November 29, 2022

Volume XII, Number 333


November 28, 2022

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Defense Strategies and FAQs for When ICE Investigates

If officers for the U.S. Immigration and Customs Enforcement (ICE) come knocking on your company’s door to conduct an investigation, you need to be prepared and ready to defend yourself. 

3 Defense Strategies for an ICE Investigation

1. All-Defense Strategies Should Be Tailored to Your Circumstances

First and foremost, defending against an Immigration and Customs Enforcement (ICE) investigation requires an individualized strategy that is catered to your overall interests, the context surrounding the investigation, the evidence that ICE is looking for, and what it has, already.

Creating a unique defense strategy that best protects your rights and your interests often takes the insight of an experienced ICE investigation attorney or immigration attorney. Seeking legal assistance and establishing an attorney-client relationship with one as soon as possible – preferably as soon as you learn of a potential ICE investigation – is one of the best ways to protect your company’s future and reputation.

2. If There is Any Doubt, Do Not Respond to an ICE Investigator’s Question

It may come as a surprise, but responding to a question or saying anything to an Immigration and Customs Enforcement (ICE) investigator is treated the same way as if it were said under oath in federal government court. Lying or even misrepresenting the truth when talking to ICE agents can amount to the crime of lying to a federal agent, which carries up to five years in prison (18 U.S.C. § 1001), or obstruction of justice, which carries up to 20 years in prison (18 U.S.C. § 1519).

So when an ICE agent asks you a question during an investigation and you are not absolutely certain that what you are about to say is truthful, it is critically important to not say something with finality. Couching your response in uncertainty or saying that you are not entirely sure can prevent serious criminal charges from being filed. Saying nothing or telling the agent to talk to your ICE investigation lawyer is even better.

3. Conduct a Pre-Disclosure Review of All Requested Files and Records 

A big part of most Immigration and Customs Enforcement (ICE) investigations, especially I-9 audits, is to collect a wide swath of your business’ files and records. They are looking for signs that your company is not complying with federal immigration laws by hiring undocumented immigrants or illegal aliens.

Not disclosing these records can lead to legal trouble, while destroying them can amount to a criminal offense. However, nothing is saying that you cannot conduct a thorough internal review before handing them over. Once you have rounded up the files and documents that fall within the scope of ICE’s request, you should review them before handing them over. If you find something that might be incriminating or that could lead to further suspicion and investigation, there may be a way to justifiably withhold it. For example, it might fall under the attorney-client privilege, or it might arguably be outside the scope of the document request. Even if it must be disclosed, it can be wise to include an explanation of why it is not actually incriminating. This can get ahead of the subsequent investigation and open a dialogue with ICE that may end up being in your best interests.

Frequently Asked Questions About ICE Investigations

1. What Can Trigger an ICE Investigation?

ICE is responsible for enforcing federal laws, both criminal and civil, that encompass immigration, border control, trade, and customs. Most ICE investigations are triggered by a third party’s complaint rather than the agency’s initiative. 

Unfortunately for targeted businesses, this means that they are often put through the stress and inconvenience of an investigation because someone is retaliating against them or trying to smear their reputation. 

Most ICE investigations come from complaints. These complaints can be filed by anyone, including:

  • Disgruntled ex-employees

  • Job candidates who were not hired

  • Business competitors

  • Other adverse parties

Complainants with ulterior motives are likely to stretch the truth or outright lie to subject your company to an investigation that can be seen as prejudicial if it gets covered by the media.

2. What are the Potential Consequences of an Investigation?

If left unchecked, an ICE investigation can turn into a host of civil and criminal charges against your company and against the executives that represent it.

If you are employing more than 10 unauthorized employees and you actually know it, you can be charged with harboring illegal immigrants (8 U.S.C. § 1324). A conviction carries up to five years in prison, as well as a $250,000 fine. Criminal charges against the company carry fines of up to $500,000. 

If your company is found to have a pattern or practice of hiring undocumented aliens (8 U.S.C. § 1324a), it can be fined up to $3,000 for each worker, and responsible executives can face up to six months in jail. 

Executives who make false statements or who destroy or hide evidence can face additional criminal charges for false statements and obstruction of justice, on top of the immigration offenses.

While criminal charges are on the table, ICE investigations are more likely to lead to civil penalties against employers, instead.

In the face of criminal and civil sanctions, it is easy to overlook the reputational blow that an ICE investigation can have on your company. Even if the investigation finds nothing, rumors can circulate and taint your company’s reputation in the community.

3. Can I Avoid These Consequences By Taking Remedial Measures?

Yes. When it comes to employer liability, much of immigration law requires that you act with actual knowledge or intent. Taking remedial measures and adopting ICE and homeland security compliance protocols can be used as strong evidence that your company intends to follow the immigration laws and hire only U.S. citizens or legal immigrants with U.S. work authorization. This can usually be done through a code of conduct in an employee’s manual or handbook, though an ICE investigation defense attorney or an immigration attorney should be consulted to ensure it is effective and enforceable. 

Oberheiden P.C. © 2022 National Law Review, Volume XII, Number 272

About this Author

Nick Oberheiden Criminal Defense Attorney Oberheiden PC
Federal Criminal Defense Attorney

Dr. Nick Oberheiden focuses his litigation practice on white-collar criminal defense, government investigations, SEC & FCPA enforcement, and commercial litigation. He has defended clients in PPP Loan Fraud cases and COVID-19 investigations. Nick also directs internal corporate investigations and he leads defense teams in whistleblower actions, corporate defense cases, as well as cases involving national security and elected officials.

Clients from more than 45 U.S. states have hired Nick to seek effective protection against government...