When asylum confidentiality meets international police cooperation

Ted Bromund
Bromund Expert Witness Services, Washington DC

Ana Sami
Clark Hill, Washington DC

International police cooperation is based on trust that participating states will act in good faith and that shared information will not be misused. US asylum law rests on a different assumption: contact with an asylum seeker’s home government can create danger. When these frameworks intersect, as they do in cases involving alerts issued by the International Criminal Police Organisation (INTERPOL), tensions arise that can expose asylum seekers and complicate adjudication, and which remain largely unaddressed in law or policy.

In a recent US immigration removal proceeding, both authors confronted this underexamined conflict. The lawyer–author served as counsel for the respondent and co-author Ted R Bromund testified as an INTERPOL expert, including on the notice process and documented patterns of abuse.

Many nations, often autocratic regimes, such as Russia and the People’s Republic of China, abuse INTERPOL channels to harass political opponents, refugees, journalists and entrepreneurs, most notably through red notices. Such abuse is part of transnational repression: efforts by governments to extend coercive power across borders to silence or eliminate critics abroad.^[1]

Abuse of INTERPOL channels is effective because it turns routine law enforcement cooperation into an avenue of repression by exploiting the trust democratic agencies place in INTERPOL alerts transmitted through national central bureaus. The risk is amplified when US responses to such alerts conflict with binding obligations on asylum confidentiality.

The case and the concerns

In the case at hand, the respondent, a foreign national involved in removal proceedings, filed applications for asylum and related protection. The authors have anonymised and generalised certain details to comply with their professional obligations and avoid the disclosure of any identifying or sensitive information, while illustrating a broader doctrinal and institutional issue.

The respondent was also the subject of an INTERPOL red notice issued by his country of nationality. During the proceedings, INTERPOL’s Commission for the Control of INTERPOL’s Files (CCF) provisionally blocked the notice after concluding the supporting data raised compliance concerns.

While the case was pending, the US government communicated directly with the law enforcement authorities in the respondent’s home country. Correspondence later introduced into the record, sent by those authorities to the US Immigration and Customs Enforcement’s (ICE) Office of the Principal Legal Advisor (OPLA), responded to earlier US outreach, reflected detailed awareness of the respondent’s presence in the US, identified the specific ICE office handling the matter and sought cooperation to facilitate their removal and return.

The record did not reveal the content or scope of the US government’s initial communications, and the respondent gave no written consent (or other consent) to disclose information pertaining to his asylum or other protection claims. From an international police cooperation perspective, the exchange could appear routine: a foreign national central bureau communicating with its US counterparts about a person named in a red notice.

But from the standpoint of US asylum law, it raised a fundamental question: whether contacting a respondent’s home government, namely while the relevant protection claims were still pending and the legitimacy of the foreign prosecution was contested, was compatible with strict asylum confidentiality rules. Compatibility turns less on an explicit mention of asylum than on whether the contact permits reasonable inferences about protection seeking.

Asylum confidentiality rules were developed largely outside the conceptual and regulatory space of international police cooperation, yet they are increasingly implicated by enforcement practices built for that ecosystem. This intersection exposes a regulatory and policy gap with implications for immigration adjudication, international criminal cooperation and the prevention of transnational repression.

Asylum confidentiality as a structural safeguard in US law

US asylum law imposes confidentiality obligations essential to refugee protection, codified in the Code of Federal Regulations (CFR), namely 8 CFR section 208.6.^[2] The rule governs information ‘contained in or pertaining to’ an asylum application and bars disclosure to third parties, including foreign governments, absent written consent or a narrow regulatory exception.

Section 208.6 is not principally about personal privacy; it reflects the premise that asylum seekers must disclose information, such as their political activity, religious belief, opposition to state actors or alleged criminal conduct, that could trigger or worsen persecution if revealed to their home government. The rule is thus a preventive safeguard, designed to block pathways through which asylum-related information could reach hostile foreign authorities.

The scope of protection: ‘information contained in or pertaining to’

The scope of section 208.6 is deliberately broad: it covers not only the application, but any information that would allow a third party to infer that a person has applied for asylum or to deduce facts central to a protection claim. The operative concern is functional: what the disclosure communicates in context and what it foreseeably allows others to infer.

Courts interpreting section 208.6 reject narrow or formalistic approaches: a violation may occur even without an express statement that an asylum application was filed if the disclosure, viewed in context, permits a reasonable inference that the individual is seeking protection.^[3]

Accordingly, even seemingly benign confirmations, such as an individual’s involvement in immigration proceedings, the identity of enforcement components involved or references to contested allegations, can, when conveyed to a home government, signal that protection-based claims are underway.

Foreign government contact as the principal risk vector

The most serious section 208.6 breaches arise through direct or indirect contact with an applicant’s home government. Courts have held that ‘routine’ inquiries, such as verification requests or criminal background checks, can violate confidentiality if they expose the applicant’s identity, immigration posture or the nature of the allegations tied to the protection claim.

The regulation does not permit balancing confidentiality against investigative convenience. Even where objectives like verification or security screening are legitimate, they must be pursued without enabling foreign authorities to infer a pending asylum claim. When that line is crossed, the breach itself may create a new, independent risk of persecution and, thus, additional protection claims.

The strength of section 208.6 is its recognition that confidentiality is a systemic guarantee: if applicants cannot trust it, they may withhold facts, avoid seeking protection or face retaliation abroad. Agencies have long recognised that breaches can undermine US commitments under international refugee and human rights law.

A regulatory framework designed for a different era

The governing regulation, 8 CFR section 208.6, was promulgated in December 2000 and took effect in January 2001 as part of a comprehensive overhaul of asylum procedures by the former Immigration and Naturalisation Service.^[4]

From the outset, section 208.6 was designed as a prophylactic safeguard, reflecting the institutional judgment that home government contact can itself create or worsen the risks from which asylum seeks to protect. Its breadth and its focus on foreseeable inference rather than express disclosure shows that it functions as a form of structural protection against foreign government retaliation, a context in which routine bilateral law enforcement cooperation can produce systemic concerns for applicants with pending protection claims.

The framework presumes that foreign government contact will be exceptional and insulated from asylum adjudication. An assumption that is increasingly strained in cases involving INTERPOL communications, where immigration enforcement, criminal allegations and international police cooperation intersect. At that juncture, regulatory silence becomes consequential.

Section 208.6 is a protective regulation rooted in humanitarian and foreign policy concerns, intended to preserve trust in the asylum system and ensure that the US does not inadvertently facilitate transnational repression.

Adjudicatory treatment of asylum confidentiality in practice

Despite the clarity of the framework, its application can diverge from its protective purpose. The immigration judge’s decision in the case described above illustrates how confidentiality protections may be narrowed through formalism and a reluctance to probe government-to-government communications.

In addressing the issue, the judge emphasised that the foreign correspondence did not expressly reference an asylum application and concluded that no violation could be inferred, an approach that conflicts with section 208.6’s reasonable inference standard.

The court also declined to require the disclosure or clarification of the US communications that prompted the foreign response. Although the record reflected foreign government knowledge that could only have originated with US immigration authorities, the burden was effectively placed on the respondent to prove the contents of undisclosed communications uniquely within government control.

Treating asylum confidentiality as a prohibition on express statements only, rather than as protection against foreseeable inference, diminishes section 208.6’s function and erodes the trust on which the asylum system depends.

INTERPOL notices in practice: US process and INTERPOL safeguards

The tension between asylum confidentiality and international policing is not theoretical. Indeed, the tension is inherent in the nature of the INTERPOL system. ICE Directive 15006.1, which explicitly instructs US authorities to seek the underlying foreign documentation associated with INTERPOL alerts, has brought this tension into sharper relief.

On locating an individual named in a red notice, an INTERPOL member nation is supposed to, under the terms of Article 87(a)(i) of INTERPOL’s Rules on the Processing of Data, ‘immediately inform the requesting National Central Bureau […] of the fact that the person has been located, subject to limitations deriving from national law and applicable international treaties’. The US does not always follow this requirement. According to the US National Central Bureau (NCB):

‘The United States does not consider a Red Notice alone to be a sufficient basis for the arrest of a subject because it does not meet the requirements for arrest under the 4th Amendment to the Constitution. Instead, the United States treats a foreign-issued Red Notice only as a formalized request by the issuing law enforcement authority to “be on the look-out” for the fugitive in question, and to advise if they are located.’

But while the US does not invariably detain individuals on the basis of foreign red notices and it is not obligated to respond to a ‘formalised request’, it does often detain non-US citizens named in red notices and seek to remove them. Holders of valid US visas can be accused, on the strength of a red notice, of having committed a serious non-political offence, which invalidates their visa and creates the case for their removal. This process is the primary means by which abusive red notices reach into the US legal and immigration system.

Because communications between the US NCB and foreign NCBs are confidential, we do not know how, or if, the US informed foreign governments about the detention of individuals named in red notices before the implementation of ICE Directive 15006.1. But prior to the Directive, ICE often relied on red notices alone to make the case in immigration courts that an individual had committed a serious non-political offence. Indeed, in 2020, the Board of Immigration Appeals decided^[5] that a red notice was sufficient for such a purpose.

This decision was incorrect. In succeeding years, US courts rolled it back.^[6] Growing US awareness of the problem of transnational repression and INTERPOL abuse led ICE on 29 September 2023 to announce new agency-wide guidance^[7] on the use of INTERPOL red notices and wanted person diffusions, a kind of INTERPOL message that is similar in effect to a red notice. This new guidance was codified in ICE Directive 15006.1.

The guidance stated that the Directive was part of the US Department of Homeland Security’s (DHS) ‘broader efforts to combat transnational repression by helping ensure that Red Notices and Wanted Person Diffusions are issued for legitimate law enforcement purposes and comply with governing rules’. This statement reflected ICE’s awareness that red notices and wanted person diffusions can, in the words of then-ICE deputy director Patrick Lechleitner, ‘be based on unsubstantiated or fabricated evidence’. As such, the Directive generally prohibited ICE personnel from relying exclusively on a red notice or wanted person diffusion and stated that any reliance should be done ‘sparingly’ after meeting certain criteria outlined in the Directive.

These criteria included that ICE personnel were required to request the documentation underlying the red notice from the nation that had originated the notice via the US NCB. ICE was no longer allowed to rely solely on a red notice, which it obtained via INTERPOL without any need to communicate with the requesting nation. ICE was now mandated to tell the requesting nation who it had detained and on what red notice it was acting in order to obtain the underlying documentation. In other words, ICE was mandated to convey information prohibited under section 208.6.

The Directive’s ‘underlying documentation’ requirement that requires the US NCB to communicate with the requesting nation puts the US in a worse position than INTERPOL itself as far as respecting the confidentiality of asylum proceedings is concerned. Since May 2015, INTERPOL has had a policy of refusing to publish red notices on individuals who are applying for or who have been granted asylum. If such notices are published in ignorance of an individual’s status, the CCF will, after the fact, suspend or delete them once informed of the asylum seeker’s status.

This policy is an important advance on INTERPOL’s previous practice, but it has an obvious weak spot: INTERPOL does not know who has protected status and many nations, respecting the confidentiality of asylum proceedings, do not tell INTERPOL who has been granted this status. As a result, refugee policy often operates via the CCF and after the fact. The result is that INTERPOL is frequently unable to apply this policy effectively, while at the same time the US, acting on the Directive intended to reduce the effect of INTERPOL abuse, is exposing the very information that INTERPOL lacks to requesting nations.

The ‘underlying documentation’ paradox

In removal cases, relying on a red notice alone is bad practice: a red notice is simply an unverified accusation made by a foreign government. But, on the other hand, in many removal cases, namely those with a pending asylum request, requesting the underlying documentation violates section 208.6. The probative value of the underlying documentation in such cases is often limited, because it is easily faked. However, the underlying documentation can be of considerable value to counsel: an abusive red notice can be discredited using the underlying documentation that does not substantiate it.

The government should only request underlying documentation in cases involving red notices (or wanted person diffusions) after an asylum request has been denied. In the absence of an ongoing asylum application, there can be no violation of 8 CFR section 208.6 arising from a request for underlying documents. Immigration judges should be aware that ICE is mandated to violate section 208.6 and take appropriate action, both to clarify the documentary record and to act on any additional claims for protection resulting from this violation. 

The broader policy point is that it is difficult to keep the effects of INTERPOL abuse and transnational repression out of the US legal system. Actions like the publication of ICE Directive 15006.1 that are taken with the declared intent of reducing the effects of that abuse can end up enhancing it. As long as INTERPOL continues to have member states that abuse it, the US and other nations that receive significant numbers of asylum requests will continue to confront the need both to cooperate with INTERPOL and defend their legal systems from abuses perpetrated through it.