Over at our sister blog, Employment Law Letter, my colleague Nina Pelc-Faszcza has a post up from yesterday that should be a must read for any employer wondering how the Trump Administration’s “Mass Deportation” plans may impact their business.
Indeed, just in the last 24 hours, acting Department of Homeland Security Benjamine Huffman issued a directive that rescinds the Biden Administration’s guidelines for DHS enforcement actions in or near “protected” or “sensitive” areas, such as schools and religious institutions.
However, even with this change in policy, Nina reminds us that the government does not have unfettered access to private businesses.
It is critical to understand that U.S. Immigration and Customs Enforcement (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).
Nina has much more on our sister site including some other practical considerations.
But I’ll add two more to her list:
First, make sure you have a plan and a person who is coordinating your compliance efforts. It’s a good time to take stock of your I-9 compliance for example. And figure out who will be the designated person to address DHS officials if they do try to access your facility.
Second, and this may be a little self-serving — have an immigration lawyer like Nina or our team available and on standby. This is new uncharted waters for some and being able to talk on a priority basis with a knowledgeable attorney is going to be critical as we face some unique issues.