HIGHLIGHTS:

  • The new Illinois TRUST Act limits state and local government officials from 1) complying with immigration detainer requests, or 2) stopping, arresting, searching or detaining an individual solely based on immigration status.
  • Illinois local governments should review their internal policies and practices in order to ensure compliance with the Act.
  • Local governments should also consider potential conflicts between the Act and federal policies concerning "sanctuary" jurisdictions.

On Aug. 28, 2017, Gov. Bruce Rauner signed into law Senate Bill 31, a statewide sanctuary jurisdiction bill titled the Illinois TRUST Act (Act).1 The Act, which takes immediate effect, will require Illinois local governments to update their internal policies and practices in order to ensure compliance with the Act. In so doing, local governments will also need to make risk-based determinations regarding potential conflicts between the Act and the Trump Administration's recent policy developments, statements, and lawsuits related to "sanctuary" jurisdictions. Notably, the Act does not preempt home rule and thus home rule governments retain the authority to adopt ordinances that may not be consistent with the Act.

The Act, among other things, limits state and local government officials from 1) complying with immigration detainer requests, and 2) stopping, arresting, searching or detaining an individual solely based on immigration status. However, the Act also includes a statement of legislative purpose that "This Act shall not be construed to prohibit or restrict any entity from sending to, or receiving from, the United States Department of Homeland Security or other federal, State, or local government entity information regarding the citizenship or immigration status of any individual under Sections 1373 and 1644 of Title 8 of the United States Code." The statement also provides that "nothing in this Act shall prevent a law enforcement officer from contacting another law enforcement agency for the purposes of clarifying or confirming the nature and status of possible offenses in a record provided by the National Crime Information Center, or detaining someone based on a notification in the Law Enforcement Agencies Data Administrative System unless it is clear that request is based on a non-judicial immigration warrant.

8 U.S.C. Section 1373 is one of the central authorities cited in the debate on whether sanctuary policies violate federal law. Specifically, Section 1373 is a federal immigration statute which states, in relevant part, that states and local governments may not prohibit, or in any way restrict, the maintenance or sending of information on immigration status to federal immigration officials. This language, and its interplay with the new Act, creates significant ambiguity on the nature and scope of responsibilities for Illinois local governments.

1. Limitations on Compliance with Immigration Detainer Requests

Section 15(a) of the Act states that "A law enforcement agency or law enforcement official shall not detain or continue to detain any individual solely on the basis of any immigration detainer or non-judicial immigration warrant or otherwise comply with an immigration detainer or non-judicial immigration warrant." In effect, Section 15(a) prevents law enforcement officials from complying with U.S. Immigration and Customs Enforcement (ICE) immigration detainer requests that are not accompanied by a court-issued warrant.

This provision is consistent with recent case law. Notably, in September 2016, the U.S. District Court for the Northern District of Illinois ordered ICE to stop its practice of issuing immigration detainers without probable cause.2 The Court held that immigration detainers are void if issued in the absence of an individualized determination by ICE that the subjects are likely to escape before a warrant can be obtained.3 Further, courts have increasingly held that holding an individual in detention past an otherwise-authorized release (e.g., bail) pursuant to such a detainer constitutes a new arrest and would be a violation of the Fourth Amendment.4

Importantly for local governments, courts have held, and the federal government has conceded, that ICE immigration detainer requests are voluntary.5 Arguably, ICE cannot compel compliance with detainer requests without running afoul of the Fourth Amendment or the Tenth Amendment. Further, although ICE may detain an alien without a warrant for a civil immigration violation, local government officials cannot because, as recognized in the Act, "State law does not currently grant State or local law enforcement the authority to enforce federal civil immigration laws, it is the intent of the General Assembly that nothing in this Act shall be construed to authorize any law enforcement agency or law enforcement official to enforce federal civil immigration law."6 Finally, Courts have also held that compliance with detainer requests issued in violation of the Fourth Amendment could expose local governments to potential civil damages.7 Accordingly, compliance with the Act will help protect Illinois local governments from potential liability for constitutional deprivations and damages.

2. Limitations on Immigration-Status Based Law Enforcement Activities

Section 15(b) of the Act states that "A law enforcement agency or law enforcement official shall not stop, arrest, search, detain, or continue to detain a person solely based on an individual's citizenship or immigration status." This provision limits the discretion of law enforcement officers when attempting to stop aliens without additional evidence of potential criminal activity.8

3. Scope of Section 15 Prohibitions

Section 15(c) states that "Section 15 does not apply if a law enforcement agency or law enforcement official is presented with a valid, enforceable federal warrant. Nothing in this Section 15 prohibits communication between federal agencies or officials and law enforcement agencies or officials."

4. Immunity

Section 15(d) states that "A law enforcement agency or law enforcement official acting in good faith in compliance with this Section who releases a person subject to an immigration detainer or non-judicial immigration warrant shall have immunity from any civil or criminal liability that might otherwise occur as a result of making the release, with the exception of willful or wanton misconduct."

5. Law Enforcement Training Requirement

Section 20 states that "By January 1, 2018, every law enforcement agency shall provide guidance to its law enforcement officials on compliance with Section 15 of this Act."

6. Home Rule Considerations

There is no express provision of the Act that refers to or limits the authority of a home rule unit of government with respect to immigration-related law enforcement activities. Home rule units can thus consider adopting policies or local ordinances that are not consistent with the Act, provided that any local initiative is truly limited to local government and affairs (and thus remaining within the general ambit of home rule authority).

The Act is significant and its implementation and enforcement may be complicated.