Good Morning, We are from ICE. What do you do?
Over the last couple of years, U.S. Immigration and Customs Enforcement (best known as “ICE”) has conducted a number of high-profile raids on poultry processing plants. In at least one instance the August 2019 Mississippi raid), the purpose of the raid was to provide a “shock and awe” display of ICE’s resources, and to frighten employers and undocumented workers. After 300 of the 680 individuals detained in the Mississippi raid were released, some questioned whether the use of ICE’s resources was warranted – 600 ICE agents were involved in the raid. Regardless of one’s view on whether the ICE resources were used wisely, however, there are important lessons to be drawn from the Mississippi raid.
Judicial vs. Administrative Warrant
The first lesson relates to whether the Mississippi raid was conducted pursuant to a judicial warrant or an administrative warrant. This distinction is critically important for employers to recognize, and to bear in mind if ICE shows up on their doorstep.
The type of warrant determines what level of access an employer has to provide the ICE agents. A judicial warrant is a court order signed by a federal judge. The judicial warrant will specify a time frame within which the search must be conducted, a description of what parts of the employer’s premises can be searched, and a list of items which can be searched for and seized (e.g., payroll records, employee identification documents). An administrative warrant usually says “Department of Homeland Security” and gives ICE the right to enter only the employer’s public areas (unless the employer grants permission to enter private areas). Public areas are those which anyone can enter, such as parking lots and reception areas. Private areas are those which are only accessible by employees, or which are marked with “Private” signage. An employer does not have to allow ICE agents to enter any private area without a judicial warrant, even if the ICE agent acts as if they have the authority to go wherever they want. Even with a judicial warrant, ICE can only enter and search the areas specifically identified in the warrant. If ICE agents come to an employer’s door with a warrant, the employer should determine what type of warrant it is. If it is a judicial warrant, the employer should check where the search has been authorized before allowing the ICE agents to enter any buildings.
What ICE Agents and Your Employees Can Do
Despite what many may think, ICE agents cannot arrest and throw individuals in jail if they decline to answer the agents’ questions on demand and do exactly what they say.
ICE agents may detain specific people and conduct a Form I-9 audit. ICE agents do not have the authority to stop, question, or arrest just anyone simply because they are in a public area. Any employee can ask to speak to a specific attorney before talking with immigration authorities or answering questions from an ICE agent (or they can ask for a list of pro bono lawyers).
Employees can also remain silent if they want. No employee has to state where they were born or whether they are in the United States legally. Employees also have no obligation to sign anything or to show identification or other papers. Furthermore, no one is required to stand in a group according to country of origin, which is a technique ICE agents commonly use. If the ICE agent makes such a request, the employee can walk to an area where no one else is standing. If the ICE agent arrests an employee, the employer has the right to ask where that employee is being taken so that the employee’s lawyer and family can locate the individual.
An employer has three days from receiving a request to provide its I-9 forms -- there is no obligation to turn over documents immediately. What an employer should do immediately is contact an immigration attorney to conduct a quick review of the I-9s to ensure that they are compliant. The employer should also maintain its I-9 forms in a location away from where its employees work to preclude an ICE agent from directly observing the workers and work conditions.
What Employers Should Do and Cannot Do
During the ICE visit, make sure someone in management is writing down the names of any agents present and what happened. An employer should write down the name of the supervising ICE agent and the name of the U.S. attorney assigned to the case. An employer should have at least one company representative follow each agent around the facility. This employee should take notes or videotape the officer, note any items seized, and ask if copies can be made before they are taken. If the ICE agent does not agree, the employer can obtain copies later.
Company representatives should not give any statements to ICE agents or allow themselves to be interrogated before consulting with an attorney.
If ICE has an administrative warrant identifying a specific employee, the employer does not have to bring the ICE agent to the employee, and does not have to tell the ICE agent whether the employee identified in the warrant is working that day.
An employer should not hide employees or assist any employee in leaving the premises. An employer should also refrain from providing false or misleading information, denying the presence of named employees, or shred any documents. An employer can ask the ICE agent if its employees are free to leave. If the employees are not free to leave, they have a right to an attorney. An employer should not instruct its employees to refuse to speak to ICE, but should let employees know that they have the right to remain silent and do not need to answer any questions.
An employer can accept the warrant the ICE agent provides but not consent to the search. If the employer does not consent to the search, the search will proceed, but the employer can later challenge the warrant it if there are grounds to do so.
If the ICE agent insists on seizing something that is vital to the employer’s operations, the employer should ask the agent to explain why it is vital and ask for permission to photocopy it before the original is seized. The employer should not block or interfere with ICE activities or the agents.
If the ICE agent wishes to examine documents protected by the attorney-client privilege (such as letters or memoranda to or from counsel), the employer should tell the agent that the materials are privileged and request that attorney-client documents not be inspected until the employer is able to speak to its attorney. If the ICE agent insists on seizing such documents, the employer cannot prevent them from doing so, but should to record exactly which documents were taken. The employer is entitled to ask for a copy of the list of items seized during the search.
If ICE agents act inappropriately during the raid, the employer should ask witnesses to provide written statements regarding the improper conduct.
What To Do Right Now
Employers should train all of their public-facing personnel (e.g., receptionists, security personnel) about the limitations on what ICE agents can do. In this regard, these personnel should know who to call if ICE agents show up. Employers also should train their supervisors and management-level employees on the limitations associated with administrative warrants, and on limitations on how ICE agents can conduct a raid. Employers should also inform their employees about the rights they have during an ICE raid. Finally, employers should have, and advise the appropriate personnel, of the name of a specific attorney to contact if ICE comes calling.
For more information about what to do in response to an ICE raid, or on how best to train employees how to respond during such a raid, NPFDA members can contact NPFDA board member (and employment law attorney) Fred Dawkins at 404-974-9543 or email@example.com.