In the first week of President Trump’s second tenure, an Executive Order was issued that greatly expanded the arrest and subpoena powers of the federal immigration services. The Immigration and Customs Enforcement (“ICE”) is tasked with, among other duties, serving arrest warrants for those individuals who are suspected of not being present in the country legally. As a result of the Executive Order, ICE agents are actively executing arrest warrants, including appearing at school districts. So, what should you do if an ICE agent arrives at your district demanding that an individual be presented to them for arrest?
ICE operates pursuant to “immigration enforcement power” which is limited by our Fourth Amendment federal constitutional right to be free from unreasonable searches and seizures of persons or objects. For this reason, ICE must comply with all due process rights of individuals, including following proper procedure when attempting to execute a search warrant or an arrest warrant.
If ICE agents appear at any school building, the building Principal should be notified, who should then immediately notify the Superintendent of Schools or designee. The Superintendent should contact the Board of Education legal counsel and as a best practice, the Superintendent should be the individual to communicate with the agents.
ICE agents do not have to be immediately admitted into the school building. Before allowing entry to the building, beyond an area where any member of the general public would be permitted to be present, the ICE agents must show proper identification. A jacket or other clothing that states “Police” or “ICE” or other such term is not sufficient as identification. Ask the agent/s for presentation of their badge and/or other official identification.
Once proper identification is established, the Superintendent must ensure that the agents possess a valid arrest warrant for a particular individual. The Superintendent can ask for a copy of any documentation be provided, which can then be sent to the Board attorney for review. A valid warrant must contain at a minimum a) the correct name of the individual sought for arrest (or a detailed description of the specific items sought if a search warrant is to be executed instead of an arrest warrant); b) correct address of either the school or the individual’s home, whichever is applicable; c) signed by a federal or State Superior Court judge (not an Immigration Court judge); and d) a specific time frame for when the search or arrest should be conducted. If any of these items are not correct on the documentation presented, the warrant is likely not valid and your compliance with it is not required.
It is important to note that all documentation presented by an ICE agent does not necessarily qualify as a valid arrest warrant. The specific language contained on the document will provide the clues necessary to identify an arrest warrant with which a district must comply. To determine what type of document you received, first scan the document for the word “warrant” or “subpoena”; usually, the document will be titled or labeled as one or the other. There are two general types of warrants utilized by ICE: a judicial warrant and an administrative warrant.
A “judicial warrant” is a formal written order authorizing a law enforcement officer to make an arrest, a seizure, or a search. A judicial warrant is issued by a judicial court. Courts that issue judicial warrants include both state and federal courts, such as “Superior Court of New Jersey” or “U.S. District Court of New Jersey,” and a judicial warrant is signed by a judge or magistrate judge. Judicial warrants must be complied with, and there may be serious consequences for refusing to comply with a judicial warrant. Note that a warrant signed by an immigration judge is not a judicial warrant.
An “administrative warrant” does not come from a court and will likely include the term “Department of Homeland Security” on Form I-200 or Form I-205. This is not a valid arrest warrant and the Superintendent does not have to allow the agents to enter the premises or to search or arrest any individual.
If the immigration authorities have a valid judicial warrant or valid judicial subpoena, they may enforce it. If it’s a valid judicial warrant, this means that the immigration authorities may enter or search the private areas indicated in the warrant and question anyone present. Note that any individual targeted by ICE for arrest is not required to respond to the agent’s questions, including their immigration status or country of origin, and the person is not required to provide any documents.
If the ICE agents are conducting a search, be aware of what is happening during it and be ready to object if the agents go beyond the scope of their authority to search places or seize items specified in the warrant. If the warrant authorizes a search only of a particular room in a school building, immigration agents may not use it as a basis for searching other areas such as offices, classrooms, or storage rooms, etc.
Always be mindful that schools have additional privacy requirements under federal law and may not release students’ sensitive information pursuant to the Family and Educational Rights and Privacy Act (FERPA), 20 U.S.C. section 1232(g), which protects the personal information and records of all students, regardless of immigration status. FERPA’s mandates must be adhered to, even in the context of a warrant or subpoena that seeks the information.
Finally, be aware that an individual seeking entry to the school building may use ruses to secure your compliance. A ruse is a strategy for ICE to get access to the person they have pre-identified and targeted for arrest. ICE’s plan in using ruses is to lure an individual into a public space or gain permission to enter the building to see if that individual is there. ICE agents are allowed and encouraged to use ruses. One common ruse is where ICE agents pretend to be local law enforcement in order to hide that they are ICE.
In summary, it is essential to question any information and documentation presented by law enforcement agents. If any such individuals presents themselves at your district, you should contact the Superintendent or designee immediately. The Superintendent should contact the Board’s legal counsel to ensure that law enforcement follows all required procedures.
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