This as-told-to essay is based on a conversation with Loan Huynh, an attorney who serves as the chair of the immigration department at Frederickson & Byron, a law firm based in Minneapolis. The following has been edited for length and clarity.
These are not normal times.
There’s a huge concentration of ICE enforcement right now in Minnesota, specifically here in the Twin Cities. My law firm works with both employers and their employees.
Employees are very scared — they may be specifically being targeted by ICE, or they have family members or loved ones who are being targeted by ICE and they want to protect them, or they’re just scared to be out in public.
The ICE action isn’t just against individuals who are foreign nationals in Minnesota; it’s against anyone who appears to be a foreign national, or anyone who’s questioned and believed to be not cooperating with ICE — and there could be potential consequences, as we’ve seen.
Courtesy of Fredrikson & Byron P.A.
It’s a really difficult time for employers now, too. They’re facing situations where they may have employees who can no longer work for them or who don’t want to come to work, so they have to look at providing them with work-from-home options or other arrangements.
ICE is coming to their parking lots or places of business; we’re getting questions from employers about how to ensure ICE doesn’t have access to their spaces.
We know that this administration is taking a much broader interpretation of what rights they have in order to enforce immigration laws, and employers must be prepared for this.
It’s important for employers to know their rights
As any law-abiding citizen or entity, you want to cooperate with law enforcement, but it doesn’t mean that you don’t have rights.
These are private properties that the businesses own, and businesses can restrict access.
Unless there is some type of judicial order, warrant, or subpoena, there is no obligation for an employer to undertake enforcement activities or to perform the work of ICE activities here.
If you’re communicating that they cannot enter your place of business — such as with a sign that says it’s private property and there is no access to ICE — they don’t have the right to do that.
Establish a protocol in advance
We recommend that employers establish a protocol ahead of time about what they’re going to do if ICE comes to their place of employment or contacts them about a specific employee.
We know now that it can happen; we’re seeing it in Minnesota in ways we’ve never seen before.
Here are questions that I think all employers in the US need to really need to address before that happens:
What’s the role of the employer in that situation?What does an employer do when ICE is parked in their parking lot here?What should they have done prior to that, perhaps, to restrict ICE from coming and setting up in their parking lot to ask questions of their employees or customers?
Employers should prepare early, before ICE comes to your neighborhood, to your place of employment, or to your city.
Role-play to prepare
If ICE produces a judicial warrant asking for information or a subpoena about a certain individual, the employer should seek counsel to see what they must do in order to comply with it, whether it’s right away or to inform ICE that they need additional time.
If ICE comes and says, “I want to talk to this individual,” and there’s no warrant to allow that, an employer can respond, “Thank you for the request. We will need to seek counsel in order to determine the next steps. We’ll be happy to convey this information to the individual when we are able to.”
I was just on the phone with an employer about potential scenarios that they may face. I asked them, “What do you plan to do if ICE comes to your parking lot and just parks there? How will you respond to that? Or if you get a call from one of your employees who says, ‘I’m too scared to walk out of my car here. I see that there are ICE agents in the parking lot.'”
It’s so important for employers to prepare for any possible scenario, role-play, and determine, with their counsel, how they will respond to a request from a government agent or ICE.
Individuals have constitutional rights, and don’t need to succumb to threats
We’re seeing situations where an individual will say, “I don’t want to speak with you,” or, “I have counsel. Please contact my counsel,” and the ICE agents continue to pressure them. They get very scared, and that’s understandable, but please remember that you do have the constitutional right to be silent and not to speak to any investigator without counsel.
We have Know Your Rights information on our website. Everyone should know they have the right to choose whether to speak to a government agent. They have constitutional rights that, just because they are being threatened by an individual, don’t mean that they have to succumb to those threats or requests.
Are you a business owner or employee who’s had an experience with ICE? Contact this reporter via email at [email protected] or Signal at janezhang.01. Use a personal email address and a nonwork device; here’s our guide to sharing information securely.
