Court upholds law ending immigration detention in McHenry and Kankakee jails

A federal appeals court has upheld an Illinois law barring McHenry and Kankakee county jails from holding federal immigrant detainees, likely settling the case.

“I’m disappointed with the outcome,” McHenry County Board Chairman Michael Buehler said. “It’s an erosion of local control. It does absolutely nothing (to end the detention of accused illegal immigrants). Each of the inmates was sent to other facilities (out of state) or released for other reasons.

Buehler hadn’t expected the county to appeal the recent decision. The loss of the federal contract to hold the inmates will likely create a $6 million hole in the county budget that will need to be filled, he said.

Sandra Davila was one of many local activists who had fought for McHenry to end immigration detention on humanitarian grounds, saying it had broken up immigrant families awaiting their day in court. She said the fight was “emotionally draining” and the decision was a “relief.”

Fred Tsao, senior policy advisor for the Illinois Coalition for Immigrant and Refugee Rights, said about half of Illinois inmates have been released after federal reviews that otherwise would not have occurred. Activists said they would push to end federal detention of immigrants by US Immigration and Customs Enforcement (ICE).

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“This is a victory for immigrant communities in our state and should be the final nail in the coffin for ICE detention centers in Illinois,” Tsao said.

The controversy was sparked by the Illinois Way Forward Act, signed into law by Governor JB Pritzker in August 2021, which prohibits local governments from contracting with U.S. Immigration and Customs Enforcement to imprison those detained pending a hearing on alleged immigration violations.

Both counties had sued, arguing that the state law was preempted and prohibited by the Supremacy Clause of the US Constitution, which makes federal law authorizing such detention the “supreme law of the land.”

But the three-judge appeals panel, with an opinion written by U.S. Judge David Hamilton, found the state law did not conflict with federal law.

“It would make no sense to hold that a federal law based on state cooperation prevails over a state law denying such cooperation,” the judge wrote. “The law only directly regulates state and local entities and law enforcement – not the federal government.”

McHenry County State’s Attorney Patrick Kenneally released a statement saying he was disappointed with the ruling, but the county will continue to follow the law.

The county terminated its contract with ICE at the end of the appeals court’s emergency stay in February. Since then, Kenneally said, the county has held no civilian immigration detainees.