In the first days of his second term, President Donald Trump has issued a number of executive orders designed to ramp up immigration arrests. During his campaign, Trump promised to launch a mass deportation effort. Recent ICE raids have led some people to wonder whether agents can freely enter backrooms, kitchens, offices or other areas of a business not generally open to the public.
VERIFY reader Michael asked us if private businesses have any rights to prohibit ICE agents from entering their premises.
THE QUESTION
Can businesses prevent ICE agents from entering private areas?
THE SOURCES
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Sapochnick Law Firm, an immigration law firm
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Project South Institute for the Elimination of Poverty and Genocide
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John Seaman, a former ICE counsel, speaking in a recording for the Federal Law Enforcement Training Centers
THE ANSWER
Yes, businesses have the right to prevent ICE agents from entering private areas of a business, provided agents do not have a judicial warrant.
WHAT WE FOUND
A business has the right to prohibit ICE agents from entering private areas of the business. The exception is if the agents have a judicial warrant signed by a judge, but even those don’t give ICE agents blanket permission to search wherever, whenever and whomever they like.
Anyone, ICE agents included, can enter public areas of a business without permission, according to the National Immigration Law Center (NILC). Public areas include anywhere customers are allowed to be, such as the business’s parking lot, lobby or waiting area, or the dining area if the business is a restaurant. That does not include offices, kitchens or other areas usually off limits to customers.
Being in a business’s public area does not give ICE the authority to stop, question or arrest just anyone, the NILC says. That still requires a warrant or cause.
There are two types of warrants ICE agents may use when conducting enforcement actions at a business: administrative warrants or judicial warrants.
Oftentimes, ICE agents will have an ICE administrative warrant. Administrative warrants are issued by a federal agency such as the Department of Homeland Security (DHS) or ICE itself, and will be signed by an immigration officer such as an ICE agent or immigration judge, according to the Project South Institute for the Elimination of Poverty and Genocide.
An administrative warrant does not grant ICE agents entry into private spaces, but it does allow them to stop, question and arrest people named in the warrant in public areas, Sapochnick Law Firm, an immigration law firm, says.
Even if an ICE agent knows the person named on their administrative warrant is in a private location, the ICE agent cannot enter that private location to make the arrest unless the person consents to their entry, John Seaman, a former ICE counsel, said in a recording for the Federal Law Enforcement Training Centers.To enter a private space, an ICE agent would need a judicial warrant, which is the same kind of warrant police officers use for their searches. Law enforcement – ICE included – needs probable cause to receive a judicial warrant.
Judicial warrants, which are issued by a court and signed by a judge or magistrate, will specify the location to be searched, the time period the search must take place, describe the place or person to be searched and describe the things to be seized, according to Project South.
Judicial warrants allow ICE agents to go into certain private areas based on the scope of the warrant, Sapochnick Law Firm says. ICE agents must stay within the bounds of the warrant.
Without a judicial warrant, ICE agents need permission from someone at the workplace to enter private areas of a business, the NILC says.
The NILC says a judicial warrant will say “U.S. District Court” or the name of a state court at the top of the document. An immigration warrant will state its issuing authority comes from immigration law instead of a court and will likely bear a title that contains the word “alien.”
Examples of both kinds of warrants are included in these fact sheets by the NILC and Project South.
I-9 audits
To work in the U.S., employees must fill out Form I-9, which requires the employee to prove that they have the legal right to work in the U.S., Sapochnick Law Firm says.
ICE is tasked with making sure businesses comply with Form I-9 and can carry out a Form I-9 audit without a warrant. ICE only needs a “reasonable suspicion” that the employer is breaking the law to carry out the audit, according to Sapochnick Law Firm.
ICE agents may go to the business to pick up the requested I-9 paperwork. Employers must provide the requested paperwork, but employers are not required to allow a search beyond the scope of the audit without a valid warrant.