McHenry, Kankakee counties challenge new immigration law in federal court

McHenry and Kankakee counties filed a joint federal lawsuit Wednesday challenging a new state law that would essentially end the counties’ immigration detention functions and limit local police agencies’ cooperation with federal immigration enforcement.

The lawsuit, which names Illinois Attorney General Kwame Raoul as the defendant, seeks injunctive relief from the Illinois Way Forward Act, which requires existing agreements between the U.S. Immigration and Customs Enforcement and local jails in McHenry, Pulaski and Kankakee counties end by Jan. 1.

The legislation, which Gov. JB Pritzker signed into law on Aug. 2, also prohibits any future agreements between ICE and local governments to “house or detain individuals for federal civil immigration violations.”

“I think it ultimately boils down to: This was an overstep,” McHenry County State’s Attorney Patrick Kenneally said Wednesday.

Pulaski County Board Chairman Rex Wilburn could not be reached Wednesday to comment on the lawsuit and why his county was not included in the lawsuit.

The Illinois Attorney General’s Office is continuing to review the lawsuit Wednesday evening, a spokesperson said.

McHenry and Kankakee counties allege in their civil complaint that the Illinois Way Forward Act violates the U.S. and Illinois constitutions and attempts to dictate federal policies. The counties also claim that the act infringes on “intergovernmental immunity” by interfering with the federal government’s operations and threatens to eliminate millions of dollars in revenue.

“Requiring McHenry County and Kankakee County to terminate their respective agreements to house Federal immigration detainees will have a detrimental effect on the revenues of these counties,” Kenneally wrote in the lawsuit.

McHenry County entered into an agreement on Aug. 1, 2003, with U.S. Marshals Service and the U.S. Citizenship and Immigration Services. In exchange for housing federal detainees at the Woodstock-based jail, the marshals service pays the county $95 per day for each federal detainee.

The jail, on average, housed 240 ICE detainees per day between 2016 and 2020. The agreement therefore yielded more than $41 million of revenue or “over $8 million each year” for the same time period, according to the lawsuit. Kankakee County’s contract brought in about $4 million per year between 2017 and 2020, according to the lawsuit.

In May, the McHenry County Board voted down a resolution to cancel the county’s agreement with ICE. That was about two weeks before Illinois legislators passed the immigration bill, which was advanced by the Legislative Latino Caucus.

“The County Board spent a year studying and thoughtfully deliberating whether the ICE contract should be continued prior to its 15-8 vote in favor of keeping,” McHenry County Board Chairman Mike Buehler said in Wednesday’s news release. “By contrast, the Illinois Way Forward Act was filed in late February and rammed through on the General Assembly on the last day of session. This law is flawed, unconstitutional and a blatant case of state overreach, and I am hopeful that it will be overturned in court.”

The new law means that, barring a legal challenge or exception, ICE must transfer current detainees in Illinois to other states or release them.

“It is difficult to see how moving detainees away from their families and legal teams to overcrowded facilities in less sympathetic jurisdictions will benefit anyone,” Kenneally said in a news release that his office issued Wednesday.

Supporters of the bill, however, have advocated for the release of detainees when appropriate, using detention alternatives similar to those used in local criminal courts throughout the state.

The continued profitability of McHenry County’s contract also has been contested.

County Board members in October reviewed financial documents that suggested the county wasn’t making nearly as much money from housing immigration detainees as was previously thought, since the federal detainee population has dropped considerably.

“The county’s already setting their budgeting for next year assuming that there’s no ICE income – and we’re not going broke,” McHenry County Board member Carlos Acosta said.

As of Wednesday, 345 people were being housed at the McHenry County Jail in Woodstock. Of those, 209 people were local detainees and 136 were ICE detainees, according to the McHenry County Sheriff’s Office.

The county so far has planned its budget without an estimated $3 million to $7 million in ICE revenue, Buehler has said.

Reached by email Wednesday afternoon, the McHenry County Sheriff’s Office declined to comment on the basis that the lawsuit was considered “pending litigation.”