Additional Information Relating to Data Breach from ICE

The ICE Office of Public Engagement invited stakeholders to an engagement session to discuss ICE’s response to the inadvertent disclosure of personally identifiable information (PII) of approximately 6,000 individuals in the credible fear process. As a supplement to that engagement, this additional information was circulated to stakeholders.

As a follow-up to the inadvertent PII data disclosures in November and December 2022, we are providing the following update. U.S. Immigration and Customs Enforcement (ICE) implemented a robust response to incidents, providing timely notice of the disclosure to the noncitizens and their representatives (as applicable) and taking significant steps to prevent potential harm to the affected noncitizens. ICE has released approximately 2,900 impacted noncitizens from its custody and continues to conduct custody reviews for the approximately 2,200 noncitizens who remain in ICE custody. ICE will not remove any of the impacted individuals without affording them the opportunity to pursue additional relief from removal and continues to work diligently to ensure noncitizens impacted by the disclosure receive the information necessary to make informed decisions regarding their immigration status. For FAQs, please see Unintentional Disclosures of Personally Identifiable Information on November 28 and December 7, 2022 | ICE

For noncitizens impacted by the November 28 incident who:

• Have positive credible fear:
  • Those with positive credible fear findings are, as a matter of course, placed in removal proceedings and issued NTAs. 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).
• 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.
• Are 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.
• Are already in removal proceedings or who have an appeal pending before the Board of Immigration Appeals (BIA)?
  • 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.
• Have 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).
• Have 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 to ensure that such a noncitizen is placed in INA § 240 removal proceedings during the next encounter of the noncitizen, if applicable.

Background – November 28 unintentional disclosure by ICE:

• On November 28, 2022, the date ICE learned of the first unintentional disclosure, approximately 5,100 of the more than 6,200 impacted noncitizens were detained in ICE custody. Approximately 1,000 noncitizens were either removed or released from ICE custody prior to the date of the disclosure.
• As of January 5, 2023, ERO conducted approximately 2,900 custody reviews and then released these impacted noncitizens from ICE custody. ICE will assure that all individuals impacted by the disclosure have been served with Notices to Appear (NTA) so they may apply for or add to an application for relief or protection based in-part or entirely on the disclosure. As appropriate, new NTAs will be issued for individuals in the impacted group.
• ERO is conducting custody reviews of the approximately 2,200 impacted noncitizens that remain in ICE custody.
• Of the more than 6,000 impacted noncitizens, approximately 170 were removed from the United States between November 18 and November 30. Most of these impacted noncitizens were removed prior to the unintentional disclosure; and fewer than 10 were removed after the unintentional disclosure but prior to the date ERO began notifications to the impacted noncitizens. No additional noncitizens impacted by disclosure have been removed by ERO and none will be removed prior to being afforded the opportunity to raise new protection claims.
• The noncitizens who were in custody are being notified of the incident and the removal hold via hand delivery. A large majority of those who were not in custody are receiving the notification via mail.

Background – December 7 unintentional disclosure by DHS:

• The noncitizens who were in custody have been notified of the incident and the removal hold via hand delivery. Those not in custody received the notification via mail.
• As of January 5, 2023, ERO conducted custody reviews and released approximately 90 of the impacted Cuban nationals. As appropriate, ICE will either issue these noncitizens NTAs, or OPLA will either file, or join, a motion to reopen these cases.
• Approximately 10 of the impacted Cuban nationals remain in ICE custody. After 90 days, ERO will conduct custody redeterminations, on a case-by-case basis, to assess whether the remaining Cuban nationals in custody should be released or remain detained.
• None of the 103 impacted noncitizens were removed from the United States.

Related Resources

• Practice Alert: Considerations for Responding to ICE Data Leak