In light of the New Administration’s Executive Orders as they pertain to immigration matters, one of the critical issues to address is how US employers and their employees can prepare for any worksite “raids” conducted by ICE. It is important to distinguish “raids” from I-9 audits. The latter entails ICE notifying the US employer with a formal “Notice of Information” of its intent to audit the I-9s and supportive documentation.
This article pertains to raids whereby ICE shows up to places of employment without any notice.
Know your rights as an employer and of your employees:
- ICE officers are not allowed to enter employers’ private premises without either YOUR permission or a JUDICIAL warrant signed by a judge and which says “U.S. District Court” or a State Court at the top.
- An administrative warrant which is often presented by ICE officers is NOT a judicial warrant and does not allow ICE agents to enter the premises. Administrative Warrants are from DHS and say, “Department of Homeland Security’ and on forms I-200 or I-205: it is a NO GO to let ICE agents in!
- ICE agents cannot interrogate anyone without your permission or the permission of the employee who they try to interrogate.
- All employees and the employer have the right to remain silent and request the presence of an attorney
- Even if ICE has a judicial warrant to allow them to enter the employer’s premises, the employer and the employees have the right to remain silent and request the presence of an attorney
- ICE agents are NOT police officers, but their uniform may say “Police” of “Federal Agent” ; they may carry guns; they may be accompanied by local police officers: regardless, the uniform and raiding “scare tactic” does not give them any right to enter without again the employer’s consent or a judicial warrant.
What to do to prepare:
- Make sure all areas of work except public areas are clearly labeled at the entrance as “private area; cannot enter without permission”.
- Have a clear policy to all workers that visitors and the public cannot enter those areas without permission
- Public areas include a dining area in a restaurant, a parking lot, lobby and waiting areas. You can make parking areas restricted to workers only if privately owned or privately leased
- Make sure all private areas have locks and are locked.
- Train your staff to understand the above and to not panic! Staying calm is the best policy; if a worker left the premises during the raid, they are facing higher risks outside of the employer’s site.
- Call your immigration attorney. Should you preventively secure representation, the attorney will provide you with a G-28 that represents the employer. Train your employees to state the following if ICE showed up:
We do not give your permission to enter these private premises; do you have a JUDICIAL warrant?”
If ICE responds they have a warrant, then ask:
Please provide me with the judicial warrant.
If they do present a Judicial Warrant (unlikely) then proceed to let them in but prior to do so state:
We require the presence of our attorney and will not answer any questions and/or provide any documentation without the presence of our attorney
If the Ice officers are coming to arrest for instance specific employees (removal orders, criminal records etc) :
- Do not help ICE agents to sort out employees
- ICE agents may try to stop, arrest a worker without proper authority but can arrest a worker if they have “probable cause” the worker is removable such as removal order in place and/or criminal records, or the worker poses a national security risk ; But again they cannot enter the premises without a judicial warrant
- Workers do not have to hand out any documents and/or IDs to ICE, can and should remain silent and request the presence of an attorney.
What to do immediately after the (tentative) raid if no judicial warrant or raid if judicial warrant was presented:
- Keep a record of how many ICE agents were present
- Were they dressed and/or armed?
- Did they make your workers believe they could not leave, that the agents could enter without a judicial warrant and that the workers did not have any rights?
- Did the agents mistreat anyone and if so how?
- Notify the employee’s Union, if any
- If there are any arrests: requests the ICE agents where they are being taken so that family and lawyer can be contacted.
Do not hesitate to contact the undersigned at crhenin-clark@hahnlaw.com or at 321.214.2669 for any questions.
