Karina Solano is the deportation defense coordinator at Organized Communities Against Deportations. Antonio Gutierrez is an undocumented queer non-binary anti-displacement organizer in Chicago, IL. Gutierrez is the Strategic Coordinator and Co-founder of Organized Communities Against Deportations (OCAD). Julia Davis is a graduate of Loyola University Chicago School of Law in Chicago, IL. Julia volunteered in the spring of 2022 with Organized Communities Against Deportations and Beyond Legal Aid.
As staff and volunteers at Organized Communities Against Deportations (OCAD), we wrote the following piece on ending immigration detention in Illinois with the hope that it will support and encourage readers interested in using community organizing as a tool to end the criminalization of immigrants and people of color. This piece recounts the community organizing strategies that led to the passage of the Illinois Way Forward Act and the end of immigration detention in Illinois. The passage of this law was the direct result of the decades-long work of organized communities fighting for better state protections for undocumented immigrants. OCAD hopes that the following story can support the ongoing nationwide movement to dismantle state detention center systems—systems that allow local governments and private corporations to profit from human suffering and family separation, across the United States, from New Jersey to California.
I. INTRODUCTION
Setting the Stage
In 2021, following years of community organizing and advocacy, the Illinois General Assembly passed the Illinois Way Forward Act, prohibiting state and local governments from engaging in federal immigration enforcement and, critically, ending immigration detention in the state. This law, which added to a growing body of hard-fought protections for Illinois’s immigrant community, ended the ability of Illinois counties to profit from lucrative federal immigration detention contracts. It marked an extraordinary achievement in the movement to end the criminalization of immigrants and create an environment for Illinois’s immigrant communities to work, organize, and thrive with happiness and without fear.
Impact of Detention
Prior to the passage of the Illinois Way Forward Act, county jails across Illinois were able to contract with federal immigration authorities, and received payment from ICE in exchange for keeping immigrants detained while they awaited their hearings in immigration court. These agreements, which made county jails between $4 and $8 million annually over nearly two decades, extended the reach of federal immigration enforcement into local government and terrorized the resident immigrant individuals, families, and communities. Since its founding in 2012, OCAD has served as a grassroots effort to resist the deportation and criminalization of immigrants and people of color in Chicago and surrounding areas. Throughout the years, individuals in ICE custody have shared their testimony with us through a pen pal program. We’ve exchanged letters with individuals in detention to inform them of the resources we offer, assess their individual cases, and set up phone calls for more rapid communication. This is how we met many of our own members and fought alongside them to end their detention, and it is this that allows us to keep challenging deportation from the outside. Through this pen pal program, and the phone call conversations, individuals in detention relayed to us the conditions they experienced and the trauma inflicted upon them by ICE’s inhumane treatment.
The individuals that we got to know spoke out about the profound “mental, physical, and psychological” toll that detention took on their lives. As a general matter, people in detention did not have the proper supplies to maintain a clean environment or to protect themselves from getting sick. Those who got sick found that their requests for medical attention were ignored. Furthermore, the onset of the COVID-19 pandemic in 2020 rendered those in detention vulnerable to COVID-19 and exacerbated the physical and mental health crises created by detention conditions. Between February 2020 and May 2021, over one hundred people in immigration detention at Pulaski County Jail tested positive for COVID-19. A Department of Homeland Security inspection of the jail during that period found five violations of detention standards. When exposed to COVID-19, individuals detained at McHenry County Jail were held in isolation for forty-seven hours and let out of their cells for just one hour at a time. This quarantine system and abuse by officers led some people to attempt suicide and many others to struggle with severe mental health problems. A letter signed by about thirty people detained in McHenry County Jail stated that all of their lives “were put in jeopardy by the jail and their staff, [because] they brought COVID-19 into the jail.”
OCAD member Angela, who was released as part of the campaign, explained how she didn’t see the sun for eight months while being detained. In a recording used for a press conference in February 2022, Angela stated, “I tried committing suicide when I was at McHenry County Jail. This was [my] first time being incarcerated. While there, I experienced intestinal issues and couldn’t eat for weeks.” Angela also shared her experience of being transferred to a detention center in another state: “The entire time my feet were chained. I was handcuffed with chains on my waist. I felt humiliated. . . . A human being should not be treated that way under any circumstances.”
Angela’s story is not uncommon. Another individual, Basaru, wrote to OCAD that, “[S]ince November 2020, I have been po[o]ping straight blood . . . also vomiting blood as well[.]” Basaru communicated his medical issues to the guards and medical staff multiple times but was still left untreated for a year. And even after the medical examiner diagnosed him with internal ulcers and hemorrhoids, he was told that he needed to get ICE approval for any type of treatment. This approval never came. Even Basaru’s pleas for help—“I don’t want to die or lose my life, this pain is so much.”—were not enough.
It wasn’t our first time connecting to individuals facing detention and deportation and hearing their testimonies. Still, this time, as we prepared for the closure of immigration detention centers in Illinois, the fate of the remaining people in immigration detention was unknown. Our experience organizing for the passage of the TRUST Act and Illinois Way Forward Act laid the groundwork to get us to—and through—this critical point.
II. LEGAL CONTEXT
The passage of the Illinois Way Forward Act in 2021 was the result of years of community advocacy and represents one step in the ongoing fight to build a future without displacement, borders, incarceration, or deportation. However, the Way Forward Act was not the first step in the expansion of protections for Illinois’s immigrant community. The Way Forward Act was preceded by a series of legal advancements extending back years, each expanding the network of legal protections available to immigrants in Illinois, including the Illinois VOICES Act, Chicago’s Welcoming City Ordinance, and Cook County’s Detainer Ordinance.
Illinois TRUST Act
One of the major legal advancements that paved the way for the Illinois Way Forward Act was the Illinois TRUST Act, itself the culmination of years of organizing. Passed in 2017 following a coordinated campaign involving phone banking, talks with legislators, and sustained advocacy, the Illinois Trust Act took important steps to limit state and local law enforcement participation in federal immigration enforcement in Illinois. Among the key protective features of the Act was a provision prohibiting local law enforcement from holding an individual for the sole purpose of filling an ICE hold request, effectively preventing the release of individuals from local law enforcement custody until ICE agents could carry out their arrest. This provision has helped immigrant communities feel safer and engage with local police without fear of family separation.
Illinois Way Forward Act
Four years later in 2021, ongoing community advocacy led to the amendment of the Illinois TRUST Act with the passage of the Illinois Way Forward Act. The Illinois Way Forward Act strengthened restrictions against local participation in ICE operations by limiting ICE access to police facilities and equipment, and people in police custody. The Act also restricted the sharing of information between local law enforcement and ICE. Finally, and perhaps most impactfully, the Act terminated the ability of county jails to detain people on behalf of ICE, effective January 1, 2022. This provision ended immigration detention in the state of Illinois.
Legal Tools
OCAD has used many tools in the fight for liberation from criminalization and deportation. As community organizers and advocates, our understanding of the law helps us to fight for ourselves and each other, to pass laws that expand our rights, and to defend those laws when they come under attack. The passage and implementation of the Illinois Way Forward Act was no different.
Through the passage and implementation of the Illinois Way Forward Act, we have come to understand that when the federal government targets our communities with criminalization, the spirit of the Tenth Amendment can act as an important guardrail against federal power. The Tenth Amendment holds that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This amendment recognizes the existence of rights that belong, not to the federal government, but to states and people. In the two centuries since it was adopted, judges have written about and interpreted the Tenth Amendment many times over. The legal rule that has emerged is known today as the anti-commandeering doctrine. At its core, the anti-commandeering doctrine says that the federal government may not force states to engage in federal law enforcement. Like pirates taking over a ship on the ocean, the federal government “commandeers” state power when it seizes state authority for its own purposes. The anti-commandeering doctrine means that the federal government may not engage in this behavior. Congress may not issue direct orders to state legislatures or require a state to regulate its people against its will. In the case of immigration enforcement, this means that the federal government cannot require states to participate in federal immigration enforcement—states across the country are free to end their collaboration with ICE.
While the Tenth Amendment and the anti-commandeering doctrine show us the limits of federal power, the Supremacy Clause of the U.S. Constitution and the preemption doctrine that flows from it reinforce it. The Supremacy Clause of the U.S. Constitution says that “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof… shall be the supreme Law of the Land.” The legal rule that has emerged from the Supremacy Clause is the preemption doctrine. The preemption doctrine allows Congress to insist, in certain circumstances, that state law give way to federal law. Preemption can occur when state and federal governments each enact a law that restricts or confers rights on private actors and these laws conflict. Where this happens, federal law stands and state law is “preempted.” Courts have recognized three scenarios in which preemption may occur: (1) express preemption: where a federal directive requires states not to have or enforce a law; (2) field preemption: where federal law occupies a field of regulation so large that it leaves no room for state regulation; or (3) conflict preemption: where there is a direct conflict between state and federal law.
The Tenth Amendment’s tension with the Supremacy Clause, along with that between the anti-commandeering and preemption doctrine, embody a core constitutional principle, and ongoing tension, called federalism. Federalism recognizes the overlapping and sometimes conflicting authority that the federal and state governments have. It gives judges—and us—“the power to make distinctions between legitimate ‘exercises of federal power’ and those that overreach their boundaries.” Like all legal tools, the Tenth Amendment and the Supremacy Clause, and pointedly, the spirit that they embody, can be “a double-edged sword.” Where states attack human rights, like in the case of abortion rights, we see how Congress’s power to enact overriding federal protections, or, more accurately, its failure to do so, can be devastating. On the other hand, where the federal government targets immigrant communities and communities of color for criminalization, the recognition of independent state authority is critical.
One area where the anti-commandeering and preemption doctrines are clearly applicable is in the debate about state legalization of marijuana. Like federal immigration enforcement, federal marijuana enforcement has relied in large part on state cooperation. Similar to immigration enforcement, where ICE relies on state and local governments to house people in detention, in marijuana enforcement, “the enforcement of federal law depends on state agents.” Like immigration policy, “racially discriminatory impacts have been ‘an element of virtually every legislative effort to prohibit drugs . . .’” In fact, the racial biases underlying drug and immigration enforcement are deeply intertwined—there is evidence that the first congressional attempt to prohibit marijuana was born from anti-Black and anti-Mexican propaganda spread by a former head of the Federal Bureau of Narcotics. In the case of marijuana decriminalization, “states and their courts have [long] held that the power to decriminalize marijuana is well within states’ Tenth Amendment rights and that the states are never preempted from decriminalizing.” Like in the case of marijuana decriminalization, states are, and will likely continue to be, at the forefront of the struggle against the criminalization of immigrant communities.
It is important to remember, however, that the anti-commandeering and preemption doctrines, like all legal tools, can be wielded to defend and advance the rights of marginalized communities just as much as they can be used to justify policies of discrimination, violence, and control. Ultimately, it is those who use these legal tools, including attorneys, organizers, and community members, that have the power to determine their effect—to uphold or dismantle systems of oppression.
III. IMPLEMENTATION
While the passage of the Illinois Way Forward Act was a win for communities, its implementation was a separate obstacle. After the Illinois Way Forward Act was enacted, ICE could no longer use Illinois jails to keep immigrants in immigration detention. However, as the implementation date neared, 76 people were still held in immigration detention in three county jails across Illinois. The Act provided no standard procedure for how these detention facilities would close or what would happen to the individuals being detained. When we got word that the first detention center in Illinois was starting to close, it became clear that ICE was refusing to use its power of discretion to release those who were detained, instead opting to transfer individuals to other detention centers. And the few releases that were happening were not being conducted safely.
Some detention centers closed even sooner than expected. In September 2021, Pulaski Detention Center ended its contract with ICE. This meant advocacy for safe releases also had to start sooner than expected. In response, a coalition made up of organizers, attorneys, and directly impacted community members led a campaign demanding the release—not transfer—of every person held in immigration detention. That coalition is the Organized Communities Against Deportation (Coalition).
Free Them All: Releases, Not Transfers Campaign
During the Pulaski Detention Center closure, we joined 55 other organizations in signing a letter addressed to Secretary of Department of Homeland Security Alejandro Mayorkas and Acting Director Tae Johnson in which we demanded the urgent release of everyone in ICE custody. Only three individuals were released—one at a time and without warning. The rest of the immigrants detained in Pulaski Detention Center started getting transferred to McHenry and Kankakee Detention Centers. At the same time, immigrants in McHenry and Kankakee Detention Centers were beginning to get transferred to other states in the Chicago Field Office’s Area of Responsibility. Based on these patterns and the information we were getting from people in McHenry and Kankakee Detention Centers, we knew that over the next few months, we needed to have as many eyes on this situation as possible.
Unsafe Conditions of Releases and Transfers
As we advocated for the release, not transfer, of individuals being detained, it became critical that we focus on the safety of the procedures used. In the Coalition, we received reports from other organizations that people who were released were left stranded outside without weather-appropriate clothing in the middle of winter. People who were still detained were in solitary confinement. It was impossible to know when we would get a phone call or letter from someone inside. We connected with families of individuals in detention and learned that they suddenly stopped receiving calls, and only days later found out that their loved ones had been transferred. Individuals who were transferred hadn’t immediately been able to access their prescribed medicine or have funds deposited to them at the detention center they were transferred to. As we gathered information from individuals in detention and their families, we shared updates through social media graphics and videos, and we continued collecting signatures from the community and letters of support from politicians.
By January 2022, less than forty immigrants remained in ICE detention in Illinois at two remaining detention sites. Attorneys continued to submit release requests for those detained at McHenry and Kankakee Detention Centers, but despite ICE’s assurances that it would review cases on an individual basis, there were no additional individual releases before the final closure of the two facilities. Advocates were told by local ICE leadership that the date of the final closure for the two remaining immigrant detention centers would be February 13th, but on Wednesday, February 2nd, an officer told someone in ICE custody that everyone would be transferred at the end of the week. That individual called us to share this information. We alerted the Coalition, but by the following day, it was no longer possible to communicate with anyone inside, even where there were previously scheduled calls. At about 2:00 AM on Friday, February 4th, the last remaining people in immigration detention at McHenry and Kankakee Detention Centers were put in chains and transferred to other states.
Long Distance Advocacy
The increased distance between people in ICE custody and their families and attorneys, and the increased likelihood of contracting COVID-19 during these mass transfers caused intense anxiety for both people who were transferred and their loved ones. The Coalition worked to locate the displaced individuals. Individuals who were transferred called to reconnect with us when they were able to, and update us on their location, their health, and that of those relocated with them. But because ICE’s Detainee Locator Systems did not reflect the changes immediately and some facilities used different systems for commissary, the process to deposit funds to an individual’s account to make calls took a few days. These detainees told the Coalition that no one was being tested for COVID-19, that everyone had been put into a big dorm together, and that the number of sick people was only growing. Individuals also shared that their mental health was deteriorating. Individuals were taken to detention facilities in Indiana, Kentucky, Oklahoma, and Kansas, and a few of them were shortly deported.
Lessons
Throughout the campaign, things happened quickly and without notice from ICE. Despite constant communication with people inside, we learned we had to be ready to act sooner than anticipated. People inside connected organizers to other detained individuals in need of advocacy, legal representation, and commissary funds for phone calls and basic necessities. We strengthened the internal and external coordinated support to respond to those needs by framing the narrative to emphasize our intention to push for the release of everyone—regardless of criminal charges. Our advocacy also adapted to the global COVID-19 pandemic: Our actions, among others, included establishing online petitions, collecting testimonies through phone or virtual calls, amplifying updates on social media, and organizing a socially distanced caravan that circled McHenry County Jail. We also tried to identify organizers in other states that were in the “area of responsibility” of our local ICE field offices and connect with them for information on resources and ways we could support local actions. These types of proactive steps are ones anyone interested in immigration justice can take.
Legal Challenge
Beyond the aforementioned difficulty in simply coordinating detention closures and ensuring that immigrants were safely released, our efforts also met legal obstacles. Amidst individual ICE reviews, releases, and transfers, McHenry and Kankakee Counties filed a lawsuit seeking to prevent enforcement of the Illinois Way Forward Act. The lawsuit, which acknowledged that the counties made millions annually from these federal immigration contracts, alleged that the provision of state law ending county contracts with ICE was preempted by federal immigration law.
Although we were confident that the counties’ arguments were not strong enough to win on the merits, the legal challenge did delay the closing date of McHenry and Kankakee detention centers. On January 13, 2022, McHenry and Kankakee Counties gave their thirty-day notice of termination of the federal contract. On August 9, 2022, the case finally concluded, with the Seventh Circuit affirming the judgment of the district court granting the State’s motion to dismiss this action. In dismissing the lawsuit, the court reiterated that “a valid preemption provision is one that regulates private actors” and not state actors, as here both federal immigration law and state law do. Ultimately, however, the court dismissed the lawsuit even after setting aside this basic threshold requirement, based on its finding that the Way Forward Act was not conflict or field preempted. The district court’s ruling affirmed what community members and activists had declared all along—that Illinois has the power to limit its cooperation with federal immigration enforcement. This ruling recognized the power of the state to enact legislation limiting local cooperation with ICE. In dismissing the lawsuit, the Seventh Circuit held that the Way Forward Act “is a permissible exercise of the State’s broad authority . . .”
IV. LOOKING AHEAD: AN END TO DETENTION EVERYWHERE
The fight to close detention centers in Illinois was the result of decades of coordinated community organizing strategies, including the fight to end ICE holds in Cook County, the campaign to pass the Illinois TRUST Act, and expansion of Chicago’s Sanctuary City policies. This culminated with the passage of the Illinois Way Forward Act, and its ability to withstand legal challenge. But equally as important was a recognition that it didn’t end there. Even as we took part in the larger campaign of “Release Not Transfers,” we organized public campaigns centering on specific individuals’ stories such as OCAD member Angela’s. As organizers, we maintained direct contact with people even while they were detained, made their stories public, and framed their narratives in a way that contextualized their fight beyond criminal charges. This sharing of information and resources by the diverse organizations—legal, grassroots, media, and interfaith—that were part of the Coalition was key in winning the release of some immigrants.
When we organize, we build power and can win. Ultimately, a total of forty-one people were released from detention directly because of our campaign’s efforts. In the end, a number of individuals were transferred and in some cases (ICE doesn’t report these numbers) deported after the closing. The coalition of advocates responsible for the coordination of support and resources was composed of more than seventy Illinois organizations and seven members of Congress that, together, helped secure the safe release of the thirty people remaining in detention.
The Illinois Way Forward Act’s implementation signaled the end of immigration detention in Illinois, but this goal would not have been realized without this network of players ensuring the mandate was carried out. OCAD stands firm in the belief that detention centers are a relic of concentration camps and must be abolished everywhere they exist. ICE is notorious for unsanitary conditions, inadequate medical care, and inedible food. The stories relayed to us by individuals throughout the implementation of the Illinois Way Forward Act only add to this well-established record.
Community Resilience
As this piece describes, transforming the systems that oppress us is possible. Even in the midst of a pandemic, we have seen and experienced our community’s resilience against threats. In March 2022, Detention Watch Network (DWN) held a National Day of Action, calling for “Communities Not Cages.” There, we witnessed how powerful our collective effort can be when we coordinate to pressure stakeholders. On this Day of Action, we requested our members to create works of art depicting what our communities would look like if all detention centers were abolished. Individual members displayed their hopeful spirits with drawings, paintings, and poems that demonstrated their commitment to a better future for our communities.
We believe abolishing detention centers is possible. We hope that our story can serve as proof to similar campaigns of liberation that change can happen and that perhaps, one state at a time, we can be a part of the closure of all immigration detention centers in the United States. OCAD believes in the infinite imagination of our communities and that the moment to act is now. Let us not wait any longer! We are what we need.
