In the weeks since Inauguration Day, Immigration and Customs Enforcement (ICE) officers have been busy carrying out President Donald Trump’s campaign promise of mass arrest and deportation of illegal immigrants.
The speed with which ICE raids have ramped up has left businesses, schools and other organizations scrambling to learn what their rights are if ICE comes knocking on their doors.
While legal experts point out that businesses do, indeed, have rights, they lean on an old Boy Scout motto as the key to their advice: Be prepared.
Julianne Cassin Sharp, who leads the Immigration Practice Team at Detroit-based law firm Miller Canfield, said the key thing is to “just be ready.”
“Have a designated point person, have a plan,” said Sharp, who has represented companies and individuals in the areas of business-based and family based immigration law for more than 20 years. “Have a designated representative who’s going to respond on the behalf of the company should ICE appear, and then have an action plan.
“Then there’s always a person at the forefront, the person who’s the frontline person who is going to receive ICE,” she added. “If somebody shows up on the doorstep, you’re going to have that … point person who’s going to know what to do and be aware of the plan. And then that person is going to contact that designated representative, who is going to act on behalf of the company to ensure that the company’s plan is properly followed.”
Sharp’s areas of expertise include immigrant and nonimmirant petitions, foreign labor certification, adjustment of status applications, waivers, naturalization, consular processing, and advising companies on corporate compliance audits and risk assessment, including Department of Homeland Security I-9 audits and Department of Justice investigations.
Corp! Magazine talked with Sharp about a variety of issues surrounding immigration and the ICE policies:
Corp! Magazine: What rights do businesses have if ICE shows up at their door?
Julianne Cassin Sharp: It depends on how they show up, for a “raid” or an inspection. There’s a difference. A raid is more to detain undocumented employees. That’s really the goal. And they’re typically targeted. The agents aren’t looking for random individuals, and they’re really looking for more so specific individuals they want to detain. A lot of times the raid is targeted toward an industry known to have more of an influx of undocumented employees, like cleaning company restaurants, skilled labor construction, those types of industries.
A formal inspection is more like ICE agents visiting premises for a Form I-9 audit just to make sure that people are completing their I-9s properly (the employee identification and employment verification form that all employees of U.S. companies must complete.
Corp!: Can they do the raid without a warrant?
Sharp: So that’s a really great question. What that comes down to is essentially, and part of the ICE action that I’ve advised clients on, is when the ICE officer comes and the representative talks to them, they should ask for ID — name, badge number, all of that kind of stuff.
Then we tell them to ask the officer if they have a warrant. And if ICE has a warrant, you have to check the details of the warrant. And then there, there’s two different kinds of warrants. A judicial warrant should be signed and dated by a judge, and then if it doesn’t contain all the necessary components of a judicial warrant, then the warrant is not valid. (Businesses) should contact counsel immediately. You can accept the warrant, but you tell the officers that you don’t consent to the search to preserve your right to conduct the search at a later date.
Then there’s also an administrative warrant with the employee’s name on it. And you don’t have to state if the employee is working on that day or not. You do not have to take the agent to the employee named on the warrant, even if he or she is at work on that day.
Corp!: What can ICE do once you’ve established what kind of warrant they have?
Sharp: So if ICE doesn’t have a judicial warrant, you can allow them into public areas of the business. They can’t enter private areas without consent. You can state that they do not have permission to enter the private areas.
Corp!: That’s a lot of information for businesses to process.
Sharp: We’re still trying to figure out, there’s a lot here that we’re trying to tell people. A lot of times right now we’re telling them just contact counsel. We give general guidance, but these people aren’t lawyers. These people don’t know what a warrant should look like. We’re trying to provide guidance the best they can.
Corp!: Once the warrant is established, what’s next?
Sharp: Don’t physically interfere with the officers’ search of the premises. If the warrant’s proper, then they can search. I do recommend that they cooperate. Which basically just means ‘don’t interfere.’
Corp!: What can a business do if ICE makes an arrest or confiscates other items?
Sharp: You can ask the officers for a list of all the items taken during the raid. If ICE arrests any individuals, you ask the ICE officers where the individual is being taken. They should have that information and provide it to you.
And then after the raid, that designated company representative should document all the details of the raid, including how many agents there were, how they were dressed and armed, and documents or the individuals that were taken, etc., so that you can provide all of that information to counsel. Because then once counsel has that information, then that’s how counsel knows how to help.
Corp!: There have been reports of documented immigrants getting caught up. How do they avoid that?
Sharp: Anyone who’s not a U.S. citizen or U.S. National and who is 18 years of age or older is required to carry their documents on them at all times. So it just doesn’t really necessarily help undocumented individuals. We’re telling people, even if you’re documented, even if you’re here and you’re authorized to work, or even if you’re a U.S. citizen or a green card holder or have no cause for concern, keep your documents on you right now, you can’t afford to be without them because if you don’t have proof of it … we’re in a situation right now where you can’t be too careful.
