INS Searches: Know Your Rights
This article appeared in "The Grower," September 1998.With agriculture a 'target industry' for the Immigration and Naturalization Service, it pays for growers to know what you can and cannot do in response to a request by INS officials to search your property. Generally, the INS may search your operation only if its officers have either a search warrant or consent of the property owner ( or "other person in control of the site to be inspected").
David M. Kresock, a farm labor attorney with Harter, Secrest & Emery, LLP, Rochester, New York has developed a checklist of issues for growers to consider should the INS visit your property:
Stay calm.
INS officials may attempt to use intimidation to gain access to your premises. The best way to respond to any such intimidation is to calmly speak to INS officers about your rights as a property owner.Ask if the INS officers have a valid search warrant.
Generally, INS officers may not search private property without either a warrant or consent. An INS search warrant usually takes the form of a court order signed by a U. S. magistrate or judge. A valid warrant states
- agency or officers are authorized to conduct the search;
- the location to be searched;
- whether the search will take place in daylight hours;
- the specific items or individuals to be seized (if known); and
- an expiration date for the court order.
Examine the warrant carefully. If it appears valid, you must permit the authorized officers to have access to the premises indicated in the warrant.
If no warrant exists, then decide whether to consent to a search. If the INS does not have a search warrant, then the property owner (or other person in control of the site) has the discretion to deny access to any or all areas of the site. You may refuse to consent to a search, but the INS has the authority (and resources) to return in the future with a warrant.
You do not have to grant unlimited consent.
If you decide to consent to a search, you may negotiate with INS officials over the areas that you will allow them to search and the number of INS officers allowed on the premises. Before granting access, reach a specific agreement with INS officials as to the locations to be searched.Identify INS officials conducting the inspection.
Record the names and identification numbers of INS officials conducting the inspection. Do this in a way that does not interfere with INS activities.Assign a supervisor to accompany INS officials.
Make note of any INS officials that:
- badger or intimidate employees or use abusive language;
- display badges, handguns, or batons in a threatening manner;
question only foreign-speaking employees; - repeatedly question the same employee;
- use aggressive behavior (pushing and shoving of employees);
- spend an unreasonable length of time to conduct the search; or
- unreasonably interfere with your operations.
Record your observations.
Memories quickly fade, and you should promptly make a record of what you observed during the inspection, and preserve all notes taken.Other key points to consider during an inspection:
Frequently, search warrants will specify that INS officials are authorized to have access to locked areas. If a key is not provided, the INS may decide to break into the area. Again, however, if the warrant does not grant the INS access to a locked area, then they generally have no right of access to the area without consent.Access to locked areas.
Answering INS questions.
During a site inspection (with or without a search warrant), the INS cannot compel you to answer questions about the location of company records, buildings, or structural layouts. You have the right to refuse to speak to INS officials. Likewise, although the INS has the right to question an employee about his or her immigration status, the employee does not have to respond.Operating your business during an inspection.
The INS may not unreasonably interfere with your business operation or harass you or your employees. You do not have to stop your production and/or business during an inspection.Responsibility for a violation if the INS discovers an unauthorized employee.
If you have properly completed and retained an I-9 for the unauthorized employee, and reviewed the required documents, then you can be held responsible for hiring an unauthorized alien only if you had actual knowledge of the employee's unauthorized status.Conduct that may constitute illegally harboring or shielding aliens.
You may be subject to criminal prosecution for illegally harboring or shielding aliens if you tell employees to run and hide because INS officials are present; help employees escape by car; hide employees in closets, hidden stairwells, or behind false paneling; or lock-out an agent to prevent him from arresting employees.