In light of the new administration’s focus on immigration-related issues, many employers are seeking guidance on how to best prepare for a potential U.S. Immigration and Customs Enforcement (ICE) raid. Employers are wise to educate their employees on the organization’s response protocol for an ICE visit, as well as to advise their employees of their rights should they be approached by ICE during a raid.

Best Practice For Employer Clients

Get Prepared in Advance

Employers should develop a protocol for a potential ICE raid, educate employees who will be involved, and practice for the event just like you would for a fire drill.

• Designate a Point of Contact to communicate with ICE agents.
• Prepare guidelines or instructions for your front desk receptionist. They should know to immediately reach out to Point of Contact.  This employee – and others – can say “I am not authorized give you permission to enter. You need to talk to my employer.”
• Develop a protocol and distribute it to key employees, including guidance on documenting key information.
• Provide Know Your Rights trainings to employees with an emphasis on employee rights during an ICE worksite raid or encounter. These rights include the rights to remain silent, speak to a lawyer, and refuse to answer questions.
• Practice your response protocols. Practice will ensure employees and the designated Point of Contact are prepared in the event of an ICE raid.
• Ensure private areas are locked or marked “private” or “employees only.”  ICE agents cannot enter private areas without a judicial warrant signed by a judge or without consent of the employer.

When ICE Arrives: What To Do

• Employer should its attorney. If the attorney can go to the premises immediately, ask ICE agents to wait for the attorney to arrive before proceeding.

Where can the ICE Agents go?

• ICE agents can be in public areas such as parking lots, waiting rooms, or lobbies without a warrant. However, if ICE agents are there without a warrant and start harassing employees or customers or interfering with business’s operations, employer can ask agents to leave.
• If ICE agents ask to or try to enter a private space, the designated Point of Contact should ask for a copy of the judicial warrant and read it carefully.
• Train employees regarding the difference between a judicial (US District Court) and administrative warrant.
• An administrative warrant—which says “Department of Homeland Security” at the top—is insufficient to allow ICE agents access to private areas.
• A judicial warrant should be signed and dated by a judge and will also include a timeframe for the search, description of the area to be searched, and a list of items to be searched for and seized.
• The designated Point of Contact can accept the warrant but choose not to consent to the search. If you do not consent to the search, the search will proceed but you can later challenge the search if there are grounds to do so.
• One company representative should follow each agent around the facility.
• The employee may take notes or videotape the officer.
• The employee should note any items seized and ask if copies can be made before they are taken. If ICE does not agree, employer can obtain copies later.
• Watch ICE agents to ensure they are complying with what is written in the warrant.
• If ICE agents are searching areas not listed in the warrant, object to those searches and keep note. Employees should not block or interfere with ICE activities or the agents.
• Request reasonable accommodations as necessary:
  • If agents insist on seizing something that is vital to employer’s operation, explain why it is vital and ask for permission to photocopy it before the original is seized.
  • If the officers ask to take computers or electronic devices that are covered by the warrant, employer can request that the officers image the devices rather than seizing them.
  • If seizure of any items interferes with employer’s ability to conduct business, employer should request that agents not take the items but image/copy the items instead.
• If ICE agents present a valid search warrant and want access to locked facilities, unlock them.

Handling employees

• Instruct employees to stay calm.
• Advise that if employee flees, ICE agent will have probable cause to arrest that individual.
• Employees may choose whether to speak with ICE.
• Employer should not direct employees not to cooperate with ICE or to refuse to answer questions.
• Employees do not have to hand over any IDs or papers to ICE.
• Ask ICE agents if employees can leave.
• If they are not allowed to leave, they have a right to an attorney.
• Employees should be counseled that they have the right to remain silent and ask for an attorney and do not need to answer any questions.
• If ICE arrests any employee, ask ICE agents where he or she is being taken. Provide this information to the employee’s family and ensure any money owed to the employee is paid.

What to do after the raid

• Ask for a copy of the list of items seized during the search. Agents are required to provide an inventory.
• Save any company surveillance taken during the raid.
• After a raid record the following: How many ICE agents were present, how they were dressed, if they were visibly armed, the name and badge number of the supervising ICE agent, the name of the U.S. attorney assigned to the case, whether agents made employees believe you could not move or leave, and if agents mistreated anyone.
• After a raid notify the employees’ union, if applicable.

When ICE Arrives: What to Avoid

• Do not allow ICE agents into private areas if they do not have a judicial warrant signed by a judge.
• Do not allow ICE agents into private areas if they only have an administrative warrant.
• If the agents do not present a valid judicial warrant, the designated Point of Contact should inform the agents that the employer does not consent to the agents entering private areas of the workplace.
• If ICE presents you with an administrative warrant with an employee’s name on it, the employer does not have to answer an inquiry  if that employee is working that day. Employer does not have to or take the ICE agents to the employee named on the administrative warrant if the employee is working at that time.
• Do not help ICE agents sort employees by immigration status or the country they are from. Employees do not have to move if ICE tries to determine immigration status by asking employees to stand in groups by status.
• The officers may ask to speak with employees or move them into different areas to be spoken to. Do not interfere with the officers’ attempts to speak with employees.
• Employer does you do not need to assist the officers in the request by, for example, providing information concerning any employee’s immigration status, national origin, or by identifying any specific individuals that ICE may be looking for.
• Do not hide employees or help them leave the premises.
• Do not provide false or misleading information, falsely deny the presence of named employees, or shred documents.
• Do not block or interfere with ICE activities or the agents if they have presented a judicial warrant.

If you have any questions or comments, please do not hesitate to e mail Ashley Adams at , or Chase Wortham at .