U.S. Immigration and Customs Enforcement is making arrests in Minnesota right next to shoppers grabbing groceries. The tense encounters are happening at places like Target, Walmart and other private businesses.
Target appears to be a possible target for immigration enforcement in Minnesota. It’s one of several businesses where ICE agents have arrested people, including staff, in both the parking lot and store itself.
What is ICE allowed to do at private businesses?
“It comes down to whether or not there is an expectation of privacy in that space,” said John Medeiros, an attorney who leads the corporate immigration practice at the Nilan Johnson Lewis law firm. “If there is not a reasonable expectation of privacy, then the government has the authority to be there. They can conduct enforcement activities there.”
While Target and Walmart are private businesses, their parking lots and stores are open to the public, including ICE.
Similar rules apply to the waiting room at a hospital or a reading area at a library.
“They can ask people questions, they can seize materials that happen to be available in those spaces, they don’t need permission to be there,” Medeiros said.
A private business can have a public space, but it can also have private spaces. One example is a back room that has a door labeled “employees only.”
“The government does not have the authority to conduct investigations in those private spaces unless they have permission to do so,” Medeiros said.
A manager could give ICE permission to enter a private area or deny them. A denial happened last month at a restaurant in South Minneapolis, during which ICE wanted to look for someone in the restaurant’s back of house.
If they aren’t given permission to enter a private area, ICE agents would have to provide a judicial warrant.
“A judicial warrant is issued by a judge. It’s on letterhead of the court, signed by a judge,” Medeiros said.
The distinction of a judicial warrant is key because ICE agents could instead have an administrative warrant. The difference is that an administrative warrant is issued by an agency like the Department of Homeland Security or ICE, and it doesn’t carry the same weight as a judicial warrant for entering a private space.
“An administrative warrant is looking for someone that they feel is not authorized to be in the United States. That administrative warrant is not enforceable in a sense that employers do not have to grant access to government authorities if they have an admin warrant,” Medeiros said.
Public and private spaces aside, can a business simply make ICE leave? The short answer is no, said Medeiros; however, staff can ask ICE agents to leave. The ICE agents could continue to stay in the public spaces of the business to conduct their investigation.
Medeiros suggests people document ICE activity to ensure it’s done lawfully, but do not get in their way.
“If you feel like the investigation was done without consent, and if it was done without permission or without a warrant, you get to argue that later (in court),” he said.
Last January, the Trump administration rescinded a policy that protected sensitive locations from immigration enforcement, like churches, schools, and hospitals.
For more information on what ICE can or can’t do at businesses and organizations, as well as advice for employees, click here.
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