Student data privacy, DACA and ICE

FAQs below:

  • Student Data Privacy
  • Deferred Action for Childhood Arrivals (DACA)
  • Immigration and Custom Enforcement

Acronym Quick Reference Guide

DACA - Deferred Action for Childhood Arrivals
DPCO - Data Practices Act Compliance Official (college or university president designates)
FERPA - Family Educational Rights and Privacy Act
MGDPA - Minnesota Government Data Practices Act
ICE - U.S. Immigration and Customs Enforcement
ISRS - Integrated Student Record System (Minnesota State's database)

FAQ: Student Data Privacy

What laws protect the privacy of a student?s educational records?
The Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. ? 1232g; 34 C.F.R. Part 99, and the Minnesota Government Data Practices Act (MGDPA), Minn. Stat. ? 13.32.

What is an educational record of a student?
Records maintained by the college or university that are directly related to a student.
Educational records can be in any format.

What are common types of educational records held by Minnesota State colleges and universities?
Because the definition of educational record is broad, most information about a student maintained by a college or university is an educational record. This may include things such as a student?s application for admission, records in the Integrated Student Record System (ISRS), records concerning financial aid, academic records such as class lists and grades, student housing records, conduct records, etc.

What is the basic responsibility of all Minnesota State employees towards student educational records?
Generally, student educational records are private. As a result, a college or university needs written permission (consent) from a student in order to release any information from a student's educational records to a person or entity outside the institution unless an exception to FERPA applies.

What is "directory" information?
Directory information is information in a student's educational records that would not generally be considered harmful or an invasion of privacy is disclosed. As a result, directory information is public unless a student opts out of release of directory information. Each college and university establishes its own definition of directory information but common examples include a student's name, dates of attendance, major field of study, etc. Please review student records policy at your college or university for a specific list of directory information, as well as the procedures for a particular student opting-out of allowing release of directory information. This information is often found in the student handbook,
online, or at the Registrar's Office.

What are exceptions allowing non-consensual release of student records?
There are exceptions to FERPA and the MGDPA that allow sharing of educational records without a student's consent. These include release in a health or safety emergency, release to officials at a college or university to which a student is transferring, etc. One important exception is "to comply with a judicial order or lawfully issued subpoena."

What if law enforcement requests a student's educational records?
A college or university must follow FERPA and the MGDPA when law enforcement requests student educational records. This means that a college or university must obtain a student's voluntary consent to release their records to law enforcement OR there must be an exception that authorizes non-consensual release. As noted above, one such exception is "to comply with a judicial order or lawfully issued subpoena."

How should a college or university handle judicial orders or lawfully issued subpoenas?
We suggest that each college and university designate a single point of contact responsible for receipt of subpoenas, warrants, or other judicial orders. This could be your Data Practices Compliance Official (DPCO) or other administrator. All employees should refer legal documents to the designated contact who will work with the Office of General Counsel to determine how to respond to the judicial order or subpoena.

Who is responsible for protecting student records at a college and university?
It is the responsibility of all employees to protect student educational records. Any person requesting information on students should be referred to the Data Practices Compliance Official (DPCO) or other appropriate administrator at the college or university.

What resources are available on FERPA and student educational records?

  • Every college and university has a student records policy that describes how it complies with FERPA and the MGDPA.
  • The Office of General Counsel website has information on its website at
  • The Family Compliance Office, which is part of the United States Department of
  • Education, has resources on FERPA, including summary documents, guidance, and frequently asked questions.

FAQ: Deferred Action for Childhood Arrivals (DACA)

What is DACA?
DACA is a policy created by the U.S. Departmental of Homeland Security. Using its prosecutorial discretion, the U.S. Department of Homeland Security has announced it will not initiate removal proceedings for certain individuals who arrived in the U.S. as children and do not hold legal immigration status. DACA does not change the status of successful applicants. It simply provides that Homeland Security will defer removal proceedings.

Does DACA status automatically apply to eligible persons?
No. Individuals must affirmatively apply to receive deferred status. It is the responsibility of any individual interested in DACA status to obtain the necessary information and apply to U.S. Citizenship and Immigration Services for DACA status.

Does DACA change the immigration status of successful applicants?
No. DACA is not a "lawful status" under immigration law and it is not a basis for eligibility for permanent residency or citizenship. DACA authorizes an individual to seek employment and provides some assurance that the individual will be able to stay in the United States for two years, subject to renewal.

Who is eligible for DACA?
In order to be considered for DACA status, an applicant must:

  • Have come to the U.S. before reaching his/her 16th birthday;
  • Currently be under the age of 31;
  • Have continuously resided in the U.S. since June 15, 2007;
  • Be in school, have graduated or completed high school or received a GED, or have been honorably discharged from the U.S. armed services; and
  • Not have been convicted of crimes (including a felony, significant misdemeanor, or three or more other misdemeanors) or pose a threat to national security or public safety.

There is no expedited process for receiving DACA status. According to federal sources, students who are approved for DACA status are not eligible for employment until their Employment Authorization Document is received.

What is the role of a college or university in the DACA process?
DACA has no direct impact on current Minnesota State policies. There is no prohibition on enrolling undocumented students at the colleges and universities of Minnesota State. College and university personnel are encouraged to provide students with information about resources regarding DACA. However, they should not attempt to advise individual students about whether they are eligible for DACA status. Rather, college and university personnel should refer students to accurate sources of information about eligibility and application procedures. (Information resources regarded as reliable are listed below.) Students may be reminded of the importance of providing truthful information in their
applications, as immigration publications have emphasized that fraud will be prosecuted to the fullest extent of the law.

College and university officials may be asked for copies of documents to establish enrollment or other information needed to apply for DACA status. The established college and university procedures for handling such requests apply.

Does DACA status confer eligibility for federal financial aid?
No, under federal law, undocumented students are not eligible for federal financial aid.
Undocumented students may be eligible for certain benefits under the Minnesota Dream Act. Information on the Minnesota Dream Act is available from the Minnesota Office of Higher Education.

Does DACA status confer eligibility for in-state tuition?
No, DACA status does not confer eligibility for in-state tuition. However, many of the colleges and universities of Minnesota State have only one consolidated tuition rate (rather than resident and nonresident rates); the consolidated rate applies to all students, including undocumented students. In addition, undocumented students may be eligible for certain benefits under the Minnesota Dream Act.

Where can individuals get more information about applying for Deferred Action?
Telephone
Individuals can call United States Citizenship and Immigration Services at 1-800-375-5283 with questions or to request more information on the Deferred Action for Childhood Arrivals process.

Online
U.S. Citizenship and Immigration Services
Immigrant Law Center of Minnesota
American Immigration Lawyers Association
Minnesota Office of Higher Education

FAQ: Immigration and Custom Enforcement

What is ICE?
U.S. Immigration and Customs Enforcement (ICE) enforces federal laws governing border control, customs, trade, and immigration to promote homeland security and public safety.
ICE was created in 2003 through a merger of the investigative and interior enforcement elements of the former U.S. Customs Service and the Immigration and Naturalization Service.
ICE now has more than 20,000 employees in more than 400 offices in the United States and 46 foreign countries. The agency has an annual budget of approximately $6 billion, primarily devoted to two operational directorates -  Enforcement and Removal Operations and Homeland Security Investigations. These two operational directorates are supported by Management and Administration and Office of the Principal Legal Advisor to advance the ICE mission.

What does ICE do?
Immigration enforcement is the largest single area of responsibility for ICE. While certain responsibilities and close cooperation with U.S. Customs and Border Protection, U.S. Citizenship and Immigration Services, and others require significant ICE assets near the border, the majority of immigration enforcement work for ICE takes place in the country?s interior.

Can ICE personnel come on campus and seize student records?
ICE is governed by the same rules as other law enforcement agencies when it comes to search, seizure, and entering powers. Generally speaking, they cannot require a Minnesota State employee to produce documents without a subpoena or warrant.

Can ICE personnel compel Minnesota State employees to produce private data on undocumented students?
No. The Family Educational Rights and Privacy Act (FERPA) and Minnesota Government Data Practices Act (MGDPA) apply to the records of all students, regardless of immigration status.
Consequently, private data will be provided only as required by law, which in this case would mean pursuant to a valid subpoena or warrant.

Can ICE personnel compel Minnesota State employees to participate in a law enforcement
action? For example, can ICE ask a Minnesota State employee to assist with the arrest and/or detention of an individual?

No. While we must not interfere with lawful ICE investigations, the U.S. Supreme Court has ruled that the federal government cannot commandeer state employees to participate in the actions of the federal government.

How does ICE conduct investigations?
ICE has the same investigatory powers as most law enforcement agencies. ICE also has the authority to issue subpoenas, but must actually issue a subpoena to receive records.

Who should be responsible for responding to an ICE subpoena or warrant?
An ICE subpoena for a student's records should be referred to the registrar or the Data Practices Act Compliance Official (DPCO) at the campus. Please send a copy of the subpoena to Sarah McGee, Assistant General Counsel at the Office of General Counsel (sarah.mcgee@so.mnscu.edu).

What documents can ICE ask for in a subpoena or warrant?
ICE can ask for a broad array of documents pertaining to the investigation of an individual, including documents typically protected from disclosure by FERPA and/or the MGDPA.

Can ICE issue "blanket" subpoenas or warrants asking for the names of all students who are not Pell-eligible, for example?
No. ICE subpoenas or warrants must be issued in the matter of a named, targeted individual.

How can I tell if an ICE subpoena or warrant is valid?
Please contact Sarah McGee, Assistant General Counsel at the Office of General Counsel (sarah.mcgee@so.mnscu.edu).

What happens if a college or university ignores an ICE subpoena or warrant?
If a subpoena or warrant is neglected or refused, ICE may petition the relevant United States District Court to issue an order enforcing the subpoena or warrant.