Cari’s Legal Exchange: Navigating Evolving ICE Enforcement

Audio Transcript

Cari Stinebower
Hello everyone, I’m Cari Stinebower, Chair of Winston & Strawn’s International Trade Practice. Today, I’m here with Damien Diggs, fellow partner at Winston and co-leader of the firm’s Crisis Management Group, supporting clients facing complex, fast-moving, high-profile crises. Damien served as U.S. Attorney for the Eastern District of Texas and brings more than 30 trials’ worth of federal prosecution and leadership experience. His career spans both sides of the courtroom, handling a wide variety of matters as both prosecutor and defense counsel. Today, Damian joins me to discuss compliance with evolving ICE enforcement. Damien, let’s jump right in.

As a first question, what steps should employers take to prepare for potential ICE workplace enforcement, and how should they respond during an ICE inspection or raid?

Damien Diggs
Well, thanks, Cari, for having me, first of all. And look, let me just first say, before we get into ICE, unless you’ve been hiding under a rock regarding ICE, we all know what’s been going on with ICE in recent months. So this is a very important time to have this conversation.

And so let me just, if we can zoom back just a little bit to just discuss and just describe who ICE is and kind of what they do, so it can kind of focus our discussion. So ICE, otherwise known as the U.S. Immigration and Customs Enforcement, was an agency that was established in 2003, and it replaced functions previously handled by the Immigration and Naturalization Service, otherwise known as INS, as we know. ICE is the interior enforcement arm of the Department of Homeland Security, with roughly 400 offices nationwide.

Read something very recently that ICE is currently expanding across the U.S. in every state at warp speed, where it is leasing office space throughout the country in every state as part of a month-long expansion campaign. So that’s just kind of what ICE is doing. ICE will ordinarily visit a company or workplace for one of three reasons.

To conduct an I-9 audit, a targeted raid, or to detain a specific individual or individuals. It’s important to note that ICE agents are law enforcement officers, despite some of what we’ve heard in the media lately. They are law enforcement officers employed by DHS.

They are not local police, but they are authorized to investigate violations of immigration law and specific federal crimes, such as human trafficking, document fraud, identity theft, and crimes of that nature, things that kind of are tethered to immigration crimes. So this current administration has signaled a very aggressive workplace compliance posture, seeking to conduct roughly 15,000 I-9 audits annually. If you just, for sake of comparison, previous administrations have done somewhere between 3,000 and 5,000 I-9 audits annually.

So that shows almost a three-time increase in terms of what this administration is doing in that space. So what is a, you know, what is a Form I-9 and kind of why does ICE audit in that area? Well, as a refresher, as we know, when we’ve all applied for jobs at one point or another, we filled out a Form I-9.

It’s a form that ensures that individuals who are hired for employment in the U.S. are legally allowed to work here. The form has two sections. The employer fills out one side and the employee fills out the other.

Once that form is filled out and signed by the employee, the employer must keep that form on file for roughly three years after the date of hire and up to a year after the date of termination, whichever comes later. The consequences for a company for failing an I-9 audit are pretty severe. It can result in steep civil fines up to roughly $2,800 per violation or per error, potential criminal prosecution, and debarment from federal contracts, which is huge.

So because of these consequences and what’s at stake, every business owner and HR professional needs to know what to do before, during, and after ICE arrives. So to the question you just asked, is what should employers prepare, how should they prepare for potential ICE workplace enforcement and how should they respond? Let’s deal with before ICE arrives first, right?

Preparation is everything. Before ICE arrives, a company will want to have already given thought to what its I-9 compliance program looks like. So it would be wise to create a written response plan, train everyone on that plan, and know your public versus your private spaces.

That will become very important for reasons I’ll discuss in just a little bit. But when conducting regular internal I-9 audits at a company, this will, if a company is ever the subject of an I-9 audit, showing that you’ve already conducted internal audits demonstrates good faith and good compliance procedures that can reduce penalties if violations are in fact found in an audit. Another thing a company can do is to cross-check its payroll records to ensure that every employee has a completed Form I-9.

Another kind of good due diligence tool that companies can use is consider using eVerify, which is a free website operated by USCIS that allows employers to electronically confirm the employment eligibility of new hires. That written plan that I just spoke of, companies should run tabletop exercises off of that written plan to identify gaps in procedures, things that will help to strengthen coordination in low-stress environments when ICE is not at the door, right? So your team will be far more confident if they know what to say, how to say it, whom should be the point person when ICE arrives, and you want to do that before ICE is at the door because if they’re there, it’s too late.

I mentioned training everyone as well. From office managers to custodians, everyone should know what to do. Companies should be training their workers not to give ICE permission to enter and not to answer questions, but they should be trained to say things like, I can’t give you permission to enter, but let me speak with my supervisor or let me get the site manager or the shift manager, like whatever the workplace or the form happens to be.

I mentioned also marking spaces as public or private. This is very important because ICE, as I will soon discuss regarding warrants, if ICE has the authority to enter without permission public areas, so that would be the lobby of the workplace, the parking lot, the dining area if it’s right there off of the main lobby, they can enter that without a warrant because they don’t need permission to be there. It’s a public area.

If it’s a private area, such as back rooms, the kitchens, warehouses, those areas do require a judicial warrant signed by a judge before ICE can enter. In the private areas, those should be installed with signage that reads private and that those doors should be closed and locked. That’s all the things a company can do before ICE shows up.

When ICE gets there and they’re at the door, two things are important. I just mentioned warrants just a few seconds ago. The warrant question is critical here because ICE will show up with one of two warrants, a judicial warrant or an administrative warrant.

If it’s a judicial warrant, that’s issued by a court, it’s signed by a judge, you must comply with it, period, full stop. It authorizes entry into private areas or those designated on the warrant itself. The administrative warrant is issued by DHS ICE and it’s signed by an immigration officer.

The company does not have to comply with that in the way it does the judicial warrant. An administrative warrant, a company can refuse to open the door. They can ask that the ICE officer put the document under the door so they can look at it, they can review it, and they do not have to consent to entry or search, they can refuse.

That’s the difference between the two. If agents show up with a warrant, it does matter which kind of warrant they’re there with because that will then dictate what the response needs to be. But then all this should also kind of be in the tabletop exercises so that can be worked out in a fire drill fashion and not when ICE is actually at the door.

So if they’re there and they have a warrant, it’s still wise and prudent not to allow immediate entry, you should ask for a copy of the warrant so you can one see what it is. Is it a judicial warrant or an admin warrant? And let someone, a supervisor or someone in charge who’s been trained in this, to put eyes on it and to review it.

But even with those valid judicial warrants, the ones that do not require, I’m sorry, the ones that require compliance, those must still be signed by a judge. You’ve got to check to make sure the judge signed it, that it correctly identifies your business, that it’s current, right? Because what we know with warrants is that warrants do expire if they’re not served within 14 days of issuance.

So those things should still be checked. This happened, I think, more recently with the ICE warrant. They had a valid judicial warrant, but it had expired.

They hadn’t served it in 14 days. So that warrant’s no good. And it should describe the scope of the things to be searched.

So, again, those are just when ICE is at the door. Critically important, though, is when ICE is at the door is to not lie or show false documents. Do not sign papers without a lawyer present, because that’s very important.

And if ICE does force entry, despite your efforts to keep them out, it’s important to not physically resist, but that you repeat during the encounter that you do not consent to what’s going on. So that’s kind of while they’re at the door. And I’ve been talking for a while, so I’m going to give you the microphone here in a minute.

But during an ICE enforcement action, it’s really important, Cari, I think, for companies and employers to know that they should stay calm and encourage their workers to stay calm. Again, this is why the tabletop exercises are important, so you can practice this so it’s not happening while they’re there. It’s important not to run away because that does give ICE the legal ground or legal reason to arrest.

It can be viewed as flight and they don’t, that gives officers a reason to arrest. So it’s important not to run. If they show the company an administrative warrant that has an employee’s name on it, the company does not have to confirm if the employee is working that day, nor do they need to take the agents to that employee.

They don’t have to do that. They also don’t need to help ICE sort employees out by immigration status or country of origin. They don’t need to help ICE do their job.

The company should designate a representative to a company, though, each agent, so that that employee can can almost document and memorialize, take notes of what’s happening with this agent during the search, record the search if they can, and document what’s been seized on the company’s end. So that so that can then be compared to what is what the company gets later with the search warrant return. Employees do have rights here, Cari, as well, while ICE is there and they’re in there doing their raid.

Employees have a right to remain silent in the Fifth Amendment that applies. Workers do not have to answer questions about their immigration status or hand over identification cards. They don’t have to do that.

But this is very important. Employees should not direct employees to refuse to speak. That shouldn’t be coming from the employer.

They shouldn’t help anyone hide and they should not provide false information as these actions could be viewed as obstructive and form the basis for a separate slate of charges. And that’s not what we want. So these are just kind of a few high level steps or considerations that employers should take to prepare for potential ICE workplace enforcement and how companies should be responding when ICE is there at the door.

Cari Stinebower
Great. And that’s all very helpful tips, particularly the preparations in advance with the tabletop exercises. Once the ICE agents leave the facilities, what are the best practices that the business should consider, both for protecting itself and for its employees after the raid?

Damien Diggs
Sure. That’s a really good question. So, look, the most common visit that a company or workplace would receive from ICE is the I-9 audit scenario.

That’s the most common one. So there, ICE is going to be delivering a notice of inspection to an employer, requiring the employer to produce those I-9 forms that I mentioned within three business days. It’s very prudent for companies to take the full three days to comply with that.

Do not provide the documents early. You don’t get credit for that. You know, it doesn’t help you in any way.

But taking the full day, taking the full three days is beneficial for this reason. It gives you time to contact an immigration lawyer or a law firm such as ourselves or some other firm to be able to ask questions about, is this appropriate? Is this proper?

Is this within scope? And all the things that you want to ask. Do not sign anything or answer any questions before speaking with counsel.

So that three days is very important for that. If ICE finds employees who lack work authorization kind of in this raid or this audit, you’ll have the company has 10 days to provide valid documentation to correct any technical errors. Of course, you can ask for more time if needed there.

But if substantive errors are found, i.e. missing forms, signatures, things like that, that those kind of result in immediate and significant fines, especially if unauthorized workers are found on the property. Now, under a scenario where, you know, after the enforcement action, which is the question you’ve asked, if there’s a scenario where an employee has in fact been detained, it’s still important, as I noted, with the reps during the search to document everything, the employee’s name, date, time, agency that was there, whether there were any other agencies who were assisting ICE to get the supervisory agent’s contact name and information, because that would be very important. Another thing that companies should be aware of is to pay all wages owed to the individual who has been detained, because immigration enforcement does not relieve a company’s wage and hour obligations under the Fair Labor Standards Act. That still, that employee still needs to be paid.

You should not, the company should not assume that because an individual has been detained, that they’ve abandoned their job. So it would be wise or prudent to consider offering leave to that employee while this is getting worked out or to hold that employee’s position open for a period of time, just because it’ll help comply with other obligations the company may have in the Fair Labor Standards context. I think more important too is, or I shouldn’t say more important, but equally important, is to address the impact or the elephant in the room with the employees who remain, to communicate calmly with them, to avoid rumors or speculation about what’s going on, and to reinforce the fact that the company is following the law and its obligations under the law.

So, you know, you can often involve PR firms to help with that, crisis management firms to kind of help with that communication. But more importantly, I think, is materializing the entire event in writing. How many agents were there?

How were they dressed? Whether agents made anyone believe that they couldn’t leave, were they, were employees mistreated by ICE or any other officers who were there? These writings are helpful because they can be useful to refresh recollections and or memories should there be litigation down the line somewhere.

This stuff will be very helpful in keeping this experience front of mind for people. So that’s kind of just high level what a company should be doing after an ICE raid and after an enforcement action. Just some high-level takeaways.

I know I’ve thrown a lot of information out there, Cari, but let me just end with some high-level takeaways because we’ve touched on a lot. I think five things. One, proactive compliance would be a company’s best first line of defense.

Two, to know the difference between judicial and administrative warrants. It matters enormously. Three, preparation before anything happens is the single most important step.

So running the tabletop exercises, running fire drills in advance, training staff on their rights and the company’s protocols. And so that everyone knows what those are. And then, as I just mentioned, just lastly, to document everything and have legal counsel identify before you actually need them.

Cari Stinebower
Wonderful. And Damien, thank you for sitting down with me today and for your thoughtful insights. We will link Damien’s profile in the caption if you’d like to contact him.

Thanks to all who tuned in to this episode of Cari’s Legal Exchange, and stay tuned for our next podcast. Thanks.