Responding to ICE Enforcement Actions on Company Property: understanding your rights and the reach of administrative and judicial warrants
The below summarizes key differences between judicial warrants and administrative warrants in the context of U.S. Immigration and Customs Enforcement (“ICE”) enforcement actions (in public versus non-public spaces) and provides general guidance for responding to ICE attempts to attempts to enforce immigration laws on company property. To better understand your company’s rights and obligations in specific circumstances, it is important to seek the advice of experienced counsel.
Summary: Absent voluntary consent, ICE is not permitted to enter non-public spaces without a judicial warrant. An administrative warrant, on the other hand, only authorizes ICE to make arrests, but only if that arrest occurs in a public space. An administrative warrant will never authorize agents to enter non-public spaces, or to conduct any searches or seizures of property. As further explained below, regardless of the type of warrant, in all cases you have the right to remain silent and cannot be compelled to volunteer any information.
Non-public versus public spaces: First, it is important to distinguish between public spaces and non-public spaces as pertains to company premises. Non-public spaces include all areas the general public may not access without specific permission. Even if you have a lobby for customers and other visitors, the lobby is considered a non-public space if you need a security key to enter, or if entry is otherwise prohibited without specific permission from your company (through a person duly authorized by your company to grant such permission). The non-public space can even extend to include parking lots and surrounding outdoor areas, provided it is posted indicating that public entry is prohibited without permission.
Judicial Warrant versus Administrative Warrant: A judicial warrant is a warrant issued by a state or federal court and signed by a state or federal judge, respectively. A warrant (or other document purporting to be a warrant) that is not signed by a state or federal judge is not a judicial warrant. A warrant signed by any other type of judge (including an immigration court judge) is also not a judicial warrant. Only a judicial warrant can authorize ICE to enter non-public spaces or to conduct searches or seizures of property. All other warrants (including an administrative warrant) do not authorize agents to enter non-public spaces or to conduct searches. Moreover, a judicial warrant only authorizes agents to perform the scope of activities identified in the document and only within the specified time frame. A judicial warrant will identify the specific areas and property to be searched, and the persons to be arrested or property to be seized. Agents are prohibited from taking any action beyond the scope of activity specified in the warrant.
An Administrative warrant is issued by a federal agency (e.g., Department of Homeland Security) and signed by an agency officer or judge (e.g., immigration court judge). An administrative warrant only authorizes arrests or seizures of property if conducted in public spaces (it may also authorize actions related to that arrest, such as removal/deportation). To emphasize, an administrative warrant for the arrest of an employee does not authorize an agent to enter non-public spaces of company property.
Subpoenas and other enforcement actions: In rare instances, ICE agents or officers may arrive with a subpoena – either a judicial subpoena or an administrative subpoena. Like a judicial warrant, a judicial subpoena must be issued by a federal or state court and must be signed by a federal or state judge, respectively. Any other subpoena is an administrative subpoena. The distinction is beyond the scope of this blog. Suffice to say, a subpoena will only require you to produce documents or to attend a deposition at some point in the future, with very limited exceptions. Agents may use the subpoena as pretext to grant entry to non-public spaces. Without a judicial warrant, in nearly all cases, you should not grant permission to enter.
ICE also has the authority to inspect documents related to Form I-9 compliance. However, in order to inspect such documents, you must first be served with a Notice of Inspection. You must be provided with at least three (3) business days to produce theI-9 documents identified in the Notice. The Notice does not provide agents the authority to enter company property. And never produce documents immediately upon being served with the Notice. Upon receiving a Notice (or purported Notice), immediately seek legal advice.
General guidance for responding to ICE agent visits: As preliminary matter, it is important to understand that ICE agents employ various tactics to obtain consent to enter non-public spaces or to conduct searches or seizures. These tactics may, in some instances, include intimidation (e.g., showing up in large numbers, conspicuously displaying weapons, eliciting fear through other means, etc.), misrepresenting their legal authority or the authority of documents, and telling individuals that granting consent will benefit the employer in the long run. In most instances, these tactics are not within the scope of ICE legal authority...but they are highly effective. This highlights the importance of understanding your rights and establishing protocols for responding to agent visits and training your personnel.
When ICE arrives on company property you should first -- request identification (i.e., badge) and any documentation they have related to the visit (e.g., warrant or subpoena). Carefully review the document, identify whether it’s a judicial warrant, administrative warrant, or subpoena. Identify the scope and timeline of permitted activities in the warrant. Ask about the nature of the visit. Be professional, but do not volunteer any information. You have a right to remain silent, and to refuse to answer any questions. If appropriate, advise the ICE agents you are exercising your right to remain silent, and that you need to seek advice of counsel before any further communication. Unless specifically required to do so by a valid judicial warrant, under no circumstances should you provide consent to enter non-public spaces or to speak with any of your company’s employees, even if the agents have an administrative warrant for the arrest of that individual. Document the visit, including identifying the agents by name or badge number, the date and time, and everything that was discussed. At your earliest opportunity -- ideally coincident with ICE arrival on company property -- contact your attorney.