U.S. District Judge Lewis A. Kaplan issued a preliminary injunction that, among other relief, bars U.S. Immigration and Customs Enforcement from holding detainees in spaces with less than 50 square feet per person, and requires ICE to provide detainees with clean bedding, basic hygiene products, and free, confidential and unmonitored calls with their attorneys within 24 hours of being detained. ICE claims to have already made those improvements following an earlier temporary restraining order.
In an 84-page opinion, Judge Kaplan said class plaintiffs in the suit are "very likely to succeed" on the merits of their claims that holding room conditions at 26 Federal Plaza violate the First and Fifth Amendments of the U.S. Constitution, and that they've been seriously injured or face a clear threat of irreparable injury absent relief.
"We must remember that this is the United States of America. We aspire to treat all Americans — and those among us — with humanity," Judge Kaplan wrote in his opinion. "We are legally and morally bound to adhere to the constitution and laws of the United States with respect to everyone within our borders."
Judge Kaplan's ruling also granted provisional class certification for "all immigration detainees who now or will be detained for 12 or more hours by U.S. Immigration and Customs Enforcement at 26 Federal Plaza."
Sergio Barco Mercado, a New Jersey resident and Peruvian citizen, filed suit in early August, on the same day he was taken into custody and detained at 26 Federal Plaza after a scheduled court appearance. Barco Mercado alleged that his attorney visited 26 Federal Plaza and identified himself as his attorney, but was told that visitations were prohibited.
Barco Mercado claimed that ICE was forcing dozens and sometimes close to 100 individuals in a single room, causing "extreme overcrowding," as well as "squalid, and punitive conditions" at the facility. He said that unsanitary conditions also caused holding rooms to smell like sweat, urine and feces.
Individuals held at the facility also aren't given adequate meals every six hours as required, Barco Mercado alleged. And because the holding rooms were designed to hold only a few people for short periods of time, people have been forced to sleep on concrete floors with aluminum blankets, sometimes next to toilets and with the lights on, he said.
Barco Mercado also moved for a temporary restraining order and preliminary injunction requiring the government to provide attorney access at the facility and ensure that detainees have "constitutionally adequate and humane conditions of confinement."
In opposing the sought relief, the government argued that Barco Mercado overlooked the fact that 26 Federal Plaza is "not a detention facility," but a "field office processing and holding facility with rooms designed to temporarily hold individuals during arrest processing and while awaiting transport to detention facilities."
The government said in an Aug. 11 brief that detainees are given adequate food, clothing, shelter and medical care, as well as access to attorneys through phone calls. The government also asserted that the majority of individuals in custody at 26 Federal Plaza are transported to other facilities "within 72 hours, except in exceptional circumstances."
"While 26 Federal Plaza — as a short-term processing and holding space — does not contain certain features found in detention facilities, it does not fall below the constitutional minimum," the government argued.
Judge Kaplan granted a temporary restraining order on Aug. 12. The government then said in an Aug. 18 court filing that it had made improvements in accordance with the TRO, including by providing at least 50 square feet of floor area to each detainee, bedding mats and cost-free unmonitored calls with attorneys at least once during each 12-hour period an individual is detained.
On Wednesday, Judge Kaplan said the preliminary injunction was backed by 28 declarations by people who had been detained at 26 Federal Plaza or reported accounts of others who had been there. The judge also said that Barco Mercado alleged a "real and imminent First Amendment injury" when it came to access to legal counsel.
"Lack of access to counsel during detention at 26 Fed is not a mere inconvenience for detainees," Judge Kalpan wrote. "It can have irreversible consequences."
He said that Barco Mercado had also established irreparable harm by demonstrating that putative class members face imminent risk to their health, safety and lives.
Acknowledging ICE's contention that it made some improvements following the TRO, Judge Kaplan said there was still reason to believe that improvements would not continue if he denied a preliminary injunction.
"The heat remains on, and the temperature is likely to rise," Judge Kaplan wrote. "There is no reason to believe that conditions in the 26 Fed Hold Rooms would not regress and, indeed, worsen in the absence of a preliminary injunction."
Eunice Cho, senior counsel with the American Civil LIberties Union's National Prison Project and an attorney for the class, said in a statement on Wednesday that the ruling marks an "important win for immigrants' rights and affirms what we've known all along: ICE's conduct at 26 Federal Plaza is inhumane, illegal and a direct violation of the Constitution."
"No person should be denied medical care, access to a lawyer, or basic dignity when they are held in government custody — and we'll continue to fight to hold ICE accountable," Cho said.
DHS Assistant Secretary Tricia McLaughlin told Law360 on Wednesday that 26 Federal Plaza is not a detention center, but a "processing center where illegal aliens are briefly processed to be transferred to an ICE detention facility."
"Any claim that there is overcrowding or subprime conditions at ICE facilities are categorically false," McLaughlin said. "All detainees are provided with proper meals, medical treatment, and have opportunities to communicate with their family members and lawyers."
The class is represented by Eunice Cho and Kyle Virgien of the American Civil Liberties Union Foundation, Amy Belsher, Robert Hodgson, Claire Molholm and Molly K. Biklen of New York Civil Liberties Union Foundation, Heather Gregorio, Mariann Meier Wang, Alice Reiter, Daniel Mullkoff and Lily Sawyer Kaplan of Wang Hecker LLP and Harold A. Solis and Paige Austin of Make the Road New York.
The government is represented by Jay Clayton and Jeffrey Oestericher of the U.S. Attorney's Office for the Southern District of New York.
The case is Barco Mercado v. Kristi Noem, et al., case number 1:25-cv-06568, in the U.S. District Court for the Southern District of New York.
--Editing by Alanna Weissman.
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