By Dr. John Petrone
On September 15, one of the federal government’s most important tools for locating people in immigration detention quietly changed.
Thousands of detainees who have received final orders of removal stopped appearing in U.S. Immigration and Customs Enforcement’s Online Detainee Locator System, according to an Associated Press investigation published today. Three current and former ICE officials told the AP that the change was deliberate. Immigration attorneys reported that clients who had previously been searchable suddenly disappeared from the database.
There was no public announcement explaining the change.
And this is not based solely on anonymous government sources. On September 18, the American Immigration Lawyers Association issued a practice alert saying its members were reporting that the ICE locator was no longer providing information for people with final removal orders. AILA said it was continuing to monitor the situation.
That distinction matters: these people have disappeared from the public database, not necessarily from federal custody.
But for a spouse, parent, child or attorney trying to determine where someone has been moved, that distinction may offer little comfort.
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WHAT CHANGED
ICE established its Online Detainee Locator System in 2010 so families, lawyers and members of the public could determine whether someone was in ICE custody and where that person was being held.
The system became particularly important because immigration detainees can be transferred among detention centers, sometimes across state lines.
Until last week, having a final removal order did not by itself exclude someone from the locator.
According to the AP, that changed September 15. People with final removal orders began being removed from public search results.
There are important exceptions.
The new practice reportedly does not apply to detainees at the Adelanto detention facility in California or certain temporary detention facilities in Minneapolis, New York City and suburban Chicago. Courts overseeing litigation involving those facilities have ordered ICE to place detainees into the locator system promptly after arrival.
That raises an obvious factual question that has not yet been answered publicly:
Why should someone’s location remain searchable at a facility covered by a court order but become unavailable elsewhere?
ICE has not released a public policy document explaining the change.
A FINAL REMOVAL ORDER DOES NOT NECESSARILY END EVERY LEGAL QUESTION
This is one of the most important parts of the story.
A final order of removal generally means an immigration judge has ordered a person removed and the normal appeal process has either concluded or was not pursued.
The Department of Homeland Security has argued that people at this stage have already received due process. ICE told the AP that people with final orders are being prioritized for deportation while the agency faces what it called a “historic number of injunctions” preventing individual removals.
But a final removal order does not necessarily mean there is nothing left for a court or attorney to consider.
Depending on the case, a detainee may still seek to reopen proceedings, challenge continued detention through a habeas corpus petition or raise other legal claims concerning removal. Some people also have protections preventing their return to a particular country because of risks of persecution or torture.
That is where knowing a detainee’s location becomes more than a matter of convenience.
An attorney who does not know where a client has been transferred may have difficulty communicating with that client, determining whether a deportation is imminent or getting information before a judge in time to seek emergency relief.
THE NUMBERS ARE SIGNIFICANT
The population potentially affected is not small.
According to ICE data obtained by the Deportation Data Project and cited by the AP, nearly 16,000 people booked into ICE detention during July had final removal orders. That represented more than one-third of the people booked that month.
ICE detention facilities were holding more than 65,000 people in early July, according to the most recent figures cited by the AP.
Michelle Mendez, legal director of the National Immigration Project, estimated that roughly 30 percent of those detainees probably had final removal orders. That percentage is an outside estimate, not an official ICE count of the people removed from the locator.
So we should be careful with the terminology.
We know thousands may be affected.
We do not yet have a publicly released ICE figure establishing exactly how many people have been removed from the database.
LAWYERS SAY THEY ARE ALREADY LOSING TRACK OF CLIENTS
The practical consequences appeared almost immediately.
Atenas Burrola Estrada of the Amica Center for Immigrant Rights told the AP that every one of the organization’s clients with a final removal order had disappeared from the locator. As of Monday, that involved 17 clients.
Eight Somali men being detained at the U.S. military base at Guantánamo Bay also disappeared from the locator, according to one of their ACLU attorneys.
Greg Chen of the American Immigration Lawyers Association said families have been left uncertain whether relatives remain in detention, have been transferred or have already been deported.
That uncertainty becomes particularly consequential when a detainee is moved shortly before a removal flight.
THIRD-COUNTRY DEPORTATIONS MAKE LOCATION EVEN MORE IMPORTANT
This story also intersects with another major immigration case decided just three days ago.
On September 18, the 1st U.S. Circuit Court of Appeals largely upheld a lower-court ruling against a Trump administration policy allowing migrants to be rapidly removed to countries other than their own without a meaningful opportunity to raise safety objections.
Reuters reported that the case involves migrants with deportation orders who could be sent to countries with which they have no connection.
The appeals court concluded that federal immigration law requires those migrants to have a meaningful opportunity to raise concerns before removal. DHS has maintained that its third-country removal policy remains operative while further litigation continues.
That case illustrates why “final order” and “no remaining legal issue” are not necessarily synonymous.
A person may no longer be contesting whether the government can remove them from the United States while still litigating where the government may legally send them or the procedures required before doing so.
If attorneys cannot determine where those clients are being held, the time available to raise those issues can become critical.
ANOTHER TRANSPARENCY DISPUTE IS ALREADY IN COURT
There is another development worth watching, although it involves a separate institution and there is no evidence that the two decisions are connected.
On the same day ICE reportedly changed its detainee locator, September 15, the Associated Press sued the administrative arm of the federal judiciary over restrictions on electronic public access to immigration-related habeas corpus cases.
The AP argues that existing federal court rules make immigration-detention cases substantially harder for reporters and the public to monitor because many filings cannot be downloaded through PACER and instead must be inspected at courthouses.
The Administrative Office of the U.S. Courts declined to comment to Reuters on the lawsuit.
The dispute is significant because thousands of immigration detainees have filed habeas cases challenging their detention.
The locator controversy and the court-record lawsuit are separate matters, involving different governmental actors and legal issues. But both concern a basic practical question: how much information should the public, families, attorneys and journalists be able to obtain about people held by the federal government?
WHAT CAN FAMILIES DO IF SOMEONE DISAPPEARS FROM THE LOCATOR?
Interestingly, the federal government’s own public guidance has not yet caught up with the reported change.
USA.gov still tells the public that the ICE Online Detainee Locator can be used to find someone currently held by ICE.
If someone cannot be found in the system, the government directs people to contact the appropriate ICE Enforcement and Removal Operations field office. If the detention facility is already known, families can contact that facility directly. Immigration court case information can also be checked through the Justice Department’s automated case-information system or by calling 1-800-898-7180.
That guidance may now become substantially more important for families whose relatives have final removal orders.
WHAT WE STILL DO NOT KNOW
Several basic questions remain unanswered.
ICE has not publicly released the directive implementing the change. We do not know precisely how many detainees have been removed from public search results. We do not know whether the exclusion is intended to be permanent. And we do not yet know whether courts will require ICE to restore locator access beyond the facilities already covered by judicial orders.
ICE also did not confirm or deny the policy when responding to the AP. Instead, the agency emphasized that people with final removal orders are being prioritized for removal.
Those distinctions matter.
The government has legal authority to enforce valid final orders of removal. At the same time, courts continue to hear cases concerning detention, motions to reopen proceedings, constitutional claims and the procedures required before some third-country removals.
Both facts can be true at once.
THE BOTTOM LINE
The strongest reporting available today establishes three things.
ICE stopped displaying many detainees with final removal orders in its public locator beginning September 15. The American Immigration Lawyers Association independently reported the same problem to its members three days later. And attorneys are now reporting cases in which they can no longer locate clients through the system.
What remains unresolved is the policy’s full scope, its legal basis and its practical effect on access to attorneys and the courts.
Those are not abstract questions when someone can be moved hundreds or thousands of miles, transferred to another facility or placed on a removal flight.
The next important development will be whether ICE publishes a formal explanation of the policy and whether federal judges are asked to determine how much location information the government must continue providing while detainees remain in federal custody.
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The cruelty is mind boggling.