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What to Do if ICE Comes A-Knocking…
******Federal agencies like U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Patrol (CBP) have traditionally refrained from engaging in immigration enforcement activities at schools and educational activities absent prior approval or exigent circumstances. In 2021, ICE issued a memo that specified that schools should generally not be sites where arrests, civil apprehensions, searches, inspections, seizures, service of subpoenas, or interviews occur. But the Department of Homeland Security has already rescinded the 2021 memo, instead opting to allow law enforcement to use “common sense” when carrying out immigration actions in and around schools. Given the many legal issues involved and the speed at which things are moving, schools need a plan of action if ICE, CBP or any other law enforcement officials come to campus with demands that school personnel cooperate in immigration enforcement activities.
Here are the things you should be thinking about now regarding immigration issues.
1. Understand what information relevant to immigration you currently collect and maintain.
*******Schools should take stock now of what personally identifying information they have for students that may be relevant to immigration enforcement initiatives, such as race and ethnicity data and birth certificates. Be sure that school staff are aware that this information cannot be used to prevent any student, regardless of their immigration status, from enrolling in and attending a K-12 public school under the U.S. Supreme Court case Plyler v. Doe, 457 U.S. 202 (1982).
2. Consider developing a communication plan for concerned students and community members.
*********School leadership may want to communicate to all students, parents, and community members what the school will do in the event it becomes subject to an immigration enforcement action. While the method and detail of the communication may vary depending on the population, it should specify that the school will: (1) not proactively share any information about students with any law enforcement official connected to an immigration enforcement action, (2) only cooperate with immigration officials if a judicial warrant or subpoena mandates it, and (3) inform any students and families impacted by a judicial warrant or subpoena immediately, unless legally prohibited from doing so.
**********Schools may also want to provide contact information for immigration advocates and organizations that can provide more information and support to vulnerable populations.
3. Identify a discrete group of school personnel who will be the primary individuals interacting with law enforcement during an immigration enforcement action.
**********Because of the chaos that often ensues when law enforcement arrives on campus, schools should name a select few individuals – preferably in leadership – that will liaise with immigration officials. Likely candidates at the school level include the Principal/Head of School, Vice or Assistant Principal, and Head of HR or equivalent (if you have such a position). All school personnel should understand that those identified individuals should be contacted immediately for all immigration-related matters.
4. Develop a clear action plan for responding to law enforcement demands for access to documents or persons on campus.
**********There is no law that requires or encourages schools to be accessible to immigration officials for enforcement purposes. Schools should do the following if they find themselves subject to immigration enforcement actions.
a. Don’t panic and alert the appropriate individuals.
***********Ask any immigration official or law enforcement personnel to wait in a publicly accessible area (like the front office) and clarify that they are not permitted to enter any other part of the school absent an exigent circumstance while you locate the school personnel responsible for handling such requests. Exigent circumstances are emergency situations that require immediate action by law enforcement, like hot pursuit of a fleeing suspect, preventing harm to people, or destruction of evidence. If law enforcement claims that an exigent circumstance exists, allow them to proceed, but thoroughly document what is shared with the school.
***********Ask for identification and write down the person(s) name, agency, badge number and contact information. Locate the applicable pre-identified school individual. Wait with the law enforcement official and ensure that they do not speak to anyone or do anything, assuming no exigent circumstance.
b. Clarify the immigration official’s purpose, ask for documentation authorizing the request, and determine if compliance is mandatory.
***********Schools are permitted to comply with immigration enforcement actions only if they are presented with a valid warrant or subpoena. A warrant or subpoena must have the name of the issuing court and be signed by a judge. Official-looking documents bearing the name of a particular federal agency, like the U.S. Department of Homeland Security or ICE, are not valid legal documents that entitle immigration officials to anything, unless they are reviewed and signed by a judge. School personnel should evaluate any document presented by law enforcement personnel closely and take the time to clarify that a judge from a recognized court has signed it. When in doubt, school personnel should consult with legal counsel about what is required and any applicable deadlines.
c. Escort the law enforcement individuals off campus.
***********Immigration personnel should not be permitted to loiter on campus after their business is concluded. Ensure that all law enforcement personnel depart campus promptly and remain off campus.
d. Alert appropriate school personnel and legal counsel.
***********Regardless of the situation, your school’s most senior administrator and your legal counsel should be contacted as soon as practicable.
e. Document, document, document!
***********During and immediately following any interaction with immigration officials, schools should document: (1) school officials who were present and involved, (2) the time the immigration officials arrived, (3) what was requested, (4) whether a valid document was provided and what it sought, (5) what school officials did in response, (6) what time immigration officials left, (7) when school personnel and legal counsel were informed, and (8) any other notable aspects of the interaction, like whether there was an alleged exigent circumstance. Schools should store such documentation in a predetermined file.
5. Consider whether to implement on-line instruction if student attendance is impacted by rumors of potential immigration enforcement actions.
***********To address concerns about student absenteeism related to anticipated immigration enforcement, schools may want to consider implementing remote instruction or other alternate instruction methods authorized by an Instructional Time Model pursuant to A.R.S. § 15-901.08 (and “ITM”). Schools should keep in mind that adoption of alternative instructional models requires the approval of ASBCS for online instruction or the submission of an approved ITM plan to ADE.
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***********We know that each school’s concerns about immigration enforcement actions will differ depending on their student and parent population. There continue to be many unknowns about how any enforcement actions will be carried out on campuses, and we will be monitoring the situation across the country and sharing any updates with you.
***********In addition, we have prepared an Immigration Toolkit that includes a flowchart that details what to do if ICE comes on your campus, a list of recommended procedures, sample talking points for parents/students/community members, examples of valid warrants and subpoenas, and other helpful materials. The Toolkit can be purchased for $695 and includes an hour of consultation with Vidula Patki, who is leading our work on these issues. Clients who purchase the Toolkit will also be automatically updated by our team on time-sensitive developments regarding immigration matters. Please let Vidula know (vpatki@omlaw.com) if you are interested or if you have any other questions.
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