by Chuck Sharman

Blocked from seeing attorneys. Left to sleep on the floor under blazing lights. Sharing a 215-square-foot cell with 89 others. Women forced to menstruate without pads and wear their bloody clothing for days afterward. These were just some of the conditions which a putative class of migrants attested that they were subjected to while detained by federal Immigration and Customs Enforcement (ICE) in “hold” rooms at its New York City office at 26 Federal Plaza.

Based on the detainees’ affidavits, the U.S. District Court for the Southern District of New York issued a temporary restraining order (TRO) on August 12, 2025, barring ICE from using any of the hold rooms at the office, known as 26 Fed, for longer than its policy allows—historically 12 hours but recently increased to 72 hours. Then on September 17, 2025, the Court also decided that “[t]here 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,” issuing one and granting provisional class certification to Plaintiffs’ suit.

That action was brought against ICE and Secretary Kristi Noem of its parent agency, the U.S. Department of Homeland Security (DHS), by named Plaintiff Sergio Alberto Barco Mercado, with the aid of attorneys Heather Gregorio, Mariann Meier Wang, Alice Reiter and Daniel Mullkoff of Wang Hecker LLP; Eunice Cho of the American Civil Liberties Union Foundation; Amy Belsher, Robert Hodgson and Molly K. Biklen of the New York Civil Liberties Foundation; and Harold A. Solis and Paige Austin of Make the Road New York.

Detainees attested that they were held in a group of 90 in a hold room that measured about 20 square meters (215 square feet). Designed for short-term detention, the room had no bed. So the district court’s TRO barred ICE from using hold rooms unless each detainee was provided with at least 50 square feet, as well as clean bedding mats. Moreover, the facility was required to be cleaned at least three times daily, and detainees must be regularly provided basic hygiene supplies.

Of particular concern to the district court were reports from detainees that they were denied access to legal counsel—allegations backed up by testimony from their attorneys, who said that ICE’s detainee locator tool often failed to help them find their clients. As a result, the TRO also obligated ICE to provide detainees the “means of making confidential, unmonitored, unrecorded, temporally unrestricted free telephone … calls within 24 hours of being detained and at least once during each subsequent 12-hour period while they are detained,” the district court recalled, “together with the ability to schedule legal calls with counsel within 6 hours of a request made within the period 9 a.m. to 4 p.m. and within 16 hours of a request made thereafter.” The TRO further provided that “one landline dedicated solely to accommodating legal calls” must be made “available for each five or fewer detainees.”

ICE Response Deemed
Inadequate

Nancy Zanello, assistant field director of Enforcement and Removal Operations at ICE’s New York office, conceded that the hold rooms were “not equipped … to host in-person legal visitation or with dedicated attorney call rooms for the aliens in custody,” the district court recalled, and she admitted that updates to the locator tool occur only every eight hours. But her other efforts to push back against the detainees’ allegations met with the district court’s derision.

First, the district court noted, Zanello responded to many allegations with statistics and facts drawn from the period after the TRO was issued—when ICE was merely complying with court-ordered requirements, e.g., to clean the lockup thrice daily. Zanello was also taken to task for responding to allegations of overcrowding with data “cherry picked to put the best possible face on this.” And though she and other DHS representatives “denied all allegations of overcrowding and inhumane conditions at 26 Fed,” the district court said that “Zanello’s vague and limited representations” were “significantly unresponsive and unpersuasive.” Meanwhile Plaintiff had “submitted numerous first-hand accounts from former detainees that speak directly to the conditions at 26 Fed.”

Taking those allegations one at a time, the district court began by saying that forcing detainees to sleep on the floor with no more than a thin aluminum blanket, or to sleep sitting up or next to an open toilet, exposed them to an “objectively serious deprivation.” So did the lack of showers and the few operable toilets that large numbers of detainees were forced to share, “contribut[ing] to an overpowering stench of body odor, urine, and feces in the 26 Fed Hold Rooms,” the district court lamented.

When some detainees asked for water, they said that a guard responded by “holding up a bottle” and “squirt[ing water]” into their mouths, “like [they] were animals.” Many detainees complained also of receiving just two small rations of food each day, leading to significant weight loss in at least one case. “While defendants are not required to provide appetizing food,” the district court allowed, “the denial of basic sustenance undoubtedly constitutes an objective deprivation.” So did “delayed or absent treatment in response to several serious medical needs,” including diabetes, high blood pressure and seizure suffered by detainees.

Besides Zanello’s misleading statistics and backdated responses, Defendants left these allegations largely uncontested, the district court noted. Instead they argued that circumstances were subpar because the hold rooms were not designed for long-term detention. Though “that presumably is true,” the district court said, “it is not an excuse,” and Plaintiffs “are entitled to the minimum levels of humane treatment and access to counsel that are required by the Constitution, regardless of whether the government decides not to provide these essentials.”

Finding sufficient risk of irreparable harm to Plaintiffs and their likelihood of success on the merits of their claim, the district court thus issued a preliminary injunction to extend all the TRO provisions for 90 days. The district court also found that the proposed class was sufficiently numerous and their claims shared sufficient commonality, as well as that named Plaintiff was sufficiently typical of the class members and his counsel adequate to represent them—so a class of Plaintiffs was certified that includes “all immigration detainees who now or will be detained for 12 or more hours by [ICE] at 26 Federal Plaza, New York, NY.” See: Mercado v. Noem, 2025 U.S. Dist. LEXIS 182904 (S.D.N.Y.).  

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