This article focuses on a workplace raid targeting employees for detention and does not address a Department of Homeland Security (DHS) or Department of Labor investigation into I-9 compliance or other wage and hour issues. For more information on I-9 and DOL investigations, please review our article, Employer Best Practices for DHS or DOL Immigration Compliance Checks.
An immigration raid is a stressful event for an employer and their employees.
While we typically see immigration raids carried out by ICE, under the new Trump Administration, we could see other federal or state law enforcement agencies conducting immigration raids (these agencies include but are not limited to the Drug Enforcement Administration (DEA), Federal Bureau of Investigation (FBI), U.S. Marshalls Service, Bureau of Alcohol, Tobacco, Firearms & Explosives and local Sheriff or Police Departments).
While Employers must not impede immigration enforcement action, they are not required to assist immigration enforcement. What an employer is required to do, and provide access to, depends on whether a space is considered public or private, and whether the law enforcement agency has a signed Judicial Warrant.
This article is drafted using the excellent resources from the National Immigration Law Center and the American Business Immigration Coalition American Business Immigration Coalition. We encourage readers to review the resources available from each of those organizations as well.
PUBLIC SPACES
- Examples of Public Spaces:
- Dining room in a restaurant;
- Parking lot;
- Lobby / waiting area
- Law Enforcement Officials CAN enter a Public Space without a Judicial Warrant
- However, the 4th Amendment of the Constitution protects against unreasonable search and seizure. Often, probable cause is established when a person answers questions about their nationality or immigration status. That is why it is best practice for individuals to exercise their right to remain silent if they are questioned by law enforcement.
PRIVATE SPACES
- Examples of Private Spaces:
- Places marked with a “Private” sign;
- Areas that are normally maintained with closed or locked doors;
- Areas that by company policy, visitors/public cannot enter without permission.
- A Judicial Warrant is required to enter Private Space of an Employer:
- A Judicial Warrant must be signed by a Judge and say U.S. District Court or State Court at the top. It is not uncommon for Immigration Authorities to use an Administrative Warrants (Forms I-200 or I-205) from the Department of Homeland Security (DHS) – Administrative Warrants are NOT Judicial Warrants are NOT sufficient to enter a private space on an employer’s premises.
- Best Practice:
- Train Staff NOT TO TALK to Immigration agents and to direct Agents to speak with Business Owner or Designated Person in Charge
- If Agents attempt to gain access to a Private Space, state, “this is a private space, do you have a Judicial Warrant to access this space?”
- If the Agents do not present a Judicial Warrant that identifies the Company Address, the scope of the search and is SIGNED by a Judge, deny them entry.
- If the Agents have a Judicial Warrant that identifies the Company Address, the scope of the search and is SIGNED by a Judge, read the Judicial Warrant and ask to keep a copy, permit ICE to enter the private space and closely monitor to ensure they keep within the parameters of the warrant
DURING A WORKPLACE IMMIGRATION RAID
- DO Stay calm
- DO NOT make any statements to Agents
- DO watch the Agents to ensure they are complying with the terms of the Warrant
- Best Practice: Have someone follow the Agents and film the Agents during the raid or write down who they speak with, documents they view, areas they inspect
- DO request and write down the names and Badge Numbers of each Agent
- If Agents present an Administrative Warrant for the arrest of a specific employee:
- The Employer DOES NOT have to confirm whether the employee is working;
- The Employer DOES NOT have to take Agents to that employee
- DO NOT help Agents sort employees by country of origin
- DO NOT hand over documents right away, let the Agents know that you want to review the scope of the Judicial Warrant with your immigration attorney prior to turning over documents.
- For third party worksites (e.g. contractors at another business) make it clear to officers that this is not your primary worksite and direct them to Company’s management or ownership for documents or inquiries
- If Agents attempt to question, detain or arrest an employee, DO NOT interfere or impede this interaction, but the Employee should Know Their Rights:
- Employee SHOULD remain silent (they have this right)
- Employee SHOULD NOT provide any documents
- Employee SHOULD NOT sign any documents
- Employee SHOULD contact an experienced immigration attorney
- DO ask Agents where employees are being taken (if arrests are made)
In the event that your organization experiences an immigration raid / on-premises investigation, contact experienced immigration counsel immediately following the raid.
This article is intended for informational purposes only and does not constitute legal advice. You should not act or rely on any information in this article without seeking the advice of a competent, licensed immigration attorney.
Kolko & Casey, P.C.’s excellent team of experienced immigration attorneys and professional staff can be reached at 303-371-1822.
