Mass Deportation of Immigrants: What are Your Rights When ICE Arrives at Your Workplace?

By Marylou Fabbo - Skoler Abbott P.C.

November 27, 2024

President-elect Donald Trump has promised to resume and intensify deportation efforts when he returns to office. That announcement has sparked a wide-range of reactions from staunch support to vehement opposition.  Mr. Trump’s stated plan focuses on increasing the number of deportations, particularly targeting undocumented immigrants with criminal backgrounds.  Economically, the impact of large-scale deportations could be mixed. While some argue that it could open up jobs for American citizens, others point out that many undocumented immigrants work in sectors that are crucial to the economy, such as agriculture and construction. Removing a large portion of the workforce could lead to labor shortages and increased costs for consumers.

Recently, Mr. Trump announced that Tom Homan, who served as the acting director of Immigration and Customs Enforcement (“ICE”) during his last administration, will be in charge of the nation’s borders and hold overall responsibility for deporting undocumented workers.  Mr. Trump has also stated that he may declare a national emergency to utilize the military to assist in deportation.  While we do not yet know what the final plan will be, employers can be certain to see an uptick in ICE visits to their workplaces.

Many employers employ undocumented immigrants.  Some are aware of that fact, and some are not.  Our firm has received numerous calls from employers seeking advice on what to do when an employee has told them that the employee has been using someone else’s identification and social security number.  When ICE agents arrive at a workplace unannounced, it can be stressful for both employers and employees.  Regardless of what your position is on deportation, understanding your rights and obligations as an employer is crucial to ensure that the situation is handled legally and ethically-and that you do not end up in hot water.

The Low Down

Despite what many may think, immigration agents cannot arrest you and throw you in jail if you don’t answer their questions on demand and do exactly what they say.  When you have nothing to hide and know what you can and can’t do, a display of hysterics in front of the ICE agent is not going to result in anything other than your co-workers making fun of you at future employee gatherings for the rest of your time at the company.  I read that information helps reduce anxiety associated with the unknown, so here’s some information that may help keep you calm in the event that ICE arrives at your workplace.

Were heeeerrre!

Immigration agents may go to a workplace to conduct a Form I-9 audit, a raid, or to detain specific people.  ICE doesn’t always ring the bell before entering.  ICE can enter the public areas of your business, such as your lobby, without your official permission.  Still, ICE does not have the authority to stop, question or arrest just anyone simply because they are in a public area.

For access to the private areas of your business, ICE needs either your permission or a judicial warrant.  A judicial warrant is from a court and is signed by a judge.  Don’t be fooled by an administrative warrant. An administrative warrant usually says “Department of Homeland Security,” and it does not give ICE the right to enter private areas of your business without your permission.  Don’t get confused or be tricked:  You do not have to allow ICE to enter any private area without a judicial warrant even if they act like they have authority to go wherever they want.  Having a judicial warrant only gives ICE authority to enter into the areas identified on the warrant to be searched.

Where’s Employee X?

If ICE has an administrative warrant identifying an employee, there’s two things you do not have to do. You don’t have to bring the agent to the employee and you don’t even have to let the agent know if the employee is working that day.

The Right to Remain Silent

Human resource personnel, the company president, and all other employees can ask to speak to a specific attorney or ask the immigration officer for a list of pro bono lawyers before saying anything before speaking to immigration authorities or answering any questions.  In fact, everyone can just stay silent if they want.  No one has to state where they were born or whether they are in the US legally.  Employees also do not have to sign anything.  No one is required to group according to country of origin.  If an employee is asked to do so, the employee can simply walk to an area where no one is being grouped.  Employees do not have to show identification or other papers to ICE agents.  If ICE agents arrest anyone, ask where they are being taken so the employee’s lawyer and family can locate the worker.

The I-9 Audit

In the past, we have blogged about the importance of conducting an I-9 self-audit as the number of federal audits had steadily risen.  Because ICE’s enforcement actions have continued to include extensive I-9 audits, it’s hopeful that you conducted a self-audit and have no concerns about what ICE agents might find if they show up.  There’s a few things you should know, however.  First, you don’t have to and should not turn over  your documents immediately.  Employers have three days from receiving a request to provide their Form I-9s.  Second, you should contact immigration attorney before providing anything to ICE.  The attorney may do a quick review of your I-9s with you to insure they are compliant.  Third, you should notify employees and their union representative (if any) about the audit as soon as possible.

After the Visit

During the immigration agent(s)’ visit, make sure you write down the agent’s names and what happened.  After the visit, fill in any blanks in your notes and contact an immigration attorney for guidance on next steps.  If immigration agents acted inappropriately, ask witnesses to provide written statements.  And, of course, if ICE notified you of any violations, correct them immediately.   Lastly, keep in mind that the rules and standards may change once the new administration gets to work.

Training and Preparedness

It may be worth your while to contact your employment lawyer to conduct “Know Your Rights” training sessions for employees.  Training sessions usually cover what to do if ICE comes to the workplace, how to interact with ICE agents, and the rights of both employers and employees, among other things.

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