Judicial v. Agency Warrants and Subpoenas, and Business Implications
By John W. Francisco
The policy shifts enacted by the new Trump Administration have increased awareness of possible expanded and aggressive immigration enforcement tactics. Virginia businesses and institutions need to understand and prepare for immigration-related warrants, subpoenas, and the legal rights and obligations when interacting with immigration authorities.
This article provides a primer on the legal issues and suggested responses businesses can take when interacting with immigration officials.
The U.S. Department of Homeland Security (DHS) operates the three primary immigration enforcement agencies as follows:
1. Immigration and Customs Enforcement (ICE) handles immigration enforcement in the U.S. interior (and this is the agency with which businesses in our area would most likely interact);
2. Customs and Border Protection (CBP) focuses on border enforcement and entry points (but usually only acts within 60-100 miles of the U.S. border); and
3. U.S. Citizenship and Immigration Services (USCIS) manages immigration applications but does not usually conduct investigations, seek documents, make arrests, or handle detention and deportation enforcement (like ICE).
Key Legal Framework: The Fourth Amendment & Immigration Powers
The Fourth Amendment protects individuals and businesses from “unreasonable searches and seizures” by law enforcement, including ICE. Therefore, regardless of any broad powers invoked by recent Presidential executive orders, immigration authorities cannot conduct a search, seize documents, or make an arrest without either (1) a valid judicial warrant or subpoena (in the immigration context, usually signed federal court judge or federal magistrate); or (2) and explicit and express consent by the person who is the subject of the immigration investigation and subject to the search and seizure.
Immigration warrants and subpoenas seeking searches and seizures of persons, information, or documents related to citizenship, visa status, or work authorization must be (1) limited in scope; (2) clear in their identification of the named person(s), information, or documents; (3) clearly justified; and (4) legally reasonable.
Despite these protections, immigration agencies are likely to test legal limits to determine if individuals and organizations may voluntarily cooperate with mere agency warrants and subpoenas to obtain voluntary production without a court order.
Therefore, understanding the legal rights and obligations of your company, employees, and clients on a basic level is critical.
Understanding the Different Types of Immigration Warrants & Subpoenas and the Requirement of an Immediate Response Thereto
Business Implications: Preparing for Immigration Authorities and Responding to Investigations
1. Review your company’s Form I-9 information concerning work authorization of your employees (including hard copies and E-Verify data) and ensure full compliance. Be prepared to produce such information to ICE if necessary. (You should have at least three days to respond to any request for those documents.)
2. Develop internal written policies and procedures for handling a visit to your business by ICE agents, and train employees on the appropriate response before events occur. Appoint an authorized employee to interact with ICE and review and respond to requests.
3. If ICE or other law enforcement agents arrive at your business, request identification (names, credentials, and contact information). ICE agents must identify themselves and present any warrant or subpoena in a written format for review.
4. Examine the warrant or subpoena carefully.
Does it have a case name on it like “United States of America v. _________”? Is it signed by a judge?
If it is a judicial subpoena for documents, verify its deadline and scope (is the inquiry properly limited to information concerning citizenship and work authorization, and what persons, information, and documents are at issue) before responding.
5. If it is not clearly a document issued by a federal court, look at the top right corner for a U.S. Department of Homeland Security (DHS) form number (e.g., Form I-200 or Form I-205). If so, this is an administrative form not signed by a judge, and it does not authorize immediate searches or seizures. It can be politely refused on-site (and may only be effective with a subsequent court order).
6. Understand that ICE agents cannot enter private areas of your business (e.g., employee areas, offices behind reception, etc.) without a valid judicial court order or consent.
7. Inform all employees or clients on site that they may always
assert their right to remain silent, refuse to answer questions, and request to first speak with an attorney (however, there may be implications in doing so).
8. Do not:
• Voluntarily provide information or documents (even if you are inclined to assist law enforcement), especially legally protected confidential information (e.g., information subject to HIPAA, FERPA, and other privacy laws).
• Hide or assist employees or clients in evading ICE.
• Speak for or advocate for any adult person for whom you are not a legal guardian.
• Provide false or misleading information.
• Destroy or alter records related to an ICE investigation.
If you have any questions or need help assessing the risk to your organization, we encourage you to speak further with an experienced attorney, including the Woods Rogers Labor & Employment team.
