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FEBRUARY 3, 2017 INDIA ABROAD 37 IMMIGRATION
By Allen E. Kaye
The third installment of answers to questions involving
immigration under a new administration.
How have institutions responded to calls for sanctuaries
Immediate institutional responses typically have included reaffirming institutional or community principles
or values, underscoring policies of inclusion and free expression, expressing continued support for DACA, and
committing to support community members as much as
possible while complying with the law. Some schools have
stated that they will not voluntarily (without a court
order) assist the federal government in immigration enforcement.
Many sanctuary campus petitions incorporate uncontroversial demands for support and counseling to students and other undocumented community members. It
is likely that institutions already have resources and practices in place that may align with such demands. Quickly
and clearly organizing, cataloging, and publicizing them,
as well as basic informational and “know your rights” materials, is one sensible immediate and beneficial response.
Anticipating—and having clear, consistent, and accurate
and ready answers to—questions about policies and practices is important. This can be a challenge on a campus
with several schools and distinct student populations (
undergraduate schools, PhD candidates, business schools,
medical schools, etc.).
As suggested below, understanding campus police department policies and practices — and being transparent
about them where appropriate — should not be overlooked. For example, it may be helpful to understand and
whether, when, and how fingerprints taken by campus or
local law enforcement will be added to the national fingerprint that is maintained by the Federal Bureau of Investigation, since such fingerprints are likely to be
forwarded to the DHS/ICE fingerprint database. State law
generally determines the circumstances when law enforcement, including campus police departments, may
fingerprint individuals; and those laws evolve.
Are campus chapels/houses of worship sanctuaries?
Again, “sanctuary” has no clear, consistently understood and applied meaning. At some institutions students
have called for establishing campus chapels as sanctuaries
from law enforcement officials for those facing deportation. Providing church sanctuary for criminal offenses
was abolished by statute in England in the seventeenth
century and never became part of the common law in the
United States. There is no federal statute or judicial recognition of houses of worship, or particular portions of
them, as sanctuaries.
While the notion of sacred places as sanctuaries in this
country derives from custom, rather than law, and houses
of worship enjoy no immunity from prosecution, there is
a general law enforcement tradition to forgo entering
churches to arrest non-violent criminals. Thus, some congregations have historically publicized their houses of
worship as sanctuaries for those fearing deportation.
What about institutions asked to pledge non-cooperation?
As a general proposition, the law imposes no affirmative
duty on individuals or organizations to inform law enforcement authorities of illegal activity. In many circumstances it is reasonable and appropriate to have, and abide
by, institutional policies that require an individual's consent, or receipt of a subpoena or warrant before complying
with requests by authorities for non-public information
about campus community members. Indeed, federal and
state privacy laws (such as those relating to education and
medical records) may compel such a response.
However, some sanctuary campus petitions ask institutions to categorically refuse to cooperate with federal law
enforcement; some propose not allowing officials to enter
campus property unless they have a warrant, court order,
or other lawful process. Such requests may run counter to
applicable aspects of current and evolving federal or state
laws, with particular challenges for public institutions.
Also, they could risk termination of federal and state aid
to institutions. And, as suggested below regarding campus
police department discretion, they may conflict with campus law enforcement obligations, including on private
campuses with sworn officers.
The Immigration and Nationality Act (INA) says that “a
Federal, State, or local government entity or official may
not prohibit, or in any way restrict, any government entity
or official from sending to, or receiving from, [DHS, ICE,
or CBP] information regarding the citizenship or immigra-
How should institutions consider requests by federal offi-
tion status, lawful or unlawful, of any
individual.”5Whether this prohibition would, in fact,
apply to a particular institution, just its campus police de-
partment, or not apply at all would depend on the facts,
such as whether the institution is public or private, and
the legal status and authority of its campus police. 6 In
terms of consequences for violation of this federal prohi-
bition, to date the focus has been on revocation of a state
or local entity's entitlement to certain federal funds under
the Edward Byrne Memorial Justice Assistance Grant Pro-
gram and the State Criminal Alien Assistance Program.
cials for records identifying undocumented students or
other community members?
As a general proposition, colleges and universities have
no obligation to comply with a request by officials for in-
stitutional records in the absence of a subpoena or war-
rant. Indeed, the Family Educational Rights and Privacy
Act's (FERPA) basic premise is that a valid legal subpoena,
warrant, or court order typically is required for noncon-
sensual access to a student's education records. However,
exceptions exist which explicitly allow for access to some
students' records. To note just a couple:
The Student and Exchange Visitor Program (SEVP) re-
quires that institutions participating in SEVP are subject
to on-site review at any time. An ICE Field Representative
visiting such a campus has the authority to ask for infor-
mation about students on temporary student and training
visas (F and J) administered by or present at the institu-
tion, but currently not about DACA or undocumented stu-
dents. While FERPA restricts access to defined “education
records” (but not to employee records) absent a student's
consent, students on temporary F or J visas have largely
waived their rights under FERPA through the visa process.
Also, institutions agree to grant access to certain employ-
ment-related information by signing H-lB, O-l, and other
temporary visa petitions.
The USA PATRIOT Act (post-9/11 legislation) allows exceptions to FERPA to enable nonconsensual disclosure of
education records, and personally identifiable information contained in such records, where there is a judicial
order based on the government's assertion of terrorist activities.
It would be prudent for institutions to review applicable
policies and protocols to assess how they may be interpreted and applied in the future to requests for information from government officials, and to the protection of
campus community members' privacy. Campus administrators who are likely to be the first points of contact by
immigration officials should be fully aware of institutional
philosophy and policy, and know where to turn for immediate advice and direction regarding nuanced situations.
What about calls for institutions to preclude ICE officials
and agents from coming on campus?
As a legal and practical matter an institution may be unable to prevent ICE officials and agents from coming onto
campus without a warrant. Significant portions of virtually every college and university campus—public and private—are open to anyone. While these accessible spaces
can be made subject to reasonable time, place, and manner restrictions, it is difficult to imagine a court finding a
targeted restriction against federal immigration officials
to be reasonable. By contrast, restricted buildings or other
areas (such as dormitories and other living spaces) would
carry legitimate privacy interests, and therefore it could
be appropriate to insist on an immigration warrant for access. Here again, however, state and local law, as well as
existing cooperation agreements between campus police
and external authorities should be assessed.
(To be continued)
Allen E Kaye, a Phi Beta Kappa graduate of Queens College of the City of New York, Columbia Law School (JD)
and New York University Law School (LLM), is the President of the Law Offices of Allen E Kaye and Associates
and Of Counsel to Pollack, Pollack, Isaac and DeCicco.
He is a past National President of the American Immigration Lawyers Association and Co-Chair of the Immigration Committee of the Queens County Bar
Association. He has been selected by Martindale-Hubbell as a 2014 “Top Rated Lawyer” in the practice
of Labor and Employment (for Immigration) and the
2017 Edition of The Best Lawyers in America.
Questions for publication may be sent to Kaye at 225
Broadway, Suite 307, New York, NY 10007, or by email
at AllenEKaye5858@gmail.com or email@example.com
Immigration: A Post-Election Q&A - 3