By Robert G. Brody & Fintan S. Lalor
As promised, U.S. Immigration and Customs Enforcement (ICE) has begun their mass deportation efforts. An expected but undesirable result is millions of immigrants and people of color across the country are left in constant fear of arrest and threat of removal. Consequently, some undocumented people, and even some with proper documentation, are scared to leave their homes and therefore won’t go to work. Employers need to plan for this possibility, but on a proactive approach, employers need to find ways to convince their fully documented workers that it is safe to come to work.
Legally, the basis for ICE’s actions is not fully clear and litigation has already begun to flesh out what is happening and whether it is legal. But employers can’t wait until these legal issues are resolved to decide what to do. Employers need to know what to do when ICE knocks on their door. This article begins to address these issues. Due to the constantly evolving nature of this situation, this article will be updated as more information becomes available.
STEP ONE – UNDERSTAND WHAT THE LAW ALLOWS.
Who can ICE arrest/detain?
While the Administration has claimed their priority is public safety threats (undocumented people suspected of criminal activity), they have also repeatedly stated no-one is “off-the-table.” If ICE obtains a warrant for the arrest of an undocumented individual with a criminal record, they may arrest and detain that individual. What is unclear, however, is the legality behind a “collateral arrest,” where ICE arrests other undocumented individuals who are in the same location as the person listed in the warrant. Even more questionable, can ICE arrest (or detain) other individuals at that location who don’t have their documentation on their person, even though such documentation does exist.
These scenarios reportedly have been happening around the country over the last few days, but the exact details, and the legality of such actions, remain unclear. While the arrest based on judicial warrants seem quite proper, the arrest of others in the area seems questionable unless those people somehow interfered with the arrest. Moreover, the failure to carry documentation proving one’s entitlement to be in the United States is probably commonplace and without more not a basis for arrest or detention. Are we missing something, or has ICE somehow addressed such issues, we don’t know. These critical questions remain unclear, and we will update this article as these answers become more clear.
Where can ICE go?
ICE agents are allowed to enter public spaces, including public areas within places of work. This means ICE can enter retail stores, restaurant lobbies, etc., without any special permission. However, absent permission to enter from the owner (including an authorized representative)/tenant, valid judicial warrants are required to enter private spaces.
It is crucial to note that there is a difference between a judicial warrant, which is signed by a judge or magistrate, and an administrative warrant that is issued by the Department of Homeland Security (DHS), or ICE. A judicial warrant allows ICE to conduct any search authorized in the warrant, whereas an administrative warrant does not give ICE the authority to enter a place where there is a reasonable expectation of privacy (which exists in most private places of business). ICE can also enter private spaces if given permission to do so (for example, if the business owner gives voluntary consent for ICE to enter). This means you do not have to open the door or let ICE into your home or private business unless they have a valid search warrant signed by a judge.
Are there any sensitive locations that are off-limits to ICE?
There was a policy in place that restricted ICE agents’ ability to arrest undocumented individuals at sensitive locations including churches, schools, and hospitals. However, the Department of Homeland Security just rescinded that policy. These establishments must now decide what they will do if ICE comes a knocking; will they let ICE in or not?
Will an individual be immediately deported if they are detained by ICE?
If ICE detains someone, and they are without proper documentation, they normally are held in a detention center while their trial or potential deportation is pending. Historically, this process took months or longer. In some cases, however, that individual may be subject to “expedited removal.” This could result in them being deported without a hearing in immigration court. If someone has been in the country for less than two years, they can be subject to expedited removal. Expedited removal was also historically used for detentions near the southern border, but now it is available for use nationwide. DHS’s recent expansion of expedited removal puts undocumented individuals at greater risk of being deported without the right to fight their case in front of an immigration judge. It is unclear at the moment how these proceedings are unfolding in practice, and we will update this article as we find out more details.
STEP TWO – WHAT WILL YOU DO WHEN ICE “COMES A KNOCKING?”
As an employer, you have many options to consider. If ICE comes knocking, will you answer the door? You do not have to. If you answer their knock, will you open the door? Again, you do not have to. If they say they have a warrant, do you know the difference between a judicial and administrative warrant? Do you know how to read it to understand what ICE is permitted to do and where their authority ends? If you are asked to let ICE into private areas of your office, will you agree. If they ask you to identify the object of their search, will you? Will you offer other information about your employees? If they ask for your I-9’s will you provide them immediately – again this is not required. These are just some of the questions you should answer before you hear the knock.
And what about your I-9s? Are they in order? Are they kept in a file separate from the rest of the employees’ personnel files? Have you audited your I-9s recently and is the result privileged or can ICE see the results of your audit?
And finally, what about your employees? Are they likely to come to work if they hear about local raids by ICE? Even if they are fully documented, might they still stay home out of fear? Have you discussed this with them? Do you want to assure them you won’t voluntarily let ICE in your doors without proper warrants? If you have a large number of employees who might get caught up in this immigration issue, have you spoken with your counsel in advance. Can you reach them when you hear the knock?
You have many options and many decisions to make. We urge our clients to start answering these questions now. Over time, we expect to better understand what ICE is doing and the best responses, but we don’t have all those answers and experiences yet. Plan ahead and get ready for when you hear that knocking at your door. Good luck.
Brody and Associates regularly advises its clients on employment verification issues, the use of E-Verify, and all matters related to I-9s. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
