What’s Your Condo’s/HOA’s Role If ICE Seeks Access or Information?

This article first appeared in HOAleader.com. Matt Ober, Esq., CCAL, is a regular contributor to help inform community associations. 

U.S. Immigration and Customs Enforcement is showing up at condos and HOAs seeking either information on community residents or access to the community.

However, your board or management company may not be able to share information or access with federal agents without violating owners' privacy. Here, we ask legal experts the response least likely to get your condo or HOA into legal trouble if ICE appears on your community's doorstep.

It's Happening, and It's Likely to Happen More

Condo and HOA clients have reached out to Janet Oulousian Aronson, a partner at Marcus Errico Emmer & Brooks in Braintree, Mass., who is licensed in that state, in addition to Rhode Island and New Hampshire, for legal advice when ICE has shown up.

“ICE specifically is targeting Massachusetts, especially Boston,” she explains. “The administration has had issues with Boson Mayor Wu, and she had to testify before Congress. We've had ICE not just show up but also seek records to try to identify people and get information. They asked for information about unit owners, and they didn't have warrants. ICE seems to be looking for information, at least so far.

“What I've been advising clients—politics aside—is that I recommend they comply legally with any legal obligations,” says Aronson. “Unless associations are under a legal obligation, I wouldn't just give out information. By that I mean, unless there's a warrant, associations shouldn't be sharing information.

“Owners have a right to have your condo or HOA protect their information,” she adds. “And what if the information you give to ICE was wrong? So I don't recommend boards provide information without a warrant.”

Matt D. Ober, CCAL, a partner at Richardson Ober LLP, a Pasadena, Calif., law firm with a significant community association practice, hasn't yet been contacted by clients on this issue. “I haven't heard of it,” he says. “I can't imagine that ICE would barge into a community association and say, ‘Let me in' unless they have some sort of proof or indication that someone is harboring criminal illegal aliens.

“But for anyone who seeks access to information, not just ICE, is the board obliged to turn over information on who lives there?” he asks. “I'm going to advise a client to request a subpoena.

“ICE might suggest they have a right to barge in and break down a unit owner's door if the community isn't gated,” he says. “So it's a new issue if they show up with guns ablazing. What are you going to do other than call the police, and will they tell ICE to stand down? Not likely. But I would advise clients to ask for a subpoena.”

Scott D. Weiss, CCAL, a partner and the Tennessee office chair at Kaman & Cusimano in Nashville, Tenn., who represents more than 800 condos/HOA communities throughout the state, offers similar advice. “This isn't an area of the law within the scope of what I do,” he stresses. “But I'd advise a client that if ICE agents have a warrant, you absolutely have to comply. I don't think ICE agents have a constitutional right to demand anything unless they have a court order.

“You want to fully comply, but ICE has to comply with the U.S. constitution,” notes Weiss. “If I got a call from a client saying ICE was there, as corporate counsel, I'd feel comfortable enough telling my client, ‘You need to comply but only if ICE has a warrant or a court order saying you must.' Or more likely, I'd say, ‘Have ICE call me.' That's the best way to handle this.”

Don't Get Our Experts Wrong

Our experts stress that they often work with law enforcement and encourage their community association clients to do so.

“I've not been contacted by a client about ICE yet, but I have been contacted about other legal investigations,” says Carolina Sznajderman Sheir, a partner at Eisinger Law in Hollywood, Fla., which represents 600-700 associations throughout the state, who is board certified in condo and planned development law by the Florida Bar. “In either case, I'd advise a client to call me immediately and to ask for documentation.

“Generally, we cooperate freely with law enforcement,” she adds. “Last week, Alessandra Stivelman and I presented to several agencies that have economic crimes units on condo law and things about our practice so they can conduct their investigations a little better. We tell them to reach out to us before they act because we can be instrumental in communication. Alessandra has a case now where the FBI contacted us about synagogue attacks, and some woman was stalking one of the victim's families. It happens.

“But I don't know if ICE can show up and request information without a warrant,” says Sheir. “Associations have an obligation to cooperate with law enforcement investigations, though there's a fine line. It's one thing to cooperate with an investigation into whether someone has stolen money. It's different if you're being asked to comply with an investigation into who's living in the unit and what type of immigration documents they have.

“Generally speaking, you can request that, if law enforcement wants information from you, they have to have some sort of legal document showing they have a right to that,” she notes. “I wouldn't open my records without that.”

Aronson has long advised clients to cooperate within local law enforcement. “I might change my policy if it was the local police appearing at a client's property,” says Aronson. “Sometimes you want to work with the local police because, if you don't and then later need them, sometimes they won't be all that helpful.

“We need them sometimes, so I do encourage working some with local police in your community,” she says. “An association client might say to local police, ‘We can't do this, but if you get this, we'll do it.' Or, ‘We can't let you in, but perhaps we could do something more informally.'

“But this isn't typically a problem,” says Aronson. “Usually, local police come with a warrant. That's pretty standard.”