Know Your Rights: Immigrants' Rights

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Immigration Enforcement in Sensitive Locations    

                                Schools | Health Centers | Places of Worship 

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Guidance for Schools

Relevant Laws

Family Education Rights and Privacy Act of 1974 (FERPA)

• FERPA generally prohibits schools and school districts that receive federal funds from releasing personal information contained in students' education records without the written consent of the parent or adult (if over 18) student.
• FERPA requires schools and school districts to maintain a record, within the student’s record, of all individuals, agencies, and organizations that have requested the student’s personal information.
• FERPA has two law enforcement related exceptions, including for ICE: (1) exception for subpoena, (2) exception for school officials.

Plyer v. Doe, 457 U.S. 202 (1982)

• The U.S. Supreme Court held that a state may not deny access to public K-12 education to any child residing in the state, whether present in the U.S. with or without current immigration status.

Title IV and VI of the Civil Rights Act of 1964

• Prohibits discrimination based on race, color, or national origin, among other factors, by public elementary and secondary schools, and other (private) schools and programs that accept federal funding.

4^th, 5^th, and 6^th Amendments

FAQs

Are schools required to enforce immigration laws?

• No. Schools are not required and cannot be forced to enforce immigration laws.

What protections are in place for immigrant students and their families?

• Public schools are prohibited from: asking students or their parents about their immigration status for the purposes of enrollment; revealing a student’s or their parent’s immigration status without their permission; and, requiring social security numbers from students.
• Schools are prohibited from sharing a student’s or their family’s private information contained in education records without the written consent of a parent, guardian, or the student (if over 18 years old). Exceptions include if the information is considered directory information or if a valid judicial order or subpoena is presented.

Does the Family Education Rights and Privacy Act of 1974 (FERPA) exception related to law enforcement with a valid judicial warrant allow ICE agents to obtain personal information?

• Yes, but the court order or judicial warrant should be elevated to the school superintendent and validated by the school’s district attorney. No action should be taken until these steps are taken.
• If personal information must be shared because of this exception, affected family must be alerted unless the order or warrant explicitly states that you may not.

What rights do students have?

• All students, regardless of their immigration status, have the right to enroll in and attend a public K-12 school.
• A child also has the right against self-incrimination and may not be required to provide any information that would establish his or her residency status.

Are schools public places and how does this impact immigration enforcement?

• Generally, schools are not considered public places and limitations are in place on who may enter. Schools can prevent immigration officials from entering private space if they don’t have a judicial warrant.
• Thus, it is strongly recommended that schools identify and distinguish (ideally with legal advice) their private spaces from their public ones, if any. This can be done by placing signs identifying private areas, or by placing security guards tasked with signing in visitors at main entrances.

Can an immigration official question or remove a student from school?

• Schools should not permit an immigration official to question or remove a student from school without the consent of a parent or guardian in the absence of a valid judicial warrant.
• A valid judicial warrant is signed and issued by a judge and should be reviewed by the district attorney. This is different than an administrative warrant, which is a document signed by an ICE agent.

What if a judicial warrant is presented?

• The Superintendent should consult with the school district’s attorney before taking any action.

Can immigration officials be stationed outside or near a school?

• Yes, ICE can be stationed outside of a school. If there are ICE agents outside or near your establishment, you can send a designated, well-trained staff member outside to ascertain the identity of the individuals.
• If they are able to confirm that they are immigration agents, that person can reenter the school and remind people of their rights or prepare should the agents attempt to gain entry.

Can school personnel who are aware of the undocumented status of a student or family assist the student to avoid detection?

• No, it may be a crime to take affirmative and active steps to conceal, harbor, or shield from detection an undocumented person, with knowledge of or reckless disregard for that persona’s undocumented states.
• However, school personnel are not obligated to report an undocumented student or family member to ICE, or to assist ICE in apprehending that student, and have the common law responsibility to care for children in place of their parents while children are at school. The relevant laws governing schools and students give the school the authority and the obligation to protect undocumented students, including from ICE.

Recommendations for Schools

1. Prepare and implement an internal policy to protect students from immigration enforcement.

• Internal policies should include:
  • The distinction between public and private spaces.
  • Internal protocol on the procedure to interact with immigration agents, including protocol for handing law enforcement requests.
  • Limits to what information is in the school directory, such as not requiring information on immigration status.
  • Written privacy policies regarding student’s information.
  • Designation of a well-trained individual or immigration advocacy group personnel to approach ICE agents outside or near the property.
  • Establish rapid response teams to assist students if their parent or guardian has been detained.

2. Create and disseminate educational materials and “Know Your Rights” trainings for school personnel.

• ACLU Know Your Rights: Immigration Enforcement
• Sample Presentation for School Administrators (ACLU of Nebraska)
• KYR graphics and wallet cards (ACLU)

3. Communicate with Superintendents about clear protocols for schools to follow if asked for student information or for access to a student.

• DC schools immigration guidance (DC OAG)
• Welcoming schools and safety protocol (ACLU of PA)

4. Host or provide emergency safety planning for immigrant families.

• Family Safety Plan (ILRC)

5. Compile and provide contact information for local organizations providing free legal assistance for families.

• Immigration Advocates Network

6. Advocate for model policies with your school board and local government.

• Model school board policy (NEA)
• School campus model policy (ACLU of ME)
• School campus model resolution (ACLU of ME)
• Welcoming schools and safety protocol (ACLU of PA)
• Legal rights of students letter to schools (ACLU of PA)

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Guidance for Places of Worship

Relevant Laws

The federal criminal harboring law prohibits concealing, harboring, or shielding from detection (or attempting to conceal, harbor, or shield) an undocumented immigrant, when done with knowledge or reckless regard of the immigrant’s unlawful status.

The federal criminal transporting law prohibits transporting or moving (or attempting to transport or move) an undocumented immigrant from one place to another, with knowledge or reckless disregard of the fact of the immigrant’s unlawful status, where the transportation helps the immigrant remain in the United States unlawfully.

FAQs

Are places of worship required to enforce immigration laws?

• No. Places of worship are not required and cannot be forced to enforce immigration laws.

Can immigration officials enter my house of worship without a warrant?

• ICE agents and others may enter the public spaces of a church or other place of worship without a warrant, but not private areas.
• If an ICE agent or other law enforcement officer wants to enter those private spaces, they must present a hard copy of a warrant signed by a federal judge.

• It is strongly recommended that places of worship identify and distinguish (ideally with legal advice) their private spaces from their public ones, if any. This can be done by placing signs identifying private areas, or by placing security guards tasked with signing in visitors at main entrances.

Can an immigration agent access a non-public area in a place of worship?

• No. Only if they have a valid judicial warrant, which should be reviewed and validated by legal counsel before decisions about access are made.
• A deportation order or arrest order is not the same as a judicial warrant and does not permit an agent to enter.

What if a judicial warrant is presented?

• Staff should consult with legal counsel before taking any action.

Am I required to talk to a police officer or ICE agent if they enter the congregation and ask questions?

• No. You are not required to answer any questions and you should seek advice from a lawyer before answering any questions from law enforcement authorities. You are not required to tell them anything about anyone’s immigration status.

Can immigration officials be stationed outside or near a place of worship?

• Yes. If there are ICE agents outside or near your establishment, you can send a designated, well-trained staff member outside to ascertain the identity of the individuals. If they are able to confirm that they are immigration agents, that person can reenter and remind people of their rights or prepare should the agents attempt to gain entry.

If a faith group publicly declares its place of worship as a “sanctuary” for immigrants, can that provide any additional legal protection to the congregation or to immigrants?

• No. The concept of “sanctuary” in a place of worship is not recognized by federal law and it provides no protection from prosecution for members of the congregation.

Are there any risks that could result if a faith group makes a public declaration as a “sanctuary” for immigrants?

• It depends. A declaration itself probably would not justify a prosecution, but it may put the congregation on the government’s radar.
• Importantly, most courts have found the federal harboring and transporting statutes have an “intent” requirement, which means that to convict someone, the prosecutor must prove that the person or organization providing shelter to or transporting an undocumented immigrant intended to help the immigrant to remain unlawfully in the United States.

Recommendations for Places of Worship

1. Learn the implications related to harboring and transporting laws and conduct activities based on perceived risk factors.

• Sanctuary congregations and harboring FAQs (ACLU)

2. Prepare and implement an internal policy to protect congregants from immigration enforcement.

• Internal policies should include:
  • Establish a written policy designating private areas;
  • Internal protocol on the procedure to interact with immigration agents, including protocol for handing law enforcement requests;
  • Designation of a well-trained individual or immigration advocacy group personnel to approach ICE agents outside or near the property.

3. Adopting a policy of nondiscrimination at your place of worship and of welcoming and helping persons in need.

• Policy should state that all people are welcome regardless of immigration or citizenship status, race, ethnicity, gender identity, or sexual orientation, etc.

4. Create and disseminate educational materials and “Know Your Rights” trainings for congregants and community members.

• ACLU Know Your Rights: Immigration Enforcement
• KYR graphics and wallet cards (ACLU)

5. Host or provide emergency safety planning for immigrant families.

• Family Safety Plan (ILRC)

6. Compile and provide contact information for local organizations providing free legal assistance for families.

• Immigration Advocates Network

 

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Guidance for Health Centers

Relevant Laws

The Health Insurance Portability and Accountability Act of 1966 (HIPPA)

• Governs disclosures of protected health information and prohibits medical providers from disclosing such information with some relevant exceptions: (1) there is a court order or court-ordered warrant, a subpoena or summons issued by a judicial officer, or a grand jury subpoena, (2) there is an administrative request, or (3) the covered entity in good faith believes the PHI to be evidence of a crime that occurred on the covered entity’s premises.
• Details on these exceptions here.

4th Amendment

• The Fourth Amendment is a constitutional right for all individuals to be free from illegal searches or seizures. Similar to the enforcement agency memos, the Fourth Amendment may limit immigration enforcement agents’ activities at a hospital.
• Under the Fourth Amendment, the reasonableness of a search depends on whether a person has a reasonable expectation of privacy in the areas searched.
• It is likely that a patient at a health center has a reasonable expectation of privacy in a doctor’s office or examination room because it is not a public space.
• However, a waiting area or lobby area located at a health center that is open to everyone may be afforded less protection under the Fourth Amendment.

FAQs

Are health centers required to enforce immigration laws?

• No. Health centers and healthcare staff are not required and cannot be forced to enforce immigration laws.

What obligation to health care workers have to protect patient privacy?

• Healthcare providers are legally obligated to protect patient privacy, including immigration status, and should not disclose any information without a judicial warrant, except in the case of an emergency that poses immediate harm.

Can ICE conduct a raid at a health center?

• In general, health centers must allow ICE agents in any areas where they would allow general members of the public. ICE agents may be excluded from private areas that are clearly posted and enforced for patients and family.

What are considered public spaces in health centers and how does this impact immigration enforcement?

• Public areas include lobbies, waiting areas, and any other places open to the public.
• Non-public areas of a health center include treatment rooms, inpatient units, offices, etc., essentially anything not open to the public.
• It is strongly recommended that health centers identify and distinguish (ideally with legal advice) their private spaces from their public ones, if any. This can be done by placing signs identifying private areas, or by placing security guards tasked with signing in visitors at main entrances.

What is the “plain view” doctrine and how does it apply to health care facilities?

• Officers may also look at anything that is in “plain view” in a public area. An object is in “plain view” if it is obvious to the senses. For example, an immigration official may visually inspect anything—including papers and files—that are clearly visible from the visitors’ side of the reception desk.
• Unless they have a warrant, however, they may not move an object in plain view to expose other portions of it or anything under it.
• The plain view doctrine extends to sounds within “plain hearing” as well.

Can an immigration agent access a non-public area in a health center?

• No. Only if they have a valid judicial warrant, which should be reviewed and validated by legal counsel before decisions about access are made.
• A judicial warrant must be signed by a judge, name the location where the agent is permitted to enter, and name the patient.
• A deportation order or arrest order is not the same as a judicial warrant and does not permit an agent to enter.

Should a hospital designate a specific person to interact with ICE if they arrive at a facility?

• Yes, hospitals should designate an “authorized person” or “hospital liaison” who is trained to interact with immigration agents.

What should hospital staff do if they don’t have an “authorized person” or “hospital liaison” or are waiting for them to arrive?

• Ask the agent for identification and a business card. Ask the agent to step into an office or room away from the reception area/lobby.
• The purpose is not to grant consent to the agent to access the facility, but to get the agent into a private location. Once there, you can have a conversation about what the agent wants and whether he or she has any legal documents.

How can the 4th Amendment protect people in private places in hospitals?

• Under the Fourth Amendment, the permissibility of a search depends on whether a person has a reasonable expectation of privacy in the area searched.
• The test is: at the time of the search, was it the person’s subjective, actual expectation that the place or things searched were private, and was that expectation objectively reasonable, i.e., would it be generally recognized by society?
• Your patients thus may be more vulnerable to immigration enforcement actions when they are in areas of your facility that are open to the public than when they’re in areas that are considered private.

What if a judicial warrant is presented?

• The hospital personnel should consult with legal counsel before taking any action.

What is considered protected health information (PHI)?

• Patient’s name, date of birth, other demographic information.
• Patient’s immigration status (if the hospital has this information).
• When a patient is supposed to be seen or discharged.

Does a health care facility need to collect immigration status information?

• No, there is no legal obligation for health care centers to collect immigration status information unless mandated by State laws.
• As an ethical best practice, avoid asking for patients’ immigration status or immigration-related information and, if you must collect such information for a patient, ensure that that information is secure. Avoid including that information in the patient’s medical and billing records.

Is information about whether a particular patient is admitted to the hospital considered PHI?

• Yes, but according to HIPAA, a hospital may disclose basic information, such as patient location and general condition, from its directory of patients if asked about a patient by name.

Can admitted patients decline to be listed in the hospital directory?

• Yes, while a hospital may disclose basic information from its directory of patients if asked about a patient by name, patients do have the right to decline to be listed.

What if the health facility is in a State (like Florida or Texas) where healthcare staff are required to ask patients about their immigration status?

• Healthcare staff should inform patients that they are not required to answer.

What if an ICE agent says a patient needs to be arrested to avoid imminent harm or risk?

• Without a judicial warrant, cooperation is not required.

Can immigration officials be stationed outside or near a health center?

• Yes. If there are ICE agents outside or near your establishment, you can send a designated, well-trained staff member outside to ascertain the identity of the individuals. If they are able to confirm that they are immigration agents, that person can reenter and remind people of their rights or prepare should the agents attempt to gain entry.

Recommendations for Health Centers

1. Prepare and implement an internal policy to protect patients from immigration enforcement.

Internal policies should include:

• Establish a written policy designating private areas.
• Internal protocol on the procedure to interact with immigration agents, including protocol for handing law enforcement requests.
• Prohibiting healthcare staff from asking questions about immigration status or from listing them on patient forms (if the health center is not in a State where this is required).
• Requirement to inform patients that they can decline to be listed in directory.
• Requirement to inform patients of their right to decline to answer questions about their immigration status.
• Establish a policy for staff to limit information in “public view.”
• Designation of a well-trained individual or immigration advocacy group personnel to approach ICE agents outside or near the property.
• Guidance and model policies (CA AG)
• KYR accessing health care - sample internal policies (ACLU of KY)

2. Designate an “authorized” person or “hospital liaison.”

• Designate a specific staffer (or staffers) as an “authorized person” to serve as a point of contact responsible for handling requests from and interactions with law enforcement. Train all other staff to inform immigration or other law enforcement officers that, as a matter of policy, only the authorized person may review a warrant or provide consent to their entry into private areas. Train staff to decline to answer questions unless they are authorized to do so by the authorized staff person.

3. Create a registration system for all law enforcement officials, including immigration agents.

• Upon arriving at a facility, all law enforcement officials could be required to present the following:
  • Name, address, title;
  • Purpose for entering the facility;
  • Proof of identity and/or law enforcement credentials.

4. Create a notification system for employees when there is law enforcement presence.
5. Create and disseminate educational materials and “Know Your Rights” (KYR) trainings for health care personnel.

• ACLU Know Your Rights: Immigration Enforcement
• KYR graphics and wallet cards (ACLU)

6. Post KYR materials throughout health centers.

• ACLU Know Your Rights: Immigration Enforcement

7. Host or provide emergency safety planning for immigrant families.

• Family Safety Plan (ILRC)

8. Compile and provide contact information for local organizations providing free legal assistance for families.

• Immigration Advocates Network

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