It is unfortunate that some people are stoking panic through fearful immigrant communities with false reports of raids by the Immigration and Customs Enforcement (ICE) after President Trump's calls for mass deportations and crackdowns on sanctuary cities such as San Francisco, Oakland, and Berkeley.

The federal agency has said that it 'does not conduct raids or sweeps' and does not 'target noncitizens indiscriminately'. Thus far, the ICE activity in the Bay Area appears to be targeted at specific individuals based on existing deportation orders and criminal convictions.

These operations will inevitably take place in rental communities where targeted individuals live, and this engenders many questions. Housing providers should understand that barring exigent circumstances, ICE cannot enter private areas without either:

(1) consent, or

(2) a valid, signed judicial warrant.

We should make the distinction between civil and criminal arrest warrants

A removal or arrest warrant issued by the U.S. Department of Homeland Security (DHS) is an “administrative” warrant that authorizes the arrest, detention, and eventual removal of an individual. Even with that warrant in hand, ICE agents do not have the license to enter private property without consent. A judicial warrant is another creature and allows ICE to make forcible entry.

A fundamental question: Who signed the warrant?

If the warrant has been issued by a court and signed by a judge, consider it a judicial warrant, similar to those used in criminal cases. Armed with this type of warrant, ICE can barge in even if occupants of the rental unit refuse to open the door.

If the property is damaged as a result of executing the warrant, housing providers can contact their local ICE office to register a complaint, and if the response is unsatisfactory, escalate the matter by reaching out to the DHS Office of the Immigration Detention Ombudsman or the DHS Office of the Inspector General.

There is a fine line between asserting rights and antagonizing ICE agents and this can even cross into a criminal offense.

If there is a visit by ICE, landlords and residents are urged to maintain a professional demeanor. If housing providers are asked if a specific resident lives on the property, or asked to turn over their resident logs and records, they should know that there is no obligation to provide this information. Keep in mind, however, that a landlord's refusal to engage with law enforcement may result in more visits to the rental community by frustrated agents.

Politely refusing to assist law enforcement and volunteer information is one thing, but providing aid and comfort to a targeted individual is quite another. Do not provide false information to ICE, discard any documents, or make attempts to hide individuals on their radar. Obstructing ICE activity or harboring persons they are seeking can be a crime prosecutable under federal law.

Let's take Border Czar Tom Homen's word for it that there will be consequences for anyone getting in the way. Landlords need not cooperate with ICE, but they cannot block their efforts.

What happens when a tenant is in ICE custody?

We often talk about the benefits of a voluntary vacancy. When a tenant voluntarily vacates the unit, landlords can typically raise the rent to market rent.

But in some cases, the tenant vacates involuntarily when they are incarcerated, institutionalized, or detained by immigration authorities. They would love nothing more than to be free again and return home if they weren't hemmed up.

In these situations, housing providers still have to follow the formal eviction process under state law and cite a valid, dominant reason to evict. Being detained by ICE is not a permissible purpose to evict under "just cause" eviction rules. We will have to find an appropriate theory to evict the tenant who has entered the system with no guarantee they will return to the United States, much less the rental unit.

Granted, the tenant who is being incarcerated or detained may not receive an eviction notice or be able to respond in court. Still, the notice should be served at the rental unit using standard methods, even if the tenant is not there. Being escorted out of the rental by ICE does not end the tenancy, so we will have to legally terminate it.

There is the possibility that after rent is unpaid for 14 days, to serve a "notice of belief and abandonment," but this option is best journeyed with proper counsel.

Housing providers also need to ascertain the legal status of any other occupants who remain in the rental unit after a detained individual no longer resides there. Our firm is good at untangling rental relationships when other tenants leave the premises in a game of musical chairs.

Finally, what to do with the personal belongings of tenants who have been detained?

It is not finders keepers. There are carefully choreographed steps to follow when it is reasonably believed that the tenant has permanently vacated the property and these rules are prescripted in California Civil Code §1951.3. Our office is glad to walk you through this process.

Parting thoughts

The Trump administration's agenda of mass deportation is a barreling freight train that cannot be stopped, but what housing providers can do at bare minimum is know their rights and responsibilities and recognize that certain other jurisdictions may have instituted their own set of protections to keep illegal immigrants housed.

There are additional implications for those of you participating in the Section 8 program, particularly in "mixed status" families where not all family members are undocumented.

In their role of providing housing, landlords are not expected to fully understand this morass, but Bornstein Law can help in preparing protocols and respond to issues as this area of law evolves.