reported, Jocelyn Chia will be investigated under the country’s laws relating to insulting speech and offensive or obscene online content. Police chief Acryl Sani Abdullah Sani was quoted as saying that the police would ask INTERPOL for assistance in finding out her full identity and whereabouts.

As stated in a Fox News article, INTERPOL told Fox News Digital that it received “no request for a notice or diffusion from Malaysia … in relation to this individual,” and any request would need to comply with the organization’s constitution, “which forbids any activities which are religious, racial, military or political in nature.”

Ms. Chia stood by her joke even after Malaysia’s plan to involve the international police body became public, tweeting: “Would love to see the face of the Interpol officer who received this request.” 

Whether her joke was in good taste or not, Ms. Chia is likely correct in her understanding of this matter as being improper for INTERPOL’s involvement.  There appears to be no underlying crime that could qualify as a criminal matter in INTERPOL’s other member countries, and that dual criminality element is required for an extradition to occur.

As always, thoughts and comments are welcomed.

 

The Chinese Government has a long history of abusing its power, both outside of and within INTERPOL. The United States Department of Justice recently issued a press release discussing agents of the People’s Republic of China(PRC) being charged with a bribery scheme in an effort to bribe a purported IRS official at the direction of the PRC.

In light of this new information and China’s repeated abuse of legal processes, the question of its continued status as a Member Country of INTERPOL is an appropriate one. 

In part one of this series, we addressed two examples of China’s abuses of power:

As recognized here in a Euronews article, the Chinese government often utilizes INTERPOL’s Red Notice system as a tool of transnational repression to target activists and dissidents. The article’s authors are Ben Keith and Rhys Davies, UK-based barristers, who predict that:

“Unless the system is reformed — with proper checks and balances put in place to weed out politically motivated Red Notices before China and other repressive states weaponise them — the system will continue to lose credibility.”

Their point is a valid one. Politically motivated Red Notices have been a long-standing issue that INTERPOL has addressed with varying degrees of success. NGOs and media outlets such as Human Rights Watch, Sky News, and more recently, The China Project have reported on the need for supervision of China’s Red Notice requests due to China’s use of INTERPOL to persecute dissidents, political opponents, and ethnic and religious minorities.

INTERPOL’s General Secretariat already provides a legal review of all Red Notices prior to their publication. These examples make clear that INTERPOL must increase the vigilance of its screening process of Red Notices from China and other member countries with a history of abuse.

As always, thoughts and comments are welcomed.

This past spring, the United States Department of Justice released a press release discussing two illegal agents of the People’s Republic of China (PRC) government being charged for a PRC-directed bribery scheme. The press release states that John Chen, a Los Angeles resident and former citizen of the PRC, and Lin Feng, a Los Angeles resident and PRC citizen, allegedly furthered the PRC government’s transnational repression campaign against the Falun Gong by bribing a purported IRS official.

This failed scheme exposes China’s capacity for corruption and leads one to question China’s role in INTERPOL as a member country. China’s history of human rights abuses and violations of its obligations to INTERPOL make it necessary to examine the ways in which Chinese officials can abuse their power within INTERPOL.

As stated in a Euronews article by my able colleagues Ben Keith and Rhys Davies:

 “By issuing Red Notices via the Interpol system, some of the world’s dictators and worst human rights abusers have been able to weaponize police forces in countries where they would normally have no influence.”

China has repeatedly proven its tolerance for corruption both within and outside of INTERPOL. Chinese authorities have often used Red Notices to harass and extradite people being improperly charged by the Chinese Government.

Just one example

One example of China’s corrupt use of the Red Notice system is found in the case of Chinese dissident Chuan Liang Li, discussed here with his permission, after Estlund Law successfully applied for the removal of his politically motivated Red Notice.  Following Mr. Li’s exposure of corruption within the Chinese Communist Party(CCP), The PRC requested a Red Notice in his name. In response to Mr. Li’s public criticism of Chinese authorities, the CCP filed charges in China against him, accusing him of  “embezzling large amounts of state-owned funds and accepting bribes” twenty years earlier. 

Subsequently, members of Mr. Li’s family were arrested and told that their arrest was due to Mr. Li’s public criticism of Chinese authorities. His former colleagues and friends were also arrested, interrogated, and tortured.

Unfortunately, Mr. Li’s case is not at all unusual, and such violations are well-documented.

Liuzhi

China’s further disregard for its obligations to INTERPOL is obvious in its practice of Liuzhi, or  “retention in custody.” Under Liuzhi, which has been in practice since 2018, anyone related to the CCP can be secretly investigated and detainees can reportedly be denied access to legal counsel or families for as long as six months. 

Next time: an in depth explanation of why these actions harm INTERPOL, and how INTERPOL might respond. 

As always, thoughts and comments are welcomed.

Today, international human rights lawyers and experts published an open letter on behalf of The Arrested Lawyers Initiative to INTERPOL’s Secretary General, Jürgen Stock. The lawyers and experts call on INTERPOL to take actions to comply with its human rights obligations and protect individuals against abuse by Turkey of INTERPOL’s Stolen and Lost Travel Document (SLTD) database.

The Arrested Lawyers Initiative is a Brussels-based rights group committed to protecting and upholding the rule of law by defending international lawyers and human rights defenders to carry out their duties without fear of intimidation, reprisal or harassment.

Included with the letter to Mr. Stock (attached here) is a detailed report on Turkey’s misuse of INTERPOL’s SLTD database.

We look forward to INTERPOL’s response in furtherance of its commitment to the protection of human rights and due process.

INTERPOL recently published details on its largest coordinated firearms operation ever, called Trigger IX. The operation allowed local authorities in multiple countries to make thousands of arrests and firearm seizures. The operation lasted three weeks(March 12 to April 2)  throughout 15 countries across Central and South America, with the primary goal of locating illicit firearms.  

INTERPOL reports that it gathered firearms experts from participating countries at Foz do Iguaçu in the tri-border area, bordering Argentina, Brazil, and Paraguay, as an operational hub to support frontline actions and ensure the swift exchange and cross-checking of intelligence. 

Although Red Notices may seem irrelevant to this operation, Operation Trigger IX and those like it can lead to Red Notices and and affect Red Notice subjects. To fully understand the connection between this operation and Red Notice subjects, let’s first review Operation Trigger IX’s results. 

Operation results as reported by INTERPOL

  • Authorities seized 8,263 firearms.
  • Authorities made 14,260 arrests. 
  •  In Uruguay, 100,000 pieces of ammunition trafficked internationally by two European nationals were seized by authorities, marking the country’s largest-ever ammunition seizure.
  • Authorities in Brazil and Paraguay shut down several firearms dealerships following the identification of irregular transfers and unlicensed sales.

Operation Trigger IX was enormously effective in achieving its goal and the operation additionally garnered unforeseen results. 

Unforeseen results

  • INTERPOL’s coordinations led to authorities’ disruption of 20 organized criminal groups, including the arrest of members of Primeiro Comando da Capital, Mara Salvatrucha, and the Balkans Cartel, all involved in firearms trafficking.
  •  Authorities dismantled a human trafficking ring, from which 11 victims were rescued in Paraguay.
  • A 32-year-old woman was arrested at the land border between Paraguay and Brazil with eight pistols and 16 chargers taped to her body.
  • In cooperation with Venezuela, police in Colombia arrested a Venezuelan national INTERPOL Red Notice subject for terrorism and arms trafficking.

Operation’s effect on Red Notice subjects

As seen in the bullet point above highlighting the arrest of a Red Notice subject, Operation Trigger IX and similar operations affect Red Notice Subjects. Red Notice subjects, a percentage of whom are actually law-abiding citizens, are most commonly found during international travel, immigration proceedings requiring background checks, and contact with domestic law enforcement officials.

Operations like this one typically require an influx of law enforcement officials with the power to locate and identify a Red Notice subject through INTERPOL’s systems. While Operation Trigger IX had a positive effect making thousands of presumably legitimate arrests and seizures, it also caused a widespread increase in law enforcement officials’ interactions with people, which is typically the manner in which invalid Red Notices are issued or acted upon.

Not only can Operations like this aid in locating Red Notice subjects, but they can also produce Red Notices. If a suspected perpetrator’s location becomes unknown, law enforcement may request a Red Notice released in their name to help locate them.  

Looking ahead, INTERPOL states that some 30 investigations were opened as a result of actions on the ground, and authorities identified 15 new modus operandi for the illicit manufacturing, trafficking, and concealment of firearms, with INTERPOL’s Purple Notice* leveraged to help alert member countries.

Up next: the link between illicit firearms and drug trafficking. 

As always, thoughts and comments are welcomed.

*A Purple Notice is used to seek or provide information on modus operandi, objects, devices, and concealment methods used by criminals.