Great tips on what to do if ICE Visits

What To Do If Federal Immigration Authorities Arrive Unannounced

Immigration officers such as Immigration and Customs Enforcement (ICE) or Citizenship and Immigration Services (USCIS) or others may arrive unannounced at a workplace or other commercial property to inspect I-9 records, conduct an administrative site visit for a compliance review, request certain documents with a subpoena, or apprehend individuals. Under California law the company, property owner and other people who are physically present are prohibited from giving consent for law enforcement to enter nonpublic areas of the workplace or commercial property for immigration enforcement unless the officers present a judicial warrant (signed by a judge). California law also prohibits release of documents or records to immigration officers unless the officers present a judicial warrant, except for I-9 Notices of Inspection. Unannounced visits by law enforcement are stressful and employees or occupants generally feel pressure to do whatever law enforcement officers ask of them in the moment.  It’s important for individuals who greet visitors to the business or property that they are not necessarily required to do whatever immigration officers request.  The tension is alleviated when employees and occupants understand in advance that they don’t need to give consent and may not have the authority to give consent.  In many cases all they need to do is collect some information from the law enforcement officers and then contact a person at the company or the property owner who is authorized to represent the company in law enforcement situations and can determine whether a judicial warrant is involved.

Warrants, Subpoenas and Consent

Typically immigration officers are acting on civil, not criminal, authority. The warrants and subpoenas these officers use to request documents, information and access to a workplace or private property, or to apprehend individuals, generally are administrative warrants signed by someone at their own agency (not judicial warrants signed by a judge). Administrative warrants do not authorize officers to enter nonpublic areas of the workplace or property, without proper consent of the company or property owner.

Under California law, company officers and employees and private property owners and occupants are prohibited from giving consent, providing documents, or helping federal immigration officers access nonpublic areas of the workplace or property, unless the officers have a judicial warrant properly signed by a judge with jurisdiction over the matter. In fact, most employees don’t even have the authority to give consent on behalf of the company.  In some cases the occupant of a private property (for example, a guest) doesn’t have authority to give consent to enter the property.  Once consent is given, even if it violates California law, and the officer enters private areas of the premises, even if the person didn’t have authority to consent, it can be hard to unwind the damage done. . It can be difficult to distinguish among different kinds of warrants and subpoenas.  So it is best to consult counsel if any type of warrant or subpoena is presented.

USCIS officers conduct unannounced site visits to confirm that sponsored foreign nationals are employed as described in the company’s approved immigration application, and these site visits do not require a warrant or subpoena. Federal immigration officers generally have no greater access to personnel records than any member of the public unless they have a judicial warrant. An important exception is immigration records (not the full personnel file) for foreign nationals sponsored by the company for employment.  Immigration officers conducting routine visits should be referred to a company officer who has the authority to act on behalf of the company in a law enforcement situation and who can determine whether a judicial warrant is required and which company records the officers may inspect to confirm immigration status of employees.

If the purpose of the visit is to inspect I-9 records, the company doesn’t have to agree to a same-day inspection. Immigration officers tend to arrive at the workplace and request to inspect the I-9s immediately. But the law provides employers three days to respond to an I-9 Notice of Inspection. Always request the three days to respond, so you can organize your I-9 records and respond in an orderly manner without inadvertently allowing law enforcement officers to review personnel records or other information outside the authorized scope of an I-9 inspection, or information for which a judicial warrant is required under California law. Under California law employer are required to provide notice of I-9 inspections to all employees within 72 hours.  It’s best to send the I-9 Notice of Inspection to counsel for review immediately and to discuss next steps with counsel including the required notification to employees.  Employers may face significant fines for I-9 violations even if they are technical violations on I-9s for U.S. workers.

Federal law prohibits hiding evidence, concealing individuals who are the targets of law enforcement, or interfering with an arrest. Also it’s important for employees to avoid putting themselves in physical danger during any immigration enforcement action at the workplace. Immigration officers sometimes may exercise criminal enforcement powers or may work with criminal law enforcement officers who may present a criminal arrest or search warrant that gives greater authority to enter areas of the workplace that are not open to the public.

Individuals who are targets of immigration enforcement actions have civil rights under U.S. law regardless of their citizenship or immigration status. For example, individuals are not required to allow law enforcement to enter their residence or nonpublic areas of a property unless the officers have a judicial warrant (signed by a judge). The American Civil Liberties Union (ACLU) has prepared one-page “Know Your Rights” flyers and offers red cards that individuals can slide under a door to assert their civil rights without opening the door and thus giving consent to immigration officers to enter. Copies of the ACLU “Know Your Rights” flyers are attached (in English, Spanish and French).  Please feel free to distribute or post these flyers in any way you see fit, to educate your business colleagues and employees, the community and targeted individuals about their rights in immigration enforcement actions.

Establish a Company Protocol

It’s important to establish a protocol to follow if immigration officers or other law enforcement officers come to the workplace or a commercial property.  Determine who has the authority to act on behalf of the company or the property owner in immigration enforcement matters, and of those individuals, who are the individuals responsible for doing so if immigration officers arrive unannounced at the workplace. Communicate this information widely so every employee or occupant understands whether they personally have the authority to act on behalf of the company in a law enforcement situation and, if so, whether they personally are responsible for doing so or should convey the information to another company officer who is the responsible party in the moment when law enforcement arrives unannounced.

Immigration officers tend to encounter first the employees who greet and admit visitors to nonpublic areas of the workplace. But admitting customers and vendors for routine business is very different than admitting law enforcement to nonpublic areas of the business to review documents or apprehend individuals. Employees who first interact with law enforcement officers upon arrival simply should ask the officers for their names, identification numbers and agency affiliation; ask for a copy of the warrant or subpoena; and inform the officers that they need to contact the company officer who has the authority to act on behalf of the company in this situation.

Don’t Give Consent Or Release Information - Follow Company Protocol

If an immigration officer presents a warrant or subpoena seeking records or information for immigration enforcement, or is ask to enter nonpublic areas of a business or property, know first and foremost that California law prohibits giving consent to immigration officers in most situations.  Follow company protocol by gathering basic information from law enforcement officers and then contact the appropriate company officer or the property owner.

Leigh Cole

lcole@hkemploymentlaw.com

www.hkemploymentlaw.com