This member resource is compiled by the National Apartment Association's (NAA) Legal Affairs team and authored by the national law firm Sheppard. 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 NAA recommends contacting qualified legal counsel regarding ICE enforcement activities specific to your properties.
U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services (USCIS), all components of the Department of Homeland Security (DHS), have increased immigration enforcement activities, including operations at rental housing communities. In addition, the One Big Beautiful Bill Act (OBBBA) and other funding legislation provide greatly enhanced resources for DHS to enable more widespread enforcement actions. Many apartment owners and operators are understandably concerned that they could be pulled into the fray.
Recently, ICE significantly changed its interpretation of the Constitution and the law, affecting its enforcement operations when entering residences. The agency has stated that a civil administrative/immigration warrant (signed by a DHS employee, not an independent judge) suffices to authorize entering a residence to detain an immigrant without consent. This position is not the understanding of the Constitution that has been generally accepted by American courts; many legal experts have stated this position is unconstitutional, and at least one court has already found this new approach unconstitutional since its issuance.
What follows is general information on how to interact with DHS/ICE/CBP/USCIS agents if they show up at your property, including the distinction between criminal and civil/immigration warrants, a link to a decision tree to guide your actions and answers to some frequently asked questions. The information herein attempts to account for lack of clarity as to resident and landlord rights resulting from recent changes. As the situation continues to evolve, this member resource will continue to be updated.
Commercial Property Owners Right to Privacy
Property owners and commercial establishments traditionally have a right to privacy and their employees generally have not been required by law to allow ICE onto their facility absent a warrant signed by a judge. 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, given ICE’s new interpretation of the law, it is likely ICE may seek to enter a residence without a judicial warrant, by force if necessary. Owners may choose to consent to ICE entering the facility. Alternatively, they may choose to deny such consent. Such a denial may lead to ICE entering the facility without consent and by force. In such situations, it is prudent for owners not to attempt to interfere with law enforcement. Instead, they should carefully document the events and contact counsel.
Understanding Residents’ Rights
Much like property owners, renters and their families traditionally have a right to privacy and generally do not have to allow ICE into their homes, absent a warrant signed by a judge. However, as noted above, ICE is now taking a different position on the law. If residents choose to deny consent to ICE to enter their home, it is likely ICE will enter the residence by force. Residents have the right to document the events and potentially challenge their legality in court. 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 lead to more difficult interactions with the agency.
Differences Between Civil and Criminal Documents
Immigration enforcement is generally a civil matter, including for individuals who entered the U.S. illegally or overstayed their authorized stay. If ICE believes that it has probable cause that someone is in the United States without authorization or an immigration judge has already ordered someone to be removed from the U.S., ICE may issue a civil administrative warrant for their arrest, detention and eventual removal. As noted, ICE now takes the position that such a warrant entitles the agency to enter a home without consent to detain an individual it seeks to remove from the country. Most courts and legal experts disagree. Such a warrant is not the same as a warrant issued by an independent judge, which all agree permits agents to enter private property without permission.
ICE does sometimes obtain such 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 DOJ does prosecute and obtain a criminal warrant, ICE may serve that warrant, and it is undisputed that with a criminal warrant (signed by an independent judge), they must be allowed entry on the property. Similarly, there are judicial and civil subpoenas in the immigration world. However, in the case of subpoenas, both are enforceable, though enforcement of a civil subpoena requires action by a court (which has already occurred in the case of a judicial subpoena).
When it comes to subpoenas, unlike warrants, no immediate action is required. Subpoenas are demands for the production of information, with a deadline to produce that information sometime in the future. This means that you can accept the document, regardless of the type of subpoena, and then consult counsel regarding whether or how to comply.
Identifying Documents
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/judicial warrant or subpoena.
If it has been issued by DHS/ICE/USCIS/CBP and was only signed by an immigration officer, it is a civil administrative warrant or subpoena. See the distinctions in the sample civil and criminal warrants and subpoenas.
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 lawful 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) or other ineligible non-citizen(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 employers have seen an uptick in the Trump Administration. However, I-9 audits of property owners remain relatively 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 three days, but ICE historically has given one-to-two-week extensions without issue, if asked. Going forward, however, some agents may be less willing to give extensions.
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.
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. What is happening with HUD’s immigration-related audit of HUD-funded housing?
HUD has announced that an audit conducted in conjunction with the Department of Homeland Security uncovered nearly 200,000 tenants requiring eligibility verification, nearly 25,000 deceased tenants and nearly 6,000 ineligible non-American tenants. As a result, HUD has announced that all Public Housing Authorities (PHAs) and owners participating in HUD-funded housing have 30 days from January 23, 2026, to take corrective action to address these findings. HUD’s announcement states that, pursuant to a recently-issued interpretation of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), PHAs and owners must review their EIV-SAVE Tenant Match Report, verify that they have accurately reported individuals’ citizenship or immigration status to determine eligibility, and initiate corrective actions. HUD will recapture funding for payments made on behalf of ineligible and deceased tenants.
2. 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 multi-year backlog for millions of respondents and there are estimated to be many millions more 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.
3. Could an individual be removed from the U.S. without a hearing?
Those who have a prior removal order are not entitled to a hearing. Furthermore, under a new DHS policy (currently being challenged in court), undocumented individuals who don’t have a credible asylum case and have been in the U.S. for fewer 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.).
4. What is happening to programs like DACA, TPS and Humanitarian Parole?
The U.S. government has canceled many humanitarian parole and Temporary Protected Status (TPS) programs but has not taken action against the Deferred Action for Childhood Arrivals (DACA) program. Litigation on these issues is ongoing. While it is exceedingly difficult to predict, individuals covered by these programs at a minimum should be entitled to a hearing. Also, the removal process could take years after any program is canceled.
5. Where can individuals or families obtain legal assistance?
Should you know of a non-citizen family that needs immigration advice, it is recommended that they contact the American Immigration Lawyers Association (AILA) referral service at https://ailalawyer.com/. Most major cities also have many pro-bono organizations that can advise or provide lawyer referrals.
6. 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.
7. What if ICE Agents ask to see my resident log/records?
Absent a criminal warrant for the information, there is no obligation to provide such information (ICE’s new legal position does not affect this issue.). The housing provider may choose whether to cooperate.
8. 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.
9. 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 and state and local rules. 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 they 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.
10. 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.
11. 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.
About the Authors
Jonathan Meyer is a partner in the Governmental Practice Group in Washington, 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. Meyer can be reached at JMeyer@sheppard.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 for immigration lawyers published by the American Bar Association. Berk can be reached at GBerk@sheppard.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. Rumsey can be reached at KRumsey@sheppard.com.