President Donald Trump has promised to deport every illegal immigrant in the U.S. Such a step would devastate growers; California Gov. Gavin Newsom’s office has estimated 50% of California farmworkers are undocumented. But Immigration and Customs Enforcement (ICE) might show up at your vineyard anyway.
Before President Trump even took office, on January 7 and 8, the Border Patrol staged an immigration raid in Kern County during citrus harvest season.
“Agents in unmarked SUVs rounded up people in vans outside a Home Depot and gas station that serves a breakfast popular with field workers,” according to Cal Matters. “Videos shared in local Facebook groups and Instagram pages show Border Patrol agents pulling over vehicles along the 99 Highway on Tuesday and Wednesday in Bakersfield.”
Cal Matters reported agents singled out people dressed as farmworkers.
It’s vital to prepare your workers for this possibility. They probably aren’t aware of their rights during an immigration raid. People raised on American television have probably heard the Miranda warning hundreds of times and might know they have the right to remain silent. But your workers might not, and it’s important they do.
“The message I have been communicating to employers is to have a plan,” said Madeline Hernandez, attorney for the Immigration Institute of the Bay Area (IIBA). “To practice the plan, especially with your management staff. If ICE does show up at the front door, your staff should be comfortable saying the things they should say.”
First, a Warning for Employers
Before getting deeply into the rights of undocumented workers, we must give an important warning to employers. You are not allowed to knowingly employ undocumented workers.
The key word is ‘knowingly.’ You should not seek out knowledge of your workers’ status. Don’t ask if anyone has a potential problem, because if they say ‘yes,’ then you no longer have deniability. When discussing potential ICE issues, use a linguistic workaround like, “If you know someone in the community…”
Keep that in mind as we discuss the important difference between an ICE warrant and a judicial warrant.
A judicial arrest warrant, signed by a judge, allows police to enter a home or business to seek an individual for arrest. A judicial search warrant allows police to enter a home or business to seek evidence.
An ICE warrant does neither of those things. An ICE warrant allows an ICE officer to arrest a named undocumented immigrant, but only in a public place, not in a private place without permission.
ICE officers may ask to pursue someone into a private place. They may ask to enter a home or business. You don’t have to allow them in, and in fact, one of the first things Virginia-based Tingen
Law says on its website is, “Don’t open your door.” If an ICE agent claims to have a warrant, you can ask them to slide it under the door, but you don’t have to open the door to receive it, nor should you.
Here’s how that applies to companies.
“Train your staff to say, if ICE is there, ‘You cannot go to other areas of the workplace without permission,’” Hernandez told Grape & Wine. “Train staff to say, ‘This is a private area. You cannot enter without a judicial warrant signed by a judge. Do you have a judicial warrant?’ Make sure staff is aware of what are private and public areas.”
This brings us back to the language you should use in explaining this to workers.
“Employers don’t have to know if employees are documented,” Hernandez said. “Tell people, ‘If you don’t feel safe, here is a private area where you can go. For any emergency. For any reason.’”
Also, it’s important employees walk to the private area. Don’t run.
“If an individual is running, that could be probable cause for ICE to pick you up,” Hernandez said. “Walking is not the same. If you see an ICE truck coming, you can walk to a private office.”
Where ICE Arrests Happen
Because ICE warrants do not give officers permission to enter a private home or business, Hernandez said in most cases ICE agents wait outside someone’s home for them to come out. The Bakersfield raid is a good example: Border Patrol agents were waiting at gas stations and breakfast shops.
In some states, ICE agents can contact local police and get them to ask a judge for a judicial arrest warrant. But that won’t happen in California.
In 2017, during the first year of the first Trump administration, California passed SB 54, which prohibits local law enforcement agencies from detaining undocumented immigrants unless they have been convicted of either a serious or violent felony or a misdemeanor that could have been classified as a felony. Many local communities in California also have their own sanctuary laws. In short, ICE cannot count on local police help and cannot count on judicial warrants.
Because an ICE warrant is so limited in what it allows the officer to do, it’s important workers know their rights, which are considerable.
The Immigrant Legal Resource Center has produced a “red card,” or “tarjeta roja,” for immigrants that spells out these rights and tells them exactly what to say.
In a nutshell, Hernandez says: “Do not open the door. Do not answer any questions. Do not sign anything. And do not run.”
Don’t Sign Anything
Pressuring a defendant without a lawyer to sign a confession is a popular tactic used by police around the world and might be especially effective on someone whose first language is not English.
“It’s one of the main intimidation tactics that ICE uses,” Hernandez said. ‘“If you don’t sign this, you’re going to be detained. You’re not going to be able to see your family.’”
It’s important for workers to know (whether or not they are here legally) they have the right to remain silent (just like on TV!), and they also are not required to sign any documents. In most cases, the document ICE agents will ask them to sign is for voluntary departure, that the person admits they are here illegally and promises to leave voluntarily. That document will be held against them when they have an immigration hearing.
However, one important right U.S. citizens facing arrest have that undocumented immigrants do not is the right to a public defender.
Immigrants absolutely have the right to an attorney during questioning by ICE and at every stage of removal proceedings. But unlike with U.S. criminal defendants, the immigration courts do not need to appoint a pro bono defender, and in most cases they will not.
IIBA is one of many legal organizations in the state that does offer pro bono lawyers to immigrants if they have someone available. That’s an enormous “if.” Hernandez said IIBA was already stretched to its limits before President Trump took office, and other such agencies are in a similar situation.
“There are many organizations that provide attorneys free or at low cost. IIBA is one. But capacity is always an issue,” Hernandez said. “There are private attorneys as well, but many people can’t afford fees. Honestly, it’s very hard. And there’s a lot of statistics around the likelihood of winning a case represented versus non-represented. I think an individual is four times as likely to win if they are represented. But if there’s not enough people to do it… If you ask me what keeps me up at night, that’s what keeps me up at night.”
It’s Not Over Until It’s Over
If an employee is arrested by ICE and charged with being undocumented, and you are aware of this (knowledge is key), you cannot continue to employ them.
They do not have to leave the country right away. They may never have to leave the country at all. They have the right to due process, and a right to a hearing. That could take months or years.
Many people in the middle of removal proceedings can qualify for work authorization, and they should ask for that.
Undocumented immigrants with children who are legal U.S. citizens should plan ahead.
“Make a family preparedness plan and include things like thinking about guardianship and who you would sign guardianship to,” Hernandez said. “We want people to prepare their kids for, if your parents don’t come home, know what to do. Make sure you have a box with important documents. Make sure you have passports.”
Hernandez says if the Trump administration does carry out deportation raids, it will be devastating not just to the wine industry, but to the California economy.
“In Napa, our industry would not survive,” Hernandez said. “It’s not just wine; it’s hotels, restaurants, construction. The Migrant Policy Institute did a study in 2012 and found 73% of the agriculture, hospitality, hotel, restaurant and construction industries are made up of foreign individuals. It’s a little bit scary. There’s definitely a workforce problem right now.
“The fear is real,” Hernandez said. “Yesterday, I got four different emails that said there’s ICE activity in Napa. They ended up all being false. But people are really scared.”
