Recently, with increased immigration enforcement in farm country, there has been confusion about exactly where federal immigration officers can go at a farm property. Generally, immigration officers can access any public areas of a business, including farms, that are ordinarily available to anyone. They cannot access non-public parts of the business without obtaining permission from the owner or manager in charge, unless they have a valid search warrant. This concept raised the question: what is public and non-public at a farm? Farms are all different, so specific situations will vary, but generally the main driveway and office areas of most farms would be considered public; while houses, sheds, barns, livestock and other production areas would be non-public. But what about open fields? Fortunately, federal law already provides the answer: private farm fields are not open to immigration officers without a warrant, unless located within 25 miles of the U.S. border.
Federal law addresses the standards for immigration enforcement activities in 8 CFR 287.8(f)(2) as follows:
“An immigration officer may not enter into the non-public areas of a business, a residence including the curtilage of such residence, or a farm or other outdoor agricultural operation, except as provided in section 287(a)(3) of the Act, for the purpose of questioning the occupants or employees concerning their right to be or remain in the United States unless the officer has either a warrant or the consent of the owner or other person in control of the site to be inspected. When consent to enter is given, the immigration officer must note on the officer’s report that consent was given and, if possible, by whom consent was given. If the immigration officer is denied access to conduct a site inspection, a warrant may be obtained.”
The exception underlined in the quote above generally grants immigration officers full access to farm fields located with 25 miles of the U.S. border. The relevant text from section 287(a)(3) of the Immigration and Nationality Act is codified in federal law at §1357(a)(3) as follows:
“Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant- …(3) within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle, and within a distance of twenty-five miles from any such external boundary to have access to private lands, but not dwellings, for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States;”
So, if your farm is located with 25 miles of the U.S. border, then immigration officers have authority to enter private farm fields without permission and without a warrant in order to enforce immigration laws. Note, however, that even in this border zone they do not have authority to enter dwellings such as employee housing, without permission or a warrant. Farm operators who are concerned about designating public and non-public areas of their operations should consider appropriate signage. Private property signs could be placed on farm buildings and production areas, including strategic signs at entrances and access lanes for open farm fields. Signage could also be used at the main farm entrance and office area to clearly instruct visitors to check in at the office.
Finally, let’s consider the phrase included in the standards for immigration enforcement indicating that officers may not enter non-public areas “unless the officer has either a warrant or the consent of the owner or other person in control of the site to be inspected.” Consent of the owner is clear, but what about “other person in control of the site,” this seems vague and an immigration officer might consider any random employee nearby, to be in control of the site. Managers should train employees not to give permission to non-employees for any activity at the farm, and instead to direct them to an owner or manager with designated authority to make such decisions. Perhaps they could even escort the officer to the farm office or location of such a designated authority.
Federal immigration officers represent the U.S. Government and should be respected, but there are laws and regulations in this country that govern the behavior of citizens, residents, and authorities alike. Farm employers are well advised to understand those rules and take calm and deliberate action to ensure that everyone obeys them.
By Richard Stup, Cornell University. Permission granted to repost, quote, and reprint with author attribution.
The post Can Federal Immigration Officers Access Farm Fields? appeared in The Ag Workforce Journal.
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