When ICE hides detainees, constitutional rights go missing

Thousands of people in ICE custody have been effectively “disappeared” by the U.S. government, according to new reporting by The Associated Press .

The names of immigrant detainees with final orders of removal have vanished from the Online Detainee Locator System , a database that lets families and lawyers find out where detainees are.

Nearly 16,000 people booked into ICE detention in July were subject to final removal, the AP noted — more than one-third of the overall bookings.

This policy of hiding the location of some detainees reflects the cruel and secretive nature of the administration’s immigration crackdown. It raises serious logistical and legal issues, and should be recognized for what it is: an assault on due process and constitutional rights.

To be clear, this move does not apply to all detainees — just those with a final order of removal. A final order of removal is a document issued by an immigration judge that directs a non-citizen to leave the U.S.

However, persons with final orders of removal may still have options to re-open their cases or file appeals. Some people with final orders are eligible for humanitarian relief under the United Nations Convention Against Torture, which prohibits sending people back to countries where they would face persecution or torture. Many people are issued final orders because they unintentionally missed a court date , or because a government notice was sent to the wrong address .

That’s why the locator system is important. The system is a lifeline for detainees, their families, and their legal counsel. Families use the system to get in touch with their loved ones; immigration attorneys use it to set up meetings with their clients and gather evidence for cases.

As if it were not enough to wipe people’s names from the online locator, the Washington Post reports that immigration officials are now barred from revealing the locations of detainees to their relatives or attorneys over the phone. This puts the burden of communication on detainees. Yet it is not easy for people in detention to make phone calls to the outside. Calls are expensive , and often involve long lines and facility restrictions.

It is especially paramount that detainees are able to make contact, as ICE is constantly transfers people all around the country and even is carrying out illegal deportations .

Removing people from the online locator system itself is likely illegal. Obstructing detainees from access to legal counsel violates their due process rights under the Fifth Amendment, because a lawyer cannot adequately represent their client if they don’t know where they are. Most critically, the move interferes with habeas corpus, a legal process that allows all people to challenge their detention in court. This mechanism is enshrined in the Constitution — and it is available to both citizens and non-citizens.

Legal arguments aside, what reasonable person believes that government-enforced disappearances of prisoners is a good idea? This is a concept associated with authoritarian regimes like North Korea and the former Soviet Union. For Americans who worry about “the deep state,” this policy seems like a good example of it in action.

In a statement , ICE said that detainees with final removal orders were being prioritized for deportation, even though ICE faces a “historic number of injunctions” from courts stopping individual removals. This answer is telling. As of May, federal judges have indeed ruled against the Trump administration in more than 20,000 ICE cases. But if the agency is facing so many court decisions blocking its actions, the solution is not to make detainees harder to trace. The solution is for ICE to reform its practices so that they comply with the law.

Meanwhile, the stakes for people in immigration detention could not be higher. This year is on track for a record number of detainee deaths, and the administration has been sending detainees to remote third-world countries like Eswatini and Rwanda . The inability of a lawyer to reach a client in detention could have life-altering consequences.

If pollsters are correct and Democrats regain control of Congress in the November midterms, lawmakers must ensure that the names of all immigrant detainees appear correctly in the online locator system. Lawmakers could also require that the locator stay updated in a timely manner and that lawyers be notified of detainee transfers. Government-sanctioned disappearances do not belong in a democracy.

Raul A. Reyes is an immigration attorney and television commentator in New York City.