by Chris Farmer, NFDA General Counsel  

As everyone in United States is aware, there have recently been Executive Orders signed by President Trump regarding the enforcement of immigration policies which has resulted in an increase in federal enforcement throughout the country by Immigration and Customs Enforcement (ICE). 

The Department of Homeland Security (DHS) has also terminated its “sensitive location” policy, which now permits ICE to conduct raids and arrest individuals at places of worship, schools, and hospitals in order to arrest violators of federal immigration laws. 

Funeral home owners and operators are asking how they should respond should they find their business the subject of an ICE enforcement activity. 

Public vs. Private Areas of a Business 

The first recommendation is that you and your employees should not interfere with the legal actions of federal agents, regardless of your, or their, feelings on the subject. Actions against ICE agents have become more frequent and have resulted in federal charges being filed against many individuals for impeding their investigations.

That being said, it is important to know what ICE may and may not do on your premises:

• ICE may enter public areas of a business without permission. This includes, for example, the parking lot, waiting room, public seating areas, lobby, public restrooms and anywhere accessible to the general public.
• ICE may approach employees and business visitors who are in public areas of the business, however, these employees and visitors are not required to respond to ICE.
• ICE may not enter a private area of the business without the employer’s permission or a judicial warrant, which is signed by a federal or state court judge and identifies the employer and business address. Private areas include, but are not limited to, behind a counter, supply closets, stock rooms, preparation rooms, employee break rooms, private offices, a private kitchen or and any other place that is not accessible to the general public.
• An employer may ask that ICE present a judicial warrant signed by a state or federal judge before granting ICE permission to access to private areas.
• There is some dispute as to whether an administrative warrant issued by ICE allows the same access as a judicial warrant. A new DHS memo citing recent case law takes the position that it does, and ICE has been acting accordingly. (Administrative warrants are issued by DHS and printed on Forms I-200 or I-205.)
• Designated managers should request ICE agents identify themselves by name and badge number.
• Designated managers should politely request to see and review any warrants presented by ICE agents and ensure the warrants are valid and specific to the premises before permitting access to any private areas.

Recommendations 

The owner or manager of the business should designate a manager to serve as the single point of contact with ICE. All employees who work in public areas should be instructed to refer ICE to the designated manager. You should do this now and consider all staffing scenarios since ICE may conduct a raid at any time.

All employees should treat ICE in a professional manner.

If an employee is detained, the manager should ask where the employee is being taken so the employee’s family may be notified. All persons approached or detained by ICE have the right to remain silent and consult an attorney. Employees should consult their individual immigration counsel on how to best proceed if approached by ICE.

With respect to administrative warrants, out of an abundance of caution, if the ICE agent takes the position that they have the right to enter private areas under an administrative warrant, I recommend that you grant them access. This issue will ultimately be decided in court, probably sooner than later, but you do not want to be the test case.

As a final piece of advice, while we all want to support our employees and take care of our families, interfering with federal law enforcement agents is a very serious matter. If an employee or a family you are serving has any questions about their status or a warrant, they need to consult their personal immigration attorney.

If you have any additional questions about your rights or an ICE enforcement action against your business, please contact me at CFarmer@NFDA.org.