Immigration advocates warn a proposal for Chicago police to help ICE could be illegal

Immigration advocates and attorneys are sounding the alarm about an ordinance that would allow Chicago police to cooperate with federal immigration enforcement, saying the one-page proposal would open the door to constitutional rights violations and legal challenges that could leave taxpayers on the hook for multimillion dollar settlements.

The ordinance that Alds. Raymond Lopez and Silvana Tabares are attempting to resurrect at next week’s City Council meeting ahead of former President Donald Trump’s inauguration would also have a chilling effect on immigrant communities, leading to an erosion of trust and less cooperation with law enforcement, advocates warned.

“No one should be afraid to call 911,” said Ald. Carlos Ramirez-Rosa (35th). “If you are an immigrant woman, or you are a woman with an immigrant family member, and you're a victim of domestic violence, you're more likely to pick up the phone and call police and report your abuser if you know that under no case, no exception, will that call result in you or a loved one being turned over to ICE.”

The proposed ordinance would reinstate certain exceptions to Chicago’s Welcoming City Ordinance by allowing officers to cooperate with federal immigration authorities when someone is arrested or convicted for crimes that are “gang-related,” “prostitution-related,” “drug-related” or for sex crimes that involve a child. It’s unclear how those categories would be determined.

Proponents of the ordinance argue it would make the city safer and could appease the Trump administration to avoid broader immigration enforcement.

But the city’s law department, and a handful of civil rights and immigration attorneys who spoke to WBEZ, said the ordinance would mean the city would be in violation of state law, which largely prohibits law enforcement from participating in immigration enforcement.

“It is irresponsible of the largest city in the state to pretend that somehow it can act in contravention to that state law,” said Ed Yohnka, the communications and public policy director for the ACLU of Illinois, which opposes the ordinance. “There's no question that this would lead to an enormous amount of legal challenges.”

Lopez confirmed Friday that honoring so-called ICE detainers is the way he envisions CPD working with the agency, arguing “by turning [arrestees] over, we are keeping ICE from going into neighborhoods looking for people.”

An ICE detainer is a document sent to local law enforcement when ICE believes, based on a handful of databases it maintains, someone who has been arrested is undocumented. The agency asks police officers to notify ICE when they plan to release that person, and then to hold them for an extra 48 hours to give an enforcement agent time to arrive.

Honoring an ICE detainer is the “by far biggest way” that ICE agents request help from local municipalities, said Mark Fleming, the Associate Director of Litigation for the Chicago-based National Immigrant Justice Center.

“[ICE has] I think 20,000 employees. There are 1 million state and local law enforcement,” Fleming said. “It's a massive force multiplier that if they can hold them those extra 48 hours, ICE can come get them.”

The problem with ICE detainers

But cooperating with ICE by detaining someone longer than their scheduled release has proven costly for local governments, Fleming noted.

Just last month, a judge in New York ordered the city to pay $92.5 million for detaining more than 20,000 people beyond their release dates to honor ICE detainers between 1997 and 2012. In a statement to the New York Times, the city’s law department said officials “operated with the assumption that compliance with ICE detainers was mandated under federal law” but that “court rulings eventually clarified that localities could not hold a detainee beyond their release date based solely on the contents of a federal detainer.”

Fleming and other immigrant rights groups have won cases by arguing that ICE detainers, unlike other arrests, happen without a court order. In turn, courts have held local governments liable for settlement payouts because local officers are the ones carrying out the warrantless arrest, not ICE agents.

“We sued local police saying you're honoring detainers, and you have no authority to do it, and we've won all of those cases,” Fleming said. “ICE doesn't have an interest in fixing this, because they're not going to be financially liable for it.”

Lopez said he was not aware of any of the lawsuits brought against local governments for carrying out ICE detainers, including a 2020 settlement in Los Angeles County for $14 million.

Whether a local government is permitted to cooperate with ICE or not, the agency still sends detainer requests, Fleming said. In 2023, 27 law enforcement agencies in Illinois reported receiving civil immigration detainers or warrants, with 523 detainers or warrants received statewide, according to the Illinois Attorney General’s Office latest report. The office’s Civil Rights Bureau opened an investigation into a county sheriff’s office that reported transferring 12 people into ICE custody. The investigation was ongoing as of the December report.

Chicago police reported receiving eight warrant or detainer requests, but no data was included on the outcomes of those requests. CPD denied one request from Homeland Security Investigations for data, and received 1,841 U or T visa certification requests, granting 92% of them, according to figures reported to the Illinois Attorney General’s Office.

There are also questions about how the categories specified in the ordinance would be determined.

A city law department spokesperson said while “gang-related” activity is defined in Illinois law, “that definition would not necessarily apply to this ordinance.”

”Prostitution-related” and “drug-related” crimes are not legally defined buckets in the state criminal code, potentially leaving it up to individual officers to decide which arrests and convictions allow for cooperation with ICE, said Sheila Bedi, a clinical law professor at Northwestern University and a board member of Organized Communities Against Deportation.

“The definition of when CPD would be allowed to engage in immigration enforcement is incredibly vague, very over broad, so that's going to raise some due process considerations and leave the city vulnerable to legal challenges,” she said.

The ordinance’s potential for overreach

Bedi added the broad swath of crimes that could be categorized under those buckets could lead to deportations based on some “incredibly minor things,” such as loitering or carrying marijuana, which is legal in Chicago but deemed a controlled substance by the federal government, and that racial and ethnic bias could influence who is turned over to ICE.

Lopez said he believes “the categories are defensible, and they are very specific in what we consider gang activity.”

“We know how to charge people if they are loitering and throwing gang signs and attacking people,” he said. “We know how to record if people are self identified gang members. So it's not something that is on it's not an unattainable goal.”

But Ald. Andre Vasquez, 40th Ward and chair of the City Council’s Committee on Immigrant and Refugee Rights, said jeopardizing due process rights would undermine the justice system and raised questions over how the categories would apply in practice.

“Just because someone's arrested doesn't mean that they've been tried in a court system, that they've been charged, that they've been convicted,” Vasquez said.“What happens if someone's a victim of trafficking, like they're a person who's doing sex work because they're being trafficked. Are they then viewed as a criminal or a victim? Are they getting deported, even though they're not the one who's the ring leader of the situation?”

Lopez said “we don’t arrest victims” and he has “no concerns” about due process.

“Because if you are here, either undocumented or with some sort of temporary status, engaging in this activity, then I will leave due process up to the federal authorities to figure out,” Lopez said.

Lopez argued that allowing cooperation with ICE on cases with alleged criminal activity would help keep law-abiding immigrants, even those who are undocumented, safe.

But the argument doesn’t carry water for immigrant advocates who spoke to WBEZ and say there’s no reason to expect the Trump administration to differentiate.

“The reality is that [the Trump administration] have people on their team, and have spoken very broadly about being against immigrants in general, regardless of whether they came here in a lawful way or whether they are not they have committed crimes,” said immigration attorney Nubia Willman, who worked under former Mayor Lori Lightfoot when these types of criminal activity exceptions were first taken out of the Welcoming City Ordinance. “So allowing them to create this idea of like they get to being who's good, who's bad, this ultimately hurts our communities.”

A chilling effect

Legal questions aside, proponents of Chicago’s Welcoming City Ordinance argue that allowing CPD to cooperate with ICE will make those in the immigrant community hesitant to cooperate with police.

Immigrant communities are already fearful of what’s to come under a second Trump presidency, said Brandon Lee, the communications director of the Illinois Coalition for Immigrant and Refugee Rights. The effort to carve out exceptions to the Welcoming City Ordinance builds on anti-immigrant sentiments and fierce tensions that have been brewing over Chicago’s aid to thousands of migrants over the past several years. Officials should try to repair those divisions, rather than exploit them, Lee said.

“Immigrant communities are not the only ones that Trump is going to have his eye on,” Lee said. “This is a time for Chicagoans and Illinoisans to come together and to do what we can to push back against the Trump administration, rather than trying to meet them halfway on any particular issue.”

Mariah Woelfel and Tessa Weinberg cover Chicago government and politics for WBEZ.