There have been few occasions in recent history when immigration has been such a hot topic. The current administration has directed Immigration and Customs Enforcement (ICE) to increase enforcement efforts against removable aliens, including the hiring of more enforcement agents. As enforcement efforts grow, schools must be prepared for the possibility of campus visits from federal immigration enforcement officials. While the amount of notice an institution may have prior to a site visit will inevitably vary, schools should take action now to become informed about their obligations to provide documentation to federal officials, and to develop standard procedures for handling requests for access to documents and students themselves.
1. Know Your Agency
The Department of Homeland Security (DHS) charges ICE with apprehending and removing individuals who are unlawfully present in the United States. It is most likely that a campus visit would be from ICE agents, although Customs and Border Protection (CBP) may also seek student information by visiting school campuses. It is important to recognize that ICE and CBP officers’ enforcement powers stem from civil, and not criminal, authority. Therefore, if an ICE or CBP officer presents a warrant, it is most likely an administrative warrant, which is distinct from a court-ordered warrant used in criminal law enforcement.
2. Know Your FERPA
The Family Educational Rights and Privacy Act (FERPA), which applies to public schools and state or local education agencies receiving federal education funding, prohibits the release of a student’s education records without prior consent. If an ICE officer requests student education records that fall under FERPA, there is no clear exception authorizing the release of this information merely because of the source and nature of the request.
3. . . .And Your FERPA Exceptions
For international students on F-1, J-1 or M visas, there are specific requirements for schools to provide certain information upon request from ICE. FERPA permits schools to comply with this type of information request; however, the DHS regulations requiring schools to comply list specific categories of information that must be provided. Schools must be familiar with these categories to avoid inadvertently violating FERPA by responding to an overly broad request for information. Additionally, ICE’s requests for information must be made to the school’s Designated School Official (“DSO”). A request made to another school administrator does not meet the FERPA exception.
4. Know Your Warrants
FERPA also provides that schools must comply with judicially-issued warrants and subpoenas for student records that would otherwise be entitled to FERPA protection. However, as noted above, ICE frequently presents administrative warrants requesting information. The FERPA warrant exception does not apply to administrative warrants, which are not court-ordered. Therefore, a school cannot provide confidential education records requested by an administrative warrant without running afoul of FERPA.
5. Develop Training Procedures and Clear Policies That Involve Legal Counsel
Recognize the fact that a campus visit from an ICE officer may seem frightening to staff, and as noted above, there are many factors to consider when determining how to proceed. Therefore, it is crucial that colleges develop standard procedures and train staff on how to respond to an ICE visit. These procedures should include a clear chain of notification and command, under which all requests for information, including all documentation and warrants provided by the ICE officer, are immediately sent to legal counsel who can determine whether and how to comply. A school’s procedures should expressly prohibit personnel from providing any information whatsoever prior to receiving instructions from legal counsel.
Most importantly, schools must ensure that there is open communication and coordination between administrators, international student offices, and legal counsel. Balancing the need to comply with immigration law and FERPA while ensuring that students feel secure on campus and that school operations are not unnecessarily disrupted may seem daunting. Schools can put themselves in the best position possible to respond to these competing interests by being proactive in developing guidance, training and procedures for DHS visits.