When ‘La Migra’ Comes to the Workplace

According to the guide, there are three ways in which ICE agents may approach a business to look for undocumented immigrants. The guide was published in a number of languages, including Spanish. (Photo via El Diario)

“I have been told that ICE will not be going to restaurants or grocery stores the way they do in Kansas, but people are scared.” On Tuesday night, Frank García was the first member of the audience to talk about the state of anxiety currently existing among entrepreneurs across the city. The cause is the potential actions that “la migra” may take in compliance with the new guidelines prioritizing the application of anti-immigrant measures enacted by the White House.

Speaking in front of a panel organized by the city’s Department of Consumer Affairs (DCA), García, the chairman of the New York State Coalition of Hispanic Chambers of Commerce, admitted to the distress the association’s members are feeling. The event was held to launch a nationwide guide in different languages, including Spanish, explaining what to do in case immigration authorities (ICE) show up at the workplace.

The document includes a series of guidelines elaborated by the National Employment Law Project (NELP) and the National Immigration Law Center (NILC), and its presentation attracted not only Latino and Asian entrepreneurs – who practically filled the auditorium at Queens’ Elmhurst Hospital – but also immigration lawyers. Both groups asked questions about the consequences of the raids and, because of the impact these may have on businesses and employees, about I-9 form verification audits. The form confirms that the carrier is authorized to work in the country. Two of the attorneys who created the guide, Laura Huizar from NELP and Jessie Hahn from NILC, said that they are still wary about what type of action the authorities may take with respect to the audits.

The guide, which does not constitute case-specific legal advice, explains that there are three ways in which ICE may arrive at a business looking for undocumented immigrants. The first one is to perform a Form I-9 audit like the one they had at the Tom Cat Bakery in Queens in April, which resulted in the dismissal of 21 workers. The second is by an unannounced raid of the workplace. The third way is when ICE agents – who are not police officers but may be armed and wear uniforms that read “police” or “federal agent” – arrive at a business to detain one or more specific individuals who have been on their radar. In the last instance, the agents may try to interrogate and arrest other workers. “It can be intimidating,” said Huizar.

Have a plan

Huizar reminded the audience that, in general, workers and business owners have the right to remain silent and to refuse to consent to some of ICE’s possible requests, adding that they should always be prepared by knowing their rights and what they should not do. The attorney also stressed that each company needs to set up a suitable plan and “follow it the same way they train employees by having fire drills. That will help them prepare and have more peace of mind.”

The lawyers – and the guide – emphasized the need to have a plan in place to be able to remain calm in case of a raid, including advising everyone against running away and letting workers know that they can say no if an immigration agent asks them certain questions or makes requests. “A worker may say: ‘I can’t give you permission to enter. You must speak to my employer’.”  The key is to prevent interactions between employees and ICE agents.

The attorneys explained that “la migra” does not always use a court order – the letter’s header must specify that it has been issued by a court and signed by a judge – but rather administrative orders, such as from the Department of Homeland Security (DHS), which greatly limit their actions. As an example, administrative orders do not authorize agents to enter private areas, meaning that they can have access to common areas in a restaurant or establishment but not the office. The guide recommends posting signs on doors indicating which areas are private, where agents could only enter with a court order.

It is the employer’s responsibility to verify the order to assess its type and if it is valid. If it is an administrative order, they are not required to collaborate with agents or identify employers. The best way for employees to protect their rights is to remain silent and request a lawyer. There is no obligation to provide documentation to ICE. The attorneys added that anything employers and employees say can be used against them, and they encouraged capturing the agents’ actions on video.

Hahn addressed another issue: protest. “I think that it is important for the chambers of commerce to express their rejection of this policy.”

“Call your lawyer”

During the launching of the guide, the NELP and NILC attorneys repeatedly pointed out that employers should contact an immigration lawyer both before – to prepare appropriately – and after an audit or raid.

Several attorneys who attended the presentation had questions regarding gray areas in which no categorical answers are available to entrepreneurs, who simultaneously may not discriminate against employees for reasons of origin or for being an immigrant but face possible audits of work authorization forms.

The lawyers presenting the guide reminded the audience that employers do not have to keep copies of workers’ identification or work authorization documents, and that New York does not require the E-Verify system designed to detect inconsistencies in the paperwork. The attorneys pointed out that, if their documents are verified again, employees have a right to complain to the National Relations Labor Board.

A lawyer in the audience noted that employers find themselves in a delicate situation in light of these ICE audits as they may face steep fines and further tax audits, adding that these may put many companies in a difficult situation and threaten the survival of some small businesses. Another attorney from the area explained that the situation is so tense and rumors of raids spread so quickly that handling the elevated number of calls she receives has become complicated. Luis Gómez-Alfaro, from the Myburgh, Leleu & Gómez-Alfaro law firm, stated that his office constantly receives calls from business owners asking questions.

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