WOODSTOCK, Ill. (AP) — An Illinois judge has denied a request to free a man from U.S. Immigration and Customs Enforcement custody, despite his lawyers’ insistence that he should be released under a new law.
Niceforo Macedo-Hernandez, 46, was arrested on a domestic battery charge in August. His family posted his $500 bail, but McHenry County officials declined to release the inmate. They said they needed more time to interpret the new the Illinois Trust Act, which Gov. Bruce Rauner signed into law last week.
Macedo-Hernandez’s attorneys called the decision “outrageous” and “inhumane.” They said he should be released under the new law, which prevents authorities from assisting with immigration actions unless there’s a warrant.
McHenry County State’s Attorney Patrick Kenneally said the law is unconstitutional because it’s pre-empted by federal immigration law.
“It violates the Separation of Powers, the legislative branch cannot dictate to the executive branch, of which the sheriff is a member, what laws to enforce and it violates the prohibition on special legislation in that it only applies to a small number of people being held on civil detainers,” Kenneally said.
McHenry County Circuit Judge Michael Feetterer said Tuesday that it wasn’t his place to rule on the new state law. He said he’s only overseeing the battery case.
Feetterer said the defense can seek Macedo-Hernandez’s release in civil court.
“Federal immigration law regarding administrative detainers, immigration warrants and removal are civil, not criminal matters,” Kenneally said.
Macedo-Hernandez, who has lived in the U.S. for 20 years and has three children, isn’t legally authorized to live in the country.