Many have expressed concerns about responding to U.S. Immigration and Customs Enforcement agents in the event they appear at schools. By now, most school administrators know that warrants are a critical item in determining whether to grant building access, what kind and how much. And, by now, most school administrators are aware that only a “judicial warrant” entitles an ICE agent to access. But what is a judicial warrant exactly, and how can administrators know if they are presented with one, or something else? This article aims to provide some clarity.
Broadly speaking, there are two types of warrants that ICE agents may present upon their arrival: judicial warrants and administrative warrants. These warrants differ in appearance and have vastly different implications.
Judicial Warrants
A judicial warrant is an official warrant issued by a judge. A judicial warrant will have the name of the issuing court at the top, e.g., “United States District Court for…” and, in the context of federal immigration enforcement, it would be signed by a federal judge, such as a United States district judge or a United States magistrate judge. Typically, the corresponding abbreviation “U.S.D.J.” or “U.S.M.J.” would sit below the signature line. This court sanctioning is an important due process protection that comes from the Fourth Amendment to the Constitution, which guards against “unreasonable searches and seizures.” The Fourth Amendment requires government authorities, such as ICE, to establish reasonableness by demonstrating to a judge “probable cause” in connection with whatever they aim to search or seize. If a judge has signed the warrant, that judge has determined that there is “probable cause” for the authorities to execute the warrant by conducting a search or seizure, which itself is tempered with aspects of reasonableness.
A judicial warrant will specify whom the government official may seize or what premises it may search. A search warrant will further indicate a timeframe within which the search must be conducted, a description of the search area, and the items to be searched for and seized. If ICE has a signed judicial warrant that, for example, specifies a place to be searched or a person to be arrested/detained, it is lawful for ICE to enter the designated premises to search for and/or arrest/detain the individual identified in the warrant.
Importantly, while the contents of a warrant authorize access, they also establish limitations. ICE is confined to the grants of the warrant, and ICE agents are not permitted to go beyond them. This means, for example, that ICE may only arrest/detain the individual named in the warrant or search the location specified in the warrant. Therefore, if ICE presents to a school with a signed judicial warrant, administration should take time to evaluate it, with the support and consultation of legal counsel, and administration should prepare to cooperate in the manner specified if ICE is appropriately authorized to proceed.
Over the course of any exchange, personnel should avoid sharing student information with ICE, even in the face of a judicial warrant, as information sharing is not required. The Family Educational Rights and Privacy Act only permits school officials to disclose educational records and information in the absence of prior written consent, when there is a court order, subpoena, or a health or safety emergency. If the ICE agent does not have a court order or subpoena, then FERPA prohibits school officials from disclosing student records and information, absent prior parent or adult-student consent. Although a judicial warrant is a court issued document, it is neither a court order nor a subpoena; therefore, it does not permit student record or information disclosure. If, however, an ICE agent does have a court order or subpoena in seeking student records or information, the school must make reasonable efforts to notify the parent or adult-student prior to disclosure.
Administrative Warrants
A more common warrant type that ICE officials carry is an administrative warrant. An administrative warrant is very different in scope and effect from a judicial warrant. ICE agents are not required to establish “probable cause” to convince a judge to sign the warrant. Rather, ICE agents produce their own administrative warrants, such as a Form I-200 Warrant for Alien Arrest. An administrative warrant will bear a “Department of Homeland Security” indication rather than the name of an issuing court; and it will be signed by an ICE agent, rather than a judge. Administrative warrants do not authorize ICE agents to enter premises without owner/operator consent due to Fourth Amendment protections. Should an ICE agent present an administrative arrest or removal warrant, school officials are not required to permit the agent to enter any non-public area of the premises to locate any specific individual. Given the security measures now in place in schools, any interior part of a school building (e.g., beyond the lobby or main office) would generally be considered “non-public.” However, in the event an ICE agent appears with an administrative warrant and specifically claims and/or articulates exigent circumstances, which function as an exception, school officials should comply with ICE’s request to execute its warrant.
Visit pbnlaw.com/ICE-Warrants-What-Your-School-Leaders-Need-to-Know to see an example of a judicial warrant and an administrative warrant.
School officials are advised to develop preparedness plans and ensure that employees are trained on how to handle a visit from ICE in the event one should occur.
Janelle Edwards-Stewart is an attorney with Porzio, Bromberg & Newman, P.C. She provides comprehensive counsel and defense to public and private education entities on a range of issues, including harassment and discrimination, student and employee discipline and support, board ethics, and various other matters. A former educator, she is also a sought-after speaker and trainer on education and employment law topics.
Rachel E. Fairley is an attorney with Porzio, Bromberg & Newman, P.C. She has dedicated her career to the representation of public and private educational entities, providing counseling to school boards and private schools on a wide range of issues. She has extensive knowledge of special education, school ethics, personnel and student matters.
