On November 28, 2022, while performing routine website updates, U.S. Immigration and Customs Enforcement unintentionally posted a document to ICE.gov that included names and other personally identifiable information (PII), along with immigration information, of approximately 6,000 noncitizens in ICE custody. Upon notification, ICE took swift action to immediately rectify the error. The information was posted for approximately five hours before being removed.
On December 7, 2022, the Department of Homeland Security notified ICE that during its routine communication with the government of Cuba related to removal flights, DHS unintentionally indicated that some of the 103 names of individuals previously provided for removal processing were part of the ICE PII disclosure that occurred on November 28.
The document that was inadvertently disclosed on November 28 includes certain information pertaining to a number of noncitizens who were in ICE custody as of November 19, 2022. Therefore, if a noncitizen 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.
What is ICE doing to mitigate the possible effect on the noncitizens involved in the November 28 and December 7 inadvertent disclosures?
- Due to the accidental disclosure of information, if impacted noncitizens 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 noncitizen. The noncitizens 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 noncitizens impacted by the November 28 inadvertent disclosure and into Spanish for the noncitizens 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 noncitizens whose PII was inadvertently made public. These system notices will help ensure ICE does not remove impacted noncitizens 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.
- Noncitizens 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 noncitizens 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 noncitizen (if pro se) or the noncitizen’s legal representative. The noncitizen 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 noncitizen should be paroled from custody or remain detained.
- Noncitizens who have NEGATIVE credible or reasonable fear cases:
Noncitizens 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 noncitizens should be paroled or otherwise released under appropriate authority while waiting for their removal proceedings or remain detained.
- Noncitizens already in withholding-only proceedings:
For noncitizens 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 noncitizens may be released or remain detained.
- Noncitizens 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 noncitizen (if pro se) or the noncitizen’s legal representative. The noncitizen may apply, or add to a currently pending application, for relief or protection based in-part or entirely on the disclosure.
- If the noncitizen has a pending appeal before the BIA, OPLA will submit written notice of the disclosure to the BIA and the noncitizen (if pro se) or the noncitizen’s legal representative. The noncitizen 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.
- Noncitizens 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 a noncitizen or his or her legal representative that is based on the inadvertent disclosure(s). For a noncitizen 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).
- Noncitizens with an EXECUTED Order of Removal:
- If a noncitizen is represented, ICE will contact the representative of record to advise that, upon request, it will place the noncitizen previously subject to an expedited removal or reinstatement order in INA § 240 removal proceedings upon the noncitizen’s return to the United States. For noncitizens 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 noncitizen to the United States, ICE will facilitate the noncitizen’s return.
- If the noncitizen 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 a noncitizen is placed in INA § 240 removal proceedings during the next encounter of the noncitizen, 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 noncitizens impacted by the December 7, 2022 incident consistent with the procedures available to noncitizens 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 noncitizens 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.
Has ICE notified Executive Office for Immigration Review and U.S. Citizenship and Immigration Services?
Yes. ICE notified EOIR and USCIS of the accidental disclosure of PII.