QUESTION
Our company was raided by ICE last week. Two of our loan officers were taken away in handcuffs. They were not read any rights. They were just taken from their desks, put in cuffs, and walked out. Our HR Department notified their families.
It was a shock to all of us. I am a loan officer and asked our lawyer for permission to write to you about it. We have no guidelines on what to do if ICE shows up, but we’re trying to figure out what to do if ICE shows up. We do not want any trouble, and there is a lot of fear.
Our lawyer, compliance people, and HR manager are putting together some guidelines. But many of us here get your newsletter, and we would like you to provide a few guidelines to follow if ICE comes back.
What should we do if ICE raids our company?
Do our employees have any rights?
SOLUTION
RESPONSE
If ICE raids your company, remain calm and cooperate with the agents. However, you can protect your legal rights and those of your employees. The first action to take is to immediately contact legal counsel and have a designated employee accompany ICE agents during the raid. If you have not selected such an employee liaison, do so now.
Document everything, including the names of agents, areas searched, and items seized. But, do not obstruct or interfere with the search, and also do not provide false information or hide employees.
I will offer some suggestions for immediate actions and a few things to consider. The following list is not meant to be comprehensive (and I am not providing legal advice). Facts and circumstances often dictate the response and appropriate legal actions. If you have questions, you can contact us.
If you want to be prepared for an ICE visit, you should consider our ICE Tune-up®, a mini-audit that determines whether you are ready for such a visit. Our pioneering Compliance Tune-up is in considerable demand. If you need this audit soon, I urge you to contact us to schedule it.
IMMEDIATE ACTIONS
· Contact
Counsel
I
suggest you notify legal counsel about the raid.
· ICE
Team
Designating
an ICE Team is essential. Whoever has first contact with ICE agents should know
to contact the company’s designated ICE Team members so they can start
implementing the ICE raid protocols.
· Document
Designate an employee to take detailed
notes, including agent names, badge numbers, areas searched, and persons or
items seized.
· Stay with the Agents
Select an employee to accompany ICE
agents during the search to observe and document.
· Verify Warrants
Request and review any warrants presented
by ICE agents. Many ICE raids are being conducted using administrative
warrants. Ensure they are judicial warrants (viz., signed by a judge) and
understand their scope.
o
Court Warrant – A federal or state court judge
issues a judicial (or court) warrant. It gives ICE access to non-public
spaces of the facility in accordance with the terms of the warrant. Even if
ICE has a court warrant, it is important to review the warrant to ensure it has
the correct company name and address, is properly signed and dated by a judge,
includes a timeframe within which the search must be conducted, any
restrictions, and contains a description of the premises to be searched and a
list of items or people to be seized (i.e., equipment, records, workers).
o
Administrative (or No Warrant) – If ICE has no
warrant or only an administrative warrant (i.e., signed by ICE on Forms I-200
or I-205), the warrant does not permit ICE to access non-public spaces.
But if ICE proceeds, do not argue with or impede ICE. Instead, document your objections, which can be used later in a court challenge.
· Do
Not Obstruct
Do
not interfere with the actions of the ICE agents. However, do not consent to
searches beyond the scope of the warrant.
· Protect
Employee Rights
Remind
employees of their right to remain silent and to consult with an attorney.
· No
False Information
Do
not provide false or misleading information or assist employees in evading ICE.
· Secure
Evidence
If your
company has security cameras, ensure they are recording and make backup copies.
EMPLOYEE
RIGHTS
The following
should be guided by consultation with legal counsel.
· Right
to Remain Silent
Employees
do not have to answer questions from ICE agents. Their rights include the right to decline an interview, remain silent, refuse to provide identity documents, refuse to disclose their country of nationality or citizenship, and request legal representation. If ICE detains employees, they must notify
their families.
· Right
to Counsel
Employees
have the right to speak with an attorney.
· Right
to Refuse Search
Employees are not required to provide identification or other documents to ICE agents.
POST-RAID ACTIONS
· Written
Description
Immediately after the raid, document the number of agents, how they were dressed, and any interactions with agents or employees.
· I-9 Audits
ICE may also conduct I-9 audits, which require employers to provide documentation related to employee work authorization. ICE audits typically involve the agency inspecting work authorization documentation and processes, such as Form I-9s and E-Verify, to ensure compliance with applicable laws. These audits usually begin with a Notice of Inspection (NOI). ICE can issue NOIs for any reason, including randomly, even without suspected violations. No warrants or subpoenas are required.
Jonathan Foxx, PhD., MBA
Chairman & Managing Director
Lenders Compliance Group
