Increase in ICE Raids Concerns Employers
On the eve of Labor Day weekend, nearly 300 federal agents from U.S. Immigration and Customs Enforcement’s Homeland Security Investigations descended upon Load Trail LLC, a Sumner, Texas-based trailer manufacturer, executing criminal search warrants and detaining 160 employees on federal immigration violations for unlawfully working in the United States. The raid was just the latest in a series of large-scale enforcement actions undertaken by the agency.
In early August, ICE agents executed federal search warrants and criminal arrest warrants as part of a multi-state operation targeting numerous agricultural firms in Nebraska, Minnesota and Nevada. The raids resulted in the arrest of 133 immigrant workers and 17 individuals said to be involved in a criminal conspiracy to exploit such workers for profit. In June, ICE agents swarmed two locations of Corso’s Flower and Garden Center, an Ohio-based gardening and landscaping company, arresting 114 workers for allegedly being in the country illegally. That same month, agents arrested nearly 150 workers, mostly hailing from Guatemala, for gaining employment using stolen or fraudulent identification at Fresh Mark, an Ohio-based meat supplier.
On Sept. 6, ICE agents raided Yarrabee Farms, a Brooklyn, Iowa, dairy farm most recently in the news because Cristhian Bahena-Rivera, an undocumented immigrant and accused killer of college student Mollie Tibbetts, worked there under a false identity. The company issued a statement, confirming that ICE investigators were on-site for two hours, meeting with employees and owners. So far, the agency has not commented on the apparent action, including whether any workers or company officials were arrested or detained.
Danielle Bennett, spokesperson for ICE, asserts that politics are not a factor and the agency is merely enforcing laws that have long been on the books. However, there’s no denying that worksite raids have increased drastically since Trump took office, a fact the president regularly touts in rallies and speeches. According to Alka Bahal, partner and co-chair of the corporate immigration practice at Fox Rothschild, this latest round of workplace raids serves as a visible demonstration of the administration’s determination “to seek out illegal aliens anywhere and everywhere they can find them.”
“Certainly, the Trump administration is much more committed to locating and physically removing from the United States illegally present foreign nationals, whereas in the Obama administration, it was much more about removing the incentives that allowed or enticed these kinds of individuals to come to the U.S. and gave them the infrastructure within which to survive here,” says Bahal. “The raid, which is where ICE shows up at your worksite, not just to inspect your records, but to physically find, arrest, and remove the foreign nationals, is a much more aggressive approach.”
Numerous factors lead ICE to conduct a worksite enforcement action—the agency does not use the term “raid”—including potential wrongdoing discovered during an audit, a tip from a former employee, or violations that come to light during the course of a different agency’s investigation, such as a Department of Labor investigation into unsafe working conditions, according to Bennett. She recommends any employers that are concerned about the prospect of becoming the target of an enforcement action take extra steps to ensure they are “on the right side of the law.”
“If you are going everything right, you should not expect any kind of criminal enforcement action,” Bennett says.
Bennett recommends enrolling in the agency’s voluntary IMAGE (ICE Mutual Agreement between Government and Employers) program, designed to help companies reduce unauthorized employment and the use of fraudulent identity documents. Through the program, ICE and U.S. Citizenship and Immigration Services provide education and training on proper hiring procedures, fraudulent document detection and use of the E-Verify employment eligibility verification program.
According to Jessie Hahn, a labor and employment policy attorney with the National Immigration Law Center, membership in the IMAGE program did not help Fresh Mark avoid the raid that culminated in the detainment of 150 of its immigrant workers. While Bennett is quick to point out that IMAGE members are not immune from ICE scrutiny or prosecution for workforce compliance violations, Hahn believes all employers need to prepare for the possibility of an ICE raid. At particular risk are small rural employers, she says, where ICE agents may believe they are “less likely to face resistance and where employees may have a reduced ability to retain legal counsel.”
Hahn’s organization, in conjunction with the National Employment Law Project, has published What to Do If Immigration Comes to Your Workplace, a guide for employers facing an I-9 audit or raid. Rather than waiting until ICE agents are at the door, employers are advised to make a written response plan in advance and practice it, just like they would a fire drill or any other disaster plan. They should also train staff and workers not to permit ICE agents to enter private areas of the business and not to interact with ICE agents. Instead, they should direct them to designated company officials who have been trained to know the difference between a judicial warrant, which gives agents the authority to enter the premises, seize documents, and detain individuals, and an administrative warrant, which does not.
While Hahn encourages employers to cooperate with ICE, she urges them to resist the temptation to be overly helpful, whether that be in divulging additional information or handing over materials beyond that which is required by the warrant. Where allowed by law, she recommends employers take photos or videos of the raid and take copious notes, including the number of ICE agents present, what they were wearing, whether they appeared to mistreat any employees, and if they did anything that seemed “outside of permissible conduct.”
Under no circumstances should an HR leader let his or her compassion for their immigrant employees lead him or her to take ill-advised actions, such as trying to illegally help them avoid an encounter with ICE, says Bahal. That will only make matters worse and possibly result in criminal charges for the employer.
“If they see ICE pulling into the parking lot, an employer might be tempted to let the employees know and help their leave, escape or hide,” says Hahn. “While they may be well-intentioned, that’s going to exacerbate or potentially invoke charges, such as harboring an illegal alien or aiding and abetting.”