What to Do if ICE Shows Up

Introduction

On his first day in office, President Donald Trump signed a flurry of Executive Orders ramping up immigration enforcement.¹ The next day, the U.S. Department of Homeland Security (DHS) rescinded previous guidance that protected “sensitive locations” such as schools, hospitals, and religious buildings, thereby eliminating their semi-sanctuary status. These changes mean that hospitals, clinics, and health care providers need to prepare for U.S. Immigration and Customs Enforcement (ICE)  activity in their facilities.² Health care providers should develop a plan that guides employees to meet their lawful obligation not to obstruct ICE enforcement while protecting employee and patient rights and facilitating continuity of care (an ICE Response Plan).

Background

Beginning in 2011, DHS policy limited immigration officials’ authority to conduct arrests, interviews, searches, and surveillance at “sensitive locations.”³ These locations included: schools; hospitals; religious buildings; funerals, weddings, or other public religious ceremonies; and public demonstrations such as marches, rallies, or parades. Enforcement actions at sensitive locations were off limits without prior approval from a senior DHS official or a specific exigent circumstance warranting immediate action. In 2021, the Biden administration issued a memorandum expanding the protections afforded by this policy by broadening the definitions of “enforcement action” and “protected area” (previously termed “sensitive location”).⁴ The 2021 memorandum also limited enforcement actions “near” protected areas.

On January 21, 2025, Acting DHS Secretary Huffman announced that DHS was rescinding Biden administration guidelines that “thwart [ICE and U.S. Customs and Border Protection (CBP)] law enforcement actions in or near so-called ‘sensitive’ areas.”⁵ While a full memorandum has not yet been published, Acting Secretary Huffman stated that “[c]riminals will no longer be able to hide in America’s schools and churches to avoid arrest.” Accordingly, DHS will no longer recognize certain areas as protected and has lifted all policy-based restrictions on enforcement actions in these areas.

The Trump administration seeks not only to ramp up enforcement of immigration laws, but also to pressure recipients of federal funding into assisting the federal government in its enhanced enforcement. Specifically, Section 19 of “Protecting the American People Against Invasion” instructs the Attorney General and Secretary of Homeland Security to review and, if appropriate, audit all grants or agreements providing federal funding to non-governmental organizations supporting or providing services, either directly or indirectly, to removable or illegal aliens.⁶ This review is to ensure that such agreements are “free of waste, fraud, and abuse, and that they do not promote or facilitate violations of our immigration laws.”

What Does This Mean for Staff and Patients at Health Care Facilities?

While areas formerly designated as “protected” no longer receive special protection from ICE enforcement as a matter of federal policy, basic constitutional rights still apply in the context of an ICE raid or search. Specifically, the Fourth Amendment protects individuals from unreasonable searches and seizures, and the Fifth Amendment provides the right to remain silent when confronted by law enforcement.

The Fourth Amendment protects against unreasonable searches of private spaces. Absent a well-recognized exception, ICE agents will need a judicial warrant to enter private areas where individuals possess a “reasonable expectation of privacy.”⁷ In general, interior areas such as patient rooms, nursing stations, and those marked “private” with a sign are considered private. On the other hand, law enforcement is free to search open and public spaces such as lobbies and waiting areas.

Importantly, ICE agents conducting immigration raids customarily arrive armed only with administrative warrants, which do not give ICE the authority to enter private spaces or obtain evidence.⁸ To go beyond the waiting area and into any private space, ICE agents must have a judicial warrant signed by a federal judge or meet one of the warrantless search exceptions. If agents arrive with only an administrative warrant, the point-of-contact is entitled to refuse agents’ entry to private spaces.

There are a few important differences between judicial and administrative warrants that should be visible on the face of the warrant.⁹ Common characteristics of administrative warrants include: the seal or label of an agency such as DHS, the signature of an immigration officer or immigration judge, a title that contains the word “alien,” and a statement that the authority to issue the warrant comes from immigration law. By contrast, a judicial warrant will be issued under the authority of a federal court, signed by a federal judge or magistrate, and will state the address of the premises to be searched and the time period in which the search must occur.

There are exceptions to the Fourth Amendment that allow agents to enter and search private spaces without a judicial warrant. Agents may enter private spaces without a warrant if they obtain voluntary consent from an individual with apparent authority to consent to the search,¹⁰ or if an emergency or “exigent circumstance” requires immediate action.¹¹ Staff should be aware that agents may develop the “probable cause” showing necessary to obtain a judicial warrant, or to justify a finding of exigent circumstances, from the lobby, waiting room, or other locations they are legally authorized to be in. Agents may gather information or evidence to support a “probable cause” finding by questioning individuals present in public spaces or by observing persons and objects in “plain view.”

With regard to arrests, ICE agents may arrest a person if they have a valid arrest warrant or if the person is in a public space and agents have probable cause that the person is both “removable” from the United States and likely to escape before a warrant can be obtained.¹² The valid arrest warrant, if executed in a public place, can be either a judicial warrant or administrative warrant. But only a judicial arrest warrant may authorize agents to enter a private space for the purpose of executing the warrant; an administrative arrest warrant cannot by itself give ICE agents authority to enter private spaces.

Under the Fifth Amendment, both staff members and visitors at health care facilities have a constitutional right to remain silent and cannot be punished for refusing to answer questions asked by law enforcement.¹³ Some states require individuals to provide their name if asked to identify themselves, but individuals are not required to answer other questions. It is important that staff and visitors are aware of their right to remain silent as volunteered statements can form the probable cause basis for a search or arrest.

Creating an ICE Response Plan

Health care providers can take several steps to prepare for potential immigration enforcement actions at their facilities. These steps should be documented in an ICE Response Plan.

Train and Designate Points of Contact

Providers should designate and train specific individuals to be the point-of-contact with law enforcement officials. These individuals should be responsible for meeting with agents, documenting encounters using video and written notes, and scrutinizing the scope of any warrants provided. Designated individuals should be given exclusive authority to consent to searches of private areas. Non-designated staff should be instructed not to answer questions about patients and to refer agents to designated staff. Designated individuals should also contact an attorney who can provide assistance throughout the encounter.

In the event of an ICE visit, staff on hand should alert all co-workers immediately. Staff should remain respectful and should not obstruct lawful ICE enforcement activity. Physically impeding or providing false information to law enforcement can lead to prosecution. The right to refuse to answer a question does not include a right to give a false answer. Staff should aim to protect patients’ privacy rights by disclosing patient information only when required by law.

Designate Private Areas

Given the distinction between private and public spaces in terms of Fourth Amendment protection, health care providers should establish a written policy designating private areas of their facilities and requiring that clearly visible signs be posted setting off the private spaces. In creating such a policy, providers should remain conscientious of what remains in “plain view” of the public areas of their facilities.

Review Data Collection Policies

Health care providers may wish to re-evaluate their data collection policies. While there is no broad, affirmative obligation for providers to inquire into patients’ immigration status, Florida and Texas currently require hospitals to ask patients for this information.¹⁴ Importantly, a patient’s refusal to disclose their status does not affect providers’ obligation to provide care under the Emergency Medical Treatment and Labor Act and other applicable laws.¹⁵ Additionally, providers may be required to ask for patients’ immigration status for the purpose of Medicaid enrollment. Even where required to inquire about status, hospitals should evaluate their data retention policies to determine how long they must retain the information.

The Health Insurance Portability and Accountability Act and its implementing regulations (collectively HIPAA) prohibit covered entities (which includes most health care providers) from using or disclosing patients’ protected health information (PHI) except as specifically permitted by HIPAA. HIPAA permits disclosure where a patient provides written authorization;¹⁶ it also permits disclosure without patient authorization in various other instances, most of which relate to enumerated “public purposes.”¹⁷ Standing alone, information related to a patient’s immigration status is unlikely to be PHI. However, if this information is created, received or maintained by a covered entity, such as a hospital, it will likely be PHI, and therefore subject to HIPAA’s constraints, including restrictions on disclosure.¹⁸ As such, providers would not be permitted to disclose PHI, absent patient authorization, unless an exception applies, e.g., if authorities have followed the appropriate process and obtained a valid judicial warrant or other judicial court order, or the disclosure meets the exception for disclosures for law enforcement purposes.¹⁹

Educate Patients

Health care providers can take steps to educate and support patients. Providers can distribute “Know Your Rights” posters and other materials to inform patients of their right to refuse to answer questions from law enforcement and to insist on having a lawyer present during questioning.

Conclusion

While recent DHS policy changes alter enforcement boundaries, they do not alter fundamental law governing individual rights in interactions with law enforcement. In many instances, staff at formerly protected areas can apply the same practical steps developed for handling local police or other law enforcement presence at the workplace to any future ICE or CBP visits. If you have any questions about the content discussed here or would like more information, please reach out to one of the authors of this Advisory or to your existing Arnold & Porter contact.

© Arnold & Porter Kaye Scholer LLP 2025 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.