The dramatic rise in immigration enforcement and deportations means that employers, particularly employers in industries having high concentrations of illegal immigrants, should be prepared for the possibility of U.S. Immigration and Customs Enforcement (ICE) appearing at the company’s doorstep. These industries include hospitality, service, construction, food production, and agriculture. The recent large-scale raids in Mississippi, for example, targeted workers in meat, poultry, and food processing plants.
ICE is a federal law enforcement agency under the U.S. Department of Homeland Security whose stated mission is “to protect the United States from cross-border crime and illegal immigration that threaten national security and public safety.” Other DHHS or ICE departments include Border Patrol, Enforcement and Removal Operations (ERO), and Homeland Security Investigations (HSI).
Increased Enforcement
Raids by ICE are occurring daily. Last week, more than 4,000 illegal immigrants across the U.S. were arrested by ICE, with an average of approximately 1,200 new arrests per day. Those arrested are being detained or deported by U.S. military to the arrestee’s country of origin or to a third-party nation.
Last week, the Trump administration revoked a well-established ICE policy that had been in place, in some form, since 2011. Under that policy, federal immigration agents were prohibited from making arrests at places deemed “sensitive locations” – those included schools, medical facilities, courthouses, shelters, and places of worship.
Since the revocation of the “sensitive locations” policy, ICE has already conducted raids and made arrests at several places of worship and hospitals throughout the country.
How Employees are Identified
Although ICE does not disclose the specific tools it uses to identify illegal immigrants, last week the New York Times reported that ICE and the USCIS have spent $7.8 billion on immigration technologies since 2020.
These technologies provide the capacity to track asylum seekers in real time wherever they go through apps and ankle monitors, access databases with personal information like fingerprints and faces, and break into locked phones and search through gigabytes of emails, text messages and other files.
ICE can also access DMV and arrest records where permitted by state and local laws.
Reasons for ICE to Come to a Company
Immigration agents may come to a company for a raid, to detain or arrest specific people, or to conduct an I-9 audit.
A Raid
ICE raids are usually targeted toward businesses believed to be in violation of immigration laws, not random sweeps. The raids involve company searches, the seizure of records, and/or the apprehension of employees.
The Arrest of Specific Individuals
ICE may also go to a company (or other organization), to arrest or detain specific employees. This will be done with a document, typcially an “administrative warrant,” giving ICE the authorization to arrest or detain a named individual. Several recent news clips have shown apprehended individuals in handcuffs being deported.
The I-9 Audit
ICE may also arrive at the Company’s doorstep to conduct an I-9 audit. The I-9 audit, which in the current environment is the least onerous action, is targeted at the employer, not the employees. Its purpose is to confirm that employees are properly identified and authorized to work in the U.S. If the employer is in violation, ICE may issue civil or criminal fines and penalties. It is best to assume that an I-9 audit may follow some other enforcement measure.
What You Should Do Now
#1 - Consider the Probability. Not all companies are susceptible to ICE raids. Particularly likely are those companies in industries with concentrations of illegal immigrants, companies with past immigration violations, and those with employees who have criminal records.
#2 - Name a Point Person. Designate a person to serve as the point of contact should ICE show up at the company. That person should be responsible for meeting ICE at the door, checking the agent’s identification, determining the nature of the visit, reviewing documents, and serving as an inspection escort.
#3 - Have a Plan. Develop a plan which outlines how the company will address the ICE appearance and the "Do’s and Don’ts" when ICE appears. Your plan should instruct the reception staff on whom to contact (which should be your Point Person) should ICE appear. The plan should provide for after-hours contingencies and have current contact information for the top management and others, both during and after hours.
The plan should address what managers, supervisors, and employees should and should not do.
For example, it should instruct managers, supervisors, and employees that they are to not talk with the ICE staff, other than through the Point Person, they are not to participate in an ICE search other than with your Point Person, and they are not to impede or obstruct ICE in carrying out its work.
Additionally, the plan should consider your communication to the workforce concerning ICE’s presence either before, or after ICE appears, or both. Your plan should also address maintaining documentation. The plan should call for establishing a central log of events which details the date, time, names, locations, and actions of the events.
In addition, your plan should assume that local media may contact the company following an ICE visit. Your plan should designate a person to serve as the Media Contact. The company should prepare a statement in advance, if possible.
When ICE Goes to Your Company
Should ICE appear at the company, the Point Person should be notified immediately. The Point Person should meet the ICE officials, determine which agency they are from, verify their identify, ask their purpose, and review documents. A review of documents is critical.
Where ICE Can Go In Your Company
Public Areas: Anyone, including ICE agents, can enter public areas of a business without permission. Public areas include a dining area in a restaurant, a cafeteria in a hospital, a public parking lot, a lobby, or waiting area. However, being in a public area does not give ICE the authority to stop, question, or arrest just anyone.
Private Areas: With respect to private areas, no government agent can enter a private area unless they have the consent of a company official or have a judicial warrant.
A judicial warrant must be signed by a judge and say “U.S. District Court” or the name of the state Court that issued the warrant at the top of the form. If ICE agents state that they have a warrant, the Point Person should ask for a copy and read it carefully. It will specify the type of the warrant and the scope and limits of the search. Do not assume that it is just boilerplate and that the details are not important.
An administrative warrant is prepared and issued by federal immigration authorities. Generally, the administrative warrant will say “Department of Homeland Security” and will probably carry the form numbers Forms I-200 or I-205.
An administrative warrant directs federal immigration enforcement agents to arrest the person named in the warrant. Because it is not issued by a judge, an ICE warrant does not give the immigration enforcement officer the authority to demand entry to a company, home, or private space in order to make the arrest.
Examples of a judicial warrant and an administrative warrant appear on our website, robertnoonan.com, under forms.
The Warrant is Valid: What do we do?
If the warrant is valid, your company’s Point Person should allow the agents to enter whatever specific area has been approved for inspection and enforcement activity. No one in the company should interfere with or otherwise assist in the ICE visit in any other way, unless at the direction of the Point Person.
The company should monitor activities, but avoid taking any action that could be construed as harboring those who do not have proper documentation.
An ICE visit does not confer an obligation on a company to disclose information, unless it is encompassed in the warrant. Although ICE may ask if an employee is at your workplace on a particular day, the decision to answer is up to the company. An employer is not required to say if that employee is working on that day, nor does the employer have to take the ICE agents to the employee named in the warrant (even if he or she is at work at the time).
What will happen to our employee(s)?
As the news reflects, deportation of illegal immigrants has begun. As a matter of law, the deportation of an illegal immigrant can only be accomplished through legal authority-generally in the form of a warrant.
The White House, through the exercise of presidential authority under the Immigration and Nationality Act and the Constitution of the United States, authorized and directed the Department of Homeland Security, the Department of Justice, and the Department of State to take all necessary action to immediately remove illegal immigrants from the country.
Your employee may be apprehended and processed for deportation immediately.
What happens after ICE leaves our facilities?
Whether it is an ICE raid or an individual arrest and/or deportation, a company should consider at least two post-event actions.
First, communicate with the workforce. It is not necessary to name the individual employee or employees who may have been detained, arrested, or deported, but, notifying the workforce of a development is preferable to leaving the matter to the rumor mill.
Second, consider conducting an I-9 audit as a preventative measure to avoid or minimize a claim that may come later that the company has knowingly violated the immigration law. Employers who knowingly hire unauthorized workers can face civil and criminal penalties. These penalties can include fines, criminal prosecution, reputational damage, and the company being disqualified from federal contracts or visa sponsorships.
Robert Noonan & Associates will be hosting a seminar on ICE Enforcement and I-9 Audit Compliance; information and registration for this seminar will be announced later this week.
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