Companies have always faced the potential for a visit from an agent from U.S. Immigration and Customs Enforcement (ICE) but President Donald Trump’s heightened focus on immigration increases the likelihood of that reality. Over the past month, the Trump administration has issued new policies that alter previous guidelines for how ICE agents may act in the line of duty.
Of course, a visit from an ICE agent, like contact with any law enforcement officer, may prompt nervous or inappropriate reactions that do not reflect well on the company and can put employees at risk. Now is an ideal time for companies to take stock of policies and plans for navigating their interaction with ICE, not only for the sake of the business but for the well-being of all its employees.
Recent Changes to Immigration Enforcement
Included in the flurry of executive orders issued by Trump in his first few days in office were several expanding the enforcement power of the executive branch against undocumented immigrants. This includes hiring more ICE agents and encouraging cooperation of state and local law enforcement. Further, the administration has cut back on previously enacted protections for undocumented immigrants.
On Jan. 20 the Department of Homeland Security issued a memorandum, Enforcement Actions in or Near Protected Areas, that rescinded the protection of “protected spaces.” Previously, ICE agents were directed to abstain from enforcement in “protected spaces” to the extent possible because the threat of enforcement in or around those areas “would restrain people’s access to essential services or engagement in essential activities. A wide range of locations were considered “protected spaces,” including schools; places of worship; medical centers and mental health facilities; places where emergency relief is provided; places where children gather; places where funerals, weddings or other religious or civil ceremonies are occurring; and social service centers, such as domestic violence shelters and food banks.
Now, ICE agents have been instructed to use “common sense” to determine whether entry into these spaces is appropriate. The removal of protected status means even more businesses may encounter interactions with ICE agents. Once again, preparation for these encounters is key.
Planning for ICE Visits
Generally, an ICE visit can be categorized as one of the following:
- A pop-in visit without any written authorization;
- Service of a Notice of Inspection;
- Service of an Immigration Enforcement Subpoena;
- Execution of an Administrative Warrant;
- Execution of a Judicial Arrest Warrant; or
- Execution of a Judicial Search Warrant.
Each type of visit, and, most importantly, the documentation accompanying those visits, must be individually analyzed, evaluated, and responded to appropriately and thoughtfully. However, irrespective of an ICE agent’s basis for visiting, certain fundamental response protocols remain the same:
- Designate a point of contact for engagement. A company first and foremost should designate in advance a team member on each site – preferably a manager – who will serve as the point of contact (the “designee”). While it is beneficial to make all employees aware of the company’s protocols and policies for an ICE visit, the designee should be specifically trained to navigate an interaction with an ICE agent.
- Greet the agent professionally, calmly and politely. Although a visit may be disruptive, employees interacting with the ICE agent should not be hostile or confrontational. The designee should focus on being firm in the company’s policies while maintaining professionality.
- Determine the type of visit. Ask the agent for written authorization supporting whatever request the agent makes. Once the type of visit is established, the designee will know better how to respond in accordance with company policy.
- Coordinate with the lead agent. The designee should ask to see the agent’s credentials and ask for a business card; if a card is not available, gather all available contact information.
- Do not interfere or speculate about the response. Do not engage in a physical altercation with the agent, even if the agent is acting beyond the scope permitted by their visit. Do not destroy documents or provide false information. Further, if the agent asks for company documentation, do not speculate as to whether the information is maintained, where it is maintained, its accuracy or any other details.
- Contact identified company attorneys. As soon as it is practical, the designee individual should reach out to and inform the designated company lawyers of the incident.
- Document everything. Whether through pictures, recording or writing, employers should train the designee and other employees to document any ICE visit. This includes capturing any information about the agents (such as what they were wearing, how many of them were there and what their names were), any documents or materials they took and other facts about the interaction.
It cannot be overemphasized that advance planning will produce the best results for the company and its employees. That includes establishing company policies and providing training for employees, especially the designee. An ICE agent trains and prepares to visit your company. You and your employees should do the same.
Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.
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