The LA Times reports that a “large scale” immigration raid will hit Los Angeles soon, according to leaked internal documents. The U.S. Immigration and Customs Enforcement (ICE) will lead the operation, but it’s expected to be so expansive that local FBI and DEA agents will be asked to assist.
The raid will be aimed primarily at capturing illegal migrants and those with pending orders of removal, according to an internal government document leaked to the newspaper.
Because of the new administration’s focus on the deportation of undocumented immigrants, employers should know their rights and obligations if and when ICE visits their workplace.
In addition to the list of the recommended actions that employers should consider if they’re the target of an ICE raid or audit, they should contact an attorney as soon they know that ICE is conducting a raid or audit of their operation.
ICE agents may visit a location for a Form I-9 audit, a raid, or to search for specific people.
ICE Raids
ICE raids or enforcement actions are employed to detain undocumented employees and are typically targeted towards specific individuals. ICE frequently targets its raids towards industries believed to have a flow of undocumented employees. Some examples are hospitality, agriculture, manufacturing, and construction.
ICE may conduct a raid on an employer without notice, with the agents arriving to conduct a search, collect documentation, and to talk to employees. Employers should take these steps:
- A company representative should be designated to answer questions and serve as the contact person with the agents during or after a raid.
- If ICE officers arrive at the location, the front desk personnel should contact the company’s designated representative immediately.
- The representative in turn should immediately contact the company’s legal counsel.
- The representative should tell the agents that the company’s attorney has been contacted.
- The representative should request identification and get the agents’ names and badge numbers.
- If the attorney can be at the location quickly, the representative should ask that the agents wait for the attorney to arrive before moving forward.
- The representative should ask the agents if they have a warrant; if so, the representative should examine the warrant.
- The warrant should be valid, which means it’s signed and dated by a judge, with the time parameters for the search, a description of the location to be searched, along with a list of items to be searched and seized (which are frequently payroll and time records, I-9 forms, and employee identification documentation).
- The representative should request a copy of the warrant to give to the company’s attorney.
- The representative can accept the warrant but should tell the agents that the employer doesn’t consent to the search. (The agents will proceed; however, opposing the search permits the employer to possibly contest the search later).
- Without a warrant, the agents are still permitted to enter into any public areas of the business but can’t enter into any private areas without the company’s consent.
- Don’t provide false information to the ICE agents or try to destroy or conceal any evidence.
- Locked areas covered by the warrant should be unlocked if the agents ask.
- The company representative should follow the agents and document their search by taking notes and/or recording a video.
- The representative should make a list of any items that are taken and ask the agents if copies of any documents can be made before they are confiscated.
- If the agents want to take PVCs or phones that are covered by the warrant, ask that they image the devices rather than seizing them, especially if the seizure will disrupt with the operation of the business.
- Don’t interfere with the agents’ efforts to talk with employees.
- Request that the agents provide the representative with a list of all items taken during the raid.
- Immediately after a raid, the company representative should document the raid details, including the number and names of the agents present, that actions taken, as well as any specific details of any requests made by the agents and the answers to these requests.
Note that a raid may take several hours, and if employees have any issues that may need to be addressed, like a medical or family issue, tell the agents and ask for their cooperation in accommodating the employee’s needs.
ICE Audit
ICE may conduct an I-9 audit instead of a raid. The agency will give the employer a copy of a notice of inspection via hand delivery, FedEx, or certified mail. The notice will require the employer to provide ICE with copies of all requested records within three days of your receipt of the notice. Employers should contact their attorney right away.
If the business employs members of a union, that union also will need to be told about the audit request. A notice of inspection often asks the employer to produce the following:
- All I-9 forms (and Form I-9 supporting documents from List A/B-C, where applicable) for current employees and terminated employees within the I-9 retention period;
- A list of current employees;
- A list of terminated employees within the I-9 retention period;
- Payroll records;
- E-Verify records (if applicable) information regarding your I-9 electronic software and related audit trail;
- Business information; and
- Ownership information.
When this documentation is sent to ICE, it will be reviewed. The agency will inform the employer of the results. This could take a considerable amount of time to complete, perhaps even years. If no violations are found, ICE will provide the employer with a letter of compliance.
If ICE says that some workers are unauthorized, the employer will be told in a Notice of Suspect Documents. The employer will then have 10 days to provide legitimate work authorization documents for these individuals and/or terminate them and provide evidence of this. Penalties for violations can range from a simple warning to civil or criminal penalties. Employers can dispute violations and/or penalties in an administrative hearing.
Takeaway
The new administration has significantly expanded ICE enforcement operations and is targeting a broad swath of locations and employing advanced methods to identify undocumented individuals.
Employers should have their legal counsel provide I-9 training. This can be a mitigating factor with ICE, and it may show good faith compliance if the employer is subject to an audit. Employers should work with their attorney to perform a proactive internal audit, which would then be protected under the attorney-client privilege.