What to do if ICE shows up at your business

For many business owners, the unexpected arrival of Immigration and Customs Enforcement (ICE) officers can be a stressful and uncertain situation. Whether they request access to your facility, seek information about employees, or attempt to conduct a search, it’s critical to understand your rights and responsibilities.

This memorandum outlines the appropriate legal response if ICE officers show up at your organization. By being informed and prepared, you can ensure that your business complies with the law while also protecting the rights of your employees and organization

Analysis

Let’s start with an analysis of the Fourth Amendment, which prohibits unreasonable searches and seizures of persons or objects. U.S. CONST. amend. IV.  A search is considered unreasonable if an individual has a reasonable expectation of privacy that has been invaded by governmental action.  See Katz v. United States, 389 U.S. 347 (1967); Smith v. Maryland, 442 U.S. 735, 740 (1979). Generally, whether an expectation of privacy is deemed reasonable is dependent on two questions: (1) whether the person had an actual or “subjective” expectation of privacy, and (2) whether there is a societal expectation of privacy, i.e., an “objective” expectation of privacy. Smith, 442 U.S. at 740. Most importantly for this matter, the protections of the Fourth Amendment extend to commercial premises where there exists a reasonable expectation of privacy. See, e.g., See v. City of Seattle, 387 U.S. 541 (1967).

However, without getting into technical exceptions, generally an individual has no reasonable expectation of privacy in public places. See Katz, 389 U.S. at 351 (“What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”). In a January 2025 publication by the National Immigration Law Center addressing, in part, the issue that is the subject of this Memorandum, it concludes that “our legal system does not find that a person has a reasonable expectation of privacy in public areas or places accessible by members of the public.”  Warrants and Subpoenas, What to Look Out for and How to Respond, National Immigration Law Center, p. 2 (January 2025). The result is that immigration officers from ICE are authorized to enter into public areas of the business without a warrant. However, without a judicial warrant and without consent, they are restricted from entering into private areas of the business where an individual would have a reasonable expectation of privacy.[1]    

For purposes of ICE enforcement raids or actions, there is a distinction between an “administrative” warrant and a “judicial” warrant.

·      An administrative warrant, specific to immigration actions and often called a Form I-200 or I-205, authorizes ICE immigration officers to arrest individuals for committing immigration violations. 

·      A judicial warrant, on the other hand, is signed by a judge or magistrate and can potentially authorize a search into a private business area, assuming it describes the place to be searched with the appropriate particularity.  When Ice Knocks: Immigration Enforcement in the New Administration, National Law Review, Volume XV, Number 55 (February 4, 2025).

The following descriptions are helpful for assisting a client in identifying which type of warrant is being presented:

An administrative warrant is a formal written document authorizing a law enforcement officer from a designated federal agency, such as an ICE agent from DHS, to make an arrest or a seizure. An administrative warrant is issued by a federal agency such as DHS and can be signed by an “immigration judge” or an “immigration officer.”  Unlike a judicial warrant, an administrative warrant does not authorize a search. Therefore, an ICE agent who has only an administrative warrant may not conduct a search based on the warrant, though, in certain circumstances, the administrative warrant would authorize the agent to make a seizure or arrest.        

A judicial warrant is a formal written order authorizing a law enforcement officer to make an arrest, a seizure, or a search. A judicial warrant is issued by a judicial court. Courts that issue judicial warrants include both state and federal courts, such as a “Superior Court of California” or a “U.S. District Court,” and a judicial warrant is signed by a judge or magistrate judge. Furthermore, judicial warrants must be complied with, and there are serious consequences for refusing to comply with a judicial warrant. Note that a warrant signed by an immigration judge is not a judicial warrant.

 See Warrants and Subpoenas, supra, p. 3.

Best Practices

The conclusion is that ICE immigration officers are authorized to enter into and conduct operations within the publicly accessible areas of the client’s business but are not authorized to enter or otherwise search private areas that are not open or accessible to the public.  Within the past few weeks, there have been several organizations and firms that have published guidance for businesses when ICE immigration officers present themselves at the business (although most of these address the situation where the business is suspected of employing undocumented individuals). The following is a summary of the best practices which should be applied in this particular circumstance:

Designate a point of contact: Designate a management level employee to interact with ICE agents. Have any employees advise ICE officers that this manager needs to be the individual to address any questions or issues. Consider contacting counsel to advise on issues.

Obtain information from ICE:  Request and verify the ICE agent’s credentials, badge number, and contact information.

Request and review any warrants:  Request, review, and identify any warrants. Remember that administrative warrants do not allow inspection or search of private spaces, while judicial warrants may allow such a search. ICE agents can enter and question individuals in public spaces. Unless ICE agents have a judicial warrant, limit any searches of private spaces and do not consent to such a search. Consider placing signage to identify private areas.

Document any searches conducted by ICE:  You are authorized to take notes and otherwise document any searches conducted by ICE officers.

Do not provide false or misleading information:  Do not lie or conceal information or falsely deny the presence of named individuals. Do not hide any individuals or assist them in leaving the facility. While individuals may have a Fifth Amendment right to remain silent when questioned, do not advise any such individuals of these rights. This is not your responsibility.

[1] On October 27, 2021, the Secretary of the Department of Homeland Security issued guidelines for ICE for enforcement actions in or near “protected areas,” suggesting restriction of such actions in those areas. The definition of “protected areas” included a social services establishment, such as a “food bank or pantry or other establishment distributing food or other essentials of life to people in need.”  On January 20, 2025, the Trump Administration rescinded these guidelines.