Among the Trump Administration's initial changes to U.S. immigration policy is an increased emphasis on immigration enforcement, which is impacting many businesses. The agency tasked with administering U.S. immigration laws on deportation and removal, Immigration and Customs Enforcement (ICE), can enter businesses without notice to conduct searches, seizures and arrests. Such so-called "ICE raids" often cause widespread fear and confusion.
Businesses can prepare by establishing written protocols to follow if ICE makes an unannounced visit. Providing written protocols to staff helps ensure an effective and uniform response and promotes a sense of readiness.
If ICE Agents enter the business, then staff may follow these steps:
- ICE Agents should immediately identify themselves and state the reason for their visit.
- Staff members confronted by ICE Agents should explain that all ICE inquiries are referred to a designated point of contact at the business. The business should designate 1-2 specific staff members who are readily available to assist with ICE inquiries. The staff members who are initially confronted by ICE Agents do not have to answer any questions. They can refer ICE Agents to the designated point of contact at the business and get in touch with that point of contact to assist.
- The designated point of contact should ask ICE Agents to state the reason for their visit and ask to see their identification and credentials.
- The designated point of contact should make copies of the ICE Agents' credentials and immediately contact legal counsel to send them copies of the ICE Agents' credentials and alert legal counsel that ICE Agents are at the business.
- The designated point of contact should ask ICE Agents if they have a judicial warrant. If ICE Agents present any type of warrant to the designated point of contact, then the warrant should immediately be sent to legal counsel. ICE Agents must have a judicial warrant, which is signed by a state or federal court judge, to access any private area of the business that is not accessible to the general public.
- Administrative warrants (typically on a U.S. Department of Homeland Security Form I-200 or I-205) are not sufficient. A warrant signed by an Immigration Judge is not a judicial warrant and is not sufficient.
- If ICE Agents do present what appears to be a judicial warrant, then the designated point of contact can wait until legal counsel confirms it is valid before allowing ICE Agents to proceed.
- If legal counsel confirms the validity of the judicial warrant, then the designated point of contact and other staff members at the business must comply and allow ICE Agents to proceed within the scope allowed by the warrant.
- While the business can accept a valid judicial warrant, the business is not obligated to consent to the search and can document that the business does not consent to the search. Not consenting to the search does not prevent the search, but it allows the business to challenge the search later if there is a basis to challenge it.
- If ICE Agents proceed with the search and seizure within the scope of the judicial warrant, then the business should ask ICE Agents to provide a list of all documents and materials seized in the search.
- If ICE Agents' search and seizure goes outside the scope of the judicial warrant, then the business should object and make note of the objection. Businesses should not engage in arguments and debates with ICE Agents in possession of a judicial warrant; rather, businesses should document the extent of the search and seizure and raise objections for any action the business deems to be outside the scope of the judicial warrant.
Businesses should note that ICE Agents can be physically present in areas of the business that are accessible to the general public. Examples include a reception area, lobby, parking lot or restaurant dining room. However, ICE Agents are not allowed to disrupt any area accessible to the general public by stopping, questioning or attempting to arrest anyone. Businesses can ask ICE Agents to leave the premises if they are causing disruption.
Businesses should note that employees have the right to remain silent and the right to an attorney during an ICE visit at the business. If ICE Agents present a judicial warrant and proceed with a search and seizure of a private area of the business, then the designated point of contact can ask ICE Agents if employees are free to leave during the search and seizure. If ICE Agents state they are not free to leave, then employees should know they have the right to remain silent and do not need to answer any questions. While businesses should not instruct employees to remain silent, employees should know they have the right to remain silent.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
