Attorneys warn clients to prepare for immigration raids

President-elect Donald Trump said last week that he intends to name Thomas Homan the nation's "border czar" and Homan, who was acting director of Immigration and Customs Enforcement during the first Trump administration, quickly announced that he planned to resume raids on workplaces in search of illegal immigrants.

The uncertainty over when and how those raids might play out prompted employers to reach out to their lawyers for advice on how to prepare, according to several law firms that represent companies. Jocelyn Campanaro, a partner in the Denver office of Fisher & Phillips LLP, said she had been having "lots of conversations" with clients about the Trump administration's plans for immigration enforcement.

"We anticipate that the majority of what will happen will be paper based, but there will probably be on-site inspections and raids as well for certain employers," Campanaro said.

The first workplace raid of the first Trump administration didn't occur until more than a year after he took office, and most of the estimated 50-plus raids the administration conducted appear to have been in the South or Midwest. But lawyers said it is almost certain that the next Trump administration will enter office better prepared to begin raids quickly, and that it had learned from mistakes that stymied its previous efforts.

"It won't take them as much time to get to their first raid," said Bruce Buchanan, special counsel at Littler Mendelson PC in Nashville. "Logic tells me that they've been there before, they know what they need to do to get it going."

Immigration raids on workplaces are a blunt tool that even immigration hawks have previously used sparingly. Federal agents descending on a company is disruptive to the business and traumatizing for everyone, including the legally authorized employees, attorneys say. But they can be an effective tool for finding unauthorized workers.

In April 2018, ICE agents raided a meat processing plant in Grainger County, Tennessee, that netted about 100 unauthorized workers. That was the first immigration raid on a workplace since President George W. Bush's administration ended them in early 2008. President Barack Obama did not conduct any raids, even though his administration boasted that a record number of illegal immigrants were deported during his terms. President Joe Biden's administration also has not conducted any workplace raids.

Trump said in a post on his Truth Social platform on Nov. 10 that he intended to name Homan the U.S. "border czar."

The following day, Homan went on Fox & Friends to lay out his agenda. "Worksite operations have to happen," he said.

"Where do we find most victims of sex trafficking and forced labor trafficking? At worksites," he said.

California, which positioned itself as a leader in the resistance to the first Trump administration and is poised to do so again in the next one, is limited in what it can do to stymie workplace raids. Soon after Trump took office in January 2017, Gov. Jerry Brown called raids on workplaces "reprehensible" and banned local law enforcement agencies from participating in them.

Brown also ushered in the passage of the Immigrant Worker Protection Act, or AB 450, that imposed restrictions on how much employers could cooperate with federal immigration agents. It requires them to make sure the agents have a judicial warrant to enter non-public areas of the workplace; not to share employee records without a subpoena; and to notify union representatives of any request for employees' records.

Izzy Gardon, a media representative for Gov. Gavin Newsom, could not immediately be reached for comment. Newsom has scheduled a special session of the Legislature to begin Dec. 2 to gird the state for its resistance to the next Trump administration.

Ahilan Arulanantham, a director of the Center for Immigration Law & Policy at UCLA School of Law, said much of the resistance likely would come in the form of civil rights lawsuits, which he said had been effective in the past. He pointed to the fallout from a February 2008 raid at Micro Solutions Enterprises, a printer supply manufacturer in Van Nuys, during which more than 130 employees were detained on immigration-related charges and eight were arrested on criminal charges.

Arulanantham, who was senior counsel at ACLU of Southern California at the time, led a civil rights lawsuit that challenged the raid on several grounds, including immigration officials' attempt to deny the employees access to attorneys. In 2019, the 9th U.S. Circuit Court of Appeals ruled that that ICE agents had warrants for fewer than 10 individuals but indiscriminately detained more than 130 workers, many of whom were U.S. citizens, and subjected them to repeated interrogations without legal representation.

"Legal rulings aside, the raid terrorized families throughout the San Fernando Valley, particularly when parents failed to show up to pick up their kids from school. It also harmed many citizens at the worksite, as [Department of Homeland Security] agents illegally detained them during the raid," Arulanantham wrote in an email.

"The raid was also largely ineffectual as immigration policy. Because many of those targeted were long-time residents with no criminal history, they were eligible for release on bond and able to litigate their immigration cases, which most of them won," he continued. "In the end, almost none of the nearly 200 people arrested in the raid were deported."

"Of course, that history does not guarantee that raids defense will be equally successful in the future. But I am confident that large numbers of attorneys will resist any unlawful tactics if raids take place in large metropolitan areas like the San Fernando Valley," Arulanantham concluded.

Whatever any fallout from immigration raids, attorneys who represent employers say it is time to prepare for scrutiny of their employees' records. Most of workplace enforcement will be audits of I-9s, the mandatory form required to verify the identity and employment authorization of individuals hired to work in the United States, they said.

Homan vowed to conduct up to 15,000 I-9 audits in Fiscal 2020 and completed less than half that number before the pandemic hit.

"Historically, there's always been many more ICE I-9 audits than there are ICE raids," Buchanan said.

Make sure payroll taxes are being paid, no one is being paid under the table or not being paid minimum wage and overtime, attorneys said.

Buchanan said the 2018 raid on the meat processing plant in Tennessee occurred after the company's banker noticed management was withdrawing large sums of cash to pay workers and reported it to a regulator. "They withdrew cash from their bank every single week, and that's actually how the whole case started," he said.

Buchanan also pointed to the Aug. 7, 2019, raid on seven chicken processing plants in Mississippi during which 680 workers were taken into custody. He said more than 200 of them were wearing ankle bracelets placed on them by border agents as a condition of their being temporarily released into the country without a work permit.

"So, it might be a good idea to see if any of your applicants are wearing ankle bracelets," he said.

Campanaro, from Fisher & Phillips, said it is crucial to have a plan in place, with designated people to respond to a raid or an audit. A mailed audit requires a response within three days, leaving companies little time to prepare.

She said she advises her clients to "make sure that they're doing really good thorough audits of their I-9s so that things are in shape as much as possible, and correcting things ahead of time so that if they are inspected or raided, they've got the documentation in good shape."

She said a person or a team should be designated and trained to respond to agents if they arrive at a place of business unannounced, "making sure you have the right people who are notified and involved, getting counsel involved, and then making sure you're looking at the warrant to make sure it's signed correctly and that you know what's in the scope of the warrant."

"If you have all your ducks in line, you should be OK," Campanaro said. "Having plans in place I think is the best advice."