Barco Mercado v. Noem
Overview
Overview
Sergio Alberto Barco Mercado, a detained immigrant represented by the American Civil Liberties Union, Make the Road New York, and the New York Civil Liberties Union, sued the Department of Homeland Security over the conditions in which U.S. Immigration and Customs Enforcement confines detainees at 26 Federal Plaza in New York City. On September 24, 2026, Judge Lewis A. Kaplan of the Southern District of New York certified a class of all current and future ICE detainees held at 26 Federal Plaza and granted a permanent injunction, finding that the overcrowded and degrading hold-room conditions there are unconstitutionally punitive under the Fifth Amendment and that ICE's restrictions on detainees' access to counsel violate the First and Fifth Amendments.
The Facts
Facts
The case arises from the current administration's drive to carry out what it has called the largest deportation operation in the country's history. To pursue that goal, ICE sharply increased immigration arrests and, per the opinion, insisted that substantially all arrested persons be detained pending removal proceedings without adequate regard to the shortage of suitable facilities. Judge Kaplan found that this produced a surge of detainees that overwhelmed ICE facilities, including the hold rooms on the fifth, ninth, and tenth floors of 26 Federal Plaza in Manhattan. The court's findings describe overcrowding, extended detention in rooms designed only for short-term holding, inadequate sleeping conditions, unsanitary conditions and denial of hygiene and privacy, insufficient food and water, inadequate medical care, and restrictions on detainees' ability to speak confidentially with counsel. The opinion states that ICE confined many arrested people in "overcrowded, squalid, and degrading rooms for excessive periods of time." The court also documented ICE's noncompliance with an earlier temporary restraining order and preliminary injunction, including exceeding capacity limits, failing to provide confidential legal calls, and detaining people on other floors.
The Issue
Issue
Whether the conditions in which ICE confines immigration detainees at 26 Federal Plaza, and its restrictions on their access to counsel, violate the Fifth Amendment's Due Process Clause and the First Amendment, and whether the plaintiff's claims may proceed as a class action on behalf of all detainees held there.
The Rules
Rule
Under the Fifth Amendment's Due Process Clause, a civil immigration detainee may be held but may not be subjected to conditions that amount to punishment; conditions are punitive when they are not rationally related to a legitimate, nonpunitive governmental purpose or appear excessive in relation to that purpose. Bell v. Wolfish, 441 U.S. 520 (1979). The Constitution also protects a detainee's access to counsel. Federal Rule of Civil Procedure 23 permits a case to proceed as a class action where the class is so numerous that joinder is impracticable and there are questions of law or fact common to the class (Rule 23(a)), and where the party opposing the class has acted on grounds generally applicable to the class so that final injunctive relief is appropriate for the class as a whole (Rule 23(b)(2)).
The Application
Analysis
Judge Kaplan first rejected the government's argument that the case was moot, finding that ICE's asserted current compliance did not eliminate the controversy given its history of noncompliance and the likelihood that the challenged conditions would recur. On the merits, the court held that the plaintiff was likely to succeed and had proven that the conditions of confinement at 26 Federal Plaza are unconstitutionally punitive under Bell v. Wolfish, and that ICE's restrictions on confidential attorney access violate the First and Fifth Amendments. Turning to class certification, the court found that the proposed class of all detainees held at 26 Federal Plaza satisfied each Rule 23(a) requirement (numerosity, commonality, typicality, and adequacy) and that Rule 23(b)(2) was satisfied because ICE had subjected all class members to substantially the same conditions, making classwide injunctive relief appropriate.
The Conclusion
Conclusion
The court certified the case as a class action on behalf of all immigration detainees who are or will be held by ICE at 26 Federal Plaza, appointed Sergio Alberto Barco Mercado as the class representative and his counsel as class counsel, and granted a permanent injunction to the extent set out in a separate Final Judgment of Permanent Injunction entered the same day. This is a dispositive ruling in the detainees' favor. The government may appeal to the Second Circuit, and the case remains active pending any appeal.
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