If you employ foreign-born workers on your dairy, preparing in advance for a raid by ICE is a lot like buying insurance. You hope you never have to use it, but you want it to be there if and when it’s ever needed.
Immigration and Customs Enforcement, or ICE as they are known for short, is the U.S. government agency tasked with identifying and deporting undocumented residents within the U.S. ICE activity has increased dramatically since the election of President Donald Trump, and dairies across the country are feeling the effect.
Generally, there are two types of raids dairies should be prepared to encounter from ICE. A “silent raid” is the term commonly applied to the audit of a business’s I-9 paperwork. (See “Why and how you should be doing I-9 practice audits” published in the July 1 issue for more details about conducting practice I-9 audits.)
Silent raids have been known to serve as a precursor for a criminal investigation and subsequent workplace raid.
Individuals may sometimes contribute to the likelihood of a workplace raid unknowingly. When an undocumented employee encounters law enforcement off-site, such as during a traffic stop or other criminal offense, the worker may be asked where he or she works. Their reply may then prompt an I-9 audit or a workplace raid of the employer.
“It’s a tool they utilize more than anything else,” says Nicholas Nevarez Jr., an immigration attorney who practices in Texas and counts a number of dairies in both Texas and New Mexico as clients. He advises clients to warn their employees about what information should and should not be shared with law enforcement officials both on-site at the dairy as well as during encounters with law enforcement off-site.
Nevarez recommends dairies develop a written policy in preparation of a workplace raid by ICE and share it with employees in advance. “It does not have to be wide-scale or elaborate (like a Wal-Mart),” he explains. “Additionally, tell the workers they are not allowed to visit with ICE or allow ICE on the premises without contacting a key individual in the dairy.”
That key person is normally the dairy owner or manager. It may also be the human resources manager. This key person should stay with the ICE agents the entire time they are on the dairy. One specific task may be to open locked areas and closed doors in order not to obstruct access in any way, depending on the scope of the warrant.
It is also possible for ICE agents to arrive at a dairy unannounced and, without a warrant, simply ask permission to speak with employees or review records. Know that either a warrant or three days’ notice is required. You can deny access and refer them to your attorney immediately if they arrive without a warrant.
“This will serve as protocol in the event of a raid,” Nevarez explains. “In this industry, there is often a great deal of trust between the dairy owner and employees. Sell the protocol as an attempt to protect the employees.”
“When asked by an immigration official, identify yourself,” Nevarez recommends. “If you do not have ID on you, then tell the officer you do not have an ID on you.” This applies whether the employee is on-site during a workplace raid or off-site.
In addition to knowing your rights and what you should do in the event of a raid or encounter with law enforcement, it’s as important to know what not to do.
For example, the first temptation is often to panic and run. However, that action alone gives ICE the right to detain the individual. Rather, workers should remain calm.
“Never, never, never state you are a U.S. citizen,” Nevarez warns. One reason is: If an individual submits false documentation to law enforcement, they may be detained and never again be eligible to apply for a legal work visa. “Faced with a choice, the undocumented individual should not present false identification to an officer,” he counsels.
U.S. Citizenship and Immigration Services announced the re-design of the Permanent Resident Card, also known as the green card, earlier this year. Their Employment Authorization Document is also being revised.
These new identification documents began to be issued May 1, 2017, and include a number of fraud-resistant features, including the individual’s photo and embedded holographic images.
Some states such as Texas and Ohio are also utilizing fingerprint technology during raids. However, it is not currently a widespread tool due to costs and machine availability. States such as New Mexico that issue driver’s licenses to undocumented immigrants further complicate the issue of identification.
The right to remain silent
Most individuals are unaware they have the right to remain silent when questioned by ICE or any law enforcement official. “You are not required to identify your country of birth, immigration status, residence or any other information,” Nevarez explains.
Furthermore, “Do not sign anything ICE presents to you. Contact an attorney.” Many attorneys advise foreign-born clients to have each member of their family memorize the telephone number of their immigration attorney.
Employees should also be warned: If they are detained, ICE agents may pursue questioning in the hopes of securing evidence from them to be used against the dairy owner. However, owners should not advise employees on what to say or how to answer specific questions for fear of criminal liability.
Finally, dairy owners and managers should never try to hide employees, tell them to run or prevent ICE agents from questioning employees. They should also never discuss individual employees with ICE agents. Remember, in addition to attempting to identify undocumented workers, ICE agents are simultaneously looking for criminal liability of the employer.
Document the raid
Employers have the right to document what happens at their place of business during the event of a workplace raid. In addition to retaining copies of official documents such as search warrants, ask for the names and ID numbers of the agents, their telephone numbers and their ICE office contact number.
Also document the specific questions asked by the agents to each member of your staff as well as the answers provided by your employees. Computers, records and forms may also be identified on the warrant and seized during the raid.
Therefore, you should keep a list of these items as well, providing copies of documents as opposed to the originals. If allowed, taking photos may be an additional documentation that would prove useful in the future.
If any of your employees are detained during a workplace raid, ask for the location and telephone numbers of the local ICE detention center where they will be held. They have the right to call a legal family member as well as an attorney and their consulate.
Role of attorney
If possible, contact your attorney immediately upon being raided. Otherwise, do it as soon as possible after you are raided. And while you may already have an attorney for other business matters, know immigration law is second only to tax law with regards to complexity. Identifying and retaining a licensed immigration attorney in advance is another recommendation.
A criminal defense attorney may additionally be required for owners and managers in the event undocumented workers are identified. For example, if an owner provides on-site housing for employees, they may face charges of harboring illegal aliens.
“ICE is not your local sheriff or police department,” Nevarez adds. “ICE answers to Washington, D.C. I often see clients provide too much information to ICE thinking they can ‘talk’ their way out of trouble.
Instead, ICE is taking notes and using the owner’s words to build ICE’s case against the employer. Consequently, little good is done by visiting with ICE without counsel or representation.” Remember: Both owners and employees have the right to remain silent.
As the result of a workplace raid, dairy employees could face detainment and possible deportation. Nevarez and his staff have handled more than 200 ICE detainee cases. “Depending on what relief options were available, we successfully bonded the individuals,” he explains. Unfortunately, it is often difficult to communicate with a detainee being held at an immigration facility.
Glen D. Wasserstein of the National Milk Producers Federation advised dairy members to develop a “raid fund” so money could be accessed quickly and easily in the case of a workplace raid. Those dollars may be required to pay attorney fees, post bond or provide assistance to an employee’s family.
“If the detainee is housed for a criminal record in the state system and has an Immigration and Customs Enforcement (ICE) hold, then I am able to contact the ICE office which placed the ICE hold on the detainee and work to get the proper paperwork to them in an attempt to expedite the detainee’s release,” Nevarez adds.
If large numbers of employees are detained during a workplace raid or identified for immediate firing following an I-9 audit, dairy owners and managers should be prepared to argue the animal welfare consequences of losing a significant percentage of their workforce. Some dairies have successfully negotiated graduated terms for dismissal in order to prevent massive animal losses.
Karena Elliott is an international freelance writer who makes her home in Amarillo, Texas.
- International Freelance Writer
- Amarillo, Texas