Out of Public View: The Detainee Locator Policy and Access to Counsel

Since mid-September 2026, according to the Associated Press and the court filings that followed, people held by ICE whose orders of removal are final no longer appear in the agency’s public locator. Some of them hold protection against torture or persecution, and the remedies that protect them begin with knowing where they are held.

For sixteen years, a lawyer or relative trying to find a person in immigration detention could begin with a single search. ICE’s Online Detainee Locator System, open to anyone with the person’s name, date of birth and country of birth, or alien registration number and country of birth, reported whether the person was in custody and, if so, in which facility. On or about 15 September 2026, that stopped being true for one large group of people: those whose orders of removal have become final. ICE did not announce the change. The Associated Press reported it on 21 September, citing three current and former ICE officials who spoke on condition of anonymity because they were not authorized to discuss it, and lawyers told the AP that clients had vanished from the system.

The change bears directly on this series. Deferral of removal under the Convention Against Torture is granted only to a person who “has been ordered removed,” 8 C.F.R. § 1208.17(a), and withholding of removal, like deferral, bars removal to a particular country rather than removal as such, 8 U.S.C. § 1231(b)(3)(A). In either case the order of removal remains, and the regulations allow it to be carried out to a third country. 8 C.F.R. § 1208.16(f). Part 1 explained why that order does not end the protection; Part 2 explained that the protected person may still be sent to a third country. The people whom the government now seeks to send to third countries are, in large part, people the locator no longer shows.

This part sets out the change, the purpose the locator was built to serve, the lawsuit filed in Boston on 28 October, and the government’s position. The lawsuit’s claims are allegations, and the court has not ruled on them. The account of the change rests on the AP’s reporting, on what a federal judge in Miami observed on his own docket, and on sworn declarations filed in the lawsuit; forty-seven members of Congress, relying on the press reports, have asked ICE to reverse it.

The change of 15 September 2026

According to the AP, ICE removed people with final orders of removal from the public locator on 15 September, and the American Immigration Lawyers Association warned its members of the change days later. The AP’s sources said that the change does not reach every facility: people held at the detention facility in Adelanto, California, and at temporary holding facilities in Minneapolis, New York City and suburban Chicago still appear, because judges in litigation over detention practices there have ordered ICE to list people promptly on arrival.

Asked about the change, ICE neither confirmed nor denied it. Its statement to the AP said that people with final orders were being prioritized for deportation, even as the agency faced a “historic number of injunctions” from courts halting individual removals.

Lawyers described the effect in concrete terms. A deputy program director at the Amica Center for Immigrant Rights, which is now one of the plaintiffs in the Boston case, told the AP that every one of the center’s clients with a final order, seventeen people at the time, had disappeared from the locator. An ACLU attorney representing eight Somali men held at the United States military base at Guantánamo Bay said that they were among those no longer listed.

ICE has not published the directive, and its terms are known only from what officials told reporters and what the plaintiffs in the Boston case allege. The complaint alleges, on information and belief, that the directive also instructs officers to refuse to give a covered person’s location when attorneys or family members ask. On 30 September, forty-seven members of the House of Representatives wrote to the official leading ICE, described the same instruction on the strength of reporting in the Washington Post, and asked the agency to restore the information and to produce the directive by 14 October. The complaint, filed two weeks after that date, alleges on information and belief that no response had been received.

The locator’s stated purpose

ICE built the locator in 2010 and said why at the time. In the Privacy Act notice published on 3 May 2010 to support its deployment, the agency wrote that it had “developed ODLS as a service to the public, especially family members and legal representatives, to help locate individuals arrested for administrative immigration violations and who are in or have recently left ICE custody.” The notice described the problem the system was meant to solve: “Currently, members of the public must contact a DRO field office by phone to determine the location of a detainee.” It added a routine use permitting disclosure to members of the public of limited information for the purpose of “identifying whether the detainee is in ICE custody and the custodial location.” 75 Fed. Reg. 23,274, 23,274, 23,278 (May 3, 2010). The system was scheduled to go live in June 2010. ICE’s own fact sheet, as quoted by the federal court in Miami discussed below, later described it as part of “detention reform.”

The locator was never complete. It has not listed children, people held by Customs and Border Protection for less than forty-eight hours, or people being transported, among others, and advocates and members of Congress have complained that it updates slowly and carries missing or inaccurate entries. What lawyers told the AP had no apparent parallel was the exclusion of people because their removal orders have become final.

The number of people affected

ICE has not said how many people the change removed from public view. The figures available measure related but different things, and they are set out here as their sources give them.

• The complaint in the Boston case, citing the Deportation Data Project, puts the average daily population of ICE detention in July 2026 at 66,904, and the average number of those people with final orders at 21,700, or about 32 percent.
• The AP, using the same project’s data, reported in September that nearly 16,000 of the people booked into ICE detention in July had final orders of removal, more than a third of all bookings.
• The complaint, counting only people whose final order predated their booking, gives 13,788 new detentions for July.
• The AP reported on 28 October that, as of September, the change “affected more than 16,000 of the nearly 69,000 detainees who were in ICE custody,” or about 23 percent.

The figures differ because they count different things and different months, and none of the sources reconciles them. Taken together, they indicate that the change reaches between roughly a quarter and a third of the people held by ICE on an ordinary day, and, if July is typical, more than ten thousand new detentions a month.

A final order is not the end of a person’s legal rights

A removal order becomes final, among other circumstances, when the Board of Immigration Appeals dismisses an appeal, when the person waives appeal or lets the time to appeal run out, and, for an order entered in the person’s absence, immediately upon entry. 8 C.F.R. § 1241.1. Finality ends the removal proceeding. It does not end the person’s legal position, and it does not end the need for a lawyer.

People with final orders may move to reopen their cases, under 8 C.F.R. § 1003.2 and § 1003.23; petition a court of appeals for review under 8 U.S.C. § 1252, which must be filed within 30 days of the final order; challenge their detention by habeas corpus under 28 U.S.C. § 2241; and seek protection against removal to a country that was never named in their proceedings. Each remedy has its own limits. For people who won protection against torture, the last is now the most pressing.

The deferral regulation makes the point in its own terms. An immigration judge who grants deferral must tell the person that removal “has been deferred only to the country in which it has been determined that the alien is likely to be tortured, and that the alien may be removed at any time to another country where he or she is not likely to be tortured.” 8 C.F.R. § 1208.17(b)(2). The judge must also explain that deferral “[w]ill not necessarily result in the alien being released from the custody of the Service.” Id. § 1208.17(b)(1)(ii). A person protected in this way can be held, and can be sent elsewhere. Both facts make the person’s location more important, not less.

The members of Congress drew the same connection in their letter: “Others have been granted protection from deportation to their home country and remain detained for substantial periods of time while ICE appeals the decision or seeks a third country of removal.”

Habeas corpus begins with the place of confinement

The writ of habeas corpus is the traditional remedy for unlawful custody, and the law ties it closely to place. For a challenge to present physical confinement, the Supreme Court has held, “jurisdiction lies in only one district: the district of confinement,” and the proper respondent is ordinarily “the warden of the facility where the prisoner is being held.” Rumsfeld v. Padilla, 542 U.S. 426, 435, 443 (2004). The Court applied the same rule to people held for removal in 2025, in a case under the Alien Enemies Act, and added that the notice owed to them “must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.” Trump v. J.G.G., 604 U.S. 670, 672-73 (2025) (per curiam).

The rule has qualifications. A petition properly filed in the district of confinement is not defeated by a later transfer: when the government moves a petitioner after the petition is filed, the district court “retains jurisdiction.” Padilla, 542 U.S. at 441. Justice Kennedy, joined by Justice O’Connor, would also recognize an exception “where the Government was not forthcoming with respect to the identity of the custodian and the place of detention,” allowing the petition in the district from which the person was taken. Id. at 454 (Kennedy, J., concurring). And a petition filed in the wrong court may be transferred to the right one “if it is in the interest of justice.” 28 U.S.C. § 1631. These are real safeguards. Each of them, however, means filing without the facts and waiting for the government to supply them. One of the declarations in the Boston case describes exactly that: a lawyer who filed an emergency petition in the Western District of Louisiana “though we did not know with certainty whether L.J. was in that jurisdiction or not.”

For people held after a final order, habeas is also the route to the limits the Supreme Court has placed on post-order detention. Zadvydas v. Davis, 533 U.S. 678, 701 (2001), recognized a presumptively reasonable period of six months, after which, once the person gives good reason to believe that removal is not significantly likely in the reasonably foreseeable future, “the Government must respond with evidence sufficient to rebut that showing.” The Court added that “[t]his 6-month presumption, of course, does not mean that every alien not removed must be released after six months.” Id. The framework is a measured one, and it is most useful to a person whose lawyer can find the right court. It matters most to people protected against return to their own country for whom no other country has yet been found.

A federal court noticed the gap on its own docket

On 6 October 2026, a federal judge in Miami described the consequence in a written order. In an order requiring location status reports, Judge Rodolfo A. Ruiz II of the Southern District of Florida explained that, because a petition under § 2241 may be brought only in the district of confinement, “the first thing this Court does when confronted with a new petition for writ of habeas corpus under § 2241 is to ascertain the whereabouts of the petitioner,” and that “[t]he primary tool” for doing so is ICE’s locator. When the court could not find the petitioner there, it asked his lawyer, who pointed to the AP’s report. The court then “conducted an audit of § 2241 cases on its docket,” citing filings in several other cases, and confirmed “that petitioners slated for final removal are being removed from the ODLS.”

The court’s assessment was direct, and it was framed with care. “It now appears,” the judge wrote, “that ICE has rolled back this reform as it pertains to those facing final orders of removal,” and the change “does not appear to serve any real purpose other than to obfuscate the Court’s ability to ascertain its jurisdiction,” while also impeding families, lawyers and the public in locating people held by ICE. The court shifted the burden accordingly, ordering the government to file weekly reports stating where the petitioner was held and whether he had been transferred or removed. Sendra Gonzalez v. Miami ICE Field Office Dir., No. 1:26-cv-23385, ECF No. 21 (S.D. Fla. Oct. 6, 2026). The order was entered before the government had addressed the locator change. On 2 November the court denied the petition, holding among other things that the petitioner, who had twice declined to sign notices of removal to Mexico, a third country, could not show that his removal was not reasonably foreseeable. The order of 6 October concerned the court’s ability to know where the petitioner was held, and it stands as a judicial description of the problem this part addresses.

The lawsuit in Massachusetts

On 28 October 2026, four nonprofit legal service providers sued in the federal district court in Boston: Greater Boston Legal Services, the Rian Immigrant Center, the Florence Immigrant and Refugee Rights Project, and the Amica Center for Immigrant Rights. The defendants are the Secretary of Homeland Security, Markwayne Mullin; the Department of Homeland Security; David Venturella, the senior official performing the duties of ICE’s director; and ICE. The case, Greater Boston Legal Services v. Mullin, No. 1:26-cv-14869, is assigned to Judge Allison D. Burroughs.

The complaint pleads four claims.

• Arbitrary and capricious action, under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). An agency must “examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). The plaintiffs argue that ICE reversed a sixteen-year practice without a stated reason, without considering its effect on lawyers, courts and families, and without weighing the reliance that has grown up around the locator.
• Action contrary to constitutional right, under 5 U.S.C. § 706(2)(B), resting on the First Amendment claim.
• The First Amendment. The plaintiffs argue that the policy burdens their speech and association with current and prospective clients, relying on NAACP v. Button, 371 U.S. 415 (1963). They acknowledge that courts reviewing detention rules apply the deferential test of Turner v. Safley, 482 U.S. 78 (1987), argue that civil detention calls for a less deferential standard, and contend that the policy fails even under Turner.
• The Freedom of Information Act, brought by Greater Boston Legal Services and the Rian Immigrant Center against ICE. The Act requires agencies to make available “those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register” and “administrative staff manuals and instructions to staff that affect a member of the public.” 5 U.S.C. § 552(a)(2)(B)-(C). The plaintiffs ask that the directive be published.

The plaintiffs state expressly that they do not seek review of any client’s removal order, of the decision to detain any client, or of the process by which removability is determined. The limit is significant, because 8 U.S.C. § 1252 restricts judicial review of removal orders and their execution. The case is framed as one about access, not about any person’s removal.

On 4 November the plaintiffs moved to stay the policy while the case proceeds, under 5 U.S.C. § 705, which allows a reviewing court, “to the extent necessary to prevent irreparable injury,” to “postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings.” The supporting memorandum relies on twelve declarations from practitioners. They describe calls and emails to ICE field offices that went unanswered, an information line whose staff referred callers back to the locator, an electronic scheduling system that reaches fewer than fifty facilities, and clients who could not reach their lawyers for days after a transfer. As of 8 November, the court had not ruled on the motion, and the government had not yet filed a response; the most recent entries on the docket were notices of appearance filed on 6 November.

The government’s position

The government has addressed the change in public statements rather than in court. ICE told the AP in September that people with final orders were being prioritized for deportation, in the face of what it called a “historic number of injunctions.” In late October it told KPBS that detainees “may not show up on the locator system for several reasons, including at the person’s request, because of a filing they’ve made, or if they are being transported,” and, according to KPBS, that all detainees have access to telephones. After the lawsuit was filed, a Department of Homeland Security spokesperson told Giulia McDonnell Nieto del Rio of the Boston Globe that people in detention have “several ways to communicate with their family members and lawyers,” that removal is the appropriate process for a person with a final order, and that the Department’s enforcement assessment “abides by due process under the U.S. Constitution.” The AP reported that the agencies “have denied that they are disappearing detainees, saying they remain free to make phone calls.”

Those statements deserve a fair reading, and part of what they imply is sound. Congress has directed that when a person is ordered removed, the government “shall remove the alien from the United States within a period of 90 days.” 8 U.S.C. § 1231(a)(1)(A). No statute cited in the complaint requires ICE to keep a public locator at all. ICE built it by its own choice, under a routine use that permits the disclosure, and agencies may change their policies.

The government will also have substantial threshold arguments. It may contend that 8 U.S.C. § 1252 bars the suit or the relief sought, questions of the kind the Supreme Court will take up in D.V.D. on 9 December. It can point to Center for National Security Studies v. Department of Justice, 331 F.3d 918 (D.C. Cir. 2003), in which the court of appeals, over a dissent, upheld the withholding of the names of detainees and the dates and locations of their detention during the investigation that followed the attacks of 11 September 2001, and held that the First Amendment does not “mandate[] a right of access to government information or sources of information within the government’s control” (quoting Houchins v. KQED, Inc., 438 U.S. 1, 15 (1978) (plurality opinion)). The plaintiffs’ claim is framed differently, as a burden on their own communication with clients rather than a public right to information, but that precedent will weigh on it. The organizations’ standing, which the Supreme Court addressed in FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367 (2024), and the deference owed to the administration of detention are contested as well.

What the statements do not yet supply is a reason for the change that a court could review. An agency may change course, but it must explain itself, and if the case reaches the merits the court will look to the reasons the agency gave when it acted. The only statement on the public record that approaches an explanation is ICE’s reference to prioritizing people with final orders for deportation amid a large number of court orders halting removals. A rationale stated in those terms will be examined for its effect on access to the courts. That is the question the case presents, and the government will have its opportunity to answer it.

A telephone is also not a locator. A call can tell a lawyer where a client is, but not when the client is in transit, has just been moved, does not know the name of the facility, or cannot reach a telephone. The plaintiffs’ memorandum reports that detained people “often do not know where they are being detained.” The members of Congress noted a related limit: detainees “are not always able to place phone calls due to the cost of the calls, high demand for phone usage, or a combination of these and other factors.”

The locator policy and third-country removal

Part 2 described the directive ICE issued on 18 February 2025. As the First Circuit recounted it, the directive instructed officers to “review for removal” the cases of people protected from removal to particular countries, and to “determine the viability of removal to a third country and accordingly whether the alien should be re-detained.” D.V.D. v. U.S. Dep’t of Homeland Sec., No. 26-1212, 2026 WL 2797801, slip op. at 5 (1st Cir. Sept. 18, 2026) (the Coalition’s copy). The people re-detained under that instruction hold final orders of removal. Unless they are held at one of the facilities covered by court orders, they are among the people the locator no longer shows.

The procedures now in force assume that the person can be reached. The district court in D.V.D. declared that the law requires effective notice of the intended third country and a meaningful opportunity to contest removal there on the ground of a reasonable fear of persecution or torture. The First Circuit largely affirmed on 18 September 2026, and on 29 September the Supreme Court stayed that judgment and agreed to hear the case, with argument set for 9 December. The stay leaves the government’s 2025 guidance in force: where the State Department credits a country’s assurances, “the alien may be removed without the need for further procedures”; otherwise the person receives notice of the country, officers do not ask whether he or she is afraid, and ICE “will generally wait at least 24 hours following service of the Notice of Removal before effectuating removal.” Whatever the Court decides about jurisdiction and the guidance, notice serves its purpose only if the person who receives it can consult a lawyer, and the lawyer can tell a court where the person is held.

One of the declarations filed in Boston shows how the two policies meet. A lawyer in Philadelphia states that after weeks of trying to locate a client protected against return to Liberia, she learned on 23 October 2026 that he had been flown to Eswatini, where, on arrival, he “was asked if he wanted to be repatriated to Liberia, where a U.S. immigration judge had already found he would be tortured.” (Declaration of Lilah R. Thompson ¶ 14.)

That is where the locator policy and the prohibition on refoulement meet. The notice that accompanies a grant of deferral tells the person that he or she may be removed “to another country where he or she is not likely to be tortured.” The Committee Against Torture reads the Convention to require more: a person at risk “should not be detained without proper legal justification and safeguards,” and should never be sent to a state from which he or she may be sent on to torture. Comm. Against Torture, General Comment No. 4, ¶ 12, U.N. Doc. CAT/C/GC/4 (Sept. 4, 2018). The Committee’s reading goes further than United States law, which permits removal to a safe third country and which, under the understanding the United States attached to the Convention, asks whether torture is “more likely than not.” It does not bind American courts, but it states the purpose the safeguards serve. In practice, each of those questions is raised by a person who knows the destination and can reach counsel before the flight. A third-country removal carried out while the person cannot be found can become refoulement by another route, when the new country is one where the person faces torture, or one that sends the person on.

Purpose, effect, and the questions left to the court

The complaint alleges that the policy appears to be an effort to aid the government’s deportation campaign and to avoid judicial oversight. That is an allegation about purpose, and purpose is difficult to prove; it ordinarily depends on the agency’s own records, which have not been produced. The Coalition’s argument does not depend on it.

The effect is a different matter. It has been reported by the AP on the word of current and former officials, observed by a federal judge on his own habeas docket, and described under oath in twelve declarations filed in the lawsuit. On those accounts, people in ICE custody with final orders, outside the facilities covered by court orders, are no longer visible in the public system built for families and lawyers, and the alternatives to it are slower and less reliable.

The law does not require proof of an improper motive before an agency action can be set aside. Under State Farm, the question is whether the agency examined the relevant data and explained the choice it made. The effect of the change on lawyers, courts and families is the most evident of the relevant considerations. Whether ICE weighed it, and on what grounds it decided as it did, is the question Judge Burroughs will be asked to answer.

Conclusion: a right that depends on being found

A final order of removal settles that a person may be removed. It does not settle where, and it does not end the person’s right to challenge detention, to seek reopening, or to object to a new destination on the ground of torture. Each of those rights is exercised through a lawyer and a court, and each begins with knowing where the person is held.

The government has authority to enforce final orders and discretion in how it runs its detention system. It has not yet explained, on the public record, why people with final orders should be the ones removed from public view, when they are also the people for whom time is shortest and, where protection against torture is at stake, an error may never be undone. Until it does, the change will stand as a gap between the protections the law grants and the means of using them.

For people who won protection against torture, that gap can be the interval between a transfer and a flight. The prohibition on refoulement is kept in that interval, by lawyers who can find their clients and courts that know where to look. Families looking for someone now can find practical steps on the Coalition’s page for relatives and friends.

Authorities and references

• Supreme Court: Rumsfeld v. Padilla, 542 U.S. 426 (2004) (United States Reports); Trump v. J.G.G., 604 U.S. 670 (2025) (per curiam) (slip opinion); Zadvydas v. Davis, 533 U.S. 678 (2001) (United States Reports); Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (United States Reports); Department of Homeland Security v. D.V.D., No. 26-426 (docket).
• Courts of appeals: D.V.D. v. U.S. Dep’t of Homeland Sec., No. 26-1212, 2026 WL 2797801 (1st Cir. Sept. 18, 2026) (opinion; the Coalition’s copy); Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918 (D.C. Cir. 2003) (opinion).
• District courts: Sendra Gonzalez v. Miami ICE Field Office Dir., No. 1:26-cv-23385 (S.D. Fla.), order requiring location status reports, Oct. 6, 2026, ECF No. 21 (order; the Coalition’s copy), and order denying petition, Nov. 2, 2026, ECF No. 29 (order); Greater Boston Legal Services v. Mullin, No. 1:26-cv-14869 (D. Mass. filed Oct. 28, 2026): complaint (ECF No. 1), memorandum in support of motion to stay under 5 U.S.C. § 705, Nov. 4, 2026 (ECF No. 36), declarations (ECF No. 37; ECF No. 37-4), docket (Civil Rights Litigation Clearinghouse).
• Statutes: 5 U.S.C. § 552(a)(2) (govinfo); 5 U.S.C. §§ 705, 706 (§ 705; § 706); 8 U.S.C. § 1231(a)(1)(A), (b)(3)(A) (govinfo); 8 U.S.C. § 1252 (govinfo); 28 U.S.C. § 1631 (govinfo); 28 U.S.C. § 2241 (govinfo).
• Regulations and notices: 8 C.F.R. §§ 1003.2, 1003.23, 1208.16(f), 1208.17, 1241.1 (§ 1003.2; § 1003.23; § 1208.16; § 1208.17; § 1241.1); Privacy Act of 1974; Department of Homeland Security United States Immigration Customs and Enforcement-011 Immigration and Enforcement Operational Records System of Records, 75 Fed. Reg. 23,274 (May 3, 2010) (govinfo).
• Government guidance, as filed in D.V.D., No. 1:25-cv-10676 (D. Mass.): Guidance Regarding Third Country Removals (Mar. 30, 2025), ECF No. 43-1 (court record); ICE memorandum of July 9, 2025, ECF No. 190-1 (court record).
• Congress: Letter from Rep. Veronica Escobar, Rep. Luz Rivas and 45 other Members of Congress to David Venturella, ICE (Sept. 30, 2026) (text, as released).
• International: Convention Against Torture, United States understanding (2) (status, with the United States’ reservations, understandings and declarations); Comm. Against Torture, General Comment No. 4 (2017) on the Implementation of Article 3 of the Convention in the Context of Article 22, ¶ 12, U.N. Doc. CAT/C/GC/4 (Sept. 4, 2018) (UN document).
• Reporting: Ryan J. Foley, Associated Press, report of Sept. 21, 2026 (copy read, as published by the Los Angeles Times); Associated Press, report of Oct. 28, 2026 on the lawsuit (copy read, as published by LAist); KPBS, report of Oct. 27, 2026 (report); Giulia McDonnell Nieto del Rio, Boston Globe, report of Oct. 28, 2026 (report); Maria Sacchetti & Liam Bowman, Washington Post, report of Sept. 21, 2026, as cited in the complaint at n.13 (link as cited; not opened by the Coalition).
• On this site: Third-Country Removal Is a Pretext for Refoulement, Part 1 of this series, Part 2 of this series, the Supreme Court stay in D.V.D., what United States courts have held on removal to a third country, the Eswatini country guide, for relatives and friends of a person who has been removed, refoulement.