Understanding Immigration Enforcement: Judicial v. Agency Warrants and Subpoenas, and Business Implications

Recent policy shifts enacted by the new Trump Administration have led to growing anxiety and fears of expanded and aggressive enforcement tactics, making it essential for businesses and institutions to understand and prepare for immigration related warrants, subpoenas, and the different legal rights and obligations when interacting with immigration authorities. The purpose of this article is to provide a very quick primer on the legal issues involved and suggested responses.

The Department of Homeland Security (DHS) operates the three primary immigration enforcement agencies:

1. Immigration and Customs Enforcement (ICE) handles immigration enforcement in the U.S. interior
2. Customs and Border Protection (CBP) focuses on border enforcement and entry points
3. U.S. Citizenship and Immigration Services (USCIS) manages immigration applications, but does not conduct investigations, make arrests, or handle detention and deportation enforcement

Key Legal Framework: The Fourth Amendment & Immigration Powers

The Fourth Amendment protects individuals and businesses from “unreasonable” searches and seizures by law enforcement, including ICE and CBP. Immigration authorities cannot conduct a search or make an arrest without a valid judicial warrant or subpoena (signed by a state or federal court judge or magistrate) or explicit consent.

Immigration warrants and subpoenas, seeking searches and seizures of persons, information, or documents related to documented citizenship or visa status, must be limited in scope, clear in identification of persons, information, or documents, clearly justified, and legally reasonable.

Despite these protections, immigration agencies frequently test legal limits to pressure individuals and organizations into cooperation, therefore understanding your legal obligations is critical.

Understanding the Different Type of Immigration Warrants & Subpoenas

Business Implications: Preparing for Immigration Authorities

1. Develop internal written policies and procedures on the logistics of handling a visit to your business by ICE agents and train employees before events occur.
2. Appoint an authorized employee to interact with ICE and review and respond to requests.
3. Inform employees or clients that they always may assert their right to remain silent, to refuse to answer questions, and to request to first speak with an attorney.

If you have any questions or need help assessing the risk to your organization, please contact the author of this article, your Woods Rogers attorney, or a member of the Woods Rogers Labor & Employment team.