State law ending immigrant detention in McHenry, Kankakee country jails is upheld by federal appeals court

A federal appellate court has upheld an Illinois law prohibiting McHenry and Kankakee county jails from holding federal immigrant detainees, likely settling the matter.

“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 detention of accused illegal immigrants). Every one of the detainees was shipped to other facilities (out of state) or released for other reasons.”

Buehler did not anticipate the county appealing the recent ruling. The loss of the federal contract to hold the detainees likely will create a $6 million hole in the county budget that will have to be filled, he said.

Sandra Davila was one of many local activists who had fought for McHenry to end its detention of immigrants on humanitarian grounds, saying it broke up families of immigrants waiting for their day in court. She said the fight had been “emotionally draining,” and the ruling was a “relief.”

Fred Tsao, senior policy counsel for the Illinois Coalition for Immigrant and Refugee Rights, said about half the detainees in Illinois were freed after federal reviews that otherwise would not have occurred. Activists said they would push for an end to federal detention of immigrants by U.S. Immigration and Customs Enforcement (ICE).

“This is a win 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 prompted by the Illinois Way Forward Act, signed into law by Gov. J.B. Pritzker in August 2021, which prohibits local governments from contracting with the U.S. Immigration and Customs Enforcement to jail people detained while awaiting a hearing on alleged immigration violations.

The two counties had sued, arguing that the state law was preempted and prohibited by the Supremacy Clause of the U.S. Constitution, which make federal law allowing such detention the “supreme law of the land.”

But the three-judge appellate panel, with an opinion written by U.S. Judge David Hamilton, found that the state law didn’t conflict with federal law.

“It would make no sense to hold that a federal statute premised on State cooperation preempts a State law withholding that cooperation,” the judge wrote. “The Act directly regulates only State and local entities and law enforcement — not the federal government.”

McHenry County State’s Attorney Patrick Kenneally issued a statement that he was disappointed with the decision, but the county will continue to comply with the law.

The county terminated its contract with ICE at the end of the appellate court’s emergency stay in February. Since then, Kenneally said, the county has not housed any civil immigration detainees.