Episode 25: What to Do If Immigration Officials Come Knocking

Welcome to the Workplace, a podcast by Cal Chamber. I'm Alan Zarenberg, president of the California Chamber of Commerce, and we are fortunate today to be joined by University of California Davis Law School Dean Kevin Johnson. Dean Johnson is an expert on immigration law and policy and has published extensively on both immigration and civil rights issues. Under his direction, UC Davis Law School runs an immigration law clinic that has been successful in helping people understand immigration laws and policies. Dean Johnson, thank you so much for joining us and welcome to the podcast.

Thanks for having me.

Great. You know, as we all know, immigration policy is an ongoing topic, both policy wise and politically. We continue to hear so much about it daily, particularly as we enter election season and listen to all the presidential candidates. One of the issues that seems to come up regularly is the idea that U.S. immigration and Customs Enforcement ICE, is sending agents out knocking on doors of employers who are suspected of hiring individuals who are not documented in the United States. This idea likely causes concern for employers and perhaps even puts them on edge as well as their workers. And the goal of today's podcast is to get a clearer picture of what is actually happening when it comes to this issue and to help employers understand what they are legally required to do or not do should they be faced with this situation. So first of all, Dean, is this happening more frequently than in the past and what would trigger a visit or an inquiry from ice?

Well, there is a little bit of history here. President Bush, when he was in office, he did employ some workplace raids in his immigration enforcement strategy and often focused on meat packing and meat processing plants. And there's a very well known raid in Postville, Iowa in 2008, in the last year of the Bush presidency that led to deportation of actually several hundred people. The Obama administration decided to focus less on workplace raids and more on the criminal justice system as sort of a pipeline into removals. The Obama administration focused on working with state local authorities to take immigrants from the jails and put them in the removal process and more or less backed off on workplace enforcement. The Trump administration has moved toward more workplace enforcement and has had some raids, places like 7 11. And actually just recently there was a series of raids in Mississippi where 600 immigrants were arrested and presumably being put in deportation proceedings. And the focus of the raids were food processing plants throughout the entire state. And the U.S. attorney who's prosecuting the case said that he thought this was the largest single state immigration enforcement operation in US History. So I do think that there is more of a focus on the workplace currently. There's been A threat of more rage generally by President Trump. And we may be seeing an increase in raids right now. In the Mississippi instance, the prosecutions and the raids were criminal investigations, and the ICE officers had a criminal warrant to search the premises and then searched the premises and arrested many immigrants.

So, you know, in California, I know when we did some work supporting immigration reform, you know, back during the Obama administration and when the US Senate actually was considering it, we did some research, and there's quite a few undocumented residents here in California, but they've been here, as I recall, at that time, even over 10 years. Half of them were here. So we're talking about a pretty large population that's part of our employment fabric in California. Is that correct, Dean?

That's absolutely correct. We have about nationally, we have about 11 million undocumented immigrants who live in the United States. That population is pretty stable over time. About roughly a quarter of those are in the state of California. They are residents of our communities. They attend our churches. They work often in agriculture, the service industries, and some in construction. And there are some industries that rely pretty heavily on undocumented labor and would have a hard time competing in the global marketplace without that labor.

I was going to ask you, you mentioned what happened in other states. Are there certain industries that should be aware of these raids? You mentioned agriculture, but service industries? Is this something that California employers should be knowledgeable about and aware of? Because we do have so many residents who are not just undocumented, but who are productive workers here in California, correct?

No, I think that's exactly right. And I think employers, particularly in the agricultural sector in the state of Californ, should make sure that they have people in the human resources department who understand what the requirements of the law are and advise the employer of the way to ensure compliance with the law. I do think that if we do see raids of workplaces in the state, it's probably most likely to be in the agricultural sector. Could be some in the service industry, but there's more workers in one place on dairy farms and in the fields than, you know, in one hotel or one restaurant or something like that. So I think that my guess would be we haven't seen them yet. But like in Mississippi, my sense is that agriculture would be the place that ICE focused its raid work on.

So since there, you know, we do have quite a few residents here that may be working and may not be properly documented. If ICE does show up at an employer, are there certain things an employer should know? And it's good to hear that other than maybe where there's a large concentration, employers and their workers shouldn't be that concerned. But I think it would be great to be able to give them some idea on what their rights are and what they should look for if something does happen.

Well, if ICE comes and wants to search a workplace, they have to have a warrant that's issued by a court. That's where the rights in some ways begin. In the end, if ICE doesn't have a warrant, then they can't be required to access a workplace. If they do have a warrant, then they have to be allowed in the parts of the workplace that are covered by the warrant. But I do think that's actually a critical thing, is that there's no requirement, absent a warrant, that employer open up the workplace to Immigration and Customs Enforcement authorities. Now, there's a couple of things, sort of wrinkles to this. One is that ICE can ask for an inspection of records to ensure that the employees have their papers in order. And that requires advance notice of the request for the inspection of papers. And then ICE will come and look at those papers. And I think that's different than sort of ICE knocking on your door and conducting a raid. Some would call them paper raids or just basically efforts to ensure that the employer isn't hiring undocumented immigrants. And that's actually some of the methods that were used, in a sense, by the Obama administration. Even though it didn't use raids in the workplace, it did check papers at various times. That requires advance notice. And a raid where ICE shows up requires a warrant. And it's important to actually read and pay attention to what's in the warrant and what parts of the workplace are required to be open to ice.

And so if you do get a request for your paperwork, you will get a chance to pull all that together. You'll get some advance notice. Is that correct? Or you should.

Yes, you will. And I'm not saying this just because I work with law students and lawyers. You get a notice from ICE that I would talk to a lawyer and find out the best way to present the material, collect the material, and do all you can to comply with the law.

Okay. And it sounds to me, although maybe it's not a loaded question, but ICE knows what the rules are, and it sounds like they do provide that advance notice. Right. And they do get warrants if they want to search an employer's premises.

Yes, I think that's generally the case. But it could also be the case if they get a tip and they just show up. You Know, if an employer wanted to open the workplace, an employer could but isn't required to open the workplace unless the employer wants to. I don't think it's out of the hands of the employer if ICE does appear. But ordinarily for review of employment records, you're going to get notice. And if there is a raid, there'll be a warrant specifying what's being looked for and what can be looked at in conducting that.

Great. Well, we know that there are certain communities here in California that have adopted laws that have been referred to as sanctuary cities. Does that change any requirement on behalf of the employer if they're contacted by ice?

No, not at all. You know, the Federal Immigration and Customs Enforcement is in charge of immigration. It's in charge of removal of immigrants who are undocumented or otherwise removable from the country. And the states can't really interfere with that federal power of regulation. So in the end, even though the state has declared itself a sanctuary state, and there are some laws that limit cooperation with federal immigration enforcement by state and local government, in the end, the federal immigration authorities are governed by the US Constitution and US Immigration laws, and the state can't undermine or interfere with that in any way. I mean, basically, the sanctuary laws limit state and local cooperation with the federal government to the extent it's not required by federal law. So there's only so much that state and local governments can do to kind of distance themselves from federal immigration enforcement. So the employers still are governed by federal immigration laws. They have to work with ICE and the various requirements of the immigration laws. And that's true whether or not you're in what is declared to be a sanctuary jurisdiction.

So, you know, I sense regardless of this administration, even the previous administration, comprehensive immigration reform was difficult. We haven't seen relief for what is referred to the dreamers. So if we expect this political stalemate to continue, regardless of who's the president, employers definitely need to be aware of what the rights are. And because there is such a connection between residents in California who may not be documented and their employers. And this knowledge that you're providing today in this situation could go on for quite some time. Right.

I think that unfortunately enough, it does not appear that Congress is getting any closer to passing some kind of immigration reform, comprehensive or not. Unfortunately, we as a a nation really aren't able to discuss these really difficult and very sensitive issues of immigration in a way that's allowed for sort of meaningful reform. And with a Democratic president like President Obama or the Republican president like President Trump. We're seeing immigration enforcement, we're seeing some concerns in the immigrant community. We're seeing some policies that are designed to deal with the failure of immigration reform to be passed. But what we're not seeing is any kind of meaningful immigration reform. People ask me when I think comprehensive immigration reform will be passed, and I always say, I know it'll be passed, but I just don't know when it's going to require the nation in both sort of sides of the political spectrum to sit down and think rationally and rationally discuss some very difficult issues and issues of what we do with a path to legalization, perhaps for undocumented immigrants, what we do to prevent the emergence of a new undocumented population after this group is legalized, how we best and humanely enforce our immigration laws, how we reform our legal immigration laws so that they're enforceable. They make sense economically for employers as well as for everybody else. I think there's a series of questions that if anybody tells you there are easy answers to them, I think they're telling you a fib because they're hard questions that require sober dialogue and exchange of ideas. And unfortunately, we're not quite close to that kind of discussion at this point. So I think it's going to take us some time. I'm always hopeful of these things because it's tough on employers, it's tough on immigrants, it's tough on the general community when we have these kinds of tensions and frictions rising from immigration and just these workplace raids have entire communities up in arms, but also employers who are kind of caught in the middle in a very difficult position, trying to keep their businesses in operation. So it's really an issue, a human issue, but also an economic issue for the nation as a whole. And we have not been particularly good as a country in coming to terms with the difficult realities that lay in front of us. And I'm not even talking about some of the humanitarian problems that we're seeing along the border, like, you know, the conditions of detention, family separation, asylum seekers coming from nations that are having incredible. Experiencing incredible violence. So there's an awful lot on our immigration table. And at some point, we're going to need to start addressing these questions in a rational, responsible way that works for all segments of American society.

Yeah, it seems to me, I think California has more to win or lose if comprehensive immigration reform gets addressed or it doesn't get addressed. And it seems like far too often that decisions are made by those states and their representatives who don't have a stake in it as California does?

No, I think that's right. This state has a large immigrant population and it's going to be very much affected by whether there's immigration reform or no immigration reform, whether there are raids or no raids. And our economy, which is quite vibrant, has benefited over time from immigrants and immigrant labor. And we as a state really have moved to a better understanding of that economic reality. Some people forget that California was one of the Trendsetters in the 1990s with its proposition 187 that would have stripped undocumented immigrants of public benefits and access to the public schools and would require police officers to inquire in immigration status. That created a sort of a political tide that changed the political dynamics of the state to such an extent that we're now a self declared sanctuary state with a series of policies designed to be, I think it's fair to say, immigrant friendly and effectively, you know, address the needs of our immigrant residents who are in this country, are working here, are part of our communities, and by most accounts aren't going away en masse.

So one final question. You know about employers, if they have questions about their obligations, does a lot immigrants does the immigration law clinic at UC Davis offer this kind of help, or are you limited in your dealing mostly with the immigrants themselves? Is that an opportunity for employers who do have questions?

I think that mostly the clinic represents people in removal proceedings, but if employers do have questions, we can always point them in the right direction so they get the kinds of advice they want. We want to make sure that employers get the advice they want because we do understand that in some ways they're caught in the middle between these warring factions and it's a tough place to be. So we want to help out.

Well, that's great and it's great for you to be able to tie all these questions together for our listeners. Thank you so much. Dean Kevin Johnson, dean of the UC Davis Law School in Davis, California. And thanks for joining us. And thanks for joining us at the Workplace. Please comment, share and subscribe to Caltech Chambers podcast@calchamber.com.