Employment Law Report
Immigration Enforcement in the New Administration
By: Glen M. Krebs and Glen W. Krebs
The Trump Administration recently repealed the restriction on U.S. Immigration and Customs Enforcement’s (ICE) ability to conduct enforcement actions in sensitive areas. These sensitive areas include schools, medical facilities, places of worship, social service agencies, disaster relief sites, and public demonstrations. With this change come questions about what authority ICE has in these sensitive locations and the best way to respond if ICE unexpectedly shows up at your business or place of employment.
ICE is the primary agency for immigration enforcement, the law enforcement component for the Department of Homeland Security (DHS). ICE enforcement includes identification and arrest of aliens who are subject to enforcement, as well as case management, detention, and removal.
To properly prepare for these situations, it is essential to create a plan in advance and make sure that all employees are aware of proper procedures. It is also important to understand key factors for compliance with ICE requests:
Public and Private Areas
ICE agents are authorized to enter public areas of businesses, such as a lobby or main entrance. They are not authorized to enter any private or restricted areas without a warrant, including offices, examination rooms, or other areas not generally accessible to the public. It is crucial that employees understand which areas are public and private. This distinction can be made clearer by posting privacy signs on areas that are not open to the general public and having a written policy designating private and public areas. It is also important to note that ICE agents can look at anything in “plain view.” Employees should make efforts to cover any documents or computer screens that could disclose patient or client information that could be used by ICE agents.
Compliance with Warrants
If ICE agents show up unexpectedly at a workplace requesting to gain access to private areas to detain an individual or gather information, they must have a proper warrant or subpoena. The two key warrants used by ICE are (1) Administrative Warrants and (2) Judicial Warrants. Administrative warrants are NOT signed by a judge but by ICE officials. It is not a court order and a business or organization is not required to allow access to private areas if an Administrative Warrant is provided. A Judicial Warrant is signed by a judge and allows access to specific private areas listed on the warrant itself. Compliance with a proper Judicial Warrant is required as long as the information is accurate. If the spelling on a warrant does not match the spelling given by the agent or the spelling in your records, it is not necessary to comply. When ICE arrives employees should request documentation from agents to scan to the employer’s legal counsel or other designated administrator the type of warrant and provide instructions on whether compliance is required or recommended.
General Considerations
It is important for employees to document interactions with ICE agents, they should request the agents’ names and contact information. Employees should not escalate situations with ICE agents. Employees should inform ICE agents that they are not authorized to disclose any information until they have conferred with the organization’s legal counsel or designated administrator. Employees should not disclose any personal information of employees, clients, patients, or other individuals unless legal counsel or a designated administrator instructs them to do so.
With uncertainty taking center stage in immigration it is important to prepare in advance. Our expert immigration and labor and employment attorneys at Wyatt, Tarrant & Combs, LLP are ready to assist you in preparing a plan of action and advising on immigration questions and issues.
