Unintentional Disclosures of Personally Identifiable Information on November 28 and December 7, 2022

The document that was inadvertently disclosed on November 28 includes certain information pertaining to a number of aliens who were in ICE custody as of November 19, 2022. Therefore, if an alien was not in ICE custody as of November 19, 2022, they are not impacted by the November 28 inadvertent disclosure.

The December 7 incident affected 103 individuals; 46 of them were part of the previous ICE PII disclosure of approximately 6,000 individuals and 57 were not. All of these 103 individuals are Cuban.

• Due to the accidental disclosure of information, if impacted aliens are subject to a final order of removal, ICE has delayed their removal for at least 30 days. The 30 days will be calculated from the time notification is provided to the alien. The aliens who were in custody are being notified of the incident and the removal hold via hand delivery and almost all of those who were not in custody are receiving the notification via United States Postal Service.
• ICE is in the process of making separate notifications for each incident. Impacted persons and their representatives-of-record will receive or have received a notification packet (s). Almost all individuals impacted by both incidents have now been notified or will be notified imminently.
• Notification materials were translated into Spanish and Portuguese for the aliens impacted by the November 28 inadvertent disclosure and into Spanish for the aliens impacted by the December 7 disclosure. For people in ICE custody, a language translation service is also available to be used to communicate with them about the impact of the disclosure in their language of their choice.
• ICE placed alerts in Enforcement and Removal Operations and Office of the Principal Legal Advisor record management systems on all aliens whose PII was inadvertently made public. These system notices will help ensure ICE does not remove impacted aliens before those individuals have been notified of the unintentional PII disclosure and have an opportunity to update their protection claim should they wish to do so.

• Aliens who have POSITIVE credible fear cases:
  Those with positive credible fear cases are, as a matter of course, placed in removal proceedings and issued a Notice to Appear. The same holds true for those aliens who were impacted by the inadvertent disclosures and found to have credible fear. OPLA will submit written notice of the inadvertent disclosure to the immigration judge and the alien (if pro se) or the alien’s legal representative. The alien can apply, or re-apply, for relief or protection based in-part on or entirely on the disclosure(s).
  ERO will conduct custody redeterminations, on a case-by-case basis, to assess whether a detained alien should be paroled from custody or remain detained.
• Aliens who have NEGATIVE credible or reasonable fear cases:
  Aliens who have negative credible or reasonable fear determinations will be issued NTAs and placed in removal proceedings. ERO will also conduct custody redeterminations, on a case-by-case basis, to assess whether the aliens should be paroled or otherwise released under appropriate authority while waiting for their removal proceedings or remain detained.
• Aliens already in withholding-only proceedings:
  For aliens who received positive reasonable fear determinations who are placed into withholding-only proceedings, OPLA will move to dismiss the proceedings to allow ERO to cancel the reinstatement order and issue an NTA. ERO will also conduct custody redeterminations, on a case-by-case basis, to assess whether the aliens may be released or remain detained.
• Aliens in removal proceedings or who have an appeal pending before the Board of Immigration Appeals:
  • In immigration court, OPLA will submit written notice of the inadvertent disclosure to the immigration judge and the alien (if pro se) or the alien's legal representative. The alien may apply, or add to a currently pending application, for relief or protection based in-part or entirely on the disclosure.
  • If the alien has a pending appeal before the BIA, OPLA will submit written notice of the disclosure to the BIA and the alien (if pro se) or the alien's legal representative. The alien may apply, or add to a currently pending application, for relief or protection based in-part or entirely on the disclosure.
  • OPLA will not oppose motions to remand for further proceedings that are filed due to the disclosure. For cases in which there is a pending DHS appeal, OPLA will consider whether continued pursuit of the appeal is warranted and will file a motion to withdraw if appropriate.
• Aliens with an UNEXECUTED Order of Removal:
  • Whether before the immigration court or BIA, OPLA will not oppose motion to reopen to apply (or re-apply) for a protection-based application filed by an alien or his or her legal representative that is based on the inadvertent disclosure(s). For a alien who is numerically or time barred from filing a motion to reopen, OPLA will agree to filing a joint motion to reopen if the motion is based on the inadvertent disclosure(s).
• Aliens with an EXECUTED Order of Removal:
  • If an alien is represented, ICE will contact the representative of record to advise that, upon request, it will place the alien previously subject to an expedited removal or reinstatement order in INA § 240 removal proceedings upon the alien's return to the United States. For aliens  previously removed under an INA § 240 removal order, ICE will reopen the proceedings on request when the basis for the request is the inadvertent disclosure(s). For cases in which a decision has been made to return the alien to the United States, ICE will facilitate the alien's return.
  • If the alien is pro se, ICE will place an alert in its systems, and will coordinate with U.S. Customs and Border Protection to do the same, to ensure that such an alien is placed in INA § 240 removal proceedings during the next encounter of the alien , if any.

ICE is conducting custody redeterminations, on a case-by-case basis, to evaluate whether an individual may be released from custody. Depending on each case's procedural posture, ICE will process aliens impacted by the December 7, 2022 incident consistent with the procedures available to aliens impacted by the November 28, 2022 incident discussed in Section 4.

Yes. Now that ICE is implementing options to help remedy the inadvertent disclosure, we are extending the 30-day pause on removals for the impacted aliens to allow them time to further discuss their options with a legal representative.

ICE continues to monitor the internet to identify whether the PII is being improperly posted or publicly disseminated. The ICE Office of the Principal Legal Advisor has sent, and will continue to do so as necessary, “clawback” letters to all identified external entities or individuals that may have downloaded, received, or accessed the document. The “clawback” letter asks those entities or individuals to destroy the document and refrain from using or disclosing the information contained in the disclosure.

Though unintentional, this release of information is a breach of policy. The agency is investigating the November 28 incident and taking all corrective actions necessary to prevent any similar incident from occurring again. The incident continues to be under review by ICE’s Office of Professional Responsibility and Office of the Chief Information Officer. Consistent with policy, ICE notified the DHS Chief Privacy Officer and other DHS oversight bodies of the accidental disclosure of PII.

The December 7 incident originated from DHS, which is handling any additional mitigation and corrective measures as necessary.

Yes. ICE notified EOIR and USCIS of the accidental disclosure of PII.