Michael Freestone

ICE Enforcement Actions

The Trump administration has immediately followed through on campaign priorities of aggressive immigration enforcement. The agency in charge of immigration enforcement is the U.S. Immigration and Customs Enforcement agency, otherwise known as ICE. We have seen an expansion of federal deportation actions and the removal of protections for areas previously considered safe spaces from agency actions. ICE enforcement actions can now occur in places of worship, schools, and courthouses. ICE agents can and will detain large numbers of individuals in a single action to determine their immigration status. Finally, the passage of the Laken Rily Act means that convictions of relatively minor crimes, such as shoplifting, could lead to indefinite detention for immigrants.

ICE Actions and Deportation Warrants

All people living in the United States, including individuals here without status, have certain specific rights protected by the Constitution.

Key considerations of ICE enforcement actions are as follows:

• An ICE deportation warrant is not the same as a search warrant. If the ICE warrant is the only document ICE can show to justify their presence, they cannot legally enter a premises without agreement.
• You can and should ask for a search warrant signed by a judge and review it outside the premises. Warrants must be facially correct, including the individual’s correct name and address, as well as the Judge’s full name.

Worksite Enforcement

Given the current increase in ICE enforcement actions, it is clear that there will be additional forms of worksite actions specifically related to legal immigration compliance. These actions may be conducted by U.S. Citizenship and Immigration agents from the Fraud Detection and National Security Directorate, Department of Homeland Security (DHS) Homeland Security Investigators, and/or ICE agents. These actions are described as “worksite enforcement” and cover enforcement of various immigration laws, including but not limited to I-9 compliance, immigration fraud, and compliance under the H1B and L1 visa programs. Typically, these actions are large-scale enforcement actions with warrants, but they can also consist of a smaller team of agents following up on a business that sponsored a single individual.

Paperwork compliance is critical for employers, and ensuring I-9 compliance is recommended for all employers. A heavily recommended first step is to conduct I-9 audits. One key consideration is that worksite enforcement actions are in person, and accordingly, it is critical that employers brief team members about how to interact with agents. Finally, these actions are not necessarily entirely immigration-related, and compliance with employment laws generally will be reviewed as well.

So, what are the best practices moving forward in another age of enhanced compliance by the DHS? Our five tips would be:

• Standardize processes for hiring and verification, including immigration compliance, to have a robust compliance program for all hires moving forward.
• Review I-9 compliance, potentially including an audit of I-9s.
• Consider moving to E-Verify for compliance purposes.
• Have a plan in place for federal agents showing up. Designate a point of contact and ensure they are familiar with organizational rights and obligations. 
• Keep informed. Keeping up to date on changes in immigration and enforcement policies is key. We have seen changes to passport issuance for transgender U.S. citizens, as well as the threat of travel bans and further disruption and delay for immigration processes.

Courthouse Enforcement

Regarding the courthouse memorandum, ICE has been told to generally avoid non-criminal courts for enforcement. Still, such guidance is not binding, and heightened vigilance at all courthouses is recommended for clients. This action is similar to the prior Trump administration’s enforcement priorities.

Detainee Locator

After apprehension by ICE, it is often exceedingly difficult for employers or loved ones to find an individual detained by ICE. Sometimes detainees may be sent to the side of state or to a different state entirely for processing. ICE does have a robust detainee locator system that can assist in finding individuals caught up in enforcement actions: https://locator.ice.gov/odls/#/search.

Resources

Please find attached a quick guide produced by the American Immigration Lawyers Association for individuals questioned or detained by ICE.

Additional Resources:

• Protecting The American People Against Invasion – The White House
• Interim Guidance: Civil Immigration Enforcement Actions in or near Courthouses
• Misguided Laken Riley Act Does Nothing to Fix the Problems That Plague Our Immigration System | American Immigration Council
• DOJ threatens to prosecute local officials over immigration: NPR