Illinois’ ICE detention ban to take effect within weeks following appeals court ruling

Updated at 4:00 p.m. with a comment from the Illinois Attorney General’s office.

Two Illinois counties that detain immigrants in federal custody in their local jails will have to terminate their contracts with U.S. Immigration and Customs Enforcement within weeks, an appeals court ruled Wednesday.

A three-judge panel of the 7th U.S. Circuit Court of Appeals lifted a temporary pause on the enforcement of an Illinois law passed this summer that prohibits counties in the state from renting out their jail beds to ICE.

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McHenry County and Kankakee County, each about an hour’s drive from Chicago, had sued the state over the law, called the Illinois Way Forward Act, saying that it would cost them millions of dollars in revenue each year.

In December, U.S. District Judge Philip G. Reinhard of the Northern District of Illinois ruled that the law was an appropriate use of the state’s constitutional power to prohibit counties from participating in federal regulatory programs, such as immigration detention. The two counties appealed Reinhard’s decision.

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People stand outside in masks with a sign in the center that says Free Them All!

Judge upholds Illinois Way Forward Act, sealing an end to ICE detention in the state

A federal judge dismissed a lawsuit filed by two Illinois counties hoping to keep their lucrative immigration detention contracts.

Later that month, the 7th Circuit panel stayed enforcement of the law until Jan. 13. But the panel denied extending the stay Wednesday while the counties’ appeal moves forward.

“We conclude that the counties have not made a ‘strong showing’ that they are likely to succeed on the merits,” the judges wrote. “Illinois’s public interest in enforcing its statute weighs against an injunction pending appeal.”

McHenry County State’s Attorney Patrick Kenneally, who led the charge against the law in court, said the panel’s decision was disappointing and that it was too early to tell if the counties would continue to pursue their appeal. “We’ll regroup, and I think formally make a decision,” Kenneally told Injustice Watch on Thursday.

Last month, Kankakee County Board Chair Andy Wheeler said the county would appeal “as far as we can, up to and including the U.S. Supreme Court,” according to the Associated Press.

A spokesperson for ICE did not immediately respond to a request for comment.

Annie Thompson, a spokesperson for the Illinois Attorney General’s office, which is defending the law in court, said they were happy with the court’s decision.

“We are pleased that the court allowed the Way Forward Act to go into effect, as it will facilitate trust building and collaboration between our diverse immigrant communities and law enforcement agencies,” Thompson said in a statement. “Such partnerships are critical not just to protecting immigrant communities — they are essential to enhancing public safety throughout our state.”

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An imposing jail building that is also used for immigration detention

Lawsuit could foil Illinois’ ban on immigration detention

A lawsuit brought by two counties outside Chicago raises questions about immigrant rights activists' strategy of working to end ICE detention one state and county at a time.

Immigrant rights advocates celebrated the appellate court’s ruling and are calling on ICE to release immigrants detained in Kankakee and McHenry counties instead of transferring them to jails in other states while their deportation cases make their way through the courts.

As of last week, 55 immigrants in ICE custody were detained at the McHenry County Jail, and 39 at the Kankakee County Jail, according to records submitted by the counties as part of the lawsuit.

“We have been in communication with ICE headquarters, and we are eager to start the process of reviewing the cases of each of these individuals and making sure they have the opportunity to get released,” said Fred Tsao, senior policy counsel at the Illinois Coalition for Immigrant and Refugee Rights, which spearheaded efforts to end immigration detention in the state.

After the Illinois Way Forward Act passed, immigration attorneys successfully petitioned for about 15 people to be released from immigration detention in Pulaski County, after the county voluntarily ended its ICE contract in response to the new law.

“While someone is being detained, not only is it harder for them to access legal counsel, but they’re also separated from their families, their support networks, and their communities, which can be really debilitating,” Tsao said.

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