McHenry County State’s Attorney, Patrick Kenneally was in court yesterday to argue an emergency motion by attorneys representing Niceforo Hernandez-Macedo to force McHenry County Sheriff William Prim to comply with Illinois’ so-called Trust Act, signed into law by Governor Rauner on August 28th.
The act prohibits law enforcement from holding persons for immigration status issues without a federal court order or warrant. McHenry County became the center of controversy last week when the McHenry County Sheriff’s office refused to release Hernandez-Macedo in direct contradiction of the new law after his bond was posted and paid by his daughter.
Jeannie Ridings, Beth Vonau, and George Kililis, attorneys for Hernandez-Macedo attempted to deliver an emergency request on Saturday after learning that the McHenry County Sheriff’s staff had moved their client to a separate holding cell for immigration detainees and ICE agents had met with their client on Friday while they were not present. Jeannie Ridings stated they feared their client would be transferred to ICE agents after what they claim was a violation of the new state law. They were turned away from the Sheriff’s office and instead filed an emergency motion to release Hernandez-Macedo Tuesday with the McHenry County Circuit Court.
In court Tuesday, Kenneally argued that the emergency order was not necessary claiming that there were no plans to transfer Hernandez-Macedo into ICE custody. However, when Circuit Court Judge Michael W. Fetterer postponed the hearing a couple of hours so that Hernandez-Macedo could be brought to the hearing, it was disclosed that contrary to Kenneally’s assurances, Hernandez-Macedo already had been transferred to ICE custody at 4:00 am that morning and had been transferred to an federal immigration processing location in Berwyn, IL. Judge Fetterer ordered Hernandez-Macedo be returned to McHenry County to participate in the hearing.
The hearing reconvened at 1:40 p.m. with Kenneally arguing that the emergency petition was not filed with the proper court as immigration matters are heard in civil court and that the contractual agreement between the jail and DHS immigration superseded the rights of Mr. Hernandez-Macedo.
Attorney Jeannie Ridings countered that no contract may infringe upon the rights of a person and that the matter was one of court jurisdiction, believing the authority rests with the judge to set bond and compel state agents to carry out the execution of bond orders. Ridings concluded by saying the role of law enforcement is not to interpret the law, as they allege the Sheriff had done, but to uphold the law.
Kenneally argued that the Trust Act was too new to properly apply as no prior precedent had been set and that he believed the law was unconstitutional and would be over-turned. Kenneally also argued that a compromise would be to suspend the bond for Hernandez-Macedo and hold him indefinitely until such a challenge could be brought and resolved through Federal court.
Judge Fetterer called a brief recess and returned a ruling striking down the emergency petition saying, “I have no jurisdiction to force the Sheriff to comply with the execution of a bond order,” and referred any complaints the defendant may have with the Sheriff to civil court. Hernandez-Macedo, who’s original charge has not been processed or tried, was then returned to ICE custody.
Attorneys for Hernandez-Macedo say they will file suit against Sheriff Prim, the county and the State’s Attorney’s office charging conspiracy and violation of their client’s rights and the Trust Act.