In the wake of several executive orders on immigration, ICE—the federal agency responsible for enforcing the nation’s immigration laws—has ramped up enforcement activities. As a result, local public school districts and health care providers in Massachusetts have asked the Attorney General about their rights and obligations with respect to the undocumented students and patients they serve. On May 22, 2017, the AG issued comprehensive guidance to answer their questions. The guidance for local public school districts is available here, and the guidance for health care providers, here.
The guidance addresses two major issues. First, to what extent can ICE access schools or health care facilities to conduct enforcement activities, such as interviews, searches and seizures, and detentions? Second, to what extent can ICE request student and patient information that might relate to citizenship or immigration status?
On access, the guidance explains ICE’s policy against conducting enforcement activities at certain “sensitive locations,” such as schools and health care facilities. This policy remains in effect, the guidance notes, and the AG has no reason to believe that ICE intends to change it. Should ICE decide to seek access despite its policy, the guidance offers several suggestions. Contacting legal counsel is an important first step. For schools, the guidance also recommends contacting parents and the superintendent. One theme is the need to verify whether ICE is acting under a judicial warrant—that is, one signed by a judge or a court officer. The guidance contrasts this with an administrative warrant—one signed by an ICE official—which may be insufficient to permit ICE access to conduct enforcement activities.
On requests for information, the guidance reminds school districts of their obligations under FERPA, and health care providers of their obligations under HIPAA, as well as applicable state laws. FERPA generally requires written parental consent before a school can disclose students’ personally identifiable information. Schools may also have to disclose information to comply with a court order or subpoena. However, the guidance notes, the school may challenge an order or subpoena in court, rather than immediately comply. Under HIPAA, the guidance notes that ICE may compel the production of certain health records under “certain limited circumstances.” It suggests that the provider review its policies and procedures, which may require asking that ICE obtain a court order or warrant. The guidance reminds both schools and providers that in many cases they are under no obligation to collect information on citizenship or immigration status from students and patients.
