In the hours following his inauguration, President Trump issued executive orders concerning immigration, including the launch of new enforcement policies to address illegal entry, unlawful presence, and removal of undocumented immigrants in the U.S. The Department of Homeland Security (DHS) then rescinded a 13-year-old policy that prevented immigration officers from entering "sensitive locations"–including schools--when conducting immigration enforcement activities.
Given the recission of this policy, schools should understand the various rights and obligations they may have related to visits from immigration officers and develop internal protocols to prepare for the possibility of a visit.
Are Schools Required to Allow Immigration Officers to Enter?
Whether a school is required to provide immigration officers with access to campus, students, and personnel depends on the type of documentation immigration officers present. Immigration officers may have an administrative warrant, which is a document that will indicate it has come from DHS and has been signed by an "immigration judge." An administrative warrant does not give immigration officials the right to access non-public areas of the school (for example, areas beyond security perimeters) without the school's consent. In other words, if a school is presented with an administrative warrant, compliance is not required. School administrators should be mindful of the fact, however, that refusal to comply with an administrative warrant could open up the school to an allegation of obstruction, so schools should reach out to counsel as soon as possible to navigate this difficult issue.
By contrast, immigration officials may also have a judicial warrant, which will be from a court, will be signed by a judge and will include a specific description of the places to be searched or the individual to be arrested. Judicial warrants are granted in the context of criminal investigations, making it less likely the schools will be presented with these. However, if presented with a judicial warrant, schools are required to comply.
What Should Schools Consider in Their Protocols?
Independent schools should consider the following in developing protocols for interactions with immigration officers:
- Alert Administrators: Ensure that security officers, front desk staff or any other employees who may be intercepting immigration officers understand that they should request that the officers remain outside, or in a public area (such as a lobby). They should then alert a member of the leadership or administrative team that immigration officials are present so that a member of the team can provide support and communicate directly with immigration officers as to next steps.
- Verify Identification and Request Documentation: Request that all who are present at the school provide their identification and credentials, including their name, badge or ID number, telephone number, and a business card, as well as any documentation authorizing their visit. Assuming the immigration officers have a warrant (administrative or judicial), it's important to carefully review of the warrant to ensure its validity and understand the school's compliance obligations. It is permissible for school employees to request that the immigration officers wait while reviewing identification and any warrants with members of the leadership team and/or outside counsel, if needed.
- Outline the Public vs. Non-Public Areas of the School: It is important to understand what areas of the campus are considered public versus non-public. In particular, assess areas such as lobbies, parking lots, gyms, playing fields, and the like. Consider whether and the extent to which those spaces are public areas, including whether it is appropriate to limit public access more generally.
- Dismissal Policies: Once an individual has left the school (and presumably the campus), they will then likely be in a "public area," meaning that they could be subject to arrest by immigration officers, regardless of the type of warrant. Relatedly, understand that Customs and Border Protection has the authority to board busses and trains within 100 miles of the United States' borders, without a warrant, and ask passengers about their immigration status or to show their documentation. Cities like New York, Baltimore, Washington DC, Chicago, and Los Angeles all fall within this zone.
Given this, and particularly as it relates to students, review of dismissal policies is important. Understand whether and when students are permitted to walk home on their own, either directly from campus or after arriving at their bus stop. Assess whether it is prudent to require students to be dismissed directly to parents or other caregivers.
- Contact Information and Communication: Schools should have current contact information for parents/caregivers, including emergency contacts as necessary. It may be necessary for schools to communicate directly with parents/caregivers regarding a visit to the school by immigration officers. At the same time, schools should ensure they can reach an emergency contact if, for example, it is suspected that one or both parents may have been detained by immigration officers. Consider, too, whether it would be necessary to coordinate with the local children's and family services agency if it is suspected that a student's parents have been detained.
- Be Cognizant of Harboring or Interfering: In developing internal protocols, ensure that consideration is given to the potential for claims that a school or school personnel have interfered with the work of immigration officers, or have harbored an undocumented individual. Understanding where those boundaries may lie in considering certain protocols or policies will be important.
The Venable Independent School Law Practice Group is prepared to help independent schools understand how to handle a visit from immigration officials. Independent schools with questions are encouraged to contact the authors for assistance.