Jenner & Block Law Firm Files 93-Page Brief in Support of Release of Niceforo Macedo-Hernandez from McHenry County Jail

Niceforo Macedo-Hernandez from 2017.

The prominent Chicago law firm of Jenner & Block has taken over the representation of Niceforo Macedo-Hernandez, believed by the McHenry County Sheriff’s Department to be an illegal alien.

McHenry County Sheriff Bill Prim refused to release Macedo-Hernandez, a twenty-some year Crystal Lake resident jailed since August 8th for domestic battery, after his daughter appeared with bail money a week ago. (The daughter also attempted to post bail on August 10th.)

“…on August 9, 2017, the same day of Mr. Macedo-Hernandez’s arrest in case No. 17 CM 0780, the U.S. Bureau of Immigration and Customs Enforcement issued and transmitted to Defendants a documents known as an immigration ‘detainer,’” the suit states, noting further that a detainer  “is a request, and not a command,” not signed by a judge and good for only 48 hours the person would otherwise be released.

Under the TRUST Act, signed by Governor Bruce Rauner on August 28th and purporting to make Illinois what outside observers characterize as a “Sanctuary State,” the twenty-year resident should , and not a command.have been released, according to his attorneys.

Niceforo Macedo-Hernandez, from 2016

Jenner & Block argue the following are in danger:

  1. any person the Sheriff believes to be an undocumented immigrant because the Sheriff’s willful flouting of Illinois law places in jeopardy anyone whom the Illinois TRUST Act sought to protect from official state detention based only on his or her immigration status
  2. any person who is arrested anywhere in McHenry County, charged with a crime and turned over to the Sheriff’s custody—as occurred with Mr. Macedo-Hernandez
  3. any undocumented person who is currently charged with a crime, has posted bond and was released on conditions of bond administered by the Sheriff, and who now is under threat of unlawful detention by the Sheriff as a result of his willful disobedience of the Illinois TRUST Act.

The Sheriff is accused of “the Sheriff’s blatant flouting of Illinois law.”

Front page coverage on Saturday’s Chicago Tribune.

The law, according to Jenner & Block

“provides that no law enforcement officer or agency may detain any person on the sole ground of such person’s immigration status, a federal immigration detainer request, or a non-judicial federal immigration warrant.”

Prim’s delay in releasing the defendant allwed “federal immigration officials to set in motion a chain of events that would allow Defendants to claim that they cannot release Mr. Macedo-Hernandez because U.S. Immigration and Customs Enforcement (“ICE”) now has custody of him.”

Friday Jenner & Block asked for “a writ of habeas corpus compelling his immediate release.”

Jenner & Block seeks to make this a class action suit covering

“Mr. Macedo-Hernandez or any similarly situated person solely on the basis of immigration status, an immigration detainer request, or a non-judicial immigration warrant”

Besides Macedo-Hernandez, the Chicago attorneys say they are representing

  1. Plaintiff John Doe #1 is a young man in his late teens and a resident of McHenry County. He has resided in the United States since he was an infant. He is an applicant in the Deferred Action for Childhood Arrivals program. His immigration status, coupled with the Defendants’ refusal to comply with the Illinois TRUST Act, places him at risk of unlawful detention in the event he has an encounter with McHenry County law enforcement, including the Sheriff’s Office, as residents of McHenry County commonly do every day for a variety of reasons, some not related at all to whether such persons are accused of violating any laws.
  2. Plaintiff John Doe #2 is an adult in his mid-40s and a resident of McHenry County. Earlier in 2017, he was charged with a misdemeanor criminal traffic offense. He posted $120 bail and was released from custody. Because his misdemeanor criminal case is not resolved, from time to time he must appear at the McHenry County courthouse. Like John Doe #1, he encounters the frequent possibility of having an encounter with McHenry County law enforcement, including the Sheriff’s Office, and his immigration status, coupled with the Defendants’ refusal to comply with the Illinois TRUST Act, places him at risk of unlawful detention.

As Macedo-Hernandez’ attorney tried to get him before a McHenry County Judge, Immigration and Custom Enforcement had interviewed the jailed man and ordered him to a Chicago facility.

An injunction is sought to force the Sheriff’s Department to

  • Comply with the Illinois TRUST Act on an ongoing basis by ceasing from detaining or continuing to detain Mr. Macedo or any similarly situated person solely on the basis of immigration status, an immigration detainer request, or a non-judicial immigration warrant.
  • Further complying with the Illinois TRUST Act by ceasing Defendants’ policy and practice of discouraging pre-trial detainees and their associates and family members from posting bond to obtain release in pending criminal cases by advising them that posting bond would be “a waste of money” because a detainee subject to an immigration detainer request or non-judicial cannot be released, as such continued detention on that basis is now unlawful under the Illinois TRUST Act.
  • Accept bond payment in all cases in which a detainee has been granted bond

The brief points to “likely thousands of undocumented residents in McHenry County, and certainly many more in Illinois, who have been subjected to continued detention” who are put “at risk of an unlawful detainer…going forward.”

It notes the number of “ICE prisoners” at 192, according to a April 19, 2016, press release and as many as “250 at this time.”

The number similarly situated is unknown, Jennewr & Block says.


Jenner & Block Law Firm Files 93-Page Brief in Support of Release of Niceforo Macedo-Hernandez from McHenry County Jail — 29 Comments

  1. Stupid suit.

    Once they go to court there is a federal judge’s order stating next court date and authorizing their detention.

    The issue is those who are held on detainer after posting bond and haven’t been turned over to ICE yet.

  2. God bless Sheriff Prim and all he is doing to protect McHenry County.


    Welcome to the sanctuary state of Illinois !

    And don’t forget to register to vote as a DEMOCRAT.

  4. Stupid suit? Very stupid people that don’t understand words or their meanings. Both are criminals. People tend to forget all that when they try to argue “their” stupid case. It is pretty clear we have become a nation of complete nitwits.

  5. May God bless all immigrants and all nations… tic, tock, tic, tock…

  6. God send the fallen angel LLavona back to hell!

    Is that bankrupt Puerto Rico?

  7. To answer your pointed question bred winner, NONE!

    They are both lethal.

    When the Mexican drug cartels had their little cease fire to cooperate, with the narco-state ‘government’ in complicity, and paid for (and supervised) all the tens of thousands of unaccompanied minors to flood and collapse the reception centers on the border, the American regime stood petrified and impotent!

  8. You do know the connection between this Law firm and former Sheriff Nygren right ?

    October 06, 2006 Sheriff Nygren and Federal Judge Manuel Barbosa attend a luncheon, with several others from Zacatecas Mexico in downtown Chicago, IL at Jenner & Block.

    so much more I know

  9. You know, I find so many comments praising Prim for his flagrant disregard of this lawful, bi-partisan bill.

    US Const. Art. X, a.k.a. Federalism, discusses the Federal-State power relationship.

    Here, the Federal Government is attempting to commandere law enforcement at a local level for Federal purposes.

    This is the same government overreach that Republicans bitched about in the Obamacare medicaid expansion and the federal background checks for firearms (NFIB v. Sibelius & Prinz v. United States), both found unconstitutional.

    However, Federalism goes both ways: it can be a tool of the conservative as well as the progressive.

    Here, the Governor of Illinois, alongside a bipartisan Illinois House and Senate, has made a lawful bill separating the Local from Federal functions.

    Notice that every county North of I-80 either complies with this bill already, or does so in light of it.

    This is not about immigration… this is an unconstitutional political farce by Prim.

    The very tenets of our constitution state that due process must be followed; that the “The 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.”

    Prim may object to this lawful policy, but by enjoining this county in a lawsuit with one of the most powerful firms in the country, he is

    1. going to lose badly and

    2. going to lose your, the taxpayer, money.

    This county is going to lose large… are you, and I, will all pay big… Wait and see…

  10. Liberty? Not a Constitutional scholar? You do know that the Constitution says nothing about what you are harping as unconstitutional, right? The fourteenth amendment only gives birthright status. It doesn’t give citizenship to illegals. Your convoluted claptrap about bi-partisan means nothing as far as Our Constitution. They have no rights because they committed a crime just by sneaking in here. (It is what illegal means, you know.) Throw them out! (The only tool here, seems to be you.)

  11. There are legitimate Constitutional issues in this case, and there is no way that the DOJ will allow some podunk Illinois court to have the last word if it upholds the so-called TRUST Act.

    The sanctuary city/state issue will be settled in the federal courts.

  12. Cal, I retrieved the brief from the system, but thank you for the response.

    Cindy: “Not a Constitutional Scholar?”

    I assume you mean me, not you.

    However, I do have a J.D. and an LLM in Constitutional Law and Civil Liberties, but thank you for the broad assumption that I know nothing.

    So, Article I, Section 8, Clause 4 reads, “… To establish an uniform Rule of Naturalization, …”. The 14th Amendment, Section 1 addresses the protection of “All persons born or naturalized in the United States,…” which extended citizenship through the States to the former slaves.

    The former applies to Congress setting forth law of naturlization. The latter did make former slaves citizens of the United States.

    Here, we are not talking about citizenship. As I’m sure you are aware, illegal immigrants on United States soil enjoy [most] of the constitutional rights of citizens.

    The U.S. Supreme Court ruled in Zadvydas vs. Davis (2001) that “once an alien enters the country, the legal circumstance changes, for the due process clause applies to all persons within the United States.”

    In a Texas case, Plyler vs. Doe, the U.S. Supreme Court ruled in 1982 that non-citizen children must get a free K-12 education.

    So, aside from voting and a few other rights, illegal aliens enjoy those same protections as citizens.

    The issue here is 5th and 14th Due Process Rights as well as 8th Amendment Rights against Cruel and Unusual Punishment (I can cite the Illinois Constitution correllary if you like as well).

    Here, the State Congress has acted, and signed a bill stating that no person may be held after posting bond due to undetermined immigration status, unless a Federal warrant has been issued.

    In this case, Prim’s office first refused to allow the posting of bond, a requirement under the State and Federal Constitutions.

    Once that office was ordered by the McHenry County Judiciary to acceept said bond, the poster was informed that DESPITE LACK OF A FEDERAL WARRANT, they would continue to hold these persons of unknown citizenship pending reciept of an inquiry from ICE.

    Those actions are utterly contrary to the plain language of the TRUST Act, which is so simply written, that a third grader, or common citizen would understand it.

    Billy Bob, writing above, is quite correct in stating that there are constitutional issues here.

    I have read the briefs of both parties and agree that there is disagreement, and no more.

    However, this will be ultimately settled in a Federal Court, and ultimately, in the favor of the aggrieved parties (the wrongfully detained).

    This political farce will end up costing us, the taxpayers, tens of thousands of dollars.

    After Jenner wins the initial suit, they will file a Federal Civil Rights suit under 42 USC § 1983, and win that, and upon that win a petition for fees under 42 USC § 1988.

    So, when this ridiculous legal bill is split amongst the McHenry citizenry (or more likely, Prim and the entire Sheriff’s Dept.) don’t bitch or whine about your uptick in taxes…

    Prim will get his day in court and be dealt a monumental loss.

    Or did you want to talk about the law….

  13. Liberty? You are only correct in one thing and not for what you think.

    The disagreement WILL cost.

    BUT – it will cost in terms of lives and freedom.

  14. AFAIK, no federal court has ruled that ICE detainers are unconstitutional, and many if not most jurisdictions in the US comply with them.

    What federally guaranteed rights of Mr Macedo-Hernandez have been violated, or is he going to file a federal civil rights action over the apparent violation of a newly minted and untested Illinois statute?

    I am rather curious about this case, because it wouldn’t surprise me a bit to find that Mr Kenneally is backstopped by DOJ lawyer(s).

  15. who does Libertylost sound like, I think we know who he is, the sore loser

  16. I forgot that the 7th circus did uphold a crazy ruling against ICE detainers, but the ruling must be under a stay or else ICE must have tweaked their procedures some, because I’m pretty sure that their Chicago office is still issuing them.

    Personally, I think that ICE will just figure out a way to speed up the warrant process and make the whole phony issue go away.

    The motive for this non-cooperation from local governments has very little to do with the rule of law, and very much to do with stopping the federal government from exercising its lawful authority over immigration.

  17. Hey cool!

    Everyone knows who I am [not at all]!

    However, I am a pretty bright guy, an attorney, and a resident of this county. I do not practice in this county.

    Since you seem so great at riddles, I’ll ask a few:

    1. Johnny ‘s mother had three children. The first child was named April The second child was named May. What was the third child ‘s name?

    2. If a farmer has 5 haystacks in one field and 4 haystacks in the other field, how many haystacks would he have if he combined them all in another field?

    3. Who makes it, has no need of it.
    Who buys it, has no use for it.
    Who uses it can neither see nor feel it.
    What is it?

    More for you interesting folks later!

    P.S. Cindy: Go soak your head… You hate parades? Get a life…

  18. A judge set bail, the family paid the bail.

    He should be released.

    It is not up to the Sheriff to decide this, the judge made the decision.

    The Trust Act is law.

    The Sheriff above all should enforce the law.

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