Lawsuit could foil Illinois’ ban on immigration detention, including in McHenry County

CHICAGO — (AP) — When Illinois Gov. J.B. Pritzker signed the Illinois Way Forward Act into law in August, he put the state squarely on the side of a growing movement against the federal government’s vast immigration detention system. The law banned cities and counties statewide from renting out beds in their jails to U.S. Immigration and Customs Enforcement, and it required counties that already had ICE detention contracts to end them by Jan. 1.

The immigrant rights activists and legislators behind the Illinois Way Forward Act saw the sweeping law as a victory for their long-term strategy to eventually dismantle ICE’s detention system. As of last week, ICE held nearly 22,000 immigrants and asylum-seekers in more than 130 private and public jails across the country.

“We kind of view this as similar to the marriage equality movement, where states slowly start passing bills to a point where the current administration at that point was not able to ignore the issue and the needs of the community,” said Luis Suarez, advocacy manager at Detention Watch Network, a national activist group that works to close ICE detention facilities.

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The nonprofit news outlet Injustice Watch provided this article to The Associated Press through a collaboration with Institute for Nonprofit News.

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But shortly after Pritzker signed the Illinois Way Forward Act, two Illinois counties filed a lawsuit in federal court challenging the law as unconstitutional. Kankakee County, about an hour’s drive south of downtown Chicago, and McHenry County each made millions of dollars in recent years from detention contracts with ICE.

The state has filed a motion to dismiss the case. But the counties have asked U.S. District Judge Philip G. Reinhard of the Northern District of Illinois to issue a temporary injunction that would allow them to keep their ICE contracts while the case is litigated. The judge has not yet set an initial hearing date or indicated when he might make a decision.

If the counties win their case, it would not only sour the advocates’ victory but would also call into question the viability of their strategy to end immigration detention state by state and jail by jail. But even if the law stands, the counties’ challenge raises questions about what will happen to the dozens of people currently in ICE detention in the counties’ jails.

In interviews and court filings, McHenry County State’s Attorney Patrick Kenneally, who is representing both counties in the case, argued that ICE will end up transferring most of the people in the county jails to other parts of the country, further away from their families and legal teams. “The suggestion that this is actually going to work to the material benefit of anybody that’s currently being housed in McHenry County is dubious if not simply wrong,” Kenneally said in an interview.

But the advocates behind the bill said the lawsuit underscores the perverse financial incentives for mainly conservative, rural counties to detain immigrants in federal custody, in the process separating families and causing lasting harm to immigrants and their communities.

Advocates also accuse the jails in Kankakee and McHenry counties of providing substandard care, substantiated by reports in recent years that detainees went three months without running water in their sinks, and endured a mumps outbreak, and a lack of proper medical care.

Advocates also point to data showing that 75% of immigrants detained by ICE have no criminal convictions, and the vast majority of immigrants who aren’t detained show up to their court dates, to make the case that detention is abusive, expensive, and unnecessary.

State Sen. Celina Villanueva, D-Chicago, a co-sponsor of the Illinois Way Forward Act, said McHenry and Kankakee counties are essentially trying to cash dirty checks by making money off a broken immigration system.

“What they’re trying to do is misguide people into believing that they care about our communities, but what they care about is the dollars associated with the criminalization of immigrants in this country,” she said.

McHenry and Kankakee counties make it abundantly clear in their court filings that money is at the center of their case.

McHenry County brought in more than $8 million per year through its contract with ICE from 2016 to 2020, according to the lawsuit, more than it took in from state income taxes over the same period. Kankakee County took in nearly $4 million per year through its ICE detention contract from 2017 to 2020, close to as much as it earned in sales taxes over the same period.

Both counties have seen a sharp decline in the number of immigrants detained in their jails this year, mirroring a national decrease in the ICE detention population under President Joe Biden.

Forcing the counties to end their contracts “will have a detrimental effect on the revenues of these counties,” Kenneally wrote in the lawsuit.

The counties’ main legal argument is that the Illinois Way Forward Act interferes with federal law, which allows ICE to contract with local counties and municipalities to detain immigrants in their jails.

“The Illinois Way Forward Act seeks to circumvent the federal government’s constitutional power in the field of immigration detention,” Kenneally argued in a court filing.

A recent decision by the U.S. Court of Appeals for the 9th Circuit in California could bolster the counties’ case. Last month, the court blocked a California law that would have forced the closure of private immigration detention centers in the state. In a 2-1 decision, the appellate panel ruled that the California law prevented ICE from enforcing “what federal immigration law explicitly permits.”

But the Illinois attorney general’s office argues that the 9th Circuit decision only applies to private actors, and that the U.S. Supreme Court has said the 10th Amendment gives the state the power to refuse to participate in federal programs, such as immigration detention. With the Illinois Way Forward Act, the state chose to prohibit its “subunits” of government from detaining immigrants in ICE custody at their jails — and the counties have no legal basis to leapfrog the state, attorneys for the state argued.

“The state’s sovereign choice, not the counties’ preference, is what matters in this case,” a lawyer for the office wrote in its most recent filing.

A spokesperson for Illinois Attorney General Kwame Raoul did not make Raoul or any of the lawyers in the case available for an interview but said in a statement the office is committed to defending the Illinois Way Forward Act, which she said is “aimed at building and preserving the trust between immigrant communities and law enforcement that is critical to enhancing public safety.”

An ICE spokesperson did not respond to an emailed list of questions for this story.

When the Illinois Way Forward Act was signed into law, there was a third county in Illinois with an ICE detention contract: Pulaski County, at the far southern tip of the state.

Unlike McHenry and Kankakee counties, Pulaski County opted to end its contract with ICE. The federal government released 15 of the 50 or so immigrants who had been detained at the Pulaski County Jail — and the rest were transferred to other ICE detention centers, particularly to Kankakee and McHenry counties, said Mark Fleming, the associate director for federal litigation at the National Immigrant Justice Center, a nonprofit organization in Chicago that aided many of those immigrants in their release petitions.

Immigrant rights advocates see the closure of the Pulaski County Detention Center as proof that their strategy is working, while opponents of the Illinois Way Forward Act say it shows that closing detention centers will just cause ICE to move immigrants elsewhere.

Fleming said advocates were able to use the end of Pulaski County’s contract with ICE to lobby the federal agency to release people from detention altogether. If the judge strikes down the other two counties’ lawsuit, it will give advocates a chance to call on ICE to release more immigrants currently behind bars, he said.

“I don’t think anyone on our side is callous to the real possibility that some individuals will be transferred,” he said. “I think what we are pushing back against is this notion that automatically everyone’s going to be transferred.”

But Kenneally argues that the law will simply cause ICE to transfer most of the immigrants currently in McHenry and Kankakee counties to detention centers in other states. Such was the case in New Jersey, which passed a similar law banning immigration detention over the summer. ICE transferred dozens of people to other states in recent weeks after the American Civil Liberties Union tried but failed to stop the transfers in court.

Advocates such as Suarez admit that they are worried about people being transferred to detention centers farther from their families.

But in the long run, they think eliminating the number of detention centers available to ICE will force the agency to reduce the number of people it detains. And each state and county where they score a victory builds momentum for the ultimate goal of ending ICE detention.

“At the end of the day, we’re gonna continue to advocate for the closure of (detention) facilities because the possibility of release is always there,” Suarez said.