Member Resource: Immigration Enforcement and Rental Housing
This member resource is authored by Sheppard Mullin and more information on the authors is available at the end of this resource. Please note that this document is not a substitute for legal or operational advice, and the National Apartment Association (NAA) recommends contacting qualified legal counsel regarding ICE enforcement activities specific to your properties.
On January 20, 2025, the Trump Administration, via Immigration and Customs Enforcement (ICE) under the Department of Homeland Security (DHS), began immigration enforcement activities, including operations at rental housing communities. The Administration has stated that its initial focus will be on the removal of non-citizens with criminal convictions, beefing up border enforcement and terminating humanitarian parole programs. It is still uncertain how widespread such enforcement actions will be, and many apartment owners and operators are concerned that they could be pulled into the fray.
What follows is general information on how to interact with ICE agents if they show up at your property, including the distinction between criminal and civil/immigration warrants, a decision tree to guide your actions and answers to some frequently asked questions. As the situation continues to evolve, this member resource will be updated.
Commercial Property Owners Right to Privacy
Property owners and commercial establishments have a right to privacy, and their employees generally do not have to allow ICE onto their facility. If ICE wanted to take custody of someone, ICE agents would have to wait outside on public property, unless the property owners allowed them in. However, failure to cooperate could lead to antagonism and further enforcement efforts on the part of ICE.
Understanding Residents’ Rights
Much like property owners, renters and their families have a right to privacy and generally do not have to allow ICE into their homes. In the event ICE wanted to detain someone, they would have to wait outside on public property unless the property owners allowed them in. Regardless of their citizenship, renters and their families also have the right to remain silent and do not have to answer questions from ICE unless they choose to do so. However, their refusal to engage with law enforcement may result in more visits to the rental community.
Differences Between Civil and Criminal Arrest
Immigration is a civil matter, including for individuals who entered the U.S. illegally or overstayed their authorized stay. If an Immigration Judge already ordered someone to be removed from the U.S., ICE can issue a civil administrative warrant for their arrest, detention and eventual removal. But, even with that warrant, ICE agents cannot enter private property without permission.
However, ICE sometimes obtains a criminal warrant by asking the Department of Justice (DOJ) to seek one from a judge, for example, if the individual has been arrested for another crime such as drug trafficking or if someone was previously removed from the U.S. pursuant to a removal order and has illegally re-entered the U.S. In the rare instances where the DOJ does prosecute and obtain a criminal warrant, ICE may serve that warrant, and for that they must be allowed entry on the property.
Identifying Warrants
The best way to determine whether a document is a civil or criminal warrant is to look at who signed it. If it has been issued by a court and signed by a judge, then it is a criminal warrant. If it has been issued by DHS/ICE and was only signed by an immigration officer, it is a civil administrative warrant. See the distinctions in the sample civil and criminal warrants.
Immigration Status and Residential Screenings
Because there are federal, state and local agencies that will file anti-discrimination enforcement actions against housing providers for using immigration status as a basis for screening, NAA recommends housing providers consult local counsel when determining whether to include immigration status as part of their screening criteria.
Implications for HUD-Assisted Housing
The Trump Administration may reverse the Biden Administration’s interpretation of federal laws and regulations that allow resident households that benefit from the Section 8 Housing Choice Voucher program to have an undocumented family member reside in their unit. Currently, these households, also known as “mixed status” families, can and do receive prorated assistance that does not take into account the undocumented occupant(s) in their household. HUD may disallow this practice, but it would require rulemaking. This process takes quite a bit of time (months at least) and public notice, so there would be ample time to prepare.
Employer Considerations
I-9 audits of property owners are unlikely because they do not have many employees. That said, employers should make sure that they have a completed I-9 on file for all W-2 employees and that it is completed timely, to demonstrate work authorization. Prior to onboarding, employers should not ask applicants for employment about their immigration status (other than to ask if they have the unrestricted right to work in the U.S. and if not, whether they require visa sponsorship by an employer).
In the event of an ICE I-9 audit, the company can ask for an extension to gather the original I-9s. By law, a company must produce the original I-9s within 3 days, but ICE historically has given one-to-two-week extensions without issue, if asked.
If a company decides to conduct its own internal I-9 audit, it should treat all employees consistently and fairly. The DOJ has an aggressive Immigrant and Employee Rights (IER) unit that will issue robust civil investigation demands to employers based on a complaint from a job applicant or employee of discrimination against non-citizens. Some of the I-9 rules can be very confusing. The company should contact qualified counsel before terminating an employee or denying employment to a new hire based on an I-9 issue.
Housing Providers: Know Your Rights
Absent a criminal warrant:
- Be cordial but there is no requirement to engage in a discussion with an ICE agent
- No requirement to provide the names or other information regarding residents
- No requirement to provide information regarding their immigration status, citizenship or national origin should you happen to know that
- A decision not to cooperate, however, could result in more aggressive follow-up by ICE at a later date
View sample ICE enforcement decision tree.
Frequently Asked Questions
Reminder: Please note that these FAQs are not a substitute for legal or operational advice, and NAA recommends contacting qualified legal counsel regarding ICE enforcement activities specific to your properties.
1. Does a detained individual have a right to a hearing?
The vast majority of individuals who are in the U.S. without legal status would have a right to a hearing before an Immigration Judge before they could be removed from the U.S. However, the Immigration Court system currently has a 5-year backlog for 3 million respondents and there are estimated to be another 8 million undocumented individuals in the U.S. Usually the process involves several hearings before the actual trial on the merits. So, the process can be time-consuming unless the individual consents to removal.
2. Could an individual be removed from the U.S. without a hearing?
Under a new DHS policy instituted by the Trump Administration (and currently being challenged in court), undocumented individuals who don’t have a credible asylum case and have been in the U.S. for less than 2 years can be deported without a hearing. This is in addition to those who are arriving at the U.S. ports of entry (airports and ground borders) and are found inadmissible (i.e. no visa, public charge, misrepresentation, prior unauthorized employment etc.).
3. What will happen to programs like DACA, TPS, and Humanitarian Parole?
As of this writing, the U.S. government has recently canceled most humanitarian parole programs, but has not taken action against the Deferred Action for Childhood Arrivals (DACA) or Temporary Protected Status (TPS) programs, though the future of both is very uncertain. While it is exceedingly difficult to predict, individuals covered by these programs at a minimum should be entitled to a hearing. Furthermore, there are likely plaintiffs that would successfully obtain a temporary injunction against cancellation of these programs based on various grounds, resulting in the halting of any such deportations at least temporarily. Also, the removal process could take years after any program is canceled.
4. Where can individuals or families obtain legal assistance?
Should you know of a non-citizen family that needs immigration advice, we recommend that they contact the American Immigration Lawyers Association (AILA) referral service at https://ailalawyer.com/.
5. What if ICE Agents ask if a specific resident lives on the property?
Absent a criminal warrant for the information, there is no obligation to provide such information. The housing provider may choose whether to cooperate.
6. What if ICE Agent asks to see my resident log/records?
Similar to a request regarding a specific resident, absent a criminal warrant for the information, there is no obligation to provide such information. The housing provider may choose whether to cooperate.
7. What if ICE damages the property in serving a criminal warrant?
If this happens, you can contact your local ICE office to register a complaint. If ICE’s response is unsatisfactory, you can contact the DHS Office of the Immigration Detention Ombudsman, the DHS Office of the Inspector General, and if need be, speak to your counsel about bringing a lawsuit for damages.
8. What happens to the landlord/tenant relationship if a resident is removed from a unit by ICE Agents? What happens to the lease and the resident’s unit? If there are other residents, do they now become responsible for the lease and the unit? Are there any personal property implications if the resident lived alone?
This will depend on the exact language of the governing rental agreement/lease. If the person removed from the unit is the responsible party under the agreement (or one of them), that person will still have liability under the agreement but it will likely be hard to enforce. The remaining residents don’t automatically become responsible under the lease if they were not named residents, but they also cannot remain there if the rent is not paid and the other terms of the lease are not complied with.
If there is a security deposit, the housing provider will need to follow the law with respect to the security deposit – it can be applied to rent that is due but will need to be refunded to the named resident under the lease if rent is fully paid and the lease terminates.
Any and all occupants of the unit should be listed on the rental agreement – if they are not, the housing provider has the right to require that they provide information and become listed on the rental agreement and the will need to qualify for the rental. If they can’t provide financial information, and no one is able to be the responsible party under the lease, the housing provider can send a notice of termination.
In some states, if an occupant was a minor when the lease commenced but they are now an adult, there are some protections that will apply to prevent eviction – they must be given the opportunity to independently qualify if they want to remain in occupancy.
With regard to personal property left behind, the law and the rental agreement must be followed. If no one remains in occupancy of the unit, a “notice of abandoned property” must be filed in many states, and abandoned property will need to be stored until the notice periods pass.
9. What state implications exist? Aren't there a handful of places that require checking immigration status while other jurisdictions take the angle of protecting immigration status?
In several states, including California, a housing provider may not ask about immigration status but they can ask for a driver’s license and social security number, as well as income history.
If the apartment is in a rent control area, rent control laws will also impact what can be done and that will be on a case-by-case basis. Many counties, cities and states have their own rent control laws and protections, and research should be updated for each rental agreement at issue.
10. How does this affect HUD housing?
There are two types of HUD beneficiary residents that are relevant to this question. For apartment complexes that were funded with Section 8 money and are operating under HUD’s rules and regulations that require that they accept below market residents, President Trump could by executive order suspend HUD’s ability to execute and enter into those leases, though as of this writing he has not yet done so.
The second type are residents who have Section 8 Housing Choice vouchers. In such cases, there is a three-way contract or lease among HUD, the housing provider and the resident. Thus, HUD would be in breach of the lease if it suspended a lease with an individual. Currently, “mixed status” families (i.e., where not all family members are undocumented) can and do receive prorated assistance that does not take into account the undocumented family member. To evict all mixed-status families from HUD housing/vouchers would require regulatory action. This process takes quite a bit of time (months at least) and public notice, so there would be ample time to prepare.
Current federal regulations do not require the verification of recipients’ immigration status. However, this could be changed by executive action, which could occur quite quickly.
About the Authors
Jonathan Meyer is a partner in the Governmental Practice Group in D.C. and leads the firm’s National Security team. From 2021 to 2024, he served as General Counsel of the U.S. Department of Homeland Security. Jon can be reached at JMeyer@sheppardmullin.com.
Greg Berk is a partner in the firm’s Labor and Employment Practice Group. He leads the Firm’s immigration practice and is the author of Immigration Checklists and Practice Pointers – A Desk Reference book for immigration lawyers published by the American Bar Association. Greg can be reached at gberk@sheppardmullin.com.
Kate Rumsey is special counsel in the Governmental Practice Group in Dallas. She is a former federal prosecutor at DOJ where she handled a variety of complex cases including immigration matters. She is also an Air Force JAG officer. Kate can be reached at KRumsey@sheppardmullin.com.