What Organizations Should Know about ICE Enforcement Actions

Late Breaking News - Jan. 22, 2025: Shortly after we sent this alert out, it was announced that acting U.S. Department of Homeland Security Secretary Benjamine Huffman has issued a directive that rescinds the Biden Administration’s guidelines for DHS enforcement actions in or near “protected” or “sensitive” areas.

With the new presidential administration’s hard stance on immigration, many organizations are feeling anxious about visits from U.S. Immigration and Customs Enforcement (ICE) and uncertain about what to do should such a visit occur. While enforcement action by ICE has always been possible and does happen on occasion, the chances of such an event occurring at an ordinary place of business have historically been low.  Moreover, for many years certain employers and other establishments have enjoyed some protection from the U.S. Department of Homeland Security’s (DHS) “protected areas” policy, which provides that DHS generally should not take an enforcement action in or near a location that would restrain access to essential services or engagement in essential activities, such as a school, health care facility, or social services establishment. The incoming administration has all but promised to rescind the protected areas policy, leaving perhaps the most vulnerable of institutions at greater risk of DHS enforcement action. While the risk of ICE activity at ordinary places of business may still be relatively low even with recision of the protected areas policy or any other relevant DHS policies with respect to immigration enforcement, it is nevertheless best to be prepared. Arguably, such activity is more likely now than it has been in the past.

It is critical to understand that ICE cannot enter non-public areas of an organization without consent or a valid judicial warrant signed by a federal judge, absent exigent circumstances (such as some sort of urgent national security or public safety threat). A judicial warrant will be issued by a federal court and signed by a federal judge and will include a time frame within which the search must be conducted, a description of the premises to be searched, and a list of items to be searched for and seized. An administrative arrest or removal warrant issued by DHS (Form I-200 or I-205) is not a judicial warrant and does not authorize DHS officers to enter private areas of a premises without consent. Therefore, after establishing the agent’s identity and credentials, it is essential to inquire with the agent whether they have a warrant and if they do, to carefully examine the warrant to identify the type. If the officers claim exigent circumstances, employees or other representatives should not interfere with their attempts to gain access to non-public areas of the establishment (however, you are not required to consent to the entry).

Of course, it is equally as important to understand that businesses generally have no control over what ICE does in public areas of the establishment (such as a lobby or waiting room for private employers, or the dining room of a restaurant) or outside of the physical premises of a facility (such as a parking lot); the organization’s representatives should not be an obstacle to ICE agents in public areas or outside the premises. Obstructing or otherwise interfering with certain ICE activity can be a crime subject to prosecution under federal law.

Employers and businesses should know that the risk of ICE agents coming to a place of business or other type of facility with a valid judicial warrant is likely low, given that judicial warrants are granted in response to, or in connection with, some sort of criminal action or investigation. It is far more likely that ICE agents will appear with, and try to enforce, an administrative arrest or removal warrant, in which case the business is not required to authorize the agent(s) to enter non-public areas of the premises to locate any specific individuals or provide any information to the agent(s) about whether any named individuals are even present on-premises. That being said, certain employers or businesses may want to implement preparedness plans and provide training to employees or other relevant representatives on how to handle a visit from ICE, should the need arise.

In the event of an ICE enforcement action at your establishment, note the following important considerations:

• Always try to contact legal counsel for assistance during the process.  Counsel can provide important guidance throughout the process (such as helping to review any warrant) and may even be able to come assist in person or speak with the immigration officers over the phone.
  
  
• An organization’s job is not to protect any employees or other relevant populations such as patients at a health care facility or students at a school, beyond making efforts to ensure that any search or seizure is carried out lawfully. Do not hide or assist employees (or patients/students/etc., as applicable) in leaving premises, provide false or misleading information, or discard any important documents or information. As noted above, obstructing or otherwise interfering with certain ICE activity can be a crime.
  
  
• Remain calm and cooperative. Even if you have concerns, maintain a professional demeanor and do not resist an officer’s questions or requests.
  
  
• Keep detailed records of the visit: Get the name, telephone number, and business card of the agent(s). Make and keep copies of all documents given to the agent(s), as you are able. Obtain a receipt for any records taken. Take photographs or videos of the search, as you are able/comfortable. Prepare summary documentation of what happened during the visit.
  
  
• The best way for any individual to protect their rights is to exercise their right to stay silent and ask for an attorney. (The organization can inform relevant stakeholders (employees/patients/students/etc., as applicable) that they have the right to remain silent and do not need to answer any questions, but do not direct them to refuse to speak to the agent(s)).

Please contact a member of the Shipman immigration enforcement team listed below to discuss further your organization’s immigration concerns and/or for assistance with the preparation and implementation of preparedness plans.

Immigration Enforcement Team

Brenda A. Eckert
Nina Pelc-Faszcza
Morgan Paul Rueckert