On November 28, 2022, Immigration and Customs Enforcement (ICE) publicly leaked the names, identification numbers, birthdates, locations, and other personally identifiable information of approximately 6,000 noncitizens in ICE custody.
This data breach raises security concerns for those seeking asylum who have experienced significant harm or torture in their country of origin and have come to the U.S. for safety.
“I am even more scared to go back to my country now,” said one man impacted by the breach. “I said many things to the U.S. government during my credible fear interview, and I am unsure who could access that information. I am unsure if the Salvadoran government or people who want to harm me got my information. I feel more unsafe now.”
The privacy rights of asylum seekers are protected under U.S. laws, and by violating these rights, ICE has exposed them to the risk of retaliation and even death at the hands of their assailants.
As a lawyer with CAIR Coalition, I work with immigrants who are detained and at risk of deportation—helping them fight their cases in immigration court. I have more than seven years of experience in immigration policy and almost four years of experience in legal services. While those of us who work alongside people in the immigration system see the harm caused by our government’s persistent empty promises, this data breach goes above and beyond. Around 20 of our clients have been impacted by this unlawful breach, and we still do not know about many more.
“Even if the information is on the Internet for only six hours, which might seem like a short period of time, on the Internet, it is like it is posted for six years (this is what we call Internet time), ” said cyber-security expert Dr. Eric Cole. “Whether something is on the Internet for six minutes, six hours, or six years, it will be found, archived, and the information will exist forever.”
Those detained and part of the data breach have been in informational limbo for months. Because the government has not provided any further information since its initial public notice, it is still unclear who could have accessed the data and what other information was revealed to the public.
While ICE has released some people from detention and some have secured relief through representation, but many still do not have legal representation and remain detained because ICE refused to release them for unknown reasons. Thus, while little progress has been made, most people affected by the data breach remain detained. A typical length of detention can be anywhere from three to four months to almost three years in cases of arbitrary prolonged detention.
While ICE and Department of Homeland Security (DHS) officials promised the public that they would do everything to negotiate with attorneys for asylum seekers affected by the data breach—like dismissing the case or withdrawing an appeal—the government is not following through with their promise. Instead, advocates, including attorneys from pro bono and private bars, are aggressively arguing cases for clients affected by the data breach. Because there is no right to counsel in immigration proceedings, many clients affected by this data breach remain unrepresented.
The government must provide more information to everyone affected by the data breach. They should also act on their promise and stipulate forms of relief, entirely dismiss the cases, or withdraw appeals when appropriate.
Now, with the use of Title 42 and the recently proposed asylum ban, it is even more difficult for people to seek safety in the U.S. Both rules severely limit access for asylum seekers—forcing people fleeing violence and persecution to schedule an appointment before arriving at the border via a mobile app riddled with technological issues. Otherwise, they must stop along the way and first apply for asylum in countries with weak or non-existent protections.
Being detained in an immigration facility is a highly traumatizing experience for everyone, especially for asylum seekers. They face various issues, such as access to confidential calls, legal resources, and adequate healthcare. Detention is especially difficult for asylum seekers who fled violence and suffer from traumatic memories from the past. While their immigration cases may move quickly in immigration court, often within a few weeks, asylum seekers who are detained have very little time to secure legal representation. In addition, asylum seekers affected by the data breach require sophisticated legal analysis and resources, and not having legal representation can significantly jeopardize their claims for relief and lives.
While we have been trying to secure cybersecurity experts to demonstrate how this data breach creates an additional risk of harm to our clients, this burden should fall on the government to show how the leaked data may impact our clients.
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