What are Protected Areas Policies? Since 2011, the Department of Homeland Security (DHS) has maintained standing guidance requiring Immigration and Customs Enforcement (ICE) to refrain from immigration enforcement actions in certain areas (previously known as “Sensitive Locations”). In 2021, the Biden administration issued a new memo expanding the definitions of these areas, which included schools (including preschools, K-12 schools, and higher education institutions); healthcare facilities (including hospitals, doctor’s offices, and community health clinics); places of worship; places where children gather (including playgrounds and bus stops); social services establishments (such as domestic violence shelters and food pantries); disaster/emergency response sites (including evacuation routes); weddings, funerals, and religious ceremonies; and parades, demonstrations, and rallies. The memo also specified that officers should refrain from enforcement actions “near” these protected areas, including surrounding areas like sidewalks, entrances, and parking lots. Lastly, the Biden administration issued a separate memorandum limiting the circumstances in which immigration enforcement actions could take place in courthouses. The Trump Administration has not clarified if all three memos were rescinded—or if it will issue a new one—though it has stated explicitly that ICE could take enforcement action in schools and churches.

What does rescission of the Protected Areas memos mean for immigrant communities and public health and safety? The rescission is a fear tactic by the Trump administration to make immigrant communities feel less safe even in spaces that are at the heart of a civil society. These are areas and institutions that individuals, families, and children rely on for basic services and survival needs. The rescission will have a chilling effect on immigrant communities now afraid to access medical care, education, childcare, and places of worship for fear that they or a loved one will be ripped away from the community.

What legal protections remain in place after rescission of the memos? All people in the United States have certain rights regardless of immigration status. However, now that the protected areas (aka “sensitive locations”) and courthouse memos have been rescinded, these areas no longer enjoy special protections from ICE enforcement. Instead, individuals will need to rely on basic constitutional protections in these spaces. Specifically, the Fourth Amendment protects all individuals from unreasonable searches and seizures, and the Fifth Amendment ensures the right to remain silent when confronted by law enforcement. Certain states and localities have enacted laws and policies that limit cooperation with federal immigration enforcement, though they do not prevent ICE from taking enforcement actions in these areas. Note an important caveat to the above protections: within 100 miles of a land or sea border—where two thirds of the US population reside—Customs and Border Patrol (CBP) has special legal authority to board buses, trains, and boats in order to search for individuals without lawful status. Although individuals in these zones retain the right to remain silent, their Fourth Amendment rights are reduced by the federal laws that allow CBP to conduct these searches.

Will ICE still need a warrant to enter areas that were previously protected? Yes, but only for places within those areas that are considered private, since the Fourth Amendment protects areas where people have a “reasonable expectation of privacy.” In the context of protected areas, areas open to the public such as lobbies, waiting areas and parking lots are considered public, while interior areas and those marked “private” with a sign are considered private. For immigration enforcement to search or enter a private area within a formerly protected area, the Fourth Amendment requires a valid judicial warrant signed by a federal judge unless staff at those areas consent to the search. 2 Note that the same caveats as above apply to formerly protected areas within 100 miles of the border

Recommendations for school administrators and staff:

• Identify any applicable federal, state, and local laws and policies that protect immigrant students and ensure staff are trained on them. For example, teacher and administrator associations, school districts, and other educational institutions and organizations can host trainings on the laws and policies that protect students’ data, such as the Family Educational Rights and Privacy Act (FERPA).

• Re-evaluate data collection practices. Schools should think through and limit to the extent possible the information that is collected from students and their families, for what purpose, under what protections, and who has access. Avoid collecting information about immigration status, which has a deep chilling effect for families and possibly violates Plyler v. Doe, the Supreme Court decision guaranteeing access to K-12 public education for all children regardless of immigration status. See NILC’s resource on Plyler & Data Collection for more information.

• Share “Know Your Rights" information widely. For example, promote the creation of Family Emergency Plans.

• Create or update School Resolutions. Such resolutions can play an important role in creating a safe environment of trust. Resolutions can affirm your school’s commitment to support immigrant families, list what services and supports will be provided (e.g., legal services) in case of an immigration enforcement action, and describe what policies and protocols are in place to protect them. Such resolutions can also explicitly share with the community the school’s preparedness plan if immigration law enforcement shows up at or near a school.