I am writing out of concern for the facts and opinions expressed by the Northwest Herald Editorial Board in its Sept. 15 editorial, “Trust Act goes too far.”
The editorial addresses a current dispute as to the McHenry County Sheriff’s detention of our client, Niceforo Macedo-Hernandez, now that the Illinois Trust Act is the law in Illinois. The editorial takes a stance that is based on several significant factual errors, and draws a conclusion impaired by such errors. The Illinois Trust Act codifies what is already the law: “State law does not currently grant State or local law enforcement the authority to enforce federal civil immigration laws.” (Section 5, “Legislative Purpose.”) The Act then merely sets forth what this means for local law enforcement. Because local law enforcement (like the McHenry County Sheriff) have no authority to enforce federal laws, they are prohibited from doing so. Section 15 of the Act is titled just that: “Prohibition on enforcing federal civil immigration laws,” and lists what specific things the Sheriff can and cannot do.
There is nothing complicated about these two basic rules to the Act:
- First, because the Sheriff has no authority to enforce federal laws, the Sheriff cannot detain or continue to detain a person because of the detainee’s citizenship or immigration status without a proper federal warrant.
- Second, because the Sheriff has no authority to enforce federal laws, no federal official or agency can confer upon the Sheriff this authority through informal “requests” or contracts, or agency warrants (identified as a “non-judicial immigration warrant,” or a “immigration detainer.”)
Thus, the Trust Act is not a sanctuary law and was not enacted to provide sanctuary to undocumented immigrants. It does not provide any person any new or different immigration rights. It does not impose on the Sheriff any duty that did not already exist, and does not stop the Sheriff from performing his authorized duties. The Act merely tells the Sheriff that immigration enforcement is not his job. Even in this, the Act does not promote the “protection of undocumented immigrants.” There are federal agencies and agents that exist to enforce our immigration laws. Let them do their jobs, and let the Sheriff do his.
As it concerns our client, Mr. Macedo-Hernandez, the Sheriff violated the Trust Act by exceeding the scope of his authority, and depriving Macedo-Hernandez of certain fundamental rights.
Macedo-Hernandez was charged with a misdemeanor crime, arrested, and put in the County Jail. A judge set bond, which gave Macedo-Hernandez the right to post bail and be released. Macedo-Hernandez tried to post bail, repeatedly, but each time the Sheriff’s employees said they could not accept bail payment for him, because there was an immigration detainer. This policy has no basis in either federal or local law. An immigration detainer does not trump a judge’s bond order.
The Sheriff’s correctional officers then accepted Macedo-Hernandez’ bond payment, but refused to release him. Again, the Sheriff claimed the authority to detain Macedo-Hernandez based on an immigration detainer – which the Act very clearly outlines he cannot do. The Sheriff had no authority to continue to detain Macedo-Hernandez.
The Sheriff seems to believe that he can do all these things because of a contract between McHenry County and the United States government. For some time now, McHenry County has had a very lucrative contract with the federal government to house federal detainees. McHenry County receives about $8.2 million a year from the federal government, to provide housing and transportation to inmates in federal custody. The contract typically applies to inmates that are in the custody of the department of Immigration Customs Enforcement (“ICE”), or who are transported by McHenry County correctional employees for ICE. Even though McHenry County is a local government entity, and ICE is a federal government entity, the contract is a private agreement between the two, like any other contract. The contract does not and cannot change the law, for either entity.
Northwest Herald’s editorial concludes, “If the act prohibits McHenry County and any others from housing federal immigration detainees in their jails, then it should be changed.” Respectfully, this is simply the wrong conclusion, for several reasons. First, it is wrong on the facts, as the Act does not prohibit the Sheriff from housing detainees who are lawfully detained by a judge’s warrant. The Act prohibits only unlawful detention of federal immigration detainees.
Second, the Northwest Herald’s conclusion is wrong because it judges the law in terms of revenue. There are lots of ways to make money, not all of which are legal, and that does not mean we should change the law. Here, the fact that McHenry County may profit from violating the law does not legitimize the violation, or cast doubt on the law. The $8.2 million contract is not the yardstick that measures the law. It is the other way around, and so far, that $8.2 million contract is not faring well.
Finally, your editorial statement that, “The Trust Act would have state law enforcement and corrections agencies totally ignore any immigration concerns,” misses the point.
Immigration is not their job. Immigration has never been the concern of state and local law enforcement. State law enforcement has no business enforcing federal laws relative to federal taxes, interstate trade, maritime disputes, etc. – and thus has no concern in such areas.
The real concern is the abuse of power by those individuals we trust with authority. Our institutions of law and justice only work when they are guarded by those who revere them, and do not exploit them for profit or a personal or political agenda. Those who feel strongly about illegal immigration feel that way because they want our laws followed, and we are right to hold the Sheriff to the same standard. There is no one above the law. By the same token, there is no person worth so little that he or she is beneath the law. All people within the United States, regardless of immigration status, have basic civil rights under our Constitution: No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws. The Sheriff’s unlawful detention of any person, for any time, for any price, is unacceptable and should stop now.
Jeannie M. Ridings of KRV Legal Inc. represents Niceforo Macedo-Hernandez.