In setback for McHenry County, federal court upholds ban on ICE detainees in county jails

  • A federal appellate court has upheld a recently enacted state law that bans the McHenry County jail from holding immigration detainees. Before the law took effect Jan. 1, the jail had been housing federal immigration detainees since 2003, raking in millions in annual revenue for the county.

    A federal appellate court has upheld a recently enacted state law that bans the McHenry County jail from holding immigration detainees. Before the law took effect Jan. 1, the jail had been housing federal immigration detainees since 2003, raking in millions in annual revenue for the county. Courtesy of Shaw Local News Network

  • McHenry County Board members Michael Vijuk, left, and Paula Yensen, right, joined protesters in April 2021 calling for an end to the county's contract with U.S. Immigration and Customs Enforcement.

    McHenry County Board members Michael Vijuk, left, and Paula Yensen, right, joined protesters in April 2021 calling for an end to the county's contract with U.S. Immigration and Customs Enforcement. Matthew Apgar/Shaw Local News Network, 2021

  • Patrick Kenneally, McHenry County state's attorney

    Patrick Kenneally, McHenry County state's attorney

  • Tattoo artist Tom Begley, of the Electric Tattoo Parlor in Carpentersville, works on a tattoo for Jaime Marinez to cover a bullet hole scar; the tattoo depicts a clock with the date and time of Marinez's father's death. It's part of an award-winning tattoo removal program in the DuPage County jail.

    Tattoo artist Tom Begley, of the Electric Tattoo Parlor in Carpentersville, works on a tattoo for Jaime Marinez to cover a bullet hole scar; the tattoo depicts a clock with the date and time of Marinez's father's death. It's part of an award-winning tattoo removal program in the DuPage County jail. AP Photo/Charles Rex Arbogast

 
Posted8/12/2022 5:15 AM

McHenry County's legal fight to preserve a multimillion-dollar federal contract suffered a significant defeat this week when a U.S. appellate court upheld a state law that bans counties from locking up immigration detainees in their jails.

At issue is the Illinois Way Forward Act signed into law by Gov. J.B. Pritzker last August. The act made it unlawful as of Jan. 1 for counties to offer space in their jails for people in custody on immigration matters.

 

The McHenry County jail had housed thousands of immigration detainees since 2003 as part of a lucrative deal with U.S. Immigration and Customs Enforcement. ICE was paying the county $95 a day for each detainee -- usually people awaiting deportation or an immigration hearing -- which added up to as much as $9.7 million some years.

McHenry and Kankakee counties sued the state last year in federal court in a bid to overturn the law. They argued that the law violates the Supremacy Clause of the U.S. Constitution, which says that when a state law conflicts with a federal law, the federal law prevails.

In this case, that federal law is ICE's constitutional authority to make deals with facilities that can hold immigration detainees, the counties say.

They also argued that the Illinois Way Forward Act unconstitutionally regulates and discriminates against the federal government by banning ICE detainees from county jails.

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The Chicago-based 7th Circuit U.S. Court of Appeals shot down both arguments in a 20-page decision Tuesday.

"Congress may have hoped or expected that states would cooperate with any requests from the Attorney General to house detainees in their facilities," Judge David F. Hamilton wrote in the unanimous decision. "But Illinois and the other states are not bound by that hope or expectation. It would make no sense to hold that a federal statute premised on state cooperation preempts a state law withholding that cooperation."

As for the discrimination and regulation claim, Hamilton notes that the state law regulates county jails, not ICE, and still allows for counties to confine other federal detainees -- just not those on immigration holds.

"The government still may house immigration detainees in its own facilities or those of private entities," the judge said. "Nothing in the Act suggests that the federal government or its contractors have been singled out 'for less favorable treatment.'"

Next stop, Supreme Court?

The next move for the counties could be asking the U.S. Supreme Court to hear their case. When asked Thursday, the office of McHenry County State's Attorney Patrick Kenneally declined to comment on whether that's their plan.

                                                                                                                                                                                                                       
 

"We are disappointed with the decision but will continue to comply with the law," Kenneally said in a written statement. "The county terminated its contract with ICE pursuant to the Way Forward Act at the expiration of the Seventh Circuit's emergency stay in February of 2022. Since that time, the county has not housed any civil immigration detainees, and the county is moving forward in budgeting for the future without the revenue generated by the contract."

In the meantime, Illinois Attorney General Kwame Raoul's office, which is representing the state, welcomed Tuesday's decision.

"We are pleased that the court upheld the challenged provisions of the Way Forward Act, which facilitate trust building and collaboration between our diverse immigrant communities and law enforcement agencies," the office said in a statement Thursday. "Such partnerships are critical not just in protecting immigrant communities -- they are essential to enhancing public safety throughout our state."

Gun buyback in Kane County

The Kane County sheriff's office, the Aurora Police Department and an Aurora church want to get guns off the street.

So, they are having a buyback program. From 9 a.m. to noon Aug. 27-28, you can bring unwanted guns to the Kane County Health Department office parking lot at 1240 N. Highland Ave., Aurora.

In exchange, you will receive a $100 gift card. No questions will be asked. And you don't have to live in Kane County to participate.

The guns have to be unloaded and transported in a case, a box, a bag or in the trunk of a vehicle. They won't take broken guns.

"We hope that the turnover of unwanted, operational firearms from our citizens will decrease the likelihood of accidental death or injury and guns being stolen from homes and later used in the commission of crimes," Kane County Sheriff Ron Hain said in an announcement of the event.

Hain said it is the first buyback the office has conducted in at least two decades. Community Christian Church is supplying the gift cards. For more information, call (630) 608-2000.

Tattoo program praised

From our colleague, Daily Herald staff writer Katlyn Smith: DuPage County Sheriff James Mendrick's office has received a 2022 Achievement Award from the National Association of Counties for a gang tattoo removal program.

Michael Beary, background center, civilian director and chief architect of the DuPage County jail's new gang-cessation and jobs program, and inmate Brett, left, watch as tattoo artist Tom Begley covers over a bullet wound scar on the chest of Jaime Marinez. It's part of an award-winning tattoo removal program in the DuPage County jail.
Michael Beary, background center, civilian director and chief architect of the DuPage County jail's new gang-cessation and jobs program, and inmate Brett, left, watch as tattoo artist Tom Begley covers over a bullet wound scar on the chest of Jaime Marinez. It's part of an award-winning tattoo removal program in the DuPage County jail. - AP Photo/Charles Rex Arbogast

The nonprofit JUST of DuPage oversees the program, which is designed to reduce recidivism among gang members who serve time in the county jail. Incarcerated people who have completed job skills training courses can have their gang tattoos removed or covered up with other ink.

"This gets people out of the gang life," Mendrick said at a county board meeting this week. "Once they take their rank off, they don't go back. We're getting them jobs."

More than 60 tattoos have been removed or covered, JUST Director Michael Beary said. There's a waiting list of 100 people -- 20% of the jail -- to participate.

"When they find out that they can get out of the gangs, they never thought it was possible. They thought they were doomed to a life in prison or death," Beary said.

County Board Chairman Dan Cronin presented the award.

• Have a question, comment or story idea? Email us at copsandcrime@dailyherald.com.

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