What Should You Do if ICE Comes to Your Restaurant?
We spoke to legal experts about what restaurant owners and workers can do to protect themselves from immigration raids
In an interview on CNN, border czar Tom Homan bemoaned that immigrants in the U.S. were too informed. “Sanctuary citizens are making it very difficult to arrest the criminals,” he said, apparently annoyed that immigrants would be aware of basic rights they are owed by the government he works for. “For instance, Chicago, very well-educated. They’ve been educated how to defy ICE, how to hide from ICE.”
The ICE raids that the Trump administration has ordered across the country rely on fear, and there’s no shortage of that. Farm workers aren’t showing up to pick fruit, and street vendors aren’t showing up to run their businesses. They’re keeping their children home from school. “People in the neighborhood are talking about it. Agents are coming around, and people are scared to go to work,” a restaurateur in Queens told GrubStreet.
According to the American Immigration Council, immigrants of all statuses make up 22 percent of the food service industry, and ICE agents are sweeping up everyone in their raids on businesses, even U.S. citizens. “ICE is quite emboldened with the new administration, and they are not respecting people’s rights,” says Jessie Hahn, senior counsel for labor and employment policy at the National Immigration Law Center. “It just creates a lot of chaos, and they need to be held accountable.” And how an ICE raid may play out in a business is different from what it could look like on the street or in an individual home, which is why it’s important for all restaurant and food industry workers to know what to do if ICE shows up at work. We spoke to Hahn, and consulted other experts, about how restaurant workers and owners can work together to keep everyone safe.
Know the difference between public and private spaces
There are distinctions about what ICE can do in public versus private spaces, and much of the Know Your Rights literature out there, like these guides published by the Immigrant Defense Center, focus on what to do if ICE stops you on the street, where the question of entering a space without consent doesn’t apply. “A lot of this is what lawyers look at as bedrock, constitutional Fourth Amendment and Fifth Amendment protections that are not unique to immigration enforcement,” says Hahn. The Fourth Amendment protects against unreasonable searches and seizures, and differentiates between what can be searched in public and what can be searched in private without a warrant.
For restaurants, spaces like the bar and dining room count as public places, “because anyone from the general public can enter,” says Hahn. This means ICE could question both workers and customers in those areas (to which the Immigrant Defense Project suggests asking if you’re free to go, or invoking your right to remain silent). But just as the general public can’t enter the kitchen or the manager’s office, neither can ICE without a judicial warrant giving them explicit permission. “You should consider placing signage indicating certain areas as ‘private’ to distinguish them from public areas in advance of any ICE raid,” writes the hospitality practice group of the Fox Rothschild law firm.
Make sure staff knows who is authorized to let ICE in
Most legal authorities have the ability to enter private spaces if given consent by the business owner. “What we recommend is that owners communicate with all of their staff, and that the staff is clear that only the employer has the ability to grant that permission” to enter private areas, says Hahn. “If they are asked, they should say, essentially, ‘I don’t have the authority to grant you access.’”
Know the difference between a judicial warrant and an administrative warrant
It’s understandable to see a government official with a gun flash a piece of paper that says “warrant” and let them do whatever they want out of fear. But according to Hahn, it’s crucial that restaurant workers and owners know the difference between a judicial warrant and an administrative warrant because a judicial warrant is the only type of warrant that gives federal authorities permission to enter a private space without the owner’s consent.
“A judicial warrant is going to be signed by a judge, and at the top it’s going to name the court that the judge sits on,” says Hahn. A judicial warrant will also list a time frame for a search to be conducted, specific areas or items to be searched, and will allow officers to enter locked areas listed. Ask for a copy of the warrant and keep track of exactly where it authorizes ICE to go.
Hahn says many officers will attempt to enter without a warrant at all, or with an administrative warrant, which does not give them the legal authority to enter a private area without consent of the owner. “An administrative warrant will usually say Department of Homeland Security on the top, or Immigration and Customs Enforcement,” rather than the name of a court and judge, says Hahn. “It is important to kind of stop and take a beat and say, ‘I need to see the document and look at the document and understand, is this a judicial warrant or not?’”
Know what you’re up against
Hahn says there are two main types of raids — one in which the employer, usually of a larger operation, is being investigated for unlawful hiring and other crimes, and “what we have seen in the last couple weeks, these smaller scale raids where they’re getting a few people, and that’s not related to an investigation into the employer.”
Most experts advise anyone subject to these raids to document what is happening, whether on your phone or in written notes, but not to interfere. “Do not lie or provide false information to officers or attempt to destroy or hide any documents or items. Do not assist employees with hiding from officers or leaving the premises or encouraging them to do so,” says Fox Rothschild. Owners can inform employees that they have the choice to speak with ICE or not, but they should not attempt to convince employees to refuse. But also, owners do not have to provide information on any employee’s immigration status, or even identify specific individuals to ICE. “You don’t want to obstruct them,” says Hahn. “But you can still make it clear that you are declining to consent to a search, and then you can watch carefully what they’re doing and keep track of what they’re saying and what they’re doing.”
It’s also probably a good idea to ensure the restaurant has active legal counsel. If that’s the case, “the host/receptionist or company representative should inform ICE that counsel is being contacted. If counsel is able to come to the premises immediately, the company representative should request that the officers wait for counsel to arrive before proceeding,” writes Fox Rothschild. It may not keep ICE from proceeding with a search, but it can help an employer if contesting the search later to say that ICE ignored these requests.
And in general, restaurants with large immigrant workforces — regardless of documentation status — would do well to contact local immigration lawyers, and give employees those numbers and resources. By working together, restaurants can keep their workers and customers safe.
“The lives of immigrants and U.S.-born residents are deeply intertwined, and it is not possible to target undocumented immigrants without harming citizens and U.S. residents and immigrants of other statuses too,” says Hahn. “Everything that they are doing is impractical, it’s destructive, costly, it’s going to hurt our economy. And immigrants are essential members of our communities. This is not going to solve the problems that Trump is thinking they’re going to solve.”
