Lately, Immigration and Customs Enforcement (ICE) has been more active in making arrests of undocumented individuals. Statistically, however, the number of arrests are very small and the “bark” is much bigger than the “bite”. Nonetheless, it is helpful for employers and other stakeholders to know what the required protocols and duties are if ICE shows up, employee rights, and bystander rights. Below is a quick checklist to help you along with important guidance.
Major Points
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Immigration is a civil matter, not criminal. The majority of ICE warrants are administrative civil warrants.
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ICE priorities are arresting those with criminal convictions and those who have been previously ordered removed (absconders). ICE may pursue these activities in public areas.
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Anybody arrested by ICE has the right to counsel.
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ICE agents are federal employees that are working as directed. Nonetheless, it is the policy of most employers that ICE enforcement activities focusing on the personal immigration issues of an individual shall not take place on company property.
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If an ICE agent does attempt to arrest someone on company property, do not interfere as that will complicate matters. However, please contact your manager and they will coordinate with HR and Legal.
Public versus Private Property
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Some parts of commercial property would be considered public property (i.e. parking lots shared by multiple employers) .
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However, back office and areas where customers are not present are considered private property.
Arrest Warrants
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Warrants come in many varieties.
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Immigration warrants are civil administrative actions, not criminal.
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Immigration warrants are signed by ICE Officers, not a Judge.
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Immigration warrants do not allow ICE to enter private areas without consent.
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If an ICE agent is seeking entry to a private area, it is the policy of most companies to deny such access. You should ask the ICE agent for a copy of the warrant, their name, and contact your manager.
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In very rare instances, ICE may invoke “exigent circumstances” and make entry without a warrant.
Your Rights
Generally speaking if you have a personal encounter with ICE:
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You should not grant entry to any private areas.
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You have the right to remain silent.
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You have the right to ask “Am I free to go?” If they say “yes,” you may walk away.
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If detained, you have the right to counsel.
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If you are a foreign national, you have the right to contact your Embassy or Consulate.
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You do not have to sign any document that you do not understand.
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If you are stopped for questioning but not arrested, you may refuse a search. But the Officer may pat you down if they suspect you have a weapon.
Non-Immigrants must Carry Evidence of Legal Status
Section 264 (e) of the Immigration and Nationality Act requires every foreign national 18 years of age and over to carry with them and have in their personal possession at all times evidence of their status such as an I-94, work permit, or green card at all times.
ICE and Foreign Students
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ICE has jurisdiction over F-1 foreign students and J-1 exchange visitors.
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ICE will routinely meet with the Designated School Official (DSO) who oversees F-1 and J-1 students on campus.
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ICE may obtain limited private information about F-1 and J-1 students including their home addresses.
UNIVERSITY AB-21 REQUIREMENTS
In 2017, the California Legislature passed AB-21 (codified in Education Code Section 66093) requiring Universities to take certain affirmative steps to notify students on at least a quarterly basis of ICE activities on campus. This includes the following:
- Quarterly E-Mail Update: E-mail to students, faculty, and all employees advising them about ICE activities and reminding them of their rights and obligations should ICE seek to take enforcement actions on campus against individuals.
- The University Intranet should include the following required information for students, faculty, and employees to access:
- Notify University of ICE Activities: Encourage those on campus to report an ICE visit.
- Point of Contact at University for Personal ICE Issues: The University must designate a contact for students, faculty, and staff to contact if they need assistance
- Emergency Family Contact: Can proactively notify the University in case they need to notify someone that a student, faculty, or staff has been detained by ICE.
- ICE Detainee Locator: Should you need to find where an individual is being held in ICE custody, you can try the ICE detainee locator here. You will need their 9 digit Alien Registration Number (aka A#) and Country of Birth, or name, country of birth, and date of birth.
- Legal Assistance: List of organizations that can assist with detention and removal issues.
- Accommodation for Student Absence due to ICE Matter: Should a current student be unable to attend classes due to an ICE action, the University must take reasonable efforts to accommodate the students, including whenever possible maintenance of financial aid and a seamless transition back to school.
- Confidentiality: The University must refrain from disclosing personal immigration information about students, faculty, and staff to the greatest extent possible consistent with state and federal requirements.
GUIDANCE TO EMPLOYERS IF ICE INITIATES AN ICE AUDIT
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If ICE issues a civil subpoena for an I-9 Notice of Inspection to an employer, the employer should request an extension of time to surrender the I-9’s. Absent an extension, ICE will require that they be ready 3 days later.
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At a later time (frequently 6 to 12 months later), ICE will give the employer an opportunity to make technical corrections for minor errors on the I-9’s. There will be no monetary fines for technical errors that are corrected.
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For substantive errors (i.e. the form is not signed or dated by the employee or employer, or failure to itemize the documents that HR looked at the time of hire etc.), ICE will fine – typically $2,000 per I-9 with a substantive error. A missing I-9 is also a substantive error.
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If ICE determines that some of the employees are not work authorized (and their documents are not genuine), they will issue a Notice of Suspect Documents. The employer must then must meet with each employee on the list, and absent an error or misunderstanding, must timely terminate the employee. If a large number of employees will need to be terminated, the employer can request ICE for additional time to find replacement workers – ICE will sometimes grant an extension to do this.
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Then ICE will issue a Notice of Intent to Fine for those I-9’s that have substantive violations. If the employer feels that the fines are excessive, they may appeal to the U.S. Department of Justice Office of the Chief Administrative Hearing Officer.
California AB 450 Notice Requirements After an ICE I-9 Audit Begins
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If your company receives an I-9 Notice of Inspection from ICE, you must post a notice and notify any Union – all within 72 hours. The posting must be in the language that the majority of the workers converse in. If in doubt, post it in both English and Spanish.
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Fines for violation of the notice requirements can be up to $10,000 per violation.
Here is the required posting notice issued by DLSE:
English version
Spanish version
FAQ’s from DLSE can be found here.
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In addition, each time ICE comes back with findings in the form of a Notice of Technical Corrections and also later on with a Notice of Suspect Documents (to terminate certain employees), each affected employee must be notified as well as any Union – all within 72 hours.
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In addition, the employee has a right to counsel at their own expense when an employer is reviewing their I-9 with them.
ICE IMAGE Program
IMAGE is a voluntary partnership initiative between the federal government and private sector employers. The initiative is designed to foster cooperative relationships and to strengthen overall hiring practices and self-policing of I-9’s. It can be used as a negotiating tool if a company is audited by ICE.
What does ICE agree to do as part of IMAGE?
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IMAGE was designed as a partnership initiative between the government and private sector employers. To that end, ICE is committed to working with IMAGE participants in the following ways:
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ICE will waive potential fines if substantive violations are discovered on fewer than 50 percent of the required Forms I-9.
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In instances where more than 50 percent of the Forms I-9 contain substantive violations, ICE will mitigate fines or issue fines at the statutory minimum of $216 per violation.
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ICE will not conduct another Form I-9 inspection of the company for a two-year period.
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ICE will provide information and training before, during and after inspection.
For more information on Image see here.
Copyright © 2019, Sheppard Mullin Richter & Hampton LLP.
