Recent media reports have described an increase in enforcement activities of the U.S. Immigration and Customs Enforcement (“ICE”) (formerly known as the Immigration and Naturalization Service). Recently, ICE has increased staffing levels in its Oregon offices (Medford, Eugene, and Portland). See, “Agents Will Target Criminal Migrants,” The Oregonian, Monday, May 28, 2007. This increase may be an indication that ICE is preparing to conduct enforcement activities in Oregon in the near future. If you have not already conducted an I-9 self-audit to identify deficiencies in your I-9 paperwork you should do so immediately. (Learn more about I-9 audit guidance.) Contact legal counsel to assist in the process if necessary.
So what do you do if the ICE man calls on you? Here are some practices to follow:
- Stay calm and don’t panic. There are legal processes that ICE must follow, including the use of warrants and subpoenas.
- If you are served with a warrant or a subpoena, ask to see the warrant or subpoena if it has not been provided, read it, and then call your attorney immediately. Fax a copy of the document to your attorney’s office as soon as possible.
- Follow all verbal instructions given by ICE or other law enforcement personnel, even if the instructions appear to conflict with the advice of your attorney.
- Don’t attempt to interfere with the process or you may be subject to criminal charges.
- In the worst case scenario, members of your organization may be arrested. Should that happen, you should instruct your employees to immediately invoke their right to speak to an attorney. Under no circumstances should the person respond to any questions after invoking the right to speak to an attorney. If possible, find out where the person will be taken.
- Recognize that your employees may be traumatized. If you have an employee assistance program (EAP), notify them of the situation as soon as reasonably possible so they may be prepared for phone calls requesting assistance. Remind your employees about the EAP benefit available to them and provide them with the phone number.
- Department of Homeland Security (DHS) or Department of Labor inspectors sometimes appear unannounced at the employer’s place of business. They may demand to conduct an immediate review of the employer’s I-9 records. No subpoena or warrant is required. However, inspectors are required by law to notify an employer of the right to a three-day notice prior to review. You should exercise this legal right and decline immediate review. Then, contact legal counsel immediately.
Following these simple practices will not address every question or situation that may arise, but they will protect you and your organization from making a potentially bad situation worse.
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