What Schools Should Know about ICE Enforcement Actions
Alerts
January 22, 2025
With the new presidential administration’s hard stance on immigration, many school officials are anxious about visits from U.S. Immigration and Customs Enforcement (ICE) and uncertain about what to do should such a visit occur. While enforcement action by ICE has always been possible and does happen on occasion, the chances of such an event occurring at a school have historically been low. Moreover, for many years schools have enjoyed some protection in accordance with the “protected areas” policy issued by the U.S. Department of Homeland Security (DHS). This policy provided that DHS generally should not take an enforcement action in or near a location that would restrain access to essential services or engagement in essential activities, such as a school, health care facility, or social services establishment. However, DHS rescinded the protected areas policy on Inauguration Day (January 20, 2025), leaving these institutions at greater risk of DHS enforcement action. While the risk of ICE activity at schools may still be relatively low, it is best to be prepared because such activity is more likely now than it has been in the past. Accordingly, we offer the following information and guidance to assist school officials in these challenging times.
We start with the key observation that ICE cannot enter non-public areas of an organization without consent or a valid judicial warrant signed by a federal judge, absent exigent circumstances (such as some sort of urgent national security or public safety threat). Such a judicial warrant must be issued by a federal court and signed by a federal judge and will include a time frame within which the search must be conducted, a description of the premises to be searched, and a list of items to be searched for and seized. By contrast, an administrative arrest or removal warrant issued by DHS (Form I-200 or I-205) is not a judicial warrant and does not authorize DHS officers to enter private areas of a premises without consent. Therefore, should ICE agents come to a school, school officials must first establish the agent’s identity and credentials. Then, school officials should ask the agents whether they have a warrant and if they do, to carefully examine the warrant to identify the type. If the officers claim exigent circumstances, school employees should not interfere with their attempts to gain access to non-public areas (however, you are not required to consent to the entry). Note that obstructing or otherwise interfering with certain ICE activity can be a crime subject to prosecution under federal law.
Because judicial warrants are granted in the context of criminal investigations, we believe the risk of ICE agents coming to a school with a valid judicial warrant is low. If ICE agents were to visit a school, they would more likely appear with (and try to enforce) an administrative arrest or removal warrant. Should the ICE agents present an administrative arrest or removal warrant, school officials are not required to authorize the agents to enter non-public areas of the premises to locate any specific individuals. Given the security measures now taken in our schools, we generally consider any interior part of a school building to be a “non-public” area. Moreover, school officials are not required to provide any information to the agents about whether any named individuals are even present on-premises. That being said, school officials are advised to implement preparedness plans and provide training to employees on how to handle a visit from ICE, should the need arise.
Given that an ICE enforcement action is now possible at schools, we suggest the following protocol for employees who will deal with ICE agents during enforcement actions:
- Immediately contact the district’s point person for such matters for assistance in assuring an appropriate and consistent response to an enforcement action. In consultation with the point person, consider contacting legal counsel for assistance during the process. Counsel can provide guidance throughout the process (such as helping to review any warrant) and may even be able to come assist in person or speak with the immigration officers over the phone.
- Do not hide or assist employees, students, or families in leaving school premises, provide false or misleading information, or discard any important documents or information. Obstructing or otherwise interfering with certain ICE activities can be a crime, and anyone involved may be subject to prosecution under federal law. That being said, you may (and should) still make efforts to ensure that any search or seizure is carried out lawfully.
- Remain calm and cooperative. Even if you have concerns, maintain a professional demeanor and do not resist an officer’s questions or requests.
- Upon the arrival of ICE agents, request their names, badge or ID number, telephone number and business card.
- Keep detailed records of the visit. Make and keep copies of all documents given to the agent(s), as you are able. Obtain a receipt for any records taken. Take photographs or videos of the search, as you are able/comfortable. Prepare summary documentation of what happened during the visit.
- The best way for people to protect their rights is to exercise their right to stay silent and ask for an attorney. (Your school can inform employees, students, or families that they have the right to remain silent and do not need to answer any questions, but do not direct them to refuse to speak to the agent(s)).
- If ICE agents ask for student records, remember that FERPA only permits school officials to disclose educational records without prior written consent pursuant to a court order or subpoena or a health or safety emergency. If the agents do not have a court order or subpoena, then FERPA prohibits you from disclosing these records without prior written consent from the student’s parents (or, if over 18 years old, the student). If the agent(s) do have a court order or subpoena, then the school must make a reasonable effort to notify the parent or eligible student of that court order or subpoena before disclosing the records (unless ICE or other federal officials are investigating an act of terrorism).
- Remember that the United States Supreme Court ruled in Plyler v. Doe (1982) that undocumented students who reside in a school district are entitled to attend school in that district. In Plyler, the Court struck down a Texas law that permitted school districts to deny educational services to children of undocumented foreign nationals. Because of this decision, school districts are responsible for educating children who live in their district, irrespective of their immigration status. Additionally, the United States Department of Education’s Office for Civil Rights (OCR) has issued guidance stating that public schools must (1) identify students with limited English proficiency as English Learners and offer language assistance services and (2) communicate information about enrollment, classes, and other educational programs and activities in a language that all parents, guardians, and sponsors can understand. This recent Dear Colleague Letter from the Secretary of Education has additional resources.
Please contact a member of Shipman's immigration enforcement team or school law team if you wish to discuss further your school’s immigration concerns and/or for assistance with the preparation and implementation of preparedness plans. We invite you to subscribe to our Immigration Resource Center to receive updates related specifically to developments in U.S. immigration law.
Immigration Enforcement Team: