Case 3:07-cv-01074-JCH Document 95 Filed 11/07/08 Page 1 of 34

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

RASHAD AHMAD REFAAT EL BADRAWI,

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Plaintiff,

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v.

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DEPARTMENT OF HOMELAND SECURITY; GREGORY )

MANACK, Resident Agent in Charge, Hartford Sub-District, )

Immigration and Customs Enforcement, Department of

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Homeland Security; MICHAEL S. LOSER, Senior Special

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Agent, Hartford Sub-District, Immigration and Customs

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Enforcement, Department of Homeland Security; CHARLES L. )

LEE, Warden, Hartford Correctional Center; ALBERT PITTS, )

Chaplain, Hartford Correctional Center; THOMAS McGRAIL, )

Director of Food Services, Hartford Correctional Center;

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ROBERT MUELLER, Director of the Federal Bureau of

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Investigation; MICHAEL CHERTOFF, Secretary of the

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Department of Homeland Security; FEDERAL BUREAU OF )

INVESTIGATION; and UNITED STATES OF AMERICA,

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Defendants.

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SECOND AMENDED COMPLAINT
Case No. 3:07-cv-1074 (JCH)

Plaintiff Rashad El Badrawi, through his attorneys Michael Wishnie, Hope Metcalf and

Ramzi Kassem, alleges the following facts upon information and belief:

PRELIMINARY STATEMENT 1. This is a civil rights lawsuit to redress the arbitrary arrest, wrongful detention, coerced departure, and other malicious treatment suffered by Rashad El Badrawi, a foreign national who had lawfully studied and worked in the United States for nearly eleven years. This action also seeks redress for the denial of Mr. El Badrawi’s right to adequate medical care, and his right to observe religious practices, while he was detained in a Hartford jail in the custody of U.S. Immigration and Customs Enforcement (“ICE”), a unit of the Department of Homeland Security (“DHS”).

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2. In October 2004, while working as a researcher at the Richard D. Berlin Center for Cell Analysis and Modeling at the University of Connecticut Health Center, Mr. El Badrawi was wrongfully arrested and detained by DHS. With no notice or warning of any possible violation, ICE agents—under the auspices of a secret ICE program called “Operation Frontline”—arrested Mr. El Badrawi outside his Hartford, Connecticut residence for allegedly overstaying his period of authorized residence.
3. Despite these allegations, Mr. El Badrawi was at all times lawfully present and authorized to work in the United States.
4. After his arrest by ICE agents, Mr. El Badrawi was transferred to the Hartford Correctional Center and detained without bond pending the completion of removal proceedings. During those proceedings, in which the Immigration Judge suggested that he was under suspicion for national security-related concerns, Mr. El Badrawi was coerced to accept “voluntary departure,” a form of immigration relief in which the individual agrees to leave the United States at his own expense and is usually granted a brief period to arrange his affairs prior to departure.
5. Instead of prompt release, however, Mr. El Badrawi was held at the Hartford Correctional Center for nearly six additional weeks, housed with criminal suspects and convicts, denied adequate medical care, and denied the right to practice his religion.
6. The Plaintiff brings this action to recover compensatory and punitive damages as a result of ICE officials’ violations of his Fourth and Fifth Amendment rights. Additionally, Plaintiff seeks compensatory and punitive damages as a result of state officials’ violations of his First and Fourteenth Amendment rights. Mr. El Badrawi also seeks a declaration that the Defendants’ actions violated his constitutional rights and an injunction requiring expungement of
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any derogatory law enforcement records maintained by Defendants regarding the Plaintiff. Finally, Mr. El Badrawi seeks compensatory damages from the United States for the harm he suffered as a result of the torts of false arrest and imprisonment, malicious prosecution, vexatious suit, intentional infliction of emotional distress, and abuse of process.
JURISDICTION AND VENUE 7. This Court has jurisdiction over the Plaintiff’s claims pursuant to 28 U.S.C. §§ 1331, 1343(a)(3), 1346(b)(1). Jurisdiction to grant declaratory judgment is conferred by 28 U.S.C. §§ 2201-02. Injunctive relief is authorized by Rule 65 of the Federal Rules of Civil Procedure. 8. By letter dated March 22, 2007, DHS informed Mr. El Badrawi that his administrative claims under the Federal Tort Claims Act (“FTCA”) had been denied. Mr. El Badrawi has thus exhausted his administrative remedies under the FTCA pursuant to 28 U.S.C. §§ 1346(b)(1), 2675(a). 9. Venue lies in this district pursuant to 28 U.S.C. §§ 1391(b)(2), 1391(e)(2), and 1402(b), as a substantial part of the events giving rise to the Plaintiff’s claims occurred in the District of Connecticut.
PARTIES 10. Plaintiff Rashad Ahmad Refaat El Badrawi is a foreign national. From June 2003 to December 2004, he was employed at the University of Connecticut Health Center as a research associate and resided in Hartford, Connecticut. In October 2004, DHS officials wrongfully arrested and detained him on the basis of alleged civil immigration violations, and detained him in Hartford until his wrongful departure from the United States in December 2004. Mr. El Badrawi currently resides outside the United States.
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11. Defendant Gregory Manack was at all relevant times the ICE Resident Agent in Charge in Hartford, Connecticut. Defendant Manack is sued in his individual capacity.
12. Defendant Michael Loser was at all relevant times an ICE Senior Special Agent in Hartford, Connecticut. Defendant Loser is sued in his individual capacity.
13. Defendant Charles L. Lee was at all relevant times the Warden for the Hartford Correctional Center. Mr. Lee is sued in his individual and official capacity.
14. Defendant Albert Pitts was at all relevant times the Chaplain for the Hartford Correctional Center. Defendant Pitts is sued in his individual and official capacity.
15. Defendant Thomas McGrail was at all relevant times the Director of Food Services for the Hartford Correctional Center. Defendant McGrail is sued in his individual and official capacity.
16. Defendant Robert Mueller is the Director of the Federal Bureau of Investigation. As Director, he has responsibility for the maintenance and operation of various databases that contain and disseminate arrest and detention records. Defendant Mueller is sued in his official capacity.
17. Defendant Michael Chertoff is the Secretary of the Department of Homeland Security. As Secretary of Homeland Security, he has responsibility for the maintenance and operation of various databases that contain and disseminate arrest and detention records. Defendant Chertoff is sued in his official capacity.
18. Defendant Federal Bureau of Investigation (“FBI”) is the agency within the Department of Justice responsible for gathering intelligence for criminal proceedings, seeking warrants, executing arrests, and administering certain databases that contain and are used to disseminate arrest, detention and other records.
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19. Defendant Department of Homeland Security is a federal agency that operates and maintains federal databases that contain and are used to disseminate arrest, detention, and other homeland security-related records.
20. Defendant United States is sued under the Federal Tort Claims Act for the tortious acts of its employees.
STATEMENT OF FACTS 21. Mr. El Badrawi, a foreign national, first entered the United States in September 1993 on a nonimmigrant student (F-1) visa to pursue a master’s degree in pharmacology at Northeastern University in Boston, Massachusetts. 22. In December 1999, Mr. El Badrawi was granted his first of several H1-B work petitions (and accompanying visas), sponsored by various employers in the biotechnology industry. 23. Mr. El Badrawi maintained legal immigration status throughout his time living and working in the United States. He sought renewal of his H1-B petitions as necessary, and periodically departed the country to re-apply as required, remaining outside the United States for the requisite period of time. Mr. El Badrawi’s Recent Visa History 24. Mr. El Badrawi’s most recent H1-B sponsor was the University of Connecticut Health Center. 25. On or about April 4, 2003, DHS granted the University of Connecticut Health Center’s visa petition authorizing Mr. El Badrawi’s employment as a research associate.
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26. On or about May 26, 2003, the Department of State (“DOS”) issued Mr. El Badrawi an H1-B nonimmigrant visa authorizing him to enter the United States to accept an offer of employment at the University of Connecticut Health Center.
27. Pursuant to this visa, on or about June 1, 2003, Mr. El Badrawi lawfully entered the United States to commence employment.
28. Mr. El Badrawi resided in an apartment complex in Hartford, Connecticut during the period in which he resided in the United States after his June 1, 2003 entry.
29. On June 5, 2003, Mr. El Badrawi began working as a research associate at the University of Connecticut Health Center’s Richard D. Berlin Center for Cell Analysis and Modeling in Hartford, Connecticut.
30. While employed at the University of Connecticut Health Center, Mr. El Badrawi worked on a grant project funded by the National Institutes of Health to develop computational software for modeling cell biology.
31. On or about October 2, 2003, DOS administratively revoked Mr. El Badrawi’s visa without notice to Mr. El Badrawi or to his employer.
32. By the terms of the Certificate of Revocation the revocation was effective only upon Mr. El Badrawi’s “departure from the United States.”
33. On or about March 31, 2004, Mr. El Badrawi’s employer, the University of Connecticut Health Center, filed a timely application for an extension of stay of his H1-B petition, U.S. Citizenship and Immigration Services (“USCIS”) form I-129, including a request for premium processing.
34. The timely filing of Mr. El Badrawi’s application for extension of stay automatically extended Mr. El Badrawi’s permission to remain employed and present in the
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United States for 240 days or until he was notified that his extension of stay had been approved or denied.
35. Mr. El Badrawi and his employer awaited approval for the extension of stay until his wrongful arrest by ICE on October 29, 2004.
36. Throughout this period, Mr. El Badrawi contacted several authorities, including DHS, to inquire about the cause of the delay in adjudicating his employer’s application for extension of stay.
37. Neither Mr. El Badrawi nor his employer ever received a decision concerning his application.
38. From October 2, 2003, until his wrongful departure on December 22, 2004, Mr. El Badrawi never departed the United States, and therefore the DOS visa revocation never became effective. Mr. El Badrawi’s Wrongful Arrest
39. On or about October 28, 2004, Defendant Loser, ICE Senior Special Agent, confirmed that Mr. El Badrawi’s I-129 extension of stay form was pending with the ICE Benefit Fraud Unit/Eastern Service Center in Vermont. Accordingly, Mr. El Badrawi was lawfully present and work authorized in the United States.
40. Nevertheless, on or about that same day, Defendant Loser signed an ICE Form I213, Record of Deportable/Inadmissible Alien, which wrongfully and falsely alleged that Mr. El Badrawi had unlawfully overstayed his H1-B authorization by remaining in the United States beyond May 1, 2004.
41. Defendant Loser knew or reasonably should have known that the allegation in the I213 that Mr. El Badrawi was in the United States in violation of his immigration status was false.
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42. The I-213 acknowledged that Defendant Loser’s investigation of Mr. El Badrawi was predicated upon information received “under the auspices of Operation FRONTLINE.”
43. Operation Front Line targeted Mr. El Badrawi and others on the basis of race, religion, and/or national origin.
44. Also on or about October 28, 2004, Defendant Manack, ICE Resident Agent in Charge, signed a Warrant for Arrest of Alien for Mr. El Badrawi.
45. The warrant wrongfully and falsely alleged that Mr. El Badrawi was within the country in violation of the immigration laws of the United States.
46. Defendant Manack knew or reasonably should have known that the allegation in the warrant that Mr. El Badrawi was in the United States in violation of his immigration status was false.
47. On or about that same day, Defendant Manack signed a Notice to Appear (“NTA”) seeking Mr. El Badrawi’s removal from the United States.
48. The sole ground asserted in the NTA for Mr. El Badrawi’s arrest and deportation was that he had overstayed his H1-B authorization by remaining in the United States beyond May 1, 2004.
49. Defendant Manack knew or reasonably should have known that the allegation in the NTA that Mr. El Badrawi was in the United States in violation of his immigration status was false.
50. On or about that same day, Defendant Manack signed an ICE form I-286, Notice of Custody Determination, stating that upon his arrest, Mr. El Badrawi would be detained without bond in the custody of ICE.
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51. On October 29, 2004, with no notice or warning of any possible violation, and pursuant to the warrant signed on or about the day before by Defendant Manack, Mr. El Badrawi was arrested by Defendant Loser and two other ICE agents in the parking lot of his Hartford residence.
52. Defendant Loser signed the warrant’s Certificate of Service, stating that he was the officer who served the warrant on Mr. El Badrawi.
53. Mr. El Badrawi was humiliated by the arrest, which occurred in front of his neighbors.
54. After searching Mr. El Badrawi’s apartment, the ICE agents took Mr. El Badrawi— fully handcuffed and restrained—to an ICE facility in Hartford.
55. Some time after their arrival, Defendant Loser interrogated Mr. El Badrawi at the ICE facility.
56. Mr. El Badrawi requested that an Immigration Judge redetermine his custody by so indicating on the Notice of Custody Determination.
57. Mr. El Badrawi also requested a phone call and spoke to colleagues at the University of Connecticut Health Center about his arrest and detention.
58. The same day, ICE officials served the NTA on Mr. El Badrawi and filed the NTA in Immigration Court in Hartford.
59. Defendant Manack, by signing and issuing the following documents collectively authorizing Mr. El Badrawi’s false arrest and imprisonment—(a) a warrant predicated on false information and issued without probable cause or reason to believe an immigration violation had been committed; (b) an NTA wrongfully and falsely alleging that Mr. El Badrawi was in unlawful status; and (c) a Notice of Custody Determination form denying Mr. El Badrawi
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bond—acted intentionally, knowingly, and/or with reckless disregard and deliberate indifference to Mr. El Badrawi’s constitutional and legal rights to be free from unlawful seizures and imprisonment.
60. Defendant Loser, by signing a Form I-213 Record of Deportable/Inadmissible Alien predicated on false information and the warrant’s Certification of Service, as well as arresting Mr. El Badrawi and interrogating him after the arrest, acted intentionally, knowingly, and/or with reckless disregard and deliberate indifference to Mr. El Badrawi’s constitutional and legal rights to be free from unlawful seizures and imprisonment.
61. Defendants Manack and Loser knew or reasonably should have known that their actions violated Mr. El Badrawi’s constitutional and legal rights to be free from unlawful seizures and imprisonment.
62. Defendants Manack and Loser knew or reasonably should have known that there was no reason to believe or probable cause that Mr. El Badrawi was illegally in the United States, as is required to issue and serve an arrest warrant and make an arrest against Mr. El Badrawi. See 8 C.F.R. § 287.8(c)(2).
63. Defendants Manack and Loser targeted Mr. El Badrawi and applied the policies of Operation Front Line in an intentionally discriminatory manner on the basis of race, religion, and/or national origin, in violation of Mr. El Badrawi's right to equal protection under the Fifth Amendment to the United States Constitution.
64. Mr. El Badrawi remained in ICE custody for the remainder of his time in the United States. Detention Conditions
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65. On Oct. 29, 2004, the same day as his arrest, Mr. El Badrawi was transported to the Hartford Correctional Center, where he was photographed, strip-searched, and placed in the general population of convicted criminals and criminal pretrial detainees.
66. Mr. El Badrawi had never previously been inside a correctional facility, jail, or prison of any kind.
67. At the Hartford Correctional Center, Mr. El Badrawi was subjected to traumatic, punitive, and excessively harsh conditions of confinement.
68. There he witnessed numerous criminal acts, including heroin use. Denial of Necessary Medication
69. Mr. El Badrawi suffers from Crohn’s disease, a chronic disorder that causes inflammation of the gastrointestinal tract and can result in severe pain when left untreated.
70. At the time of his arrest, Mr. El Badrawi took medicine daily for his Crohn’s disease, as prescribed by his doctor. He kept his medicine in his apartment in Hartford.
71. On the day of Mr. El Badrawi’s unlawful seizure, ICE agents, including Defendant Loser, took Mr. El Badrawi’s medication (Asacol, 400mg tablets) from his apartment to the ICE facility where he was originally detained.
72. The ICE agents, including Defendant Loser, recklessly left the medication at the facility instead of taking it to the Hartford Correctional Center.
73. Soon after his transfer to the Hartford Correctional Center, Mr. El Badrawi made repeated requests to prison officials for his medication, including oral requests upon his admission to the facility on October 29, 2004 and at least one written request for medication on or about November 1, 2004.
74. However, Mr. El Badrawi was not given access to new medication until seven days later, during which time he endured substantial pain and suffering.
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75. For the first seven days of confinement, Mr. El Badrawi was denied access to medication necessary to keep his Crohn’s disease in abeyance, causing him internal bleeding and considerable pain.
76. Defendant Loser knew or reasonably should have known Mr. El Badrawi was denied access to medication for his Crohn’s disease.
77. Defendant Loser acted with reckless disregard and deliberate indifference by recklessly leaving his medication at the ICE facility, which denied Mr. El Badrawi access to medication for his Crohn’s disease.
78. Defendant Lee, while Warden of the Hartford Correctional Center, knew or should have reasonably known that Mr. El Badrawi was being denied access to medication for his Crohn’s disease for seven days.
79. Defendant Lee, while Warden, acted with reckless disregard and deliberate indifference by failing to train and supervise prison officials to follow policies requiring prisoners’ access to medication, and by tolerating their violations of these policies, which denied Mr. El Badrawi access to medication for his Crohn’s disease for seven days. Denial of Mr. El Badrawi’s Right to Free Exercise of Religion
80. Mr. El Badrawi is a practicing Muslim, and his arrest on October 29, 2004 fell on the sixteenth day of Ramadan.
81. Ramadan is the holy Islamic month requiring Muslims to fast from dawn to sunset. 82. The Hartford Correctional Center provided other Muslims at the facility an adequate meal schedule allowing them to fast from dawn to sunset.
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83. Mr. El Badrawi made several requests for an adjustment to his meal schedule to accommodate his religious observance, including to the Muslim chaplain and to at least two different correctional officers.
84. However, prison officials repeatedly rejected Mr. El Badrawi’s request for a meal schedule allowing him to fast from dawn to sunset.
85. The prison officials stated that since Mr. El Badrawi had arrived at the facility midway through the month of Ramadan, he could not be added to the special rolls accommodating the separate meal schedule.
86. By refusing to provide him with the meal schedule necessary to fast during Ramadan, the prison officials denied Mr. El Badrawi the right to freely exercise his religion.
87. During the first week of his detention, Mr. El Badrawi was forced to eat at the prescribed meal times.
88. The denial of Mr. El Badrawi’s medication for Crohn’s disease—which caused him severe pain—further hindered his ability to fast.
89. As a result, for the first time in his adult life, Mr. El Badrawi was unable to observe Ramadan, causing him severe distress.
90. During the second week of his detention, Mr. El Badrawi did fast, aided by fellow inmates who took pity on him and brought him small amounts of food, such as an apple or a cookie, so that he could eat during non-meal periods, in violation of prison rules.
91. Sometimes when his fellow inmates could not provide him food, Mr. El Badrawi’s only late-night meal was a glass of water.
92. Mr. El Badrawi’s detention at the Hartford Correctional Center was a program or activity that receives Federal financial assistance.
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93. Defendant Lee, while Warden of the Hartford Correctional Center, had responsibility and oversight over the unlawful, excessive, and punitive manner in which Mr. El Badrawi was held in his facility.
94. Defendant Lee, while Warden, knew or should have reasonably known that Mr. El Badrawi was being subjected to unlawful, excessive, and punitive detention conditions.
95. Defendant Lee, while Warden, acted intentionally, knowingly, and/or with reckless disregard and deliberate indifference to the constitutional and legal rights of Mr. El Badrawi to be free from unlawful, excessive, and punitive detention conditions.
96. Defendant Lee, while Warden, was personally involved in the violation of Mr. El Badrawi’s constitutional and legal rights to be free from unlawful, excessive, and punitive detention conditions.
97. Defendant Lee, while Warden, failed to act on information indicating Mr. El Badrawi’s constitutional and legal rights were being violated.
98. Defendant Lee, while Warden, acted with reckless disregard and deliberate indifference by failing to train and supervise prison officials to follow policies requiring prisoners the right to freely exercise their religion, and by tolerating their violations of these policies, which denied and substantially burdened Mr. El Badrawi’s right to freely exercise his religion and fast during the Muslim holy month of Ramadan.
99. Defendant Pitts, while Chaplain of the Hartford Correctional Center, had responsibility and oversight over the unlawful, excessive, and punitive manner in which Mr. El Badrawi was held in the facility.
100. Defendant Pitts, while Chaplain, knew or should have reasonably known that Mr. El Badrawi was being subjected to unlawful, excessive, and punitive detention conditions.
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101. Defendant Pitts, while Chaplain, acted intentionally, knowingly, and/or with reckless disregard and deliberate indifference to the constitutional and legal rights of Mr. El Badrawi to be free from unlawful, excessive, and punitive detention conditions.
102. Defendant Pitts, while Chaplain, was personally involved in the violation of Mr. El Badrawi’s constitutional and legal rights to be free from unlawful, excessive, and punitive detention conditions.
103. Defendant Pitts, while Chaplain, failed to act on information indicating Mr. El Badrawi’s constitutional and legal rights were being violated.
104. Defendant Pitts, while Chaplain, acted with reckless disregard and deliberate indifference by failing to train and supervise prison officials to follow policies requiring prisoners the right to freely exercise their religion, and by tolerating their violations of these policies, which denied and substantially burdened Mr. El Badrawi’s right to freely exercise his religion and fast during the Muslim holy month of Ramadan.
105. Defendant McGrail, while Director of Food Services of the Hartford Correctional Center, had responsibility and oversight over the unlawful, excessive, and punitive manner in which Mr. El Badrawi was held in the facility.
106. Defendant McGrail, while Director of Food Services, knew or should have reasonably known that Mr. El Badrawi was being subjected to unlawful, excessive, and punitive detention conditions.
107. Defendant McGrail, while Director of Food Services, acted intentionally, knowingly, and/or with reckless disregard and deliberate indifference to the constitutional and legal rights of Mr. El Badrawi to be free from unlawful, excessive, and punitive detention conditions.
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108. Defendant McGrail, while Director of Food Services, was personally involved in the violation of Mr. El Badrawi’s constitutional and legal rights to be free from unlawful, excessive, and punitive detention conditions.
109. Defendant McGrail, while Director of Food Services, failed to act on information indicating Mr. El Badrawi’s constitutional and legal rights were being violated.
110. Defendant McGrail, while Director of Food Services, acted with reckless disregard and deliberate indifference by failing to train and supervise prison officials to follow policies requiring prisoners the right to freely exercise their religion, and by tolerating their violations of these policies, which denied and substantially burdened Mr. El Badrawi’s right to freely exercise his religion and fast during the Muslim holy month of Ramadan. Immigration Hearings
111. On November 3, 2004, Mr. El Badrawi appeared before Immigration Judge Michael W. Straus in Hartford, Connecticut.
112. At this hearing, Judge Straus pursued a line of questioning suggesting that Mr. El Badrawi was under suspicion for national security-related concerns.
113. At this hearing, counsel for ICE claimed that because Mr. El Badrawi had remained in the United States after the October 2003 revocation of his visa, his application for an extension of stay was void, rendering Mr. El Badrawi removable pursuant to Immigration and Nationality Act (“INA”) § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B).
114. However, the DOS Certificate of Revocation specified that the revocation became effective only upon Mr. El Badrawi’s departure from the country.
115. The revocation never became effective, because Mr. El Badrawi did not leave the United States between June 1, 2003, and December 22, 2004.
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116. At the hearing, the government also made the allegation, found in the NTA, that Mr. El Badrawi was out of status because he had remained in the United States past May 1, 2004, the date his H1-B authorization had expired.
117. Mr. El Badrawi contested this argument. He pointed out that his employer, the University of Connecticut Health Center, had submitted a timely application for an extension of stay fewer than 240 days before.
118. Under immigration regulations, Mr. El Badrawi was permitted to stay and continue to work under his existing H1-B status for a 240-day period while the extension application was pending or until it was denied. See 8 C.F.R. § 274a.12(b)(20); see also Memorandum from Michael A. Pearson, INS Executive Associate Commissioner, to Regional Directors, et al. (Mar. 3, 2000) (person’s continued presence during pendency of application for extension of stay not “unlawful” under INA).
119. ICE Form I-213, signed by Defendant Loser, acknowledged that, as of the dates of his arrest and appearances in Immigration Court, Mr. El Badrawi’s extension of stay application was still pending with DHS.
120. As of the date of his arrest and upon his appearance in Immigration Court, Mr. El Badrawi was within the 240-day period, work authorized and lawfully present in the United States.
121. ICE nevertheless refused to recognize Mr. El Badrawi’s legal status and proceeded to prosecute removal proceedings, and to detain him without bond pending completion of those proceedings.
122. On or about November 4, 2004, John Marley, the lead ICE attorney handling Mr. El Badrawi’s removal proceedings, acknowledged in email correspondence with other DHS
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officials that Mr. El Badrawi’s extension petition remained pending and that the visa revocation would become effective only upon Mr. El Badrawi’s departure from the United States. Nevertheless, ICE continued to prosecute the removal proceeding against Mr. El Badrawi.
123. On November 10, 2004, Mr. El Badrawi again appeared before Judge Straus. 124. Eager finally to be free from his wrongful detention and the traumatic and punitive conditions of confinement, fearful because he had been falsely linked with national security concerns, and still not fully informed of his lawful immigration status, Mr. El Badrawi was persuaded to accept a “deal” in which he would be granted voluntary departure, a form of immigration relief which allows a person to voluntarily leave the United States within a certain number of days. 125. Mr. El Badrawi’s acceptance of voluntary departure terminated the removal proceedings, effectively acquitting him of any insinuation of wrongdoing. 126. On November 10, 2004, Judge Straus ordered that Mr. El Badrawi be granted voluntary departure. 127. Judge Straus specified that Mr. El Badrawi should depart the country under DHS safeguards. 128. The DHS prosecutor verbally informed Mr. El Badrawi that he would leave the United States within six days. 129. Defendants Manack and Loser engaged in malicious prosecution and vexatious suit against Mr. El Badrawi. 130. Defendants Manack and Loser acted without probable cause or reason to believe an immigration violation had occurred and with malice in issuing and serving the warrant for arrest against Mr. El Badrawi and causing his arrest.
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131. Defendants Manack and Loser acted without probable cause or reason to believe an immigration violation had occurred and with malice in issuing, serving, and filing the NTA and commencing the removal proceedings against Mr. El Badrawi.
132. Defendants Manack and Loser also abused the legal process in their actions against Mr. El Badrawi.
133. By issuing and serving warrant and NTA forms predicated on information they knew or should have known to be false, and refusing to release Mr. El Badrawi on bond, Defendants Manack and Loser deliberately misused the court process by authorizing Mr. El Badrawi’s wrongful arrest, detention, and prosecution of removal proceedings. Mr. El Badrawi’s Continued Detention Following the Voluntary Departure Deal
134. Instead of being released within six days as the DHS prosecutor had indicated at the immigration hearing, Mr. El Badrawi was imprisoned at Hartford Correctional Center for fortytwo additional days.
135. During this time, Mr. El Badrawi repeatedly sought to learn why he had continued to be detained.
136. Mr. El Badrawi’s passport and other necessary documents were in order, and he made several requests to ICE officials, through his attorney, to help expedite his removal.
137. For example, Mr. El Badrawi offered to pay for a plane ticket on the earliest available flight to either country in which he has citizenship.
138. Despite these requests, ICE officials provided no justification for Mr. El Badrawi’s needlessly prolonged detention.
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139. Mr. El Badrawi was detained weeks longer than necessary to effectuate his removal from the United States without any legitimate immigration law enforcement purpose, and without evidence that he posed a danger or flight risk.
140. On December 22, 2004, ICE agents finally removed Mr. El Badrawi from Hartford Correctional Center, brought him to John F. Kennedy International Airport, and placed him on a flight.
141. When Mr. El Badrawi was finally permitted to leave, he had been detained by ICE officials for nearly two months without bond or release.
142. Defendants Manack and Loser authorized, and, by their unlawful actions, caused Mr. El Badrawi’s unlawful detention for forty-two days after he had accepted voluntary departure.
143. Defendants Manack and Loser acted intentionally, knowingly, and/or with reckless disregard and deliberate indifference to Mr. El Badrawi’s constitutional and legal rights to be free from imprisonment.
144. After Mr. El Badrawi had accepted voluntary departure, Defendants Manack and Loser intentionally detained Mr. El Badrawi for a prolonged period of time on the basis of race, religion, and/or national origin, in violation of his right to equal protection under the Fifth Amendment to the United States Constitution.
145. Defendants Manack and Loser knew or reasonably should have known that their actions violated Mr. El Badrawi’s constitutional and legal rights to be free from imprisonment.
146. Defendants Manack and Loser knew or reasonably should have known that Mr. El Badrawi was being detained without any legitimate immigration law enforcement purpose, and without evidence that he posed a danger or flight risk.
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Operation Frontline 147. Mr. El Badrawi’s arrest and detention occurred as a part of the Operation Front Line
program. 148. In May 2004, ICE, cooperating with the FBI, launched Operation Front Line, a
program apparently concerned with national security threats to the 2004 Presidential Election and 2005 Inauguration and involving the investigation, arrest, and removal of certain alleged immigration status violators.
149. Operation Front Line targeted males from Muslim-majority countries. 150. Operation Front Line was divided into two distinct operations: Operation Front Line I, which commenced in May 2004, and Operation Front Line II, also known as the “October Plan,” which commenced on or about October 4, 2004. 151. Pursuant to Operation Front Line, ICE agents opened approximately 1,363 investigative files, comprising approximately 2,500 individual cases and made approximately 500 arrests. Upon information and belief, none led to a national security-related charge. 152. Pursuant to a partial settlement in separate litigation under the Freedom of Information Act, on or about September 12, 2008, ICE released specific data on a random sample of 300 of the 1,363 Operation Front Line closed investigative case files. 153. This data demonstrates that Operation Front Line broadly targeted male immigrants from Muslim-majority countries. 154. Within this sample, 79% of the foreign nationals investigated under Operation Front Line came from Muslim-majority countries and 76% were men.
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155. Only 53 persons in this sample – 18% of the subjects – were alleged to have violated immigration laws, and only three individuals received criminal prison sentences. All three were sentenced to time served and none was charged with a national security-related offense.
156. Operation Front Line took place in a context of other evidence of discriminatory animus on the part of the federal government, including allegations of law enforcement operations targeted against Muslim, Arab, or South Asian men.
157. In the immediate aftermath of the September 11, 2001 attacks, federal officials engaged in the mass interrogation, arrest, and prosecution or removal of thousands of Arab, Muslim and South Asian men.
158. On or about November 9, 2001, then-Attorney General Ashcroft directed Defendant FBI and other law enforcement agencies to search out and conduct “voluntary” interviews of at least 5,000 Arab, Muslim and South Asian men between the ages of 18 and 33.
159. In January 2002, the Deputy Attorney General launched the “Absconder Apprehension Initiative,” which targeted persons with outstanding removal orders but prioritized those persons from certain Muslim-majority nations.
160. In March 2002, the Department of Justice announced another round of “voluntary” interviews, targeting an additional 3,000 Arab, Muslim and South Asian men.
161. In June 2002, Ashcroft announced the implementation of the National Security Entry Exit Registration System (NSEERS), which included a “Special Registration” requirement for all male nationals over the age of 15 from 25 countries, 24 of which are predominantly Arab or Muslim.
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162. Like these prior programs, Operation Front Line expressly targeted individuals on the basis of race, religion, and/or national origin, in violation of the right to equal protection under the Fifth Amendment to the United States Constitution. Upon information and belief, Operation Front Line did not target individuals who were similarly situated to targeted individuals but for their race, religion, and/or national origin.
163. Operation Front Line was motivated by a discriminatory animus against individuals of a certain racial, religious and/or national background, and adversely affected individuals such Mr. El Badrawi in violation of the right to equal protection under the Fifth Amendment to the United States Constitution.
164. Operation Front Line policies were consistently applied in an intentionally discriminatory manner on the basis of race, religion, and/or national origin, in violation of the right to equal protection under the Fifth Amendment to the United States Constitution.
165. Defendants Manack and Loser applied the policies of Operation Front Line in an intentionally discriminatory manner on the basis of race, religion, and/or national origin when targeting Mr. El. Badrawi, in violation of Plaintiff's right to equal protection under the Fifth Amendment to the United States Constitution.
166. Defendants Manack and Loser, acting under color of law and their authority as federal officers, stopped, detained, investigated, searched, seized, arrested, and/or charged Plaintiff knowingly and intentionally on the basis of Plaintiff’s race, religion, and/or national origin, in violation of Plaintiff’s right to equal protection under the Fifth Amendment to the United States Constitution.
167. Defendants Manack and Loser, acting under color of law and their authority as federal officers, detained Plaintiff for weeks longer than was necessary to secure his voluntary
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departure from the U.S. knowingly and intentionally on the basis of Plaintiff’s race, religion, and/or national origin, in violation of Plaintiff’s right to equal protection under the Fifth Amendment to the United States Constitution. Irreparable Harm Suffered by Mr. El Badrawi
168. There is a real and actual controversy between Plaintiff and Defendants, and Defendants’ actions are the proximate cause of Plaintiff’s injuries.
169. Mr. El Badrawi has suffered and continues to suffer harm, including irreparable harm, as a direct result of the violations complained of herein, and that harm will continue unless declared unlawful and enjoined by this court.
170. As a direct result of the unlawful actions of Defendants Manack and Loser, Mr. El Badrawi has suffered severe and lasting emotional and mental distress including but not limited to fear, depression, loss of reputation, and personal humiliation.
171. Defendants Manack and Loser intentionally inflicted emotional distress on Mr. El Badrawi.
172. By issuing and executing a warrant for his arrest that they knew or should have known was predicated on false information; detaining him without bond; and initiating removal proceedings against him, Defendants Manack and Loser knew or reasonably should have known that their unlawful actions would have resulted in Mr. El Badrawi experiencing the trauma of arrest, detention with criminal suspects and convicts, denial of adequate medical care, interference with religious practice, and personal humiliation.
173. Defendants Manack and Loser further inflicted emotional distress by needlessly prolonging Mr. El Badrawi’s detention for two months even after he had agreed to voluntary departure.
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174. The conduct of Defendants Manack and Loser was extreme and outrageous, as it persisted even after Mr. El Badrawi notified the officials that the document they had presented concerning his visa revocation, together with his then-pending extension petition, confirmed his lawful status and work authorization.
175. As a result of Defendants Manack and Loser arresting and detaining Mr. El Badrawi for a prolonged period of time in an intentionally discriminatory manner on the basis of race, religion, and/or national origin, Mr. El Badrawi suffered damages, including but not limited to violations of his Constitutional rights, loss of liberty, harms to his reputation and professional prospects, monetary damages, and emotional distress.
176. The ordeal surrounding Mr. El Badrawi’s wrongful arrest and detention as well as his excessively harsh conditions of confinement also created a traumatic experience for his family, particularly his mother.
177. Mr. El Badrawi also lost his job with the University of Connecticut Health Center as a result of his being coerced to leave the United States under false allegations.
178. Mr. El Badrawi continues to face adverse employment consequences because the U.S. government maintains and disseminates information and records about his unlawful arrest and detention as well as inaccurate investigatory records.
179. Information and records concerning Mr. El Badrawi’s arrest and detention, and inaccurate investigatory records, appear in several federal databases, including the Treasury Enforcement Control System (“TECS”), a database maintained by Defendant DHS, and the National Crime Information Center (“NCIC”) database, maintained by Defendant FBI.
180. Mr. El Badrawi faces future adverse consequences—including the potential for future arrest; the inability to pursue his profession in the United States, where he previously
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worked, studied, and trained; and the denial of banking services—because Defendant FBI will likely disseminate false information in his NCIC record to law enforcement agencies, banking institutions, employers, and other public and private entities throughout the United States.
FIRST CAUSE OF ACTION FOURTH AMENDMENT: SEIZURE
(BIVENS) 181. Plaintiff incorporates by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 182. By wrongfully arresting and detaining Plaintiff without probable cause, reason to believe an immigration violation had been committed, or valid justification, Defendants Manack and Loser, acting under color of law and their authority as federal officers, intentionally or recklessly seized Plaintiff in violation of the Fourth Amendment to the United States Constitution.
SECOND CAUSE OF ACTION FIFTH AMENDMENT: DUE PROCESS
(BIVENS) 183. Plaintiff incorporates by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 184. By wrongfully arresting and detaining Plaintiff without probable cause, reason to believe an immigration violation had been committed, or valid justification, Defendants Manack and Loser, acting under color of law and their authority as federal officers, intentionally or recklessly deprived Plaintiff of his liberty without due process of law in violation of the Fifth Amendment to the United States Constitution.
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THIRD CAUSE OF ACTION FREE EXERCISE (42 U.S.C. § 1983)
185. Plaintiff incorporates by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein.
186. By refusing to provide Plaintiff an adequate meal schedule to allow him to fast as proscribed by his religion, Defendant Lee, acting under color of law and his authority as Warden of Hartford Correctional Center, intentionally or recklessly violated Plaintiff’s right to free exercise of religion guaranteed to him under the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983.
FOURTH CAUSE OF ACTION RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT OF 2000
(42 U.S.C. §§ 2000cc, et seq.) 187. Plaintiff incorporates by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 188. By refusing to provide Plaintiff an adequate meal schedule to allow him to fast as prescribed by his religion, Defendant Lee, acting under color of law and in his individual and official capacity as Warden of Hartford Correctional Center, violated Plaintiff’s rights under the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc, et seq. 189. By refusing to provide Plaintiff an adequate meal schedule to allow him to fast as prescribed by his religion, Defendant Pitts, acting under color of law and in his individual and official capacity as Chaplain for Hartford Correctional Center, violated Plaintiff’s rights under the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc, et seq.
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190. By refusing to provide Plaintiff an adequate meal schedule to allow him to fast as prescribed by his religion, Defendant McGrail, acting under color of law and in his individual and official capacity as Director of Food Services for Hartford Correctional Center, violated Plaintiff’s rights under the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc, et seq.
FIFTH CAUSE OF ACTION DENIAL OF MEDICAL CARE
(42 U.S.C. § 1983) 191. Plaintiff incorporates by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 192. By denying Plaintiff his medication for Crohn’s disease for seven days, Defendant Lee, acting under color of law and in his authority as Warden of Hartford Correctional Center, denied Mr. El Badrawi adequate medical care in violation of his right to due process guaranteed to him under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983.
SIXTH CAUSE OF ACTION FIFTH AMENDMENT: DUE PROCESS
(BIVENS) 193. Plaintiff incorporates by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 194. By detaining Plaintiff weeks longer than necessary to secure his voluntary departure from the United States without any legitimate immigration law enforcement purpose, and without evidence that he posed a danger or flight risk, Defendants Manack and Loser, acting under color of law and their authority as federal officers, intentionally or recklessly subjected
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Plaintiff to arbitrary and unlawful detention, depriving Plaintiff of his liberty without due process of law in violation of the Fifth Amendment to the United States Constitution.
SEVENTH CAUSE OF ACTION FIFTH AMENDMENT: EQUAL PROTECTION
(BIVENS) 195. Plaintiff incorporates by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 196. Defendants Manack and Loser applied the policies of Operation Front Line in an intentionally discriminatory manner on the basis of race, religion, and/or national origin when targeting Mr. El. Badrawi, in violation of Plaintiff's right to equal protection under the Fifth Amendment to the United States Constitution. 197. Defendants Manack and Loser, acting under color of law and their authority as federal officers, stopped, detained, investigated, searched, seized, arrested, and/or charged Plaintiff knowingly and intentionally on the basis of Plaintiff’s race, religion, and/or national origin, in violation of Plaintiff’s right to equal protection under the Fifth Amendment to the United States Constitution. 198. Defendants Manack and Loser, acting under color of law and their authority as federal officers, detained Plaintiff for weeks longer than was necessary to secure his voluntary departure from the U.S. knowingly and intentionally on the basis of Plaintiff’s race, religion, and/or national origin, in violation of Plaintiff’s right to equal protection under the Fifth Amendment to the United States Constitution.
EIGHTH CAUSE OF ACTION FEDERAL TORT CLAIMS ACT
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(28 U.S.C. §§ 1346, 2671) 199. Plaintiff incorporates by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 200. In issuing a warrant for his arrest, and arresting, confining, and prosecuting removal proceedings against Plaintiff—and in ignoring his rights under the Constitution and INA and inducing his departure from the United States—Defendant United States, through its employees, engaged in false arrest and imprisonment, malicious prosecution and vexatious suit, intentional infliction of emotional distress, and abuse of process in violation of the Federal Tort Claims Act, 28 U.S.C. §2671 et seq.
NINTH CAUSE OF ACTION UNLAWFUL MAINTENANCE OF RECORDS
(Expungement Action at Common Law) 201. Plaintiff incorporates by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 202. Upon information and belief, Defendants FBI and DHS have entered and presently maintain records related to Mr. El Badrawi’s arrest and detention, and inaccurate investigatory and other records, in the NCIC and TECS databases. 203. Upon information and belief, Defendants have entered and presently maintain records related to Mr. El Badrawi’s arrest and detention in other databases and record systems. 204. The government may not retain records of arrests or detentions where the maintenance of such records would be fundamentally unfair, such as where the arrest or detention was illegal and unconstitutional, nor of inaccurate investigatory information the retention and dissemination of which cause injury to Mr. El Badrawi.
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205. Mr. El Badrawi’s arrest and detention violated the Fourth and Fifth Amendments to the United States Constitution, and the FTCA.
206. Maintenance and dissemination of records of Mr. El Badrawi’s arrest and detention, and of inaccurate investigatory and other records relating to him, are fundamentally unfair and unlawful.
TENTH CAUSE OF ACTION UNLAWFUL MAINTENANCE OF RECORDS (Expungement Action Under NCIC Statute, 28 U.S.C. § 534) 207. Plaintiff incorporates by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 208. Upon information and belief, Defendant FBI has entered and presently maintains records of Mr. El Badrawi’s arrest and detention in the NCIC database. 209. In addition, Defendant FBI has entered and presently maintains a record relating to Mr. El Badrawi in the VGTOF portion of the NCIC. 210. Congress has authorized Defendant FBI to enter specified records into the NCIC database and disseminate them to prospective employers, law enforcement officials, and other public and private agencies. 211. Congress has not authorized Defendant FBI to enter records of persons subject to civil violations of immigration law into the NCIC database. 212. Congress has also not authorized Defendant FBI to enter inaccurate investigatory records into the NCIC database.
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213. Defendant FBI’s entry into the NCIC of records relating to the arrest and detention of Mr. El Badrawi pursuant to alleged civil violations of immigration law is arbitrary, capricious, and not authorized by the NCIC statute, 28 U.S.C. § 534.
214. Defendant FBI’s entry into the NCIC VGTOF of inaccurate investigatory records regarding Mr. El Badrawi is arbitrary, capricious, and not authorized by the NCIC statute, 28 U.S.C. § 534.
215. Mr. El Badrawi is entitled to declaratory and injunctive relief ordering that records related to his unlawful arrest and detention, and inaccurate investigatory records in the VGTOF, be expunged from the NCIC.
REQUEST FOR RELIEF WHEREFORE, Plaintiff respectfully requests that this Court: 1) Assume jurisdiction over this matter; 2) Declare that the Defendants’ actions violated the Plaintiff’s rights under the First,
Fourth, Fifth, and Fourteenth Amendments to the United States Constitution; under the common law; and under the Federal Tort Claims Act; 3) Declare that the Plaintiff’s detention was unjustified, unconstitutional, unlawful, and without probable cause; 4) Order the Defendants to return all records relating to the Plaintiff’s unlawful arrest and detention and to expunge such records from government databases and otherwise destroy any records that cannot be returned; 5) Order the Defendants to expunge any inaccurate or investigatory information regarding Plaintiff from the VGTOF portion of the NCIC database; 6) Award the Plaintiff compensatory and punitive damages in an amount that is fair, just, reasonable, and in conformity with the evidence; 7) Award the Plaintiff reasonable attorneys’ fees and costs; and 8) Grant any other relief the Court deems just and equitable.
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Dated November 4, 2008 New Haven, Connecticut

Respectfully submitted,
__________/s/_________________ Michael Wishnie, Esq., Federal Bar. No. ct27221 Hope Metcalf, Esq., Federal Bar No. ct27184 Ramzi Kassem, Federal Bar No. ct27537 Sameer Ahmed, Law Student Intern Anya Bernstein, Law Student Intern Bram Elias, Law Student Intern Grant Martinez, Law Student Intern Daniel Mullkoff, Law Student Intern ALLARD K. LOWENSTEIN INTERNATIONAL HUMAN RIGHTS CLINIC NATIONAL LITIGATION PROJECT 127 Wall Street New Haven, Connecticut 06510 Phone: (203) 432-9122
Counsel for Plaintiff

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CERTIFICATION I herby certify that on November 4, 2008, a copy of the foregoing Amended Complaint was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system.
BY: ___ _____/s/___________ Michael Wishnie, Esq., Federal Bar. No. ct27221 Ramzi Kassem, Federal Bar No. ct27537 Hope Metcalf, Esq., Federal Bar No. ct27184 Sameer Ahmed, Law Student Intern Anya Bernstein, Law Student Intern Bram Elias, Law Student Intern Grant Martinez, Law Student Intern Daniel Mullkoff, Law Student Intern ALLARD K. LOWENSTEIN INTERNATIONAL HUMAN RIGHTS CLINIC NATIONAL LITIGATION PROJECT 127 Wall Street New Haven, Connecticut 06510 Phone: (203) 432-9122
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 Case 3:07-cv-01074-JCH Document 164 Filed 07/27/09 Page 1 of 17

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

RASHAD AHMAD REFAAT EL BADRAWI, :

Plaintiff,

:

:

v.

:

:

DEPARTMENT OF HOMELAND

:

SECURITY, ET AL.,

:

Defendants.

:

CIVIL ACTION NO. 07-cv-1074 (JCH)
JULY 24, 2009

RULING RE: PLAINTIFF’S MOTION TO COMPEL (DOC. NO. 107) I. INTRODUCTION1

On February 9, 2009, plaintiff Rashad Ahmad Refaat El Badrawi moved to

compel the production of certain documents from defendants Charles Lee, Warden,

Hartford Correctional Center, and the United States of America (the “government”).

See Motion to Compel (Doc. No. 107). Both Warden Lee and the government objected

to El Badrawi’s Motion, arguing that the documents at issue are exempt from discovery

because, inter alia, they are not relevant and they are protected from disclosure by the

law enforcement privilege. See Defendants’ Opposition to Plaintiff’s Motion to Compel

(Doc. Nos. 112, 118). On April 30, 2009, the court heard argument on the Motion. See

Minute Entry (Doc. No. 137). Following argument, the court reviewed, ex parte and in

camera, both the documents sought by El Badrawi and a classified declaration provided

by the government in support of its opposition. For the reasons discussed herein, El

Badrawi’s Motion to Compel is granted in part and denied in part.

1 The court assumes familiarity with the basic facts of this case, which were set out in detail in the court’s Ruling Re: Defendants’ Motions to Dismiss or for Summary Judgment (Doc. No. 82).
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II. STANDARD OF REVIEW A district court has broad discretion to manage pre-trial discovery. See Wood v.
FBI, 432 F.3d 78, 84 (2d Cir. 2005). Under the Federal Rules of Civil Procedure, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” Fed. R. Civ. P. 26(b)(1). “Relevance” is broadly defined in the discovery context. See id. (“Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence”). Moreover, “[s]ince the normal presumption in civil cases is in favor of broad discovery,” a resisting party’s case for non-disclosure must be “extremely persuasive.” Conte v. County of Nassau, 2009 U.S. Dist. LEXIS 41348 (E.D.N.Y. May 15, 2009) (internal quotations omitted). III. BACKGROUND
A. El Badrawi’s First Request for Production On December 5, 2008, El Badrawi sent requests for production to both Warden Lee and the government. The request to Warden Lee sought “all documents . . . that relate to Plaintiff El Badrawi from the National Crime Information Center (NCIC), including but not limited to the NCIC printout generated when Mr. El Badrawi was transferred to the Hartford Correctional Center on or about October 29, 2004.” See Plaintiff’s First Request for Production to Warden Lee at 5, Exh. 10 to Motion to Compel (Doc. No. 107). The request to the United States sought “all documents and electronically stored information . . . that relate to Plaintiff El Badrawi from the National Crime Information Center (NCIC), including but not limited to any information in the
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Violent Gang and Terrorist Organization File (VGTOF).” See Plaintiff’s First Request for Production to the United States at 5, Exh. 11 to Motion to Compel (Doc. No. 107).
Both Warden Lee and the government objected to El Badrawi’s request for NCIC documents on the grounds of relevance, privilege, and various state and federal statutes. See Warden Lee’s Response to Plaintiff’s First Request for Production, Exh. 12 to Motion to Compel (Doc. No. 107); United States’ Response to Plaintiff’s First Request for Production, Exh. 13 to Motion to Compel (Doc. No. 107). In connection with its invocation of the law enforcement privilege, the United States produced a privilege log stating that three NCIC printouts exist from 2004.2 See Privilege Log (Doc. No. 112-3). On February 9, 2009, El Badrawi filed the instant Motion, challenging the defendants’ objections.
B. The NCIC and the VGTOF The NCIC is a nationwide, computerized information system operating under shared management between the Federal Bureau of Investigation (“FBI”) and state and local criminal justice communities, with the FBI functioning as the national manager. See March 13, 2009 Declaration of Arthur M. Cummings (“Cummings 3/13/09 Decl.”) (Doc. No. 112-2), at ¶ 4. The NCIC’s computerized database contains 18 files: seven property files and 11 person files. See id. The VGTOF is a person file which provides law enforcement
2
It bears noting that the mere existence of NCIC printouts pertaining to El Badrawi does not necessarily m ean El Badrawi is listed in the NCIC. See United States’ Mem orandum in Opposition of Plaintiff’s Motion to Compel (“U.S. Mem. in Opp.”) (Doc. No. 112) at 16. “W hen a law enforcement officer checks a nam e to see if there is inform ation about a person in the NCIC database, a printout is generated showing a positive or negative response. Thus, the mere fact that an NCIC printout exists for El Badrawi does not reveal whether there is inform ation about him in VGTOF; it m erely indicates that his nam e was queried.” Id.
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personnel with identifying information about violent gangs and terrorist organizations, and the known or suspected members/associates of these gangs and organizations. See id. Since January 2002, records of all known or suspected terrorist subjects have been entered into the VGTOF. See id. at ¶ 9. The information contained in VGTOF is used in counterterrorism and criminal investigations conducted by the FBI, see id. at ¶ 5, and serves to warn law enforcement officers of the potential danger posed by violent individuals, see id. at ¶ 9.
It is the FBI’s longstanding policy to neither confirm nor deny whether an individual is listed in the VGTOF because “VGTOF maintains its effectiveness as a law enforcement tool only if the identities of individuals listed in VGTOF are not disclosed.” See id. at ¶ 12. IV. DISCUSSION
A. Motion to Compel as to United States El Badrawi seeks to compel the production of two categories of documents from the United States: (1) the 2004 NCIC printouts that are described in the government’s privilege log; and (2) the current electronic NCIC entry for El Badrawi, if any. The United States argues that these documents are not subject to discovery because they are not relevant to any party’s claim or defense and because they are protected under the law enforcement privilege. The court addresses each argument separately.
1. Relevance of NCIC Printouts Under Rule 26(b)(1), “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” Fed. R. Civ. P. 26(b)(1). The
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government argues that neither the 2004 NCIC printouts, nor El Badrawi’s current NCIC entry, if any, are relevant to any party’s claim or defense. The court disagrees.
After the court’s Ruling Re: Defendants’ Motions to Dismiss or for Summary Judgment (Doc. No. 82), there remain three claims against the United States and three claims against the State defendants.3 El Badrawi’s claims against the United States are: (1) false arrest/false imprisonment; (2) abuse of process; and (3) intentional infliction of emotional distress. His claims against the State defendants are: (1) violation of the First Amendment’s Free Exercise Clause, brought pursuant to 42 U.S.C. § 1983; (2) violation of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”); and (3) violation of the Fourteenth Amendment’s Due Process Clause for the denial of medical care, brought pursuant to 42 U.S.C. § 1983. The court finds that the documents El Badrawi seeks from the United States are relevant to, inter alia, his abuse of process and due process claims.
a. Relevance of NCIC Documents to Abuse of Process Claim. Under Connecticut law, an action for abuse of process lies against any person who uses a legal process against another in an improper manner or to accomplish a purpose for which it was not designed. See Doctor's Assocs. v. Weible, 92 F.3d 108, 114 (2d Cir. 1996). In this case, El Badrawi’s abuse of process claim is based on the allegation that the United States detained El Badrawi after he voluntarily agreed to leave the United States for some reason other than to “ensure [his] timely departure from the United
3
Along with W arden Lee, El Badrawi brings suit against Albert Pitts, Chaplain of the Hartford Correctional Center, and Thomas McGrail, Director of Food Services at the Hartford Correctional Center. The court refers to Lee, Pitts, and McGrail, collectively, as the “State defendants.”
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States.” See Mem. in Supp. at 21. Specifically, El Badrawi alleges that he may have been improperly detained after agreeing to leave the United States in order for the government to continue investigating him under Operation Frontline,4 or for other national security reasons. See id. Therefore, El Badrawi argues, the NCIC records are relevant because they may contain information establishing that government officials believed El Badrawi was a national security threat, or information relating to an improper investigation of El Badrawi after he agreed to voluntary departure, and thus the documents may corroborate or help prove that El Badrawi’s detention was prolonged for impermissible reasons. See id. at 22. The court agrees.
Under Federal Rule of Civil Procedure 26(b)(1), “relevance” has been construed broadly to include “any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Sedona Corp. v. Open Solutions, Inc., 249 F.R.D. 19, 21 (D. Conn. 2008). Both the 2004 NCIC printouts and the current NCIC entry, if any, reasonably could lead to other matters that bear on the reason El Badrawi was detained for 42 days after agreeing to voluntary departure. Therefore, both the 2004 NCIC records and the current NCIC entry, if any, are relevant to El Badrawi’s abuse of process claim.
The United States argues that the NCIC records relating to El Badrawi are not relevant to his abuse of process claim because, inter alia, to the extent they exist, they
4 Operation Frontline was an United States Im m igration and Customs Enforcement (“ICE”) program initiated in the runup to the 2004 election designed to arrest and detain certain im m igration violators deemed to be national security threats. See Ruling Re: Defendants’ Motions to Dismiss or for Summary Judgment (Doc. No. 82) at 4.
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would not document any aspect of El Badrawi’s immigration detention. See U.S. Mem. in Opp. at 9-10. Such argument is unpersuasive. Under the Federal Rules, a party may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense. See Fed. R. Civ. P. 26(b)(1). A party seeking discovery of relevant, nonprivileged documents need not rely on an opposing party’s assurance that the documents in question do not contain the information sought. Rather, the party seeking discovery is entitled to obtain the discovery and draw its own conclusions as to the documents’ usefulness.
b. Relevance of NCIC Documents to Due Process Claim. El Badrawi’s Fourteenth Amendment due process claim is based on the State defendants’ alleged failure to provide him with medicine for Crohn’s disease, a condition which causes inflammation of the gastrointestinal tract and can result in severe pain if left untreated. See Amended Complaint (Doc. No. 83) at ¶¶ 69-79.
To prevail on a denial of medical care claim, a plaintiff must prove: (1) a serious medical need; and (2) behavior on the part of prison officials that constitutes deliberate indifference to that need. See Estelle v. Gamble, 429 U.S. 97, 103-104 (1976). “Deliberate indifference” is more than mere malpractice or negligence; it is a state of mind equivalent to reckless disregard of a known risk of harm. See Farmer v. Brennan, 511 U.S. 825, 837-838 (1994).
El Badrawi argues that the 2004 NCIC printouts are relevant to his due process claim because they shed light on the State defendants’ state of mind. See Mem. in Supp. at 15. Specifically, he argues that, if the 2004 NCIC printouts indicate that the government believed El Badrawi to be a member of a terrorist organization, a
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reasonable person could infer that the state of mind of any State defendant who saw the printouts was affected by that information. See id. Further, because such an inference would tend to prove El Badrawi’s theory that he was intentionally or recklessly denied medical care due to his status as a possible terrorist, El Badrawi argues that the 2004 NCIC printouts are relevant to his due process claim. The court agrees. The 2004 NCIC printouts reasonably may lead to matters that could bear on the reason El Badrawi was not given access to his medication and are therefore relevant under Rule 26. See Sedona Corp. v. Open Solutions, Inc., 249 F.R.D. 19, 21 (D. Conn. 2008).
It bears noting that Warden Lee argues that the 2004 NCIC printouts are not relevant to El Badrawi’s due process claim because El Badrawi’s theory connecting the printouts to his inability to access his Crohn’s medication is too attenuated. Specifically, Warden Lee asserts that:
Plaintiff has sought disclosure of [the 2004 NCIC printouts] before establishing through depositions or interrogatories that any of the named defendants were even aware in October and early November 2004 that Mr. El Badrawi existed; that he was detained at HCC; that they knew anything in particular about him during the relevant time period; including but not limited to whether he was on any NCIC list, a practicing Muslim and required medical attention. State Mem. in Opp. (Doc. No. 118) at 2-3. This argument is unpersuasive. First, El Badrawi has submitted to the court his Inmate Classification Form, signed by “C. Lee” in the “Warden Action” section of the form, which indicates that Warden Lee was aware of El Badrawi’s presence at the Hartford Correctional Center at least as early as November 1, 2004. See Inmate Classification Form, Exh. 15 to Declaration of Daniel Mullkoff (“Mullkoff Decl.”) (Doc. No. 107-16). Second, El Badrawi has submitted the testimony of Joan Ellis, Freedom of Information Administrator for the Connecticut
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Department of Corrections, who stated under oath that NCIC records, especially those showing allegations of serious crimes, “would affect . . . how someone would be housed” in a Department of Corrections facility.5 Testimony of Joan Ellis at 32, Exh. 14 to Mullkoff Decl. Finally, as the court noted at argument, the Federal Rules of Civil Procedure do not require a plaintiff to prove his case before he can receive discovery. Consequently, the court finds that the 2004 NCIC records are relevant to El Badrawi’s due process claim.
2. Law Enforcement Privilege The government argues that the NCIC records El Badrawi seeks are protected from disclosure by the law enforcement privilege. The law enforcement privilege is a qualified executive privilege designed “to prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witness and law enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and otherwise to prevent interference with an investigation.” In re Dep't of Investigation, 856 F.2d 481, 484 (2d Cir. 1988); see also In re Sealed Case, 856 F.2d 268, 272 (D.C. Cir. 1988). To establish the law enforcement privilege, a party invoking it must meet certain threshold requirements: (1) a formal claim of privilege must be lodged by the head of the department which has control over the requested information; (2) assertion of the
5 At argument, counsel for the State defendants questioned the accuracy of Ellis’ testimony, noting that Ellis is a Freedom of Information Act officer at the Department of Corrections and may not be intim ately involved in classification of inm ates. As El Badrawi’s counsel pointed out, however, Ellis testified under oath as a representative of the Comm issioner of the Connecticut Departm ent of Corrections. See Testim ony of Joan Ellis at 18, Exh. 14 to Mullkoff Decl. Further, the State defendants have not pointed to any evidence in the record which would cause the court to question Ellis’ testim ony.
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privilege must be based on actual personal consideration of the matter by that official; and (3) the claim must specify, with particularity, the information for which the privilege is invoked, and must explain why it falls within the scope of the privilege. See id. at 271. “The threshold requirements are needed to provide a court with the information necessary to make a reasoned assessment of the weight of the interests against and in favor of disclosure and to provide a plaintiff a fair opportunity to challenge the bases for the assertion of the privilege.” United States v. Painting, 2008 U.S. Dist. LEXIS 49171 (S.D.N.Y. June 25, 2008).
Because the law enforcement privilege is a “qualified” privilege, see Conte v. County of Nassau, 2009 U.S. Dist. LEXIS 41348 (E.D.N.Y. May 15, 2009), once the threshold requirements are met, "[t]he court must balance the interests favoring and disfavoring disclosure, keeping in mind that the burden of persuasion rests on the party seeking to prevent disclosure.” Macnamara v. City of New York, 249 F.R.D. 70, 79 (S.D.N.Y. 2008). Further, “[t]he court must also consider the value of appropriate protective orders and redactions.” Id.
In balancing the interests favoring and disfavoring disclosure, courts consider a number of factors. Factors favoring disclosure include, inter alia, the relevance of the requested materials and their importance to the plaintiff's case, the strength of the plaintiff's case, and the importance to the public interest. See King v. Conde, 121 F.R.D. 180, 195-96 (E.D.N.Y. 1988). Factors disfavoring disclosure include, inter alia, the threat to the safety of law enforcement personnel, the invasion of privacy, the weakening of law enforcement programs, any chilling effect on internal investigative candor and citizen complainant candor, and state privacy law. See id. at 191-95.
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In this case, the court finds that the government has met the threshold requirements as set forth in In re Sealed Case, 856 F.2d 268, 272 (D.C. Cir. 1988). The United States has submitted two Declarations of Arthur M. Cummings, II, Executive Assistant Director of the FBI’s National Security Branch, asserting a formal claim of privilege over the NCIC records at issue.6 See 3/13/2009 Cummings Decl. at ¶ 3. Cummings has stated that his assertion of the law enforcement privilege is “based upon [his] personal knowledge, [his] review and consideration of documents and information available to [him] in [his] official capacity, and information furnished by Special Agents and other employees of the FBI.” See id. at ¶ 2. Finally, the court finds that, together, the two Cummings Declarations have specified, with particularity, the information for which the law enforcement privilege is invoked, and explained why that information falls within the scope of the privilege. Thus, having found that the government has met the threshold requirements, the court turns to the balancing of the interests favoring and disfavoring disclosure.
While the court has thoroughly considered all the factors set forth in King v. Conde, 121 F.R.D. 180, 195-96 (E.D.N.Y. 1988), the court finds that, in this case, two factors hold overwhelming importance. Accordingly, the court limits its discussion to the importance to the public interest and the weakening of law enforcement programs.
a. The Importance to the Public Interest. The public interest that “without a doubt looms largest” in this case “is the public interest in giving force to the federal civil rights laws.” Id. at 195. This is because “[t]hrough constitutional amendment and
6 In addition to the March 13, 2009 Cummings Declaration, the government submitted a second, classified Cummings Declaration which the court reviewed ex parte and in camera.
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national legislation the people have made it clear that the policies that inform the federal civil rights laws are profoundly important.” Id. (internal quotation and citation omitted). Further, lawsuits brought pursuant to 42 U.S.C. § 1983 require special attention to full disclosure because in section 1983 suits:
Each citizen acts as a private attorney general who takes on the mantel of the sovereign, guarding for all of us the individual liberties enunciated in the Constitution. Section 1983 represents a balancing feature in our governmental structure whereby individual citizens are encouraged to police those who are charged with policing us all. Thus, it is of special import that suits brought under this statute be resolved by a determination of the truth rather than by a determination that the truth shall remain hidden. Id. (internal quotation and citation omitted). Such considerations are particularly important in this case. El Badrawi alleges that the government illegally arrested and imprisoned him, improperly detained him for 42 days beyond the time he agreed to voluntarily leave the United States, and intentionally inflicted severe emotional distress upon him. He further alleges that officials of the State of Connecticut violated fundamental rights guaranteed to him by the First and Fourteenth Amendments to the Constitution of the United States, as well as rights guaranteed to him by federal statute. These claims have survived defendants’ well-crafted and zealously-advocated Motions to Dismiss and Motions for Summary Judgment, and are clearly not frivolous. If his claims are found to have merit, El Badrawi’s suit will have exposed extreme and outrageous conduct on the part of “those who are charged with policing us all,” and thereby guarded, for all of us, the individual liberties enunciated in the Constitution. Id. Therefore, the court finds that it is of special import that this case be resolved by “a determination of the truth rather than by a determination that the truth shall remain hidden.” Id. This finding weighs heavily in favor of disclosure.
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b. The Weakening of Law Enforcement Programs. The government’s primary
argument against producing the NCIC documents is that disclosure of would
significantly harm law enforcement investigations and techniques. See U.S. Mem. in
Opp. at 13. Specifically, Cummings explains that:
If an individual who is included in the VGTOF or any other national security screening-agency database is informed of that fact, this disclosure would likely compromise any ongoing FBI investigation of that individual or terrorist cell. Subjects armed with such knowledge will naturally tend to alter their behavior, taking new precautions against surveillance and changing their level of terrorism-related activity. For example, after realizing that he was under suspicion, a subject might alter his appearance, acquire identification in another name to evade detection, or distance himself from co-conspirators who have not yet come to the attention of counter-terrorism officials. In addition, this knowledge might enable subjects to anticipate the activities and reaction of law enforcement officers, perhaps conducting countersurveillance activities that could place federal agents at greater risk. Finally, by becoming aware of the fact that he/she is included within the VGTOF file, there is a danger that an individual could deduce that a confidential informant has infiltrated a particular terrorist cell. This knowledge could result in, at worst, the death of the informant, or, at best, the compromise of an ongoing terrorist investigation.
Cummings 3/13/09 Decl. at ¶ 12.
As the government points out, this court recognized in a related Freedom of
Information Act (“FOIA”) suit that “significant harm . . . would result if members of
terrorist organizations were able to confirm whether they are listed in VGTOF.” See
Ruling Re: In Camera Review (Doc. No. 129) in El Badrawi v. Dep’t Homeland Security,
et al., 07-cv-372 (JCH). In the context of FOIA, the court found the argument advanced
in the March 13, 2009 Cummings’ Declaration persuasive, and thus held that, in
response to a FOIA request, the FBI had properly refused to confirm or deny whether El
Badrawi was listed in the VGTOF.
The present suit, however, is not a FOIA case, and FOIA exemptions do not
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apply. See Baldrige v. Shapiro, 455 U.S. 345, 360 (1982) (“Most courts have concluded that a FOIA exemption does not automatically constitute a ‘privilege’ within the meaning of the Federal Rules of Civil Procedure”); Washington Post Co. v. United States Dep't of Health & Human Services, 690 F.2d 252, 258 (D.C. Cir. 1982) (“It is well established that information that is exempt from disclosure to the general public under FOIA may nevertheless be subject to discovery”). Thus, the question before the court is not what harm may result if any member of the general public were able to confirm whether he or she is listed in the NCIC, but rather, what harm may result if El Badrawi were able to confirm whether he is, or was, listed in the NCIC.
The government would have the court conflate the two questions. It paints a picture that, at first sight, appears extremely troubling: a slippery slope from the courtordered production of NCIC documents in one civil rights lawsuit to a world in which any terrorist who comes into contact with U.S. government officials is able to access the nation’s most closely-guarded national security secrets by filing a section 1983 lawsuit. This picture, however, is flawed. The government omits the fact that, in order to obtain discovery over the government’s assertion of the law enforcement privilege, a plaintiff typically must first survive a motion to dismiss (as did El Badrawi in this case) and then convince a judge that a balancing of interests favors disclosure. As the dearth of cases in which judges have ordered production over the government’s assertion of the law enforcement privilege demonstrates, this is not an easy hurdle for a plaintiff to overcome. Consequently, the court finds the government’s slippery slope argument unpersuasive.
That said, however, the court must still consider whether harm other than the -14-

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slippery slope type may result if El Badrawi were able to confirm whether he is, or was, listed in the NCIC. To this end, it bears noting that this court recognizes that “bits and pieces of data may aid in piecing together bits of other information even when the individual piece is not of obvious importance in itself,” and that “what may seem trivial to the uninformed, may appear of great moment to one who has a broad view of the scene and may put the questioned item of information in its proper context.” CIA v. Sims, 471 U.S. 159, 178 (1985). With this in mind, the court reviewed the documents in question ex parte and in camera.
After reviewing the documents and considering the submissions of both El Badrawi and the government (including the classified Cummings Declaration), the court finds that the disclosure of certain information in the documents could reasonably lead to harm of the type Cummings describes in his March 13, 2009 Declaration.7 See Cummings 3/13/09 Decl. at ¶ 12. With respect to the remainder of the information in the documents, however, the court finds that the government has not demonstrated that the disclosure of such information could reasonably be expected to lead to threats to the safety of law enforcement personnel, the invasion of privacy, the weakening of law enforcement programs, or any chilling effect on internal investigative candor or citizen complainant candor.
As a result, the court finds that, after balancing the interests in favor of disclosure and those against, with regard to the majority of the information contained in the
7
The court has set forth the reasons for this particular finding, in detail, in a Supplem ent to this Ruling. The Supplement will undergo classification review and, if possible, a redacted version will be made available on the docket.
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documents El Badrawi seeks, the importance of the public interest outweighs the interests disfavoring disclosure. Nevertheless, the court finds that the documents contain some information in which the interests balance in the opposite direction, and therefore the court finds that portions of the documents El Badrawi seeks are protected by the law enforcement privilege, and need not be disclosed.
3. Production Procedure Because the court has found that the law enforcement privilege applies only to portions of the documents El Badrawi seeks from the United States, the government shall disclose the documents in redacted form. The court will highlight the privileged portions of the documents and give the highlighted documents to government’s representative. Government’s counsel shall redact the highlighted sections and disclose the redacted documents to El Badrawi’s counsel no later than August 10, 2009. Further, due to the legitimate concerns of the government regarding the sensitivity of the documents, the redacted documents shall be designated “Protected Documents” per the court’s Protective Order (Doc. Nos. 139, 159). B. Motion to Compel as to Warden Lee El Badrawi seeks to compel the 2004 NCIC printout from Warden Lee. See Mem. in Supp. at 2. Both the government and El Badrawi have acknowledged that the 2004 printout in Warden Lee’s possession is, for the most part, equivalent to the 2004 printouts held by the government. See E-mails, Exh. 9 to Motion to Compel (Doc. No. 107). The records, however, are not identical. To the extent Warden Lee’s 2004 NCIC printout contains information the court determined to be protected by the law
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enforcement privilege in the government’s printouts, such information is likewise protected from disclosure by the State. To the extent the Warden Lee’s 2004 NCIC printout contains information the court determined to be discoverable in the government’s printouts, such information is likewise discoverable from the State. To the extent Warden Lee’s printout contains information not contained in the government’s printouts, such information was not addressed by the classified Cummings Declaration and therefore the court has not conducted the requisite balancing inquiry as to that information. Consequently, the State (and/or the government) has until August 10, 2009 to submit any further objection (supported by affidavit) to the disclosure of the State’s 2004 NCIC printout with the same redactions as the government’s. V. CONCLUSION
For the foregoing reasons, plaintiff’s Motion to Compel (Doc. No. 107) is GRANTED in part and DENIED in part. Defendant United States of America shall disclose the redacted documents to plaintiff’s attorneys by August 10, 2009. The redacted documents shall be designated “Protected Documents” per the court’s Protective Order (Doc. Nos. 139, 159). SO ORDERED.
Dated at Bridgeport, Connecticut, this 24th day of July, 2009.
/s/ Janet C. Hall Janet C. Hall United States District Judge
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 Case 3:07-cv-01074-JCH Document 82 Filed 09/22/08 Page 1 of 56

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

RASHAD AHMAD REFAAT EL BADRAWI
Plaintiff v.
DEPARTMENT OF HOMELAND SECURITY, ET AL
Defendants

:

:

:

CIVIL ACTION NO.

:

3:07-CV-1074 (JCH)

:

:

:

SEPTEMBER 22, 2008

:

RULING RE: DEFENDANTS’ MOTIONS TO DISMISS OR FOR SUMMARY JUDGMENT [Doc. Nos. 19, 22, 25, 35, 36] AND PLAINTIFF’S MOTIONS TO CONTINUE OR DENY DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT [Doc.
Nos. 44, 46]

Plaintiff Rashad Ahmad Refaat El Badrawi brings this action against a variety of

federal and state defendants for actions surrounding his arrest and detention on

suspected immigration violations. In brief, El Badrawi claims that agents of the U.S.

Immigration and Customs Enforcement (“ICE”) arrested him in October 2004, even

though he was in a lawful immigration status. Following his arrest, El Badrawi was

incarcerated in a state corrections center, where he claims that he was denied the

ability to practice his religion and denied access to adequate medical care. Frustrated

by his conditions, El Badrawi ultimately agreed to voluntarily depart the United States

immediately. Even then, however, El Badrawi claims that, in order to continue

investigating him, federal officials did not remove him and delayed his release. El

Badrawi was finally allowed to leave the United States on December 22, 2004, more

than forty days after he had agreed to voluntary departure.

In this civil action, El Badrawi chiefly seeks monetary damages to compensate

him. He also seeks to force several federal agencies to expunge various records that

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they maintain against him. El Badrawi asserts a number of theories of relief, many of which raise rather complex questions related to federal jurisdiction, principles of immunity, and immigration law.
The state defendant has filed a Motion to Dismiss. See Doc. No. 19. The federal defendants have all filed Motions to Dismiss or for Summary Judgment. See Doc. Nos. 22, 25, 35, 36. For the reasons that follow, the state defendant’s Motion to Dismiss is GRANTED IN PART AND DENIED IN PART. The individual federal defendants’ Motion to Dismiss is GRANTED, and their Motion for Summary Judgment is DENIED AS MOOT. The other federal defendants’ Motion to Dismiss is GRANTED IN PART AND DENIED IN PART, and their Motion for Summary Judgment is DENIED IN PART AND DENIED AS MOOT IN PART. I. BACKGROUND
Because all defendants have filed Motions to Dismiss, the court describes the facts as set out in El Badrawi’s Complaint, drawing all factual inferences in his favor.1 See Yung v. Lee, 432 F.3d 142, 146 (2d Cir. 2005).
El Badrawi is a foreign national. In 1993, he first entered the United States on a nonimmigrant student visa, which allowed him to pursue and obtain a master’s degree in pharmacology at Northeastern University. Then, in 1999, El Badrawi petitioned the government for an H1-B visa so that he could pursue employment in the biotechnology industry in the United States. That petition was granted. As time went on, El Badrawi periodically renewed his H1-B visa as necessary, departing and reentering the country
1 As noted above, the federal defendants have also filed Motions for Sum m ary Judgm ent. The court will deal with those Motions separately, at the end of this opinion.
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as called for by the relevant regulations. On April 4, 2003, the Department of Homeland Security (“DHS”) granted yet
another of El Badrawi’s petitions for an H1-B visa. This time, El Badrawi’s sponsor was the University of Connecticut Health Center (“UCONN”). On May 26, 2003, the federal government gave El Badrawi an H1-B visa authorizing him to enter the United States to be employed at UCONN. El Badrawi presented himself at the border, where he was granted authorization to lawfully enter the country. He then began working at UCONN as a research associate. Among other things, El Badrawi worked on a project that was developing computational software to model cell biology.
Several months after El Badrawi started work at UCONN, the Department of State (“DOS”) decided to revoke El Badrawi’s visa. When it did so, DOS did not provide notice to either El Badrawi, or to his employer. Additionally, the Certificate of Revocation stated that the revocation would only become effective upon El Badrawi’s departure from the United States. From the date of the Certificate’s issuance, through the date of El Badrawi’s arrest, El Badrawi remained physically present in the United States.
When El Badrawi first entered the country using his UCONN-sponsored, H1-B visa, the government only authorized him to remain in the United States through May 1, 2004.2 Accordingly, on March 31, 2004, UCONN filed a timely application for Extension of Stay. UCONN also paid the required fees to ensure premium processing of the
2 Although this fact does not appear in El Badrawi’s Com plaint, all parties agree that it is true. See
Individual Federal Defendants’ 56(a)(1) Stat. at ¶ 4; El Badrawi’s Individual Federal Defendants 56(a)(2) Stat. at ¶ 4. Because this fact has an im portant bearing on the federal defendants’ Motion to Dism iss for
Lack of Subject Matter Jurisdiction, the court discusses this fact in connection with the Motion to Dism iss.
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application. Notwithstanding the fact that UCONN had paid for premium processing, which
should have resulted in a decision within 15 days, see 8 C.F.R. § 103.2(f)(1) (2004), DHS did not act on the extension application at all. The May 1, 2004 date came and went without DHS action either granting or denying El Badrawi’s application. El Badrawi made multiple inquiries with DHS about the status of his application. All of these inquiries failed to prompt the agency into action.
Under El Badrawi’s interpretation of the immigration regulations, he was not immediately required to leave the country because of DHS’s shortcomings. Instead, El Badrawi believed that UCONN’s timely extension application provided him the legal authority to remain in the country for 240 days, or until he received a decision on the application, whichever came first. See 8 C.F.R. § 274a.12(b)(20) (2004). Accordingly, El Badrawi continued working for UCONN, and he continued to reside at his apartment in Hartford, Connecticut.
Defendant Michael Loser is a Senior Special Agent who works for ICE. As part of operation FRONTLINE, an ICE program initiated in the runup to the 2004 election and designed to arrest and detain certain immigration violators deemed to be national security threats, Loser began investigating El Badrawi. During the course of that investigation, Loser learned that El Badrawi’s extension application had been timely filed and was then pending. Nonetheless, on October 28, 2004, Loser signed an ICE form I-213, which alleged that El Badrawi was unlawfully present in the United States because he had overstayed his H1-B authorization.
A second ICE official, Resident Agent in Charge Gregory Manack, was also 4

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involved with the investigation. Manack also knew (or reasonably should have known) about El Badrawi’s pending extension application. Despite this, on October 28, 2004, Manack signed a warrant for El Badrawi’s arrest, and he also signed a Notice to Appear (“NTA”) in which he alleged that El Badrawi was eligible to be removed from the country because he had overstayed his H1-B authorization. Additionally, on this same day, Manack signed an I-286 form, stating that after El Badrawi was arrested, he was to be detained without bond in ICE custody.
The next day, without any warning from ICE, Loser and two other ICE agents arrested El Badrawi at 8 p.m. in the parking lot of his residence. The agents then transported the handcuffed El Badrawi to an ICE facility in Hartford, where he was interrogated by Loser and served with the NTA.
Later that night, ICE transported El Badrawi to the Hartford Correctional Center (“HCC”), a prison facility operated by the State of Connecticut. El Badrawi was stripsearched upon entering the facility and then placed in the general population of convicted criminals and criminal pre-trial detainees. This was the first time he had ever been incarcerated, and he alleges that the conditions he experienced were “traumatic, punitive, and excessively harsh.” Compl. at ¶ 64.
Some of El Badrawi’s difficulty stemmed from the fact that he has Crohn’s disease, a condition that causes inflammation of the gastrointestinal tract and which can result in severe pain if left untreated. At the time of his arrest, El Badrawi took daily medication for his condition. Although ICE agents took his medication from his residence, the medicine was not transported to HCC. Despite his repeated requests to prison officials, El Badrawi was not given access to medication for seven days.
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While incarcerated, El Badrawi also found it difficult to observe his religion in the manner he saw fit. El Badrawi is a practicing Muslim, and his arrest happened to fall in the middle of the Holy Month of Ramadan. During Ramadan, observant Muslims are required to fast between sunrise and sunset. Accordingly, shortly after El Badrawi arrived at HCC, he asked prison officials if he could take his meals on a schedule that allowed him to fast at the prescribed times. The officials repeatedly refused, telling him that because he had arrived in the middle of Ramadan, he could not be added to the list of detainees permitted to eat on the separate meal schedule. El Badrawi was unable to observe Ramadan for the first week of his incarceration. During the second week of his incarceration, El Badrawi was only able to fast because fellow inmates took pity on him and snuck him small amounts of food, to be consumed during non-meal periods.
While all these in-prison difficulties were going on, El Badrawi was simultaneously working to try to secure his release. On November 3, 2004, he appeared before an immigration judge (“IJ”) in Hartford. The IJ asked El Badrawi a number of questions suggesting that the government had national-security-related concerns about El Badrawi’s presence in the country. Counsel for ICE then claimed that El Badrawi was not legally in the country, in light of both the October 2003 revocation of his visa, and the May 1, 2004 expiration of his H1-B authorization. Although El-Badrawi contested ICE’s legal argument and explained his belief that he was entitled to a 240 day extension, ICE did not relent from its prosecution. It also continued to detain El Badrawi without bond.
El Badrawi again appeared before an IJ on November 10, 2004. At this 6

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proceeding, El Badrawi agreed to accept a “deal” in which he was granted voluntary departure from the country. Accordingly, the IJ ordered El Badrawi to depart the country under DHS safeguards. El Badrawi maintains that he agreed to this deal only because he had been subjected to traumatic confinement conditions, because he had been falsely linked to national security concerns, and because he had not yet been fully informed about his lawful immigration status. Compl. at ¶ 107.
At the November 10 hearing, the DHS prosecutor told El Badrawi that he would be able to leave the country within six days.3 This promise was not fulfilled. Instead, El Badrawi remained at HCC for 42 days after agreeing to voluntary departure. During that entire time, El Badrawi’s passport and other documents were in order, and (through his attorney) he repeatedly asked ICE to expedite his removal. He even went so far as to offer to pay for a plane ticket on the earliest available flight to either of the two countries where he holds citizenship. Despite these requests, ICE officials (including Manack and Loser) refused to release El Badrawi. In refusing to do so, they offered no justification for the delay. El Badrawi alleges that the United States detained him without any immigration law purpose and without any evidence that he posed a danger to anyone or was a flight risk.
On December 22, 2004, El Badrawi was finally placed on a flight out of the country. Although El Badrawi is no longer in the United States, he continues to have ongoing concerns about the electronic records that various federal agencies are maintaining about him. In particular, he alleges that the Treasury Enforcement Control
3 The IJ’s voluntary departure order, however, gave the governm ent up to 30 days to effect rem oval.
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System (“TECS”), a database maintained by DHS, and the National Crime Information Center (“NCIC”), a database maintained by the FBI, contain inaccurate information about his arrest and detention, as well as inaccurate results from ICE’s investigation.
On July 13, 2007, El Badrawi filed the instant action. The named defendants are as follows: Charles Lee, the Warden at HCC, who is sued in his personal and official capacities; Manack and Loser, who are both sued in their personal capacities only; Robert Mueller, Director of the FBI, sued in his official capacity; Michael Chertoff, the Secretary of DHS, sued in his official capacity; the FBI; DHS; and the United States.
In his Complaint, El Badrawi asserts a number of claims. These claims are: (1) a Section 1983 claim against Warden Lee, claiming that El Badrawi was denied his constitutional right to free exercise of religion; (2) a Section 1983 claim against Lee, asserting that he abridged El Badrawi’s due process rights by denying him his medication;4 (3) a claim under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc, et seq., asserted against Warden Lee in his official capacity; (4) a Bivens claim against Manack and Loser, asserting that El Badrawi was arrested and detained in violation of his Fourth and Fifth Amendment rights; (5) a Bivens claim against Manack and Loser, contending that the defendants violated El Badrawi’s Fourth and Fifth Amendment rights by delaying his voluntary departure; (6) a claim against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671, asserting causes of action for false arrest/false imprisonment, malicious
4 El Badrawi brought a sim ilar, Bivens claim against Loser, but he has since abandoned this claim . See Plaintiff’s Mem . in Opposition to Motion to Dism iss or For Sum m ary Judgm ent of Defendants Manack and Loser (“Plaintiff’s Opp. to Manack and Loser Motions”) at 8 n.4.
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prosecution, vexatious suit, intentional infliction of emotional distress, and abuse of process; (7) a common law claim against the FBI and DHS seeking the expungement of information in the NCIC and TECS databases; and (8) a claim against the FBI under the NCIC statute, 28 U.S.C. § 534, seeking expungement of information in the NCIC database. II. CLAIMS AGAINST THE STATE DEFENDANT
In his Motion to Dismiss, Warden Lee advances several arguments to dismiss each of the claims against him. The court will take these up in turn, recognizing that it must accept all factual allegations in the Complaint as true. ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). Dismissal is only warranted if the facts as alleged are insufficient to “raise a right to relief above the speculative level.” Id. The plaintiff is required to provide sufficient factual amplification such that his claims are plausible. Boykin v. KeyCorp, 521 F.3d 202, 213 (2d Cir. 2008).
A. Free Exercise Claim In his free exercise claim, El Badrawi asserts that Warden Lee deprived him of his First Amendment rights by preventing him from obtaining meals on a schedule consistent with his observance of Ramadan.5 As El Badrawi correctly notes, prison officials run afoul of the First Amendment’s Free Exercise Clause when they impose substantial burdens on a plaintiff’s sincerely-held religious beliefs, for reasons not reasonably related to legitimate penological interests. See Ford v. McGinnis, 352 F.3d
5 In his opposition to the Motion to Dism iss, El Badrawi has clarified that this claim only seeks a m onetary award against W arden Lee in his personal capacity. See Plaintiff’s Mem . in Opposition to the State Defendant’s Motion to Dismiss at 15 n.4 (“Plaintiff’s Opp. to Lee Motion”). Plaintiff expressly disclaim s that he is seeking injunctive relief or damages from Lee in his official capacity. Id.
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582, 588-95 (2d Cir. 2003). The Second Circuit has regularly held that failure to accommodate a prisoner’s dietary restrictions will constitute a free exercise violation. See id. at 597 (holding that it is clearly established law that “a prisoner has a right to a diet consistent with his or her religious scruples,” so long as the defendant has not advanced a legitimate penological justification for withholding this diet); McEachin v. McGuinnis, 357 F.3d 197, 201 (2d Cir. 2004); Bass v. Coughlin, 976 F.2d 98, 99 (2d Cir. 1992) (per curiam).6
In response, Lee contends that insufficient facts have been pled to establish that he is responsible for El Badrawi’s inability to obtain meals on a Ramadan-consistent schedule. Citing matters outside the pleadings,7 Lee points out that prison policy required new inmates to be put on the prison’s Ramadan list “as soon as possible” following the facility orientation process. Lee argues that he cannot be held liable, under Section 1983, for any mistakes made by subordinate corrections officers in implementing this policy.
Generally, “[a] supervisor may not be held liable under section 1983 merely because his subordinate committed a constitutional tort.” Poe v. Leonard, 282 F.3d 123, 140 (2d Cir. 2002) (citing Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir. 1999)). However, a supervisor may be found to be liable for a subordinate’s actions when he
6 Although Lee fleetingly invokes the doctrine of qualified im m unity, see Mem . in Support of State Defendant’s Motion to Dismiss at 9 n.4, the above-cited cases make clear that the relevant law is clearly established. Indeed, Lee has not argued that legitim ate prison interests were served by preventing El Badrawi from being on the Ram adan list. Lee only argues that prison policy in fact perm itted El Badrawi to join the Ram adan list, which policy was apparently applied incorrectly by the corrections officers.
7 Lee acknowledges that the prison rules are outside of the pleadings, but he contends that the court can take judicial notice of these rules. Because it does not affect the outcom e of the Motion to Dism iss, the court will assum e that Lee is correct.
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(1) directly participated in the action; (2) failed to remedy the wrong after learning of the violation through a report or appeal; (3) “created a policy or custom under which unconstitutional practices occurred, or allowed such a policy or custom to continue;” or (4) “was grossly negligent in managing subordinates who caused the unlawful condition or event.” Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986).
In his Complaint, El Badrawi alleges that Warden Lee “failed to train and supervise prison officials to follow policies requiring prisoners [be given] the right to freely exercise their religion, and tolerat[ed] their violations of these policies.” Compl. ¶ 94. If true, this allegation would plainly suffice to establish Lee’s liability under Section 1983. Accordingly, the only question is whether El Badrawi has pled sufficient facts to make this allegation “plausible.” See Boykin, 521 F.3d at 213.
In the court’s view, the plaintiff has pled sufficient facts to make the allegation plausible. El Badrawi alleges that multiple prison officials repeatedly told him that he could not be added to the Ramadan list mid-month. Compl. ¶¶ 80-81. While these officials may have been incorrect in their application of prison policies, the fact that multiple officials disobeyed, or misunderstood, prison regulations certainly makes it plausible that Warden Lee failed to appropriately train and/or supervise his staff to ensure that they accommodated Ramadan observances.8 Moreover, while defendant points out that El Badrawi does not name these prison officials, or indicate their ranks and positions, there is no reason why he is required to do so at the pleading stage. His
8 Relatedly, W arden Lee briefly argues that he is entitled to qualified im m unity because a reasonable supervisor would not have known about the erroneous statements made by the anonym ous prison officials. Mem . in Support of State Defendant’s Motion to Dism iss at 9 n.4. This m isses the point. W hether or not Lee actually knew about the specific statem ents, plaintiff has plausibly alleged that Lee failed to properly train or supervise his subordinates. This is sufficient to survive a Motion to Dism iss.
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task is to make his allegations about Warden Lee rise above the “speculative level,” ATSI Commc’ns, 493 F.3d at 98. He has done so.
B. Medical Treatment Claim In his other personal capacity claim against Warden Lee, El Badrawi asserts that he was denied medication for his Crohn’s disease, in violation of his Fourteenth Amendment due process rights.9 In response, Lee suggests that the conduct alleged, while perhaps showing improper medical care, does not rise to the level of a constitutional violation. Lee also suggests that insufficient facts have been pled to show that he is personally liable under Section 1983. When the State incarcerates an individual pending further proceedings, the Due Process Clause requires that the State provide a certain level of medical care. See Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244-45 (1983). In the pretrial context, the State’s obligations are at least as great as its Eighth Amendment obligations to care for convicted prisoners. Id.; see also Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996). A claim can survive if the plaintiff shows that prison officials were deliberately indifferent to his serious medical condition. Liscio v. Warren, 901 F.2d 274, 276 (2d Cir. 1990). Moreover, in the pretrial context, the Second Circuit has applied an objective test for deliberate indifference that simply asks whether a defendant was on notice of a serious condition, and then failed to act in response. See id. at 276-77. There can be no real dispute that Crohn’s disease, which causes severe pain
9 The court understands this claim to be one for damages only against Lee in his personal capacity. A Section 1983 claim for damages against Lee in his official capacity would be barred by sovereign im m unity, see Kentucky v. Graham, 473 U.S. 159, 165-67 (1985), and would also be barred because official capacity state defendants are not “persons” within the meaning of Section 1983, see W ill v. Mich. Dept. of State Police, 491 U.S. 58, 71 (1989).
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when left untreated, constitutes a serious medical condition. Cf., e.g., Bock v. Wright, 315 F.3d 158, 163 (2d Cir. 2003) (plaintiff’s substantial facial pain constituted a serious medical condition). Additionally, it is plain that plaintiff has alleged sufficient facts to show that various jail officials were deliberately indifferent. Indeed, he alleges that he made repeated requests to prison officials for his prescribed medication for Crohn’s disease, and that these requests were denied. See Weyant, 101 F.3d at 857 (finding that an official was deliberately indifferent after he was informed of the plaintiff’s condition, and then failed to act accordingly).
Lee argues that insufficient facts have been pled to plausibly demonstrate that he is personally liable for El Badrawi’s lack of proper health care. Lee notes that, as the prison warden, it is implausible that he would personally have been on notice of El Badrawi’s condition.10
As discussed above, however, a state official can be liable under Section 1983 for gross negligence in supervision, and for the creation or failure to rectify an unconstitutional policy or custom. In his Complaint, El Badrawi alleges that Warden Lee “fail[ed] to train and supervise prison officials to follow policies requiring prisoners’ access to medication, and by tolerating their violations of these policies, which denied . . . El Badrawi access to medication for his Crohn’s disease for seven days.” Compl.
10 Even though this is a Motion to Dism iss, Lee asks the court to take judicial notice of factual findings from another case. This request is improper. Although a court may take judicial notice of public records such as judicial decisions, it m ay only take notice of the existence of statem ents contained in the records, as distinguished from the truth of those statem ents. See Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007).
Lee also asks the court to rely upon medical records that show El Badrawi received adequate treatm ent. This is also improper on a Motion to Dismiss, which must be adjudicated by accepting all allegations in the Com plaint as true. See Goldstein v. Pataki, 516 F.3d 50, 57 (2d Cir. 2008); see also Roth, 489 F.3d at 509 (discussing the narrow circum stances, inapplicable here, in which a court m ay refer to m atters outside the pleadings in deciding a Motion to Dism iss).
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¶ 76. This allegation, if true, would be sufficient to impose supervisory liability. The allegation rises above the speculative level in light of El Badrawi’s other allegation that multiple prison officials denied his repeated requests for his medication. Because multiple officials engaged in this behavior repeatedly, it is at least plausible that HCC has a widespread problem in how it administers medical care, attributable to problems in supervision, such that either a custom or policy or failure to train allowed this constitutional violation to occur, or the supervision problems were the result of gross negligence.
C. RLUIPA Claim As his final claim against Warden Lee, El Badrawi contends that Lee is liable under RLUIPA for his failure to accommodate El Badrawi’s observance of Ramadan. This is a claim for money damages only, and plaintiff has brought this claim against Lee in his official capacity only. As a result, El Badrawi’s lawsuit is equivalent to suing the State of Connecticut directly. Unless El Badrawi can show that the State has waived its immunity from suit, the claim will be barred by the Eleventh Amendment. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 (1985); Kentucky v. Graham, 473 U.S. 159, 165-67 (1985). El Badrawi argues that sovereign immunity does not apply because RLUIPA expressly abrogates the State’s immunity from suit. He points to language in RLUIPA authorizing plaintiffs to “obtain appropriate relief against a government” if they prove RLUIPA violations, 42 U.S.C. § 2000cc-2(a), and he contends that this language is sufficiently clear to overcome the State’s immunity claims. The State asserts that RLUIPA authorizes suits for injunctive and declaratory relief, but does not authorize
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suits for damages. The issue presented by the parties is a difficult one that has split the circuits.
The Eleventh Circuit has held that RLUIPA does authorize suits for money damages against the State. See Smith v. Allen, 502 F.3d 1255, 1271 (11th Cir. 2007). The Fourth Circuit has reached the opposite conclusion, see Madison v. Virginia, 474 F.3d 118, 131-33 (4th Cir. 2006), and the D.C. Circuit has held that similar language in the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb-2(1), does not constitute a valid waiver of sovereign immunity, see Webman v. Federal Bureau of Prisons, 441 F.3d 1022, 1025-26 (D.C. Cir. 2006). District courts are split as well. See Sisney v. Reisch, 533 F. Supp. 2d 952, 966-71 (D.S.D. 2008) (collecting cases). The Second Circuit has yet to address the issue. Lee urges this court to follow the reasoning of the Fourth and D.C. Circuits, while El Badrawi presses the Eleventh Circuit’s view.
The Supreme Court has held that Congress may only abrogate the states’ sovereign immunity “by making its intention unmistakably clear in the language of the statute.” Atascadero, 473 U.S. at 242; see also Lane v. Pena, 518 U.S. 187, 192 (1996); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984) (requiring an “unequivocal expression” of congressional abrogation). This high bar reflects the importance of the Eleventh Amendment in policing the proper boundaries between federal and state authority. See Atascadero, 473 U.S. at 242. Additionally, because
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RLUIPA was enacted under the Spending Clause,11 courts must be vigilant to ensure that Congress has unambiguously spelled out the conditions that attach to the receipt of federal funds. See Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 295-96 (2006).
In concluding that the phrase “appropriate relief” encompassed an award of money damages, the Eleventh Circuit reasoned that, “where Congress ha[s] not given any guidance or clear indication of its purpose with respect to remedies, federal courts should presume the availability of all appropriate remedies.” Smith, 502 F.3d at 1270 (citing Franklin v. Gwinnett County Public Sch., 503 U.S. 60, 68-69 (1992)). This reasoning is unpersuasive because the court failed to account for the special, clear statement rules that apply when the federal government seeks to abrogate state sovereign immunity. Indeed, the case relied upon by the Eleventh Circuit, Franklin v. Gwinnett County Public Schools, involved a municipal defendant rather than a state defendant. See Franklin, 503 U.S. at 63. Thus, unlike the case at hand, Franklin did not present any concerns about state sovereign immunity. See Northern Ins. Co. v. Chatham County, 547 U.S. 189, 193-94 (2005) (holding that a municipality’s status as a county was insufficient to qualify it for state sovereign immunity); Jinks v. Richland County, 538 U.S. 456, 466-67 (2003) (declining to require an “unmistakably clear” statement by Congress before holding a municipality liable for damages under a federal statute). Indeed, even at the time Franklin was decided, it was clear that municipalities
11 RLUIPA prim arily applies only to those states that accept federal funding for their prisons. See 42 U.S.C. § 2000cc-1(b)(1). The Com plaint alleges that El Badrawi was detained through a program at
HCC that receives federal financial assistance. See Compl. ¶ 88. 16

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generally could not assert sovereign immunity in the same manner as states. See Owen v. City of Independence, 445 U.S. 622, 638 (1980); Lake County Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 400-401 (1979); Lincoln County v. Lunning, 133 U.S. 529, 530 (1890).
The Fourth Circuit’s analysis did not discuss Gwinnett. Instead it relied heavily on United States v. Nordic Village, Inc., 503 U.S. 30 (1992), a case concerning Section 106(c) of the Bankruptcy Code. At the time Nordic Village was decided, that section provided that “notwithstanding any assertion of sovereign immunity . . . (1) a provision of [the bankruptcy code that contains the terms ‘creditor,’ ‘entity,’ or ‘governmental unit’] applies to governmental units; and (2) a determination by the [bankruptcy] court of an issue arising under such a provision binds governmental units.” Nordic Village, 503 U.S. at 32 (citing 11 U.S.C. § 106 (1988)). The Supreme Court held that this was insufficient to constitute a waiver of the federal government’s sovereign immunity in claims for monetary relief.12 In the Court’s view, the relevant language could be interpreted such that it only waived immunity as to suits for declaratory and injunctive relief: the first numbered line could be read to identify the kind of disputes that could be adjudicated against the government, while the second line indicated the manner in which that adjudication was to be applied. Id. at 35. That manner was simply to make
12 Although Nordic Village involved an assertion of im m unity by the federal governm ent, rather than by a state, the sam e, clear statem ent rule applies in both contexts. See Nordic Village, 503 U.S. at 33-34 (explaining that a statute must “unequivocally” waive the federal governm ent’s sovereign im m unity to be effective). Indeed, the Court in Nordic Village adopted the reasoning of the plurality opinion in Hoffm an v. Connecticut Departm ent of Income Maintenance, 492 U.S. 96 (1989), which had concluded that the same provision of the Bankruptcy Code was an insufficiently clear statement to waive a state’s im m unity from suit. See Nordic Village, 503 U.S. at 33 (citing Hoffm an, 492 U.S. at 102 (plurality opinion)).
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a “determination” of the disputed issue, i.e. to issue injunctive or declaratory relief. Id. The Court also identified another possible interpretation of Section 106(c) that precluded monetary relief in the instant suit. See id. at 36-37. Ultimately, the court concluded that the existence of these plausible alternatives meant that “a reading imposing monetary liability on the Government is not ‘unambiguous’ and therefore should not be adopted.” Id. at 37.
Following Nordic Village, the Fourth Circuit concluded that the phrase “appropriate relief” in RLUIPA was susceptible to more than one interpretation. Madison, 474 F.3d at 131-32. Thus, because it could plausibly be interpreted to both include and exclude monetary relief, under Nordic Village the language was not an unambiguously clear waiver of sovereign immunity.
This court agrees with the Fourth Circuit that Nordic Village provides the appropriate framework for the case. Yet the Fourth Circuit’s analysis is also not wholly satisfying because the Madison court neglected to discuss another provision of RLUIPA, 42 U.S.C. § 2000cc-2(f), which could bear on the issue. That subsection allows the United States to “bring an action for injunctive or declaratory relief to enforce compliance with this Act.” This prompts an important question: if the phrase “appropriate relief” in subsection (a) refers only to injunctive or declaratory relief, why does subsection (f) expressly specify that the federal government may sue for “injunctive and declaratory relief?” Why does it not instead say that the federal government can sue for “appropriate relief” if that same phrase in subsection (a) means “injunctive and declaratory relief?” This difference in terms suggests that the phrase
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“appropriate relief” encompasses more than mere injunctive or declaratory relief.13
If the court were interpreting RLUIPA outside of the sovereign immunity context,
it would easily conclude that the phrase “appropriate relief” encompassed an award of
damages. Even if that interpretation of RLUIPA is the “best” one, however, the court
must acknowledge that other interpretations of the phrase remain plausible. See
Webman, 441 F.3d at 1027 (Tatel, J., concurring) (noting that because religious
deprivations are usually ongoing, an award of injunctive or declaratory relief will usually
be “appropriate” to remedy the violation); cf. Shea v. County of Rockland, 810 F.2d 27,
29 (2d Cir. 1987) (holding that the phrase “other appropriate relief” in 28 U.S.C. § 1875,
when read in context, did not encompass an award of damages). That is sufficient for
the court to conclude that RLUIPA lacks an “unmistakably clear” waiver of sovereign immunity.14
Furthermore, RLUIPA’s history confirms that there is more than one plausible
interpretation of the statute. After the Supreme Court decided Employment Division v.
Smith, 494 U.S. 872 (1990), Congress responded by enacting RFRA in the hopes of
13 Unlike RLUIPA, RFRA does not contain a provision authorizing the United States to sue for “injunctive and declaratory relief.” See 42 U.S.C. § 2000bb-1. Accordingly, the D.C. Circuit’s opinion in W ebman had no occasion to grapple with that issue.
14 This conclusion is further supported by another provision of RLUIPA. Section 2000cc-2(e) of Title 42, United States Code, makes clear that nothing in RLUIPA “shall be construed to amend or repeal” the Prison Litigation Reform Act (PLRA). The PLRA in turn prohibits prisoners from maintaining a civil action for damages “for mental or emotional injury suffered while in custody without a prior showing of physical injury.” Id. § 1997e(e). Because religious deprivations will usually cause only m ental and em otional injury, without attendant physical injury, the PLRA would presumably prohibit prisoners from recovering monetary damages for religious deprivations. Cf. Thompson v. Carter, 284 F.3d 411, 417-18 (2d Cir. 2002) (holding that the PLRA bars prisoners from recovering purely mental and emotional damages even when litigating constitutional claims). The fact that RLUIPA did not intend to upset this provision of the PLRA provides som e further support for the idea that RLUIPA was not meant to extend to claims for money damages.
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restoring the pre-Smith level of religious protection. See City of Boerne v. Flores, 521 U.S. 507, 512-15 (1996). Then, when the Supreme Court concluded that RFRA was unconstitutional as applied to states, see id. at 536, Congress reenacted a narrower version of the statute as RLUIPA. See Cutter v. Wilkinson, 544 U.S. 709, 715 (2005). Importantly, in the pre-Employment Division v. Smith regime, sovereign immunity would have barred monetary recovery for religious deprivations by states. See Webman, 441 F.3d at 1028 (Tatel, J., concurring). Accordingly, because RLUIPA was designed to restore the pre-Employment Division v. Smith regime, it is reasonable to read RLUIPA’s remedial provisions as intended to parrot the individual remedies available before Smith was decided. See id.
In his Memorandum, El Badrawi has requested leave to replead his RLUIPA claim in the event the court concludes that RLUIPA does not abrogate state sovereign immunity. El Badrawi asks that he be permitted to sue Warden Lee in his individual capacity, rather than in his official capacity. See Plaintiff’s Opp. to Lee Motion at 20 n.7. The court GRANTS that request. El Badrawi has 21 days after entry of this Ruling to file an Amended Complaint. III. CLAIMS AGAINST MANACK AND LOSER
Under Bivens v. Six Unknown Named Agents of the FBI, 403 U.S. 388 (1971), El Badrawi brings several related claims for damages against defendants Manack and Loser. First, El Badrawi contends that when Manack and Loser initially arrested and detained him without probable cause, they violated his Fourth Amendment right to be free from unreasonable seizure and his Fifth Amendment Right to due process.
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Second, El Badrawi contends that his prolonged detention after he agreed to voluntary departure, unjustified by any proper immigration purpose, violated his Fourth and Fifth Amendment rights. Manack and Loser argue that a Bivens remedy is not available in this context. The court agrees.
As the Supreme Court has recently explained, a litigant is not automatically entitled to bring a Bivens claim against a federal officer “no matter what other means there may be to vindicate a protected interest.” Wilkie v. Robbins, 127 S. Ct. 2588, 2597 (2007); see also Benzman v. Whitman, 523 F.3d 119, 125 (2d Cir. 2008) (“A Bivens action is a blunt and powerful instrument for correcting constitutional violations and not an ‘automatic entitlement’ associated with every governmental infraction.”). Instead, “any freestanding damages remedy for a claimed constitutional violation has to represent a judgment about the best way to implement a constitutional guarantee.” Wilkie, 127 S. Ct. at 2597. Accordingly, under current Supreme Court jurisprudence, to determine whether a Bivens remedy is available in any given context, the court must engage in a two-step inquiry. First, the court must ask if there are alternative processes in existence that can protect the plaintiff’s constitutional rights, and which provide a “convincing reason” for the judicial branch to stay its hand. Id. at 2598. Second, even if no alternative remedies are available, a federal court must determine if there are “special factors” which should nevertheless preclude the recognition of a cause of action. Bush v. Lucas, 462 U.S. 367, 380 (1983).
Manack and Loser contend that El Badrawi’s claim is barred by the first step because the INA provides for adequate alternative remedies, and barred by the second step because the immigration and national security context of this case presents a
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“special factor” counseling hesitation. The court doubts that the INA’s remedial scheme
provides adequate remedies to foreclose a Bivens claim in this context. The court need
not resolve the issue, however, because it agrees with Manack and Loser that special factors are present in this case.15
First, this case would require the court to intrude on the executive’s authority to
make determinations relating to national security. Notably, El Badrawi specifically
alleges that he was targeted for arrest and detention pursuant to a secretive ICE
program that “targeted potential immigration violators claimed to be threats to national
security.” Compl. ¶ 41. The judiciary is always hesitant to intrude into such core
executive functions. See Lincoln v. Vigil, 508 U.S. 182, 192 (1993); Department of
Navy v. Egan, 484 U.S. 518, 530 (1988); cf. Chappell v. Wallace, 462 U.S. 296, 304
(1983) (holding that the unique structure of military discipline, and Congress’s activity in
the field of regulating military affairs, were special factors that precluded creation of a
Bivens remedy); Benzman, 523 F.3d at 126 (holding that federal disaster response and
cleanup efforts implicate the special factors needed to preclude a Bivens cause of
action). And here, imposing liability on Manack and Loser would be to second-guess
their judgment on how best to respond to a perceived national security threat.
15 In Arar v. Ashcroft, 532 F.3d 157 (2d Cir. 2008), a Second Circuit panel grappled with m any of the sam e Bivens-related issues that are presented in this case. By a 2-1 vote, the panel in Arar found that the plaintiff could not maintain a Bivens action based on constitutional violations that arose out of his removal to a foreign country. Approximately six weeks after the panel issued its decision in Arar, the full Second Circuit, acting sua sponte, elected to rehear the case en banc. Notably, the Order issued by the court did not say that the panel opinion had been vacated or withdrawn. Nor did the Order indicate which of the many issues in Arar had prom pted the en banc court’s rehearing decision. Accordingly, as of the writing of this Ruling, Arar’s precedential status within this Circuit appears som ewhat am biguous. Cf. Baker v. Jackson, 85 F.3d 919, 921 & n.2 (2d Cir. 1996) (en banc) (per curiam) (holding that when the en banc court is equally divided, the original panel opinion will lack precedential effect). Because it does not affect the outcom e of this case, the court will assume that the Arar panel opinion is to be treated as though it had been withdrawn.
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Second, this case has implications for the government’s relationship with foreign powers. This is particularly true insofar as El Badrawi challenges his detention following the IJ’s grant of voluntary departure: the executive’s decision regarding when and how to send a foreign national to a foreign country plainly implicates our country’s relationship with both the alien’s home country and any potential foreign destination. Essentially all aspects of the relationship between the federal government and its alien visitors are ones that will implicate foreign relations concerns. Mathews v. Diaz, 426 U.S. 67, 82 (1976); see also Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952) (“[A]ny policy toward aliens is vitally and intricately interwoven with contemporaneous . . . policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government.”); cf. Demore v. Kim, 538 U.S. 510, 513, 521-22 (holding that foreign relations concerns were implicated by an INA provision that mandated detention for certain aliens during removal proceedings). Because of this relationship, immigration policy is “so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.” Harisiades, 352 U.S. at 589; see also Reno v. Flores, 507 U.S. 292, 305 (1993) (explaining that the federal government’s relationship with alien visitors is so heavily entrusted to Congressional oversight that there is no other “conceivable subject [over which] the legislative power of Congress is more complete” (quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977) (internal quotation marks omitted))). Moreover, when the political branches exercise their “broad power over naturalization and immigration,” they may permissibly engage in action “that would be unacceptable if applied to citizens.” Matthews, 426 U.S. at 79-80.
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Finally, in evaluating the “special factors” aspect of the Bivens inquiry, the Second Circuit has instructed courts to account for the extent to which the Bivens claim arises in a subject area that has “‘received careful attention from Congress.’” Benzman, 523 F.3d at 126 (quoting Schweiker v. Chilicky, 487 U.S. 412, 423 (1988)). Immigration is one policy area which has received an inordinate amount of attention from Congress. See Shi Liang Lin v. United States DOJ, 494 F.3d 296, 323 (2d Cir. 2007) (en banc) (Katzmann, J., concurring in the judgment) (“[I]mmigration. . . ha[s] consistently been on Congress’s radar. Immigration is frequently in the news, and Congress has repeatedly legislated in this area.”); Mahmoud v. Gonzales, 485 F.3d 175, 177 (1st Cir. 2007) (discussing Congress’s frequent forays into immigration legislation).
To be clear, the court is not concluding that the immigration context alone constitutes a sufficient reason for the court to stay its hand. Instead, it is the combination of the immigration context and the national security concerns motivating El Badrawi’s arrest and subsequent detention that drives the court’s conclusion that, under controlling precedent, “special factors” preclude a Bivens remedy. Because of this conclusion, the court must GRANT Manack and Loser’s Motion to Dismiss. IV. FTCA CLAIMS AGAINST THE UNITED STATES
The FTCA creates liability for the federal government when federal employees, acting within the scope of their employment, commit acts that would be actionable under state tort law if committed by a private party. See 28 U.S.C. §§ 1346(b)(1), 2674. Under the FTCA, El Badrawi brings four categories of claims against the United States:
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(1) a claim for false arrest/false imprisonment;16 (2) a claim for malicious prosecution and vexatious suit; (3) a claim for abuse of process; and (4) a claim for intentional infliction of emotional distress.
Analytically, it is helpful to sort out the specific government conduct for which each of these claims seeks compensation. As the court reads the Complaint, these FTCA claims cover somewhat overlapping conduct during El Badrawi’s interactions with DHS. The false arrest/false imprisonment claim is based on El Badrawi’s arrest and initial detention pending an appearance in immigration court. The malicious prosecution and vexatious suit claim is based on the fact that Manack and Loser served El Badrawi with an NTA, formally placing him in removal proceedings. The abuse of process claim appears to be based on multiple actions: El Badrawi’s arrest and initial detention, his receipt of the NTA, and his subsequent detention after entry of the voluntary departure order. Finally, the intentional infliction of emotional distress claim appears to arise out of El Badrawi’s arrest and initial detention, as well as his subsequent detention following the grant of voluntary departure.
A. Jurisdictional Issues The government begins by pressing its contention that all of these claims are barred by several jurisdictional provisions in the INA: 8 U.S.C. §§ 1226(e), 1252(a)(2)(B)(ii), 1252(b)(9), 1252(g). The court takes up each jurisdictional provision in turn.
16 Connecticut treats the torts of false arrest and false im prisonm ent identically. See Green v. Donroe, 186 Conn. 265, 267 (1982); Outlaw v. City of Meriden, 43 Conn. App. 387, 392 (Conn. App. Ct. 1996).
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1. 8 U.S.C. § 1252(g) The government first contends that El Badrawi’s FTCA claims are barred by Section 1252(g). This section states:
Except as provided in [section 1252] and notwithstanding any other provision of law (statutory or non-statutory), including [28 U.S.C. § 2241] or any other habeas corpus provision, and [28 U.S.C. §§ 1361 and 1651], no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act. The government argues that this section precludes El Badrawi’s claims because he is simply objecting to the government’s decision to “commence proceedings” and “execute removal orders” against him under the INA. To the extent that El Badrawi presses claims for malicious prosecution and vexatious suit, and abuse of process insofar as the process “abused” was the issuance of the NTA, the government is correct in its invocation of this jurisdictional bar. El Badrawi’s claims for malicious prosecution and vexatious suit, by their very nature, seek to impose liability for the government’s decision to initiate legal proceedings against El Badrawi. See DeLaurentis v. City of New Haven, 220 Conn. 225, 248 (1991) (discussing claims for vexatious suit and malicious prosecution). Similarly, to the extent that El Badrawi’s claim for abuse of process seeks to impose liability for the fact that he was placed in immigration proceedings, this claim is jurisdictionally barred for the same reason. Indeed, these conclusions flow from the Supreme Court’s decision in Reno v. Am.-Arab Anti-Discrimination Comm. (“AADC”), 525 U.S. 471 (1999), which held that Section 1252(g) acted as a jurisdictional bar to a suit seeking to enjoin removal
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proceedings because of selective prosecution. Id. at 472-76, 487; see also Ali v. Mukasey, 524 F.3d 145, 150 (2d Cir. 2008) (holding that Section 1252(g) applied to a claim that DHS had improperly exercised its discretion in bringing removal proceedings against various aliens).17
El Badrawi’s remaining FTCA claims present a different question. The court will first deal with these claims to the extent they arise from his initial arrest and detention. As El Badrawi correctly observes, the Supreme Court has interpreted Section 1252(g)’s language about decisions to “commence removal proceedings” as referring to challenges to DHS’s exercise of “prosecutorial discretion.” AADC, 522 U.S. at 485 n.9. That observation is important because DHS’s decisions to arrest and detain El Badrawi were decisions that were separate and discrete from the agency’s decision to initiate removal proceedings against him. See 8 U.S.C. § 1226(a) (explaining that in most circumstances, “an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States” (emphasis added)); 8 C.F.R. § 236.1 (explaining that “[a]t the time of issuance of the notice to appear, or at any time thereafter and up to the time removal proceedings are completed, the respondent may be arrested and taken into custody” (emphasis added)). Indeed, as the Seventh Circuit has noted, an alien can successfully challenge the government’s decision to detain him without actually disrupting ongoing removal proceedings. See Parra v. Perryman, 172 F.3d 954, 957 (7th Cir. 1999). Because Section 1252(g) applies only to “three discrete
17 El Badrawi suggests that Section 1252(g) should nonetheless be interpreted not to bar his FTCA claim because to do so would be to read one statute to repeal another, which is disfavored. Plaintiff’s Mem . in Opp. to United States, et al, at 12-13. However, Section 1252(g) is clear that its bar applies “notwithstanding any other provision of law (statutory or nonstatutory).” 8 U.S.C. § 1252(g).
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actions that the Attorney General may take,” AADC, 525 U.S. at 482, and because the decision to arrest and detain an alien is “discrete” from the decision to commence removal proceedings, El Badrawi’s claims arising from his arrest and initial detention are not barred.
Relying on a Fifth Circuit case, the United States points out that these claims are “connected directly and immediately with a ‘decision or action by the Attorney General to commence proceedings,’” Foster v. Townsley, 243 F.3d 210, 214 (5th Cir. 2001) (quoting Humphries v. Various Federal USINS Employees, 164 F.3d 936, 943 (5th Cir. 1999)), and therefore barred by Section 1252(g). However, the Fifth Circuit’s analysis in Foster is not persuasive. Foster relied heavily on the Fifth Circuit’s earlier opinion in Humphries, a pre-AADC case. See Foster, 243 F.3d at 214. Although the Fifth Circuit recognized that Humphries might not be good law in light of AADC, see id. at 213 n.2, the court nonetheless concluded that its Humphries opinion stated the correct standard. Id. at 214. This court respectfully disagrees.
The court further notes that Foster is distinguishable, as that case actually involved a challenge to the execution of a deportation order, rather than a challenge to an initial arrest and detention. Accordingly, the Foster court did not have occasion to consider whether arrest and detention were sufficiently discrete from the initiation of removal proceedings.
The government also relies on the Ninth Circuit’s opinion in Sissoko v. Rocha, 509 F.3d 947 (9th Cir. 2007). Sissoko held that Section 1252(g) acted to bar a Bivens claim for false arrest. Id. at 950. However, the alien in Sissoko was placed into expedited removal proceedings, pursuant to which detention was mandatory. See id. at
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949 (citing 8 U.S.C. § 1225(b)(1)(B)(iii)(IV)). Accordingly, in Sissoko the alien’s arrest and detention necessarily flowed from the government’s decision to initiate removal proceedings. Such is not El Badrawi’s case.
The court must also consider whether it has jurisdiction over El Badrawi’s intentional infliction of emotional distress, and abuse of process claims, insofar as they are based on El Badrawi’s prolonged detention after the entry of his voluntary departure order. The United States suggests that these claims are barred by Section 1252(g) because they arise from a decision of the Attorney General to execute a removal order.
The United States is incorrect. As discussed above, AADC held that Section 1252(g) applies to only three discrete actions of the Attorney General. Notably, when El Badrawi claims that federal officials kept him detained too long instead of deporting him, he is not challenging any decision to “execute removal order[s].” Instead, he is challenging the government’s failure to execute a removal order. Cf. Thapa v. Gonzales, 460 F.3d 323, 330 (2d Cir. 2006) (holding that an INA provision that barred courts from reviewing a “denial of a request” for a voluntary departure order did not prevent courts from reviewing grants of such requests (quoting 8 U.S.C. § 1229c(f))).
Indeed, this understanding of Section 1252(g) finds further support in the Supreme Court’s opinion in Zadvydas v. Davis, 533 U.S. 678 (2001). The habeas petitioners in Zadvydas had all been ordered removed from the country by immigration judges. Although a federal statute generally required the government to effectuate such removal within 90 days, the government nonetheless elected to hold the petitioners indefinitely, irrespective of whether or not such detention appeared to be reasonably necessary. The petitioners claimed that this indefinite detention was either
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unconstitutional, or not authorized by the INA. Despite the fact that the petitioners appeared to be complaining about the government’s failure to execute the removal orders against them, the Supreme Court held that its jurisdiction to hear such claims was not barred by several INA provisions, including Section 1252(g). Zadvydas, 533 U.S. at 688. The only explanation offered specific to Section 1252(g) was a parenthetical, noting that the section was “applicable to decisions to ‘commence removal proceedings, adjudicate cases, or execute removal orders.’” Id. at 688 (quoting 8 U.S.C. § 1252(g)). By its terms, Zadvydas appears to hold that Section 1252(g) will not bar an alien from challenging the government’s failure to deport him.
Notwithstanding Zadvydas, the court recognizes that the Second Circuit’s opinion in Duamutef v. INS, 386 F.3d 172 (2d Cir. 2004), would appear to stand for the contrary proposition. In Duamutef, the plaintiff had been convicted of murder in state court and sentenced to a term of fifteen years to life imprisonment. Id. at 174. While he was serving his prison sentence, INS officials placed him in deportation proceedings, and he ultimately became subject to a final order of deportation. Id. Subsequently, Duamutef convinced state authorities to award him a form of parole that permitted him to be paroled if the INS agreed to promptly deport him. Id. at 174-75. When the INS refused to so agree, Duamutef sought a writ of mandamus compelling INS to execute the deportation order. The Second Circuit held that the action was precluded by Section 1252(g) because Duamutef was challenging the Attorney General’s refusal to execute a removal order. Id. at 180-81.18
18 Although Duam utef was decided two years after Zadyvdas, the court in Duam utef did not cite Zadvydas or consider its im pact on the case at hand.
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Despite Duamutef’s seemingly-on-point language, the court concludes that it is not at this time bound by Duamutef’s interpretation of Section 1252(g). Two years after Duamutef was decided, the Supreme Court issued its opinion in Clark v. Martinez, 543 U.S. 371 (2005). Clark held that when a court is deciding “which of two plausible statutory constructions to adopt, a court must consider the necessary consequences of its choice. If one of them would raise a multitude of constitutional problems, the other should prevail–whether or not those constitutional problems pertain to the particular litigant before the Court.” Id. at 380-81. Duamutef is inconsistent with Clark because Duamtef failed to apply the canon of constitutional avoidance in interpreting Section 1252(g), notwithstanding the fact that the Duamutef plaintiff was not actually advancing a constitutional claim.
The canon of avoidance is appropriately invoked in interpreting Section 1252(g). When there are two possible interpretations of an ambiguous statute, and one of those interpretations would raise a substantial constitutional question, the canon of constitutional avoidance requires a court to choose the statutory construction that avoids the constitutional issue. Id. at 678. Under the United States’s reading of Section 1252(g), a litigant would be unable to bring suit (through the habeas statutes or otherwise)19 to prevent the deprivation of his Due Process rights when he was being held for reasons unconnected to any legitimate immigration purpose. Such a litigant could advance a substantial question that Section 1252(g) was unconstitutional insofar as it barred his claim. See Zadvydas, 533 U.S. at 690-96 (holding that detention,
19 Several years after Zadvydas was decided, Congress amended Section 1252(g) to include language clarifying that the jurisdictional bar applied even to habeas corpus proceedings.
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unconnected with legitimate immigration concerns, raises substantial due process concerns); Rhodes-Bradford v. Keisler, 507 F.3d 77, 81-82 (2d Cir. 2007) (explaining that serious due process concerns would be raised if a statute could be read to strip courts of jurisdiction to remedy ultra vires behavior). Because Section 1252(g) is at the very least ambiguous regarding whether it applies to the government’s failure to execute a removal order, it is appropriate to conclude that the statute does not bar claims such as El Badrawi’s arising out of such inaction.
The court finally notes that the interpretations of Section 1252(g) it has advanced find further support in the statutory purposes behind that section. The Supreme Court in AADC surmised that Section 1252(g) served to prevent the “deconstruction, fragmentation, and hence prolongation of removal proceedings.” 525 U.S. at 487. El Badrawi’s suit, which seeks only money damages to be awarded after immigration proceedings have been completed, poses no such risk of prolonging removal proceedings. Moreover, to the extent that El Badrawi is complaining about the government’s failure to deport him in a timely manner, he is attempting to hasten removal proceedings, rather than prolong them.
2. 8 U.S.C. §§ 1226(e), 1252(a)(2)(B)(ii) The United States next argues that El Badrawi’s FTCA claims are barred by Sections 1226(e) and 1252(a)(2)(B)(ii) of Title 8. Insofar as the government relies on Section 1252(a)(2)(B)(ii), its argument is easily rejected with regard to the false arrest/false imprisonment claim. By its terms, this section states that “no court shall have jurisdiction to review . . . any . . . decision or action [by immigration officials] the authority for which is specified under [Title 8] to
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be in the discretion of [immigration officials], other than the granting of relief under [8 U.S.C. § 1158(a)].” 8 U.S.C. § 1252(a)(2)(B)(ii). Because ICE officials do not have discretion to violate the constitution, this provision will not bar El Badrawi’s claims based on unconstitutional conduct by these officials. See Zadvydas, 533 U.S. at 688; Demore, 538 U.S. at 517; Myers & Myers, Inc. v. United States Postal Serv., 527 F.2d 1252, 1261 (2d Cir. 1975) (“It is, of course, a tautology that a federal official cannot have discretion to behave unconstitutionally or outside the scope of his delegated authority.”). Thus, if El Badrawi can succeed in showing that federal officials acted unconstitutionally when they arrested him, his false arrest/false imprisonment claims will not be barred by this Section. And because the elements of false arrest/false imprisonment under Connecticut law are essentially the same elements needed to articulate a Fourth Amendment violation, see Walczyk v. Rio, 496 F.3d 139, 156 (2d Cir. 2007); Davis v. Rodriguez, 364 F.3d 424, 433-34 (2d Cir. 2004), there is no jurisdictional bar if El Badrawi has a valid claim on the merits.
El Badrawi’s claims for intentional infliction of emotional distress and abuse of process present a slightly more complicated issue. However, insofar as these claims arise out of El Badrawi’s arrest, these claims will survive Section 1252(a)(2)(B)(ii) if he shows that his arrest was effected unconstitutionally. That is because, as just discussed, El Badrawi will be challenging an action by INS officials that they lacked the discretion to take.
Additionally, Section 1252(a)(2)(B)(ii) is no bar to these claims insofar as El Badrawi bases them on the fact that Manack and Loser detained him after he agreed to voluntary departure. El Badrawi’s Complaint alleges that this detention was undertaken
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“without any legitimate immigration law enforcement purpose, and without evidence that he posed a danger or flight risk.” Compl. ¶ 154. As such, El Badrawi has alleged that his detention was essentially arbitrary, which is sufficient to state a due process claim. See Zadvydas, 533 U.S. at 690; Kansas v. Hendricks, 521 U.S. 346, 356-57 (1997) (explaining that arbitrary detention constitutes a substantive due process violation, although recognizing that civil detention can be constitutional when designed to further various legitimate social goals, such as protecting society from dangerous individuals). Because Manack and Loser acted unconstitutionally when they continued to detain El Badrawi, they did not have the discretion to take these actions, and Section 1252(a)(2)(B)(ii) does not block El Badrawi’s detention claim.
The government attempts to respond by suggesting that El Badrawi’s detention was constitutional because, during the 42 days after he had agreed to voluntary departure, his removal was “reasonably foreseeable.” Wang v. Ashcroft, 320 F.3d 130, 146 (2d Cir. 2003) (citing Zadvydas, 533 U.S. at 699). However, when the Supreme Court and the Second Circuit have upheld detention under such circumstances, they have done so as applied to aliens who were detained because of community safety concerns, and concerns about risk of flight. See Zadvydas, 533 U.S. at 683-86, 69092; Wang, 320 F.3d at 138. The “reasonably foreseeable” formulation is keyed off of these concerns because such concerns are constitutionally adequate to justify temporary detention pending removal, but are not constitutionally adequate to justify indefinite detention pending removal. Zadvydas, 533 U.S. 687-88.
El Badrawi’s case is distinguishable because he alleges that he was detained “without any immigration law enforcement purpose, and without evidence that [El
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Badrawi] posed a danger or flight risk.” Compl. ¶ 154. As applied to El Badrawi, it makes no sense to ask if his departure was “reasonably forseeable,” as his detention became arbitrary almost immediately after he had agreed to voluntarily depart the country.20 The government’s contrary position amounts to an argument that the government may constitutionally detain someone, for no legitimate reason whatsoever, simply because the government has given indications that the detention will end in the (near) future.21
Finally, the government suggests that El Badrawi’s detention did not violate substantive Due Process principles because his detention did not “shock[] the conscience,” as is required under County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). This court disagrees. On the facts as alleged, El Badrawi’s prolonged detention after agreeing to voluntarily depart the country, based on no legitimate reason whatsoever, certainly could be said to shock the conscience. See id. at 846-47 (equating arbitrary conduct with conscience-shocking conduct); id. at 845 (explaining that “the touchstone of due process is protection of the individual against arbitrary action of government” (quoting Wolff v. McDonnell, 418 U.S. 539, 558 (1974)) (internal quotation marks omitted)).
20 Of course, El Badrawi’s detention probably would not have been constitutionally problem atic if the government had detained him for only a period of time reasonably necessary to effectuate his voluntary departure order. But once that reasonable period passed (and such period surely was less than 42 days, at least based on the pleadings), El Badrawi’s detention became arbitrary, notwithstanding that there was still a reasonable possibility he would be released in the near future.
21 It is for this reason that the governm ent also is not aided by the presum ption, announced in Zadvydas, that the first six months of post-rem oval-order detention will be constitutionally acceptable. See Zadvydas, 533 U.S. at 701. Zadvydas’s “presum ption” is designed to determ ine when rem oval will be “reasonably forseeable,” and thus it only has m eaningful application when a plaintiff’s post-rem oval-order detention is initially justified by safety and/or flight risk concerns. Here, El Badrawi’s continued detention occurred because the governm ent required it as a condition of voluntary departure.
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In addition to invoking the jurisdictional bar in Section 1252(a)(2)(B)(ii), the government advances its argument that El Badrawi’s claims are barred by Section 1226(e). That section provides:
The Attorney General’s discretionary judgment regarding the application of [Section 1226] shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole. 8 U.S.C. § 1226(e). Through its two sentences, this statute actually contains two separate jurisdictional bars. See Parra, 172 F.3d at 957; see also Demore, 538 U.S. at 516-17 (citing with approval the Seventh Circuit’s analysis in Parra). The first sentence operates to bar “review” of various discretionary decisions related to arrest and detention. The second sentence prevents a court from “set[ting] aside” similar decisions. Insofar as the United States relies on the first part of Section 1226(e), its argument lacks merit. As discussed above, since ICE officials do not have discretion to violate the Constitution, a jurisdictional bar of this kind cannot preclude claims based on unconstitutional conduct by executive officials. The second sentence presents a more difficult question. The Supreme Court has indicated that this sentence prohibits challenges to individual level operational decisions, while still permitting challenges to the broader statutory framework. See Demore, 538 U.S. at 516-17; see also id. at 517 (concluding that this provision did not divest the court of jurisdiction to entertain a habeas petition claiming that Section 1226(c) was unconstitutional). At first glance, one might therefore think that El
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Badrawi’s FTCA claims are foreclosed: instead of bringing a broad challenge to the INA’s statutory framework, El Badrawi is simply bringing a challenge to the “operational decisions” that he was to be arrested and detained.
On closer inspection, however, it becomes clear that El Badrawi’s FTCA claims are not implicated by the second sentence of Section 1226(e). Importantly, that sentence only states that a court may not “set aside” detention decisions. El Badrawi’s FTCA claims are not seeking to “set aside” anything: his arrest and detention have been effected and completed, and his removal proceedings have finished. Instead, El Badrawi is seeking to obtain a damages award, after the fact, for actions previously taken by ICE officials.
It is of course true that, if El Badrawi succeeds in this suit, he will necessarily have demonstrated that ICE officials acted unconstitutionally in choosing to arrest and detain him. But the phrase “setting aside” a decision implies something more than simply obtaining a judgment and monetary award calling the decision into question. Instead, the phrase refers to a court actually undoing the decision through the grant of injunctive of habeas relief. Cf. Kirschner v. Klemons, 225 F.3d 227, 238 (2d Cir. 2000) (holding that Younger abstention is inappropriate in damages actions because claims for damages do not interfere with parallel state court proceedings in the same way as claims for equitable relief).
Nor can it be said that the threat of potential FTCA actions will operate to circumscribe detention decisions in the same manner that would be expected if courts could reverse detention decisions through the grant of injunctions and habeas petitions. Indeed, the Supreme Court has carefully noted all the ways in which the FTCA operates
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as a relatively poor deterrent to executive misbehavior. See Carlson v. Greene, 446 U.S. 14, 20-23 (1980).
Comparing Section 1226(e) to other INA jurisdiction-stripping provisions further confirms the court’s interpretation. Section 1252(g), for example, broadly precludes “any cause or claim” arising out of certain specified executive decisions. Had Congress intended to bar damage claims arising out of detention decisions, Congress could easily have chosen to place similarly broad language into Section 1226(e). Yet it did not do so, choosing instead to only preclude courts from “set[ting] aside” detention decisions. Faced with this narrow language, the court concludes that Section 1226(e) does not apply to FTCA claims, brought after immigration proceedings have completed, in which the plaintiff seeks money damages because ICE officials acted unconstitutionally in arresting and detaining him.
3. Section 1252(b)(9)
As a final argument that the INA has stripped this court of jurisdiction over El Badrawi’s FTCA claims, the government relies on Section 1252(b)(9). That section is a sweeping provision that contains the following language:
Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under [Title 8] shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under [28 U.S.C. § 2241], or any other habeas corpus provisions, . . . or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact. 8 U.S.C. § 1252(b)(9). Because of its breadth, the Supreme Court has described this
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section as an “unmistakable zipper clause.” AADC, 525 U.S. at 483. Despite its sweeping language, the reach of this section is not unbounded.
Instead, it is qualified by the language that introduces all clauses in Section 1252(b): “With respect to review of an order of removal under subsection (a)(1), the following requirements apply: . . . .” 8 U.S.C. § 1252(b). This qualifying language makes sense, because the purpose of Section 1252(b)(9) is to consolidate nearly all challenges to immigration proceedings into a single petition for review of a final order of removal. INS v. St. Cyr, 533 U.S. 289, 313 n.37. In light of this qualifying language, and in light of Section 1252(b)(9)’s purpose, the provision has been held not to apply to claims that could never be brought during removal proceedings. See id. at 313-14; CalcanoMartinez, 232 F.3d 328, 339-40 (2d Cir. 2000), aff’d 533 U.S. 348 (2001); Aguilar v. United States Immigration and Customs Enforcement Div. of the Dept. of Homeland Sec., 510 F.3d 1, 11 (1st Cir. 2007) (“We . . . read the words ‘arising from’ in Section 1252(b)(9) to exclude claims that are independent of, or wholly collateral to, the removal process. Among others, claims that cannot effectively be handled through the available administrative process fall within that purview.”).
With this understanding of Section 1252(b)(9), it becomes clear that this court has jurisdiction over El Badrawi’s FTCA claims for his arrest and initial detention. Through these claims, El Badrawi is seeking to be remedied for damages inflicted on him before he ever had the chance to utilize the administrative process.
To be sure, the administrative process did enable El Badrawi to obtain some relief from his detention insofar as it permitted him to try to obtain bond before an IJ. See 8 C.F.R. § 1236.1(d). Accordingly, insofar as El Badrawi claims damages from his
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incarceration after any bond hearing, and before the entry of the voluntary departure order, El Badrawi’s claims for damages are not cognizable in this court. However, any release on bond that El Badrawi could have obtained would only have given him prospective relief from the date of the bond determination. Such release would do nothing to address his claim that he suffered damages from his arrest and pre-bond hearing detention.
El Badrawi’s subsequent detention claim, based on actions taken after he had agreed to voluntary departure, is also cognizable notwithstanding Section 1252(b)(9). This claim arose only after the entry of a final order of removal.22 See Zadvydas, 533 U.S. at 688 (exercising jurisdiction over a claim arising from detention after the entry of a final order of removal).23
B. The Heck v. Humphrey Bar As its next argument against El Badrawi’s FTCA claims, the government seeks to invoke the doctrine of Heck v. Humphrey, 512 U.S. 477 (1994). Heck held that if a Section 1983 plaintiff wants to recover damages for his wrongful arrest or imprisonment, and success in his suit would “render a conviction or sentence invalid,”
22 The Second Circuit has held that a voluntary departure order is considered a “final order of rem oval,” under the INA’s jurisdictional provisions, when that departure order contains an alternate order of removal. See Thapa, 460 F.3d at 333-34 & n.3. El Badrawi’s voluntary departure order was of this kind. See Manack & Loser Exh. H.
23 Because El Badrawi could not have obtained relief for his initial arrest and detention in rem oval proceedings, he also was not required to exhaust his claim s through that process. See 8 U.S.C. § 1252(d)(2) (excusing non-exhaustion when “the rem edy provided by the prior proceeding was inadequate or ineffective to test the validity of” the final order of rem oval that the plaintiff is seeking to challenge). Additionally, Section 1252(d)(2) has no applicability to El Badrawi’s post-voluntary-departure claim s. This section operates only as a restriction on “review [of] a final order of rem oval.” Id. § 1252(d). If El Badrawi succeeds on his post-voluntary-departure claim s, he will not have called into question the validity of the underlying order of removal.
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the plaintiff must show that “the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus.” 512 U.S. at 486-87. The Second Circuit has subsequently extended Heck to apply to Bivens actions against federal officials. See Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995) (per curiam). The court will assume that Heck is also properly extended to FTCA claims in the immigration context.24
As an initial matter, Heck plainly does not bar El Badrawi’s claims based on his excessive detention after he agreed to voluntary departure. These claims are based on torts committed following the entry of a final order of removal against him, and success on these claims will do nothing to call into question the validity of the underlying removal order itself.
Heck also does not bar El Badrawi’s actions based on his false arrest and initial detention. Heck’s logic is rooted in the recognition that prisoners need to exhaust their habeas remedies. See Heck, 512 U.S. at 480-82. Accordingly, Heck will not bar an action when the prisoner was never in state confinement, and hence never had any remedy in habeas corpus in which he could challenge his conviction or confinement. See Leather v. Ten Eyck, 180 F.3d 420, 424 (2d Cir. 1999). By the same logic, Heck
24 Although the Second Circuit has not yet addressed the issue, several circuits have applied Heck in FTCA cases. See Erlin v. United States, 364 F.3d 1127, 1132 (9th Cir. 2004); Ramming v. United States, 281 F.3d 158, 162 (5th Cir. 2001) (per curiam ); Paris v. United States, 45 F.3d 383, 385 (10th Cir. 1995); see also Dare v. United States, 264 Fed. Appx. 183, 185 (3d Cir. 2008).
All of these cases involved underlying crim inal proceedings, however, rather than im m igration proceedings. There is good reason to doubt that Heck is properly extended to civil im m igration proceedings. See Heck, 512 U.S. at 480-82 (basing its rule, in large part, on the exhaustion requirem ents peculiar to crim inal habeas proceedings).
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does not bar a claim when the prisoner was in custody for such a brief period of time that any available habeas remedy would have been pointless. See Spencer v. Kemna, 523 U.S. 1, 18-21 (1998) (Souter, J., concurring); Heck, 512 U.S. at 500 (Souter, J., concurring in the judgment).25
The Court’s opinion in Spencer v. Kemna further supports this conclusion. In Spencer, an inmate was sentenced to a three-year sentence in state court. 523 U.S. at 3. After serving a year-and-a-half in prison, the inmate was paroled. Id. His parole was subsequently revoked, and he filed various state court challenges in an attempt to overturn the revocation. Id. at 5. After those challenges failed, he filed a federal habeas petition, but while that petition was pending, he completed his prison sentence. Id. at 6. In an 8-1 decision, the Supreme Court concluded that the habeas petition had become mooted, notwithstanding the petitioner’s assertion that Heck required him to prevail on his habeas challenge in order recover damages in a Section 1983 action. See id. at 17.
The Court’s opinion in Spencer did not squarely hold that Heck would be inapplicable if the prisoner later brought a Section 1983 claim. See id. Still, if Heck were going to act as such a bar, it would be difficult to see how the habeas petition was moot in Spencer because the petitioner would still have had something at stake in the adjudication of his habeas petition. In any event, four of the eight Justices in the Spencer majority expressly concluded that Heck would not have barred a subsequent
25 Justice Ginsburg, one of the five Justices who signed onto the Court’s opinion in Heck, later expressed her agreement with Justice Souter’s view of Heck’s scope, even though she was not one of the four Justices who signed onto his Heck concurrence. See Spencer, 523 U.S. at 21-22 (Ginsburg, J., concurring).
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Section 1983 claim because the petitioner did not have a sufficient opportunity to litigate his habeas petition. See id. at 18-22 (Souter, J., concurring). The dissenting Justice, Justice Stevens, also agreed that Heck would be inapplicable. See id. at 25 n.8 (Stevens, J., dissenting). The Justices’ views on this issue have not escaped the Second Circuit’s attention. See Jenkins v. Haubert, 179 F.3d 19, 26-27 (2d Cir. 1999).
With this understanding of Heck’s scope, it is clear that El Badrawi’s FTCA claims are not barred. El Badrawi’s arrest and detention claims turn on his argument that he was legally present in the country because he had timely filed his application for extension of stay. But under this reading of the immigration regulations, El Badrawi was only legally authorized to remain in the country for up to 240 days past May 1, 2004, i.e. until December 27, 2004. Given that El Badrawi was arrested on October 29, 2004, he had less than two months available to him in which he could have litigated any habeas petition. This was plainly an insufficient amount of time for El Badrawi to have been able to obtain a final judgment in his favor on a habeas corpus petition before the petition became moot.26
C. The Discretionary Function Exception The next issue the court must address is whether El Badrawi’s claims are barred by the FTCA’s discretionary functions exception. That provision excludes from the FTCA claims that are “based upon the exercise or performance or the failure to
26 Indeed, given this short tim eline, it would appear understandable why El Badrawi chose to accept voluntary departure, rather than press his legal claim s in im m igration and/or habeas proceedings. If El Badrawi had pressed these legal claim s and won, he still would have had to leave the country by Decem ber 27, 2004 (or sooner if DHS had ever acted to deny his petition for extension of stay). Accordingly, he m ade the reasonable choice to simply agree to voluntary departure, in the hope of hastening his release from detention.
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exercise or perform a discretionary function or duty.” 28 U.S.C. § 2680(a). The government argues that, when Manack and Loser arrested and initially detained El Badrawi, they were engaged in the performance of discretionary duties.
This claim is easily dispensed with. Government agents never have the discretion to violate the Constitution. Myers & Myers, 527 F.2d at 1261; see also Berkovitz v. United States, 486 U.S. 531, 536 (1988) (explaining that the discretionary functions exception does not apply when federal law dictates a particular course of conduct). As discussed above, see p. 32-33, supra, if El Badrawi succeeds in proving his false arrest/false imprisonment claim, he will have succeeded in showing that the defendants acted unconstitutionally. Additionally, the court has previously explained why El Badrawi’s post-voluntary-departure claims arise out of unconstitutional executive action. See p. 33-35, supra. The discretionary functions exception does not bar El Badrawi’s FTCA claims.
C. The Merits In its next series of arguments, the government contends that it is not liable under Connecticut tort law for false arrest/false imprisonment, abuse of process, and intentional infliction of emotional distress. The court deals with each in turn. 1. False Arrest/False Imprisonment In evaluating false arrest claims, Connecticut law draws an important distinction between arrests effectuated pursuant to a warrant, and arrests made without a warrant. Warantless arrests will be actionable when an official arrests the plaintiff without
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probable cause.27 See Beinhorn v. Saraceno, 23 Conn. App. 487, 491 (Conn. Ct. App. 1990). By contrast, when arrests are made after an officer obtains a warrant, an action generally will not lie “‘unless there is a clear absence of jurisdiction on the part of the court or magistrate issuing the process, [or if the warrant] upon its face . . . appears [not] to be valid in the judgment of an ordinarily intelligent and informed layman.’” Outlaw v. City of Meriden, 43 Conn. App. 387, 393 (Conn. App. Ct. 1996). However, there is a limited exception to this rule such that a warrant will not absolve the arresting officer when his warrant application, as submitted to the magistrate, knowingly or recklessly omits or misrepresents material information. See Ham v. Greene, 248 Conn. 508, 527-28 & n.9 (1999).
The government contends that El Badrawi’s arrest was not warrantless because he was arrested pursuant to a duly issued immigration warrant. The government then argues that, because the warrant was facially valid, El Badrawi cannot maintain his tort claim.
This court disagrees. The law places a high premium on arrest warrants because such warrants are issued by neutral magistrates who provide an independent check on executive discretion. See Coolidge v. New Hampshire, 403 U.S. 443, 449-51 (1971). That is why, as a matter of federal constitutional law, search warrants issued exclusively by executive officials involved in an investigation are ignored for Fourth Amendment purposes. See id. at 450-51. Although there do not appear to be
27 It is not entirely clear if Connecticut law sets forth additional elem ents that m ust be established for warrantless arrests. If there are any such additional elem ents, the governm ent has not argued that they have not been met in this case.
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Connecticut false arrest cases directly on point, the case law nonetheless implicitly recognizes the distinction between warrants issued by neutral magistrates and those issued by non-neutral executive officials. See Ham, 248 Conn. at 527-28 & n.29 (treating an arrest as warantless after a magistrate had issued an arrest warrant based on an application that contained material misstatements and omissions).
In this case, El Badrawi’s arrest warrant was signed by Agent Manack, an ICE Agent intimately involved in the investigation. No neutral magistrate (or even a neutral executive official) ever examined the warrant’s validity. Under Connecticut tort law (and federal constitutional law), the arrest must therefore be treated as warrantless.
Thus understood, El Badrawi’s false arrest claim will stand or fall depending on whether or not the ICE officials had probable cause to believe that El Badrawi was in the country illegally. Under Connecticut law (and federal constitutional law), probable cause exists when an officer has knowledge of sufficient facts and circumstances to warrant a reasonable officer in believing that the arrestee has committed or is committing an arrestable offense. Walczyk, 496 F.3d at 156.
The government maintains that its agents had probable cause to arrest El Badrawi because, notwithstanding El Badrawi’s application to extend his stay, El Badrawi’s legal entitlement to remain in the country ended on May 1, 2004. El Badrawi disagrees, citing an immigration regulation, 8 C.F.R. § 274a.12(b)(20), as the legal authority for his continued presence. That regulation states:
The following classes of nonimmigrant aliens are authorized to be employed in the United States by the specific employer and subject to the restrictions described in the section(s) of this chapter indicated as a condition of their admission in, or subsequent change to, such classification. . . .
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A nonimmigrant alien within [various classifications, including H1-B visa holders] whose status has expired but who has filed a timely application for an extension of such stay pursuant to §§ 214.2 or 214.6 of this chapter. These aliens are authorized to continue employment with the same employer for a period not to exceed 240 days beginning on the date of the expiration of the authorized period of stay. Such authorization shall be subject to any conditions and limitations noted on the initial authorization. However, if the district director or service center director adjudicates the application prior to the expiration of this 240 day period and denies the application for extension of stay, the employment authorization under this paragraph shall automatically terminate upon notification of the denial decision.
8 C.F.R. § 274a.12(b)(20) (emphasis added).
Under this regulation, it is beyond dispute that UCONN was legally allowed to
employ El Badrawi for up to 240 days while his extension application was pending.
Nonetheless, the government takes the seemingly untenable position that, even though
El Badrawi was entitled to work in the United States, he was not entitled to be physically
present in the United States. The government offers several arguments to justify this
bewildering stance.
First, the government relies on a BIA decision, In re Teberen, 15 I. & N. Dec. 689
(1976), in which the BIA held that an alien who had overstayed his entry was
deportable, even though he had submitted a timely application for extension that was
still pending. Id. at 690-91. However, Teberen has no application to this case because
it was decided in 1976 – 15 years before the INS adopted the regulation that El Badrawi
relies upon. See 56 Fed. Reg. 41767, 41780-81 (Aug. 23, 1991).28
28 In Zerrei v. Gonzales, 471 F.3d 342 (2d Cir. 2006), the Second Circuit cited Teberen for the proposition that an alien will be subject to rem oval as an overstay if he was admitted as a nonim m igrant for a temporary period, that period had elapsed, and the immigrant had not departed. Id. at 345. Zerrei is not on point because there is no evidence that the petitioner in Zerrei had submitted a tim ely application
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Second, the government tries to rationalize its understanding of the regulation by claiming that the regulation is designed to protect employers, and not aliens. See Manack and Loser Mem. in Support at 28 (citing 56 Fed. Reg. at 41781 (Aug. 23, 1991)). Thus, as the government reads the regulation, El Badrawi had to stay in the country at his own risk, while UCONN could continue to employ him without fear of running afoul of the law.
This argument views the employer’s interest too narrowly. To be sure, an employer certainly has an interest in avoiding liability for employing an alien who is not authorized to work in the United States. But the employer has at least as great an interest in having that worker physically present in the United States to be able work. Indeed, if the government’s interpretation of the regulation were correct, El Badrawi would have been required to depart the country by May 1, 2004, which would have deprived UCONN of his services.
Finally, the government cites to another immigration regulation that appears to authorize the government to remove an alien who submits an incomplete application for extension of stay, notwithstanding the fact that such an alien remains authorized to be employed in the United States. See 8 C.F.R. § 103.2(b)(10)(ii).29 This scenario is
for extension of stay. Accordingly, the Second Circuit did not have occasion to consider how an extension application affected the alien’s right to remain in the country.
29 It should be noted that even this regulation could be interpreted to authorize the person to rem ain in the United States. The regulation states that:
Interim benefits will not be granted based on an application or petition held in suspense for the subm ission of requested initial evidence, except that the applicant or beneficiary will normally be allowed to remain while an application or petition to extend or obtain status while in the United States is pending. USCIS m ay choose to pursue other actions to seek rem oval of a person notwithstanding the pending application.
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plainly distinguishable from the case at hand, in which El Badrawi submitted a timely and complete extension application.
Ultimately, the government’s interpretation of 8 C.F.R. § 274a.12(b)(20) makes little sense. El Badrawi’s reading, in which employment authorization necessarily includes the right to physically remain in the country, is a much more reasonable one. And with this interpretation clarified, it becomes clear that Manack and Loser lacked probable cause to arrest El Badrawi. El Badrawi’s FTCA claim for false arrest/false imprisonment survives the government’s Motion to Dismiss.
2. Abuse of Process Abuse of process creates liability for an individual who uses legal process against another individual “primarily to accomplish a purpose for which it is not designed.” Mozzochi v. Beck, 204 Conn. 490, 494 (1987) (quoting Restatement (Second) of Torts § 682) (internal quotation marks omitted) (emphasis removed). Insofar as El Badrawi brings suit based on his arrest and initial detention, the legal “process” he alleges was abused was the issuance of the warrant for his arrest.30 In this regard, El Badrawi’s Complaint does not allege facts sufficient to state a claim for
Em ploym ent authorization previously accorded based on the sam e status and em ploym ent as that requested in the current application or petition
m ay continue uninterrupted as provided in [8 C.F.R. § 274a.12(b)(20)]
during the suspense period. 8 C.F.R. § 103.2(b)(10)(ii). In light of the regulation’s statem ent that applicants “will norm ally be allowed to rem ain,” it is unclear whether “other actions to seek rem oval” refers m erely to steps antecedent to the initiation of rem oval proceedings, or whether it refers to the actual initiation of rem oval proceedings themselves, all of course in the context of an incomplete application for extension.
30 El Badrawi’s Mem orandum suggests that his abuse of process claim also targets the decision of INS officials to place him in removal proceedings. As discussed previously, this aspect of his claim is barred by 8 U.S.C. § 1252(g) because it challenges the com m encement of rem oval proceedings against him .
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abuse of process. In the immigration context, the purpose of an arrest warrant is to take an alien into custody, pending removal proceedings, in order to “[e]nsur[e] removal by preventing the alien from fleeing, and protect[] the community from further criminal acts or other dangers.” 63 Fed. Reg. 27441, 27442 (May 19, 1998). El Badrawi’s Complaint alleges that he was arrested because ICE officials had national security concerns about him. This surely falls in the category of “protecting the community” from criminal acts by the alien.31
El Badrawi’s abuse of process claim does survive insofar as it is based on his post-voluntary-departure detention. That is because El Badrawi alleges that, once the government had agreed to allow him to voluntarily depart, the government nevertheless detained him without any legitimate immigration purpose. This is the very definition of the tort of abuse of process: immigration officials were using the legal process of immigration detention for reasons other than the reasons for which the detention was designed.
3. Intentional Infliction of Emotional Distress In Connecticut, an individual is liable for intentional infliction of emotional distress when four elements are met: (1) the actor either intended to inflict emotional distress, or he knew or should have known that emotional distress was likely to result from his conduct; (2) the conduct was extreme and outrageous; (3) the defendant’s conduct was what caused the plaintiff’s distress; and (4) the plaintiff sustained emotional distress
31 It is of no m om ent to the abuse of process claim whether or not ICE officials had probable cause to arrest El Badrawi. The tort of abuse of process is concerned with the misuse of legal process, for a purpose other than what it was designed for, irrespective of whether or not the process was “obtained in the course of proceedings that were brought with probable cause.” Restatem ent (Second) of Torts § 282 cmt. a.
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that was severe. Appleton v. Bd. of Educ., 254 Conn. 205, 210 (2000). The government challenges El Badrawi’s claim only on the second prong. See Federal Defendants’ Mem. at 18-19.32
To fit the “outrageousness” prong, El Badrawi must point to conduct that is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Appleton, 254 Conn. at 210-11 (quoting Restatement (Second) of Torts § 46 cmt. d) (internal quotation marks omitted). El Badrawi has done so here with regard to his initial arrest and detention. On the facts as alleged, Manack and Loser arrested El Badrawi and took him into custody, alongside a general prison population, even though they knew or should have known that he had committed no immigration violation. This is conduct that, if submitted to a factfinder, could be deemed sufficiently outrageous to state a claim under Connecticut law. See id. at 210 (explaining that while the court acts as the initial gatekeeper on the outrageousness prong, the issue must be left to the factfinder where reasonable minds could disagree).
Similarly, El Badrawi has stated a claim for intentional infliction of emotional distress based on his post-voluntary-departure detention. Indeed, the court has previously concluded that the government’s alleged conduct in this regard could be found to be conscience shocking. See supra, p. 35.
32 To the extent that the governm ent also presses an argum ent based on the first elem ent, the court rejects that claim. To be sure, El Badrawi does not allege that Manack and Loser specifically intended to cause him em otional distress when they arrested and detained him . However, on the facts alleged, it is plausible to infer that they knew or should have known that emotional distress would be the likely result of their actions.
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V. EXPUNGEMENT CLAIMS AGAINST MUELLER, CHERTOFF, FBI, DHS
El Badrawi’s final set of claims seek to expunge various inaccurate records. He
has asserted these claims against various federal officials, sued in their official capacity, as well as various federal agencies.33
It is a well-established principle of law that the United States may not be sued
without its consent. United States v. Mitchell, 463 U.S. 206, 212 (1983). This principle
extends to claims for equitable relief, as well as claims for damages. See Larson v.
Domestic & Foreign Commerce Corp., 337 U.S. 682, 688-89, 695 (1949) (holding that a
suit for injunctive relief against a federal officer, acting in his official capacity and within
his statutory and constitutional authority, was barred by sovereign immunity).
Accordingly, unless there is some federal statute that authorizes El Badrawi’s expungement action, El Badrawi’s expungement claims are barred.34
El Badrawi does not point to any such authority, and the court is aware of none.35
33 El Badrawi asserts that his expungement claim s arise either under the NCIC statute or as a m atter of federal comm on law.
34 The court notes that El Badrawi has m erely claim ed that the relevant records are inaccurate; he has not argued that maintenance of these records is unconstitutional. Cf. W alker v. United States, 116 F.R.D. 149, 151 (S.D.N.Y. 1987) (allowing records to be expunged after the court concluded that it would be unconstitutional for the Bureau of Prisons to continue to m aintain the records).
35 El Badrawi does not contend that the NCIC statute contains an express waiver of sovereign im m unity. El Badrawi also has not relied on the Administrative Procedure Act (APA), which waives the governm ent’s sovereign im m unity for claim s seeking non-m onetary relief when such claim s assert that the United States or “an agency or an officer or em ployee thereof acted or failed to act in an official capacity or under color of legal authority.” 5 U.S.C. § 702. The APA ultimately cannot help El Badrawi because it contains a proviso making clear that it does not “confer[] authority to grant relief if any other statute that grants consent to suit expressly or im pliedly forbids the relief which is sought.” Id. In this case, the Privacy Act im pliedly forbids El Badrawi from obtaining relief. That statute provides a m echanism for individuals to sue to correct records that federal agencies maintain about them . See id. § 552a(g). However, the statute expressly lim its the class of plaintiffs to individuals who are U.S. citizens and lawful perm anent residents. See id. § 552a(a)(2). Accordingly, the Privacy Act im plicitly (if not explicitly) forbids nonresident aliens like El Badrawi from suing federal agencies to correct their records.
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Instead, El Badrawi relies primarily on several cases which have recognized a court’s inherent authority, in certain very limited circumstances, to expunge criminal records in cases that had proceeded before that court. See, e.g., Diamond v. United States, 649 F.2d 496, 499 (7th Cir. 1981); United States v. Schnitzer, 567 F.2d 536, 539 (2d Cir. 1977). In a criminal action, where the United States has already submitted itself to the court’s jurisdiction by bringing suit, it is understandable why the court that heard that criminal action might be able to sidestep any immunity concerns. Cf. Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 619 (2002) (explaining that a state’s voluntary appearance in federal court will waive its sovereign immunity under the Eleventh Amendment). Here, the United States has not affirmatively advanced litigation before this court regarding El Badrawi, and thus there is no reason to think that the government’s immunity can be overcome.
To the extent El Badrawi relies on other cases that permitted expungement actions to proceed, the court does not find them persuasive because they did not fully discuss whether sovereign immunity barred the expungement action. See, e.g., Tarlton v. Saxbe, 507 F.2d 1116 (D.C. Cir. 1974) (permitting an expungement claim to go forward under the NCIC statute, but not considering whether this statute effected a waiver of sovereign immunity); Menard v. Mitchell, 430 F.2d 486, 492 (D.C. Cir. 1970) (permitting an expungement claim to go to trial in federal court, without considering whether the claim survived an assertion of sovereign immunity, in a case where the FBI maintained records of an arrest by state authorities); Doe v. Immigration and Customs Enforcement, No. M-54, 2004 WL 1469464, at *2 (S.D.N.Y. 2004) (relying on criminal case law to order the expungement of an immigration-related arrest record, without
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discussing issues of sovereign immunity). El Badrawi’s expungement claims are therefore dismissed for lack of
jurisdiction.36 VI. SUMMARY JUDGMENT MOTIONS
Thus far, the court’s discussion of the issues has treated the federal defendants’ pleadings as though they had simply filed a Motion to Dismiss. As such, the court was able to dismiss the claims against all federal defendants other than the United States, as well as some of the FTCA claims. However, because FTCA claims for false arrest/false imprisonment, abuse of process, and intentional infliction of emotional distress survive the Motion to Dismiss, the court must decide if the United States is entitled to summary judgment on these claims.
This issue is easily resolved. The court has reviewed the government’s evidentiary submissions insofar as they are relevant to the claims remaining in this case. The court has also examined the government’s Local Rule 56(a)(1) statements of undisputed issues of material fact. With one exception, the court does not understand the United States to be advocating a version of the facts that would entitle it to summary judgment on the outstanding FTCA claims. Indeed, putting aside that one exception, the government’s Motion for Summary Judgment is essentially coterminous with its Motion to Dismiss.
36 The governm ent has also argued that El Badrawi lacks Article III standing to bring this claim . Norm ally, the court would address that argum ent first, because courts m ay not assum e that they have Article III jurisdiction. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93-94 (1998). However, when the United States asserts that its sovereign immunity bars an action, that immunity assertion is jurisdictional. See Mitchell, 463 U.S. at 212. A court may properly dism iss a claim for lack of subject m atter jurisdiction, even m ere statutory jurisdiction, without first assuring itself that it possesses jurisdiction under Article III. See Lance v. Coffm an, 127 S. Ct. 1194, 1196 n.* (2007) (per curiam ).
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The one exception pertains to El Badrawi’s FTCA claims based on his postvoluntary-departure detention. Manack and Loser both contend, through their declarations, that they had absolutely no involvement in El Badrawi’s prolonged detention. Manack Dec. at ¶ 7; Loser Dec. at ¶ 10.
As El Badrawi points out, he has not yet had the opportunity to depose Manack and Loser about their involvement. Nor has he had the opportunity to pursue other discovery concerning Manack and Loser and his detention. Accordingly, the court deems it appropriate under Rule 56(f)(1) to DENY the United States’s Motion for Summary Judgment, pending further discovery in the case.37 VII. CONCLUSION
In light of the above, the state defendant’s Motion to Dismiss [Doc. No. 19] is GRANTED IN PART AND DENIED IN PART. The official capacity RLUIPA claim against defendant Lee is dismissed, while the personal capacity claims against him remain. If El Badrawi wishes to amend his Complaint to assert a personal capacity RLUIPA claim, he has until 21 days after this Ruling to file his amended Complaint.
The individual federal defendants’ Motion to Dismiss [Doc. No. 22] is GRANTED. All claims against defendants Manack and Loser are dismissed for failure to state a claim. The individual federal defendants’ Motion for Summary Judgment [Doc. No. 35] is DENIED AS MOOT, and El Badrawi’s Rule 56(f) Motion to Continue or Deny Defendants Manack and Loser’s Motion for Summary Judgment [Doc. No. 44] is
37 Of course, even if Manack and Loser had no involvem ent in the detention, El Badrawi could still maintain his FTCA claim against the United States if he could show that there were other responsible federal officials, covered by the FTCA, who did comm it the claim ed torts.
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DENIED AS MOOT. The other federal defendants’ Motion to Dismiss [Doc. No. 25] is GRANTED IN
PART AND DENIED IN PART. All claims against defendants DHS, FBI, Chertoff, and Mueller are dismissed for lack of subject matter jurisdiction. The FTCA claims against the United States for malicious prosecution and vexatious suit are also dismissed. The FTCA claims for false arrest/false imprisonment, abuse of process, and intentional infliction of emotional distress remain in the case to the extent discussed in the Ruling. The other federal defendants’ Motion for Summary Judgment [Doc. No. 36] is DENIED AS MOOT insofar as it pertains to claims which the court has dismissed on the pleadings and DENIED otherwise. El Badrawi’s Rule 56(f) Motion to Continue or Deny Defendants’ Motion for Summary Judgment [Doc. No. 46] is DENIED AS MOOT insofar as it pertains to claims which the court has dismissed on the pleadings, and claims arising out of El Badrawi’s arrest and detention before he agreed to voluntary departure, and GRANTED otherwise. SO ORDERED.
Dated at Bridgeport, Connecticut this 22nd day of September, 2008.
/s/ Janet C. Hall Janet C. Hall United States District Judge
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 Case 3:07-cv-01074-JCH Document 181 Filed 09/04/09 Page 1 of 4

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

RASHAD AHMAD REFAAT EL BADRAWI, :

Plaintiff

:

:

v.

:

:

DEPARTMENT OF HOMELAND

:

SECURITY, ET AL.,

:

Defendants.

:

CIVIL ACTION NO. 07-cv-1074 (JCH)
SEPTEMBER 4, 2009

RULING RE: MOTION FOR RECONSIDERATION (DOC. NO. 167) I. INTRODUCTION1

On February 9, 2009, plaintiff Rashad Ahmad Refaat El Badrawi moved to

compel the production of certain documents from defendants Charles Lee, Warden,

Hartford Correctional Center, and the United States of America (the “government”).

See Motion to Compel (Doc. No. 107). Both Warden Lee and the government

objected. See Defendants’ Opposition to Plaintiff’s Motion to Compel (Doc. Nos. 112,

118). On April 30, 2009, the court heard argument on the Motion to Compel. See

Minute Entry (Doc. No. 137). Following argument, the court reviewed, ex parte and in

camera, the documents sought by El Badrawi.

On July 24, 2009, the court granted El Badrawi’s Motion in part and ordered the

government to disclose redacted documents by August 10, 2009. See Ruling Re:

Motion to Compel (Doc. No. 164). On August 10, 2009, the government moved the

court to reconsider its Ruling. For the reasons stated herein, the government’s Motion

for Reconsideration (Doc. No. 167) is denied.

1 The court assumes familiarity with the basic facts of this case, which were set out in detail in the court’s Ruling Re: Defendants’ Motions to Dismiss or for Summary Judgment (Doc. No. 82).
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II. STANDARD OF REVIEW The standard for a motion to reconsider is strict. Shrader v. CSX Transp., 70
F.3d 255, 257 (2d Cir. 1995). Such a motion should not be granted where the moving party seeks solely to relitigate an issue already decided. Id. A motion to reconsider is proper, however, when the moving party can point to controlling decisions or data that the court overlooked. Id. III. DISCUSSION
In its Motion, the government advances two arguments: (1) the court should not require the production of sensitive law enforcement information that contains no relevant information beyond what the plaintiff already possesses; and (2) rather than ordering the production of documents, the court should enforce a proposal made by the government under which the government would, inter alia, stipulate that federal records contained information that El Badrawi was a possible terrorist organization member and that some employees at ICE and the Connecticut Department of Corrections had access to this information. See Memorandum in Support of Motion for Reconsideration (“Mem. in Supp.”) (Doc. No. 167-3).
In his Opposition to the government’s Motion, El Badrawi argues that the Motion should be denied because it does not meet the strict standard for a motion for reconsideration; that is, that it points to no new law, new evidence, or a manifest injustice. See Memorandum in Opposition to Motion for Reconsideration (“Mem. in Opp.”) at 2. The court agrees.
The government’s first argument is that the documents at issue contain no
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relevant information beyond what the plaintiff already possesses. The government does not assert, however, that El Badrawi possesses any information now which he did not possess when the government filed its Opposition to the Motion to Compel. As a result, the government could have made this argument in its Opposition. It did not. Consequently, this argument provides no basis for the court to reconsider its prior decision. See Shrader v. CSX Transp., 70 F.3d 255, 257 (2d Cir. 1995) (“A motion to reconsider should not be granted where the moving party seeks solely to relitigate an issue already decided”).
The government’s second argument is that the court should order El Badrawi to accept the government’s proposed “alternate solution” to the discovery dispute rather than order the government to produce the documents to which El Badrawi is entitled.
In urging the court to follow this course of action, the government notes in its Motion for Reconsideration that, “the court did not mention [the letter in which the government’s proposal was set forth] or address the government’s proposal in its Ruling.” Mem. in Supp. at 6. The government is correct that the court did not address the proposed stipulation in the Ruling Re: Motion to Compel. The government conveniently fails to mention, however, that the government itself did not address the proposed stipulation in its Opposition to El Badrawi’s Motion. See Opposition to Motion to Compel (Doc. No. 112). Rather, it informed the court of the proposed stipulation in a cover letter to an ex parte declaration sent to the court’s chambers on May 13, 2009. Moreover, the government did not argue in the May 13, 2009 letter that the court should order El Badrawi to accept the government’s proposal in lieu of compelling production. The government merely stated that, although plaintiff’s counsel would not agree to the
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proposal, the government was “willing to proceed [with the proposal] as an alternative to disclosure of the VGTOF printouts.” See Letter, Exh. 1 to Motion for Reconsideration (Doc. No. 167-3). Because the government could have raised the issue of its proposed stipulation in its Opposition to El Badrawi’s Motion to Compel, but did not, the government’s second argument provides no basis for reconsideration.2 See Shrader v. CSX Transp., 70 F.3d 255, 257 (2d Cir. 1995) (“[R]econsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked – matters, in other words, that might reasonably be expected to alter the conclusion reached by the court”). IV. CONCLUSION
For the reasons stated herein, the defendants Motion for Reconsideration (Doc. No. 167) is DENIED. SO ORDERED.
Dated at Bridgeport, Connecticut this 4th day of September, 2009.
/s/ Janet C. Hall Janet C. Hall United States District Judge
2
It bears noting that, even if the government had expressly advocated for a court-ordered stipulation in lieu of production, the court would have rejected such argum ent. The governm ent’s proposed stipulation is not of com parable quality to the inform ation contained in the records the court ordered produced.
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 Case 3:07-cv-01074-JCH Document 431 Filed 04/12/11 Page 1 of 56

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

RASHAD AHMAD REFAAT EL BADRAWI, :

Plaintiff,

:

:

v.

:

:

UNITED STATES OF AMERICA,

:

ET AL.,

:

Defendants.1

:

CIVIL ACTION NO. 07-cv-1074 (JCH)
APRIL 11, 2011

PUBLIC VERSION OF RULING ON MOTIONS FOR SUMMARY JUDGMENT ON CLAIMS AGAINST THE UNITED STATES

I. INTRODUCTION

On the morning of October 29, 2004, Plaintiff Rashad Ahmad Refaat El Badrawi

left for work only to be met outside his apartment building by federal agents. The

agents placed him in handcuffs and arrested him on the charge that he had overstayed

his period of authorized stay as a nonimmigrant visa holder. El Badrawi was brought to

a government facility where he was questioned about alleged ties to jihadist and

extremist groups. El Badrawi was then held without bail at the Hartford Correctional

Center (HCC), a state run prison facility, for nearly two months. El Badrawi claims that,

while he was incarcerated at HCC, he was not permitted to join the “Ramadan list” and

therefore was not able to observe the Muslim Holy Month of Ramadan by fasting during

daylight hours. El Badrawi also claims that prison staff refused to provide medication,

which had been prescribed to him and which he had at the time of his arrest.

On November 10, 2004, El Badrawi appeared before an Immigration Judge for a

hearing on the charge that he was subject to removal for overstaying his visa.

1 This case was formerly captioned as El Badrawi v. Dep’t of Homeland Security, et al. Plaintiff’s claims against the Department of Homeland Security have been dismissed.
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However, rather than adjudicating that issue, the parties informed the Immigration Judge that they had agreed that El Badrawi would voluntarily depart the country, under government safeguards, “as soon as possible.” The government then kept El Badrawi detained at HCC for an additional 42 days and continued to investigate him. The government finally escorted El Badrawi out of the country on December 22, 2004.
El Badrawi brought this action against various departments and officials of the federal and state governments, challenging the legality of his arrest, his detention, and the conditions under which he was detained. In a prior decision, El Badrawi v. Dep’t of Homeland Security (“El Badrawi I”), 579 F. Supp. 2d 249 (D. Conn. 2008), this court dismissed a number of those claims. However, the court held that El Badrawi had stated claims against the United States under the Federal Tort Claims Act (“FTCA”) for false arrest and for abuse of process with respect to his detention following the agreement to voluntarily departure.2 The court also held that El Badrawi had stated claims, pursuant to 42 U.S.C. section 1983, against HCC’s Warden, Charles Lee, for violations of the Free Exercise Clause and the Eighth Amendment. The court also granted El Badrawi permission to amend the Complaint in order to plead claims against Warden Lee; James Pitts, a Chaplain at HCC; and Thomas McGrail, HCC’s Director of Food Services, pursuant to the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc et seq.
This Ruling addresses the parties’ Motions for Summary Judgment on El Badrawi’s two claims against the United States. The United States and El Badrawi
2 In El Badrawi I, the court held that a third FTCA claim, for intentional infliction of emotional distress, survived the federal government’s Motion to Dismiss. However, El Badrawi subsequently agreed to dismiss that claim with prejudice. See Order (Doc. No. 225).
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have each moved for summary judgment on both of these claims. After the Motions were briefed, the court heard oral argument. For the reasons that follow, the United States’ Motion for Summary Judgment is denied. El Badrawi’s Motion for Summary Judgment against the United States is granted with respect to the claim for false arrest and denied with respect to the claim for abuse of process. II. BACKGROUND
El Badrawi, a citizen of Lebanon and Egypt, lived in the United States in compliance with immigration law for over ten years. El Badrawi was admitted to the United States in 1993 on a nonimmigrant student visa. El Badrawi pursued and obtained a master’s degree in pharmaceutical sciences and a master’s degree in information systems engineering at Northeastern University. In 1999, El Badrawi was granted an H-1B visa that would permit him to live in the United States while working in the biotechnology industry. El Badrawi and his employers periodically renewed his H1B visa as necessary, and he occasionally departed and reentered the country as necessary to maintain his immigration status. On April 4, 2003, El Badrawi received an H-1B visa to perform research work at the University of Connecticut Health Center (the “University”). Under that visa, he was authorized to live and work in the country until May 1, 2004.
In October 2003, the Department of State (“DOS”) executed a Certificate of Revocation with respect to El Badrawi’s visa. Pl. Ex. 18. By the terms of this Certificate, the revocation of El Badrawi’s visa would become effective only upon El Badrawi’s departure from the United States. From October 2003 until December 22, 2004, El Badrawi never left the United States, and therefore the DOS revocation never
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became effective. DOS did not provide any notice of the Certificate of Revocation to El Badrawi or to the University.
On March 31, 2004, the University and El Badrawi filed a timely application for an extension of El Badrawi’s stay under the H-1B visa program. The University requested and paid an additional $1000 fee for premium processing of the application. This meant that the United States Customs and Immigration Service (“USCIS”) was required to act on that application within 15 days or refund the additional fee. Despite contacting USCIS multiple times, neither El Badrawi nor the University was ever notified whether his extension of stay had been approved or denied.
Federal regulations provide an automatic extension upon a timely application for an extension of an H-1B visa: “A nonimmigrant alien [with an H-1B visa] whose status has expired but who has filed a timely application for extension of such stay . . . [is] authorized to continue employment with the same employer for a period not to exceed 240 days beginning on the date of the expiration of the authorized period of stay.” 8 C.F.R. § 274a.12(b)(20). This extension terminates prior to the 240-day limit if USCIS denies the application before that period ends. Id. With respect to El Badrawi, this period of extension began upon the expiration of the period of stay authorized under El Badrawi’s visa—May 1, 2004—and barring early termination, would continue until late December 2004. At no time did USCIS deny El Badrawi’s application for extension.
In the Spring of 2004, following the Madrid train bombings, the federal government became concerned that al-Qaida might plan a similar attack timed to occur around or just before the 2004 United States presidential election. See USA Ex. 16. The administration formulated and began to implement a plan for heightened
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enforcement of immigration laws in order to help prevent or disrupt terrorist attacks in the period leading up to the presidential election. See USA Ex. 21.
In October 2004, Immigration and Customs Enforcement (“ICE”) Agent Gregory Manack, the Resident Agent in Charge of ICE’s Hartford office, assigned Senior Special Agent Michael Loser to investigate El Badrawi. During his investigation, Loser confirmed that El Badrawi’s visa had expired and that El Badrawi had a pending application for extension which had not been adjudicated by USCIS. Nonetheless, Loser concluded that El Badrawi “appears to be in violation of his immigration status at this time.” USA Ex. 29. On October 28, 2004, Manack issued a warrant for El Badrawi’s arrest—which alleged that El Badrawi was in the country in violation of United States immigration laws, USA Ex. 30—and a Notice to Appear—which directed El Badrawi to appear for removal proceedings based on the charge that he had overstayed his period of admission, USA Ex. 31.
On the morning of October 29, 2004, El Badrawi left home to commute to his job at the University. Outside his apartment building, however, he was met by Agent Loser and one or more other officers. The officers arrested El Badrawi and placed him in handcuffs. After searching his apartment, the officers transported El Badrawi to an ICE facility, where he was detained and interviewed to determine whether he had any knowledge of or involvement in extremist, jihadist, or terrorist groups. El Badrawi denied any such knowledge or involvement. Later that day, El Badrawi was transported to HCC, where he remained incarcerated until December 22, 2004.
El Badrawi was brought before an Immigration Judge (“IJ”) on November 3, 2004. At that initial hearing, the IJ was informed that El Badrawi had a pending
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application for extension of his H-1B visa and that DOS had previously issued a Certificate of Revocation based on national security grounds. The IJ informed the parties that he was uncertain of how these facts affected El Badrawi’s immigration status, but the government’s attorney indicated that she was not prepared to address the merits of the case. USA Ex. 40, at 10-11. The IJ continued the hearing until November 10, 2004; instructed the parties to address the merits at that hearing; and ordered that El Badrawi remain in confinement until that time. Id.
At the November 10, 2004 hearing, the parties did not address the issue of whether El Badrawi was removable. Instead, at the start of the hearing, the government’s attorney immediately informed the IJ that the parties had agreed to “voluntary departure under safe[guards] . . . as soon as possible.” USA Ex. 41 at 1. The IJ asked whether 30 days would provide enough time, and the parties each agreed. Id. The parties further agreed that the first choice of destination would be Lebanon, with Egypt as a second choice if Lebanon would not accept El Badrawi. Id. The IJ accepted the agreement and informed El Badrawi that he would be “escorted to JFK, but this is not a deportation order, which makes it easier for you in the future to get another visa.” Id. at 2. El Badrawi claims that the government’s attorney, John Marley, told him that he would be able to leave the United States within six days. Pl. Ex. 1 ¶ 34.
Although the hearing ended without any discussion of whether El Badrawi was in fact removable—and certainly without an admission of such by El Badrawi—the IJ issued a form order that begins: “Upon the basis of respondent’s admissions, I have determined that the respondent is subject to removal on the charge(s) in the Notice to Appear.” USA Ex. 42. The Order indicated that El Badrawi had been granted voluntary
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departure under safeguards in lieu of removal. Id. The Order also included an alternate order requiring El Badrawi’s removal, but this alternate order was to become effective only if El Badrawi failed to depart voluntarily. Id.
The government kept El Badrawi detained for an additional 42 days. Throughout his detention, El Badrawi possessed a valid Lebanese passport, as well as the means and intent to purchase an airplane ticket to leave the country. Through his attorney, El Badrawi made several inquiries to ICE officials about expediting his departure. El Badrawi offered to arrange and pay for his own airfare. However, according to El Badrawi’s testimony, he was told that he was being detained so that the government could conduct additional investigations or background checks. USA Ex. 2 at 358, 36061. Government officials ultimately scheduled El Badrawi’s departure for December 22, 2004, and he was escorted out of the country on that day.
The United States admits that it is unable to locate and produce evidence documenting the measures it took with respect to El Badrawi during the 42-day detention period. The United States contends that its standard removal procedure would have involved, among other things, a background check referred to as a Third Agency Check (“TAC”) and a process of notifying and obtaining approval from Lebanon. The United States contends that there is no reason to believe that these measures were not taken during El Badrawi’s detention. However, the United States admits that a TAC generally produces numerous paper and electronic records, but it has not been able to produce any records confirming that a TAC was done in El Badrawi’s case. Nor has the United States produced any records confirming when and if ICE began the process of notifying the Lebanese government regarding El Badrawi’s departure. However, the
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parties agree that the ICE Cyber Crime Center investigated El Badrawi during a portion of this period of detention. The investigation had been initiated on November 2, 2004, and the final report of that investigation was prepared on November 29, 2004, and published on December 3, 2004. USA Exs. 37, 38. The government does not contend that this investigation produced any indication that El Badrawi presented a national security risk.
A federal government cable issued on December 6, 2004, shows that El Badrawi was initially scheduled to depart for Lebanon on December 13, 2004. However, a second cable issued the next day indicates that that itinerary was cancelled. Ultimately, the government rescheduled El Badrawi’s departure for December 22, 2004, and permitted him to leave the country on that date. III. SUMMARY JUDGMENT STANDARD
On a motion for summary judgment, the burden is on the moving party to establish that there are no genuine issues of material fact in dispute and that it is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); White v. ABCO Engineering Corp., 221 F.3d 293, 300 (2d Cir. 2000). Once the moving party has met its burden, in order to defeat the motion the nonmoving party must “set forth specific facts showing that there is a genuine issue for trial,” Anderson, 477 U.S. at 255, and present such evidence as would allow a jury to find in his favor. Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000).
In assessing the record to determine whether there are issues of fact, the trial court must resolve all ambiguities and draw all inferences in favor of the party against whom summary judgment is sought. Anderson, 477 U.S. at 255; Graham, 230 F.3d at
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38. “This remedy that precludes a trial is properly granted only when no rational finder of fact could find in favor of the non-moving party.” Carlton v. Mystic Transportation, Inc., 202 F.3d 129, 134 (2d Cir. 2000). “When reasonable persons, applying the proper legal standards, could differ in their responses to the question” raised on the basis of the evidence presented, the question must be left to the jury. Sologub v. City of New York, 202 F.3d 175, 178 (2d Cir. 2000). IV. DISCUSSION
A. False Arrest Claim In El Badrawi I, 579 F. Supp. 2d at 275-77, the court held that El Badrawi had alleged a claim for false arrest under the FTCA, 28 U.S.C. §§ 1346(b)(1), 2674. As the court explained there:
El Badrawi’s false arrest claim will stand or fall depending on whether or not the ICE officials had probable cause to believe that El Badrawi was in the country illegally. Under Connecticut law (and federal constitutional law), probable cause exists when an officer has knowledge of sufficient facts and circumstances to warrant a reasonable officer in believing that the arrestee has committed or is committing an arrestable offense. Id. at 276 (citing Walczyk v. Rio, 496 F.3d 139, 156 (2d Cir. 2007)). In this case, an “arrestable offense” includes a violation of immigration law, because federal immigration officers have authority to arrest where they have probable cause to believe “that the alien so arrested is in the United States in violation of any [law or regulation regarding the admission, exclusion, expulsion, or removal of aliens].” 8 U.S.C. § 1357(a)(2); see United States v. Sanchez, 635 F.2d 47, 63 n.13 (2d Cir. 1980). Resolution of El Badrawi’s claim for false arrest depends on two issues. First, the court must determine whether, as the government contends, the doctrine of
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collateral estoppel bars litigation of the issue of whether El Badrawi was subject to arrest for overstaying his visa. The court holds that collateral estoppel does not apply in this case. Second, the court must interpret and apply 8 C.F.R. § 274a.12(b)(20), the regulation providing that El Badrawi was “authorized to continue employment with the same employer for a period not to exceed 240 days” while his application for an extension of stay was pending. The parties agree that the merits of the false arrest claim turn entirely on this regulation. If the regulation permitted El Badrawi to remain in the country and protected him from removal during the extension period, then the ICE officers did not have probable cause to arrest him. If it did not provide such protection, then the ICE officers did have probable cause. After examination of the record and the parties’ arguments, the court finds that there is no genuine issue of material fact and that the claim is resolved, as a matter of law, in favor of El Badrawi.
1. Collateral Estoppel Does Not Bar El Badrawi’s Claim Collateral estoppel forecloses relitigation of an issue that was “actually litigated and decided by a court of competent jurisdiction in a prior action . . . between the same parties or their privies.” Ali v. Mukasey, 529 F.3d 478, 489 (2d Cir. 2008) (quotation omitted). “Accordingly, collateral estoppel applies when: (1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and actually decided, (3) there was a full and fair opportunity for litigation in the prior proceeding, and (4) the issues previously litigated were necessary to support a valid and final judgment on the merits.” Id. (quotation omitted). The government contends that the issue of whether El Badrawi was subject to removal based on overstay of his visa was actually litigated and decided in El Badrawi’s immigration court proceedings.
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The government claims that El Badrawi was required to concede that he was removable in order to obtain a grant of voluntary departure and that this concession was binding.
The record of the immigration proceedings does not support the claim that El Badrawi conceded removability. At the first hearing, on November 3, 2004, El Badrawi contested the charge that he was removable for overstaying his period of admission. USA Ex. 40 at 5, 11. His attorney informed the IJ of the pending application for extension of his H-1B visa, and the government informed the IJ of the administrative Certificate of Revocation that had been issued prior to the expiration of El Badrawi’s visa. However, when the IJ asked how these facts affected El Badrawi’s immigration status, the government’s attorney responded, “I’m not prepared to address all these particular issues. . . . I do not want to get into the merits of the case.” Id. at 10-11. The IJ concluded that he could not resolve the issue then. Id. at 11 (“I don’t know whether he’s in status or not, and I don’t know what the effect of the revocation is”).
At that next hearing, on November 10, 2004, no one ever mentioned the issue of El Badrawi’s immigration status or whether he was actually subject to removal. Instead, at the start of the hearing, the government’s attorney immediately informed the IJ that the parties had agreed to voluntary departure under safeguards “as soon as possible.” USA Ex. 41 at 1. The IJ accepted that agreement and informed El Badrawi that he would be “escorted to JFK, but this is not a deportation order, which makes it easier for you in the future to get another visa.” Id. at 2. At no point in the two-page transcript of this proceeding does El Badrawi concede that he was removable. Id. at 1-2.
The government contends that an agreement to voluntary departure is, in effect, a concession of removability, because 8 C.F.R. § 1240.26(b) requires the alien to
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concede removability before an IJ may grant voluntary departure. The government asserts that El Badrawi’s agreement to voluntary departure, with this supposed implicit concession of removability, is binding because it is “akin to a plea bargain.”
The government’s reading of 8 C.F.R. § 1240.26(b) is contested. El Badrawi contends that this regulation provides two different procedures for obtaining voluntary departure: by grant of an IJ, as described in subsection (b)(1), and by stipulation of the parties as described in subsection (b)(2). The requirement that the alien concede removability appears only in subsection (b)(1). El Badrawi argues that such a concession is not required where the parties stipulate pursuant to subsection (b)(2). The government, on the other hand, argues that a stipulation under subsection (b)(2) is not an entirely separate procedure and that, even with a stipulation, the IJ must still grant voluntary departure under subsection (b)(1) and must still require a concession of removability. The court need not resolve this dispute, because the government’s reading only supports the conclusion that the IJ ought to have required El Badrawi to concede removability, whereas the transcripts show that the IJ did not so require, and El Badrawi did not so concede.
Assuming for the sake of argument that the IJ should have required a concession of removability, and granting the fact that an agreement to voluntary departure can be binding, the court finds that the agreement at issue here did not constitute a binding concession of removability by El Badrawi. As a general rule, where an issue in litigation is resolved by stipulation, its binding effect in future litigation depends upon the parties’ intent: “Most courts have held that a fact established in prior litigation by stipulation, rather than by judicial resolution, has not been ‘actually litigated.’ However, we have
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specified that where parties intend a stipulation to be binding in future litigation, issues to which the parties have stipulated will be considered ‘actually litigated’ for collateral estoppel purposes.” Uzdavines v. Weeks Marine, Inc., 418 F.3d 138, 146-47 (2d Cir. 2005) (citations omitted) (emphasis added); accord United States v. Real Property Located at 22 Santa Barbara Dr., 264 F.3d 860, 873 (9th Cir. 2001) (“A stipulation may meet the ‘fully litigated’ requirement where it is clear that the parties intended the stipulation of settlement and judgment entered thereon to adjudicate once and for all the issues raised in that action”) (quotation omitted); Red Lake Band v. United States, 607 F.2d 930, 934 (Ct. Cl. 1979) (“[A]n issue is not ‘actually litigated’ for purposes of collateral estoppel unless the parties to the stipulation manifest an intent to be bound in a subsequent action”).
There are no material issues of fact with respect to the Immigration Court proceedings. The record before the court establishes, as a matter of law, that the parties did not intend a binding resolution of the issue of El Badrawi’s removability. Nothing in the record suggests that El Badrawi intended for that issue to be resolved. Moreover, if the government had intended for the agreement to include a binding concession of removability, the government was in a position to insist on such a concession under any reading of the relevant regulation. See 8 C.F.R. § 1240.26(b)(1) (requiring, inter alia, a concession of removability for an IJ’s grant of voluntary departure) & (b)(2) (permitting the Attorney General to stipulate to voluntary departure). Instead, the record shows that the parties cut off litigation of the issue of removability and that El Badrawi never made any concession on this point. Therefore, the parties’ agreement to voluntary departure does not constitute a binding concession that El
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Badrawi was removable based on the charge in the Notice to Appear and does not preclude litigation of the related issue of whether or not the government had probable cause to arrest him.
Finally, the government also notes that, although the hearing ended without any concession and without any discussion of whether El Badrawi was removable, the IJ issued a form order that begins: “Upon the basis of respondent’s admissions, I have determined that the respondent is subject to removal on the charge(s) in the Notice to Appear.” USA Ex. 42. There is no explanation of the “admissions” to which the Order refers. It is clear, however, that “admissions” does not refer to any express admission of removability, as the record shows that there was not one.
The IJ’s unsupported finding of removability also does not support collateral estoppel. As already explained, the record shows that the parties did not actually litigate the issue, and there is no evidence that they intended for the IJ to resolve this issue. In addition, the government has not shown that it was necessary for the IJ to make this determination. Even assuming the government’s reading of 8 C.F.R. § 1240.26(b) is correct, it would have been El Badrawi’s concession of removability that was required, not the IJ’s independent determination of removability. Therefore, the IJ’s finding of removability appears to be gratuitous, not the resolution of an issue that was actually and necessarily litigated.
In sum, the record shows that the parties did not actually and necessarily litigate the issue of whether El Badrawi was removable for overstaying his visa in the immigration proceedings. Therefore, the immigration proceedings do not preclude El Badrawi from litigating that issue here.
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2. Law of the Case Does Not Bar Reconsideration
Turning to the merits of El Badrawi’s claim, the parties agree that the issue
depends entirely on the interpretation of 8 C.F.R. § 274a.12(b)(20). See, e.g., USA
Reply at 3; Pl. Mem. at 24. That regulation provides, in part:
A nonimmigrant alien [who was admitted under one of various forms of work-based visas, including an H-1B visa] whose status has expired but who has filed a timely application for an extension of such stay . . . [is] authorized to continue employment with the same employer for a period not to exceed 240 days beginning on the date of the expiration of the authorized period of stay.
8 C.F.R. § 274a.12(b)(20). The government contends that this extension applies only to
an alien’s authorization to work in the United States and that it does not extend an
alien’s authorization to be in the United States. The government argues that an alien
may remain in the country during this period, but he does so subject to the
government’s discretion to arrest, detain, and remove him.
El Badrawi notes that the court has already rejected that interpretation and
argues that the claim for false arrest can be resolved simply by application of the law of
the case doctrine. In El Badrawi I, the court rejected the government’s proposed
reading:
Ultimately, the government’s interpretation of 8 C.F.R. § 274a.12(b)(20) makes little sense. El Badrawi’s reading, in which employment authorization necessarily includes the right to physically remain in the country, is a much more reasonable one. And with this interpretation clarified, it becomes clear that Manack and Loser lacked probable cause to arrest El Badrawi. El Badrawi’s FTCA claim for false arrest/false imprisonment survives the government’s Motion to Dismiss.
El Badrawi I, 579 F. Supp. 2d at 278.
“As most commonly defined, the [law of the case] doctrine posits that when a
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court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” Arizona v. California, 460 U.S. 605, 618 (1983). Strict application of this doctrine would appear to resolve the merits of this claim. However, the court is mindful that the “doctrine of law of the case is not an inviolate rule, and the decision whether or not to apply law-of-the-case is, in turn, informed principally by the concern that disregard of an earlier ruling should not be allowed to prejudice the party seeking the benefit of the doctrine.” United States v. Uccio, 940 F.2d 753, 758 (2d Cir. 1991) (internal quotation and citations omitted). “In this context ‘prejudice’ . . . refers to a lack of sufficiency of notice’ or a lack of sufficient ‘opportunity to prepare armed with the knowledge [the prior ruling is not deemed controlling].’” Id. (quoting United States v. Birney, 686 F.2d 102, 107 (2d Cir. 1982)). Furthermore, law of the case should not be followed if there are “cogent and compelling reasons to deviate, such as an intervening change of controlling law, the availability of new evidence, or the need to correct a clear or prevent manifest injustice.” Uccio, 940 F.2d at 758 (quotations omitted).
In light of these standards, the court does not rely on the law of the case doctrine. El Badrawi is not prejudiced, in the requisite sense, by the court’s reconsideration of this issue. El Badrawi has not been unfairly surprised by the government’s reassertion of its position, and his counsel have briefed the issue extensively in connection with the pending motions. Furthermore, interpretation of the regulation requires consideration of whether deference is due to an agency interpretation of this regulation, and the parties have now had a more adequate opportunity to develop the record on that issue. See Davidson v. Bartholome, 460 F.
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Supp. 2d 436, 443 (S.D.N.Y. 2006) (“it is well settled that the law of the case doctrine does not preclude a court from entertaining a subsequent summary judgment motion on the basis of an amplified record”). Therefore, the court considers each of the government’s arguments below. However, after such consideration, the court remains persuaded that its prior holding is correct.
3. Government Counsel’s Reading Is Not Entitled to Deference The government contends that its reading is owed deference as an agency’s interpretation of its own regulation. Generally, an agency’s interpretation of its regulations deserves deference “unless plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997). “We give ‘substantial deference’ to an agency’s interpretation of its own regulations, ‘only setting it aside if the plain language of the regulation or ‘other indications of the [agency’s] intent’ require another interpretation.” Fabi Constr. Co. v. Secretary of Labor, 508 F.3d 1077, 1080-81 (D.C. Cir. 2007) (quoting Thomas Jefferson Univesity v. Shalala, 512 U.S. 504, 512 (1994)); accord Rock of Ages Corp. v. Secretary of Labor, 170 F.3d 148, 154 (2d Cir. 1999). In order to qualify for deference, the proposed interpretation must, in fact, be the agency’s official and settled interpretation: “We have never applied [deference] to agency litigating positions that are wholly unsupported by regulations, rulings, or administrative practice. To the contrary, we have declined to give deference to an agency counsel’s interpretation of a statute where the agency itself has articulated no position on the question . . . . Deference to what appears to be nothing more than an agency’s convenient litigation position would be entirely inappropriate.” Bowen v.
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Georgetown Univ. Hospital, 488 U.S. 204, 212-13 (1988); see also Long Island Care at

Home, Ltd. v. Coke, 551 U.S. 158, 171 (2007) (granting deference because the

“agency’s course of action indicates that the interpretation reflects its considered

views”); Auer, 519 U.S. at 462 (granting deference because “the Secretary’s position is

in no sense a ‘post hoc rationalization’” but instead “reflect[s] the agency’s fair and

settled judgment”).

The court’s analysis begins with the text of the regulation. The provision at issue

states:

(b) Aliens authorized for employment with a specific employer incident to status. The following classes of nonimmigrant aliens are authorized to be employed in the United States by the specific employer and subject to the restrictions described in the section(s) of this chapter indicated as a condition of their admission in, or subsequent change to, such classification. An alien in one of these classes is not issued an employment authorization document by the Service:

*

*

*

(20) A nonimmigrant alien within the class of aliens described in [certain specified subsections of this section (b)] whose status has expired but who has filed a timely application for an extension of such stay. These aliens are authorized to continue employment with the same employer for a period not to exceed 240 days beginning on the date of the expiration of authorized stay. Such authorization shall be subject to any conditions and limitations noted on the initial authorization. However, if the district director or service center director . . . denies the application for extension of stay, the employment authorization under this paragraph shall be automatically terminated upon notification of the denial decision[.]

8 C.F.R. § 274a.12(b)(20) (emphasis added).

Focusing first on the text of subsection (20) itself, the authorization to “continue

employment with the same employer” is stated in nearly unconditional terms. The only

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two conditions are with regard to time and with regard to any conditions of the initial authorization. With regard to time, the regulation states that the extension begins immediately, on the date that the period of previously authorized stay expires. With regard to the conditions of the initial authorization, the regulation continues all “conditions and limitations noted on the initial authorization.” This appears to indicate that the temporary authorization carries forward the same terms that applied prior to the expiration. The government’s position—that, in order to avoid arrest and deportation, the alien must obtain separate authorization to stay in the country or must leave the country until she does—is difficult to square with language stating an unconditional authorization to continue employment under the same terms from the day that the visa expires. At the very least, it is fair to say that the government’s reading imposes extremely significant additional conditions upon the authorization stated in the regulation; those conditions are entirely unsupported by the text of the regulation; and those conditions significantly alter the meaning of the plain text. Thus, even limiting the focus to the text of subsection (20) itself, the agency’s interpretation is difficult to reconcile with the text of the regulation.
Reading subsection (20) in the context of 8 C.F.R. § 274a.12(b) as a whole, the problems with the government’s interpretation increase. The right to work provided by this regulation is expressly described as a right “incident to status.” 8 C.F.R. § 274a.12(b). It is described this way because employment in the country is the very reason that aliens affected by this regulation are permitted to be in the country. See, e.g., 8 U.S.C. § 1101(a)(15)(H) (giving authority for the H-1B visa program by identifying classes of aliens permitted to “com[e] temporarily to the United States to perform
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services”); 8 C.F.R. § 214.2(h)(1)(i) (providing that, under the H-1B visa program, “an alien may be authorized to come to the United States temporarily to perform services or labor for, or to receive training from, an employer, if petitioned for by that employer”). Thus, for the classes of aliens affected by subsection (b), work authorization is part and parcel of their authorization to be in the country, not a separate matter. The direct connection between these two rights is further highlighted by the fact that such aliens are “not issued a separate employment authorization document by the Service.” 8 C.F.R. § 274a.12(b).
Despite this direct connection between work authorization and immigration status, the government contends that its reading is permissible because, as a general matter in immigration law, the right to be in the country and the right to work in the country do not always go together. It is undisputed that the right to be in the country does not generally imply the right to work in the country. The court need not determine whether the right to work in the country always implies the right to be in the country.3 The question here is whether this particular regulation’s grant of authority to continue employment includes a right to be in the country. The fact that section 274a.12(b) pertains solely to aliens whose immigration status is based and conditioned upon their need to work in the country strongly indicates that the two rights go together here. An
3 The government did not identify any law or regulation—other than the regulation at issue here— that provides work authorization to an alien who is not protected against arrest and removal. The government did call attention to one part of the immigration code, in which Congress expressly provided protection against removal in addition to work authorization. Congress provided that when the Attorney General grants temporary protective status, he “shall not remove the alien from the United States,” 8 U.S.C. § 1254a(a)(1)(A), and “shall authorize the alien to engage in employment in the United States,” 8 U.S.C. § 1254a(a)(1)(B). This statute’s clarity in this regard is commendable, and it serves to highlight the agency’s unfortunate decision not to speak as clearly in the regulation at issue here. However, this does not show that the express authorization to “continue employment” in the country in the regulation at issue here can or should be read to exclude the right to be in the country. Indeed, what authorization is it to “continue employment” in the United States, but be required to be outside the United States?
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extension of only the right to work, without the right to remain in the country, is at odds with the nature and purpose of the affected work-based visa programs.
In sum, the government’s reading conflicts with the text of the regulation. The government’s interpretation would render the authorization to “continue employment with the same employer” meaningless. An alien may not “continue employment with the same employer” in the United States if that alien may not remain in the United States. Although, in some instances, work authorization may be a separate matter from immigration status, this does not show that the regulation at issue here can be read to extend only work authorization. For H-1B visa holders, and for all other aliens affected by this regulatory provision at issue, work authorization and immigration status go handin-hand. By its terms, the regulatory provision at issue addresses work authorization that is granted “incident to status.” 8 C.F.R. § 274a.12(b). On the government’s reading, however, subsection (b)(20) of that provision grants a form of work authorization that is entirely separate from, not incident to, status. Because the government’s reading cannot be reconciled with the text of the regulation, it is not entitled to deference.
In addition, the government has failed to show that its proposed reading is the agency’s settled interpretation, rather than an expedient litigation position. First, the government fails to identify a single agency publication or internal memorandum showing that the Department of Homeland Security (“DHS”), its subsidiary agencies, or their predecessors, ever took the view that the government now asserts with respect to
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the regulation at issue.4 The government argues instead that its position is supported
by agency practice. However, despite being pressed to do so repeatedly in this
litigation, the government has failed to make a record of any other case in which it has
sought to remove an alien based on this interpretation of the regulation.5
Indeed, the only pieces of record evidence suggesting that anyone in DHS has
ever taken the position that the government asserts here are the IJ’s Order with respect
to El Badrawi, USA Ex. 42, and the testimony of Agent Manack, the ICE agent who
4 The parties both cite various internal agency memoranda, but as the parties both concede, none of them purport to interpret the regulation at issue or consider how it affects removability. El Badrawi relies on INS Memoranda from 2000, 2002, and 2003. These memoranda indicate that, as a general matter, the agency viewed timely-filed applications for extension of stay or change of status as giving rise to a period of “authorized stay” which is distinct from “authorized status.” See Pl. Exs. 43, 44, 45. However, these memoranda are focused on how such applications may bear on subsequent admission into the country, and they do not consider the impact of 8 C.F.R. § 274a.12(b)(20). Therefore, although these memoranda provide some support for El Badrawi’s position, they do not explain whether, as a general matter, aliens might be removable despite being in a period of “authorized stay,” nor whether 8 C.F.R. § 274a.12(b)(20) would alter any such general rule.
The government responds with internal USCIS Memoranda from 2008 and 2009, after this litigation began. Neither of these Memoranda address the question of whether an alien is removable as an overstay during the extension period provided by 8 C.F.R. § 274a.12(b)(20). The 2008 Memo is cited for the uncontroversial “general” rule that, “[e]xpiration . . . of status puts a nonimmigrant out of status, and the alien remains out of status until some adjudication restores status or the alien departs.” USA Ex. 58, at 5. The 2008 Memo does not address whether 8 C.F.R. § 274a.12(b)(20) modifies this general rule.
In a passage selectively quoted by the government, the 2009 Memo provides: “As a matter of prosecutorial discretion, DHS may permit an alien who is present in the United States unlawfully, but who has pending an application that stops the accrual of unlawful presence, to remain in the United States while that application is pending. In this sense the alien’s remaining can be said to be ‘authorized.’ However, the fact that the alien does not accrue unlawful presence does not mean that the alien’s presence in the United States is actually lawful.” USA Ex. 57 at 9. By its own terms, this passage applies to aliens who are present unlawfully and have been permitted to remain only as a matter of prosecutorial discretion. Therefore, this passage is relevant only if one assumes that El Badrawi was present unlawfully. The passage’s reference to a pending application does not support such an assumption. The explanatory examples that follow this passage involve aliens who have filed an application for adjustment of status, but have allowed their visa to expire without filing any application for extension of stay. USA Ex. 57 at 9-10. These examples indicate that this passage concerns aliens who are unlike El Badrawi in so far as they (1) have not filed a timely application for extension of stay and (2) are not entitled to the benefit of 8 C.F.R. § 274a.12(b)(20).
5 Although the government may credibly claim that agency record keeping does not permit it to identify all of the times in which it has done so, Gov’t Reply at 5 n.3, that does not explain why it could not identify one such instance, if there were one.
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issued the order to arrest El Badrawi, USA Ex. 9 at 181-92.6 The government does not
contend that either the IJ or Agent Manack has been delegated authority to establish
official DHS policy. The IJ’s Order states no reasoning and shows no consideration of
the regulatory provision at issue. See USA Ex. 42. Nor does Agent Manack’s
testimony indicate what DHS’s policy is. Agent Manack stated that he arrived at his
reading of the regulation based on his training and experience, but he admitted that he
could not recall being provided with any agency guidance on the meaning of the specific
regulation at issue. Id. at 183. Agent Manack also admitted that he could not recall any
case in which he or anyone else at ICE had ever arrested or initiated removal
proceedings against an alien covered by the provision at issue here. Id. at 190-91.
This testimony provides no indication that Agent Manack’s reading of the regulation
reflects the settled view of DHS, rather than a mistaken view of the law held by an ICE agent.7
It would be generous to say that there is a lack of evidence supporting DHS’s
position on this regulation. In fact, there is evidence that the government’s proposal
here is not DHS’s view. Perhaps the most significant piece of evidence on this issue is
6 At oral argument, the government claimed that the decision to arrest El Badrawi had been considered and approved by the ICE Office in Boston, as well as the ICE office in Hartford, indicating a consensus view across multiple ICE offices that El Badrawi was subject to removal despite the extension provided by section 274a.12(b)(20). The record conflicts with that assertion. Matthew Etre, the government’s 30(b)(6) witness on the Boston office’s involvement in the investigation of El Badrawi, testified that no one in the Boston ICE office made any determination as to whether El Badrawi was in a valid immigration status. USA Ex. 4 at 100-01. Etre testified that the determination that El Badrawi was out of status was made by the Hartford ICE office after El Badrawi’s case had been transferred from Boston to Hartford, id., and that the Boston office was not involved in El Badrawi’s case after the investigation was transferred to the Hartford office, id. at 20.
7 The government also cites a BIA opinion, In re Rotimi, 24 I. & N. Dec. 567 (BIA 2008), in support of its reading. Because, as explained in the following section, that opinion does not concern the regulation at issue here and is expressly limited to the facts and legal issues in that case, the court finds that that opinion does not provide evidence of a settled agency interpretation of the regulation at issue in this case. That opinion is considered below for its ability to persuade. See, infra, at 35-38.
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provided by a DHS publication intended to assist aliens in understanding the law. In an
August 2008 “Customer Guide” pamphlet entitled, “I Am a Nonimmigrant. How Do I . . .
Extend My Nonimmigrant Stay in the United States?,” Pl. Ex. 39, USCIS, an agency
within DHS, explains the criteria for and the process of applying for an extension of,
inter alia, an H-1B visa, and then provides guidance in a series of questions and answers.8 In response to the question, “What if I file [for an extension of stay] on time
but USCIS doesn’t make a decision before my I-94 expires?,” the USCIS Guide
provides the following answer:
If we receive your application before your status expires, and if you have not violated the terms of your status and meet the basic eligibility requirements, you may continue your previously approved activities in the United States (including previously authorized work) for a maximum period of 240 days, or until the first of the following occurs:
• We make a decision on your application; or
• The reason for your requested extension has been accomplished.
If your application is denied after your previously approved stay has expired and you are still in the United States, you will be considered ‘out of status’ as of the date of your original period of stay expired. You must cease employment (if such employment was authorized) and depart the United States immediately.
Pl. Ex. 39 at 2 (emphasis added).
The USCIS Customer Guide provides quite different guidance with respect to
aliens who file an untimely application for extension of stay. In response to the
8 This USCIS Customer Guide remains available on the USCIS website. A nonimmigrant alien or an employer seeking guidance on the agency’s view of the law need only go to www.uscis.gov, and click on “Resources,” then “How Do I Customer Guides,” then “Nonimmigrant,” and then “How Do I Extend My Nonimmigrant Stay in the U.S.?” As of the date of this Ruling, those steps would bring one to a pdf version of the Guide, located at http://www.uscis.gov/USCIS/Resources/C1en.pdf.
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question, “Can I get an extension of stay if my status already expired?,” the Guide provides:
If your status expired before you filed an application with USCIS to extend your stay in the United States, or if you have otherwise violated the terms of your status (such as by working without authorization), then you are “out of status.” . . . . If you fall out of status, we recommend that you leave the United States as soon as possible to limit the possible impact on your ability to the United States in the future. Pl. Ex. 39 at 2 (emphasis added). These answers cannot be squared with the position that the government advances here. They indicate that the alien will be considered “out of status” only if the application is not timely filed, if the alien has violated the terms of his status, or if the timely-filed application is denied. In contrast, where an application is timely filed, the Guide states, “you may continue your previously approved activities in the United States (including previously authorized work).” Pl. Ex. 39 at 2. This permission can only be read to include permission to be present in the United States. It is plainly not limited to work, as work is listed as just one example of “previously approved activities,” and being present in and temporarily residing in the United States are certainly among the “previously approved activities” of an alien admitted on a nonimmigrant visa. Furthermore, where the extension application is timely-filed, the Guide indicates that the alien will be considered “out of status” only if the application is denied, and that, upon such denial, the alien then “must cease employment (if such employment was authorized) and depart the United States immediately.” Id. This plainly indicates that DHS’s position is that the alien may remain in the United States until the application is denied and need only leave once it is denied. Finally, the Guide contemplates that the alien might “accomplish” the reason for the requested extension (e.g., complete the
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work project that forms the basis for a work-based visa) during the time that the extension application is pending. Id. This further indicates that DHS intended that the alien may remain in the United States and continue to work while the application is pending. Thus, the USCIS Customer Guide shows that the interpretation advanced here is not DHS’s official or settled position.9
Given the lack of support for the government’s proposed reading, the government argues that an agency interpretation may be entitled to deference even though it is first stated in the course of litigation. See Long Island Home Care, 551 U.S. at 171; Auer, 519 U.S. at 462; Rock of Ages, 170 F.3d at 156. But those cases do not support deference here. In Auer, the agency interpretation was set forth in the Secretary of Labor’s amicus brief, provided at the request of the Supreme Court. 519 U.S. at 461. Because the Secretary was not a party to the case and because the amicus brief clearly required the Secretary to consider and state the Department’s official position, the Court concluded that the interpretation could not be gainsaid as a “post hoc rationalization advanced by an agency seeking to defend past agency action against attach” and that there was “no reason to suspect that the interpretation does not reflect the agency’s fair and considered judgment on the matter in question.” Id. at 462. Furthermore, the Court found that the regulation “comfortably bears” the Secretary’s interpretation. Id.
9 The government fails to address the significance of the USCIS Customer Guide and offers no explanation of how DHS could consistently provide this information to aliens and yet take the position that they remain subject to arrest and deportation at any time while the application is pending. In a footnote, the government dismissively assets, “[T]hat pamphlet does not in any way limit ICE’s authority to arrest aliens who overstay their authorized period of admission. Although plaintiff may feel the pamphlet ‘assumes’ that aliens cannot be removed, that assumption cannot trump the agency’s interpretation of the regulation.” Gov’t Reply at 8 n.5 (citation to Plaintiff’s Memo omitted). This response ignores the fact that the USCIS Guide is the strongest piece of record evidence of the agency’s interpretation.
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Similarly, in Long Island Home Care, the Department of Labor was not a party to the litigation. Instead, the litigation between private parties, see 551 U.S. at 164, turned on a controversial Department interpretation that had first been set forth in an internal memorandum after the litigation began, 551 U.S. at 171. In addition to the internal memorandum, however, the Department initiated the notice-and-comment rulemaking process in order to codify the new interpretation. 551 U.S. at 170-171. Thus, there could be no doubt that the interpretation was the Department’s official position. Furthermore, the Court found it likely that the interpretation “create[d] no unfair surprise.” Id.
In Rock of Ages, the interpretation was advanced by the Mine Safety and Health Review Commission, acting in its statutorily-assigned capacity as an appellate review board for agency adjudications. 170 F.3d at 154. Congress has expressly delegated to the Commission the authority to issue rules and precedential decisions and to address “questions of law, policy or discretion” raised in agency adjudications. 30 U.S.C. § 823(d)(2)(A)(ii). The Second Circuit, considering an as-applied due process challenge, noted that the “an agency’s interpretation of a regulation is not undeserving of deference merely because it is advanced by the agency for the first time.” Rock of Ages, 170 F.3d at 156. However, before deciding that the Commission’s interpretation was, in fact, deserving of deference, the Second Circuit determined that the Commission’s interpretation was “consistent with the language, history and purpose” of the regulation and that the “plain language [of the regulation] gives fair notice of what it requires.” Id.
Any analogy to these three cases begins and ends with the fact that, in this case,
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the government’s proposed interpretation was previously unannounced. Here, there is no record showing that anyone at a policy-making level in DHS has ever taken the position advanced by government here. To the contrary, the only directly pertinent agency publication is directly contrary to the government’s proposed interpretation. See, supra, at 21-26. Moreover, DHS was named as a defendant in this highly controversial litigation, and its agents’ interpretation and application of the regulation forms the basis for plaintiff’s claim. Thus, the circumstances of this case provide no reassurance that the government’s position is not simply a “post hoc rationalization.” See Bowen, 488 U.S. at 212-213 (“Deference to what appears to be nothing more than an agency’s convenient litigation position would be entirely inappropriate”). Finally, it cannot be said that the regulation “comfortably bears” the reading proposed by the government, Auer, 519 U.S. at 462, or that the proposed reading is “consistent with the language, history and purpose” of the regulation, Rock of Ages, 170 F.3d at 156. See, supra, at 18-21. In sum, the record indicates that the reading proposed by government counsel is not, in fact, the “fair and considered judgment” of DHS. Therefore, the court concludes that the reading proposed by government counsel is not entitled to deference.
The court’s conclusion is buttressed by the fact that the government’s proposed interpretation presents grave due process concerns. The government has argued that, on its reading of 8 C.F.R. § 274a.12(b)(20), an alien who has filed a timely application for extension may remain in the country, but if he does, the government has discretion to arrest, detain, and remove him. There is a serious question as to whether this interpretation is consistent with the Fifth Amendment’s Due Process Clause. Therefore,
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it would not be entitled to deference, even if it were the agency’s interpretation. Courts must avoid an interpretation of a statute or a regulation that would raise “a
serious doubt” as to its constitutionality. Zadvydas v. Davis, 533 U.S. 678, 689 (2001) (reading an implicit limitation into an immigration statute authorizing indefinite detention in order to avoid unconstitutionality under the Due Process Clause); see also Dent v. Holder, 627 F.3d 365, 374 (9th Cir. 2010) (“doctrine of constitutional avoidance requires us to construe the statute and the regulation, if possible, to avoid a serious constitutional question”). This principle of constitutional avoidance trumps deference to an agency’s interpretation. Solid Waste Agency of N. Cook County v. Army Corps of Engineers, 531 U.S. 159, 174 (2001) (refusing to defer to an agency’s interpretation where “significant constitutional questions [are] raised by respondents’ application of their regulations”); DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 574-75 (1988) (an “interpretation by the Board would normally be entitled to deference” but the doctrine of avoiding constitutional problems required a different result); Blake v. Carbone, 489 F.3d 88, 100 (2d Cir. 2007) (by deferring in the face of constitutional problems, “we would abdicate our dual responsibilities to uphold the Constitution and to ensure the executive and legislative branches’ compliance therewith”).
Authority relied upon by the government holds that “[d]ue process requires that regulations be sufficiently specific to give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.” Rock of Ages, 170 F.3d at 156 (quotation omitted); cf. Long Island Care, 551 U.S at 170-71 (changes in interpretation are not a basis to disregard an agency interpretation “as long as interpretive changes
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create no unfair surprise”). This principle of fair notice is well established in administrative law. See, e.g., County of Suffolk v. First American Real Estate, 261 F.3d 179, 195 (2d Cir. 2001) (“Due process requires that before a . . . significant civil or administrative penalty attaches, an individual must have fair warning of the conduct prohibited by the statute or regulation that makes such sanction possible”); United States v. Approximately 64,695 Pounds of Shark Fins, 520 F.3d 976, 980 (9th Cir. 2008) (“Due process requires that an agency provide fair notice of what conduct is prohibited before a sanction can be imposed”) (quotation omitted); Trinity Broadcasting of Florida, Inc. v. FCC, 211 F.3d 618, 628 (D.C. Cir. 2002) (“we have repeatedly held that in the absence of notice—for example where the regulation is not sufficiently clear to warn a party about what is expected of it—an agency may not deprive a party of property by imposing civil or criminal liability”) (quotation omitted); General Elec. Co. v. E.P.A., 53 F.3d 1324, 1328 (D.C. Cir. 1995) (“The due process clause thus prevents . . . deference from validating the application of a regulation that fails to give fair warning of the conduct it prohibits or requires”) (quotation omitted).
The government’s interpretation of section 274a.12(b)(20) implicates liberty interests that are protected by the Due Process Clause. First, on the government’s interpretation, aliens who do continue their employment may be arrested and detained. “The Fifth Amendment’s Due Process Clause forbids the Government to ‘depriv[e]’ any ‘person . . . of . . . liberty . . . without due process of law.’ Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects.” Zadvydas, 533 U.S. at 690. Second, on the government’s interpretation, these aliens are subject to removal
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from the country, which also gives rise to serious due process concerns. See Jordan v.
De George, 341 U.S. 223, 231 (1951) (“Despite the fact that [the Immigration Act of
1917] is not a criminal statute, we shall nevertheless examine the application of the
vagueness doctrine to this case. We do this in view of the grave nature of deportation”);
Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948) (“We resolve doubts in favor of that
construction because deportation is a drastic measure and at times the equivalent of
banishment or exile”); Duarte-Ceri v. Holder, 630 F.3d 83, 89 (2d Cir. 2010)
(“deportation is a drastic measure” (quoting Fong Haw Tan, 333 U.S. at 6)); Restepo v.
McElroy, 369 F.3d 627, 635-36 n.16 (2d Cir. 2004) (“[D]eportation, like some other kinds
of civil sanctions, combines an unmistakable punitive aspect with non-punitive
aspects. . . . As such, procedures and limits more akin to those of criminal law may be
appropriate”). The record in the present case illustrates that an arrest for an alleged
immigration violation can lead to lengthy incarceration, under conditions that are
unpleasant, if not violative of other basic Constitutional rights, and can bring an abrupt
and unexpected termination to an established and productive career. Therefore, due
process requires notice that such consequences may follow from remaining in the country during the period of extension provided by section 274a.12(b)(20).10
10 The due process concerns here are exacerbated by the fact that immigration laws provide limited post-arrest review of an ICE agent’s decision to arrest and detain an immigrant. An alien’s opportunity to be heard on the charge of overstaying his period of admission consists solely of an administrative hearing, in which he bears the burden of proving that he had been lawfully admitted by clear and convincing evidence. See 8 U.S.C. § 1229a(c)(2)(B). In El Badrawi’s case, the first such opportunity came five days after his arrest and detention. Moreover, because the government was not prepared to address the merits at that time, a hearing to address whether El Badrawi was removable was delayed an additional week, during which time El Badrawi remained in custody. No immigration procedure provided El Badrawi with a right to obtain his release while awaiting a hearing and decision on the charge in the Notice to Appear. See 8 U.S.C. § 1226(a) (providing the arresting officials with apparently unlimited discretion to detain the alien pending a decision on whether the alien is to be removed); 8 C.F.R. § 236.1(c)(8) (permitting the arresting officials with discretion to release the alien prior to the removal hearing only if the alien “demonstrate[s] to the satisfaction of the officer that such release
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Based on the text of the regulation, aliens making a good faith effort to comply
with immigration law could not reasonably be expected to anticipate the position
advanced by the government, i.e., that despite being admitted under a work-based visa,
and despite an express government authorization to continue that work while a timely-
filed extension application is pending, they remain subject to arrest, detention, and removal at any time.11 Given its plain meaning, the regulation gives rise to a reasonable
expectation that affected aliens “are authorized to continue employment with the same
employer” subject to the same conditions and limitations that applied during their
previously authorized period of stay.
Where a complicated or unclear regulation raises concerns about pre-
enforcement notice, these concerns can sometimes be addressed through the agency’s
enforcement process (e.g., through a non-punitive warning issued prior to the
attachment of sanctions) or through guidance in agency publications. See General
Elec., 53 F.3d at 1329 (notice may be provided by “the agency’s pre-violation contact
with the regulated party” or by “the regulations and other public statements issued by
the agency”). Such is not the case here. There was no direct, pre-enforcement warning
to El Badrawi. There is not even any indication that an affected alien might have
would not pose a danger or property to persons, and the alien is likely to appear for any future proceedings”); 8 C.F.R. § 236.1(d)(1) (permitting an immigration judge to exercise apparently unlimited discretion in determining whether to detain the alien prior to a decision on the removal charges). Where post-arrest, pre-hearing remedies are so limited, clear notice is surely required.
11 The regulation also fails to provide adequate notice to employer-sponsors of H-1B visas. These employers expend considerable resources to comply with the law and obtain H-1B visas for employees, with the expectation of addressing their special labor needs. Accordingly, they have a significant interest in having those alien employees be available to work without risk of sudden, unexpected arrest and deportation. The brief of amici curiae American Immigration Council and American Immigration Lawyers Association, with supporting declarations from employers who rely on the H-1B visa program, highlights the substantial interest that employers have in the administration of the H1B visa program, the lack of notice provided by the regulation at issue, and the hardship that the government’s proposed interpretation would impose upon them. See Brief Amici Curiae (Doc. No. 385).
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indirect notice through a pattern of enforcement actions against other similarly situated aliens. The only relevant agency guidance is the USCIS Customer Guide. That Guide is entitled to significant weight in this analysis, because it is published for the purpose of explaining the relevant regulation to the very people who are put at risk by the government’s proposed interpretation. That Guide plainly supports and fosters the expectation that aliens in El Badrawi’s position may remain in the country while awaiting a determination on their timely filed extension applications.
Most significantly, the government does not concede that any additional notice is needed. The government has argued that any alien who overstays his initial period of authorization should be aware that he is subject to removal, and that section 274a.12(b)(20) and the USCIS Guide do nothing to change this. The government maintains that the regulation leaves the government with unbridled discretion to arrest and detain aliens who remain in the country during the 240-day extension period. In other words, the government maintains that the authorization to continue employment in 8 C.F.R. § 274a.12(b)(20) should be interpreted as an authorization to continue employment, subject to the risk of arrest, detention, and removal, regardless of whether or not the government provides any advance notice of that risk.12
Construing section 274a.12(b)(20) in this manner would raise a serious doubt as to its constitutionality. It is highly doubtful that the Due Process Clause permits a law that expressly authorizes an alien to continue his employment in the country, subject,
12 This case would be dramatically different if DHS had provided guidance to affected aliens that section 274a.12(b)(20) does not protect them from arrest and removal. In that case, aliens in El Badrawi’s position could be deemed to have notice of the risks of remaining in the country while their application is pending and to have assumed that risk. The government would only need to argue section 274a.12(b)(20) leaves in tact its discretion to arrest, detain, and remove aliens, where advance notice has been given.
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implicitly, to the risk of arrest, detention, and removal, regardless of whether the government provides any notice of that risk. Even if the regulation were read to apply solely to work authorization, and not to provide protection against removal, due process would require, at least, that the government provide clear, advance notice of this reading to the aliens who are put at risk of arrest, detention, and removal. In the absence of such notice, the regulation may not be read to leave the government’s discretion to arrest, detain, and remove untouched. Because the regulation can easily be read to avoid the problems raised by the government’s interpretation, the court does not defer to and does not adopt the reading proposed by the government. Therefore, even if the government’s proposed reading were the settled view of DHS, that reading would not be entitled to deference.
In sum, the government’s proposed reading is inconsistent with the text of the regulation. There is no basis upon which to conclude that the government’s proposal reflects the considered view of the agency. No agency official with authority to set DHS policy has ever advanced the interpretation advanced by the government here, and there is no evidence, outside of the present case, that the government’s reading reflects DHS practice. Instead, the only official DHS publication that addresses this regulation directly contradicts the government’s proposed reading. Therefore, the government’s reading is not entitled to deference as an agency interpretation. Moreover, even if the government’s reading were official DHS policy, that reading would not be entitled to deference because there is a serious doubt that it can be reconciled with the Due Process Clause of the Fifth Amendment. On the government’s reading, the work authorization provided to an alien by section 274a.12(b)(20) is subject, implicitly, to the
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government’s unbridled discretion to arrest, detain, and remove the alien without notice. It is highly doubtful that a law with such significant, hidden consequences comports with due process. Therefore, the court would not defer to the government’s reading even if it had been shown to be DHS policy.
3. Case Law Does Not Support the Government’s Reading The government also relies on two recent, non-binding rulings that were not considered in El Badrawi I. Neither of these opinions directly addresses the issue before the court, and neither is controlling or persuasive. First, the government relies on a 2008 Board of Immigration Appeals opinion because it contains the statement, “work authorization is not equivalent to lawful status; nor is it necessarily reflective of a right to lawfully be or remain in this country.” In re Rotimi, 24 I. & N. Dec. 567, 578 (B.I.A. 2008). Rotimi did not involve a removal proceeding; it did not involve an H-1B visa holder; and, it did not involve the regulation at issue here. Instead, the issue before the Board was whether, in Rotimi’s admissibility proceeding, he was eligible for a waiver of the bar against his admission based on his prior conviction. This bar may be waived only if the alien had “lawfully resided continuously in this country for 7 years immediately proceeding the institution of proceedings.” 8 U.S.C. § 1182(h). The Board had to decide whether Rotimi had “lawfully resided” in the country during an earlier period in which his visa had expired but he had a pending asylum application and visa petition. The numerous limitations that the Board placed on its own holding show that this case has no direct application here. First, the Board explained that the phrase “lawfully resided” is unique to that admissibility provision (section 212(h)) of the Immigration and
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Naturalization Act. Rotimi, 24 I. & N. Dec. at 571 (“Significantly, the precise phrase
‘lawfully resided’ has not been employed elsewhere in the Act, and we are unaware of
its use in a comparable context”). Second, the Board emphasized that its decision was
limited to the interpretation of that phrase as applied to the facts of the case, and in
doing so, it made clear that its decision had no bearing on the case before us:
[W]e reject respondent’s reliance on [a Ninth Circuit case], at least to the extent it finds that ‘lawful’ residence arises simply from the inability to deport an alien coupled with the alien’s eligibility for work authorization. Importantly, we need now only resolve whether an applicant for privileges or benefits is deemed to have “lawfully resided” here for purposes of section 212(h) prior to a favorable action on the application, when the applicant enjoys no other status or privilege that prevents the initiation and completion of removal proceedings. Id. at 577 (footnote omitted).13 This passage is important in two respects. In the first
part of the passage, the Board specifically rejects the view that a bar against removal
entails “lawful residence.” This makes clear that an alien may lack “lawful residence,” in
the sense that the Board was concerned with, and yet not be subject to removal.
Therefore, the Board’s holding—that work authorization does not entail “lawful
residence,” id. at 578—is irrelevant here because whether or not one “lawfully resides”
is an entirely different question than whether or not one is removable. Even if “lawful
residence” were of any relevance to the present case, in the second portion of the
passage, the Board makes clear that its holding is also limited to the application of that
13 See also Rotimi, 24 I. & N. Dec. at 568 (“Further, we find it unnecessary to adopt a comprehensive definition of this statutory language in the context of this case”) and 571 (“Given the breadth of the possible issues that might arise in any particular alien’s situation, we find that it would be imprudent for us to attempt a comprehensive ruling that would address and resolve the many cases that are not before us”).
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phrase to an alien who cannot claim any specific legal protection against removal. Because El Badrawi reasonably contends that 8 C.F.R. § 274a.12(b)(20) does provide him with such protection, it cannot be assumed that the Board would have seen Rotimi and El Badrawi as similarly situated. Therefore, the Board’s holding in Rotimi has no direct bearing on the issue before this court.
To the extent that the government seeks some support in the Board’s reasoning, the Second Circuit’s opinion affirming the result in Rotimi forecloses application of that reasoning here. The Second Circuit opinion indicates that it affirmed the Board’s holding because it felt constrained to do so under the Chevron deference standard and because the Board’s repeated limitations of its holding foreclosed consideration of the consequences of the Board’s reasoning as applied to other cases. Rotimi v. Holder, 577 F.3d 133, 139 & n.5 (2d Cir. 2009) (noting that the court did not take account of the consequences for other cases because “the BIA did not attempt to craft an interpretation . . . that would apply to all cases”). However, two members of the panel signed a concurring opinion that roundly criticized the Board’s reasoning. E.g., id. at 141 (“Furthermore, I do not believe that any of the other sources relied upon by the BIA adequately explain why . . . lawful residence follows only from the grant of a specific privilege to remain in the country”). The concurrence explained that the Board’s interpretation would lead to “absurd and unjust consequences” if applied in cases where, like El Badrawi, the alien applied for the extension adequately before the expiration of his visa but the government inexcusably delayed in acting on that application. Id. at 142. The concurring judges refrained from reversing the Board because “Rotimi does not quite present such circumstances.” Id. In light of this
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criticism, the Board’s reasoning carries little, if any, weight. Second, the government relies on Bokhari v. Holder, 622 F.3d 357 (5th Cir.
2010), a recent Fifth Circuit decision that declined to follow this court’s holding in El Badrawi I. The Fifth Circuit did consider the regulation at issue here. However, it did not address whether an alien covered by the regulation was removable. Instead, the issue there was whether the alien was entitled to adjustment of status under 8 U.S.C. § 1255, a question which depended on whether he had “for an aggregate period exceeding 180 days failed to maintain, continuously, a lawful status.” See Bokhari, 622 F.3d at 360 (quoting 8 U.S.C. § 1255(k)(2)(a)). Bokhari’s employer had timely filed for an extension of his work-based visa, triggering application of 8 C.F.R. § 274a.12(b)(20). The Fifth Circuit explained, “The sole focus of our review, however, is whether Bokhari’s employment authorization, which he received automatically . . . gave him legal immigration status, as defined in 8 C.F.R. § 1245.1(d)(1)(ii).”14 Id. at 360. The Fifth Circuit declined to follow this court’s prior holding, stating instead that it found its own prior holding in United States v. Flores, 404 F.3d 320 (5th Cir. 2005), to be persuasive.15 Bokhari, 622 F.3d at 360-61. Without further discussion of the regulation, the Fifth Circuit asserted that, “Section 274a.12(b)(20), by its plain language addresses employment authorization only, and thus does not address an employee’s immigration status.” Id. at 361.
14 8 C.F.R. § 1245.1 is a regulation pertaining to section 245 of the Immigration and Naturalization Act, which is codified at 8 U.S.C. § 1255. 8 C.F.R. § 1245.1(d)(1) defines “lawful immigration status,” “for purposes of section 245(c)(2) of the Act,” to include, inter alia, an alien “whose initial period of admission has not expired or whose nonimmigrant status has been extended in accordance with part 214 of 8 CFR chapter I.” 8 C.F.R. § 214.1 addresses the process of applying for an extension of stay.
15 The Fifth Circuit also cited In re Teberen, 15 I. & N. Dec. 689, 690 (B.I.A. 1976). As this court noted in El Badrawi I, 579 F. Supp. 2d at 276-77, Teberen was decided 15 years before the adoption of the regulation at issue, and thus could not address that regulation.
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To the extent that the Bokhari court rested its interpretation on a general reference to the text of section 274a.12(b)(20), it is not persuasive to this court. The court has discussed the regulation in detail above. The citation to the Flores case is not persuasive either. In that case, the Fifth Circuit did not consider the regulation at issue here and did not consider whether an alien who is entitled to an automatic extension under that regulation is subject to removal. Instead, Flores holds that “an alien may be temporarily granted a stay of removal and be permitted to work during that stay, but still be considered ‘illegally or unlawfully in the United States’” for purposes of the ban on firearms provided in 18 U.S.C. § 922(g)(5)(A).16 Flores, 404 F.3d at 327; see also Bokhari, 622 F.3d at 360-61. The court is not persuaded that this holding has any bearing on the question of whether an alien whose employer has filed a timely application for a work-based visa, and who by operation of 8 C.F.R. § 274a.12(b)(20) receives authorization to continue his employment in this country subject to the same conditions, is nonetheless subject to arrest and deportation at the discretion of ICE’s officers. Neither Flores, nor Bokhari persuades the court that the government’s proposed reading here can or should be sustained.
4. Conclusion The government’s proposed interpretation of 8 C.F.R. § 274a.12(b)(20), i.e., that it extends authorization to work in the country, but not authorization to be in the country,
16 Section 922(g)(5)(A) of the criminal code makes it a crime for an alien who is “illegally or unlawfully in the United States” to transport, possess or receive a firearm. Because the very next subsection of the statute extends the same firearms prohibition to aliens who have been “admitted to the United States under a non-immigrant visa,” 18 U.S.C. § 922(g)(5)(B), the Flores court would have reached an odd result if it had found that aliens who have merely been granted a stay of removal were not subject to subsection (A). So holding would have meant that both illegal aliens and aliens with nonimmigrant visas could not possess firearms, but aliens who had been granted a temporary stay of removal could.
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cannot be squared with the text or purpose of that provision and is not entitled to deference. Instead, by authorizing aliens with work-related visas to “continue employment with the same employer” as of the date their visa expires and subject to the conditions and limitations of their prior authorization, that regulation is properly interpreted to authorize them to remain in the country while their application is pending.
There is no genuine dispute of material fact regarding El Badrawi’s claim for false arrest. It is undisputed that El Badrawi’s arrest was based solely on the charge that he had “remained in the United States beyond May 1, 2004, without authorization from the Immigration and Naturalization Service.” USA Ex. 31 (Notice to Appear). It is also undisputed that the ICE agents who issued the arrest warrant and arrested El Badrawi knew that El Badrawi had a pending extension of stay application that would trigger 8 C.F.R. § 274(a).12(b)(20). USA Ex. 29 at 2 (Record of investigation prepared by Agent Loser). It is not contended that the agents were aware of—or that there were—any other facts that might support probable cause to arrest El Badrawi, either on the charge stated in the Notice to Appear or under any other theory. Therefore, the most that can be said for the agents’ decision to arrest El Badrawi is that it rested upon a mistaken theory of the law. Under Connecticut law, a mistake of law does not support probable clause. See State v. Cyrus, 297 Conn. 829, 839 n.6 (2010) (holding that a mistake of law does not even support reasonable suspicion for a traffic stop) (citing United States v. McDonald, 453 F.3d 958, 961 (7th Cir. 2006)). An arrest without a warrant from a neutral magistrate and without probable cause is actionable for false arrest under Connecticut law. Beinhorn v. Saraceno, 23 Conn. App. 487, 491 (1990), cert. denied,
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217 Conn. 809 (1991).17 Therefore, with respect to this claim, the United States’ Motion for Summary Judgment is denied, and El Badrawi’s Motion of Summary Judgment is granted.
B. Abuse of Process In El Badrawi I, the court held that El Badrawi’s abuse of process claim against the United States survived “insofar as it was based on post-voluntary-departure detention . . . because El Badrawi alleges that, once the government had agreed to allow him to voluntary depart, the government nonetheless detained him without any legitimate immigration purpose.” El Badrawi I, 579 F. Supp. 2d at 278. Abuse of process creates liability for an individual who uses legal process against another individual “primarily to accomplish a purpose for which it is not designed.” Mozzochi v. Beck, 204 Conn. 490, 494 (1987) (quoting Restatement (Second) of Torts § 682) (internal quotation marks omitted). Accordingly, El Badrawi’s claim for abuse of process depends what could count as a “legitimate immigration purpose” for detention after voluntary departure is granted. The parties’ cross-motions reflect a substantial disagreement on that question. The court must resolve this legal issue first and then apply the resulting standard to determine whether there are any genuine issues of material fact.
1. Voluntary Departure and Legitimate Purposes for Detention The government contends that this court should view an order granting voluntary departure as no different than an order of removal, and that its authority and discretion
17 In El Badrawi I, the court ruled that the arrest warrant issued by Agent Manack could not protect the United States from liability because that warrant was not issued by a neutral magistrate. 579 F. Supp. 2d at 275-76. The government has not argued otherwise at this stage of the proceedings.
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to detain aliens is the same in either case. The statutory scheme does not bear this out.
Section 1229c of title 8 of the United States Code, entitled “Voluntary departure,”
addresses the procedures for voluntary departure and expressly authorizes the use of a
bond to ensure departure, but does not mention the possibility of detention. 8 U.S.C.
§ 1229c(b)(3). By contrast, section 1231 is entitled “Detention and removal of aliens
ordered removed.” That section provides that, “During the removal period, the Attorney
General shall detain the alien.” 8 U.S.C. § 1231(a)(2) (emphasis added).
In a recent opinion, the Supreme Court emphasized the substantial differences
between removal and voluntary departure, including the fact that an alien departing
voluntarily “avoids extended detention:”
Voluntary departure, under the current structure, allows the Government and the alien to agree upon a quid pro quo. From the Government’s standpoint, the alien’s agreement to leave expedites the departure process and avoids the expense of deportation—including procuring necessary documents and detaining the alien pending deportation. The Government also eliminates some of the costs and burdens associated with litigation over departure. . . . Benefits to the alien from voluntary departure are evident as well. He or she avoids extended detention pending completion of travel arrangements; is allowed to choose when to depart (subject to certain constraints); and can select the country of destination. And, of great importance, by departing voluntarily the alien facilitates the possibility of readmission. Dada v. Mukasey, 554 U.S. 1, 11 (2008); see also id. at 23 (Scalia, J., dissenting)
(“[voluntary departure] enables the alien to avoid detention pending involuntary
deportation, to select his own country of destination, to leave according to his schedule
(within the prescribed time), and to avoid restrictions upon readmission that attend
involuntary departure”).
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It would be going too far to say that these authorities expressly foreclose the
possibility of a legitimate detention following a grant of voluntary departure. Section
1229c does not expressly prohibit the use of detention in cases of voluntary departure,
and, although the Supreme Court in Dada indicated that avoiding detention is among
the benefits of agreeing to voluntary departure, it did not hold that the parties could not
agree to voluntary departure under different terms. Instead, what these authorities
show is that the procedures and rules that apply in a case of voluntary departure should
not be conflated with those that apply following an order of removal. The mandate to
use detention in cases of removal, 8 U.S.C. § 1231(a)(2), clearly does not apply in
cases of voluntary departure, and therefore, it does not explain the authority for detention in this case.18
The government has cited no statutory or regulatory authority supporting the use
of detention following a grant of voluntary departure. The court is aware of none except
8 C.F.R. § 240.25(b), which provides that “[t]he Service may attach to the granting of
voluntary departure any conditions it deems necessary to ensure the alien’s timely
departure, including the posting of a bond, continued detention pending departure, and
removal under safeguards,” (emphasis added), and 8 C.F.R. § 1240.26(b)(3)(i), which
18 The government suggests that there is some relevance to the fact that the order in this case contains an alternate order of removal. By its own terms, that alternate order becomes effective only “if respondent fails to depart as required.” USA Ex. 42. Moreover, the IJ specifically explained to El Badrawi that the voluntary departure order “is not a deportation order.” USA Ex. 41 at 2. It cannot credibly be disputed that El Badrawi was granted voluntary departure and not ordered removed. Thapa v. Gonzales, 460 F.3d 323 (2d Cir. 2006), is not to the contrary. There, the Second Circuit held that orders of voluntary departure, including those with alternate orders of removal, “are final orders of removal for the purposes of judicial review” (i.e., for purposes of triggering a right to judicial review under 8 U.S.C. § 1252). Thapa, 460 F.3d at 334. The Second Circuit did not consider and did not suggest that a grant of voluntary departure is equivalent to an order of removal for purposes of post-order detention. To the contrary, the Second Circuit emphasized certain differences between voluntary departure and removal, noting that voluntary departure allows aliens “to put their affairs in order without fear of being taken into custody at any time.” Id. at 328 (quotation omitted).
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provides that, upon granting voluntary departure, an immigration judge “may impose such conditions as he or she deems necessary to ensure the alien’s timely departure from the United States . . . ” (emphasis added). These provisions authorize continued detention, but only for the same specifically limited purpose. In the absence of any other authority for detention following a grant of voluntarily departure, the court holds that the only intended and legitimate purpose of such detention is “to ensure the alien’s timely departure.”
The record of the removal proceedings confirms that this could be the only legitimate purpose for detention in this case. At that proceeding, the government’s attorney expressed the parties’ agreement to voluntary departure in the following terms, “Voluntary departure under safe[guards], Your Honor, as soon as possible.” USA Ex. 41, at 1 (emphasis added).19 “Voluntary departure under safeguards” appears to refer generally to a procedure involving detention until departure. See In re M.A.S., 24 I. & N. Dec. 762, 766 (B.I.A. 2009) (“the term ‘voluntary departure with safeguards’ is commonly used to characterize the requirement that an alien remain in custody until he or she departs from the United States”).20 Because voluntary departure reflects a “quid pro quo” between the government and the alien, Dada, 554 U.S. at 11, this recorded
19 The IJ accepted that agreement and asked whether 30 days would provide enough time. USA Ex. 41, at 1. The government indicated that it would. Id. In his written Order, the IJ imposed the 30-day time limit but provided the government with discretion to extend that period. USA Ex. 42.
20 El Badrawi contends that he did not understand safeguards to mean detention. As it appears that “safeguards” does generally refer to detention in this context, a misunderstanding on El Badrawi’s part might indicate a lapse by El Badrawi’s counsel in the immigration proceedings or by the IJ in failing to explain this to El Badrawi. It is not clear, however, how this should bear on the claim before the court. An abuse of process claim tests the defendant’s use of the process once it is issued, not the manner by which it obtained the process. See Lewis Truck & Trailer, Inc. v. Jandreau, 11 Conn. App. 168, 526 A.2d 532, 534 (1987) (“The purpose for which the process is used, once it is issued, is the only thing of importance”).
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expression of the parties’ intent is significant.21 Having obtained El Badrawi’s agreement to “voluntary departure under safeguards,” and the IJ’s Order to that effect, under the understanding that the departure would be effected “as soon as possible,” it would be an abuse of process for the government to then prolong El Badrawi’s detention in order to accomplish purposes that did not facilitate his prompt departure.
The question on El Badrawi’s abuse of process claim is whether the government used the order granting voluntary departure under safeguards in order to ensure El Badrawi’s timely departure or whether they used it to keep him detained primarily for some other extraneous purpose. See Larobina v. McDonald, 274 Conn. 394, 403 (2005) (“the gravamen of the action for abuse of process is the use of a legal process . . . against another primarily to accomplish a purpose for which it is not designed”) (quotation omitted; emphasis in original). It is important to be clear that the issue is not whether or not the IJ was correct in entering such an order in the first place. An abuse of process claim is not an opportunity to challenge or relitigate the steps that led up to the issuance of process, because “abuse of process occurs ‘not in the issue of process, but in its abuse.’” Doctor’s Assocs., Inc. v. Weible, 92 F.3d 108, 114 (2d Cir. 1996) (quoting Shaeffer v. O.K. Tool Co., 110 Conn. 528, 148 A. 330, 332 (1930)); see also Lewis Truck & Trailer, Inc. v. Jandreau, 11 Conn. App. 168, 526 A.2d 532, 534 (1987) (“The purpose for which the process is used, once it is issued, is the only thing of importance”). The question is whether, having obtained such an order, the government misused the power the order gave to it. If El Badrawi was detained in order to effect his
21 Unlike El Badrawi’s purported concession of removability, which the government raised in connection with the false arrest claim, the government’s agreement to voluntary departure “as soon as possible” is supported by the record of the immigration proceedings. See USA Ex. 41.
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timely departure, then there could be no abuse of process. If the government kept him detained while departure was possible, in order principally to accomplish purposes unnecessary and unrelated to effecting his departure, this would constitute an abuse of process.
Neither Zadvydas v. Davis, 533 U.S. 678 (2001), nor Turkmen v. Ashcroft, 589 F.3d 542 (2d Cir. 2009), supports application of a standard that would be more favorable to the government. In Zadvydas, the Supreme Court was faced with the interpretation of 8 U.S.C. § 1231(a)(6), a special statutory provision applicable to certain classes of aliens who have been ordered removed. By its terms, the statute appears to authorize indefinite detention. Sensitive to the constitutional problems this could present, the Supreme Court read an implicit limitation into the statute, requiring that detention extend no longer than the “period reasonably necessary to bring about the alien’s removal.” Zadvydas, 533 U.S. at 689. However, seeking to limit the possibility of intrusive habeas review, the Court held that, for detention under section 1231(a)(6), a six month period of detention is presumptively reasonable. Id. at 700-01. Nothing in the Zadvydas decision suggests that this six-month period should apply in cases of voluntary departure or in cases that do not involve 8 U.S.C. § 1231(a)(6). Moreover, the presumption in Zadvydas applies in the context of constitutional challenges to the length of detention. El Badrawi, however, proceeds not simply on the theory that his detention was unreasonably long, but on a tort theory that requires him to show that the government affirmatively misused a detention order for a purpose that was not intended.
Another case relied on by the government, Turkmen v. Ashcroft, 589 F.3d 542 (2d Cir. 2009), is distinguishable for similar reasons. Although two of the plaintiffs in
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Turkmen were detained following a grant of voluntary departure, the court considered the propriety of their detention to be controlled by 8 U.S.C. § 1231(a)(6). The court did so because plaintiffs failed to raise any distinction between the voluntary departure procedures and the removal procedures before the district court and failed to plead the relevant details; because one of the plaintiffs had been found by the IJ to be a disappearance risk; and because the other had failed to request bond. Id. at 549, n.6. Measuring their detentions against the authority provided by section 1231(a)(6), the Second Circuit held that the plaintiffs had not pled facts supporting a plausible claim under the standard articulated in Zadvydas. Turkmen, 589 F.3d at 549-50. The court did not decide whether a plaintiff could state a claim for unconstitutional detention without satisfying Zadvydas because, “[t]o the extent plaintiffs’ claims are not based on Zadvydas, the moving defendants are entitled to qualified immunity.” Turkmen, 589 F.3d at 550. None of the Second Circuit’s reasons for applying section 1231(a)(6) are applicable here. El Badrawi has not waived his claim that the voluntary departure procedures differ from the removal procedures; the record does not indicate that El Badrawi was found to be a disappearance risk, see USA Exs. 33 (Notice of Custody Determination by Agent Manack), USA Exs. 40-42 (transcript of immigration proceedings and IJ’s Order); and El Badrawi did request bond, USA Ex. 39 (Bond Hearing Worksheet). Therefore, Turkmen does not support the application of section 1231(a)(6) to El Badrawi’s case. Moreover, the United States is not entitled to qualified immunity because El Badrawi’s claim for abuse of process is a tort law claim under the FTCA.
Although the government acknowledges that Zadvydas and Turkmen are
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distinguishable, the government nonetheless argues that these cases are instructive to the extent that they suggest that the courts should be wary of permitting claims that intrude upon the executive branch’s authority to carry out immigration and national security policy. The court is sensitive to this concern. However, while the government requires broad discretion to carry out its immigration, foreign policy and national security functions, the government chose not to invoke the procedures that permit such discretion in this case. The removal statute, 8 U.S.C. § 1231, provides expansive discretion to detain an alien pending removal. If the government sought that discretion here, it needed only to put its theory that El Badrawi was removable to the test. Given that the government agreed to voluntary departure “as soon as possible,” it cannot reasonably complain when its subsequent actions are measured according to the laws and regulations applicable to voluntary departure. Permitting El Badrawi’s claim to proceed under the standard articulated here does nothing to limit or intrude upon the executive’s discretion in dealing with aliens who are actually ordered removed. Instead, doing so properly reflects the fact that the government’s decision to agree to voluntary departure has consequences.
2. Application to the Record Applying the standard above, the court finds that there are genuine issues of material fact requiring a trial. Neither party has produced an uncontested record of what occurred during the 42-day period that El Badrawi was detained following the grant of voluntary departure. El Badrawi argues that he is entitled to summary judgment because there is evidence that the government investigated him during his detention and because, he believes, there is no other explanation for the delay in his departure.
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The government argues that it is entitled to summary judgment because there is no direct evidence that the government delayed El Badrawi’s departure for an improper purpose. Given the absence of evidence indicating what did happen and why, accepting either argument would require the court to draw inferences in favor of the party seeking summary judgment. El Badrawi has not shown that his departure could have occurred any earlier than it did or that any delay was necessarily attributable to the government’s pursuit of an improper purpose. A finder of fact need not infer that the government delayed El Badrawi’s departure in order to accomplish an improper purpose, and the court is not permitted to do so on El Badrawi’s summary judgment motion. The government has not provided evidence indicating why it took 42 days to accomplish El Badrawi’s departure. A finder of fact need not infer that there is a legitimate explanation for this delay, and the court is not permitted to do so on the government’s summary judgment motion. Accordingly, neither party is entitled to summary judgment.
On El Badrawi’s Motion for Summary Judgment, the court must view the evidence in the light most favorable to the government and draw inferences in its favor. Doing so, the court concludes that a finder of fact could conclude that El Badrawi’s departure date was determined by factors that do not show an abuse of process on the government’s part. First, the court notes that some portion of the delay could be found to be attribute to holidays and routine administrative delays. El Badrawi was ordered removed on November 10, 2004. Veterans Day was the following day, and Thanksgiving also occurred during the period between the IJ’s Order and El Badrawi’s departure. The ICE official responsible for arranging El Badrawi’s departure testified
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that it usually took between a few days and a week for a file to be delivered from the immigration court to her office. USA Ex. 11 at 49. Crediting this testimony, drawing inferences in the government’s favor, and accounting for the Veterans Day holiday, a finder of fact could conclude that it may have been as late as November 18 before anyone at ICE would have had an opportunity to begin arranging El Badrawi’s departure.
Some of the delay could also be found to be attributable to foreign countries or airlines. It is uncontested that Lebanon and any other stop-over country en route—in this case, Italy—had a sovereign right to deny or delay admission to El Badrawi. See Landon v. Pascencia, 459 U.S. 21, 32 (1982) (“the power to admit or exclude aliens is a sovereign prerogative”). Delay to obtain the permission of such countries therefore would not constitute an abuse of process. The government argues, and El Badrawi does not dispute, that, in cases of voluntary departure under safeguards to Lebanon, the government’s standard procedure included providing advanced notification to and obtaining approval from Lebanon and any countries the alien would pass through en route to Lebanon. Pl. Local R. 56(a)(2) Statement ¶ 62. The IJ’s Order contemplated the fact that the government would provide notice to Lebanon and that Lebanon would have an opportunity to refuse to accept El Badrawi. USA Ex. 42. The government also cites evidence indicating that advanced notice of 10 business days was required for removals into Lebanon. See November 2004 Removal Guidelines (USA Ex. 49) at 7 (noting that, for removals to Lebanon, ten business days’ notification is required and that “[c]ountry clearance must be requested from the embassy”); Mersereau Depo. (USA Ex. 11) at 24-25 (testifying that the Removal Guidelines accurately represented
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the process in 2004 and that “ten business days was . . . the basic number that most
countries required”). The documentary evidence does not make clear whether or not
Lebanon imposed the same advanced notice periods for aliens who had been ordered
to depart under safeguards, but the ICE official who oversaw El Badrawi’s departure
testified that, generally, 10-days notice would have been required.22 See Mersereau
Depo. (USA Ex. 11) at 21, 24-25. For purposes of El Badrawi’s summary judgment
22 The government also submits the declaration of Lisa Hoechst, a Supervisory Detention and Deportation Officer for ICE, who claims that, based on her experience with deportation generally, “[f]oreign governments and commercial airlines do not differentiate between a final order of removal and an order granting voluntary departure under safeguards . . . .” Gov. Exh. 5, ¶¶ 4, 8. According to Hoechst, Lebanon, any other countries through which El Badrawi would have traveled en route to Lebanon, and commercial airlines all would have required advance notice from ICE. Id. ¶¶ 5-9. Hoechst claims that, in late 2004, Lebanon routinely required 30 days’ notice before accepting an alien in ICE custody, including aliens who presented apparently valid Lebanese passports. Id. ¶¶ 11-12. This claim is potentially supported by, and may help to explain, a May 20, 2005 USCIS Memorandum, stating that the Government of Lebanon had begun requiring 30 days’ advance notice “on all deportees, regardless of nationality.” USA Ex. 50. This memorandum does not make clear when this longer requirement went into effect or why, but it is possible that the time period was increased to 30 days because that better reflected practice in the end of 2004 and beginning of 2005. Additionally, Hoescht states that processing by ICE was affected by limited staffing resources and that, in 2004, ICE processed 202,842 removals, 2,364 of which originated from the Boston field office, which encompasses the Hartford sub-office which handled El Badrawi’s departure. Id. ¶ 13.
El Badrawi has moved to strike the Hoechst Declaration on the ground that it violates a stipulation between the parties. On November 19, 2009, the parties stipulated that El Badrawi would withdraw his notice of deposition of a Rule 30(b)(6) witness regarding El Badrawi’s detention, and that (i) “all knowledge of the United States regarding Plaintiff’s 42-day detention has been previously identified, produced, set forth, and/or testified to in this litigation” and that (ii) “the United States will not offer evidence from any other person . . . who later recalls having any personal involvement with Plaintiff’s 42day detention.” Pl. Ex. 20. El Badrawi requests that, in the alternative to striking the Hoescht Declaration, discovery be reopened so that he may have the opportunity to depose Hoechst.
The Hoechst Declaration does not violate the second of these terms in the parties’ Stipulation. Hoechst’s Declaration disclaims any recollection of personal involvement in El Badrawi’s case, Gov. Ex. 5, ¶ 14, and is based instead on Hoechst’s personal knowledge of ICE removal and detention procedures generally, id. ¶ 2. The government’s position that the Hoescht Declaration also does not violate the first of the above quoted terms depends on a very strict reading of the Stipulation. Although Hoescht’s Declaration does not set forth knowledge directly about El Badrawi’s detention per se, it does set forth knowledge about detentions generally and it is being offered to prove facts about El Badrawi’s detention. It is questionable whether this is consistent with the intent of the parties as expressed in the Stipulation.
Nonetheless, El Badrawi’s Motion to Strike is denied. Under the circumstances, the ends of justice are better served by permitting, rather than excluding, relevant evidence. The Hoescht Declaration contains evidence that may be relevant at trial, but consideration of that Declaration would not change the court’s Ruling on the pending Motions. Therefore, neither party has been prejudiced at this stage. In order to prevent prejudice at trial, the court allows El Badrawi leave to take Hoescht’s deposition before trial.
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motion, the court must credit this testimony. Therefore, a finder of fact could reasonably conclude that some of the delay in El Badrawi’s departure was due to the necessary process of obtaining foreign government approval.
The record does not establish when the government first sought approval from Lebanon, Italy, or the airline that carried El Badrawi. The earliest documented international communication, a cable to United States diplomatic offices in Lebanon and Italy, was issued on December 6, 2004, nearly a month after El Badrawi was granted voluntary departure. USA Ex. 46. However, drawing inferences in favor of the government, a finder of fact could find that there would have been earlier communications. The December 6, 2004 cable indicates that El Badrawi was initially scheduled to depart on December 13, 2004. Id. Thus, even if immediately passed on from the U.S. embassies to the foreign governments, the December 6 cable would not have satisfied the minimum 10-day advanced notice requirement discussed above. To conclude that the government delayed until December 6 to seek approval from foreign governments would require an inference in El Badrawi’s favor. No such inference is permissible on El Badrawi’s Motion for Summary Judgment.
Granting reasonable inferences in favor of the government, the finder of fact could also find that the notification and approval process would have caused a significant portion of the delay in El Badrawi’s departure. Such a conclusion would find some support in the evidence that the government believed El Badrawi posed a potential threat to national security. USA Ex. 3 at 203, 208-09, 242; USA Ex. 8 at 16970; USA Ex. 28. Whether or not that belief was correct or justified at the time, a finder of fact could reasonably believe that the government would have been obliged to
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provide some indication of its concerns about El Badrawi to the countries and airlines with whom it needed to arrange El Badrawi’s departure. It would also be reasonable to suppose that sharing such information would prompt demands for further investigation and delays in providing approval from those countries and airlines. Thus, a finder of fact could find that investigation of El Badrawi by the government was either required by a foreign country or airline or done during a period of delay attributable to a foreign country. Such investigation would have either facilitated El Badrawi’s departure or, at least, not delayed it. In either case, it would not constitute abuse of process.
Finally, the initial itinerary, showing a travel date of December 13, was cancelled, and another itinerary was issued for December 22, 2004. USA Ex. 45. Government witnesses testified that this was not unusual, and that rescheduling might be required because, inter alia, officers were unavailable to escort the alien to the airport or because the foreign government refused to accept the alien on that date. USA Ex. 11 at 28. Thus, granting inferences in favor of the government, the final period of delay between December 6 and December 22, 2004, could be found to be attributed to routine personnel issues or to the demands of a foreign sovereign.
El Badrawi has not countered with evidence that would require a finder of fact to conclude that Lebanon, Italy and the airlines had approved his travel for an earlier date, or that ICE delayed in initiating the process of obtaining their approval until after ICE had accomplished some other improper purpose. El Badrawi has presented evidence that ICE’s Cyber Crimes division was investigating El Badrawi through December 3, 2004, the last weekday before itineraries for El Badrawi’s departure were generated. However, the government witnesses involved in this investigation and in arranging El
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Badrawi’s departure both testified that the investigation had no impact on his departure date. USA Ex. at 86-88; USA Ex. 11 at 29, 49-50. El Badrawi also argues that delay may have been attributable to an investigative check referred to as a Third Agency Check or “TAC.” However, it is unclear whether a TAC was done in El Badrawi’s case, or whether it actually delayed his departure. Pl. Ex. 8 (Rollins Depo.) at 96-97, 101 (testifying that the government searched for but could not find any record that a TAC had been done in El Badrawi’s case). On El Badrawi’s Motion for Summary Judgment, the court cannot infer that the government delayed El Badrawi’s departure in order to complete these investigations. As a result, a finder of fact drawing reasonable inferences from the record before the court could conclude that El Badrawi’s departure was delayed primarily due to some combination of routine administrative delays and scheduling issues, holidays, and the demands of foreign governments and airlines, whose approval was needed to accomplish departure. If a finder of fact reached that conclusion, it could not find that the government abused the voluntary departure process primarily to accomplish an improper purpose. Therefore, El Badrawi’s Motion for Summary Judgment on the abuse of process claim is denied.
Turning to the United States’ Motion for Summary Judgment, the court views the evidence and draws inferences in favor of El Badrawi. Doing so, the court cannot find that the government is entitled to summary judgment. First, on the government’s Motion, the court may not infer that the government made any effort to secure foreign government approval prior to December 6, 2004. Therefore, the court may not rely on the possibility that foreign governments caused the delay in order to find in the government’s favor. Indeed, viewing the evidence in El Badrawi’s favor, the absence of
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any cable prior to December 6, 2004, as well as the uncontroverted evidence that the government was investigating El Badrawi up until December 3, 2004, would support a finder of fact in inferring that the government delayed in seeking to make the necessary arrangements for El Badrawi’s departure in order to investigate El Badrawi.
The government argues that a typical removal to Lebanon could take as long as El Badrawi’s departure took, and that the standard removal procedures, if followed in El Badrawi’s case, would explain the full period of El Badrawi’s departure. The government fails to establish, however, that these standard removal procedures were actually followed in this case. Indeed, it concedes that it cannot establish this. The court cannot draw an inference, as the government requests, that the standard removal process was followed. Even if the court could draw this inference, the government has not established that these standard removal procedures were a necessary or appropriate part of effecting El Badrawi’s departure. The government’s own witness testified that its normal procedure for an alien being removed to Lebanon would have included a TAC, and that this process could substantially delay the alien’s departure. See, e.g., USA Ex. 11 at 21-23, 28; see also USA Local R. 56(a)(1) Statement ¶¶ 5759. The government also admits that one of the purposes of a TAC is not to effect timely departure, but to prevent the removal of an alien who may be a national security risk to the United States. USA Local R. 56(a)(1) Statement ¶ 56. This purpose is inconsistent with the purpose of detention pending voluntary departure and with the specific purpose agreed to by the government. Although identifying and preventing the release of national security threats is a goal of paramount importance, it is a goal that should inform the decision to agree to voluntary departure in the first place. The
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government may not agree to allow the alien to voluntarily depart, and then keep the alien incarcerated for the purpose of deciding whether that agreement was a mistake. Thus, if an investigation was conducted, and if that investigation delayed El Badrawi’s departure, this could constitute an abuse of the voluntary departure process. Viewing the evidence in the light most favorable to El Badrawi, a finder of fact could conclude that this is what happened. Therefore, the United States’ Motion for Summary Judgment on the abuse of process claim is also denied. V. CONCLUSION
For the foregoing reasons, the United States’ Motion for Summary Judgment is DENIED. El Badrawi’s Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART. It is granted with respect to his claim for false arrest and denied with respect to his claim for abuse of process. El Badrawi’s Motion to Strike is DENIED. SO ORDERED.
Dated at Bridgeport, Connecticut, this 11th day of April 2011. /s/ Janet C. Hall
Janet C. Hall United States District Judge
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

RASHAD AHMAD REFAAT EL BADRAWI, Plaintiff,
v. DEPARTMENT OF HOMELAND SECURITY, ET AL.,
Defendants.

) ) ) ) ) ) Case No. 3:07-cv-01074-JCH ) ) ) ) ) )

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS OR FOR SUMMARY JUDGMENT BY THE UNITED STATES OF AMERICA, DEPARTMENT OF HOMELAND
SECURITY, FEDERAL BUREAU OF INVESTIGATION, MICHAEL CHERTOFF, AND ROBERT MUELLER

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Table of Contents INTRODUCTION......................................................................................................................... 1 BACKGROUND ........................................................................................................................... 2
A. El Badrawi’s Entry Into the United States ........................................................................3 B. El Badrawi’s Arrest and Detention....................................................................................5 C. El Badrawi’s Immigration Proceedings and Removal ......................................................7 ARGUMENT................................................................................................................................. 9 I. Plaintiff May Not Pursue Claims That Could Have And Should Have Been Brought During His Immigration Proceedings.................................................................................. 9 II. El Badrawi’s Tort Claims Are Jurisdictionally Barred And Without Merit................... 9 A. The FTCA Does Not Waive Sovereign Immunity Against Claims Arising Out Of A
Decision To Initiate Immigration Proceedings................................................................10 B. El Badrawi Cannot Establish A Violation of Connecticut Tort Law ..............................13 III. El Badrawi’s Expungement Claims Are Jurisdictionally Barred And Without Merit. 19 A. El Badrawi Lacks Standing To Seek Expungement........................................................20 B. No Common Law Or Statutory Right Of Action Exists For Expungement....................21 CONCLUSION ........................................................................................................................... 24
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Table of Authorities Cases Alexander v. Sandoval, 532 U.S. 275 (2001).......................................................................... 22, 23 Appleton v. Bd. of Educ., 757 A.2d 1059 (Conn. 2000) ............................................................... 18 Bassiouni v. FBI, 436 F.3d 712 (7th Cir. 2006), cert. denied, 127 S. Ct. 709 (2006) .................. 23 Baur v. Veneman, 352 F.3d 625 (2d Cir. 2003)............................................................................ 20 Berkovitz by Berkovitz v. United States, 486 U.S. 531 (1988)...................................................... 11 Caban v. United States, 671 F.2d 1230 (2d Cir. 1982)................................................................. 11 Canadian Transport Co. v. United States, 663 F.2d 1081 (D.C. Cir. 1980) ................................ 10 City of Los Angeles v. Lyons, 461 U.S. 95 (1983) .................................................................. 20, 21 Clewley v. Brown, Thomson, Inc., 181 A. 531 (Conn. 1935) ....................................................... 14 DeLaurentis v. City of New Haven, 597 A.2d 807 (Conn. 1991) ........................................... 15, 18 Garcia v. Gonzales, 210 Fed. Appx. 521 (7th Cir. 2006)............................................................. 16 Green v. Donroe, 440 A.2d 973 (Conn. 1982) ............................................................................. 14 Hartmann v. Gulf View Estates Homeowners Assoc., 869 A.2d 275 (Conn. 2005) ..................... 18 Heck v. Humphrey, 512 U.S. 477 (1994)........................................................................................ 9 Holman v. Cascio, 390 F. Supp. 2d 120 (D. Conn. 2005) ............................................................ 16 Ibarra-Flores v. Gonzales, 439 F.3d 614 (9th Cir. 2006)............................................................. 16 In re Romalez-Alcaide, 23 I. & N. Dec. 423 (BIA 2002) ............................................................. 16 Landin-Zavala v. Gonzales, 488 F.3d 1150 (9th Cir. 2007) ......................................................... 16 Lo Sacco v. Young, 564 A.2d 610 (Conn. App. Ct. 1989)............................................................ 14 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................................................... 20 Lynch v. United States, 292 U.S. 571 (1934)................................................................................ 21 Matter of Teberen, 15 I. & N. Dec. 689 (B.I.A. 1976) ................................................................. 16 McHale v. WBS Corp., 446 A.2d 815 (Conn. 1982)............................................................... 15, 17
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Medina v. United States, 259 F.3d 220 (4th Cir. 2001) .................................................... 11, 13, 15 Mozzochi v. Beck, 529 A.2d 171 (Conn. 1987) ............................................................................ 17 Murray v. Northrop Grumman Info. Tech., Inc., 444 F.3d 169 (2d Cir. 2006) ............................ 11 National Council of La Raza v. Gonzales, 468 F. Supp. 2d 429 (E.D.N.Y. 2007), appeal
docketed, No. 07-0816-cv (2d Cir. Mar. 2, 2007) .............................................................. 21, 22 Nguyen v. United States, 65 Fed. Appx. 509 (5th Cir. 2003) ........................................... 11, 12, 13 Olmsted v. Pruco Life Ins. Co., 283 F.3d 429 (2d Cir. 2002)................................................. 22, 23 Outlaw v. City of Meriden, 682 A.2d 1112 (Conn. App. Ct. 1996).............................................. 14 Raven v. Panama Canal Co., 583 F.2d 169 (5th Cir. 1978)......................................................... 23 Russo v. City of Hartford, 184 F. Supp. 2d 169 (D. Conn. 2002) ................................................ 16 Rzayeva v. Foster, 134 F. Supp. 2d 239 (D. Conn. 2001), aff’d, 67 Fed. Appx. 75 (2d Cir. 2003)
.................................................................................................................................................. 19 See v. Gosselin, 48 A.2d 560 (Conn. 1946) .................................................................................. 16 Silberberg v. Lynberg, 186 F. Supp. 2d 157 (D. Conn. 2002)...................................................... 19 Smith v. United States, 375 F.2d 243 (5th Cir. 1967) ....................................................... 11, 24, 25 United States v. Lau, No. 94-1682, 2003 WL 22698810 (S.D.N.Y. Nov. 14, 2003) ................... 24 United States v. Linn, 513 F.2d 925 (10th Cir. 1975 .................................................................... 24 United States v. Mitchell, 463 U.S. 206 (1983) ............................................................................ 21 United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797
(1984)........................................................................................................................................ 10 United States v. Schnitzer, 567 F.2d 536 (2d Cir. 1977) .............................................................. 24 United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)............................................................ 20 Vandersluis v. Weil, 407 A.2d 982 (Conn. 1978) ......................................................................... 17 Varga v. Pareles, 81 A.2d 112 (Conn. 1951) ............................................................................... 17 Walker v. United States, 116 F.R.D. 149 (S.D.N.Y. 1987) .......................................................... 22 Wallace v. Kato, 127 S. Ct. 1091 (2007) ...................................................................................... 14
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Whitmore v. Arkansas, 495 U.S. 149 (1990) ................................................................................ 21 Wilson v. Jefferson, 908 A.2d 13 (Conn. App. Ct. 2006) ............................................................. 18 Zak v. Robertson, 249 F. Supp. 2d 203 (D. Conn. 2003).............................................................. 15 Zerrei v. Gonzales, 471 F.3d 342 (2nd Cir. 2006)........................................................................ 16 Statutes and Regulations 20 C.F.R. 655.700(b) ...................................................................................................................... 3 22 C.F.R. § 41.112(a).................................................................................................................. 3, 4 22 C.F.R. § 41.53 ............................................................................................................................ 3 28 C.F.R. § 0.85(f) ........................................................................................................................ 22 28 C.F.R. § 16.96 .......................................................................................................................... 23 28 U.S.C. § 1346..................................................................................................................... 10, 14 28 U.S.C. § 2674........................................................................................................................... 10 28 U.S.C. § 2680..................................................................................................................... 10, 14 28 U.S.C. § 534............................................................................................................................. 22 5 U.S.C. § 552a ............................................................................................................................. 23 8 C.F.R § 235.1 ........................................................................................................................... 3, 4 8 C.F.R. § 103.2(b)(10)(ii).............................................................................................................. 5 8 C.F.R. § 214.1(a)(3)..................................................................................................................... 3 8 C.F.R. § 214.2(h)(15)(i)............................................................................................................... 5 8 C.F.R. § 240.25 ............................................................................................................................ 8 8 C.F.R. § 274a.12(b)(20)............................................................................................................... 5 8 C.F.R. § 287.5(c)(1)..................................................................................................................... 2 8 U.S.C. § 1182(a)(3)...................................................................................................................... 4 8 U.S.C. § 1182(a)(9)(B) ................................................................................................................ 5 8 U.S.C. § 1201(i) ........................................................................................................................... 4
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Case 3:07-cv-01074-JCH Document 26 Filed 11/19/07 Page 6 of 32 8 U.S.C. § 1225............................................................................................................................... 3 8 U.S.C. § 1227............................................................................................................................. 16 8 U.S.C. § 1227(a)(1)(B) ................................................................................................................ 5 8 U.S.C. § 1229c(a)......................................................................................................................... 8 8 U.S.C. § 1229c(e)......................................................................................................................... 8 8 U.S.C. § 1252......................................................................................................................... 9, 10 8 U.S.C. § 1357(a)(2)...................................................................................................................... 2
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INTRODUCTION In this lawsuit, Plaintiff Rashad El Badrawi challenges his arrest and detention on immigration charges, and he also alleges that he did not receive proper medication when he was detained at a locally-operated correctional facility. At its core, this lawsuit is an attempt by El Badrawi to collaterally attack his prior immigration proceedings, which led to his voluntary departure from the country. In those prior proceedings, El Badrawi was charged with overstaying his authorized time in the country under a work visa. In response, El Badrawi did not dispute that he overstayed his authorized time in the country. Rather, he raised the same legal argument that he raises here: that his overstay was justified because he had timely filed for an extension of time to remain in the country. El Badrawi’s flawed legal argument did not prevail in the immigration proceedings, and it cannot prevail here, as El Badrawi admits that he never received an extension to remain in the country. Federal courts have unanimously held that aliens may be removed from the country immediately after they overstay their authorized time here, and to hold otherwise in this case would be to fundamentally alter this country’s immigration policies. Under El Badrawi’s reasoning, illegal aliens should be granted temporary amnesty if they managed to file a request for an extension before their lawful status expired. Although El Badrawi has filed suit against both federal and state authorities, this motion concerns only the United States, the Department of Homeland Security, the Federal Bureau of Investigation, Secretary of Homeland Security Michael Chertoff, in his official capacity, and FBI Director Robert Mueller, in his official capacity (collectively, “the Federal Defendants”).1 As to
1 El Badrawi has also sued two DHS agents in their individual capacities, and they have a filed a separate motion.
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the Federal Defendants, El Badrawi seeks damages under the Federal Tort Claims Act (FTCA) and an order to expunge all federal records pertaining to his arrest. As detailed below, El Badrawi’s claims against the Federal Defendants fail for three reasons. First, the Immigration and Nationality Act prohibits this Court from reopening the merits of El Badrawi’s immigration proceedings. Second, El Badrawi’s FTCA claims are both jurisdictionally barred and without merit. Finally, El Badrawi’s expungement claims must be dismissed for lack of standing and failure to state a claim. For these reasons, this case should be dismissed or, in the alternative, summary judgment should be granted in favor of the Federal Defendants.
BACKGROUND El Badrawi bases his claims primarily on the actions of agents working for U.S. Immigration and Customs Enforcement (ICE), the investigative arm of the Department of Homeland Security. Defendants Gregory Manack and Michael Loser are both longtime law enforcement agents for ICE. See Declaration of Gregory Manack (“Manack Dec.”), attached as Ex. A, ¶ 2; Declaration of Michael Loser (“Loser Dec.”), attached as Ex. B, ¶ 2. During the times alleged in the complaint, Manack served as the ICE Hartford Resident Agent in Charge, while Loser served as a Senior Special Agent in that office. See Manack Dec. ¶ 3; Loser Dec. ¶ 3. As ICE agents, Manack and Loser investigate people suspected of violating the immigrations laws of the United States, and they are authorized by law to arrest and detain any alien who they have reason to believe is in the country illegally. See id.; 8 U.S.C. § 1357(a)(2); 8 C.F.R. § 287.5(c)(1). Plaintiff Rashad El Badrawi, a foreign national, has periodically traveled to the United States for employment in the biotechnology industry. See Complaint ¶¶ 19-20. El Badrawi’s employment has been authorized under the H1-B program, which allows specialized foreign
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workers to obtain temporary employment in the United States. See 8 U.S.C. § 1101(a)(15)(H)(i)(b). For an alien like El Badrawi to legally enter the country under this work program, three general steps must be completed. First, the employer must obtain approval from the Department of Labor and Department of Homeland Security (“DHS”) to participate in the program. See 20 C.F.R. 655.700(b). Second, the alien must obtain a visa from the State Department. See id.; 22 C.F.R. § 41.53(a). Finally, DHS must grant the alien admission to the United States. 8 U.S.C. § 1225; 8 C.F.R § 235.1. In this case, as detailed below, El Badrawi was lawfully admitted to the country under the H1-B program, but only for a limited period of time. El Badrawi overstayed this period, which led to his arrest on the immigration charges that are the crux of this lawsuit.
A. El Badrawi’s Entry Into the United States In 2003, El Badrawi sought employment from the University of Connecticut Health Center under the H1-B program. See Complaint ¶¶ 23-25. As required, the University first obtained the necessary approval to participate in the program. See Ex. C, attachment 3. This approval, however, “does not authorize employment.” Id. Rather, it only allows an alien to apply for a work visa from the State Department, which has sole discretion as to whether to issue the visa. See 22 C.F.R. § 41.53. In this case, the State Department granted El Badrawi an H1-B visa that was valid until May 1, 2004. See Complaint ¶ 25; Ex. B, attachment 1. This visa, however, did not authorize El Badrawi to enter the United States. Rather, a visa only allows the alien to travel to the United States and apply for admission at a port of entry. See 22 C.F.R. § 41.112(a); 8 C.F.R. § 214.1(a)(3). When an alien like El Badrawi travels to a port of entry with a visa, a DHS officer determines whether to allow the alien entry into the United States, and if so, specifies how long the alien’s period of admission in the country is authorized. See 8 U.S.C. § 1225; 8 C.F.R
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§ 235.1 The period of visa validity has no relation to the period of time the immigration authorities at a port of entry may authorize the alien to stay in the United States. See 22 C.F.R. § 41.112(a). In this case, El Badrawi arrived at a port of entry to the country on June 1, 2003, and a DHS officer granted him admission and authorized him to remain in the United States until May 1, 2004. See Complaint ¶ 25; Loser Dec. ¶ 4; Ex. B, attachment 1. After El Badrawi entered the country, he began working for the University of Connecticut as a research associate. See Complaint ¶ 27.
While El Badrawi was working in the United States, an officer from the State Department administratively revoked El Badrawi’s visa. See Ex. C, attachment 6. An authorized officer of the State Department may revoke visas “at any time, in his discretion” with judicial review only in removal proceedings. 8 U.S.C. § 1201(i). In this case, El Badrawi’s visa was revoked because “subsequent to visa issuance, information has come to light indicating that the alien may be inadmissible to the United States and ineligible to receive a visa” under 8 U.S.C. § 1182(a)(3), which lists various categories of aliens who are ineligible for admission based on “security and related grounds.” Ex. C, attachment 6. Although the certificate of revocation for El Badrawi’s visa was signed on October 2, 2003, the revocation was to become effective only upon El Badrawi’s departure from the United States. See id. This is because a visa only affects an alien’s ability to travel to the United States; it does not establish an alien’s authorization to remain in the United States. See 22 C.F.R. § 41.112(a).
El Badrawi’s authority to remain in the United States was governed by the initial determination by the DHS officer, who granted him authorization to remain in the country until May 1, 2004. Loser Dec. ¶ 4; Ex. B, attachment 1. Prior to the expiration of El Badrawi’s period of admission, the University of Connecticut requested permission from DHS to extend El
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Badrawi’s participation in the H1-B program, though neither the University nor El Badrawi ever received a decision on this request for an extension. See Complaint ¶¶ 31, 35; Ex. C, attachments 4-5. The extension process entails two separate determinations: first, whether to extend the work petition under the H1-B program; and second, whether to extend the alien’s period of authorized admission in the United States. See 8 C.F.R. § 214.2(h)(15)(i).
The Act does not provide a safe harbor for aliens to remain in the country while their applications for extensions are pending, but the Act does provide that these aliens will not be subject to the otherwise standard bar on future admissibility for remaining in the country after their status has expired. See 8 U.S.C. § 1182(a)(9)(B); see also Memorandum from Michael Pearson to Regional Directors (Mar. 3, 2000), cited in Complaint ¶ 102, attached as Ex. D. In addition, when an alien timely files an application for an extension to remain in the country, an alien’s work authorization is extended for an additional 240 days after his status expires. See 8 C.F.R. § 274a.12(b)(20). Nonetheless, an application for an extension has no effect on the alien’s authorized period of admission to remain in the country, and immigration authorities may seek removal of an alien notwithstanding a pending application. See 8 C.F.R. § 103.2(b)(10)(ii). Accordingly, in this case El Badrawi became deportable after he remained in the country beyond his authorized period of admission: May 1, 2004. See 8 U.S.C. § 1227(a)(1)(B).
B. El Badrawi’s Arrest and Detention In October 2004, Gregory Manack, the Resident Agent in Charge of the ICE Hartford Office, assigned Senior Special Agent Michael Loser to determine the immigration status of El Badrawi. See Loser Dec. ¶ 4; Manack Dec. ¶ 4. Loser investigated the matter and determined that El Badrawi entered the United States on June 1, 2003, as an H1-B worker with an authorization to remain in the country until May 1, 2004. See Loser Dec. ¶ 4. Loser also discovered that El Badrawi had filed an application to extend his stay but that the request had not
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yet been adjudicated. See id. Accordingly, Loser concluded that El Badrawi unlawfully overstayed his period of admission. See id.
Manack subsequently issued a warrant authorizing El Badrawi’s arrest. Manack Dec. ¶ 5; Ex. B, attachment 2. Manack also determined that El Badrawi should be detained on these charges, and he signed a Notice of Custody Determination, which informed El Badrawi that he could request review of his detention by an immigration judge. See Loser Dec. ¶ 8; Manack Dec. ¶ 6; Ex. B, attachment 4. Manack also signed a Notice to Appear, which is the formal charging document used by ICE to initiate removal proceedings. See Manack Dec. ¶ 5; Ex. B, attachment 3. The Notice to Appear alleged that:
1) El Badrawi is not a citizen or national of the United States; 2) El Badrawi is a native and citizen of Lebanon; 3) El Badrawi was admitted to the United States on June 1, 2003, with authorization to
remain in the country until May 1, 2004; and 4) El Badrawi remained in the United States beyond May 1, 2004, without authorization
from ICE. Ex. B, attachment 3.
On October 29, 2004, Loser and other law enforcement agents arrested El Badrawi outside of his home. See Loser Dec. ¶ 7. ICE agents are trained to inquire whether arrestees need medication, and here Loser learned that El Badrawi took medication for Crohn’s disease. See id. Accordingly, Loser took El Badrawi’s medication from his home to the ICE facility where he was processed. See id. ¶ 7; Complaint ¶ 68. At the ICE facility, El Badrawi had full access to his medication. See Loser Dec. ¶ 7. Because El Badrawi was to be detained, Loser transferred custody of El Badrawi and his medication to ICE’s Office of Detention and Removal Operations. See id. Neither Loser nor Manack had any further involvement with El Badrawi
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after he was transferred to ICE’s Office of Detention and Removal Operations. See Loser Dec. ¶¶9-10; Manack Dec. ¶ 7.
ICE Detention Officers took El Badrawi to the Hartford Correctional Center, a local facility that has a contract with ICE to house detainees. See Loser Dec. ¶ 9. ICE detainees are not allowed to bring any personal belongings, including medication, to the Hartford Center. See id. Accordingly, pursuant to standard practice, ICE Detention Officers locked up his belongings and medication for safekeeping at the ICE facility. See id. When El Badrawi arrived at the Hartford Center, he completed a medical questionnaire and indicated that he had Crohn’s disease and needed medication. See Ex. E.2 Although El Badrawi claims in his complaint that he did not receive medication for several days after arriving at the Hartford Center, medical records show that on the day he arrived in the facility, a doctor prescribed him 400 mg of Asacol, the same medication and dosage that he had been taking before he was arrested. See id.; Complaint ¶ 68. El Badrawi’s medical records also document that he received this medication during the duration of his stay at the Hartford Center. See Ex. E.
C. El Badrawi’s Immigration Proceedings and Removal On November 3, 2004, El Badrawi appeared in immigration court, represented by counsel. See Complaint ¶ 95; Ex. C. El Badrawi also filed formal pleadings requesting that the removal proceedings be terminated. See Ex. C, attachment 2. In these pleadings, El Badrawi admitted the truth of the first three allegations in the Notice to Appear (that he was a not a U.S. citizen; that he was a citizen of Lebanon; and that he was admitted to the country for a temporary period not to exceed May 1, 2004), but he denied the final allegation (that he remained in the country beyond May 1, 2004, without authorization from ICE). See id. In arguments before the
2 This exhibit is being filed separately under seal.
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judge, El Badrawi’s counsel argued that because El Badrawi timely filed an application for an extension of his stay, his detention was inappropriate. See Ex. C at pp. 5-6. ICE Counsel contested this argument, noting that El Badrawi overstayed his period of lawful admission. The judge continued the case for one week, ordering that “both parties must address whether [El Badrawi] remains in valid, non-immigrant status.” See id. pg. 11. The judge also denied El Badrawi’s request for bond. See Ex. F.3
One week later, El Badrawi again appeared in immigration court with his attorney, but instead of contesting the charges against him, he offered to apply for an order for voluntary departure. See Ex. G at p.2; Ex. H. Voluntary departure is a benefit that may be conferred upon removable aliens who agree to leave the country at their own expense, in lieu of removal proceedings. See 8 U.S.C. § 1229c(a). Aliens who accept voluntary departure are not subject to the otherwise standard bar on reentry to the country that applies to aliens found removable. See id. § 1182(a)(9)(A)(i). In addition, ICE may attach “any conditions it deems necessary” to an order of voluntary departure to ensure that the alien leaves the country, such as continued detention pending departure. See 8 U.S.C. § 1229c(e); 8 C.F.R. § 240.25.
In this case, ICE agreed to allow El Badrawi the benefit of voluntary departure. See Ex. G at pp. 2-3. ICE attached the conditions that El Badrawi continue to be detained without bond until his departure and that he depart the country under safeguards, i.e., with an ICE escort. See id.; Ex. H. The immigration judge then issued a written order, finding that El Badrawi was removable based on the charges in the Notice to Appear. See Ex. H. The judge then ordered that El Badrawi be granted voluntary departure at El Badrawi’s own expense in lieu of continuing with the removal proceedings. See id. Finally, the judge ordered El Badrawi to voluntarily
3 Bond proceedings are not recorded, and there is thus no transcript of the judge’s denial.
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depart the country on or before December 10, 2004 under ICE safeguards. See id. Although El Badrawi was willing to depart the country by December 10, ICE was unable to process his release and departure by this date. See Complaint ¶ 119. Subsequently, on December 22, 2004, ICE agents escorted El Badrawi to John F. Kennedy International Airport, and he left the country. See Complaint ¶ 123.
ARGUMENT I. Plaintiff May Not Pursue Claims That Could Have And Should Have Been Brought
During His Immigration Proceedings No matter how much El Badrawi dresses up his legal arguments in constitutional clothing, stripped bare his complaints about his arrest and detention are nothing more than a collateral attack on his prior immigration proceedings.4 Indeed, the only way this Court can determine the merits of El Badrawi’s FTCA and expungement claims in this case is to reexamine the merits of his immigration case. Yet as detailed in the motion to dismiss by Defendants Manack and Loser, pp. XX-XX, the Immigration and Nationality Act explicitly prohibits district courts from reviewing the merits of immigration orders. See 8 U.S.C. §§ 1252 (b)(9), 1252(g), 1252(a)(2)(B)(ii), and 1226(e). Likewise, the doctrine of Heck v. Humphrey bars tort claims that challenge the legality of a conviction or confinement that has not been invalidated. See 512 U.S. 477 (1994). Therefore, for the reasons stated in Manack and Loser’s motion, this Court should dismiss this action for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). II. El Badrawi’s Tort Claims Are Jurisdictionally Barred And Without Merit Assuming that the Court determines that the Immigration and Nationality Act does not jurisdictionally preclude this Court’s review of El Badrawi’s claims, this Court should
4 In addition to his claims about his arrest and detention, El Badrawi alleges that he was denied medical care. See Complaint ¶ 152. Yet this claim is directed only against Defendant Michael Loser in his individual capacity, not against the United States.
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nonetheless find that, based on the undisputed evidence, El Badrawi’s claims are meritless as a matter of law. El Badrawi makes several claims under the Federal Tort Claims Act (FTCA), which generally waives sovereign immunity for acts by any employee of the federal government within the scope of his or her employment, under circumstances in which the tort law of the state where the alleged act or omission occurred would impose liability on a private party. 28 U.S.C. §§ 1346(b)(1), 28 U.S.C. § 2674. He asserts that, by arresting him and beginning removal proceedings against him, immigration agents committed false arrest, false imprisonment, malicious prosecution, vexatious suit, abuse of process, and intentional infliction of emotional distress under tort law in the state of Connecticut. Complaint ¶ 156.
El Badrawi’s claims arise out of the prosecution of an immigration case, a discretionary function for which the United States retains sovereign immunity. In addition, even if this Court could exercise jurisdiction over El Badrawi’s claims, the undisputed facts prove that he has no right to recover under the laws of Connecticut. Therefore, this Court should dismiss El Badrawi’s FTCA claims for lack of subject matter jurisdiction or, alternatively, grant summary judgment to the United States.
A. The FTCA Does Not Waive Sovereign Immunity Against Claims Arising Out Of A Decision To Initiate Immigration Proceedings
The FTCA waiver of sovereign immunity excludes claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government,” regardless of whether the employee abused this discretion. 28 U.S.C. § 2680(a). The discretionary function exception “prevent[s] judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy.” United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814 (1984). This prevents courts from becoming involved “in making ...
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decisions entrusted to other branches of the government.” Canadian Transport Co. v. United States, 663 F.2d 1081, 1087 (D.C. Cir. 1980). As a result, the exception “protects the principles embodied in the separation of powers doctrine.” Caban v. United States, 671 F.2d 1230, 1233 (2d Cir. 1982). Cf. Murray v. Northrop Grumman Info. Tech., Inc., 444 F.3d 169, 176 (2d Cir. 2006) (granting tort immunity to a government contractor who performed a discretionary function because “[t]he public interest in ensuring that immigration law administrators feel free to convey information [about a possible terrorist alien] to the proper government agencies is high”).
To determine whether a particular action falls within the discretionary function exception, a court first asks whether it involves “an element of judgment or choice.” Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536 (1988). Second, a court determines whether “considerations of public policy” governed the judgment or choice. Id. at 537. In this case, immigration authorities made a judgment to initiate removal proceedings against El Badrawi for alleged immigration violations. As courts have held, prosecution-like decisions involve protected policy considerations regarding whom to prosecute, how to proceed with a prosecution, and whether to abandon an already-begun prosecution. Smith v. United States, 375 F.2d 243, 246-48 (5th Cir. 1967).
In the immigration field, decisions regarding how to proceed against those suspected of illegally residing in the country tie inextricably into the prosecutorial function and are protected by the discretionary function exemption. See Medina v. United States, 259 F.3d 220, 222 (4th Cir. 2001); Nguyen v. United States, 65 Fed. Appx. 509, *1 (5th Cir. 2003). In Medina, the Fourth Circuit considered a case in which an immigration officer independently inquired into a particular person’s immigration status, obtained an arrest warrant through the proper channels,
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and, along with other immigration officers, arrested him. 259 F.3d at 222. After the proceedings ended, Medina sued under the FTCA for assault and battery, false arrest, malicious prosecution, and infliction of emotional distress. Id. at 223. The court held that the conduct of the immigration officials “clearly” met the first prong of the discretionary function test because the statute governing immigration agents gave them discretion to arrest and detain a person pending a determination of his or her removability and because the agency enjoys broad prosecutorial discretion. Id. at 226-27 (citing 8 U.S.C. § 1226(a)). The court went on to hold that the decision to arrest Medina was “clearly clothed in policy considerations” based on the immigration agents’ understanding of Medina’s immigration status. Id. at 229. In arriving at this conclusion, the court remarked that had the agents obtained a Notice to Appear, a document instructing a person to appear before an immigration court and detailing the charges against him or her, “we are convinced that the decision to issue the [Notice to Appear] would also be excepted from the FTCA waiver of sovereign immunity as a discretionary function.” Id. at 226 n.4. In El Badrawi’s case, agents did obtain a Notice to Appear based on objective facts indicating that he had violated immigration law. See Ex. B, attachment 3.
In Nguyen, the Fifth Circuit examined claims of false imprisonment and negligent investigation brought by a man who had a legitimate claim to derivative citizenship but had been subjected to deportation proceedings and held in federal custody for fifteen months. 65 Fed. Appx. 509 at *1. The court held that the discretionary function exception barred the claims, based in part on the fact that federal statutes empower immigration agents to make arrests of suspected illegal immigrants. Id. at *2. The court noted that decisions about whom and how to prosecute generally fall into the exception and that “no regulation or statute prevented the INS agents from pursuing deportation proceedings against Nguyen based on the information available
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to them.” Id. at *1-*2. In the court’s words, the case was “essentially a claim that the INS officers failed to adequately perform a discretionary duty, which falls squarely within the discretionary function exception.” Id.
In this case, like Medina and Nguyen, El Badrawi’s complaint unabashedly attacks ICE’s decision to prosecute removal proceedings:
• “ICE nevertheless refused to recognize [his] legal status, proceeded to prosecute removal proceedings, and to detain him without bond pending completion of those proceedings,” Complaint ¶ 105 (emphasis added);
• “Defendants Manack and Loser acted without probable cause ... in issuing, serving, and filing the NTA and commencing removal proceedings against Mr. El Badrawi,” Id. at ¶ 114 (emphasis added);
• “By... initiating removal proceedings against him, Defendants Manack and Loser should have known that their unlawful actions” would cause “trauma” to El Badrawi, Id. at ¶ 133 (emphasis added). Because El Badrawi’s claims are based on ICE’s decision to initiate removal
proceedings, the discretionary function exemption of the FTCA bars this suit. Like the agents in Medina and Nguyen, the ICE agents who initiated and carried out the proceedings against El Badrawi exercised judgment and choice in deciding to investigate El Badrawi’s immigration status, evaluating the relevant evidence, and initiating removal proceedings. Therefore, this Court should dismiss El Badrawi’s FTCA claims for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1).
B. El Badrawi Cannot Establish A Violation of Connecticut Tort Law Even if the discretionary function exception does not bar his claims, El Badrawi still cannot establish a violation of Connecticut tort law. The FTCA allows a plaintiff to recover from the United States only when the United States, if a private party, would be liable to the plaintiff under the law of the state where the alleged injury took place. 28 U.S.C. §§ 1346 (b),
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2674. Thus, in order to state cognizable claims under the FTCA, El Badrawi must state tort claims under Connecticut law.5 The undisputed facts of the case, however, cannot support a finding of false arrest, false imprisonment, malicious prosecution, vexatious suit, intentional infliction of emotional distress, or abuse of process under the laws of Connecticut. Therefore, this Court should grant summary judgment in favor of the United States. See Fed. R. Civ. P. 56.
1. El Badrawi Cannot Establish A False Arrest or Imprisonment El Badrawi asserts that ICE agents falsely arrested and falsely imprisoned him but fails to point to any instance in which they restrained his liberty without legal authority. Connecticut treats claims of false arrest and false imprisonment identically. Outlaw v. City of Meriden, 682 A.2d 1112, 1115 (Conn. App. Ct. 1996). To recover on either theory, the plaintiff must show that the defendant restrained his or her liberty unlawfully. See Green v. Donroe, 440 A.2d 973, 974 (Conn. 1982); see also Wallace v. Kato, 127 S. Ct. 1091 (2007). When law enforcement officers restrain an individual under the authority of a valid warrant, they act lawfully. Outlaw, 682 A.2d at 1115. A plaintiff “detained under regular process duly issued by a court having jurisdiction” therefore cannot succeed in a false imprisonment claim. Clewley v. Brown, Thomson, Inc., 181 A. 531, 533 (Conn. 1935). As a result, one who seeks to challenge a detention pursuant to legal process must pursue claims of abuse of process or malicious prosecution rather than false arrest or false imprisonment. Lo Sacco v. Young, 564 A.2d 610, 617 (Conn. App. Ct. 1989) (quoting W. Prosser, Torts § 11, at 54 (5th ed. 1984)).
5 In accordance with the proviso to 28 U.S.C. § 2680(h), sovereign immunity has been waived for claims of false imprisonment, false arrest, malicious prosecution, and abuse of process when the alleged tort was committed by investigative or law enforcement officers.
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As El Badrawi’s complaint acknowledges, ICE agents obtained a warrant and a Notice to Appear before arresting him. Complaint ¶¶ 42, 45; see also Ex. B, attachments 2-3. His detention, therefore, cannot support a false imprisonment or false arrest claim. See Medina, 259 F.3d at 226 n.4 (remarking that, had INS issued a Notice to Appear in that case, “Medina would not possess a claim for false arrest”). Based on the fact that he makes no allegations that agents detained him without legal authority, this Court should dismiss El Badrawi’s claims for false imprisonment and false arrest. See Zak v. Robertson, 249 F. Supp. 2d 203, 206 (D. Conn. 2003) (granting a defendant’s summary judgment motion “[b]ecause plaintiffs have not come forward with an evidence that they suffered any deprivation of liberty prior to the issuance of legal process against them” and opining that “their claim is for malicious prosecution, not false arrest”).
2. El Badrawi Cannot Establish A Malicious Prosecution or Vexatious Suit El Badrawi has also alleged malicious prosecution and vexatious suit. “Vexatious suit” refers to wrongfully instigated civil actions,6 and “malicious prosecution” refers to the groundless instigation of criminal lawsuits. DeLaurentis v. City of New Haven, 597 A.2d 807, 814 n.3 (Conn. 1991). To recover for either, a plaintiff must show that (1) the defendant initiated or caused the initiation of proceedings; (2) those proceedings terminated in the plaintiff’s favor; (3) the defendant acted without probable cause; and (4) the defendant acted with malice. McHale v. WBS Corp., 446 A.2d 815, 817 (Conn. 1982). El Badrawi can not satisfy the second, third, or fourth of these elements.
6 Connecticut statutory law also allows plaintiffs to recover civil damages for groundless or vexatious suit against “any person who commences and prosecutes any civil action or complaint against another.” Conn. Gen. Stat. Ann. § 52-568.
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El Badrawi cannot satisfy the “favorable termination” prong because the judge in the immigration proceedings found him to be removable on the charges for which he was arrested. See Ex. H. Indeed, by agreeing to voluntary departure in lieu of removal proceedings, El Badrawi effectively accepted a plea bargain. See In re Romalez-Alcaide, 23 I. & N. Dec. 423, 429 (BIA 2002), (explaining that voluntary departure operates “like a plea bargain” because “[t]he alien leaves with the knowledge that he does so in lieu of being placed in proceedings”); Ibarra-Flores v. Gonzales, 439 F.3d 614, 620 (9th Cir. 2006) (same); Landin-Zavala v. Gonzales, 488 F.3d 1150 (9th Cir. 2007) (same); Garcia v. Gonzales, 210 Fed. Appx. 521 (7th Cir. 2006) (same). A plea bargain, however, cannot satisfy the “favorable termination” prong of malicious prosecution. See Russo v. City of Hartford, 184 F. Supp. 2d 169, 185-86 (D. Conn. 2002); Holman v. Cascio, 390 F. Supp. 2d 120, 123-24 (D. Conn. 2005) (citing See v. Gosselin, 48 A.2d 560 (Conn. 1946)).
El Badrawi likewise cannot satisfy the “probable cause” prong of malicious prosecution, because the removal proceedings were based on objective evidence that he violated the law. El Badrawi was arrested because he “remained in the United States for a time longer than permitted,” in violation of 8 U.S.C. § 1227(a)(1)(B).7 Ex. B, attachment 3. To determine whether aliens may be removed from the country under this provision, the Second Circuit has established a simple, three-part test: ICE “‘need only show [1] that the alien was admitted as a
7 Although El Badrawi implies in his complaint that he was arrested because his visa was revoked, the Notice to Appear makes clear that the charges against El Badrawi are limited to overstaying his period of lawful admission. Cf. Equan v. United States Immigration & Naturalization Service, 844 F.2d 276, 278 (5th Cir. 1988). In Equan, the court upheld the removal of an alien who overstayed his period of lawful admission, even though he had a valid visa: “[the alien] has confused the visa’s validity date with its expiration date. His visa permitted entry into the United States at any time through 1988, but once he entered, it authorized only a one-month stay.” Id. Likewise, in this case, the issue is not whether El Badrawi’s visa was valid, but whether he exceeded his authorized time in the United States.
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nonimmigrant for a temporary period, [2] that the period has elapsed, and [3] that the nonimmigrant has not departed.’” Zerrei v. Gonzales, 471 F.3d 342, 345 (2nd Cir. 2006), quoting Matter of Teberen, 15 I. & N. Dec. 689, 690 (B.I.A. 1976) (internal quotations omitted).
Here, there is no dispute that when El Badrawi was arrested on October 29, 2004: (1) El Badrawi was admitted as a nonimmigrant worker for a temporary period not to exceed May 1, 2004; (2) that period had elapsed; and (3) he had not departed the country. See Loser Dec. ¶ 4; Ex. C, attachment 2. Therefore, El Badrawi cannot satisfy the probable cause requirement, because the arresting officers had the requisite “knowledge of facts sufficient to justify a reasonable person in the belief that there are reasonable grounds for prosecuting an action.” Vandersluis v. Weil, 407 A.2d 982, 985 (Conn. 1978).
Finally, neither El Badrawi’s allegations nor the evidence even suggests that any federal agent acted with malice. None of the facts recited in the complaint indicate that El Badrawi’s arrest or detention was “primarily for a purpose other than that of bringing an offender to justice.” McHale, 446 A.2d at 817. El Badrawi’s inability to set forth the elements of malicious prosecution or vexatious suit necessitates the dismissal of these claims.
3. El Badrawi Cannot Establish Abuse of Process El Badrawi also cannot show that ICE agents committed abuse of process. In Connecticut, a person commits abuse of process by “us[ing] a legal process against another in an improper manner or to accomplish a purpose for which it was not designed.” Varga v. Pareles, 81 A.2d 112, 115 (Conn. 1951). One may not recover for abuse of process against a defendant who had “an incidental motive of spite or an ulterior purpose” but nonetheless used the legal process for its intended purpose. Mozzochi v. Beck, 529 A.2d 171, 173 (Conn. 1987) (quoting Restatement (Second) of Torts § 682, comment b (1977)). Plaintiffs who complain of unpleasant or expensive litigation, for instance, typically lose on claims for abuse of process unless they can
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show that the defendant engaged in specific offensive behavior, “such as utter failure to investigate the validity of the underlying action, or unwarranted pursuit of inappropriate motions.” Id. at 174.
El Badrawi makes no suggestion that ICE agents acted for any purpose–primary or incidental–other than furthering the important goal of deporting those who are in the country illegally. As a result, he has failed to state a claim for abuse of process. See Wilson v. Jefferson, 908 A.2d 13, 25 (Conn. App. Ct. 2006) (upholding a directed verdict for a defendant where plaintiffs claimed defendant had committed abuse of process by beginning eviction proceedings but failed to present any evidence indicating plaintiff instituted proceedings for any purpose other than to evict them from an apartment).
4. El Badrawi Cannot Establish Intentional Infliction Of Emotional Distress El Badrawi similarly fails to allege a set of facts sufficient to support a finding of intentional infliction of emotional distress. Connecticut law allows a plaintiff to recover for intentional infliction of emotional distress only when the defendant’s conduct has been so extreme as “to be regarded as atrocious, and utterly intolerable in a civilized community” and where “recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous!” Appleton v. Bd. of Educ., 757 A.2d 1059, 1062 (Conn. 2000) (citations and internal quotations omitted); Hartmann v. Gulf View Estates Homeowners Assoc., 869 A.2d 275, 277-78 (Conn. 2005). To ensure that offending behavior rises to this level, courts require plaintiffs to show: (1) that the defendant intended to inflict emotional distress or knew or should have known it was a likely result of the conduct; (2) the conduct was extreme and outrageous; (3) the conduct was the cause of the plaintiff’s distress; and (4) that the plaintiff’s emotional distress was severe. DeLaurentis, 597 A.2d at 827-28.
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El Badrawi’s allegations regarding his arrest fail to rise to this level.8 See Silberberg v. Lynberg, 186 F. Supp. 2d 157, 175-76 (D. Conn. 2002); Rzayeva v. Foster, 134 F. Supp. 2d 239, 250 (D. Conn. 2001), aff’d, 67 Fed. Appx. 75 (2d Cir. 2003). El Badrawi’s complaint accuses them merely of performing their usual duties. He presents no claim that agents engaged in extreme or outrageous behavior, singled out El Badrawi for harassment, or intended to cause him distress. He has, therefore, failed to state a claim for intentional infliction of emotional distress. III. El Badrawi’s Expungement Claims Are Jurisdictionally Barred And Without Merit
In addition to the money damages El Badrawi seeks under the FTCA, he also asks this Court for the injunctive relief of expungement. Specifically, El Badrawi asserts two claims for “unlawful maintenance of records,” one under common law and one under federal statutory law. See Complaint ¶¶ 157-171. These claims are both premised on alleged constitutional violations, and as we have illustrated in the previous paragraphs and in Defendants Manack and Loser’s motion for summary judgment, no such violations occurred in this case. Furthermore, although El Badrawi calls the maintenance of the alleged records of his arrest and detention “fundamentally unfair,” Complaint ¶ 160, he does not dispute that any such records would accurately reflect the fact that he was arrested and detained on immigration charges. Accordingly, this Court has no basis to award injunctive relief to El Badrawi.
Nonetheless, were the Court to entertain El Badrawi’s expungement claims, they would fail for two reasons. First, El Badrawi lacks standing to seek injunctive relief. Second, neither statutory nor common law provides a cause of action to El Badrawi to seek expungement of alleged government records. Each of these reasons is discussed below.
8 Although El Badrawi also alleges mistreatment while he was detained, those allegations are directed only to the warden of the Hartford Correctional Center, not the United States. See Complaint ¶¶ 62-94.
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A. El Badrawi Lacks Standing To Seek Expungement Because El Badrawi is a foreign national living abroad with no right to re-enter the country, his alleged injuries regarding the maintenance of alleged government records are too conjectural to establish Article III standing. To have standing to bring a lawsuit, a plaintiff must show that: (1) he has suffered an injury to a legally protected interest, (2) the injury is fairly traceable to the defendant, and (3) a favorable decision would redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). In this case, El Badrawi fails to satisfy the first element of standing, as he has not suffered a “concrete and particularized” injury to a legally protected interest. Id. See also City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983) (holding that one must show a “real and immediate threat” of future injury to establish standing); Baur v. Veneman, 352 F.3d 625, 637 (2d Cir. 2003). According to El Badrawi, his injuries arise from “adverse employment consequences,” “the potential for future arrest,” “the inability to pursue his profession in the United States,” and “the denial of banking services.” Complaint ¶¶ 138, 140. Yet as a foreign national living abroad with no current connection to the United States, El Badrawi does not have any legally protected interest in these activities. Cf. United States v. Verdugo-Urquidez, 494 U.S. 259, 271, 274-275 (1990) (finding constitutional protections inapplicable to the search of Mexican property belonging to a citizen and resident of Mexico). Furthermore, El Badrawi offers no specific examples of how the alleged information in government databases has prevented him from obtaining a job or being denied banking services. Indeed, El Badrawi does not even allege that he ever intends to return to the United States. As the Supreme Court has repeatedly held, “[a]llegations of possible future injury do not satisfy the requirements of Article III. A threatened injury must be ‘certainly impending’ to constitute injury in fact.” Whitmore v.
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Arkansas, 495 U.S. 149, 158 (1990) (citation omitted; emphasis added); see also Lyons, 461 U.S. at 102.
El Badrawi’s allegations of possible future harm bear remarkable similarity to the claims presented by the plaintiffs in National Council of La Raza v. Gonzales, 468 F. Supp. 2d 429, 439 (E.D.N.Y. 2007), appeal docketed, No. 07-0816-cv (2d Cir. Mar. 2, 2007). In that case, the plaintiffs alleged that federal officials had no authorization to enter civil immigration data into the national crime database and that the entry of such data increased the group’s members’ risk of arrest. The court, however, held that the plaintiffs had no standing to pursue injunctive relief for three reasons. Id. First, Congress intended the federal recordkeeping statute to aid in making arrests, so the alleged injury lacked the requisite tight connection to the statutory purpose. Id. Second, the threat of arrest was merely “speculative.” Id. Third, any plaintiffs detained in the future would have adequate “due process opportunities” to challenge the basis for the arrest. Id.
El Badrawi, like the La Raza plaintiffs, presents only speculation as to the link between maintenance of records and his future risk of wrongful arrest. The fact that El Badrawi is a nonU.S. citizen living abroad makes the chances of his arrest even more remote. Therefore, El Badrawi lacks standing to pursue his expungement claims, and this Court should dismiss the claims for lack of jurisdiction.
B. No Common Law Or Statutory Right Of Action Exists For Expungement The law is well established “that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212 (1983). The bar of sovereign immunity “applies alike to causes of action arising under acts of Congress, and to those arising from some violation of rights conferred upon the citizen by the Constitution.” Lynch v. United States, 292 U.S. 571, 582 (1934) (citations omitted). Although the United States has waived sovereign immunity for certain common law
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claims under the Federal Tort Claims Act, that statute applies only to actions for monetary damages. See Walker v. United States, 116 F.R.D. 149, 152 (S.D.N.Y. 1987) (refusing to order expungement in an FTCA case because the FTCA waiver does not extend to actions for expungement). Thus, El Badrawi cannot proceed on his common law claim for unlawful maintenance of records because the United States has not waived sovereign immunity.
Likewise, although El Badrawi also bases his expungement claim under the National Crime Information Center statute, 28 U.S.C. § 534, that law contains no private right of action and thus no waiver of sovereign immunity. See La Raza, 468 F. Supp. 2d at 439. See also Alexander v. Sandoval, 532 U.S. 275, 286-87 (2001); Olmsted v. Pruco Life Ins. Co., 283 F.3d 429, 432 (2d Cir. 2002) (discussing the requirements for courts to imply a private right of action into a statute). In the NCIC statute, Congress directed the Attorney General to “acquire, collect, classify, and preserve identification, criminal identification, crime, and other records” and to “exchange such records and information with, and for the official use of, authorized officials.” 28 U.S.C. § 534(a)(1), (4). Under that authority, the Attorney General delegated to the FBI the responsibility to “[o]perate ... a computerized nationwide index of law enforcement information under the National Crime Information Center.” 28 C.F.R. § 0.85(f). This index is a computerized information system containing information that includes, but is not limited to criminal history records. See id. § 20.3(n). By its very terms, the NCIC statute contains no private right of action to seek expungement.
The NCIC statute’s silence on private causes of action demonstrates that Congress did not intend to allow expungement claims under that law. As the La Raza court noted, Congress intended for the NCIC statute to make records “accessible to law enforcement for official uses,” not to protect individuals. 468 F. Supp. 2d at 439. Another indication that Congress did not
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intend the NCIC statute to allow private causes of action is that another law already exists for individuals to challenge the accuracy of government records—the Privacy Act. In the Privacy Act, Congress has provided specific procedures that an agency must follow when someone requests to amend his records, and the law further allows a civil remedy to individuals who believe that the agency has not complied with the law. See 5 U.S.C. § 552a. The existence of this comprehensive remedial scheme obviates any arguable basis to recognize a private expungement cause of action under the NCIC statute or common law.
In fact, the Privacy Act demonstrates that Congress intended to deny plaintiffs in El Badrawi’s position any cause of action for expungement. The Privacy Act allows only United States citizens and lawful permanent residents to challenge the validity of records. See 5 U.S.C. § 522a(a)(2); Raven v. Panama Canal Co., 583 F.2d 169, 170-71 (5th Cir. 1978). Likewise, the Privacy Act allows law enforcement agencies to exclude certain systems of records from the Privacy Act’s amendment provision, which the FBI has done through 28 C.F.R. § 16.96. See 5 U.S.C. §§ 552a(d)(2), (3) and 552a(j)(2); Bassiouni v. FBI, 436 F.3d 712, 723-24 (7th Cir. 2006), cert. denied, 127 S. Ct. 709 (2006). Thus, Congress has shown its intent that foreign nationals like El Badrawi should not be able to sue government agencies to amend law enforcement records. This lack of congressional intent proves fatal to El Badrawi’s case: “Without congressional intent, ‘a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute.’” Olmsted, 283 F.3d at 432, quoting Alexander, 532 U.S. at 286-87.
Although the Second Circuit has recognized the ability of courts to exercise ancillary jurisdiction in criminal matters to expunge government records, here there is no underlying case to which ancillary jurisdiction may apply. See United States v. Schnitzer, 567 F.2d 536, 539 (2d
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Cir. 1977). Moreover, as the Second Circuit held in Schnitzer, the power of courts to expunge records is “narrow” and should only be used in an “extreme circumstances.” Schnitzer, 567 F.2d at 539 (quoting United States v. Linn, 513 F.2d 925, 927 (10th Cir. 1975). Finally, “[c]ourts have consistently held that economic hardship or negative employment consequences do not constitute the kind of ‘extreme circumstances’ discussed in Schnitzer.” United States v. Lau, No. 94-1682, 2003 WL 22698810, at *3 (S.D.N.Y. Nov. 14, 2003). In this case, other than claims about his employment prospects, El Badrawi resorts to characterizing the maintenance of alleged records of his arrest and detention “fundamentally unfair.” Complaint ¶ 160. This vague characterization cannot substitute for the concrete and particularized injury needed to support the extreme remedy of expungement, and El Badrawi’s requests for equitable relief should therefore be dismissed.
CONCLUSION For the reasons stated above, this Court should dismiss this action or, in the alternative, grant summary judgment to the Federal Defendants.

Respectfully submitted,

Kevin J. O’Connor United States Attorney

Peter D. Keisler Assistant Attorney General

Victoria S. Shin Assistant United States Attorney Federal Bar No. ct26806
157 Church Street New Haven, CT 06510 Telephone No. (203) 821-3799 Facsimile No. (203) 773-5373 Victoria.Shin@usdoj.gov

Timothy P. Garren Director, Torts Branch
Richard Montague Senior Trial Attorney
/s/ Brant S. Levine Brant S. Levine, Federal Bar No. phv02106 Trial Attorney

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/s/ Laura Smith Laura K. Smith, Federal Bar No. phv02279 Trial Attorney

November 19, 2007

United States Department of Justice, Torts Branch P.O. Box 7146, Ben Franklin Station Washington, D.C. 20044 Tel: 202-616-4373 Fax: 202-616-4314 Brant.Levine@usdoj.gov

For Defendants United States of America, Department of Homeland Security, Federal Bureau of Investigation, Michael Chertoff, and Robert Mueller.

Certificate of Service

I hereby certify that on November 19, 2007, a copy of this Memorandum of Law was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of the court’s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the court’s CM/ECF System.

/s/ Brant S. Levine Brant S. Levine, Federal Bar No. phv02106 Trial Attorney

United States Department of Justice, Torts Branch P.O. Box 7146, Ben Franklin Station Washington, D.C. 20044 Tel: 202-616-4373 Fax: 202-616-4314 Brant.Levine@usdoj.gov

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List of Exhibits A. Declaration of Gregory Manack B. Declaration of Michael Loser, with attachments:
1. Visa 2. Warrant 3. Notice to Appear 4. Notice of Custody Determination 5. Notice of Rights C. Transcript of Removal Proceedings, Nov. 3, 2004, with attachments: 1. Notice to Appear 2. Pleadings 3. Approval of H1-B Petition 4. Receipt of Application for Extension 5. Letters from University of Connecticut 6. Certificate of Visa Revocation D. ICE Internal Memorandum from Michael Pearson E. El Badrawi’s medical records (filed separately under seal) F. Record of Immigration Court Action G. Transcript of Removal Proceedings, November 10, 2004 H. Order granting voluntary departure
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 Case 3:07-cv-01074-JCH Document 41 Filed 12/29/07 Page 1 of 69
UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

RASHAD AHMAD REFAAT EL BADRAWI :

Plaintiff

:

:

v.

:

:

DEPARTMENT OF HOMELAND

:

SECURITY, et al.

:

Defendants

:

CIVIL ACTION NO. 3:07CV1074 (JCH)
DECEMBER 29, 2007

PLAINTIFF’S MEMORANDUM IN OPPOSITION TO MOTION TO DISMISS OR FOR SUMMARY JUDGMENT OF DEFENDANTS MANACK AND LOSER

Michael Wishnie Hope Metcalf Ramzi Kassem
Sameer Ahmed, Law Student Intern Sarah Burg, Law Student Intern Kathryn Hunt, Law Student Intern
Daniel J. Freeman, JD, Admission Pending ALLARD K. LOWENSTEIN INTERNATIONAL HUMAN RIGHTS CLINIC NATIONAL LITIGATION PROJECT
127 Wall Street New Haven, Connecticut 06510
Phone: (203) 432-9122
*Plaintiff respectfully requests oral argument regarding this motion

Case 3:07-cv-01074-JCH Document 41 Filed 12/29/07 Page 2 of 69
TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................................................ iv
INTRODUCTION ................................................................................................................................. 1
FACTS AND PROCEEDINGS............................................................................................................. 2
ARGUMENT .................................................................................................................................10
I. THIS COURT HAS SUBJECT MATTER JURISDICTION OVER PLAINTIFF’S CLAIMS CHALLENGING THE CONSTITUTIONALITY OF HIS ARREST AND DETENTION BECAUSE THESE CLAIMS ARE NOT SUBJECT TO THE INA’S EXCLUSIVE REVIEW SCHEME....................................10
A. 8 U.S.C. § 1252(b)(9) Does Not Bar Jurisdiction Over Plaintiff’s Challenges to His Unconstitutional Arrest and Detention Because These Challenges Could Not Have Been Pursued in a Petition for Review...................................... 12
B. No Other INA Provision Precludes Review of Plaintiff’s Constitutional Challenges to Defendants’ Actions. ........................................................................................ 15
1. 8 U.S.C. § 1252(g) Does Not Bar Jurisdiction over Plaintiff’s Constitutional Challenges to Defendants’ Actions..................................................... 15
2. 8 U.S.C. §§ 1252(a)(2)(B)(ii) and 1226(e) Do Not Bar Jurisdiction over Plaintiff’s Constitutional Challenges to Defendants’ Actions........................................................................................................................ 18
C. The Doctrine of Heck v. Humphrey Does Not Preclude Review of Plaintiff’s Constitutional Challenges to Defendants’ Actions. ............................................... 20
II. CONGRESS HAS NOT EXPRESSLY PRECLUDED A BIVENS CAUSE OF ACTION FOR DAMAGES, NOR DO ANY “SPECIAL FACTORS” BAR SUCH A CAUSE OF ACTION. ................................................................................................... 21
A. The INA’s Regulatory Scheme Does Not Preclude a Bivens Remedy ............................. 22
B. Bivens Suits Are Available to Challenge Unconstitutional Conduct in Fields Over Which Congress Has Plenary Power................................................................... 24
III. DEFENDANTS MANACK AND LOSER DO NOT HAVE QUALIFIED IMMUNITY FROM SUIT ............................................................................................................ 28
A. Defendants Manack and Loser Wrongfully Arrested and Detained Plaintiff Without Probable Cause, Reason To Believe An Immigration Violation Had Been Committed, or Valid Justification. ......................................................... 29
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B. Defendants’ Initial Arrest and Detention of Plaintiff Violated Clearly Established Due Process and Fourth Amendment Rights....................................................... 35
1. Defendants Manack and Losers’ Arrest and Detention of Plaintiff Violated His Fourth Amendment Right To Be Free from Unreasonable Searches and Seizures.......................................................................... 36 2. Defendants Manack and Losers’ Arrest and Detention of Plaintiff Violated His Fifth Amendment Right to Due Process................................................ 43 C. Defendants’ Prolonged Detention of Plaintiff Violated Clearly Established Due Process and Fourth Amendment Rights Because It Was Not Necessary to Secure His Removal .......................................................................................... 46 1. Defendants’ Prolonged Detention of Plaintiff Denied Him Substantive and Procedural Due Process.................................................................... 46
a) Plaintiff’s Claim Rests on the Clearly Established Principle of Substantive Due Process that the Constitution permits post-voluntary departure detention only to the extent that it facilitates removal ................................................................................ 52 b) Plaintiff’s claim also rests on the clearly established procedural due process requirement that detainees must be given notice of the basis for detention and a hearing to contest the detention. .................................................................................................. 56 2. Plaintiff’s Prolonged Detention Without Legitimate Immigration Purpose or Probable Cause Violated His Fourth Amendment Right To Be Free From Unreasonable Searches and Seizures ............................................. 57 CONCLUSION.................................................................................................................................... 60
iii

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TABLE OF AUTHORITIES
CASES
Abdul v. McElroy, No. 98 Civ. 2460, 1999 U.S. Dist. LEXIS 1103 (S.D.N.Y. Feb. 4, 1999) ....................................................................................................................................... 19
Abel v. United States, 362 U.S. 217 (1960) ......................................................................................... 37 Adams v. United States, 399 F.2d 574 (D.C. Cir. 1968)...................................................................... 57 African Trade & Information Ctr., Inc. v. Abromaitis, 294 F.3d 355 (2d Cir. 2002).......................... 29 Anderson v. Creighton, 483 U.S. 635 (1987) ...................................................................................... 28 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).................................................................... 2, 42 Arar v. Ashcroft, 414 F. Supp. 2d 250 (E.D.N.Y. 2006) ......................................................... 13, 18, 23 Au Yi Lau v. INS, 445 F.2d 217 (D.C. Cir. 1971) ................................................................................ 38 Ba v. Gonzales, 228 Fed. Appx. 7 (2d Cir. 2007)................................................................................ 27 Baldwin v. Hale, 68 U.S. 223 (1864)................................................................................................... 56 Beck v. Ohio, 379 U.S. 89 (1964) ........................................................................................................ 36 Benslimane v. Gonzales, 430 F.3d 828 (7th Cir. 2005) ....................................................................... 27 Berkovitz v. United States, 486 U.S. 531 (1988) ................................................................................. 19 Bezmen v. Ashcroft, 245 F. Supp. 2d 446 (D. Conn. 2003)................................................................ 19 Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).............................................................. 36 Bowers v. Hardwick, 478 U.S. 186 (1986), overruled on other grounds, Lawrence v.
Texas, 539 U.S. 558 (2003)..................................................................................................... 57 Boyd v. City of New York, 336 F.3d 72 (2d Cir. 2003) ........................................................................ 30 Boyd v. United States, 116 U.S. 616 (1886) ........................................................................................ 42 Brousseau v. Haugen, 543 U.S. 194 (2004) ........................................................................................ 28 Brown v. City of Oneonta, 235 F.3d 769 (2d Cir. 2000) ..................................................................... 36 Brown v. United States, 742 F.2d 1498 (D.C. Cir. 1984) .................................................................... 24 Bush v. Lucas, 462 U.S. 367 (1983) .................................................................................................... 23 Calcano-Martinez v. INS, 232 F.3d 328 (2d Cir. 2000), aff'd, 533 U.S. 348 (2001)........................... 14 Calix-Chavarria v. Gonzalez, Civil No. 1:CV-06-0820, 2006 U.S. Dist. LEXIS
41934 (M.D. Pa. June 22, 2006) ............................................................................................. 21 Carlson v. Green, 446 U.S. 14 (1980)................................................................................................. 22 Castro v. United States, 34 F.3d 106 (2d Cir. 1994) ........................................................................... 42 Chappell v. Wallace, 462 U.S. 296 (1983) .................................................................................... 25, 26 Chen v. U.S. Department of Justice, 426 F.3d 104 (2d Cir. 2005) ...................................................... 27 Chimbo v. Sec'y of the Department of Homeland Sec., No. 3:04cv1671, 2004 U.S.
Dist. LEXIS 23847 (D. Conn. Nov. 18, 2004)........................................................................ 19 Clark v. Martinez, 543 U.S. 371 (2005) .............................................................................................. 26 Coolidge v. New Hampshire, 403 U.S. 443 (1971) ............................................................................. 37 County of Riverside v. McLaughlin, 500 U.S. 44 (1991)............................................................... 58, 59 County of Sacramento v. Lewis, 523 U.S. 833 (1998)......................................................................... 51 Dallas v. Goldberg, 143 F. Supp. 2d 312 (S.D.N.Y. 2001)................................................................. 21 Davis v. Scherer, 468 U.S. 183 (1984) .......................................................................................... 40, 41 Davis v. United States, 430 F. Supp. 2d 67 (D. Conn. 2006) ........................................................ 45, 48 Demore v. Kim, 538 U.S. 510 (2003) ........................................................................................... passim Doherty v. Thornburgh, 750 F. Supp. 131 (S.D.N.Y. 1990) ............................................................... 51 Doherty v. Thornburgh, 943 F.2d 204 (2d Cir. 1991) ................................................................... 45, 51 Dotson v. Griesa, 398 F.3d 156 (2d Cir. 2005), cert. denied, 126 S. Ct. 2859 (2006)........................ 23
iv

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Fernandez v. Wilkinson, 505 F. Supp. 787 (D. Kan. 1980), aff’d, 654 F.2d 1382 (10th Cir. 1981) ................................................................................................................................ 49
Foucha v. Louisiana, 504 U.S. 71 (1992)............................................................................................ 51 Fuentes v. Shevin, 407 U.S. 67 (1972) ................................................................................................ 56 Gerstein v. Pugh, 420 U.S. 103 (1975)................................................................................................ 58 Goldstein v. Moatz, 364 F.3d 205 (4th Cir. 2004) ............................................................................... 24 Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ............................................................................................ 56 Harisiades v. Shaughnessy, 342 U.S. 580 (1952).......................................................................... 25, 26 Harlow v. Fitzgerald, 457 U.S. 800 (1982)............................................................................. 28, 41, 43 Heck v. Humphrey, 512 U.S. 477 (1994)............................................................................................. 20 Hope v. Pelzer, 536 U.S. 730 (2002)............................................................................................. 28, 29 Huang v. Johnson, 251 F.3d 65 (2d Cir. 2001) ................................................................................... 21 Hudson Valley Black Press v. IRS, 409 F.3d 106 (2d Cir. 2005) ........................................................ 23 Hyppolite v. Enzer, No. 3:07cv729, 2007 WL 1794096 (D. Conn. June 19, 2007) ............................ 46 INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) ................................................................................... 11 INS v. National Ctr. for Immigrants’ Rights, 502 U.S. 183 (1991)..................................................... 14 INS v. St. Cyr, 533 U.S. 289 (2001).............................................................................................. passim Illinois v. Gates, 462 U.S. 213 (1983) ................................................................................................. 29 Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007)........................................................................................ 25 Islam v. Gonzales, 469 F.3d 53 (2d Cir. 2006).................................................................................... 27 J.G. v. Board of Education, 830 F.2d 444 (2d Cir. 1987) ................................................................... 14 Jenkins v. Haubert, 179 F.3d 19 (2d Cir. 1999) .................................................................................. 21 Johnpoll v. Thornburgh, 898 F.2d 849 (2d Cir. 1990) ........................................................................ 14 Johnson v. Newburgh Enlarged School District, 239 F.3d 246 (2d Cir. 2001)................................... 28 Johnson v. Robison, 415 U.S. 361 (1974) ........................................................................................... 12 Johnson v. United States, 333 U.S. 10 (1948) ..................................................................................... 37 Kansas v. Crane, 534 U.S. 407 (2002) ................................................................................................ 51 Kansas v. Hendricks, 521 U.S. 346 (1997).......................................................................................... 51 Khorrami v. Rolince, 493 F. Supp. 2d 1061 (D. Ill. 2007) .................................................................. 23 Kiareldeen v. Reno, 71 F. Supp. 2d 402 (D.N.J. 1999) ....................................................................... 35 Kulakov v. INS, No. 06-C 2007 U.S. Dist. LEXIS 33669 (W.D.N.Y. May 7, 2007) .......................... 21 Kwai Fun Wong v. United States, 373 F.3d 952 (9th Cir. 2004)................................................... 17, 19 Lauro v. Charles, 219 F.3d 202 (2d Cir. 2000) ................................................................................... 59 Leather v. Eyck, 180 F.3d 420 (2d Cir. 1999) ..................................................................................... 20 Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001).................................................................... 44 Lombardi v. Whitman, 485 F.3d 73 (2d Cir. 2007) ............................................................................. 51 Lopez v. Gonzales, 127 S. Ct. 625 (2007) ........................................................................................... 26 Los Angeles County v. Rettele, 127 S. Ct. 1989 (2007)....................................................................... 39 Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003) ........................................................................................ 46 Mace v. Skinner, 34 F.3d 854 (9th Cir. 1994) ..................................................................................... 24 Malley v. Briggs, 475 U.S. 335 (1986) ................................................................................................ 38 Mathews v. Eldridge, 424 U.S. 319 (1976) ......................................................................................... 56 McCarthy v. Madigan, 503 U.S. 140 (1992) ....................................................................................... 14 McClurg v. Kingsland, 42 U.S. (1 How.) 202 (1843).......................................................................... 24 Medina v. United States, 92 F. Supp. 2d 545 (E.D. Va. 2000)................................................ 13, 16, 17 Miller v. Norris, 247 F.3d 736 (8th Cir. 2001) .................................................................................... 15 Murphy v. Lynn, 118 F.3d 938 (2d Cir. 1997) ..................................................................................... 30 Ncube v. INS District Directors, 1998 WL 842349 (S.D.N.Y. Dec. 2, 1998)..................................... 20 Nwankwo v. Reno, 819 F. Supp. 1186 (E.D.N.Y. 1993) ..................................................................... 51
v

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Oliva v. INS, No. 98 Civ. 6526, 1999 U.S. Dist. LEXIS 1269 (S.D.N.Y. Feb. 10, 1999) ...................................................................................................................................... 19
Oregon Waste System, Inc. v. Department of Environmental Quality, 511 U.S. 93 (1994) ...................................................................................................................................... 25
Orhorhaghe v. INS, 38 F.3d 488 (9th Cir. 1994)........................................................................... 36, 39 Patsy v. Board of Regents, 457 U.S. 496 (1982) ................................................................................. 20 Pierce v. Gilchrist, 359 F.3d 1279 (10th Cir. 2004)............................................................................ 28 Plyler v. Doe, 457 U.S. 202 (1982) ..................................................................................................... 43 Poe v. Leonard, 282 F.3d 123 (2d Cir. 2002)...................................................................................... 28 Powell v. Gardner, 891 F.2d 1039 (2d Cir. 1989)............................................................................... 59 Red Lake Band of Chippewa Indians v. United States, 800 F.2d 1187 (D.C. Cir.
1986) ....................................................................................................................................... 19 Regan v. Sullivan, 557 F.2d 300 (2d Cir. 1977) .................................................................................. 22 Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999) ........................... 16, 18 Ricks v. United States, 334 F.2d 964 (D.C. Cir. 1964) ........................................................................ 58 Rodriguez v. McElroy, 53 F. Supp. 2d 587 (S.D.N.Y. 1999) .............................................................. 49 Rostker v. Goldberg, 453 U.S. 57 (1981) ............................................................................................ 25 Russo v. City of Bridgeport, 479 F.3d 196 (2d Cir. 2007)............................................................. 44, 51 Sadegh-Nobari v. INS, 676 F.2d 1348 (6th Cir. 1982) ........................................................................ 35 Salahuddin v. Coughlin, 781 F.2d 24 (2d Cir.1986)............................................................................ 41 Sanders v. City of Houston, 543 F. Supp. 694 (S.D. Tex. 1982) ......................................................... 58 Saucier v. Katz, 533 U.S. 194 (2001) .................................................................................................. 28 Schlesinger v. Councilman, 420 U.S. 738 (1975)................................................................................ 26 Schweiker v. Chilicky, 487 U.S. 412 (1988) ........................................................................................ 23 Shadwick v. City of Tampa, 407 U.S. 345 (1972)................................................................................ 37 Sissoko v. Rocha, 440 F.3d 1145 (9th Cir. 2006), withdrawn and replaced by 2007
U.S. App. LEXIS 26488 (9th Cir. Nov. 15, 2007).................................................................. 17 Sissoko v. Rocha, No. 02-56751, 2007 U.S. App. LEXIS 26488 (9th Cir. Nov. 15,
2007) ....................................................................................................................................... 17 South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998) ............................................................... 25 Southern Utah Wilderness Alliance v. Dabney, 222 F.3d 819 (10th Cir. 2000).................................. 33 Spagnola v. Mathis, 859 F.2d 223 (D.C. Cir. 1988)............................................................................ 23 Sugrue v. Derwinski, 26 F.3d 8 (2d Cir. 1994).................................................................................... 23 Talwar v. INS, 2001 WL 767018 (S.D.N.Y. July 9, 2001).................................................................. 19 Matter of Teberen, 15 I. & N. Dec. 689 (B.I.A. 1976) ........................................................................ 34 Thomas v. Roach, 165 F.3d 137 (2d Cir. 1999)............................................................................... 2, 29 Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005).................................................................................... 46 Trammell v. Keane, 338 F.3d 155 (2d Cir. 2003).................................................................................. 2 Trebor Sportswear Co. v. The Ltd. Stores, Inc., 865 F.2d 506 (2d Cir. 1989) ...................................... 2 Turkmen v. Ashcroft, No. 02-CV-2307, 2006 U.S. Dist. LEXIS 39170 (E.D.N.Y.
June 14, 2006), appeal docketed, No. 06-3745-cv (2d Cir. Aug. 10, 2006) .................... passim U.S. Fidelity & Guaranty Co. v. United States, 837 F.2d 116 (3d Cir. 1988)..................................... 19 United States ex rel. Blankenstein v. Shaughnessy, 117 F. Supp. 699 (S.D.N.Y. 1953) ..................... 49 United States ex rel. Ross v. Wallis, 279 F. 401 (2d Cir. 1922) .......................................................... 51 United States v. Abdi, 463 F.3d 547 (6th Cir. 2006)............................................................................ 39 United States v. Brignoni-Ponce, 422 U.S. 873 (1975)....................................................................... 36 United States v. Karathanos, 399 F. Supp. 185 (E.D.N.Y 1975), aff’d 531 F.2d 26
(2d Cir. 1976), cert. den. 428 U.S. 910 (1976) ....................................................................... 39
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United States v. Karathanos, 531 F.2d 26 (2d Cir. 1976) ................................................................... 36 United States v. Lanier, 520 U.S. 259 (1997)...................................................................................... 29 United States v. Lopez, 514 U.S. 549 (1995)....................................................................................... 25 United States v. Perez, 733 F.2d 1026 (2d Cir. 1984) ......................................................................... 58 United States v. Salerno, 481 U.S. 739 (1987) .................................................................................... 53 United States v. Sanchez, 635 F.2d 47 (2d Cir. 1980) ......................................................................... 38 United States v. Singh, 415 F.3d 288 (2d Cir. 2005) ........................................................................... 36 United States v. United States District Court, 407 U.S. 297 (1972) ................................................... 37 Utah Division of State Lands v. United States, 482 U.S. 193 (1987) .................................................. 26 Valencia v. Wiggins, 981 F.2d 1440 (5th Cir. 1993) ........................................................................... 59 Velasquez v. Senko, 643 F. Supp. 1172 (N.D. Cal. 1986), appeal dismissed 813 F.2d
1509 (9th Cir. 1987).......................................................................................................... 25, 41 Walczyk v. Rio, 496 F.3d 139 (2d Cir. 2007)....................................................................................... 30 Wang v. Ashcroft, 320 F.3d 130 (2d Cir. 2003)................................................................................... 50 Webster v. Doe, 486 U.S. 592 (1988) ............................................................................................ 15, 19 Westover v. Reno, 202 F.3d 475 (1st Cir. 2000).................................................................................. 30 Wilkie v. Robbins, 127 S. Ct. 2588 (2007)..................................................................................... 24, 26 Wilkinson v. United States, 440 F.3d 970 (8th Cir. 2006) ................................................................... 24 Williams v. Smith, 781 F.2d 319 (2d Cir. 1986) ............................................................................ 45, 48 Wong Wing v. United States, 163 U.S. 228 (1896).............................................................................. 49 Zadvydas v. Davis, 533 U.S. 678 (2001) ...................................................................................... passim Zellner v. Summerlin, 494 F.3d 344 (2d Cir. 2006)............................................................................. 31 Zerrei v. Gonzales, 471 F.3d 342 (2d Cir. 2006)........................................................................... 32, 35
STATUTES AND REGULATIONS
8 C.F.R. § 103.2(b)(10) ....................................................................................................................... 34 8 C.F.R. § 103.2(b)(10)(ii)................................................................................................................... 34 8 C.F.R. § 1240.26(b)(3)(i)............................................................................................................ 48, 53 8 C.F.R. §§ 215.3-.5 ............................................................................................................................ 57 8 C.F.R. § 236.1(d) .............................................................................................................................. 45 8 C.F.R. § 240.25(b) ...................................................................................................................... 52, 53 8 C.F.R. § 274a .................................................................................................................................. 35 8 C.F.R. § 274a.12(b)(20)............................................................................................................. passim 8 C.F.R. § 287.8(c)(2).......................................................................................................................... 36 8 C.F.R. § 287.8(c)(2)(i)...................................................................................................................... 38 8 C.F.R. § 287.8(c)(2)(ii)..................................................................................................................... 38 8 U.S.C. § 1182(a)(9)(B)(i) ................................................................................................................. 33 8 U.S.C. § 1182(a)(9)(B)(iv) ............................................................................................................... 33 8 U.S.C. § 1226.................................................................................................................................... 20 8 U.S.C. § 1226(a) ......................................................................................................................... 45, 46 8 U.S.C. § 1226(e) ........................................................................................................................ 18, 19 8 U.S.C. § 1227(a)(1)(B) ..................................................................................................................... 30 8 U.S.C. § 1229c.................................................................................................................................. 52 8 U.S.C. § 1229c(e) ....................................................................................................................... 52, 53 8 U.S.C. § 1231(a)(6) .................................................................................................................... 52, 54 8 U.S.C. § 1252........................................................................................................................ 14, 21, 22 8 U.S.C. § 1252(a)(2)(B)(ii) .......................................................................................................... 15, 18 8 U.S.C. § 1252(a)(2)(D)..................................................................................................................... 27
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Case 3:07-cv-01074-JCH Document 41 Filed 12/29/07 Page 8 of 69 8 U.S.C. § 1252(b)............................................................................................................................... 22 8 U.S.C. § 1252(b)(9) .................................................................................................................... 12, 13 8 U.S.C. § 1252(d)(1) .......................................................................................................................... 14 8 U.S.C. § 1252(g)............................................................................................................. 15, 16, 17, 18 8 U.S.C. § 1324a.................................................................................................................................. 35 8 U.S.C. § 1357.............................................................................................................................. 38, 39 8 U.S.C. § 1357(a)(2) .......................................................................................................................... 38 42 U.S.C. § 1983.................................................................................................................................. 20 28 U.S.C. § 1331.................................................................................................................................. 13
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INTRODUCTION This is a civil rights lawsuit to redress the arbitrary arrest, wrongful detention, coerced departure, and other malicious abuse suffered by Rashad El Badrawi, a foreign national who had lawfully studied and worked in the United States for nearly eleven years. In October 2004, while working in lawful immigration status as a researcher at the University of Connecticut Health Center, Mr. El Badrawi was wrongfully arrested and detained by Gregory Manack and Michael Loser, agents of the U.S. Immigration and Customs Enforcement (“ICE”). At the time, both Manack and Loser were fully aware of Mr. El Badrawi’s lawful immigration status. Although Defendants Manack and Loser claim that Mr. El Badrawi was arrested for allegedly overstaying his period of authorized residence, his arrest was in fact pursuant to a secret ICE program called “Operation Frontline II,” designed to investigate and detain non-citizens with alleged national security concerns in the month before the November Presidential 2004 election. However, Mr. El Badrawi had no national security concerns, nor any criminal history, and was at all times lawfully present and authorized to work in the United States. Overzealous in their pursuit of implementing Operation Frontline II, Manack and Loser knew or should have reasonably known Mr. El Badrawi had not violated any immigration law, but instead they acted with reckless disregard and deliberate indifference to Mr. El Badrawi’s constitutional rights. Mr. El Badrawi had complied with the same procedure followed yearly by thousands of essential workers legally present pursuant to H1-B visas. The timely filing of Mr. El Badrawi’s application for an extension of stay automatically extended his permission to remain employed and present in the United States for 240 days or until he was notified that his extension had been denied. Manack and Loser claim that, at the time of his arrest, Mr. El Badrawi was authorized to legally work in the United States but not authorized to stay in the United States. This interpretation of 8 C.F.R. § 274a.12(b)(20) not only defies logic, it also would unjustly render deportable thousands of non-
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citizens currently legally present in the United States. Manack and Loser’s argument has been rejected by high-level ICE officials and never upheld by any court.
Defendants argue that Plaintiff’s complaint should be dismissed for three reasons, all of which should be rejected by this Court. First, this Court has subject matter jurisdiction over the claims present in Mr. El Badrawi’s Complaint. No provision of the Immigration and Nationality Act (“INA”) bars judicial review of a non-citizen’s damages action challenging the constitutionality of his arrest and detention after he has been released from ICE custody. Second, no “special factors” preclude review of Plaintiff’s Bivens claim because Congress provided no alternative remedial scheme, nor is there any evidence that it sought to preclude damages actions against government officials who systematically violated the constitutional rights of foreign nationals by arresting and detaining them without probable cause or legitimate immigration purpose. Third, Defendants are not entitled to qualified immunity. By arresting and detaining Plaintiff without probable cause or reason to believe he had committed an immigration violation, and by continuing to detain him without any immigration justification but instead to investigate him pursuant to Operation Frontline, Defendants violated Mr. El Badrawi’s clearly established Fourth and Fifth Amendment constitutional rights.
Moreover, Defendants’ attempt to bring a motion for summary judgment along with their motion to dismiss is clearly premature, as Plaintiff has not had the opportunity to conduct discovery. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986); see also Trammell v. Keane, 338 F.3d 155, 161 n.2 (2d Cir. 2003); Trebor Sportswear Co. v. The Ltd. Stores, Inc., 865 F.2d 506, 511 (2d Cir. 1989). Even when deciding the application of qualified immunity, “[d]ismissal . . . is not appropriate where there are facts in dispute that are material to a determination of reasonableness,” Thomas v. Roach, 165 F.3d 137, 143 (2d Cir. 1999). See generally Pl. Rule 56(f) Motion.
FACTS AND PROCEEDINGS
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Rashad El Badrawi is a foreign national who had lawfully studied and worked in the United States for nearly eleven years. Mr. El Badrawi first entered the United States in September 1993 on a nonimmigrant student (F-1) visa to pursue a master’s degree in pharmacology at Northeastern University in Boston, Massachusetts. Compl. ¶ 19; El Badrawi Decl. ¶¶ 1-2. In December 1999, he was granted his first of several H1-B work petitions (and accompanying visas), sponsored by various employers in the biotechnology industry. Compl. ¶ 20; El Badrawi Decl. ¶ 3.
Mr. El Badrawi meticulously maintained legal immigration status throughout his time living and working in the United States. He sought renewal of his H1-B petitions as necessary, and periodically departed the country to re-apply as required, remaining outside the United States for the requisite period of time. Compl. ¶ 21; El Badrawi Decl. ¶ 4.
A. Mr. El Badrawi’s Recent Visa History Mr. El Badrawi’s most recent H1-B sponsor was the University of Connecticut Health Center’s Richard D. Berlin Center for Cell Analysis and Modeling in Hartford, Connecticut. Compl. ¶¶ 22, 27; El Badrawi Decl. ¶ 5. In April 2003, the Department of Homeland Security (“DHS”) granted the University of Connecticut Health Center’s visa petition authorizing his employment as a research associate. Compl. ¶ 23; El Badrawi Decl. ¶ 6; Defs. Ex. C., attachment 3. The Department of State (“DOS”) subsequently issued Mr. El Badrawi an H1-B nonimmigrant visa authorizing him to enter the United States to accept his offer of employment. Compl. ¶ 24; El Badrawi Decl. ¶ 7. Pursuant to this visa, Mr. El Badrawi lawfully entered the United States and commenced employment in June 2003. Compl. ¶ 25; El Badrawi Decl. ¶ 8. While employed at the University of Connecticut Health Center, Mr. El Badrawi worked on a grant project funded by the National Institutes of Health to develop computational software for modeling cell biology. Compl. ¶ 28; El Badrawi Decl. ¶ 9.
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In October 2003, DOS administratively revoked Mr. El Badrawi’s visa without notice to him or to his employer. Compl. ¶ 29; El Badrawi Decl. ¶ 10; Defs. Ex. C., attachment 6. By the terms of the Certificate of Revocation, the revocation was effective only upon Mr. El Badrawi’s “departure from the United States.” Compl. ¶ 30; Defs. Ex. C., attachment 6. From October 2003 until his coerced and wrongful departure on December 22, 2004, Mr. El Badrawi never departed the United States, and therefore the DOS visa revocation by its own terms never became effective. Compl. ¶ 36; El Badrawi Decl. ¶ 11.
On March 31, 2004, the University of Connecticut Health Center filed a timely application for an extension of stay of Mr. El Badrawi’s H1-B petition, U.S. Citizenship and Immigration Services (“USCIS”) form I-129, including a request for premium processing. Compl. ¶ 31; El Badrawi Decl. ¶¶ 12-13; Defs. Ex. C., attachment 4. The timely filing of Mr. El Badrawi’s application for extension of stay automatically extended his permission to remain employed and present in the United States for 240 days or until he was notified that his extension of stay had been approved or denied. 8 C.F.R. § 274a.12(b)(20); see also Compl. ¶ 32; Defs. Ex. D at 2 (Memorandum from Michael A. Pearson, Executive Associate Commissioner, Immigration and Naturalization Service, to Regional Directors, et al. 2 (Mar. 3, 2000)) [hereinafter Pearson Memo] (beneficiary of timely, non-frivolous petition to extend H1-B visa “should be considered to be in a period of stay authorized by the Attorney General”); Ex. 1 at 4-5 (Memorandum from Thomas E. Cook, INS Acting Assistant Commissioner, to Regional Directors, et al. (Apr. 2, 2003)) [hereafter Cook Memo] (same). In Mr. Badrawi’s case, this period should have run from May 1, 2004, when his initial H1-B was due to expire, up to and including December 27, 2004 (or until USCIS adjudicated his petition, had that occurred prior to the expiration of the automatic extension). Despite contacting USCIS multiple times to inquire about the application, neither Mr. El Badrawi nor
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his employer was ever notified whether his extension of stay had been approved or denied.1 Compl..¶¶ 34-35; El Badrawi Decl. ¶ 14; Defs. Ex. C, attachment 5. Because Mr. El Badrawi’s I-129 extension of stay was still pending at the time of his wrongful arrest on October 29, 2004, he remained legally present in the United States until and throughout his unlawful arrest and detention by Defendants Manack and Loser. Compl. ¶¶ 33, 102; El Badrawi Decl. ¶ 15.
B. Mr. El Badrawi’s Wrongful Arrest and Detention In spring 2004, ICE launched Operation Frontline, a secretive program targeting foreign nationals alleged to be threats to national security for arrest and detention. See Ex. 5.2 Unlike many of its law enforcement programs, ICE has never fully disclosed the operation or purposes of Frontline. See Ex. 7; cf. Ex. 3 (Fact Sheet, The White House, Operation Predator (July 7, 2004)) (describing another ICE enforcement program). In fall 2004, ICE initiated a second phase of Operation Frontline, which the agency has termed “Operation Frontline II.” See Ex. 6. Operation Frontline II was designed specifically to “detect, deter, and disrupt terrorist operations leading up to the Presidential Election” of 2004 and intended to last through the January 2005 U.S. presidential inauguration. Ex. 7 at 1. Pursuant to Operation Frontline II, ICE targeted, rounded up, and arrested at least 237 non-citizens. Ex. 4 at 1; Ex. 8 at 17, 18 (ICE counsel stating that pursuant to Operation Frontline, ICE “targeted” and “rounded up” individuals). Operation Frontline II investigations are conducted by ICE’s field offices, not through ICE headquarters. Ex. 7 at 2; Ex. 14 at 2 (“ICE then
1 In fact, because Mr. El Badrawi’s application included a request for premium processing, USCIS was obligated to approve, deny, or issue a Request For Evidence within 15 days of filing. Because USCIS failed to do so, UConn is entitled to receive its $1,000 premium processing fee back from the government. See Ex. 2 at 1. 2 Subsequent to the filing of the complaint in this case, Plaintiffs’ counsel obtained a number of documents concerning Operation Frontline and Operation Frontline II through litigation under the Freedom of Information Act. Wishnie Decl. ¶ 20. As Defendants have moved both to dismiss Plaintiffs’ suit and for summary judgment on all claims, we cite these documents in response to the motion for summary judgment. Should the Court determine that facts from these documents are necessary to the disposition of Defendants’ motion to dismiss, Plaintiff would respectfully request leave to file an amended complaint pursuant to Federal Rule of Civil Procedure 15(a)(2).
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generates leads for ICE field offices to further develop violations and eventually remove persons in violation [withheld]”).
In March 2004, an ICE agent interviewed Mr. El Badrawi and confirmed that he was fully in compliance with his visa status. Ex. 15. In October 2004, however, Gregory Manack, the Resident Agent in Charge of the Hartford ICE Office, assigned Senior Special Agent Michael Loser to investigate Mr. El Badrawi pursuant to Operation Frontline II. Loser Dec. ¶ 4; Manack Dec. ¶ 4; see also Compl. ¶ 37; Ex. 9 at 1 (“An investigation [of Mr. El Badrawi] was launched by RAC Hartford personnel . . .”); Ex. 12.
During his initial investigation of Mr. El Badrawi, Loser confirmed that the University of Connecticut Health Center’s I-129 extension of stay form was pending with the ICE Benefit Fraud Unit/Eastern Service Center in Vermont. Loser Decl. ¶ 4; Compl. ¶ 37. Because he was still well within the 240-day period of authorized extended stay, Mr. El Badrawi was lawfully present and work authorized in the United States at that time.3 See Compl. ¶¶ 32-33; 8 C.F.R. § 274a.12(b)(20). Nevertheless, Loser signed an ICE Form I-213, Record of Deportable/Inadmissible Alien, which wrongfully and falsely alleged that Mr. El Badrawi had unlawfully overstayed his H1-B authorization by remaining in the United States beyond May 1, 2004. Compl. ¶ 38; Ex. 12 (ICE Form I-213); El Badrawi Decl. ¶ 16; see also Loser Decl. ¶ 4. Execution of the I-213 set in motion the wrongful arrest and detention of Mr. Badrawi. See Compl. ¶¶ 38-39, 42-50; El Badrawi Decl. ¶¶ 16-21.
Manack subsequently issued a Warrant for Arrest of Alien for Mr. El Badrawi, which wrongfully and falsely alleged that he was within the country in violation of the immigration laws of the United States. Compl. ¶¶ 42-43; El Badrawi Decl. ¶ 16; see also Manack Decl. ¶ 5; Defs. Ex. B, attachment 2. Manack also signed a Notice to Appear (“NTA”) seeking Mr. El Badrawi’s removal
3 Indeed UConn was already entitled to a refund of its Premium Processing fee because of USCIS’s delays. See Ex. 2.
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from the United States. The sole ground asserted in the NTA for Mr. El Badrawi’s arrest and deportation was that he had overstayed his H1-B authorization by remaining in the United States beyond May 1, 2004. Compl. ¶¶ 45-46; Manack Decl. ¶ 5; Defs. Ex. B, attachment 3. Finally, Manack signed an ICE form I-286, Notice of Custody Determination, resolving that Mr. El Badrawi should be detained without bond in the custody of ICE. Compl. ¶ 48; Manack Dec. ¶ 6; Defs. Ex. B, attachment 4.
On October 29, 2004, with no notice or warning of any possible violation, and pursuant to the warrant signed by Manack, Mr. El Badrawi was arrested by Loser and two other ICE agents in the parking lot of his Hartford, Connecticut residence. Compl. ¶ 49; El Badrawi Decl. ¶¶ 15, 17; see also Loser Decl. ¶ 7. Mr. El Badrawi was humiliated by the arrest, which occurred in front of his neighbors. Compl. ¶ 51; El Badrawi Decl. ¶ 17. After searching Mr. El Badrawi’s apartment, the ICE agents took Mr. El Badrawi—fully handcuffed and restrained—to an ICE facility in Hartford. Compl. ¶ 52; El Badrawi Decl. ¶¶ 17-18.
At the ICE facility, Defendant Loser interrogated Mr. El Badrawi regarding potential national security concerns. El Badrawi Decl. ¶ 19. For example, Loser asked him if he had any knowledge of “jihadist/extremist groups or individuals, organizations, websites, etc.” Ex. 9 at 3. Because Mr. El Badrawi had not been involved in any activities that would reasonably raise national security concerns, he answered all of Loser’s questions while denying any knowledge, information or contact with violent jihadist or extremist groups. El Badrawi Decl. ¶ 20; Ex. 9 at 3. Mr. El Badrawi remained in ICE custody for the remainder of his time in the United States. Compl. ¶ 61; El Badrawi Decl. ¶¶ 29, 35.
C. Detention Conditions The same day as his arrest, Mr. El Badrawi was transported to the Hartford Correctional Center, where he was photographed, strip-searched, and placed in the general population of
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convicted criminals and criminal pretrial detainees, and subjected to traumatic, punitive, and excessively harsh conditions of confinement. Compl. ¶¶ 62, 64-65; El Badrawi Decl. ¶¶ 21-22. While detained at the Hartford Correctional Center, Mr. El Badrawi was denied both medication necessary to treat his Crohn’s disease and the right to practice his Islamic faith. Prison officials repeatedly rejected his request for a meal schedule allowing him to fast from dawn to sunset during the holy Muslim month of Ramadan. Compl. ¶¶ 66-67, 70-72, 77-81; El Badrawi Decl. ¶¶ 22, 25.4
D. Immigration Hearings Instead of recognizing Mr. El Badrawi’s legal status, Defendants Manack and Loser proceeded to prosecute removal proceedings, and to detain him without bond pending completion of those proceedings. On November 3, 2004, Mr. El Badrawi appeared before Immigration Judge Michael W. Straus in Hartford, Connecticut. At this hearing, Judge Straus pursued a line of questioning suggesting that Mr. El Badrawi was under suspicion for national security-related concerns. Compl. ¶¶ 95-96; El Badrawi Decl. ¶ 23. Counsel for ICE made two false allegations regarding Mr. El Badrawi’s immigration status. First, she wrongly claimed that because Mr. El Badrawi had remained in the United States after the October 2003 revocation of his visa, his application for an extension of stay was void. Compl. ¶ 97; Defs. Ex. C at 7-8. In light of the plain terms of the visa revocation, which made the revocation effective only upon Mr. El Badrawi’s departure, Defendants’ counsel now concedes that this justification for Mr. El Badrawi’s removal was incorrect. Defs. Br. at 4, 25 n.5. Second, ICE counsel wrongly alleged that, despite his timely pending extension of stay application, Mr. El Badrawi was out of status because he had remained in
4 Plaintiff does not oppose Defendants’ motion to dismiss solely with regard to the allegation that Defendant Loser caused him to be denied his medication for the first week of his incarceration. Evidence put forward by the Defendants has demonstrated that Defendant Loser was not personally responsible for this Fifth Amendment violation. However, Plaintiff maintains that he did not receive medication for the first week of his incarceration and that Defendant Lee should be held liable for his unnecessary and substantial suffering.
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the United States past May 1, 2004. Compl. ¶ 100; Defs. Ex. C at 10-11. Mr. El Badrawi was represented at this hearing by counsel. El Badrawi Decl. ¶ 24; Defs. Ex. C at 4-11.
On November 10, 2004, Mr. El Badrawi again appeared before Judge Straus with counsel. Eager finally to be free from his wrongful detention and the traumatic and punitive conditions of confinement and fearful because he had been falsely linked with national security concerns, Mr. El Badrawi was coerced into accepting voluntary departure, a form of immigration relief allowing a person to voluntarily leave the United States within a certain number of days. Compl. ¶¶ 106-107; El Badrawi Decl. ¶ 25. Mr. El Badrawi’s acceptance of voluntary departure terminated the removal proceedings, effectively acquitting him of any insinuation of wrongdoing. Compl. ¶ 108; El Badrawi Decl. ¶ 26. Judge Straus ordered that Mr. El Badrawi be granted voluntary departure and depart the country under DHS/ICE safeguards. Compl. ¶¶ 109-10; Defs. Ex. G; Defs. Ex. H. The DHS prosecutor verbally informed Mr. El Badrawi that he would leave the United States within six days. Compl. ¶ 111; El Badrawi Decl. ¶ 27. Mr. El Badrawi was never provided with a bond hearing, and, therefore, Judge Straus never denied him bond. El Badrawi Decl. ¶ 28.
E. Mr. El Badrawi’s Detention After Accepting Voluntary Departure Instead of being released within six days, Mr. El Badrawi was imprisoned at Hartford Correctional Center for forty-two additional days. Compl. ¶ 117; El Badrawi Decl. ¶ 29. During this time, he repeatedly sought to learn why ICE continued to detain him. Compl. ¶ 118; El Badrawi Decl. ¶ 31. His passport and other necessary documents were in order, and he made several requests to ICE officials, through his attorney, to help expedite his removal. Compl. ¶ 119; El Badrawi Decl. ¶ 31. For example, Mr. El Badrawi offered to pay for a plane ticket on the earliest available flight to either country in which he has citizenship. Compl. ¶ 120; El Badrawi Decl. ¶ 31. Despite these requests, ICE officials provided no justification for Mr. El Badrawi’s needlessly prolonged detention. Compl. ¶ 121; El Badrawi Decl. ¶ 32.
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Although they had no legitimate immigration purpose to keep Mr. El Badrawi detained, Defendants Manack and Loser continued their Operation Frontline II investigation of Mr. El Badrawi even after he had accepted voluntary departure. See Ex. 10 at 2 (ICE investigation report on November 18, 2004, stating that Mr. El Badrawi’s “investigation continues.”). On December 22, 2004—presumably once Manack and Loser’s investigation had concluded—ICE agents at long last removed Mr. El Badrawi from Hartford Correctional Center, brought him to John F. Kennedy International Airport, and he left the country. Compl. ¶ 123; El Badrawi Decl. ¶ 30. Mr. El Badrawi had been detained for nearly two months without bond or release. Compl. ¶ 124; El Badrawi Decl. ¶ 36.
F. Severe Harm Suffered by Mr. El Badrawi Defendants Manack and Loser’s wrongful arrest and prolonged detention of Mr. El Badrawi has caused him to suffer severe and lasting emotional and mental distress, including but not limited to fear, depression, loss of reputation, and personal humiliation. Compl. ¶¶ 130, 134; El Badrawi Decl. ¶ 33. Mr. El Badrawi also lost his job with the University of Connecticut Health Center. Compl. ¶ 137; El Badrawi Decl. ¶ 34. He continues to face adverse consequences—including the prospect of future arrest as well as the denial of employment opportunities and banking services— because the U.S. government maintains and disseminates information and records about his unlawful arrest and detention as well as inaccurate investigatory records. Compl. ¶¶ 138-40; El Badrawi Decl. ¶ 35.
ARGUMENT
I. THIS COURT HAS SUBJECT MATTER JURISDICTION OVER PLAINTIFF’S CLAIMS CHALLENGING THE CONSTITUTIONALITY OF HIS ARREST AND DETENTION BECAUSE THESE CLAIMS ARE NOT SUBJECT TO THE INA’S EXCLUSIVE REVIEW SCHEME.
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Defendants Gregory Manack and Michael Loser contend that various provisions of the Immigration and Nationality Act (“INA”) bar this Court’s jurisdiction over Plaintiff’s claims that his arrest and detention were unconstitutional. Defendants argue (1) that the exclusive avenue for judicial review of any removal order is a petition for review of such removal order filed in the court of appeals, and (2) that in any event the INA and the doctrine of Heck v. Humphrey bar review of many of Plaintiff’s claims. Defs. Br. at 9. In light of “the strong presumption in favor of judicial review of administrative action,” INS v. St. Cyr, 533 U.S. 289, 298 (2001), as well as “‘the longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien,’” id. at 320 (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987)), these arguments are erroneous.
Defendants’ first argument fails because the exclusive avenue for review to which Defendants point refers to judicial review of a final agency action and not to an independent damages action. Plaintiff El Badrawi does not seek to reverse or undo his underlying order of voluntary departure; nor does he seek relief from that order in the form of vacatur or a new removal proceeding. In this action, Mr. El Badrawi seeks damages and injunctive relief for harm stemming from his arrest and detention, unconstitutional treatment that could not have been redressed on a petition for review. Thus, the “alternative” to which Defendants would relegate Plaintiff is no alternative at all. Since the grievances claimed here could not have been redressed in a petition for review, they are not subject to the INA’s exclusive review scheme.
Defendants’ second argument mistakenly relies on INA provisions that bar judicial review of various exercises of discretion. Plaintiff El Badrawi does not seek review of any lawful exercise of discretion; rather he challenges actions undertaken wholly beyond Defendants’ discretionary authority. Defendants do not have any discretion to violate the Constitution, and therefore these provisions do not preclude review of Plaintiff’s constitutional claims. To read them otherwise would violate the principle that jurisdictional statutes should not be construed to preclude review of
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constitutional claims absent the most explicit of directives from Congress. See, e.g., Demore v. Kim, 538 U.S. 510, 517 (2003); St. Cyr, 533 U.S. at 299; Johnson v. Robison, 415 U.S. 361, 373-74 (1974).
A. 8 U.S.C. § 1252(b)(9) Does Not Bar Jurisdiction Over Plaintiff’s Challenges to His Unconstitutional Arrest and Detention Because These Challenges Could Not Have Been Pursued in a Petition for Review. Defendants maintain that Plaintiff El Badrawi should have pursued his challenges to his unconstitutional arrest and detention by filing a petition for review of his grant of voluntary departure in the court of appeals and that under 8 U.S.C. § 1252(b)(9),5 if an issue is reviewable in a court of appeals on a petition for review, such a petition is the exclusive means of review. Defs. Br. at 11-13. The flaw in this argument is that the issues raised by Plaintiff’s claims were not reviewable in the court of appeals on a petition for review, and the relief sought here—damages—was not available in those INA review proceedings. Plaintiff’s complaint is not that he was granted voluntary departure but that the Defendants arrested him without probable cause and continued to detain him without any legitimate immigration purpose. Plaintiff further alleges that the basis of his unconstitutional arrest and detention was not solely to remove him from the United States but to investigate him for national security concerns pursuant to a secret ICE program called Operation Frontline. See Ex. 9 at 2; Ex. 11; see also Compl. ¶¶ 117-22. In fact, the reason why Plaintiff accepted voluntary departure was because, once detained, he (correctly) believed he was arrested, not pursuant to any immigration violation, but to investigate him regarding national security concerns. Plaintiff was under the belief that he could have been detained indefinitely and his unconstitutional conditions of confinement would continue. Therefore, he understandably agreed to leave the United States at the earliest possible moment. Compl. ¶ 107; El Badrawi Decl. ¶¶ 25-26.
5 8 U.S.C. § 1252(b)(9) provides: “Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this title shall be available only in judicial review of a final order under this section.”
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Thus, his claims arise from his unconstitutional arrest, detention, and treatment while detained. Since Plaintiff did not challenge his grant of voluntary departure, he could not have filed a petition for review. Therefore, the constitutional challenges presented here could not have been reviewed on a petition for review. See, e.g., Turkmen v. Ashcroft, No. 02-CV-2307, 2006 U.S. Dist. LEXIS 39170, at *81 (E.D.N.Y. June 14, 2006), appeal docketed, No. 06-3745-cv (2d Cir. Aug. 10, 2006) (Fourth and Fifth Amendment Bivens claims relating to immigration detainees’ detentions not precluded under § 1252(b)(9)); Arar v. Ashcroft, 414 F. Supp. 2d 250, 268-70 (E.D.N.Y. 2006) (Fifth Amendment Bivens claim relating to Arar’s detention not precluded under § 1252(b)(9)); Medina v. United States, 92 F. Supp. 2d 545, 553 (E.D. Va. 2000) (Fourth Amendment Bivens claim relating to arrest by INS agent not precluded under § 1252).
Moreover, a court of appeals could not have provided redress for Plaintiff’s injuries. Injunctive relief, even if it were available, would have come too late in the day, and the petition for review process provides no occasion whatsoever for obtaining damages from individual officers. Because 8 U.S.C. § 1252(b)(9) only applies to “review of orders of removal,” no court has found it to apply to damages cases that do not seek to directly challenge a removal order. Accordingly, because the issues raised by Plaintiff’s claims were not reviewable in the court of appeals on a petition for review, jurisdiction is proper here under 28 U.S.C. § 1331. This result is supported by St. Cyr, 533 U.S. at 313, which held that § 1252(b)(9) “does not bar habeas jurisdiction over removal orders not subject to judicial review under § 1252(a)(1).” In upholding habeas jurisdiction to hear the challenge of a “criminal alien” to his removal, the Court reasoned that the “purpose [of § 1252(b)(9)] is to consolidate ‘judicial review’ of immigration proceedings into one action in the court of appeals, but that it applies only ‘with respect to review of an order of removal under subsection (a)(1).’” Id. As a “criminal alien,” St. Cyr could not obtain review of his removal order in a petition for review under § 1252(a)(1), and therefore the Court held that § 1252(b)(9) did not apply. Id. Here, too, Plaintiff El Badrawi could not have obtained review of his arrest and detention claims on a petition for review,
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and therefore § 1252(b)(9) is equally inapplicable. See also Calcano-Martinez v. INS, 232 F.3d 328, 336 (2d Cir. 2000), aff’d, 533 U.S. 348 (2001).
Not surprisingly, the government cites nothing in the text or legislative history of the INA indicating that Congress sought to preclude Bivens actions to remedy unconstitutional practices in connection with immigration-related arrests and detentions, nor is Plaintiff aware of any such evidence. In fact, 8 U.S.C. § 1252, from which this provision as well as § 1252(a)(2)(B)(ii) and § 1252(g) are drawn, is entitled “Judicial review of orders of removal.” To the extent any ambiguity exists, § 1252 in its entirety should be construed only to limit review of removal orders, not actions for damages and specifically not challenges to arrest or detention. See INS v. Nat’l Ctr. for Immigrants’ Rights, 502 U.S. 183, 189 (1991) (“[T]he title of a statute or section can aid in resolving an ambiguity in the legislation’s text.”)
For the same reasons, the INA’s “exhaustion” requirement, 8 U.S.C. § 1252(d)(1), is inapplicable here. Cf. Defs. Br. at 12. That provision requires foreign nationals to exhaust administrative remedies before filing a petition for review of a final removal order. But because Plaintiff El Badrawi does not challenge his grant of voluntary departure—but instead challenges actions collateral to removal that could not have been addressed through a petition for review—that requirement does not apply. Moreover, the administrative remedies to which Defendants point could not have provided effective relief. Plaintiff suffered constitutionally cognizable injuries from the moment he was arrested and detained, for which the administrative process could not provide damages or any other retrospective relief.
In McCarthy v. Madigan, the Supreme Court excused exhaustion under analogous circumstances, where a convicted prisoner sought damages under Bivens that were unavailable through the administrative process. 503 U.S. 140, 149-52 (1992). Exhaustion is also excused when Defendants interfere with the availability of administrative remedies. See J.G. v. Bd. of Educ., 830 F.2d 444, 447 (2d Cir. 1987); see also Johnpoll v. Thornburgh, 898 F.2d 849, 850-51 (2d Cir. 1990)
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(exhaustion not required if administrative remedies are not reasonably available); Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001) (“A remedy that prison officials prevent a prisoner from utiliz[ing] is not an available remedy . . . .”). Here Plaintiff chose not to appeal ICE’s denial of bond in reliance on false statements by federal officials that he would be allowed to voluntarily depart within days. See Compl. ¶ 111; El Badrawi Decl. ¶¶ 27, 29.
B. No Other INA Provision Precludes Review of Plaintiff’s Constitutional Challenges to Defendants’ Actions. Defendants also argue that certain of their actions are immune from all judicial review whatsoever—namely, the decision to “commence proceedings, adjudicate cases, or execute removal orders,” Def. Br. at 13 (citing 8 U.S.C. § 1252(g)), and all “discretionary decisions” in the removal process. Id. at 14 (citing 8 U.S.C. § 1252(a)(2)(B)(ii)). These arguments share a common flaw—if accepted, they would bar judicial review of unconstitutional government action. As the Supreme Court has repeatedly stated, because preclusion of judicial review of unconstitutional actions would itself raise serious constitutional concerns, statutes should not be construed to have that effect unless Congress has unequivocally and expressly barred review of constitutional claims. “‘[W]here Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear.’” Demore v. Kim, 538 U.S. 510, 517 (2003) (quoting Webster v. Doe, 486 U.S. 592, 603 (1988)). None of the provisions that Defendants cite even mention constitutional claims, much less expressly preclude judicial review thereof. In fact, none apply here.
1. 8 U.S.C. § 1252(g) Does Not Bar Jurisdiction over Plaintiff’s Constitutional Challenges to Defendants’ Actions. 8 U.S.C. § 1252(g) merely underscores the exclusive nature of the petition for review process, by providing that—except as otherwise provided in § 1252—decisions to “commence proceedings, adjudicate cases, or execute removal orders” are not reviewable. Defendants claim that this provision bars review of Plaintiff’s unconstitutional arrest and detention. But the Supreme Court
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has rejected any broad reading of § 1252(g) and has interpreted it narrowly to apply “only to three discrete actions that the Attorney General may take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders’”—all essentially “challenges to the Attorney General’s exercise of prosecutorial discretion.” Reno v. American-Arab AntiDiscrimination Comm., 525 U.S. 471, 482, 485 n.9 (1999) (quoting § 1252(g)); see also id. at 482 (“It is implausible that the mention of three discrete events along the road to deportation was a shorthand way of referring to all claims arising from deportation proceedings.”).
8 U.S.C. § 1252(g) does not apply to Plaintiff’s claims for three reasons. First, as mentioned above, see Section I.B supra, in order to avoid raising serious constitutional concerns, § 1252(g) must be interpreted to foreclose review only of issues arising from discretionary prosecutorial decisions to commence proceedings—that is, only those decisions that Congress has committed to the discretion of the Attorney General. Because Defendants were acting beyond their discretion by violating the Constitution when arresting and detaining Mr. El Badrawi, § 1252(g) would not bar Plaintiff’s claims. See also Subsection I.B.2, infra.
Second, § 1252(g) does not preclude monetary damages claims when immigration proceedings have already ended. See, e.g., Medina v. United States, 92 F. Supp. 2d 545, 553 (E.D. Va. 2000), vacated on other grounds, 259 F.3d 220 (4th Cir. 2001) (finding that 8 U.S.C. § 1252(g) does not bar a “claim for monetary damages for intentional torts and violations of constitutional rights . . . where the immigration proceedings have terminated”). As the court correctly noted, Mr. Medina did not challenge his removal, nor did he wage a collateral attack; rather he demanded compensation for the violation of his rights. Id. at 552. The court continues: “If the Court were to adopt the United States’ broad reading of § 1252, there would be no judicial review of a claim by an alien that stems from an arrest on an INS detention order even where there is blatantly lawless and unconstitutional conduct by the INS agents—placing their conduct beyond judicial review and creating grave constitutional issues.” Id. at 553. Similarly, § 1252(g) does not bar Plaintiff’s Bivens
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claims against ICE agents Manack and Loser for monetary damages because, like Mr. Medina, his immigration proceedings have already terminated.
Third, if this Court holds that § 1252(g) bars certain monetary damages claims when immigration proceedings have already ended, Plaintiff El Badrawi’s claims are still not precluded under that section. Plaintiff does not challenge the decisions by ICE to “commence proceedings, adjudicate cases, or execute removal orders,” but rather challenges his unconstitutional arrest and detention. The denial of Plaintiff’s Fourth and Fifth Amendment rights are the result of Defendants Manack and Loser’s unconstitutional actions, not the commencement of removal proceedings. In fact, because Plaintiff was at all times legally present in the United States, Defendants Manack and Loser did not have jurisdiction to commence removal proceedings against Plaintiff. Plaintiff’s claims arise from “the discriminatory animus that motivated and underlay the actions” of Defendants Manack and Loser “which resulted in [ICE’s] decision to commence removal proceedings and ultimately to remove” Plaintiff El Badrawi from the United States. See Kwai Fun Wong v. United States, 373 F.3d 952, 964 (9th Cir. 2004). Cf. Sissoko v. Rocha, No. 02-56751, 2007 U.S. App. LEXIS 26488, at *7 (9th Cir. Nov. 15, 2007) (finding that § 1252(g) bars a Bivens action for false arrest in the “limited context” where the “claim directly challenges . . . decision to commence . . . removal proceedings, and an alternative habeas remedy directly addressing the claimed injury was available through 8 U.S.C. § 1252(e)(2)”).6
6 Sissoko is clearly distinguishable from Mr. Badrawi’s claims. In Sissoko, the plaintiff had filed a habeas challenge to his arrest and detention, which had already been dismissed, but had failed to raise his constitutional concerns there. Id. at *6-*7 & n.2; see also Sissoko v. Rocha, 440 F.3d 1145, 1149-53 (9th Cir. 2006) (laying out procedural history), withdrawn and replaced by 2007 U.S. App. LEXIS 26488 (9th Cir. Nov. 15, 2007). In contrast, Mr. El Badrawi did not have the opportunity to raise his constitutional claim in any other proceeding. More importantly, the logic of Sissoko is clearly erroneous. As described above, while a non-citizen may challenge his or her detention upon a petition for habeas, there is no remedy available there to challenge an unconstitutional arrest. See Medina, 92 F. Supp. 2d at 553. It should also be noted that Sissoko is subject to a pending petition for rehearing in the Ninth Circuit. See Petition for Rehearing, Sissoko v. Rocha, 2007 U.S. App. LEXIS 26488 (9th Cir. Nov. 15, 2007) (No. 02-56751, 03-55667) (pet. for reh’g filed Nov. 29. 2007).
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Contrary to Defendants’ assertion, Plaintiff alleges that he was not “arrested solely because ICE decided to commence removal proceedings against him for remaining in the country illegally.” Defs. Br. at 14. In fact, Plaintiff was arrested without probable cause by overzealous ICE agents pursuant to a secret ICE program called Operation Frontline to investigate him for national security concerns. Compl. ¶ 2; Ex. 9 at 2; Ex. 11. ICE officials subsequently coerced Plaintiff into accepting voluntary departure even though they knew, or reasonably should have known, there was no reason to believe Plaintiff had violated any immigration law. See Compl. ¶¶ 97-107; El Badrawi Decl. ¶¶ 15, 25-26. Plaintiff El Badrawi’s arrest and detention claims are clearly beyond the scope of § 1252(g), and instead pertain to the “many other decisions or actions that may be part of the deportation process” acknowledged by the Supreme Court in AADC, 525 U.S. at 482.7 To allow Defendants to cloak themselves with the provisions of § 1252(g) and the Supreme Court’s ruling in AADC on the basis of their unconstitutional actions, i.e., arresting and detaining Plaintiff without probable cause, is inconsistent with the narrow statutory interpretation of section 1252(g) mandated by AADC and the undisputed facts of this case.
2. 8 U.S.C. §§ 1252(a)(2)(B)(ii) and 1226(e) Do Not Bar Jurisdiction over Plaintiff’s Constitutional Challenges to Defendants’ Actions. Defendants are similarly mistaken in contending that two other provisions of the INA, 8 U.S.C. §§ 1226(e) and 1252(a)(2)(B)(ii), bar judicial review of Plaintiff’s claims. These provisions, which limit judicial review of certain exercises of discretion in the context of removal proceedings, are inapplicable for two reasons. First, Plaintiff does not contest how discretionary authority was
7 It is unclear whether Defendants argue that Plaintiff’s 5th Amendment due process claims regarding his wrongful detention are also barred by 8 U.S.C. § 1252(g). If so, Defendants’ argument has no merit. Courts have repeatedly held that § 1252(g) does not bar constitutional claims challenging wrongful detention. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 687-88 (2001) (holding that no statutory provision, including § 1252(g), bars 5th Amendment challenges to the lengthy detention of non-citizens); Turkmen v. Ashcroft, No. 02-CV-2307, 2006 U.S. Dist. LEXIS 39170, at *83 (E.D.N.Y. June 14, 2006) (“[D]etaining an alien in between the discrete actions specified in § 1252(g) . . . is beyond the scope of § 1252(g) . . . .”); Arar v. Ashcroft, 414 F. Supp. 2d 250, 270-71 (E.D.N.Y. 2006) (holding that Mr. Arar’s due process claims were not precluded under § 1252(g) because he could not have resolved—and could not have received compensation—for his claims in the INA process).
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exercised but instead claims that Defendants were acting beyond their discretion, ultra vires, by violating the Constitution. As the Attorney General has no discretion to violate the Constitution, these provisions by their terms do not bar jurisdiction over Plaintiff’s claims, all of which present constitutional challenges. See Kwai Fun Wong, 373 F.3d at 963; U.S. Fid. & Guar. Co. v. United States, 837 F.2d 116, 120 (3d Cir. 1988); see also Berkovitz v. United States, 486 U.S. 531, 536 (1988); Red Lake Band of Chippewa Indians v. United States, 800 F.2d 1187, 1196 (D.C. Cir. 1986).
The Supreme Court reached precisely this result in finding that § 1226(e) poses no jurisdictional bar to a constitutional challenge to the detention of “criminal aliens.” Demore, 538 U.S. at 517; see also id. at 516-17 (“Respondent does not challenge a ‘discretionary judgment’ by the Attorney General or a ‘decision’ that the Attorney General has made regarding his detention or release.”). Similarly, in Webster, the Court held that although Congress had precluded judicial review of CIA employment decisions by committing them to “agency discretion,” this preclusion did not bar judicial review of constitutional claims. 486 U.S. at 603. The same reasoning applies here. As in Zadvydas v. Davis, Plaintiff El Badrawi does “not seek review of the Attorney General’s exercise of discretion; rather, [he] challenge[s] the extent of the Attorney General’s authority. . . . And the extent of that authority is not a matter of discretion.” 533 U.S. at 688.8
Second, these provisions apply only to claims arising from removal proceedings, and therefore do not apply to Plaintiff’s challenge to his unconstitutional arrest and detention. See Talwar v. INS, 2001 WL 767018, at *3-*5 (S.D.N.Y. July 9, 2001) (holding jurisdiction is not barred
8 See also Chimbo v. Sec’y of the Dep’t of Homeland Sec., No. 3:04cv1671, 2004 U.S. Dist. LEXIS 23847, at *24 (D. Conn. Nov. 18, 2004) (upholding jurisdiction because petitioner was “not challenging a discretionary denial of bail, but rather the constitutionality of the statutory framework that permits detention without bail”) (citation omitted); Bezmen v. Ashcroft, 245 F. Supp. 2d 446, 448 (D. Conn. 2003) (exercising jurisdiction because petitioner does “not seek review of the Attorney General’s exercise of discretion; rather, challenges the extent of the Attorney General’s authority [under the stay provision]. And the extent of the authority is not a matter of discretion.”) (citation omitted); Oliva v. INS, No. 98 Civ. 6526, 1999 U.S. Dist. LEXIS 1269, at *6-8 (S.D.N.Y. Feb. 10, 1999) (holding 8 U.S.C. § 1226(e) could not be relied on to bar jurisdiction where continued custody of the petitioner was alleged to be in violation of the Constitution or laws of the United States); Abdul v. McElroy, No. 98 Civ. 2460, 1999 U.S. Dist. LEXIS 1103 at *4-*6 (S.D.N.Y. Feb. 4, 1999) (same).
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since 1252(a)(2)(B) is limited to the context of removal proceedings); Ncube v. INS Dist. Dirs., 1998 WL 842349, at *7 (S.D.N.Y. Dec. 2, 1998) (holding jurisdiction-stripping provisions of 8 U.S.C. § 1226 “simply [] not applicable” where petitioner is subject to a final removal order and awaiting removal).
C. The Doctrine of Heck v. Humphrey Does Not Preclude Review of Plaintiff’s Constitutional Challenges to Defendants’ Actions. Defendants finally claim that the doctrine of Heck v. Humphrey, 512 U.S. 477 (1994), bars judicial review of Plaintiff’s claims. Defs. Br. at 15-16. Under this doctrine, no cause of action exists under 42 U.S.C. § 1983 that, if proven, would “necessarily imply” the invalidity of an underlying conviction or sentence, unless that conviction or sentence is first invalidated either on appeal or through habeas. Heck, 512 U.S. at 486-87. However, this doctrine does not apply to Plaintiff El Badrawi’s Bivens claims because the Second Circuit has clearly held that Heck does not preclude review when the plaintiff currently does not have a habeas corpus remedy nor could have sought damages in his prior judicial proceeding. See Leather v. Eyck, 180 F.3d 420 (2d Cir. 1999). In Leather, the Second Circuit held that where a convicted criminal defendant was not or was no longer confined, and thus did not have a habeas corpus remedy, and also could not have sought damages for alleged constitutional injuries in the prior (criminal) proceeding, a § 1983 suit for damages was not barred—even where defendant had not previously had his conviction invalidated or called into question on direct appeal or by writ of habeas corpus. Id. at 423-24. To require a plaintiff to first pursue such relief, Leather explains, would be equivalent to reading an exhaustion requirement into § 1983—a position which the Supreme Court expressly rejected in Patsy v. Board of Regents, 457 U.S. 496 (1982). Id at 424. Likewise, because Plaintiff El Badrawi lacks the option to pursue habeas relief (as he is currently not in ICE custody), and damages would not have been available had he sought review of a
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removal order pursuant to 8 U.S.C. § 1252, Heck clearly does not bar his Bivens claims.9 See also Huang v. Johnson, 251 F.3d 65, 75 (2d Cir. 2001) (Heck does not bar a § 1983 claim by a convict out-of-custody seeking to establish the unconstitutionality of a conviction or confinement that had not previously been overturned); Jenkins v. Haubert, 179 F.3d 19, 24-26 (2d Cir. 1999) (noting that majority of Supreme Court would likely hold that § 1983 action challenging fact or duration of confinement may be viable, even if jurisdictional predicate articulated in Heck was not satisfied, where federal habeas corpus is no longer available because plaintiff no longer in custody); Dallas v. Goldberg, 143 F. Supp. 2d 312, 323 (S.D.N.Y. 2001) (elaborating Jenkins rationale). II. CONGRESS HAS NOT EXPRESSLY PRECLUDED A BIVENS CAUSE OF ACTION
FOR DAMAGES, NOR DO ANY “SPECIAL FACTORS” BAR SUCH A CAUSE OF ACTION.
Defendants argue that even if none of the jurisdiction-limiting provisions of the INA or the doctrine of Heck v. Humphrey bars a Bivens action, Plaintiff cannot bring such an action because “special factors” counsel against it. Defs. Br. at 17-22. This argument fails because Congress did not provided an alternative remedial scheme, nor is there any evidence that Congress sought to preclude damages actions against government officials who systematically violate the constitutional rights of foreign nationals by arresting and detaining them without probable cause or legitimate immigration purpose. Nor do the reasons offered by the government explain why ICE agents, alone among federal, state, and local law enforcement officers, should receive immunity from ordinary liability for constitutional violations they commit. A Bivens action is available for constitutional violations unless “defendants show that Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective,” or there are “special factors counseling hesitation in the absence of affirmative
9 The cases cited by Defendants are clearly distinguishable from Mr. El Badrawi’s claims. In both, Calix-Chavarria v. Gonzalez, Civil No. 1:CV-06-0820, 2006 U.S. Dist. LEXIS 41934 (M.D. Pa. June 22, 2006), and Kulakov v. INS, No. 06-CV-0754, 2007 U.S. Dist. LEXIS 33669 (W.D.N.Y. May 7, 2007), plaintiffs were currently in ICE custody when filing their Bivens claims and had the option to pursue habeas relief.
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action by Congress.” Carlson v. Green, 446 U.S. 14, 18-19 (1980). Defendants have made neither showing here.
Routine judicial assessment of the constitutionality of particular immigration enforcement actions would not unduly interfere with federal immigration policy. Adjudication of constitutional claims relating to pending criminal investigations creates some interference in the analogous field of criminal law enforcement, but nevertheless such claims are allowed to proceed. Regan v. Sullivan, 557 F.2d 300, 303 (2d Cir. 1977). Moreover, nothing in the text, history, or purpose of 8 U.S.C. § 1252 or any other immigration statute addresses damages actions or seeks to bar them. See St. Cyr, 533 U.S. at 313 (“Its purpose is to consolidate ‘judicial review’ of immigration proceedings into one action in the court of appeals, but it applies only ‘[w]ith respect to review of an order of removal under subsection (a)(1).’”) (quoting 8 U.S.C. § 1252(b)). Given the application of qualified immunity to law enforcement officers and the lack of a Congressional aim to eliminate liability for constitutional torts, assessment of constitutional claims would neither reshape policy nor deter zealous enforcement. It would solely ensure that the rights of all persons are respected throughout the immigration process.
A. The INA’s Regulatory Scheme Does Not Preclude a Bivens Remedy. Defendants first maintain that because the INA creates a “comprehensive remedial scheme,” it should be read to implicitly preclude a Bivens remedy for the constitutional violations alleged here. Defs. Br. at 18. However, Defendants have cited no cases to support their contention that the INA’s comprehensive regulatory scheme bars a Bivens remedy. On the contrary, courts have repeatedly held that the INA’s regulatory scheme is not a special factor precluding Bivens claims for constitutional violations by federal immigration officials related to the arrest and detention of foreign nationals. See Turkmen v. Ashcroft, 02 C 2307, 2006 U.S. Dist. LEXIS 39170, at *29 (E.D.N.Y. June 14, 2006) (“Although . . . the INA provides a comprehensive regulatory scheme for managing
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the flow of immigrants in and out of the country, it is by no means a comprehensive remedial scheme for constitutional violations that occur incident to the administration of that regulatory scheme.”); Khorrami v. Rolince, 493 F. Supp. 2d 1061, 1074 (D. Ill. 2007) (“While [the INA] is comprehensive in terms of regulating the in-flow and outflow of aliens, it is not comprehensive in terms of providing a remedy for [constitutional violations].”); Arar, 414 F. Supp. 2d at 280-81 (holding that the INA’s thorough coverage of the admission, exclusion and removal of aliens “does not automatically lead to an adequate and meaningful remedy” for alleged constitutional violations); see also id. at 280 (“[T]o argue that the INA precludes federal jurisdiction and, at the same time, affords [Plaintiff] a ‘comprehensive scheme’ for review has a certain dissonance, even under the most liberal construction of alternative pleading.”).
Bivens has only been found to be precluded where Congress has created a satisfactory alternative remedy for the violations alleged. Thus in Schweiker v. Chilicky, 487 U.S. 412 (1988), Bivens relief was denied to Social Security Disability recipients who claimed Fifth Amendment due process violations, due to the existence of “elaborate administrative remedies.” Id. at 424. The Court explained, “[w]hen the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional Bivens remedies.” Id. at 423 (emphasis added). Likewise, in Bush v. Lucas, 462 U.S. 367 (1983), Bivens relief was denied to a federal employee claiming violation of his First Amendment rights, because of “comprehensive . . . provisions giving meaningful remedies . . .” Id. at 368 (emphasis added).10 On the contrary, the INA
10 The cases cited by Defendants do not suggest a different rule. Sugrue v. Derwinski denied Bivens relief because the administrative scheme at issue “provides meaningful remedies in a multitiered and carefully crafted administrative process.” 26 F.3d 8, 12 (2d Cir. 1994). Similarly, Spagnola v. Mathis barred application of Bivens when the governing statutory regime provided “claimants in their respective positions substantially the same relief.” 859 F.2d 223, 225 (D.C. Cir. 1988) (en banc); see also Dotson v. Griesa, 398 F.3d 156, 166-67 (2d Cir. 2005) (reviewing the same statutory regime), cert. denied, 126 S. Ct. 2859 (2006). Finally, in Hudson Valley Black Press v. IRS, the court declined to allow a Bivens suit only after noting the availability of a cause of action for damages relating to tax collection that Congress had limited to exclude claims such as those brought by the plaintiff. 409 F.3d 106, 111-12 (2d Cir. 2005). No tailored cause of action for damages can be found in the INA.
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cannot be a meaningful and adequate comprehensive remedial regime because the procedures Defendants cite—procedures governing bond, habeas, etc.—do not afford non-citizens a means to redress the constitutional violations alleged by Mr. El Badrawi regarding his arrest and detention. Moreover, none of the INA procedures would be considered adequate remedies for a non-citizen, like Mr. El Badrawi, who is no longer in detention, and he would be completely barred from challenging Defendants’ unconstitutional actions. Finally, the statutes in Schweiker and Bush both provided a compensatory scheme. Here, by contrast, as illustrated in Part I above, the INA provides no compensatory remedies whatsoever for the violations Plaintiff alleges, much less the sort of meaningful relief that could substitute for a Bivens action.11
B. Bivens Suits Are Available to Challenge Unconstitutional Conduct in Fields Over Which Congress Has Plenary Power.
No court has held that Bivens suits are uniformly unavailable in fields over which Congress has plenary power. In fact, courts have found Bivens available in many such areas. For example, in Goldstein v. Moatz, 364 F.3d 205 (4th Cir. 2004), the Fourth Circuit found that Patent and Trademark Office officials were not absolutely immune to Bivens suits, despite Congress’s long-established plenary power over patents.12 Despite Congress’s failure to establish a damages remedy for constitutional violations, the Court allowed the claim after acknowledging that Bivens claims lie entirely outside of the law established by Congress to govern the field. 364 F.3d at 210 n.8. See also, e.g., Wilkinson v. United States, 440 F.3d 970 (8th Cir. 2006) (noting availability of Bivens actions against officials of the Bureau of Indian Affairs); Mace v. Skinner, 34 F.3d 854 (9th Cir. 1994) (allowing claim against officials of the Federal Aviation Administration); Brown v. United
11 Defendants completely mischaracterize Wilkie v. Robbins, 127 S. Ct. 2588 (2007), while attempting to support their argument that the INA’s regulatory scheme precludes a Bivens remedy. See Defs. Br. at 20. In fact, the Supreme Court in Wilkie stated that “It would be hard to infer that Congress expected the Judiciary to stay its Bivens hand.” Wilkie, 127 S. Ct. at 2600. 12 See also McClurg v. Kingsland, 42 U.S. (1 How.) 202, 206 (1843) (“[T]he powers of Congress to legislate upon the subject of patents is plenary by the terms of the Constitution.”).
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States, 742 F.2d 1498 (D.C. Cir. 1984) (en banc) (allowing a Bivens suit against District of Columbia Officials where the incident predated the inclusion of such claims under 42 U.S.C. § 1983).13 Even when the Executive was utilizing both its own and Congress’s delegated authority to protect the country from terrorist threats in the aftermath of the September 11th attacks, special factors did not preclude Bivens claims to protect the constitutional rights of “high interest” detainees. Iqbal v. Hasty, 490 F.3d 143, 159 (2d Cir. 2007); see also id. at 150 (noting that these considerations were expressly rejected as “special factors” by the court below).
Perhaps most importantly, while Congress possesses plenary power over the field of immigration,14 at least one court has entertained a Bivens action against immigration enforcement agents based on unlawful arrest without any assertion that Congress’s plenary power immunized officials’ unconstitutional acts. In Velasquez v. Senko, the court denied qualified immunity to field agents of the INS and Border Patrol, as well as the district director, chief patrol agent, and patrol agents-in-charge. 643 F. Supp. 1172 (N.D. Cal. 1986), appeal dismissed 813 F.2d 1509 (9th Cir. 1987) (Kozinski, J.). Although at that time the Supreme Court had already barred Bivens suits by active members of the armed forces, Chappell v. Wallace, 462 U.S. 296, 298 (1983), no party asserted that “special factors” might immunize unconstitutional activity related to immigration.
Unlike these numerous areas where Bivens is allowed, the unique bar on Bivens claims by active members of the armed forces hinges upon the general absence of the judiciary from military affairs. Chappell v. Wallace 462 U.S. 296, 300 (1983); see also Rostker v. Goldberg, 453 U.S. 57, 64-65 (1981) (“The case arises in the context of Congress’ authority over national defense and military affairs, and perhaps in no other area has the Court accorded Congress greater deference.”);
13 See also United States v. Lopez, 514 U.S. 549, 589 n.3 (1995) (“Congress has plenary power over the District of Columbia and the territories.”); Oregon Waste Sys., Inc. v. Dep’t of Envtl. Quality, 511 U.S. 93, 98 (1994) (“The Framers granted Congress plenary authority over interstate commerce.”); South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343 (1998) (“Congress possesses plenary power over Indian affairs.”). 14 See Harisiades v. Shaughnessy, 342 U.S. 580, 589 (1952).
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Schlesinger v. Councilman, 420 U.S. 738, 746 (1975) (noting the presence of a parallel system of competent courts to protect members of our military). Thus Chappell emphasized “the necessarily unique structure of the military establishment” and “the unique relationship between the government and military personnel.” 462 U.S. at 299, 301 (emphasis added). On the other hand, in its most recent Bivens decision, the Supreme Court did not take the simple route of finding that no Bivens remedy could ever be available from Bureau of Land Management officials, on the basis of Congress’s plenary power to regulate government land. Wilkie v. Robbins, 127 S. Ct. 2588 (2007).15 Rather it engaged in substantial analysis of the feasibility of crafting a remedy in the particular case. Id. at 2601-05.
The Defendants’ contention that immigration matters are “largely immune from judicial inquiry,” Defs. Br. at 21 (quoting Harisiades v. Shaughnessy, 342 U.S. 580, 589 (1952)), is belied by a complete reading of the case they cite. In Harisiades, the Court went on to state that restraints based on deference “do not control today’s decision,” where the challenge rested on constitutional claims, rather than policy considerations. 342 U.S. at 589 (1952). Similarly, Mr. El Badrawi does not contest the wisdom of the federal immigration scheme; he seeks redress for unconstitutional treatment in its application. Moreover, the Article III judiciary is deeply involved in modern immigration matters. See, e.g., Lopez v. Gonzales, 127 S. Ct. 625, 629-30 (2007) (curtailing executive authority to deport non-citizens based on mere drug possession and not distribution); Clark v. Martinez, 543 U.S. 371, 386 (2005) (rejecting executive claims that judicial restriction on indefinite detention of undocumented immigrants would “compromise” “the security of our borders”); St. Cyr, 533 U.S. at 298 (finding a “strong presumption in favor of judicial review of administrative action” in the field of immigration); Zadvydas, 533 U.S. at 687 (finding that—despite elaborate field-specific legislation—“the primary federal habeas corpus statute confers jurisdiction
15 See also Utah Div. of State Lands v. United States, 482 U.S. 193 (1987) (“The Property Clause grants Congress plenary power to regulate and dispose of land.”).
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upon the federal courts to hear these case”) (internal citations omitted); see also 8 U.S.C. § 1252(a)(2)(D) (supporting review of constitutional claims related to removal).
The Courts of Appeals have taken on an increased role in this field, as recent executive branch action “has fallen below the minimum standards of legal justice.” Benslimane v. Gonzales, 430 F.3d 828, 830 (7th Cir. 2005) (Posner, J.); see also Ba v. Gonzales, 228 Fed. Appx. 7, 11 (2d Cir. 2007) (noting that the immigration judge’s demeanor and remarks “erode the appearance of fairness and call into question the results of the proceeding” and recommending that the BIA “closely reexamine[] all of his cases that are still pending on appeal”) (quoting Islam v. Gonzales, 469 F.3d 53, 56 (2d Cir. 2006)); Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 115 (2d Cir. 2005) (holding that an immigration judge’s findings were “grounded solely on speculation and conjecture”). Shocking actions during recent immigration raids have shown that the need for judicial review of enforcement actions may exceed even the BIA review duties that have been so grievously burdening the Courts of Appeals.16
The central question posed in Mr. El Badrawi’s complaint—whether his arrest and detention were unjustified, unconstitutional, unlawful, and without probable cause—requires only the application of law to his unconstitutional maltreatment in the United States by federal and state officials. Such assessments are routinely conducted by courts. To do so here would not hamper federal policy; to fail to do so would grant federal immigration enforcement officers free rein to violate U.S. residents’ constitutional rights.
16 See, e.g., Nina Bernstein, Raids Were a Shambles, Nassau Complains to U.S., N.Y. Times, Oct. 3, 2007 (describing a raid in New York State in which federal immigration agents “wearing cowboy hats and brandishing shotguns and automatic weapons” mistakenly drew their guns on local police, U.S. citizens, and other legal residents); Jennifer Medina, Arrests of 31 in U.S. Sweep Bring Fear to New Haven, N.Y. Times, June 7, 2007 (describing dragnet-style raid in which “immigration officials knocked on their doors and demanded to speak with every adult in the house, then asked for identification” as well as giving preferential treatment to the mothers—but not the fathers—of children); Monica Rhor, Kids Left Behind in Immigration Raids, Assoc. Press, Mar. 11, 2007. (describing the arrest of a woman who was still nursing her baby, the separation of the mother from the baby, and the subsequent hospitalization of the baby for dehydration).
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III. DEFENDANTS MANACK AND LOSER DO NOT HAVE QUALIFIED IMMUNITY FROM SUIT. Defendants correctly note that to overcome qualified immunity, Plaintiff El Badrawi must
show both a violation of his constitutional rights and that the violated rights were “clearly established.” Defs. Br. at 23. Defendants are entitled to qualified immunity only if “their [official] conduct does not violate clearly established . . . constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Under this standard, the Court must apply a two-step analysis. It must first decide, “as a threshold matter,” whether the facts alleged, liberally construed, show a violation of a constitutional right. If so, the Court then decides whether that right was “clearly established” at the time of the violation. Poe v. Leonard, 282 F.3d 123, 132 (2d Cir. 2002). As Defendants acknowledge, these two questions must be addressed “in the proper sequence.” Saucier v. Katz, 533 U.S. 194, 200 (2001); see also Brousseau v. Haugen, 543 U.S. 194, 198 n. 3 (2004).
A constitutional right is clearly established if “its contours [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (internal citation and quotation omitted). Plaintiff need not demonstrate that “the very action in question has previously been held unlawful.” Anderson v. Creighton, 483 U.S. 635, 640 (1987); see also Johnson v. Newburgh Enlarged School Dist., 239 F.3d 246, 251 (2d Cir. 2001) (“[T]he absence of legal precedent addressing an identical factual scenario does not necessarily yield a conclusion that the law is not clearly established.”). Nor need Plaintiff identify legal precedent arising from “materially similar” facts to the case at bar. Hope, 536 U.S. at 739. Plaintiff need only show that prior decisions gave “fair warning” that official conduct depriving someone of that right would be unconstitutional. Id. at 740; see also Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004) (noting that Hope “shifted the qualified immunity analysis from a scavenger hunt for prior cases with precisely the same facts toward the more relevant inquiry of whether the law put
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officials on fair notice that the described conduct was unconstitutional”). Government officials may have such fair warning “even in novel factual circumstances.” Hope, 536 U.S. at 741. Prior decisions may “clearly foreshadow” a ruling that the challenged conduct is unconstitutional, African Trade & Info. Ctr., Inc. v. Abromaitis, 294 F.3d 355, 362 (2d Cir. 2002) (internal citation and quotation omitted), or a previously announced “general constitutional rule” may apply “with obvious clarity to the specific conduct in question.” United States v. Lanier, 520 U.S. 259, 271 (1997).
As demonstrated below, each of Plaintiff El Badrawi’s Bivens claims adequately alleges a violation of his constitutional rights, and these rights were clearly established at the time the violations took place. Moreover, Defendants’ attempt to bring a motion for summary judgment on qualified immunity grounds is clearly premature, as Plaintiff has not had the opportunity to conduct discovery. See Thomas v. Roach, 165 F.3d 137, 143 (2d Cir. 1999) (when deciding the application of qualified immunity, “[d]ismissal . . . is not appropriate where there are facts in dispute that are material to a determination of reasonableness”); see generally Pl. Rule 56(f) Motion.
A. Defendants Manack and Loser Wrongfully Arrested and Detained Plaintiff Without Probable Cause, Reason To Believe An Immigration Violation Had Been Committed, or Valid Justification. As Plaintiff properly alleged in his complaint, “Defendants Manack and Loser knew or reasonably should have known that there was no reason to believe or probable cause that Mr. El Badrawi was illegally in the United States.” Compl. ¶ 60. Defendants have not reasonably refuted that proposition. Instead, they have utilized facts to which Plaintiff has not yet had access in this premature motion for summary judgment. Moreover, a judicial inquiry into whether Manack and Loser had probable cause to arrest and detain Mr. El Badrawi deals with issues of fact not properly resolved on summary judgment at this stage. Because the probable cause inquiry emphasizes context and reasonableness, the existence of probable cause depends upon “factual and practical considerations of everyday life.” Illinois v. Gates, 462 U.S. 213, 231 (1983) (quotation omitted); see
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also Boyd v. City of New York, 336 F.3d 72, 77 (2d Cir. 2003) (“The issue of probable cause cannot be resolved by summary judgment. This is a conclusion that does not issue easily from these extraordinary facts, but we think there is enough here to put before a jury.”); Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997) (“Where the question of whether an arresting officer had probable cause is predominantly factual in nature, as where there is a dispute as to the pertinent events, the existence vel non of probable cause is to be decided by the jury.”).
In the Second Circuit “probable cause to arrest exists when police officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.” Walczyk v. Rio, 496 F.3d 139, 156 (2d Cir. 2007) (internal quotations and citations omitted). Mr. El Badrawi’s unlawful arrest and detention was purportedly based on a violation of 8 U.S.C. § 1227(a)(1)(B). See Compl. ¶ 46; Defs. Ex. B., attachment 2 (warrant); Ex. 12 (I-213 Record of Deportable/Inadmissible Alien). The statute states, “Any alien who is present in the United States in violation of this chapter or any other law of the United States, or whose nonimmigrant visa (or other documentation authorizing admission into the United States as a nonimmigrant) has been revoked under section 1201(i) of this title, is deportable.” Therefore, probable cause for arrest under this provision requires knowledge or a trustworthy basis sufficient for a reasonable officer to believe either that a non-citizen’s visa has been revoked or that the individual is presently violating Title 8 of the United States Code, the sum of federal immigration law. Cf. Westover v. Reno, 202 F.3d 475, 480 n.6 (1st Cir. 2000) (requiring probable cause to believe the factual predicates for removal prior to arrest under 8 U.S.C. § 1227(a)(1)(B)(i)).
The facts set forth in the complaint, as well as in the declarations and exhibits submitted in response to Defendants’ Motion for Summary Judgment, clearly indicate that Defendants Manack and Loser did not have knowledge or trustworthy information sufficient to indicate that Mr. El Badrawi had violated the immigration laws at the time of his arrest. At the very least, there is a
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material dispute of fact as to the existence of probable cause, making summary judgment inappropriate at this time. First, it is incontrovertible that Mr. El Badrawi’s visa had not been revoked at the time of his arrest, because DOS’s revocation was effective only upon his departure. See Compl. ¶ 30; Defs. Ex. C., attachment 6. Second, as the contemporaneous records of Defendants demonstrate, Mr. El Badrawi remained in proper immigration status at the time of his arrest, and therefore Defendants could not have had affirmative knowledge of any such violation. See Compl. ¶¶ 22-36; Defs. Ex. B, attachment 1 (visa); Defs. Ex. C, attachment 3 (approved 2003 H1-B petition); Defs. Ex. C, attachment 4 (valid application for an extension dated March 31, 2004). At the very least, the Defendants’ own acknowledgment in the I-213 that UConn’s petition to extend Mr. El Badrawi’s visa was pending at the time of his arrest—and that the arrest and entire detention were within the 240-day extension period—creates a material dispute of fact as to whether Defendants had probable cause to believe Mr. El Badrawi had violated any immigration law.17 See Ex. 12.
Moreover, the Defendants have not set forth a trustworthy source of information that would have led a reasonable officer to believe that Mr. El Badrawi was subject to arrest. Cf. Zellner v. Summerlin, 494 F.3d 344, 372 (2d Cir. 2006) (holding that summary judgment could not be granted for the defendants when an assertion of the basis for probable cause “is unaccompanied by any supporting citation”). Rather, they carried out Operation Frontline II by arresting Mr. El Badrawi under an unreasonable and unprecedented reading of the law which allowed him to legally remain in the United States. To the extent that the Manack and Loser declarations hold out the Defendants to be their own source of information, a material dispute of fact exists as to whether the information they possessed would have led a reasonable officer to believe that probable cause existed.
17 DHS Counsel also conceded this point during Plaintiff’s November 3, 2004 hearing. See Defs. Ex. C at 8-9.
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The Defendants have acknowledged they did not have probable cause to arrest Mr. El Badrawi on the basis of his visa revocation. See Defs. Br. at 25 n.5.18 Rather they assert that he “remained in the United States for a time longer than permitted.” Defs. Br. at 25 (quoting Defs. Ex. B, attachment 3). The Second Circuit has established a three-part test to address such alleged visa overstays. At the time of arrest, the Defendants needed probable cause to believe that Mr. El Badrawi “[1] was admitted as a nonimmigrant for a temporary period, [2] that the period ha[d] elapsed, and [3] that [he] ha[d] not departed.” Zerrei v. Gonzales, 471 F.3d 342, 345 (2d Cir. 2006). Mr. El Badrawi does not contest that at the time of his admission to the United States, “he was admitted as a nonimmigrant worker for a temporary period not to exceed May 1, 2004,” that “that period had elapsed,” and that “he had not departed the country.” Defs. Br. at 25.
However, the Defendants’ formulation does not take into account that Mr. El Badrawi’s temporary period of authorized stay was extended beyond May 1, 2004 when he applied for an extension of his H1-B visa. Therefore, the Defendants still run afoul of step two, as they neither knew nor had reasonably trustworthy information that indicated that the period of Mr. El Badrawi’s temporary admission had elapsed.
Under federal regulations, a nonimmigrant who files for an extension of stay pursuant to an H1-B visa in a timely manner is authorized to continue employment with the same employer for an additional 240 days or until the extension application is denied. 8 C.F.R. § 274a.12(b)(20). It is undisputed that Mr. El Badrawi’s employer filed a timely application for an extension of stay on or about March 31, 2004, including a request for premium processing. Compl. ¶ 31; Defs. Ex. C,
18 During Mr. El Badrawi’s first immigration hearing, the attorney appearing on behalf of the Department of Homeland Security asserted that Mr. El Badrawi’s visa had been revoked. See Defs. Ex. C at 7-9. This is not the case. The Department of State Certificate of Revocation states, “This revocation shall become effective immediately on the date on which this certificate is signed unless the alien is present in the United States at that time, in which case it will become effective immediately upon the alien’s departure from the United States.” Defs. Ex. C attachment 6. Between the October 2, 2003 issuance of the Certificate of Revocation and Mr. El Badrawi’s arrest on October 29, 2004, Mr. El Badrawi never departed the United States. Compl. ¶ 36. Therefore, the Department of State visa revocation never became effective prior to Mr. El Badrawi’s arrest and detention.
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attachment 4. Therefore, Mr. El Badrawi continued to be authorized to work for the University of Connecticut Health Center, until 240 days after May 1, 2004. That work obviously required him to remain in the United States. Moreover, that 240-day period had not yet elapsed when he was unlawfully arrested by the Defendants and their agents on October 29, 2004.
This interpretation of the governing regulation conforms to the longstanding policy of USCIS and its precursor, the INS. As established in a memorandum issued by Michael A. Pearson, Executive Associate Commissioner of the INS, in March 2000 the INS “determined that nonimmigrants who were admitted until a specific date and who apply for [a change of status] or [an extension of stay] and whose applications have been pending beyond the 120-day tolling period19 should be considered to be in a period of stay authorized by the Attorney General if certain requirements are met.” Defs. Ex. D at 2 (emphasis added). Those requirements are simply that the application for an extension of stay was filed timely, that the applicant did not work without authorization prior to filling the application, and that the extension has been pending for more than 120 days after the initial I-94 admission has expired. Id. at 4.
This same interpretation was repeated in a more recent memorandum currently maintained on the USCIS website. See Ex. 1 at 4 (Cook Memo) (“[T]he Service will deem the alien to be within a period of stay authorized by the Attorney General (and not unlawfully present), if the alien has filed a non-frivolous [Extension of Stay] or [Change of Status] application with the Service Center and that application is still pending, provided that such application was timely filed”).20 Under the plain terms of the regulations, the Pearson Memo, and the Cook Memo, it is undisputed that Mr. El
19 This refers to is a tolling provision providing that individuals who have remained in the United States beyond their lawful period of admission should not be subject to the three and ten year bars on admissibility under 8 U.S.C. § 1182(a)(9)(B)(i) if they were lawfully admitted or patrolled into the U.S., have filed a non-frivolous application for a change or extension of status, and have not been employed without authorization. 8 U.S.C. § 1182(a)(9)(B)(iv). It does not relate directly to the 240-day tolling provision in 8 C.F.R. § 274a.12(b)(20). 20 Any contrary interpretation of § 274a.12(b)(20) is a position taken purely for the purpose of litigation and should not be afforded judicial deference. See, e.g., Southern Utah Wilderness Alliance v. Dabney, 222 F.3d 819, 828 (10th Cir. 2000).
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Badrawi was work authorized, “within a period of stay authorized by the Attorney General,” and “not unlawfully present” on the date of his arrest.
The Defendants have urged that “the regulation only affects [Mr. El Badrawi’s] ability to legally work in the United States—it does not change his status as an overstay.” Defs. Br. at 28. This construction of the regulation defies logic. First, authorization to continue to work in the United States, issued to an individual already present in the United States, cannot be given effect without continuing one’s presence. Moreover, the regulation put forward by Defendants to suggest that immigration authorities “may choose to pursue other actions to seek removal of a person notwithstanding the pending application,” Defs. Br. at 28 (quoting 8 C.F.R. § 103.2(b)(10)(ii)), only describes the effects of “a request for initial or additional evidence.” 8 C.F.R. § 103.2(b)(10). There is no regulation suggesting that an individual whose employer has filed a complete and timely application for an extension of stay may still be arrested and detained.21
The Defendants rely heavily on Matter of Teberen, 15 I. & N. Dec. 689 (B.I.A. 1976), for the notion that Mr. El Badrawi’s pending application for an extension of stay did not provide him with a 240-day extension of his authorized stay, but that case is plainly inapposite, and cannot overcome the force of the present work authorization regulation (promulgated in 1991), the Pearson Memo (2000), and the Cook Memo (2003). In Teberen, the non-citizen found to be deportable had applied for a visa extension in order to attend graduate school. At the time that his visa expired, he had not received a response concerning the requested extension, as the INS had misplaced his application. Id. at 690. The crucial difference between the two cases is that Mr. Teberen did not allege that he had received an automatic authorization to continue the activity for which he had been admitted,
21 The Defendants have also suggested that that “the goal of the rule allowing aliens to continue working while their applications are pending is to protect employers” rather than conferring “legal status on the aliens themselves.” Defs. Br. at 28. This contradicts the specific text of the regulation, which provides the right to the individual. 8 C.F.R. §274a.12(b)(20) (“These aliens are authorized . . . . to continue employment with the same employer for a period not to exceed 240 days beginning on the date of the expiration of the authorized period of stay.”). Furthermore, the Defendants’ construction would provide little comfort to employers, as the arrest and deportation of a specialized worker providing essential services can be far more costly than the fines levied under the INA.
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upon timely filing an application for an extension of stay. Nor did any such provision exist at the time for any category of visa, as Teberen pre-dates 8 C.F.R. § 274a.12(b)(20) by fifteen years.22 See
56 FR 41767 (Aug. 23, 1991) (promulgating the final regulation). The Defendants cite no additional
precedent for the notion that a non-citizen is subject to deportation during the period authorized
under an automatic stay provision. While Teberen’s basic analytic framework concerning overstays
has been adopted by the Second Circuit, see Zerrei, 471 F.3d at 345, no federal appellate court has
found an individual currently residing in the United States under an automatic authorization provision to be deportable.23
B. Defendants’ Initial Arrest and Detention of Plaintiff Violated Clearly Established Due Process and Fourth Amendment Rights. Plaintiff contends that Defendants Manack and Loser arrested and detained him without
probable cause, reason to believe an immigration violation had been committed, or valid justification,
in violation of both the Fourth Amendment prohibition of unreasonable seizures and the Fifth Amendment’s Due Process Clause.24 Plaintiff’s claims regarding his initial arrest and detention rest
on fundamental and well-established principles of law prohibiting arrest without probable cause and
arbitrary detention, and therefore state claims for relief that are not subject to a defense of qualified
immunity.
22 The regulations at 8 C.F.R. § 274a implement INA § 274A, 8 U.S.C. § 1324a, which was not enacted by Congress until 1986. 23 The Defendants cite numerous circuit court opinions for the notion that only a final grant of an extension of stay can prevent an individual who has remained in the country beyond the initial end date of his or her period of admission from deportability. Defs. Br. at 26 n.6. Each of these decisions predate 8 C.F.R. § 274a.12(b)(20), and they likely did not take into account the possibility of an explicit, automatic authorization pending processing of an extension. Cf., e.g., Sadegh-Nobari v. INS, 676 F.2d 1348, 1351 (6th Cir. 1982) (noting petitioner’s assertion that a deportation proceeding is wrongful solely on the basis that an extension of stay is pending had no affirmative basis). 24 These rights are guaranteed to “all persons” in the United States, including non-citizens such as Mr. El Badrawi. They are even guaranteed to non-citizens who entered the United States unlawfully and non-citizens who have been found deportable. Zadvydas v. Davis, 533 U.S. 678, 679-80 (2001); see also Kiareldeen v. Reno, 71 F. Supp. 2d 402, 413 (D.N.J. 1999) (INS detainee “removed from his community, his home, and his family . . . has been denied rights that ‘[rank] high among the interests of the individual’”) (quoting Landon v. Plasencia, 459 U.S. 21, 34 (1982)).
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1. Defendants Manack and Loser’s Arrest and Detention of Plaintiff Violated His Fourth Amendment Right To Be Free from Unreasonable Searches and Seizures. Plaintiff El Badrawi has a clearly established Fourth Amendment right to be free from arrest without probable cause. It is a well-settled principle of constitutional jurisprudence that an arrest without probable cause constitutes an unreasonable seizure in violation of the Fourth Amendment. See Beck v. Ohio, 379 U.S. 89, 91 (1964) (“Whether an arrest is constitutionally valid depends in turn upon whether, at the moment the arrest is made, the officers have probable cause to make it.”); Brown v. City of Oneonta, 235 F.3d 769, 775 (2d Cir. 2000) (noting “arrests . . . require a demonstration of probable cause” under the Fourth Amendment). The authority of government officials to interrogate or arrest an alien, even where specifically authorized by statute, is limited by the strictures of the Fourth Amendment. United States v. Brignoni-Ponce, 422 U.S. 873, 881-82 (1975); United States v. Singh, 415 F.3d 288, 294 (2d Cir. 2005); 8 C.F.R. § 287.8(c)(2); see also United States v. Karathanos, 531 F.2d 26, 29 (2d Cir. 1976) (holding that INS agents violated Fourth Amendment when failing to show probable cause in search of illegal aliens); Orhorhaghe v. INS, 38 F.3d 488, 497-501 (9th Cir. 1994) (holding that INS investigators violated a non-citizen’s Fourth Amendment rights by detaining him for questioning about his immigration status). Moreover, there has long been a clearly established cause of action available for damages from federal agents who, acting under the color of law, arrest and detain an individual without probable cause. See Bivens v. Six Unknown Named Agents, 403 U.S. 388, 389 (1971). Here, Defendants do not dispute that Plaintiff had a clearly established Fourth Amendment right to be free from arrest without probable cause. Instead, Defendants offer three reasons why they did not violate Mr. El Badrawi’s Fourth Amendment rights. First, Defendants argue that they had probable cause to arrest and detain Plaintiff. Defs. Br. at 24-27. Second, Defendants argue that because Mr. El Badrawi was arrested pursuant to a warrant, his seizure should be “presumed valid.” Defs. Br. at 27. Third, Defendants argue that they should be entitled to qualified immunity because
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their actions were reasonable even if they had violated statutes, agency regulations, or had made mistakes. Defs. Br. at 27-29, 37. However, none of Defendants’ arguments provide valid defenses on which to dismiss Plaintiff’s Fourth Amendment claims. Moreover, summary judgment at this stage of the pleadings is improper, as material disputes of fact exist regarding all three of these points.
First, regarding Defendants’ claim that they arrested Plaintiff with probable cause, as shown above, see Section III.A supra, because Manack and Loser had no legal basis to deem Plaintiff in violation of immigration laws, there was no legal basis or probable cause to arrest and detain Plaintiff, and his Fourth Amendment right to be free from unlawful arrest and detention was clearly violated.
Second, while an arrest pursuant to a warrant is “ordinarily presumed valid” in the criminal context, it clearly is not in the immigration context. Defendants cite no case law to suggest otherwise. In the criminal context, a warrant is ordinarily presumed valid because it is issued by a “neutral and detached magistrate” not “by the officer engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U.S. 10, 14 (1948); see also Shadwick v. City of Tampa, 407 U.S. 345, 348, 351 (1972) (Constitution generally requires that “someone independent of the police and prosecution” review a warrant application to determine whether there is “probable cause to believe a citizen guilty” of a crime and to issue an arrest warrant); Coolidge v. New Hampshire, 403 U.S. 443, 449-50 (1971) (similar requirement for search warrant). As the Supreme Court has explained, “[t]he Fourth Amendment does not contemplate the executive officers of the Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute.” United States v. United States Dist. Court, 407 U.S. 297, 317 (1972). While the Supreme Court has tacitly approved the use of administrative immigration arrest warrants, Abel v. United States, 362 U.S. 217, 230 (1960), no court has granted them the same deference afforded to a warrant signed by a neutral judicial officer, and logically no deference should
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be extended to a warrant signed by the official ordering the arrest. Here, the warrant for Mr. El
Badrawi’s arrest was not presented to a neutral and detached magistrate, was not based on sworn
evidence, and was in fact issued by Defendant Manack, the same executive officer who directed that
the arrest be made. See Defs. Ex. C, attachment 2 (noting that the warrant relied on evidence but not
specifically on sworn evidence); Manack Decl. ¶ 5 (noting that Defendant Manack signed the warrant
based solely on his own determination). For these reasons there can be no presumption that the warrant was valid.25
The probable cause standard regarding whether an ICE arrest is valid under the Fourth
Amendment does not depend on whether a warrant has been issued, but whether the immigration
officer had “reason to believe that the alien so arrested is in the United States in violation of any . . .
law or regulation made in pursuance of law regulating the admission, exclusion, expulsion, or removal of aliens.”26 8 U.S.C. § 1357(a)(2); see also 8 C.F.R. § 287.8(c)(2)(i) (“An arrest shall be
made only when the designated immigration officer has reason to believe that the person to be
arrested has committed an offense against the United States or is an alien illegally in the United
States.”); United States v. Sanchez, 635 F.2d 47, 63 n.13 (2d Cir. 1980) (citing Au Yi Lau v. INS, 445
F.2d 217, 222 (D.C. Cir. 1971)) (requirement for valid arrest under 8 U.S.C. § 1357(a)(2) that
25 However, even in the criminal context, where a warrant is “ordinarily presumed valid” because it has been issued by a “neutral and detached magistrate,” Defendants still would have violated Mr. El Badrawi’s Fourth Amendment right to be free from arrest without probable cause. The Supreme Court has clearly held that a judicial officer’s finding of probable cause to issue a warrant does not prevent a suit against the officer who sought the warrant if a reasonably well-trained officer in the position of the defendant would have known that his affidavit failed to establish probable cause. See Malley v. Briggs, 475 U.S. 335, 345 (1986); see also 32 Am. Jur. 2d False Imprisonment § 87 (affiant who falsely and maliciously misstates facts and procures a warrant is responsible for the arrest). As the Plaintiff alleges, Defendants Manack and Loser “acted intentionally, knowingly, and/or with reckless disregard and deliberate indifference” when misstating the facts on which Plaintiff’s immigration warrant was issued. See Complaint ¶¶ 57-58. Moreover, Defendants “knew or reasonably should have known” that the facts on which Plaintiff’s immigration warrant was issued failed to establish probable cause. See Complaint ¶¶ 59-60. 26 Section 8 U.S.C. § 1357 even allows ICE agents to arrest non-citizens without a warrant if the non-citizen “is likely to escape before a warrant can be obtained for his arrest.” 8 U.S.C. § 1357(a)(2); see also 8 C.F.R. § 287.8(c)(2)(ii) (“A warrant of arrest shall be obtained except when the designated immigration officer has reason to believe that the person is likely to escape before a warrant can be obtained for his arrest.”). This provides further proof that the fact Defendants obtained an immigration warrant does not determine whether or not Manack and Loser had probable cause to arrest Plaintiff.
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officers have “reason to believe” that alien is in country illegally must be considered to be equivalent of probable cause requirement); United States v. Karathanos, 399 F. Supp. 185 (E.D.N.Y 1975), aff’d 531 F.2d 26 (2d Cir. 1976), cert. den. 428 U.S. 910 (1976) (powers granted in 8 U.S.C. § 1357 do not in any way lessen the requirement that probable cause exist when search warrant is sought in connection with search for illegal aliens).27
As demonstrated above, see Section III.A supra, Defendants had no “reason to believe” Mr. El Badrawi had violated any immigration law, and had no factual or legal basis for his immigration arrest, and, therefore, had no probable cause to arrest Plaintiff in clear violation of his Fourth Amendment rights. In fact, Plaintiff alleges that Defendants’ overzealous behavior in regards to his unconstitutional arrest and detention was due to the fact that they were investigating him for national security concerns pursuant to Operation Frontline. See Ex. 9; Ex. 11; Ex. 12. If this is true, ICE has devised a separate set of procedures to establish probable cause in cases where the basis for the arrest is a threat to national security:
[I]nternal ICE policy and procedure require that the national security law division of ICE conduct a probable cause review for legal sufficiency purposes prior to the issuance of either an NTA or an administrative arrest warrant. In order to facilitate the probable cause review, ICE agents must submit an affidavit or other document, such as a national security declaration, setting forth the factual basis for an administrative arrest based on national security concerns. United States v. Abdi, 463 F.3d 547, 551 (6th Cir. 2006) (internal citations omitted). In Mr. El Badrawi’s case, none of these procedures were followed, further demonstrating that Manack and Loser had no probable cause in arresting Plaintiff. Cf. Los Angeles County v. Rettele, 127 S. Ct. 1989, 1991 (2007) (noting that adherence to proper procedures in obtaining a warrant lends credence to the reasonableness of a search). If Manack and Loser had followed their own procedures
27 See also Orhorhaghe v. INS, 38 F.3d 488, 497 (9th Cir. 1994) (“[T]o justify the seizure [of a non-citizen, an ICE] agent must articulate objective facts providing a reasonable suspicion that [the subject of the seizure] was an alien illegally in this country. The specific facts articulated by the agents must provide a rational basis for separating out the illegal aliens from American citizens and legal aliens.”) (internal quotations and citations omitted).
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regarding ICE arrests pursuant to national security concerns, they would have realized that no such national security declaration could have been issued regarding Plaintiff because he, in fact, raises no national security concerns. Therefore, the national security division of ICE would have concluded that there was no probable cause to issue an immigration arrest warrant against Mr. El Badrawi, and he would not have been unconstitutionally arrested and detained by Defendants. At the very least, a material dispute of fact exists as to whether Mr. El Badrawi was arrested and detained pursuant to national security concerns or on Defendants’ faulty assertion that Mr. El Badrawi was out of status.
Finally, Defendants’ argument that they are entitled to qualified immunity because their actions were reasonable even if they had violated statutes, agency regulations, or had made mistakes is without merit to dismiss the complaint at this stage in the pleadings.
First, while the Defendants would rebrand their unconstitutional actions as “an alleged regulatory violation,” Defs. Br. at 27, they attempt to formulate a uniform defense to arrest without probable cause based on the arresting officers’ mistake of law. Under their logic, any arrest absent probable cause would “merely . . . violate[] some statutory or administrative provision,” as the arresting officers had failed to determine whether the individual they were arresting was in violation of a statute or regulation. For example, if police officers arrested an individual for statutory rape without any reason to believe that the alleged victim was sixteen or younger, as required by statute, it would not be a mere statutory violation. Rather, the police would have made an arrest without probable cause to believe that the individual had committed any real crime, violating clearly established Fourth Amendment rights.
No court has ever established such an exception, and the Defendants misleadingly strip the quoted passage of Davis v. Scherer of its context to attempt to lay one out. See Defs. Br. at 27-28 (quoting 468 U.S. 183, 194 (1984)). Davis addressed a scenario whereby the plaintiffs attempted to prove that their constitutional rights were “clearly established” for purposes of qualified immunity when such rights had been codified in state statutes and regulations. Id. at 193. The Court merely
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acknowledged that a concurrent violation of a statutory right does not necessarily prove that a constitutional right to the interests also protected by statute is clearly established. Id. at 195-96. In contrast, here the constitutional right protected is freedom from arrest and detention absent probable cause. 8 C.F.R. § 274a.12(b)(20) merely lays out the terms of Mr. El Badrawi’s continued compliance with U.S. immigration laws.
Moreover, the Defendants suggest that the breadth of federal immigration law is so great that no enforcement official should be held responsible for violating an individual’s constitutional rights while those laws are being enforced. Defs. Br. at 29-30. Such blanket calls for immunity based upon ignorance of the law have been resoundingly rejected by the courts. Rather, “a reasonably competent public official should know the law governing his conduct.” Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982); see also Salahuddin v. Coughlin, 781 F.2d 24, 27 (2d Cir.1986) (“Officials are held to have constructive notice of established law.”). Specifically, in Velasquez v. Senko, the court denied qualified immunity to immigration officials for immigration arrests absent probable cause, despite the plethora of statutes and regulations unavoidably involved in any immigration matter. 643 F. Supp. 1172 (N.D. Cal. 1986), appeal dismissed 813 F.2d 1509 (9th Cir. 1987) (Kozinski, J.).
Second, although Defendants would also like to characterize their unconstitutional arrest and detention as a reasonable mistake, as stated above, it is clearly established that, at the time of Plaintiff’s arrest, an ICE agent would have no probable cause to arrest and detain a non-citizen during the 240-day extension period while the application was still pending. The fact that Defendants have cited no case law or demonstrated any occasion in which Plaintiff’s arrest would have been considered valid, clearly proves that any reasonable ICE officer should have known Mr. El Badrawi was at all times legally present in the United States and there was no reason to believe he had violated any immigration law. Moreover, regarding Defendants’ motion to dismiss, plaintiff’s allegations must be taken as true. Plaintiff’s allegations clearly contradict Defendants’ assertion that they may have reasonably but mistakenly concluded that probable cause existed regarding Mr. El
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Badrawi’s arrest. See Complaint ¶¶ 57-58 (Defendants’ Manack and Loser “acted intentionally, knowingly, and/or with reckless disregard and deliberate indifference . . .”); Complaint ¶¶ 59-60 (Defendants Manack and Loser “knew or reasonably should have known that their actions violated Mr. El Badrawi’s constitutional and legal rights . . . [and] that there was no reason to believe or probable cause that Mr. El Badrawi was illegally in the United States”). Additionally, regarding Defendants’ motion for summary judgment, the Defendants’ own acknowledgment in the I-213 Record of Deportable/Inadmissible Alien that Plaintiff’s extension of stay was pending at the time of his arrest—and that the arrest was within the 240-day extension period—creates a material dispute of fact as to whether Manack and Loser were reasonably mistaken. Ex. 12. Therefore, it is too early at this stage in the pleadings to grant Defendants’ motion for summary judgment without allowing Plaintiff to conduct further discovery regarding this issue under Fed. R. Civ. P. 56(f). See Pl. Rule 56(f) Motion; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986) (“[S]ummary judgment [should] be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition.”); Castro v. United States, 34 F.3d 106, 112 (2d Cir. 1994) (“Where the claimant’s description of the events suggests that the defendants’ conduct was unreasonable, and the facts that the defendants claim are dispositive are solely within the knowledge of the defendants and their collaborators, summary judgment can rarely be granted without allowing the plaintiff an opportunity for discovery as to the questions bearing on the defendants’ claims of immunity.”)
The Defendants’ abrupt seizure of Mr. El Badrawi, without warning or an opportunity to place his affairs in order, profoundly damaged his life. That is why the qualified immunity question revolves around Mr. El Badrawi’s constitutional right to be free from seizure, rather than his right to a 240-day extension of his visa: seizure presents the greatest potential source of harm, and thus freedom from it is constitutionally protected. See Boyd v. United States, 116 U.S. 616, 630 (1886) (describing the “indefeasible right of personal security, personal liberty, and private property” as “the
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very essence of constitutional liberty”). “Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate.” Harlow, 457 U.S. at 819. The Defendants in this case failed to hesitate, and as a result they violated the Plaintiff’s clearly established constitutional rights.
2. Defendants Manack and Losers’ Arrest and Detention of Plaintiff Violated His Fifth Amendment Right to Due Process. The Fifth Amendment prohibits the government from “depriv[ing]” any person of “liberty . . . without due process of law.” This prohibition applies to citizens and non-citizens, “whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas, 533 U.S. at 693 (citing Plyler v. Doe, 457 U.S. 202, 210 (1982)). Under the Fifth Amendment, Plaintiff El Badrawi has a clearly established right to be free from imprisonment. It is well established that “[f]reedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Due Process] Clause protects.” Zadvydas, 533 U.S. at 690. The Zadvydas Court further stated that civil confinement of non-citizens must be limited with respect to both the length of detention and the underlying purpose justifying the detention. Id. at 671. Thus, government detention of non-citizens is not permissible if the respondent’s liberty interest outweighs the government’s justification for the detention. Because Plaintiff was lawfully present at the time of his initial detention by Defendants Manack and Loser, the government did not state any valid justification for his detention, and his liberty interest outweighs whatever justification the government might have had. Defendants Manack and Loser do not dispute that Plaintiff El Badrawi had a Fifth Amendment right to be free from imprisonment; instead they argue that they did not violate Plaintiff’s clearly established right to due process regarding his initial detention for three reasons. First, they argue that if Plaintiff’s arrest was lawful, then he may not recover any damages related to his detention. Defs. Br. at 30. Second, Defendants claim they had no involvement with Plaintiff’s
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detention. Defs. Br. at 30. Third, they argue that Mr. El Badrawi did not have a constitutional right not to be detained during his removal proceedings. Defs. Br. at 31. However, none of Defendants’ arguments provide valid defenses on which to dismiss Plaintiff’s Fifth Amendment claims.
First, Defendants’ contention that Plaintiff cannot state a Fifth Amendment claim regarding his initial detention because the arrest was lawful fails because, as shown above, see Section III.A supra, Plaintiff’s arrest was clearly unlawful. Defendants had no legal basis to arrest and detain Plaintiff because he was not in violation of any immigration law. However, even if this Court finds that probable cause existed initially to arrest Plaintiff, Plaintiff still has a constitutional right to be free from continued detention once Defendants knew or should have known that Mr. El Badrawi was legally present in the United States. See Lee v. City of Los Angeles, 250 F.3d 668, 683 (9th Cir. 2001) (holding that an alien detainee has “a constitutional right to be free from continued detention after it was or should have been known that the detainee was entitled to release”) (quoting Cannon v. Macon County, 1 F.3d 1558, 1563 (11th Cir. 1993)).28 In Mr. El Badrawi’s case, Immigration Judge Straus raised the flaws in Defendants’ interpretation of 8 C.F.R. § 274a.12(b)(20) at the hearing on November 3, 2004, only days after the unlawful arrest. Defs. Ex. C at 10 (“Judge Straus: But doesn’t the fact that he filed a timely extension mean that he’s in status?”). Thus Defendants, placed on clear notice that their purported rationale for detaining Plaintiff was incorrect, failed to take necessary and reasonable steps to correct their mistake. Cf. Lee, 250 F.3d at 684 (noting that those responsible for detention have an ongoing duty to take reasonable steps to verify the legality of an individual’s detention). At a minimum, Plaintiff has established a material dispute of fact as to when the
28 While Cannon held that a detainee’s right to be free from continued detention was a Fifth Amendment due process right, the Second Circuit has recently held that it is a Fourth Amendment right. See Russo v. City of Bridgeport, 479 F.3d 196, 208 (2d Cir. 2007). Regardless of whether the right is protected by the Fourth or Fifth Amendments (or both), Defendants violated Mr. El Badrawi’s clearly established right to be free from continued detention once Defendants reasonably knew or should have known that he had not violated any immigration laws.
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Defendants knew or should have known that Mr. El Badrawi was legally present in the United States. Therefore, summary judgment at this stage of the proceedings is inappropriate.
Second, Defendants’ argument that Manack and Loser did not have any involvement with Plaintiff’s initial detention is also without merit. Defendants cannot, and likely do not,29 contend that they were not personally involved in Plaintiff’s detention before his hearing with the Immigration Judge and before he was granted voluntary departure. In fact, Defendant Manack has explicitly stated that “I determined that ICE should detain El Badrawi.” Manack Decl. ¶ 6. Moreover, Plaintiff’s initial detention was precisely caused by Defendant Loser’s investigation and arrest of Mr. El Badrawi, Loser Decl. ¶¶ 5, 7, and by the Defendants’ refusal to set bond for Mr. El Badrawi once he had been arrested. See Manack Decl. ¶ 6 (implying that the decision “that ICE should detain El Badrawi” meant detention without bail); see also 8 U.S.C. § 1226(a) (granting the power to the Attorney General and his delegates to set bond in the first instance); 8 C.F.R. § 236.1(d) (noting that a bond hearing before an immigration judge is only to reconsider ICE’s initial determination). These actions clearly demonstrate that Defendants have “personally participated” in Mr. El Badrawi’s initial detention, one of several ways this Circuit has recognized a plaintiff can show personal involvement under Bivens. Davis v. United States, 430 F. Supp. 2d 67 (D. Conn. 2006) (citing Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986)).
Finally, Defendants’ argument that Mr. El Badrawi does not have due process rights while his removal proceedings are pending is also incorrect. The Second Circuit squarely acknowledges that even non-citizens illegally in the United States have “a substantive due process right to be free of arbitrary confinement pending deportation proceedings.” Doherty v. Thornburgh, 943 F.2d 204, 209
29 It appears that Defendants might have made this personal involvement argument only with respect to Mr. El Badrawi’s other Fifth Amendment claim, that his prolonged detention after accepting voluntary departure violated his due process rights. However, as demonstrated below in Section III.C.1, Plaintiff has sufficiently alleged that Defendants were personally involved in his post-voluntary departure detention and has produced sufficient evidence to create a material dispute of fact in this premature motion for summary judgment.
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(2d Cir. 1991). Defendants’ reliance on Demore v. Kim, 538 U.S. 510, 516-17 (2003), is inapposite. In Demore, the Court did not adopt Defendants’ view that non-citizens have no liberty interest, but held that while due process applied, it was satisfied because Congress had relied on substantial evidence of flight risk by “criminal aliens” to justify identifying that class as posing a flight risk and acceptable for mandatory pre-removal order detention. Id. at 528. But see Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003) (holding—even after Demore—that prolonged no-bond detention pending removal proceedings violated due process); Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005) (same); Hyppolite v. Enzer, No. 3:07cv729, 2007 WL 1794096 (D. Conn. June 19, 2007) (same).
Furthermore, while Defendants are correct that a decision on whether to grant bond is left in the first instance to ICE’s discretion, see 8 U.S.C. § 1226(a), subject to review by an Immigration Judge and then a U.S. District Court on habeas, as stated above, Defendants Manack and Loser have no discretion to violate the Constitution.30 As in Zadvydas, Plaintiff El Badrawi does “not seek review of the Attorney General’s exercise of discretion; rather, [he] challenge[s] the extent of the Attorney General’s authority. . . . And the extent of that authority is not a matter of discretion.” 533 U.S. at 688. Defendants Manack and Loser clearly violated Mr. El Badrawi’s due process rights by denying him bond when they had no valid justification to detain him in the first place.
C. Defendants’ Prolonged Detention of Plaintiff Violated Clearly Established Due Process and Fourth Amendment Rights Because It Was Not Necessary to Secure His Removal.
1. Defendants’ Prolonged Detention of Plaintiff Denied Him Substantive and Procedural Due Process.
30 Defendants make the entirely unprecedented claim that non-citizens have no due process right whatsoever to liberty pending their removal proceedings and that federal officials are therefore free to deny bond for any reason or indeed no reason at all, without any process at all. On Defendants’ theory, the Constitution would have nothing to say even if the government adopted a policy to deny bond to all non-citizens who lost a flip of the coin. The breadth of this argument is its own refutation—if accepted, due process would be wholly irrelevant to immigration detention. It is also plainly inconsistent with Demore, Ly, Tijani, Hyppolite, and their progeny.
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Plaintiff contends that Defendants Manack and Loser violated his clearly established due process rights by continuing to detain him long after he accepted voluntary departure, and well beyond any reasonable period necessary to effectuate his removal, for the non-immigration purpose of investigating him for national security concerns pursuant to Operation Frontline.31 See Compl. ¶ 121-22; Ex. 10 at 2 (explicitly stating that after Mr. El Badrawi had accepted voluntary departure, his “investigation continues.”). Plaintiff’s claim rests on the clearly established due process right to be free from unlawful imprisonment, which continues even after a non-citizen has been ordered removed. See Zadvydas, 583 U.S. at 690.
Defendants argue that Plaintiff’s due process claims relating to his post-voluntary departure detention should be dismissed for three reasons. First, Defendants Manack and Loser claim that they had no “involvement with [Mr. El Badrawi’s post-voluntary departure] detention].” Defs. Br. at 30. Second, Defendants contend that Plaintiff’s prolonged post-voluntary departure detention for the non-immigration purpose of investigating him pursuant to Operation Frontline fails to state a claim under the Due Process Clause. Defs. Br. at 31. Third, Defendants claim that even if Plaintiff’s detention was improper, it did not violate substantive due process because Defendants’ actions failed to “shock the conscience.” Defs. Br. at 33-34. All of these arguments are without merit.
First, Plaintiff has adequately alleged facts that show that Defendants Manack and Loser were both personally involved in detaining Mr. El Badrawi for 42 days after he accepted voluntary departure. See Compl. ¶ 125 (“Defendants Manack and Loser authorized, and, by their unlawful actions, caused Mr. EI Badrawi’s unlawful detention for forty-two days after he had accepted voluntary departure.”); see also Compl. ¶¶ 122, 126-28; Ex. 9 at 3 (Loser investigating Plaintiff regarding national security concerns); Ex. 10 at 2 (stating explicitly on November 18, 2004 that the
31 Defendants’ contention that Plaintiff’s post-voluntary departure detention claims should be dismissed because Defendants Manack and Loser had no “involvement with his detention,” Defs. Br. at 30, is plainly false given the facts shown here.
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“investigation continues”); Ex. 7 at 2 (ICE agents in Field Offices responsible for Frontline investigations); Ex. 14 at 2 (“ICE field offices will coordinate Operation Frontline leads . . . in order to determine if subjects may be of further investigative interest”). These statements and documents clearly demonstrate that Defendants Manack and Loser “personally participated” in Mr. El Badrawi’s detention by continuing to investigate him for national security concerns pursuant to Operation Frontline even after he had accepted voluntary departure.32 See Davis v. United States, 430 F. Supp. 2d 67 (D. Conn. 2006) (citing Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986) (“personally participat[ing] in the infraction” is one of several recognized ways in which a plaintiff can show personal involvement under Bivens). At a minimum, Plaintiff has established a material dispute of fact as to Defendants’ involvement in his detention after accepting voluntary departure. Thus, summary judgment at this stage of the proceedings is inappropriate.
Moreover, Defendants’ argument that they cannot be held accountable for Mr. El Badrawi’s post-voluntary departure detention because the Immigration Judge’s actions broke the “chain of causation” against Manack and Loser, Defs. Br. at 30, is also without merit. The Immigration Judge ordered Mr. El Badrawi to voluntarily depart the country under the conditions that he departs on or before December 10, 2004 under ICE safeguards. Compl. ¶ 110; Defs. Ex. H. In a grant of voluntary departure, an Immigration Judge is allowed to impose conditions “necessary to ensure the alien’s timely departure from the United States.” 8 C.F.R. § 1240.26(b)(3)(i). Defendants Manack and Loser clearly disobeyed the judge’s conditions not only by preventing Mr. El Badrawi’s departure on or before December 10, but also by investigating Mr. El Badrawi after his grant of voluntary departure, which blocked rather than effectuated removal, in clear contravention of the
32 In the event this Court concludes that Plaintiff’s allegations of Defendants Manack and Loser’s personal involvement are insufficient to state a claim for relief, Mr. El Badrawi respectfully requests leave pursuant to Rule 15(a)(2) to file a first amended complaint that will allege, inter alia, the following facts: (1) Pursuant to Operation Frontline, Defendants Manack and Loser were authorized to investigate Mr. El Badrawi for national security concerns; (2) After Mr. El Badrawi’s arrest, Defendant Loser asked him many questions relating to national security concerns; and (3) Defendants Manack and Loser’s investigation of Mr. El Badrawi pursuant to Operation Frontline continued even after Plaintiff had accepted voluntary departure. See note 2, supra.
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regulation. Furthermore, because Plaintiff’s post-voluntary departure detention claims rests on Defendants’ unconstitutional investigation without any legitimate immigration purpose and not their initial arrest and detention of Plaintiff without probable cause, the fact that Mr. El Badrawi had a hearing in front of an Immigration Judge is not relevant to these claims. Moreover, because Mr. El Badrawi never had a bond hearing, Judge Straus never denied him bond, and his continued detention was solely due to Defendants’ unconstitutional actions. El Badrawi Decl. ¶ 28.
Second, Plaintiff’s prolonged detention not authorized by the INA or any other statute violates clearly established due process rights. Even if there had been a basis for detaining Plaintiff before and up to the moment the Immigration Judge granted him voluntary departure on November 10, 2004—and as noted above, see Section III.A supra, there was not—Defendants’ only legitimate basis for detaining him after the grant of voluntary departure on November 10 was to aid his removal from the United States. Zadvydas, 533 U.S. at 689; see also Wong Wing v. United States, 163 U.S. 228, 237 (1896) (holding that detention of deportable aliens for punitive ends violates substantive due process); Demore, 583 U.S. at 532-33 (Kennedy, J., concurring) (suggesting that immigration detention is unlawful where its purpose is “not to facilitate deportation, or to protect against risk of flight or dangerousness, but to incarcerate for other reasons”). Such “investigative detention” violated Plaintiff’s substantive due process right to be free from arbitrary detention. See infra Subsection III.C.1.a; see also Rodriguez v. McElroy, 53 F. Supp. 2d 587, 591 n.6 (S.D.N.Y. 1999) (“Detention is intended for the sole purpose of effecting deportation.”); Fernandez v. Wilkinson, 505 F. Supp. 787, 793 (D. Kan. 1980), aff’d, 654 F.2d 1382 (10th Cir. 1981); United States ex rel. Blankenstein v. Shaughnessy, 117 F. Supp. 699, 703-04 (S.D.N.Y. 1953) (“[C]ourts have power to release on habeas corpus an alien held for deportation on a showing . . . that the detention cannot in truth be said to be for deportation”). Also, Defendants violated Plaintiff’s procedural due process rights by failing to provide him with notice of the reasons for their detention or an opportunity to contest those reasons. See infra Subsection III.C.1.b; see also Turkmen, 2006 U.S. Dist. LEXIS
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39170, at *81 (holding that where notice of the grounds for detention have not been given, it. . . “cannot be said that the purpose of the detention is ‘to remove an alien’”).
Defendants attempt to sidestep Plaintiff’s claim altogether with the comment that no court has held that non-citizens have “a constitutional right to be removed from the United States at the earliest possible time.” Defs. Br. at 31. Mr. El Badrawi’s claim does not depend on the existence of so broad a right. Plaintiff does not complain that his removal was delayed, but that he was arbitrarily detained for 42 days after he had accepted voluntary departure and was ready to return to his home country, where that detention was not necessary to effectuate his removal and in fact was done for the illegitimate purpose of facilitating ICE interrogations of Mr. El Badrawi relating to Operation Frontline. See Ex. 10 at 2.
Defendants’ similar contention, citing Wang v. Ashcroft, 320 F.3d 130, 146 (2d Cir. 2003), that Mr. El Badrawi cannot challenge his post-voluntary departure detention as long as his removal was “reasonably foreseeable” is also without merit. See Defs. Br. at 32. Defendants’ argument focuses on the wrong question. The question is not how long could Mr. El Badrawi be detained, but for what reason. Under the Fifth Amendment and Zadvydas, the answer is that Mr. El Badrawi could only be held for the statutory purpose of removal from the United States. The “reasonably foreseeable” formulation, which Zadvydas sets forth as a limit to the detention of non-citizens who cannot be removed, turns out to be no limit at all in Plaintiff’s situation. Because Plaintiff’s removal from the United States never posed any difficulty, and was thus always “foreseeable,” Defendants’ formulation allows indefinite detention at the whim of the jailor.33
Finally, Defendants’ argument that even if they detained Mr. El Badrawi without statutory authority, his detention did not violate due process because it did not “shock the conscience” is
33 Wang v. Ashcroft does not hold otherwise. Wang’s removal was delayed by his own pursuit of legal remedies. 320 F.2d at 132-33. There is nothing in that case to suggest that the government would have been free to detain Wang after all his appeals were completed, and despite the availability of immediate removal, without probable cause.
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without merit. While not every statutory infraction violates due process, it is clearly established that detention without legal authority does.34 Indeed, it was precisely a concern about violating substantive due process that led the Supreme Court in Zadvydas to restrict detention to the “period reasonably necessary to secure removal.” 533 U.S. at 699. Locking a prisoner up without legal authority and without a legitimate legal purpose is the paradigmatic “exercise of power without any reasonable justification in the service of a legitimate governmental objective,” and therefore violates substantive due process. County of Sacramento v. Lewis 523 U.S. 833, 846 (1998); see also Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (due process at its core protects against detention based on “arbitrary government action”).
Even before Zadvydas, this Court and others had long recognized that extending immigration detention where not necessary to secure removal could violate due process. See Doherty v. Thornburgh, 943 F.2d 204, 211 (2d Cir. 1991) (“[W]ere Doherty’s lengthy detention largely the result of a government strategy intended to delay, we might find a due process violation”); United States ex rel. Ross v. Wallis, 279 F. 401, 404 (2d Cir. 1922) (“[A]ny further or other detention under pretense of awaiting opportunity for deportation would amount, and will amount, to an unlawful imprisonment”); Nwankwo v. Reno, 819 F. Supp. 1186, 1188 (E.D.N.Y. 1993) (same); Doherty v. Thornburgh, 750 F. Supp. 131, 137 (S.D.N.Y. 1990) (“[C]ontinued [immigration] detention becomes punitive and unconstitutional . . . [where] the Government was not continuing to make a reasonable, good faith effort to deport.”).35
34 The Supreme Court has routinely adjudicated substantive due process challenges to civil detention schemes without even using the phrase “shocks the conscience.” See, e.g., Demore v. Kim, 538 U.S. 510 (2003); Kansas v. Crane, 534 U.S. 407 (2002); Kansas v. Hendricks, 521 U.S. 346 (1997); Foucha v. Louisiana, 504 U.S. 71 (1992); see also Zadvydas v. Davis, 533 U.S. 678 (2001). 35 Defendants’ cases do not hold otherwise. Russo v. City of Bridgeport, 479 F.3d 196, 205-10 (2d Cir. 2007), supports Plaintiff’s claim, holding that continued detention of an individual could be unconstitutional if defendants intentionally extended the plaintiff’s detention beyond that legally authorized. That is precisely what Mr. El Badrawi alleges here. Lombardi v. Whitman, 485 F.3d 73 (2d Cir. 2007), did not involve detention, but rather a claim that inaccurate government press releases about air quality at the site of the 9/11 World Trade Center attacks facilitated harms caused by third parties.
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a) Plaintiff’s claim rests on the clearly established principle of substantive due process that the Constitution permits post-voluntary departure detention only to the extent that it facilitates removal. In Zadvydas, the Supreme Court affirmed the fundamental principle that detention following an order of removal is tolerated by the Due Process Clause only to the extent that it serves to facilitate removal. Recognizing that the indefinite detention of non-citizens admitted into the United States and ordered removed “would raise serious constitutional concerns,” the Court construed the INA to “limit[] an alien’s post-removal-period detention to a period reasonably necessary to bring about that alien’s removal from the United States.”36 Zadvydas, 533 U.S. at 690. The Court further directed that reasonableness be measured “in terms of the statute’s basic purpose, namely assuring the alien’s presence at the moment of removal.” Id. at 699. Thus, Zadvydas rests squarely on the principle that immigration detention is permissible only where necessary to aid removal. In Zadvydas, the Court applied this principle to non-citizens who were ordered removed on the basis of criminal convictions and held in detention beyond the removal period because no country would accept them. The Court was presented with, on the one hand, the prospect of releasing potentially dangerous criminal aliens into the general population and, on the other hand, the prospect of detaining them indefinitely—and potentially permanently. The Court ultimately set six months as a “presumptively reasonable period of detention” to permit the government to pursue efforts at removal. Id. at 701.
36 The Zadvydas Court considered only the post-removal period detention statute, 8 U.S.C. § 1231(a)(6), and not the statute relating to Mr. El Badrawi’s claim, 8 U.S.C. § 1229c(e), which authorizes ICE to attach to a grant of voluntary departure “any conditions it deems necessary to ensure the alien’s timely departure from the United States, including . . . continued detention pending departure . . . .” 8 U.S.C. § 1229c(e); 8 C.F.R. § 240.25(b) (emphasis added). But the due process principles the Court embraced apply to the entire period of detention following the issuance of a removal order or grant of voluntary departure. Arguably, because voluntary departure is a form of discretionary relief based on a finding that Plaintiff was a person of good moral character who could be trusted to leave the United States voluntarily, see 8 U.S.C. § 1229c; 5 Charles Gordon et al., Immigration Law & Procedure §§ 63.10(2)(c) & (4)(a) (2004), non-citizens granted voluntary departure should receive greater due process rights regarding their detention than those ordered removed.
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By contrast, Plaintiff remained ready, willing, and able to return to his home country throughout his post-voluntary departure detention. No ground was ever offered for his continued detention for 42 more days. In fact, Mr. El Badrawi was not detained to facilitate his removal or any other legitimate immigration purpose, but rather to continue to investigate him for national security concerns pursuant to Operation Frontline. Compl. ¶¶ 121-22; Ex. 10 at 2. In fact, the ICE prosecutor at his immigration hearing notified Mr. El Badrawi that he would leave the country within six days. Compl. ¶ 111; El Badrawi Decl. ¶ 27. The only statutorily authorized purpose for detaining Mr. El Badrawi after he accepted voluntary departure would be “to ensure [his] timely departure from the United States.” See 8 U.S.C. § 1229c(e); 8 C.F.R. § 240.25(b); see also 8 C.F.R. § 1240.26(b)(3)(i). As Mr. El Badrawi alleges, and Defendants’ own documents show, Plaintiff was held in postvoluntary departure detention for the purposes of investigating him for national security concerns pursuant to Operation Frontline—a purpose that blocks rather than effectuates removal and is therefore unauthorized under the analysis laid out in Zadvydas. Therefore, Mr. El Badrawi’s detention was clearly “excessive in relation to the regulatory goal” of ensuring his timely departure from the United States. United States v. Salerno, 481 U.S. 739, 747 (1987). At a minimum, Plaintiff has established a material dispute of fact as to the purpose of his 42-day detention after Immigration Judge Straus granted voluntary departure, and in particular whether such detention was in fact necessary to “ensure [his] timely departure from the United States.” Accordingly, summary judgment at this stage of the proceedings is inappropriate.
Defendants nonetheless ask the Court to import wholesale to this case the six-month detention period found presumptively reasonable in Zadvydas. Defendants boldly propose that “detentions of up to six months are constitutionally valid under Zadvydas” regardless of their purpose. Defs. Br. at 34. Under Defendants’ reasoning, the Executive could lock up, with complete impunity, any non-citizen who has been ordered removed for as long as six months based on arbitrary, capricious, and invidiously discriminatory reasons. But Zadvydas does not grant the
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executive carte blanche to hold every non-citizen who has accepted voluntary departure for any fixed period of time, much less for a full six months. The six month period was crafted as a rebuttable presumption, to deal with non-citizens who cannot be deported because no country will accept them and who thus face the prospect of indefinite detention, not for non-citizens who Defendants chose not to deport because of investigative, non-immigration purposes.
Defendants have cited only one case to support their contention that Plaintiff’s post-voluntary departure detention without any legitimate immigration purpose fails to state a due process claim. See Turkmen v. Ashcroft, No. 02-CV-2307, 2006 U.S. Dist. LEXIS 39170 (E.D.N.Y. June 14, 2006), appeal docketed, No. 06-3745-cv (2d Cir. Aug. 10, 2006). However, in Turkmen, the court’s entire analysis depends on whether the post-removal order detention of the Turkmen plaintiffs was “otherwise authorized,” despite the fact that they had been criminally investigated without probable cause. Id. at *127. In Turkmen, the plaintiffs conceded that their detention was otherwise authorized by the post-removal period detention statute, 8 U.S.C. 1231(a)(6), because they had violated immigration laws and remained in the United States out of status. Id. at *127-28. In this case, Plaintiff does not concede that his detention was otherwise authorized, as he was at all times legally present in the United States prior to his arrest. Compl. ¶ 37; El Badrawi Decl. ¶¶ 1, 3, 7, 11-12. In fact, as Plaintiff contends, both his initial arrest and detention, as well as his post-voluntary departure detention, violated his clearly established Fourth and Fifth Amendment rights.
Moreover, the Turkmen court’s worry that permitting the plaintiffs’ claim would “flood the courts with habeas petitions brought by aliens seeking to be removed as soon as they deemed it practicable . . . [and] significantly encroach on the executive branch in a realm where it has particular expertise” is overblown. Id. at *123. First, while it might sometimes be difficult to determine whether detention is being maintained for lawful immigration purposes, this cannot warrant giving immigration authorities a blank check to detain arbitrarily. Determining whether removal was deliberately delayed for improper purposes is the kind of factual inquiry that courts regularly pursue.
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As shown in Section III.B.1 above, courts applying the Fourth Amendment routinely examine the purpose of searches and seizures where they are ostensibly conducted for administrative purposes, without probable cause. Second, the Turkmen court’s concern is entirely speculative. Because immigration authorities in the ordinary course would have no incentive to delay removal, cases of continued detention with no obstacle to removal are likely to be exceedingly rare, and therefore will not flood the courts. While there have been hundreds of post-Zadvydas cases, besides Turkmen, counsel have located none in which a plaintiff complained that immigration authorities sought to defer removal in order to detain, as they did here. That stands to reason; every consideration of cost and efficiency will, in the ordinary course of immigration enforcement, push in the direction of carrying out removal as expeditiously as possible. And while improper delay might be alleged in a case where it had not occurred, the mere possibility of a mistaken claim cannot be invoked to reject every such claim out of hand.
The Supreme Court’s outcome in Zadvydas was driven by the Due Process Clause’s demand that immigration detention serve a legitimate immigration purpose and that, once immigration proceedings have ended and removal has been ordered, this purpose is limited to the effectuation of removal. See Zadvydas, 533 U.S. at 689.37 In the case of Plaintiff El Badrawi, who was prepared to leave the United States but was prevented from doing so by Defendants, post-voluntary departure detention served no legitimate immigration purpose and was, under the analysis set out in Zadvydas, entirely unreasonable.
37 Federal government officials have supported this reading of Zadvydas. The preamble to immigration regulations issued by then-Attorney General Ashcroft shortly after September 11, 2001 declares that Zadvydas “generally permits the detention of aliens who have been admitted to the United States and who are under a final order of removal, only for a period reasonably necessary to bring about their removal from the United States.” 66 Fed. Reg. 56967, 56967-69 (Nov. 14, 2001) (emphasis added).
The INS General Counsel’s Office reached precisely this conclusion in a memorandum addressing the detention of the special interest detainees dated January 28, 2002 (“INS Memorandum”). The INS Memorandum emphasized that “removal could not be delayed for the exclusive purpose of allowing the FBI to conduct an investigation to see if the person is a terrorist.” Ex. 13 at 101 (Office of the Inspector General (“OIG”) Report). As the INS General Counsel explained to the OIG, “the INS had no authority to continue holding [a] detainee if removal could otherwise be effectuated,” because such a delay would not be “related to removal.” Ex. 13 at 92.
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b) Plaintiff’s claim also rests on the clearly established procedural due process requirement that detainees must be given notice of the basis for detention and a hearing to contest the detention. Additionally, Defendants violated Plaintiff’s clearly established procedural due process rights by failing to provide him with notice of the reasons why he was detained after his immigration proceedings had ended, much less a fair opportunity to contest his detention. Defendants do not— and cannot—argue that Plaintiff’s procedural due process claim challenging the length of his detention should be dismissed. For more than a century the central meaning of procedural due process has been clear: “Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.” It is equally fundamental that the right to notice and an opportunity to be heard “must be granted at a meaningful time and in a meaningful manner.” Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (quoting Baldwin v. Hale, 68 U.S. 223, 233 (1864)). An application of the balancing test for evaluating procedural due process claims that the Supreme Court laid out in Mathews v. Eldridge, 424 U.S. 319, 334 (1976), compels the conclusion that Plaintiff was entitled to notice and an opportunity for a hearing. The “interest in being free from physical detention by one’s own government” is “the most elemental of liberty interests.” Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004). Plaintiff was held by ICE for forty-two days after his immigration proceedings had been adjudicated. Without knowing why he was being detained or how he might obtain his release, Plaintiff was left to languish in prison until Defendants completed their investigation pursuant to Operation Frontline II. Defendants cannot identify any interest in depriving Plaintiff of his fundamental right to liberty where, as alleged here, there was no basis to suspect Plaintiff of national security concerns. See Compl. ¶ 96 (describing the fruitless line of national-security related questions raised at Plaintiff’s hearing); El Badrawi Decl. ¶¶ 19-20. A generic interest in national security cannot justify detaining persons who do not pose a security threat. To the extent that Defendants assert that Mr. El
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Badrawi raised legitimate national security concerns, this raises a material dispute of fact that cannot be resolved on a motion for summary judgment prior to discovery.
Finally, the cost to the government of providing Plaintiff with notice and a hearing would have been negligible. ICE already had in place regulations providing for written notice and a formal administrative hearing in the case of non-citizens whose departure is blocked by the government because it has been “deemed prejudicial to the interests of the United States.” See 8 C.F.R. §§ 215.3.5. Yet Defendants never invoked these processes in the case of Plaintiff El Badrawi. Defendants can hardly claim that providing Plaintiff with existing regulatory protections would constitute an impermissible “fiscal or administrative burden,” much less one that would justify dispensing with process altogether.
2. Plaintiff’s Prolonged Detention Without Legitimate Immigration Purpose or Probable Cause Violated His Fourth Amendment Right To Be Free From Unreasonable Searches and Seizures. Whether stated as a Fourth Amendment or a Due Process principle,38 Defendants’ continued detention of Plaintiff long after his immigration proceedings were resolved violated his clearly established constitutional rights. The Fourth Amendment prohibits law enforcement authorities both from arresting individuals on mere suspicion that they have engaged in criminal activity and from continuing to detain individuals merely on suspicion of criminal activity: To continue [the defendants’] custody without presentment [before a judicial officer] for the purpose of trying to connect them with other crimes [than the ones for which they were lawfully arrested] is to hold in custody for investigation only, and that is illegal; its operative effect is essentially the same as a new arrest and, if not supported by probable cause, it is an illegal detention.
38 Because Plaintiff has pleaded the essential facts underlying this violation, the Court is free to find a violation under either the Fourth or Fifth Amendments. “A complaint should not be dismissed [under Rule 12(b)(6)] merely because a plaintiff’s allegations do not support the particular legal theory he advances, for the court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible theory.” Bowers v. Hardwick, 478 U.S. 186, 201 (1986), overruled on other grounds, Lawrence v. Texas, 539 U.S. 558 (2003); see also 5A C. Wright and A. Miller, Federal Practice and Procedure § 1357, at 336-37 (2d ed. 1990).
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Adams v. United States, 399 F.2d 574, 577 (D.C. Cir. 1968); see also United States v. Perez, 733 F.2d 1026, 1036 (2d Cir. 1984) (“The AUSA’s and DEA agents’ desire to investigate other crimes is not a legitimate excuse for their failure to respect [defendant’s] right to a prompt arraignment.”).39 Not only did Defendants have no grounds to arrest and detain Plaintiff initially, they also had no probable cause to continue detaining him long after he could have been removed from this country.
While Plaintiff alleges that his initial arrest violated his clearly established Fourth Amendment rights,40 even if it were lawful, Defendants would still have violated his Fourth Amendment rights by continuing to detain him for forty-two days without any legitimate immigration purpose, after he had accepted voluntary departure. Defendants claim that “because his arrest was lawful, [Mr. El Badrawi] may not recover any damages related to his detention [under the Fourth Amendment].” Defs. Br. at 30. But the very case Defendants rely on flatly refutes this proposition. In Gerstein v. Pugh the Supreme Court held that the Fourth Amendment requires a prompt judicial determination of probable cause as a condition of any prolonged pretrial detention, recognizing that “[t]he consequences of [such] detention may be more serious than the interference occasioned by arrest. Pretrial confinement may imperil the suspect’s job, interrupt his source of income, and impair his family relationships.”41 420 U.S. 103, 114 (1975); see also County of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991) (“[P]rolonged detention based on incorrect or
39 See also Ricks v. United States, 334 F.2d 964, 968 (D.C. Cir. 1964) (“the delay of a preliminary hearing [cannot] be justified on the ground that police activity for that period was required to investigate other unsolved crimes for which there was no probable cause to arrest the accused”); Sanders v. City of Houston, 543 F. Supp. 694, 701 (S.D. Tex. 1982) (same). 40 See Section III.B.1, supra. 41 While Defendants may argue that Mr. El Badrawi’s immigration hearings satisfies Gerstein’s Fourth Amendment requirements, as mentioned earlier, see supra pp. 52-53, the hearings are not relevant to Mr. El Badrawi’s postvoluntary departure detention claims. These claims do not rest on Mr. El Badrawi’s alleged immigration violation, but on Defendants’ investigation pursuant to Operation Frontline II without any legitimate immigration purpose, which blocked Mr. El Badrawi’s removal in clear contradiction to the Immigration Judge’s order. Moreover, because Mr. El Badrawi never had a bond hearing, Judge Straus never denied him bond, and his continued detention was solely due to Defendants’ unconstitutional actions. See El Badrawi Decl. ¶ 28.
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unfounded suspicion may unjustly imperil [a] suspect’s job, interrupt his source of income, and impair his family relationships.”) (internal quotations omitted). Moreover, Second Circuit law extends Fourth Amendment protections well beyond the moment of arrest. See Lauro v. Charles, 219 F.3d 202, 212 (2d Cir. 2000) (Fourth Amendment shields a lawfully arrested individual from “police conduct that unreasonably aggravates the intrusion on privacy properly occasioned by the initial seizure”); Powell v. Gardner, 891 F.2d 1039, 1044 (2d Cir. 1989) (“Fourth Amendment standard probably should be applied at least to the period prior to [charge, while] . . . in the custody (sole or joint) of the arresting officer.”); Valencia v. Wiggins, 981 F.2d 1440, 1444 (5th Cir. 1993) (noting that the Second Circuit is among a “number of circuits [that] . . . endorsed the extension of the Fourth Amendment” beyond arrest and charge).42
From at least the point in time at which there was no longer any legitimate immigration purpose for Mr. El Badrawi’s detention, i.e., when detention was no longer necessary to effect his removal, any further detention of Plaintiff was illegal without probable cause and a prompt hearing. County of Riverside, 500 U.S. at 56-57. Plaintiff has adequately alleged that Defendants Manack and Loser’s post-voluntary departure detention in order to investigate him for national security concerns pursuant to Operation Frontline violated a clearly established constitutional right—the right to be free from investigatory detention without probable cause.
42 The other case Defendants rely on involves whether the Fourth Amendment reached conditions of confinement claims, rather than a fundamental challenge to detention. In Bell v. Wolfish, the legality of ongoing detention was undisputed, “as [Plaintiffs] had each had “‘a judicial determination of probable cause as a prerequisite to [the] extended restraint of [their] liberty.’” 441, U.S. 520, 536 (1979) (quoting Gerstein, 420 U.S. at 114). Bell does not suggest, let alone hold, that individuals ever lack Fourth Amendment rights to be free from prolonged detentions based on mere suspicion.
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CONCLUSION For the reasons stated above, Defendants’ Motion to Dismiss or for Summary Judgment should be denied.
PLAINTIFF RASHAD AHMAD REFAAT EL BADRAWI BY: _/s/__Michael Wishnie________________ Michael Wishnie, Esq., Federal Bar. No. ct27221 Hope Metcalf, Esq., Federal Bar No. ct27184 Ramzi Kassem, Esq., Federal Bar No. ct27537 Sameer Ahmed, Law Student Intern Sarah Burg, Law Student Intern Kathryn Hunt, Law Student Intern Daniel J. Freeman, JD, Admission Pending ALLARD K. LOWENSTEIN INTERNATIONAL HUMAN RIGHTS CLINIC NATIONAL LITIGATION PROJECT 127 Wall Street New Haven, Connecticut 06510 Phone: (203) 432-9122 Counsel for Plaintiff
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CERTIFICATION I herby certify that on December 29, 2007, a copy of the foregoing memorandum in opposition to the Defendants Manack and Loser’s motion to dismiss or for summary judgment was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system.
BY: _/s/__Michael Wishnie________________ Michael Wishnie, Esq., Federal Bar. No. ct27221 Hope Metcalf, Esq., Federal Bar No. ct27184 Ramzi Kassem, Esq., Federal Bar No. ct27537 Sameer Ahmed, Law Student Intern Sarah Burg, Law Student Intern Kathryn Hunt, Law Student Intern Daniel J. Freeman, JD, Admission Pending ALLARD K. LOWENSTEIN INTERNATIONAL HUMAN RIGHTS CLINIC NATIONAL LITIGATION PROJECT 127 Wall Street New Haven, Connecticut 06510 Phone: (203) 432-9122
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 Case 3:07-cv-01074-JCH Document 348-1 Filed 08/30/10 Page 1 of 50

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

RASHAD AHMAD REFAAT EL BADRAWI, Plaintiff,
v. DEPARTMENT OF HOMELAND SECURITY, ET AL.,
Defendants.

) ) ) ) ) ) Case No. 3:07-cv-01074-JCH ) ) ) ) ) )

MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT BY THE UNITED STATES OF AMERICA

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Table of Contents INTRODUCTION......................................................................................................................... 1 STATEMENT ............................................................................................................................... 4
A. Procedural History.............................................................................................................4 B. Factual Background...........................................................................................................5
1. Operation Frontline and the Government’s Efforts to Prevent Another Terrorist Attack after September 11th ............................................................................................. 5 2. Plaintiff’s Entry into the United States and the State Department’s Revocation of His Visa on National Security Grounds ........................................................................... 7 3. Plaintiff’s Unsuccessful Attempt to Extend His Authorized Time in the Country .. 8 4. Plaintiff’s Arrest for Overstaying His Authorized Time in the Country ................. 9 5. Plaintiff’s Immigration Removal Proceedings and Departure from the Country 12 ARGUMENT............................................................................................................................... 15 I. El Badrawi Cannot Establish a Claim for False Arrest Because He Relies on a Flawed Legal Theory Previously Rejected in His Immigration Proceedings .............................. 15 A. Temporary Employment Authorization Does Not Insulate Aliens from Arrest for Overstaying Their Authorized Time in the Country .......................................................17 B. A Timely Filed Application for An Extension Does Not Insulate Aliens from Arrest for Overstaying Their Authorized Time in the Country..................................................23 C. Plaintiff is Collaterally Estopped From Challenging the Same Issues Adjudicated During His Immigration Proceedings..............................................................................25 II. Plaintiff Cannot Establish a Claim for Abuse of Process Because His 42-Day Detention Fell Within the Timeframe Reasonably Needed to Effectuate His Departure............... 26 A. The Standard Removal Process Involves Detailed Logistics and Considered Deliberations Among Federal and Foreign Officials ......................................................28 B. Determining Whether an Alien is a Threat to the United States or Its Interests is a Legitimate Immigration Purpose .....................................................................................31 C. Plaintiff Cannot Meet His Burden of Proving an Abuse of the Standard Removal Process .............................................................................................................................34 CONCLUSION ........................................................................................................................... 40
United States’ Memorandum in Support of Summary Judgment
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Table of Authorities Cases Ali v. Mukasey, 529 F.3d 478 (2d Cir. 2008) ................................................................................ 25 American-Arab Anti-Discrimination Comm. v. Massachusetts Bay Transp. Auth., No. 04-11652-
GAO, 2004 WL 1682859 (D. Mass. July 28, 2004) ................................................................... 6 Auer v. Robbins, 519 U.S. 452 (1997) .................................................................................... 18, 20 Bernard v. United States, 25 F.3d 98 (2d Cir. 1994) .................................................................... 16 Bowles v. Seminole Rock Co., 325 U.S. 410 (1945) ..................................................................... 18 Chevron USA Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984) ........................................ 20 Cook v. Sheldon, 41 F.3d 73 (2d Cir. 1994) ................................................................................. 27 Doctor's Assocs. v. Weible, 92 F.3d 108 (2d Cir. 1996) ............................................................... 28 El Badrawi v. Department of Homeland Security, 579 F.Supp.2d 249 (D. Conn. 2008)...... passim Gardebring v. Jenkins, 485 U.S. 415 (1988) ................................................................................ 23 Harisiades v. Shaughnessy, 342 U.S. 580 (1952)......................................................................... 28 Heck v. Humphrey, 512 U.S. 477 (1994) ...................................................................................... 27 Illinois v. Gates, 462 U.S. 213 (1983) .......................................................................................... 15 INS v. Abudu, 485 U.S. 94 (1988)................................................................................................. 19 INS v. Aguirre-Aguirre, 526 U.S. 415 (1999)............................................................................... 19 Knebel v. Hein, 429 U.S. 288 (1977) ...................................................................................... 18, 23 LaMagna v. United States, 646 F.2d 775 (2d Cir. 1981).............................................................. 26 Landin-Zavala v. Gonzales, 488 F.3d 1150 (9th Cir. 2007) ......................................................... 26 Linares Huarcaya v. Mukasey, 550 F.3d 224 (2d Cir. 2008) ....................................................... 20 Lodges 743 & 1746, Int'l Ass'n of Machinists v. United Aircraft Corp., 534 F.2d 422 (2d Cir.
1975) ......................................................................................................................................... 27 Lok v. INS, 681 F.2d 110 (2d Cir. 1982)....................................................................................... 21 Mathews v. Diaz, 426 U.S. 67 (1976) ........................................................................................... 28
United States’ Memorandum in Support of Summary Judgment
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Matter of M.A.S., 24 I. & N. Dec. 766 (B.I.A. 2009) ................................................................... 35 Matter of Rotimi, 24 I. & N. Dec. 567 (B.I.A. 2008).................................................... 3, 20, 21, 23 Matter of Teberen, 15 I. & N. Dec. 689 (B.I.A. 1976) ........................................................... 23, 24 McGann v. Allen, 134 A. 810 (Conn. 1926) ................................................................................. 35 Mozzochi v. Beck, 529 A.2d 171 (1987) ................................................................................. 27, 31 New York v. Lyng, 829 F.2d 346 (2d Cir. 1987) ........................................................................... 18 Rajah v. Mukasey, 544 F.3d 427 (2d Cir. 2008) ................................................................. 5, 24, 36 Rotimi v. Holder, 577 F.3d 133 (2d Cir. 2009)................................................................... 3, 20, 23 Sadegh-Nobari v. INS, 676 F.2d 1348 (10th Cir. 1982) ............................................................... 23 Shehata v. Ashcroft, No. 02-cv 2490, 2002 WL 538845 (S.D.N.Y. April 11, 2002) ................... 32 Soler v. G. & U., Inc., 833 F.2d 1104 (2d Cir. 1987) ................................................................... 23 State v. Vincent, 640 A.2d 94 (Conn. 1994) ................................................................................. 15 Thapa v. Gonzales, 460 F.3d 323 (2d Cir. 2006).......................................................................... 32 Turkman v. Ashcroft, 589 F.3d 542 (2d Cir. 2009)....................................................... 3, 33, 34, 39 Turkmen v. Ashcroft, 589 F.3d 542 (2d Cir. 2009) ................................................................ passim United States v. Alcan Aluminum Corp., 990 F.2d 711 (2d Cir. 1993) ........................................ 25 United States v. Bazargan, 992 F.2d 844 (8th Cir.1993).............................................................. 21 United States v. Davis, 458 F.2d 819 (D.C. Cir. 1972) ................................................................ 15 United States v. Flores, 404 F.3d 320 (5th Cir. 2005)............................................................ 21, 22 United States v. Larionoff, 431 U.S. 864 (1977) .................................................................... 18, 19 United States v. Podell, 572 F.2d 31 (2d Cir.1978) ...................................................................... 26 Walczyk v. Rio, 496 F.3d 139 (2d Cir. 2007) .......................................................................... 15, 16 Wang v. Ashcroft, 320 F.3d 130 (2d Cir. 2003) ...................................................................... 33, 39 Wellington v. INS, 710 F.2d 1357 (8th Cir. 1983) ........................................................................ 23 Zadvydas v. Davis, 533 U.S. 678 (2001) ................................................................................ 33, 38
United States’ Memorandum in Support of Summary Judgment
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Zerrei v. Gonzales, 471 F.3d 342 (2d Cir. 2006) .......................................................................... 24 Statutes 28 U.S.C.§ 1396(b)(2) .................................................................................................................... 4 8 U.S.C. § 1227(a)(1)(B) .............................................................................................................. 11 8 U.S.C. § 1229c(a)................................................................................................................. 13, 26 8 U.S.C. § 1229c(e)....................................................................................................................... 13 8 U.S.C. § 1231(a)(7)(A) .............................................................................................................. 22 8 U.S.C. § 1254a ..................................................................................................................... 19, 22 Regulations 8 C.F.R. § 103.2(8) ......................................................................................................................... 9 8 C.F.R. § 1240.26 .................................................................................................................. 13, 26 8 C.F.R. § 214.2(h)(15)(i) ............................................................................................................... 8 8 C.F.R. § 215.2 ............................................................................................................................ 32 8 C.F.R. § 215.3(b) ....................................................................................................................... 32 8 C.F.R. § 240.25 .......................................................................................................................... 13 8 C.F.R. § 244.10 .................................................................................................................... 19, 22 8 C.F.R. § 274a.12 .............................................................................................................. 8, 17, 18 8 C.F.R. § 274a.12(b)(20) ......................................................................................................... 8, 17
United States’ Memorandum in Support of Summary Judgment
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Referenced Exhibits
Deposition Transcripts and Declarations 1. William Anastasi, attorney who represented Plaintiff in immigration removal proceedings 2. Rashad El Badrawi, Plaintiff* 3. Michael Carney, government 30(b)(6) witness on Operation Frontline and the ICE
Headquarters investigation of Plaintiff** 4. Matthew Etre, government 30(b)(6) witness on the ICE Boston field office investigation
of Plaintiff 5. Lisa Hoechst, government witness on ICE policies and procedures regarding removals to
Lebanon 6. Kumar Kibble, director of ICE Office of Investigations 7. Alexander Khu, government 30(b)(6) witness on policies and procedures regarding the
ICE Cyber Crime Center** 8. Michael Loser, ICE Senior Special Agent who arrested Plaintiff** 9. Gregory Manack, ICE Resident Agent in Charge who issued an arrest warrant for
Plaintiff** 10. John Marley, ICE trial attorney who represented the government in Plaintiff’s immigration
removal proceedings 11. Nadine Mersereau, ICE Supervisory Immigration Enforcement Agent who oversaw
Plaintiff’s removal 12. Shannon Pallant, government 30(b)(6) witness on the ICE Cyber Crime Center’s
investigation of Plaintiff** 13. Christopher Rollins, government 30(b)(6) witness on policies and procedures regarding
Third Agency Checks**
* Plaintiff designated his deposition transcript as confidential under the Court’s protective order and the attached excerpts are filed under seal. ** These exhibits contain confidential or highly confidential law enforcement information and are filed under seal.
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Discovery Responses 14. Plaintiff’s Response to United States’ First Request for Admissions 15. United States’ Response to Plaintiff’s Sixth Set of Interrogatories** Government Documents Provided to Plaintiff in Discovery or in FOIA Proceedings 16. Defense Intelligence Agency assessment on possible domestic al-Qaida attack 17. Memorandum from DHS Secretary Tom Ridge Regarding Interagency Security Planning
Guidelines (US01118)** 18. Interagency Security Plan (US01137)** 19. Memorandum regarding reporting requirements for Operation Frontline (US00239)** 20. Memorandum regarding Operation Frontline guidance (US00776)** 21. Memorandum from Marcy Forman announcing Operation Front Line II (US00466)** 22. Memorandum to DHS Secretary Ridge regarding Operating Frontline II (US00245)** 23. ICE Statement on terrorist threat and disruption efforts (US00215) 24. ICE Standard Operating Procedures for National Security Visa Revocation Investigations
(US00293)** 25. ICE Significant Incident Report regarding Plaintiff’s visa revocation (US00063)** 26. ICE Headquarters Report Requesting an Investigation into Plaintiff under Operation
Frontline II (US00464)** 27. Boston ICE field office Report of Investigation of Plaintiff (US00165)** 28. Printouts from the National Crime Information Center database (US00178)** 29. Record of Investigation by ICE Agent Michael Loser recommending that Plaintiff be
arrested and charged with overstaying his authorized time in the country (Loser Dep. Ex. 6)** 30. Warrant for Arrest of Plaintiff (C0041) 31. Notice to Appear listing charges against Plaintiff (C00038)
** These exhibits contain confidential or highly confidential law enforcement information and are filed under seal.
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32. Notice of Rights served on Plaintiff after his arrest (C00042) 33. Notice of Custody Determination for Plaintiff (C00040) 34. Report of Investigation by ICE Agent Michael Loser detailing the investigation, arrest and
interview of Plaintiff (US0040)** 35. ICE Headquarters Report of Plaintiff’s investigation and arrest (I00349) 36. ICE National Security Threat Protection Unit Response to U.S. Citizenship and
Immigration Services Regarding Plaintiff’s Petition for an Extension (US00053) 37. ICE Cyber Crime Center Report of Investigation #1 on Plaintiff (US00448)** 38. ICE Cyber Crime Center Report of Investigation #2 on Plaintiff (US00096)** 39. Request for bond filed by Plaintiff in Immigration Court (C00035) 40. Transcript of Plaintiff’s Immigration Removal Proceedings, Nov. 3, 2004 41. Transcript of Plaintiff’s Immigration Removal Proceedings, Nov. 10, 2004 42. Order of the Immigration Judge finding Plaintiff removable and granting him voluntary
departure (C00019) 43. E-Mail correspondence between government attorneys regarding Plaintiff’s removal
proceedings (US00456)** 44. Notice of Voluntary Departure for Plaintiff (C00018) 45. Flight itinerary for Plaintiff’s departure from the United States (C00055) 46. December 6, 2004 cable sent overseas regarding Plaintiff’s departure (US00126) 47. December 7, 2004 cable sent overseas regarding Plaintiff’s departure (US00128) 48. Third Agency Check Policies and Procedures (US0030)** 49. ICE 2004 Removal Guidelines (US00006)** 50. Memorandum Regarding New Requirements for Removals to Lebanon (US00028)**
** These exhibits contain confidential or highly confidential law enforcement information and are filed under seal.
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Documents Provided by Plaintiff or Other Parties During Discovery 51. E-mail correspondence between Plaintiff and his employer regarding his petition for an
extension (US00495) 52. E-mail correspondence between Plaintiff and a congressional office regarding his petition
for an extension (RB000122)* 53. E-mail correspondence between Plaintiff and the United States embassy regarding his
petition for an extension (RB000100)* 54. E-mail correspondence from Plaintiff’s employer regarding Plaintiff’s removal to Lebanon
(US00565) Miscellaneous 55. Excerpts from: 9-11 AND TERRORIST TRAVEL, Staff Report of the National Commission on
Terrorist Attacks in the United States (2004)
* Plaintiff designated these documents as confidential under the Court’s protective order and requested they be filed under seal.
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INTRODUCTION

As starkly noted by the 9-11 Commission, more aggressive enforcement of immigration

laws might have prevented the worst terrorist attack on American soil. Some of the September

11th hijackers overstayed their authorized time in our country, for example, but none was

arrested for this seemingly mundane immigration violation. Determined to address this

vulnerability, and in direct response to the recommendations of the 9-11 Commission, the

government created a special division at U.S. Immigration and Customs Enforcement (“ICE”)

dedicated to identifying foreign nationals who have violated the terms of their admission to the

United States. Every week, this division receives automated reports of aliens who have

potentially overstayed their time in the country and then prioritizes cases for investigation.

In 2004, one of these overstay reports contained the name of Plaintiff Rashad El Badrawi,

a Lebanese national admitted to the United States on a temporary work visa but who did not

depart the country by the time his period of admission expired. A routine records check then

revealed that the State Department had revoked Plaintiff’s visa on national security grounds

Plaintiff thus

epitomized the ideal target for post-September 11th immigration investigations: he may have

overstayed his authorized time in the country, and he presented a possible threat to the national

security of the United States. Accordingly, ICE designated Plaintiff’s case as a Priority

investigation

which led to Plaintiff’s arrest and detention. An immigration

judge found Plaintiff to be removable for overstaying his authorized time in the country and

granted Plaintiff’s request to voluntarily depart the country.

Plaintiff now seeks damages from the United States for false arrest and abuse of process

under the Federal Tort Claims Act. Plaintiff argues that, contrary to the finding of the

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immigration judge, he was legally entitled to overstay his period of admission in the United States because he filed for an extension, which provided him with additional temporary work authorization. Plaintiff also contends that he was arbitrarily detained for forty-two days after the immigration judge granted him voluntary departure, which he alleges was an abuse of process. According to Plaintiff, the government’s actions arose from Operation Frontline, which Plaintiff characterizes as a secret government initiative that indiscriminately arrested and detained Muslims and Arabs. Although these allegations may have been sufficient to withstand a motion to dismiss, they cannot defeat this motion for summary judgment, in which the evidence now controls. The evidence, gathered through Plaintiff’s extensive discovery, shows that Plaintiff’s race, religion, and ethnicity played no role in the decision to investigate, arrest, or detain him.
The undisputed facts show that Operation Frontline was not created to target any ethnic or religious group, but to respond to a very real threat. In March 2004, just days before the general elections in Spain, terrorists bombed commuter trains in Madrid, killing over 200 people in what was widely viewed as an attempt to influence the elections there. More alarmingly, thenclassified information indicated that al-Qaida may have been preparing a similar attack in the United States prior to the then-upcoming presidential election. In response, the Department of Homeland Security coordinated a government-wide counterterrorism initiative, which included Operation Frontline and nearly 600 other programs. Operation Frontline provided additional resources and higher priorities to ICE’s existing efforts to identify immigration status violators, but it had no impact on standard policies and procedures relating to the arrest and detention of aliens.
As to Plaintiff’s claim that he was detained longer than necessary, the government has now presented incontrovertible evidence that a 42-day detention pending departure to Lebanon is
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well within the timeframe reasonably needed to effect such departures, which require careful coordination with other federal officials, foreign governments, and commercial airlines. In fact, the Second Circuit recently rejected nearly identical factual allegations by an alien who was detained almost four months after being granted voluntary departure. See Turkman v. Ashcroft, 589 F.3d 542 (2d Cir. 2009). Likewise, new case law also supports the government’s position that an alien’s work authorization provides no safe harbor from arrest for being illegally present in the country. See Matter of Rotimi, 24 I. & N. Dec. 567, 578 (B.I.A. 2008) (“work authorization is not equivalent to a lawful status; nor is it necessarily reflective of a right to lawfully be or remain in this country”), upheld by Rotimi v. Holder, 577 F.3d 133, 140 (2d Cir. 2009).
In sum, after extensive discovery in which Plaintiff was granted access to virtually every government record he requested, there is no factual or legal support to show that any federal employee did anything wrong in his case. To the contrary, discovery has shown that the system worked exactly as it was designed. Indeed, the 9-11 Commission specifically highlighted the need to stop terrorists who abuse the system by filing to extend their authorized time country:
In many cases, the act of filing for an immigration benefit sufficed to permit the alien to remain in the country until the petition was adjudicated. Terrorists were free to conduct surveillance, coordinate operations, obtain and receive funding, go to school and learn English, make contacts in the United States, acquire necessary materials, and execute an attack. 9-11 AND TERRORIST TRAVEL, Staff Report of the National Commission on Terrorist Attacks in the United States (2004), at 98, attached as Ex. 55. Although the government’s heightened enforcement efforts may have led to harsh results for Plaintiff, who unquestionably made a goodfaith effort to extend his lawful status, that does not entitle him to damages. The Federal Tort Claims Act predicates liability not on harm to a plaintiff, but on wrongdoing by an individual
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government employee. Here, all federal employees involved with Plaintiff’s case followed policies and procedures duly implemented after the September 11th terrorist attacks. Therefore, for the reasons set forth below, this Court should grant summary judgment in favor of the United States.
STATEMENT A. Procedural History Plaintiff’s original and amended complaints seek damages for alleged violations of his civil rights regarding his arrest and detention by ICE officers in late 2004. See Docket Nos. 1, 83, 95. Specifically, he sought damages against two ICE officers in their individual capacities for alleged violations of his Fourth and Fifth Amendment rights, and he also sought damages against the United States under the Federal Tort Claims Act (“FTCA”) for false arrest, malicious prosecution, intentional infliction of emotional distress, and abuse of process. See 28 U.S.C.§ 1396(b)(2); 2671-2680 (2006). In addition, Plaintiff sought expungement of all records relating to his arrest and of all references to him in various government national security databases. The United States and the individual defendants filed motions to dismiss, challenging both the jurisdiction of the Court and the merits of Plaintiff’s claims. See Docket Nos. 22, 25. The Court dismissed most of Plaintiff’s claims against the federal defendants. See El Badrawi v. Dep’t of Homeland Sec., 579 F.Supp.2d 249 (D. Conn. 2008). It dismissed all claims against the individual ICE defendants, finding that the Immigration and Nationality Act, combined with the national security aspects of the case, are special factors that precluded a Bivens remedy. Id. at 262-64. The Court also dismissed several claims against the United States for lack of jurisdiction, including the ones for malicious prosecution and expungement. Id. at 265, 279-80. Nonetheless, the Court held that Plaintiff’s claim for false arrest could proceed because he alleged that he was arrested for overstaying his authorized time in the country despite
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having valid temporary employment authorization. Id. at 275-77. Likewise, the Court allowed Plaintiff to proceed on his claim for abuse of process to the extent he alleged that he was arbitrarily detained for forty-two days after his immigration proceedings concluded. Id. at 27778. These two claims, for false arrest and abuse of process, are the only remaining ones against the United States.1
B. Factual Background 1. Operation Frontline and the Government’s Efforts to Prevent Another Terrorist Attack after September 11th
It is widely recognized that “[t]he terrorist attacks on September 11, 2001 were facilitated by the lax enforcement of immigration laws.” Rajah v. Mukasey, 544 F.3d 427, 438 (2d Cir. 2008) (citing NAT’L COMM’N ON TERRORIST ATTACKS UPON THE U.S., 9-11 Commission Report 384 (2004)). In response, Congress overhauled our nation’s immigration system, creating a new immigration enforcement agency, ICE. An important part of ICE’s mission is to uphold public safety and protect the United States from terrorist attacks by investigating and interdicting the people, money, and materials that support terrorist and criminal activity. See Ex. 6 ¶ 1. In 2003, ICE created an investigative component at its headquarters, the Compliance Enforcement Unit, dedicated to identifying aliens who may have violated the terms of their admission to the United States. See id. ¶ 3; see also Ex. 3 at 30 (explaining that the Compliance Enforcement Unit was created in response to the recommendation of the 9-11 Commission that there be consequences to immigration violations).
The Compliance Enforcement Unit was one of many government components that heightened its counterterrorism efforts in the spring of 2004, after terrorists bombed commuter
1 Plaintiff’s claim for intentional infliction of emotional distress was dismissed with prejudice during discovery. See Docket No. 225.
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trains in Madrid, Spain, killing over 200 people just days before the country’s general elections. See American-Arab Anti-Discrimination Comm. v. Massachusetts Bay Transp. Auth., No. 0411652-GAO, 2004 WL 1682859, *2 (D. Mass. July 28, 2004) (observing that “[i]t is at least plausible, if not likely, that the attack in Madrid was timed to maximize its disruptive effect on the Spanish elections, pointing up the attractiveness to terrorists of timing a terrorist event to have an impact on the democratic process”). Moreover, according to then-classified intelligence, al-Qaida may have been planning a similar attack in our country prior to the presidential election that November. See Ex. 16. In response, President George W. Bush convened his Homeland Security Council, and he directed the Department of Homeland Security to coordinate the development and implementation of a government-wide security plan to cover the upcoming period of increased risk. See Ex. 17. This process led to the issuance of a comprehensive interagency security plan designed “to prevent, protect against, prepare for, respond to, and recover from terrorist attacks.” Ex. 18 at US01143.
Among the nearly 600 initiatives in the Interagency Security Plan was Operation Frontline. See Ex. 18 at US01144, 1169. Operation Frontline was conceived and implemented by ICE’s Compliance Enforcement Unit in May 2004 to respond to the increased threat. See Ex. 21 at US00466-67; Ex. 3 at 12-13. The goal of Operation Frontline was to detect, prevent, and disrupt terrorist activities by following the 9-11 Commission’s recommendation to ensure routine consequences for immigration violations. See Ex. 21 at US00466-67; see also Ex. 22. Although Operation Frontline encompassed several different law enforcement initiatives at ICE, the only one that affected Plaintiff was Operation Frontline II, which was implemented in October 2004. See Ex. 3 at 20-21; 24-25. Operation Frontline II targeted only potential immigration status violators, prioritizing investigations based in part on information regarding known and suspected
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terrorists. See Ex. 21 at US 467. This was the same work that the Compliance Enforcement Unit was already doing as part of its usual duties, and Operation Frontline II provided a surge of resources to ensure that high-priority investigations were completed before the presidential election, when the risk of a terrorist attack was at its highest. See Ex. 3 at 25-27.
Consistent with standard practice at the Compliance Enforcement Unit, investigations under Operation Frontline II were assigned to and conducted by field offices, and those field offices decided whether to arrest and detain aliens for violating immigration laws. See Ex. 3 at 110-11, 125-26. Before any case could be assigned for investigation, reasonable suspicion must exist that an alien violated his or her immigration status. See Ex. 19 at US00241. An alien’s race, religion, or ethnicity played no role in Operation Frontline or Operation Frontline II. See Ex. 23 at US00215; Ex. 3 at 63, 83. ICE Headquarters instructed field offices that Operation Frontline “in no way impacts current ICE detention policy and procedures” and that “[i]ndividuals arrested pursuant to an Operation Front Line lead are to be afforded the same due process with respects [sic] to bond determination as any other arrestee.” Ex. 20 at US00777; see also Ex. 3 at 126 (“there was no change in detention policy under Operation Frontline”); Ex. 23 at US00215.
2. Plaintiff’s Entry into the United States and the State Department’s Revocation of His Visa on National Security Grounds
In 2003, Plaintiff applied for and was granted an H1-B visa to travel to the United States for temporary employment as a research associate at the University of Connecticut. Ex. 14 ¶¶ 56. Plaintiff arrived in the United States on June 1, 2003, and he was given authorization to remain in the country until May 1, 2004. See id. ¶ 8. That October, the State Department administratively revoked his visa on national security grounds, effective upon his departure from the United States. See id. ¶¶ 11-12, 14; 8 U.S.C. § 1201(i) (allowing an authorized officer of the State Department to revoke visas “at any time, in his discretion”). The visa revocation did not
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affect Plaintiff’s legal authorization to remain in the country until his period of admission expired on May 1, 2004, but if he left the country at any time before then, he would not be allowed to reenter without applying for, and being granted, a new visa. See Ex. 14 ¶¶ 11-12, 14; 22 C.F.R. § 41.112(a).
Pursuant to standard policies and procedures, any time the State Department revokes a visa on national security grounds, ICE opens an investigation. See Ex. 24 at US00294. According to guidance provided to ICE agents, “the mere fact that an alien has had his/her visa revoked by the Department of State is not in and of itself grounds for removal” and agents should thus “be on the lookout for other immigration violations.” Ex. 19 at US00240. In March 2004, ICE initiated an investigation into Plaintiff based on his visa revocation, and two ICE agents interviewed Plaintiff at his place of employment. See Ex. 25; Ex. 3 at 145; Ex. 8 at 151. After speaking to Plaintiff and verifying his employment documents, the ICE agents determined that he was lawfully maintaining his immigration status and closed the investigation. See id.
3. Plaintiff’s Unsuccessful Attempt to Extend His Authorized Time in the Country
Soon after the ICE agents interviewed him in March 2004, Plaintiff and his employer filed a timely application to extend his lawful status in the United States beyond the impending May 1st expiration. See Ex. 14 ¶ 16, 18. Such extension requests are adjudicated by officials at U.S. Citizenship and Immigration Services and entail two separate determinations: first, whether to extend the employer’s work petition under the H1-B program, allowing the alien to continue working in the country; and second, whether to extend the alien’s authorized nonimmigrant status, i.e., allowing the alien to continue residing in the country. See 8 C.F.R. § 214.2(h)(15)(i). A timely-filed application automatically extends the work authorization of an alien for up to 240 additional days after the alien’s status expires. See 8 C.F.R. § 274a.12(b)(20). In Plaintiff’s case,
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the government neither approved nor denied his request for an extension. See Ex. 14 at ¶¶ 17-18. The law allows government officials to withhold action on applications for extensions when the petitioner is under investigation and notification would prejudice the investigation. See 8 C.F.R. § 103.2(8).
Plaintiff remained in the United States after his period of admission expired on May 1, 2004, apparently because his employer and counsel told him that his pending application entitled him to do so. See Ex. 2 at 325; Ex. 14 ¶¶ 8, 10. In addition, both Plaintiff and his employer repeatedly followed up with government officials to inquire about the status of his request for an extension. See Ex. 51. At one
Ex. 52.* In addition,
Ex. 53.* 4. Plaintiff’s Arrest for Overstaying His Authorized Time in the Country When Plaintiff did not exit the country after his initial period of admission expired on May 1, 2004, an automatic alert was generated by the National Security Entry-Exit Registration System (“NSEERS”), an immigration database put in place after September 11, 2001. See Ex. 3 at 138-39, 261-62. The alert regarding Plaintiff’s apparent overstay was received at ICE’s Compliance Enforcement Unit, which had approximately 150,000 other cases involving potential immigration status violators. See Ex. 21 at US00467; Ex. 3 at 52, 138. Operation Frontline II * Plaintiff designated these documents as confidential under the Court’s protective order and requested that all references to them be redacted from this brief and filed under seal.
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used specific criteria to prioritize these cases, and Plaintiff’s case was
See Ex. 21 at US00466467; Ex. 3 at 30-34, 68-70, 141-42, 146-47, 203, 208-209, 261.
At ICE Headquarters, a special agent and his supervisor reviewed the information pertaining to Plaintiff and determined that his case presented a viable lead. See Ex. 3 at 147-48, 150-52. Both the special agent and his supervisor were aware that Plaintiff had filed a request for an extension, and they requested that the Boston field office initiate an investigation into whether Plaintiff overstayed his authorized time in the country. See id. at 150; Ex. 26 at US00159-160. The Boston field office conducted a preliminary investigation and then referred the case to its Hartford sub-office for further investigation. See Ex. 4 at 20-21, 100. In their report to the Hartford office, the Boston case agent and supervisor advised that Plaintiff may be subject to removal, and they again noted that Plaintiff had a pending application for an extension. See Ex. 27.
At the Hartford ICE office, Senior Special Agent Michael Loser investigated the case. Ex. 8 at 94-95. Agent Loser learned that Plaintiff had filed an application for an extension, and Agent Loser personally contacted the government service center that was responsible for adjudicating that application and confirmed that the application had not been adjudicated. See id. at 161-165. Agent Loser then determined that Plaintiff illegally overstayed his authorized time in the country, as Plaintiff had been admitted for a temporary period not to exceed May 1, 2004 but remained in the country after that date without having been granted an extension. See id. at 9495; 163 (“The filing of the [extension request] had no bearing on his legal status in the United States”), and 165 (“I’m well aware of the fact based on training and experience that employment
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authorization is not the equivalent of legal status in the United States”). Agent Loser then wrote up a report summarizing his investigation, recommending the issuance of an arrest warrant and formal charging documents. See id. at 153; see also Ex. 29.
Agent Loser’s supervisor, Resident Agent in Charge Gregory Manack, reviewed all available information and likewise determined that probable cause existed to arrest Plaintiff for overstaying his authorized time in the country. See Ex. 9 at 169-70, 176-77, 179 (explaining that a pending application for an extension has no effect on the probable cause determination of whether an alien overstayed his authorized time in the country), 182 (stating that employment authorization is a “completely different” concept from overstaying one’s authorized time in the country). See also Ex. 10 at 61-62. Accordingly, Agent Manack signed a warrant authorizing Plaintiff’s arrest, and he also signed a Notice to Appear charging Plaintiff as removable based on his overstay, thereby initiating removal proceedings. See Ex. 9 at 137-38, 176-177; Ex. 30; Ex. 31.
On October 29, 2004, Agent Loser and another law enforcement officer waited for Plaintiff outside of his apartment building and arrested him when he came outside to go to work that morning. See Ex. 8 at 95, Ex. 2 at 100-105, 326-329, Ex. 34; Ex. 35. Agent Manack determined that Plaintiff should be held without bond primarily because Plaintiff’s visa was revoked on national security grounds, which made him a possible threat to the community. See Ex. 9 at 196-200; Ex. 33. Plaintiff was then transferred to the custody of ICE’s Office of Detention and Removal Operations, which moved him to the Hartford Correctional Center. See Ex. 8 at 210; Ex. 14 ¶ 31. Neither Agent Manack nor Agent Loser had any further involvement with Plaintiff’s detention and removal, though as a matter of practice, their investigative file was
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not closed until after Plaintiff departed the country. See Ex. 9 at 203, 226, 241, 295; Ex. 8 at 97, 221-22, 273.
After Plaintiff’s arrest, ICE Headquarters contacted U.S. Citizenship and Immigration Services and requested that a hold be placed on Plaintiff’s pending extension request because he “is the target of a current national security investigation.” Ex. 36; see also Ex. 3 at 180-81. In addition, the Compliance Enforcement Unit at ICE Headquarters requested that ICE’s Cyber Crime Center research e-mail addresses that Plaintiff used. See Ex. 3 at 162; Ex. 12 at 11-15. The Cyber Crime Center had been supporting Operation Frontline by conducting technical research regarding names and e-mail addresses obtained during field investigations. See Ex. 12 at 15. In Plaintiff’s case, the Cyber Crime Center conducted research on Plaintiff and sent administrative subpoenas to his Internet e-mail providers for his subscriber information. See id. at 30, 71; Ex. 37. This research continued during and after Plaintiff’s immigration proceedings, but it had it no effect on Plaintiff’s detention or removal from the United States. See Ex.7 at 43, 58, 102, 104-06 (“C3 [the Cyber Crime Center] has no influence over arrest, release, detention, length of detention”); Ex. 12 at 86-88.
5. Plaintiff’s Immigration Removal Proceedings and Departure from the Country
On November 3, 2004, Plaintiff appeared in immigration court, represented by attorney William Anastasi, who had been practicing immigration law for over twenty years. Ex. 14 ¶ 34; Ex. 1 at 8; Ex. 40 at 5. Attorney Anastasi moved to terminate the proceedings, arguing that Plaintiff’s arrest and detention were inappropriate under 8 C.F.R. 274a, the regulation that provided Plaintiff with temporary work authorization. See Ex. 14 ¶ 38. The immigration judge, however, did not dismiss the charges, noting that just because someone has work authorization does not necessarily mean that the person has lawful status: “That reg deals with employment
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obligations. . . . I’m more interested in his nonimmigrant status. That’s what I’m more interested in.” Ex. 40 at 11. The immigration judge then continued the hearing for one week, at which time further arguments would be heard on this issue. See Ex. 14 ¶ 40. The immigration judge also declined to release Plaintiff on bond, ordering that his detention continue. See id. ¶ 42; Ex. 39; Ex. 1 at 18.
At the next immigration hearing, Plaintiff decided not to challenge the charge against him and instead requested voluntary departure. See Ex. 14 ¶¶ 45-49. Voluntary departure is a benefit allowing certain aliens who have violated immigration law to leave the country at their own expense, in lieu of removal proceedings. See 8 U.S.C. § 1229c(a); 8 C.F.R. § 1240.26. The primary benefit of voluntary departure is that aliens are not subject to the otherwise standard bar on reentry to the country that applies to aliens found removable. See id. § 1182(a)(9)(A)(i); Ex. 14 ¶ 50. For an alien to be granted voluntary departure prior to the completion of removal hearings, the alien must concede removability and agree to waive appeal of all issues. 8 C.F.R. § 1240.26(b)(1)(i). In addition, ICE may attach “any conditions it deems necessary” to an order of voluntary departure to ensure that the alien actually leaves the country, including “continued detention pending departure.” 8 C.F.R. § 240.25; See also 8 U.S.C. § 1229c(e); 8 C.F.R. § 1240.26(b)(3). In this case, the Immigration Judge found that Plaintiff was removable for overstaying his authorized time in the county, and the Judge granted Plaintiff voluntary departure under safeguards. Ex. 14 ¶¶ 51-52. Voluntary departure “under safeguards” meant that Plaintiff’s detention would continue until ICE escorted him out of the country. Ex. 1 at 40, 44; Ex, 10 at 6972; Ex. 11 at 34.
Before any detained alien may leave the country, the United States must provide advance notice to the recipient country, which then must grant permission for the alien to be removed
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there. See Ex. 5 ¶¶ 4, 13. The country notification and clearance process applies to all detained aliens in ICE custody, including those granted voluntary departure under safeguards. Id. ¶ 8. Lebanese officials, for example, checked each and every individual that ICE removed to Lebanon to ensure the individual was who he or she claimed to be and had the right of abode in Lebanon. Id. ¶ 12. This vetting occurred regardless of whether the individual held a current Lebanese passport, as even that was no guarantee that the alien would be allowed to return there. If such permission was not issued prior to an alien’s scheduled removal, the alien’s travel plans had to be cancelled and the removal would be rescheduled for a later date. Id. Logistically, at least eleven steps had to be completed before an alien such as Plaintiff could be released to Lebanon. Id. ¶ 13.
In Plaintiff’s case, the Immigration Judge’s order noted that if Lebanon did not advise the United States within three months that it would accept Plaintiff, Plaintiff would be removed to Egypt instead. See Ex. 42. Thus, although the immigration judge ordered that Plaintiff depart the country within 30 days, the judge’s order recognized that Plaintiff might not be able to actually depart the country that quickly. See id; Ex. 41. In the end, Plaintiff departed the country for Lebanon on December 22, 2004, forty-two days after he was granted voluntary departure. See Ex. 14 ¶¶ 56-57. The government lacks records to document each and every step taken to effect Plaintiff’s departure, but supervisory ICE officials in both Hartford and at Headquarters have testified that his 42-day detention was well within the timeframe reasonably needed to effect such departures. See Ex. 5 ¶ 13; Ex. 11 at 21-22. Likewise, Plaintiff’s immigration attorney testified that based on his experience, removals usually take between twenty and forty days. Ex. 1 at 55-56. Plaintiff’s immigration attorney also testified that he had no reason to believe that anyone at ICE intentionally delayed his client’s departure from the country. See id.
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ARGUMENT I. El Badrawi Cannot Establish a Claim for False Arrest Because He Relies on a
Flawed Legal Theory Previously Rejected in His Immigration Proceedings Under the FTCA, Plaintiff can recover damages against the United States for false arrest only if the officers who arrested him lacked probable cause to do so under state law. “The existence of probable cause to arrest constitutes justification and is a complete defense to an action for false arrest.” Walczyk v. Rio, 496 F.3d 139, 152 n.14 (2d Cir. 2007). To determine whether probable cause existed for an arrest, the Supreme Court has adopted a highly flexible “totality of the circumstances” analysis. Illinois v. Gates, 462 U.S. 213, 214 (1983). “[F]ederal and Connecticut law are identical in holding that probable cause to arrest exists when police officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient” to reasonably indicate that someone has committed a crime. Walczyk, 496 F.3d at 156 (quotations and citation omitted). Probable cause does not require certainty that someone violated the law, only a “fair probability.” State v. Vincent, 640 A.2d 94, 99 (Conn. 1994) (“it is axiomatic that ‘[a] significantly lower quanta of proof is required to establish probable cause than guilt’”) (quoting United States v. Davis, 458 F.2d 819, 821 (D.C. Cir. 1972)). The last time the Court considered Plaintiff’s false arrest claim, it relied only on “the facts as set out in El Badrawi’s Complaint, drawing all factual inferences in his favor.” 579 F. Supp. 2d at 264. Now, on summary judgment, Plaintiff cannot rely merely on his complaint’s allegations but must come forward with evidence showing a genuine issue for trial. See Fed. R. Civ. P. 56(e)(2). Probably the most important piece of evidence (not mentioned in the complaint) is that an immigration judge knew that Plaintiff had valid work authorization and still issued an order finding that Plaintiff was removable for overstaying his authorized time in the country. Ex. 14 ¶¶ 38, 51; Ex. 40 at 5-6; Ex. 42; Ex. 31. This ruling alone shows that probable cause existed
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to arrest Plaintiff. As the Second Circuit stated in another immigration tort case, “IJs’ findings of removability . . . constitute a good deal more than probable cause.” Turkmen v. Ashcroft, 589 F.3d 542, 549 (2d Cir. 2009).
Plaintiff appears to contend that the immigration judge wrongly discounted the regulation that provided Plaintiff with temporary work authorization at the time of his arrest. But even if the immigration judge erred, Plaintiff still does not prevail in this case. The test for liability in a false arrest action is not whether a plaintiff did in fact violate the law, but only whether the arresting officers had probable cause to believe so. “[P]robable cause can exist even where it is based on mistaken information, so long as the arresting officer acted reasonably and in good faith in relying on that information.” Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994). “While probable cause requires more than a mere suspicion of wrongdoing, its focus is on probabilities, not hard certainties. In assessing probabilities, a judicial officer must look to the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Walczyk, 496 F.3d at 156 (quotations and citations omitted) (applying Connecticut law).
In this case, Plaintiff was arrested not based on a mere suspicion of wrongdoing, but on undisputed evidence that: (1) he was admitted to the United States for a temporary period not to exceed May 1, 2004; (2) he remained in the country beyond that date; and (3) the government had not granted his request for an extension. See Ex. 14 ¶¶ 8, 10, 17. These facts show that it was at least probable that Plaintiff violated the law. Whether a regulation providing temporary work authorization also provides a safe harbor from removal is a question of law to be resolved by lawyers and judges in court, not by immigration agents in the field. In any event, as detailed below, the law is well settled that an alien’s work authorization does not provide legal
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justification to remain in the country after one’s period of admission expires. Moreover, because Plaintiff’s removability was previously adjudicated in his immigration proceedings, the doctrine of collateral estoppel precludes Plaintiff from re-litigating the issue here.
A. Temporary Employment Authorization Does Not Insulate Aliens from Arrest for Overstaying Their Authorized Time in the Country
Plaintiff’s entire case for false arrest rests on his interpretation of a regulation that provided him with temporary employment authorization, 8 C.F.R. § 274a.12. This regulation, titled “Classes of aliens authorized to accept employment,” lists over 50 categories of aliens authorized to accept employment in the United States. 8 C.F.R. § 274a.12. One of these categories includes aliens like Plaintiff, whose lawful status has expired but who filed a timely application for an extension. See 8 C.F.R. § 274a.12(b)(20). These aliens are authorized to continue their employment for up to 240 days after their status expires. See id. The regulation is silent, however, on whether this temporary employment authorization precludes the government from arresting these aliens for being out of status while the 240-day period is in effect. Thus, the first step to resolving Plaintiff’s claim for false arrest is to determine the proper construction of the regulation, which reads as follows:
§ 274a.12 Classes of aliens authorized to accept employment …
(b) Aliens authorized for employment with a specific employer incident to status. . . .
(20) A nonimmigrant alien . . . whose status has expired but who has filed a timely application for an extension of such stay pursuant to §§ 214.2 or 214.6 of this chapter. These aliens are authorized to continue employment with the same employer for a period not to exceed 240 days beginning on the date of the expiration of the authorized period of stay. Such authorization shall be subject to any conditions and limitations noted on the initial authorization. However, if the district director or service center director adjudicates the application prior to the expiration of this 240 day period and denies the application for extension of stay, the employment authorization under this paragraph shall automatically terminate upon notification of the denial decision.
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8 C.F.R. § 274a.12(b)(20).2 When disputes arise over the interpretation of an agency regulation, the Supreme Court
has instructed courts to defer to the agency’s interpretation: “In construing administrative regulations, ‘the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.’” United States v. Larionoff, 431 U.S. 864, 872 (1977) (quoting Bowles v. Seminole Rock Co., 325 U.S. 410, 414, (1945)). In Larionoff, for example, the Supreme Court confronted regulations that contained several ambiguities, but the Court did not analyze the various possible interpretations of those regulations to determine the most reasonable construction. Id. Rather, because there was no dispute on how the government interpreted the regulation, the Supreme Court concluded that it “need not tarry . . . over the various ambiguous terms and complex interrelations of the regulations” and should instead defer to the agency. Id. See also Auer v. Robbins, 519 U.S. 452, 463 (1997) (“A rule requiring the Secretary to construe his own regulations narrowly would make little sense, since he is free to write the regulations as broadly as he wishes, subject only to the limits imposed by the statute”).
The Second Circuit has likewise held that when resolving disputes over the interpretation of regulations, “‘courts should defer to the informed experience and judgment of the agency to whom Congress delegated appropriate authority.’” New York v. Lyng, 829 F.2d 346, 350 (2d Cir. 1987) (quoting Knebel v. Hein, 429 U.S. 288, 294 n.14 (1977). “[J]udicial deference to the
2 8 C.F.R. § 274a.12 was first promulgated in 1987 to implement employer sanctions contained in the Immigration Reform and Control Act of 1986, Pub. L. 99-603. See Control of Employment of Aliens, 52 Fed. Reg. 16216 (May 1, 1987). In the original version of the regulation, an alien’s employment authorization was automatically extended for up to 120 days after the alien’s status expired. See id. at 16220; see also 8 C.F.R. § 274a.12(b)(15) (1988 version). In 1991, the regulation was amended to extend the 120-day period to the current 240day period. See Control of Employment of Aliens, 56 Fed. Reg. 41767, 41781 (Aug. 23, 1991).
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Executive Branch is especially appropriate in the immigration context where officials ‘exercise especially sensitive political functions that implicate questions of foreign relations.’” INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (quoting INS v. Abudu, 485 U.S. 94, 110 (1988)). Cf. El Badrawi, 579 F.Supp.2d at 263 (dismissing Bivens claims in this case because “imposing liability on Manack and Loser [the arresting officers] would be to second-guess their judgment on how best to respond to a perceived national security threat”).
Of course, this deference has its limits. An agency may not interpret a regulation in a manner inconsistent with its plain language. See Larionoff, 431 U.S. at 872-73. Here, however, the plain language of the regulation discusses only employment authorization; there is no explicit provision that protects aliens from arrest or removal. By contrast, other immigration regulations do explicitly prohibit the government from removing aliens who timely file certain applications for immigration relief. For example, when aliens file applications for temporary protective status, not only do they receive automatic temporary employment authorization, but the government “shall not remove the alien from the United States” while such applications are pending. 8 U.S.C. § 1254a; see also 8 C.F.R. § 244.10. Plaintiff, however, did not apply for temporary protective status, and no similar law explicitly precluded the government from removing him in this case.
Although there can be no doubt that the plain language of the regulation did not explicitly prohibit the government from initiating removal proceedings against Plaintiff, that conclusion does not address the Court’s previous concern about the regulation’s implicit meaning. Specifically, the Court asked how someone can be allowed to legally work in the country without having the concomitant right to remain physically present here. The answer to this question can be found in a recent decision by the Board of Immigration Appeals, which explained that “work
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authorization is not equivalent to a lawful status; nor is it necessarily reflective of a right to lawfully be or remain in this country.” Matter of Rotimi, 24 I. & N. Dec. 567, 578 (B.I.A. 2008), upheld by Rotimi v. Holder, 577 F.3d 133, 140 (2d Cir. 2009).
The alien in Rotimi, like Plaintiff, was admitted for a temporary period. He also timely filed an application for relief but was placed in removal proceedings despite having temporary work authorization. See 577 F.3d at 134; 24 I. & N. Dec. at 578. The alien conceded that he was removable, but contended that he was eligible for special immigration relief available to aliens who had “lawfully resided continuously” in the United States. 577 F.3d at 134-35. The government disagreed, arguing that the alien failed to maintain continuous lawful residence because he overstayed his initial period of admission. The alien countered that his residence was lawful because he timely filed applications for relief and had valid work authorization. 24 I. & N. Dec. at 578. The Board of Immigration Appeals ruled in favor of the government, finding that the alien’s lawful status ended when his initial period of admission expired, regardless of whether the alien had timely filed for relief and regardless of whether the alien had work authorization. 24 I. & N. Dec. at 578. The Second Circuit upheld this decision, noting that that although it might have interpreted the law differently and reached the opposite conclusion, it was required to defer to the Board’s decision because it was reasonable. Rotimi, 577 F.3d at 139 (citing Chevron USA Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984)).3
3 Because the legal dispute in Rotimi centered on an ambiguous statutory provision, the Second Circuit applied the Chevron doctrine, which requires that an agency’s interpretation be reasonable before it will be accepted by the courts. By contrast, when the only dispute is one of regulatory interpretation—as is currently the case—an even more deferential standard applies. See Auer, 519 U.S. at 463 (1997). See also Linares Huarcaya v. Mukasey, 550 F.3d 224, 229 (2d Cir. 2008) (noting the more substantial deference given to agencies under Auer than Chevron).
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Central to the Board’s reasoning in Rotimi was that “[t]he lawfulness of an alien’s residence stems from the grant of a specific privilege to stay in this country, not the mere fact that he or she is an applicant for such a privilege.” 24 I. & N. Dec. at 574. In the present case, the government never granted Plaintiff’s application for an extension of his status. Although a regulation did allow Plaintiff to work in the country while that application was pending, “[a]n alien who is merely provided employment authorization, and who is allowed to remain here while awaiting a ruling on his applications for relief, is not in the same position as an alien who has been granted a valid immigration status or some other specific authorization to be here . . .” Id. at 578. As the Board explained, “there is a distinction to be drawn between permitting an alien’s presence in this country for a limited purpose and legalizing his or her stay.” Id. at 575. See also Lok v. INS, 681 F.2d 110 (2d Cir. 1982) (noting that the government’s decision not to immediately remove an overstay was done “as a matter of grace, not as a matter of law”). Accordingly, in Plaintiff’s case, although the regulation may have permitted him to work in the country while his application was pending, that did not legalize his status as an overstay, and he was thus removable at any time after his period of admission expired.
Other circuits have similarly recognized the distinction between immigration status and work authorization, holding that aliens can be illegally in the country even if they have valid employment authorization. See, e.g., United States v. Bazargan, 992 F.2d 844 (8th Cir.1993); United States v. Flores, 404 F.3d 320 (5th Cir. 2005). In Bazargan, the Eighth Circuit upheld a decision that an alien was illegally in the United States even though the alien filed a timely, nonfrivolous application for asylum, which by regulation provided the alien with work authorization. 992 F.2d at 848-849. In so ruling, the Eighth Circuit stated that “[b]ecause the INS does not interpret the employment authorization to have any effect on the alien’s status with respect to
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anything other than his ability to engage in employment during the pendency of his case, we agree with the district court and the Immigration Judge that the employment authorization did not have the effect of converting Bazargan back into a legal alien.” Id. at 849.
Similarly, in Flores, the Fifth Circuit ruled that an alien was unlawfully in the United States even though the alien had properly filed an application for relief and received temporary work authorization. 404 F.3d at 327. The Fifth Circuit reached this conclusion notwithstanding a federal law that mandated that the government “shall not remove the alien from the United States” while such applications were pending. 8 U.S.C. § 1254a; see also 8 C.F.R. § 244.10. The court explained that “it does not follow that an alien who has been granted limited temporary authorization (i.e., a temporary stay of removal and a temporary work permit) is in the country legally for all purposes . . . .” 404 F.3d at 327. To the contrary, “an alien may be temporarily granted a stay of removal and be permitted to work during that stay, but still be considered ‘illegally or unlawfully in the United States.’” Id. See also 8 U.S.C. § 1231(a)(7)(A) (providing work authorization to certain illegal aliens ordered removed).
As the above cases demonstrate, both DHS and the judiciary have long recognized that authorization to work in the country does not confer legal status upon aliens. The arresting officers followed this administrative interpretation when they arrested Plaintiff, and the Immigration Judge accepted this interpretation when he ruled that Plaintiff was removable. See Ex 8 at 94-95; 163, 165, 237-38; Ex. 9 at 169-70, 177, 179, 182; Ex. 10 at 40, 61-62, 66; Ex. 42. Thus, the government’s interpretation of the regulation in this case should be accepted by the Court, and this is so regardless of whether Plaintiff’s interpretation “is a much more reasonable one.” El Badrawi, 579 F. Supp. 2d at 264. As the Second Circuit has explained, a court may not substitute another interpretation of a regulation even if “[it] concludes that its alternative
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construction … is ‘more equitable’ or ‘more reasonable.’” Soler v. G. & U., Inc., 833 F.2d 1104, 1108 (2d Cir. 1987) (quoting Knebel v. Hein, 429 U.S 288, 294 (1977)). Indeed, the Supreme Court has mandated that an agency’s interpretation of a regulation be accepted by the courts even when such an interpretation produces “harsh” or “Kafkaesque” results. Gardebring v. Jenkins, 485 U.S. 415, 430-31 (1988). Therefore, as a matter of law, Plaintiff cannot rely on his interpretation of the regulation to establish the lack of probable cause necessary to his claim for false arrest.
B. A Timely Filed Application for An Extension Does Not Insulate Aliens from Arrest for Overstaying Their Authorized Time in the Country
To the extent that Plaintiff contends that his pending application for an extension was alone sufficient to preclude his arrest for overstaying his authorized time in the country, his claim also must fail. For more than thirty years, the administrative interpretation has been that a timelyfiled, pending application for extension of nonimmigrant stay does not prevent an order of removal against an alien whose period of stay has actually expired. See, e.g., Matter of Teberen, 15 I. & N. Dec. 689, 690 (B.I.A. 1976) (“We reject counsel’s contention that the respondent cannot be an ‘overstay’ until he receives a formal denial of an extension”). This principle is also reflected in the Board’s more recent holding that a grant of employment authorization to an alien in an unlawful status, while some other application is pending, does not make the alien’s presence in the United States lawful. See Matter of Rotimi, 24 I. & N. Dec. at 578. The courts have repeatedly affirmed this administrative interpretation. See Rotimi v. Holder, 577 F.3d at 140; Sadegh-Nobari v. INS, 676 F.2d 1348 (10th Cir. 1982) (finding an alien removable as an overstay even though the alien filed an application to remain in the country to receive urgent medical care); Wellington v. INS, 710 F.2d 1357, 1359 (8th Cir. 1983) (“Only the grant of an extension of stay can prevent an overstay from being deportable”).
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The Second Circuit follows the same test for removability that was established in Teberen: “to prove that an alien is subject to removal for overstaying his visa, DHS need only show that the alien was admitted as a nonimmigrant for a temporary period, that the period has elapsed, and that the nonimmigrant has not departed.” Rajah, 544 F.3d at 440 (quoting Zerrei v. Gonzales, 471 F.3d 342, 345 (2d Cir. 2006) (citing Matter of Teberen, 15 I. & N. Dec. at 690)). Here, there is no dispute that Plaintiff was admitted as a nonimmigrant worker for a temporary period not to exceed May 1, 2004, that period elapsed, and Plaintiff had not departed the country. Ex. 14 ¶¶ 8, 10. Accordingly, probable cause existed to arrest him under the Second Circuit’s standard for removal.
In sum, the law and the facts of this case are fully consistent with the government’s position that it can and sometimes will arrest aliens for overstaying their authorized time in the country upon the expiration of their initial period of admission, regardless of whether they have filed an application for an extension and have temporary work authorization. Although the evidence also shows that Plaintiff genuinely tried to keep his immigration status current prior to his arrest, those efforts do not entitle him to damages in this tort action. The FTCA conditions liability for false arrest on wrongdoing by federal law enforcement officers, and here those officers were doing exactly what Congress intended after September 11th—aggressively enforcing immigration laws against aliens who may pose threats to the national security of the United States. Therefore, because Plaintiff cannot meet his burden to show that the arresting officers lacked probable cause to believe he was in the country illegally, he cannot proceed with his claim for false arrest.
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C. Plaintiff is Collaterally Estopped From Challenging the Same Issues Adjudicated During His Immigration Proceedings
Plaintiff is also collaterally estopped from using this lawsuit to challenge his arrest because a court has already ruled that he violated immigration law by overstaying his authorized time in the country. “The ‘fundamental notion’ of the doctrine of collateral estoppel, or issue preclusion, ‘is that an issue of law or fact actually litigated and decided by a court of competent jurisdiction in a prior action may not be relitigated in a subsequent suit between the same parties or their privies.’” Ali v. Mukasey, 529 F.3d 478, 489 (2d Cir. 2008) (quoting United States v. Alcan Aluminum Corp., 990 F.2d 711, 718-19 (2d Cir. 1993)). “This doctrine has long been recognized to apply in immigration proceedings” and requires: (1) the identical issue was raised in a previous proceeding; (2) the issue was actually litigated and decided in the previous proceeding; (3) the party had a full and fair opportunity to litigate the issue; and (4) the resolution of the issue was necessary to support a valid and final judgment on the merits. See id. All four elements are satisfied here.
First, the issue of whether Plaintiff was removable was raised in the previous immigration proceedings. Plaintiff’s immigration attorney raised the exact same argument that is now before this Court: whether the regulation providing work authorization also immunized Plaintiff from arrest. See Ex. 14 ¶¶ 37-39. Second, the issue of Plaintiff’s removability was actually litigated and decided, as the Immigration Judge heard arguments on the issue and ruled that Plaintiff was in fact removable for overstaying his period of admission. See id. ¶¶ 37-39, 51; Ex. 40 at 5-11; Ex. 10 at 62; Ex. 42; Ex. 31. Third, Plaintiff had a full and fair opportunity to challenge the issue, as he has admitted that “in his immigration proceedings, [he] “had a legal right to contest the government’s allegation that he remained in the country illegally” but instead consented to voluntary departure. Ex. 14 ¶¶48-49. Finally, the resolution of Plaintiff’s immigration status was
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necessary to grant him the relief of voluntary departure, which is available only to aliens who concede they have violated immigration law. See 8 U.S.C. § 1229c(a); 8 C.F.R. § 1240.26(b)(1)(i)(C).
The prior ruling that Plaintiff was in the country illegally is no less preclusive because the removal proceedings ended with Plaintiff being granted voluntary departure. An alien’s agreement to accept voluntary departure is “akin to a plea bargain,” Landin-Zavala v. Gonzales, 488 F.3d 1150 (9th Cir. 2007), and “[i]t is well-settled that a criminal conviction, whether by jury verdict or guilty plea, constitutes estoppel in favor of the United States in a subsequent civil proceeding as to those matters determined by the judgment in the criminal case,” United States v. Podell, 572 F.2d 31, 35 (2d Cir.1978). Just like a guilty plea, voluntary departure involves a confession of guilt and a waiver of one’s right to challenge the government’s evidence against him. See 8 C.F.R. § 1240.26(b)(1)(i) (allowing an immigration judge to grant voluntary departure only if the alien concedes removability and waives appeal of all issues). See LaMagna v. United States, 646 F.2d 775, 778 (2d Cir. 1981) (a guilty plea is “an admission of all the elements of a formal criminal charge” and is “as conclusive as a jury verdict”). Therefore, under the doctrine of collateral estoppel, Plaintiff may not challenge the prior ruling that he violated immigration law by overstaying his authorized time in the country, which effectively precludes his false arrest claim. II. Plaintiff Cannot Establish a Claim for Abuse of Process Because His 42-Day
Detention Fell Within the Timeframe Reasonably Needed to Effectuate His Departure Previously, the Court dismissed Plaintiff’s abuse of process claim as to his arrest and initial detention, but found that it did survive the United States’ Motion to Dismiss “insofar as it is based on his post-voluntary-departure detention” because Plaintiff alleged that this period of detention was “without any legitimate immigration purpose.” 579 F.Supp.2d at 278. See also id.
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at 270 n.20 (“El Badrawi’s detention probably would not have been constitutionally problematic if the government had detained him for only a period of time reasonably necessary to effectuate his voluntary departure order”). However, discovery has now demonstrated that there is no evidence that immigration officials used the detention process for illegitimate purposes. To the contrary, the evidence is now incontrovertible that a 42-day detention is well within the timeframe reasonably needed to process aliens for removal.
The “gist” of the tort of “abuse of process is the improper use of process after it is regularly issued.” Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994) (internal quotation marks, citation, and alteration omitted). “The gravamen of th[e] tort is not the wrongfulness of the prosecution, but some extortionate perversion of lawfully initiated process to illegitimate ends.” Heck v. Humphrey, 512 U.S. 477, 486 n.5 (1994). “Abuse of process requires more than simply improper motive. There must also be some action taken to utilize the court’s processes for collateral purposes not related to the suit in question.” Lodges 743 & 1746, In’l Ass’n of Machinists v. United Aircraft Corp., 534 F.2d 422, 465 (2d Cir. 1975) (applying Connecticut law). As the Connecticut Supreme Court has explained:
An action for abuse of process lies against any person using “a legal process against another in an improper manner or to accomplish a purpose for which it was not designed.” Because the tort arises out of the accomplishment of a result that could not be achieved by the proper and successful use of process, the Restatement Second (1977) of Torts, § 682, emphasizes that the gravamen of the action for abuse of process is the use of “a legal process ... against another primarily to accomplish a purpose for which it is not designed. ...” (Emphasis added.) Comment b to § 682 explains that the addition of “primarily” is meant to exclude liability “when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant.” Mozzochi v. Beck, 204 Conn. 490, 529 A.2d 171, 173 (1987) (internal citations omitted).
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Examples of abuse of process typically include: “(i) using the pleadings as leverage to coerce the payment of a debt or surrendering of property unrelated to the litigation (ii) using unreasonable force, excessive attachment or extortionate methods to enforce a right of action; or (iii) using the process to gain a collateral advantage extraneous to the merits, e.g., improper use of a subpoena.” Doctor’s Assocs. v. Weible, 92 F.3d 108, 114 (2d Cir. 1996) (internal citations omitted) (applying Connecticut law). In this case, there is no allegation or evidence that anyone used excessive force on Plaintiff or that anyone tried to extort anything from him. To the contrary, the evidence shows that ICE officials did exactly what they were supposed to do in carrying out the standard removal process. Under these circumstances, Plaintiff cannot meet his burden to show an abuse of process in this case.
A. The Standard Removal Process Involves Detailed Logistics and Considered Deliberations Among Federal and Foreign Officials
The immigration policy of the United States is inextricably intertwined with complex and important issues of foreign policy and national security. See Harisiades v. Shaughnessy, 342 U.S. 580, 588-589 (1952) (“It is pertinent to observe that any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government.”) As this Court previously recognized, “the executive’s decision regarding when and how to send a foreign national to a foreign country plainly implicates our country’s relationship with both the alien’s home country and any potential foreign destination.” El Badrawi, 579 F.Supp.2d 249 at 263. See also Mathews v. Diaz, 426 U.S. 67, 81 (1976) (noting that decisions related to immigration “may implicate our relations with foreign powers”).
Not only does the removal process implicate foreign relations, but domestic security as well, as the United States maintains a strong interest in ensuring that it does not release an alien
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who has committed or intends to commit harm to our country. Accordingly, following the 9-11 attacks, ICE established a new process called a Third Agency Check to ensure that aliens with terrorist ties were not unknowingly removed to foreign countries. See Ex. 48; Ex. 13 at 124-125. For aliens subject to this process, ICE Headquarters conducts a search of classified intelligence to determine if there is any information of national security significance concerning the alien and whether any other federal agency wanted to take custody of the alien before he or she was removed.4 See Ex. 13 at 13-14, 17, 19-20, 63. In 2004, when an alien was required to undergo a Third Agency Check, ICE policy prohibited the removal of the alien until the process was complete, even if the alien’s immigration proceedings had concluded and the alien was otherwise ready for departure. See Ex. 48 at US00036 (“no alien from a SDC [specially designated country] will be released removed or transferred to another agency without the check being conducted”); Ex. 13 at 19-21, 166-67. This process normally took two weeks, but sometimes longer. See Ex. 13 at 19-21, 166-67; Ex. 11 at 22.
The Third Agency Check was only the first of many steps that were part of the standard process for aliens departing to Lebanon in 2004: second, the ICE field office ensured that the alien had a valid travel document which would be accepted by the Lebanese government; third, the ICE field office made any necessary travel arrangements; fourth, the ICE field office notified ICE Headquarters of the removal and the alien’s travel plans; fifth, ICE Headquarters reviewed the information from the field and, if the information is complete, prepared and sent a cable to the State Department regarding the alien’s removal and travel plans; sixth, the State Department
4 Although a Third Agency Check was required for Plaintiff, ICE was unable to locate records indicating that such a check was done. See Ex. 13 at 99-101. There are a number of potential explanations for a lack of such records ranging from data loss during the implementation of a new computer system to a failure to initiate the check. Id. at 103-05, 111-12, 165-66.
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notified the transit country, usually Italy in 2004, that the alien being removed had a connecting flight in that country (no direct flights to Lebanon existed in 2004); seventh, the United States Embassy in Beirut notified the Lebanese government of the alien’s removal; eighth, the Lebanese government completed an internal inquiry and notified the State Department whether the particular alien was cleared to be removed there; ninth, the State Department notified ICE that the alien had been cleared for removal; tenth, ICE Headquarters and the ICE office in Frankfurt, Germany, coordinated compliance with requirements of transit countries and/or commercial airlines; and eleventh, the ICE field office made arrangements to have one of its officers transport the alien to the nearest airport. See Ex. 5 ¶ 13.
Foreign governments such as Lebanon do not differentiate between a final order of removal and an order granting voluntary departure under safeguards, and the above procedures applied to all detained aliens in ICE custody awaiting removal in 2004. See id. ¶¶ 4, 8. Moreover, although the Lebanese government required a minimum of ten business days notice before they would allow the United States to remove an alien there in 2004, Lebanese officials generally took closer to thirty days to issue the required permission. See id. ¶ 11; Ex. 49 at US00013; Ex. 50. If Lebanon did not grant permission for the United States to remove an alien there, then the alien’s travel plans had to be cancelled or rescheduled. See Ex. 5 ¶ 12.
According to the director of the ICE Headquarters office that coordinated aliens’ removals in 2004, a 42-day period from the time an alien is granted voluntary departure under safeguards to the date of departure was “well within the timeframe reasonably needed to effect such orders.” Id. ¶ 13. See also Ex. 13 at 163-64 (noting that forty days “is pretty low for somebody to be returned to Lebanon”). Likewise, the supervisory agent at the ICE Hartford office who coordinated Plaintiff’s removal also testified that forty-two days was not an unusual
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amount of time in a case involving a Third Agency Check, and that removals in general averaged between one and three months in Hartford. See Ex. 11 at 21-22, 45, 49.
Even Plaintiff’s immigration attorney, Mr. Anastasi, stated that in his over twenty years of immigration practice experience, it normally took twenty to forty days for an alien granted voluntary departure under safeguards to leave the country. See Ex. 1 at 8-9, 55-56. Mr. Anastasi explained that a number of factors outside the control of ICE made it impossible to determine how long it would take to effect a particular removal. See id. at 53-54. In addition, Mr. Anastasi testified that he did not have any reason to believe that anyone from ICE intentionally delayed the departure of his client. See id. at 57-58. Absent a showing that Plaintiff was treated any differently than was to be expected in the standard removal process, he cannot proceed with his claim. See Mozzochi, 529 A.2d at 174 (rejecting a claim for abuse of process involving vexatious litigation because the complaint did not distinguish how the defendants did anything other than to be expected in litigation).
B. Determining Whether an Alien is a Threat to the United States or Its Interests is a Legitimate Immigration Purpose
Even though it is not genuinely disputed that a 42-day detention falls within the timeframe reasonably needed to effect removals to Lebanon in 2004, Plaintiff appears to argue that he may nonetheless proceed with his claim for abuse of process because any national security investigation of him during this period would not constitute a legitimate immigration purpose. But full information about an alien is critical for coordination with the law enforcement and security services in the country of removal before removing the alien. See Ex. 5 ¶ 10. For example, releasing aliens with criminal or terrorist connections into another country without providing adequate warning to the appropriate officials in the receiving country could have
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adverse consequences for the security of that country, which can lead to the souring of diplomatic relationships or other negative impact on foreign policy. See id.
Releasing aliens from the United States with suspected connections to terrorism could also profoundly impact our own national security. See Ex. 13 at 124-25. If enough information is developed concerning an alien, the United States may take a different course of action, such as criminal prosecution. See id. at 17-18, 63-64, 131. Indeed, the law allows the departure of an alien to be blocked when it would be deemed prejudicial to national security interests, such as if the alien has ties to terrorist organizations. See 8 C.F.R. §§ 215.2 and 215.3(b), (c). See also 8 U.S.C. § 1231(b)(2)(C)(iv) (allowing the government to refuse an alien’s request to be removed to a particular country if the removal would be “prejudicial to the United States”).
In part to allow sufficient time for any necessary investigation, Congress has provided ninety days to remove aliens. See 8 U.S.C. 1231 (a)(1)(A) (“Except as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days”). Although Plaintiff was granted voluntary departure, the 90-day law affects aliens in the exact same position as him—those who have been found removable by an immigration judge and must leave the country. Cf. Thapa v. Gonzales, 460 F.3d 323, 333-34 (2d Cir. 2006) (holding that a voluntary departure that contains an alternate order of removal is considered a ‘final order of removal,’ under the Immigration and Nationality Act’s jurisdictional provisions). See also Shehata v. Ashcroft, No. 02-cv 2490, 2002 WL 538845 at *2 (S.D.N.Y. April 11, 2002) (“the 90 day period is quite limited in time, and serves a rational purpose, to allow INS to effect removal of a person already determined to be removable.”)
In a case with similar facts, the plaintiffs, one of whom had been detained nearly four months after being granted voluntary departure, alleged due process violations claiming that the
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government intentionally delayed their removal to investigate their ties to terrorism. See Turkmen v. Ashcroft, No. 02cv2307, 2006 WL 1662663, *39 (E.D.N.Y. June 14, 2006), aff’d, rev’d on other grounds, 589 F.3d 542 (2d Cir. 2009) (per curium). The district court rejected the plaintiffs’ contentions that they should have been removed “as soon as they deemed it practicable (possibly only a matter of weeks after a removal order has issued according to plaintiffs).” Id.
Such claims would significantly encroach on the executive branch in a realm where it has particular expertise, since it would require courts to decide what is necessary to effectuate an alien’s removal and whether the government’s efforts to secure removal have been sufficient. Such extraordinary judicial oversight would be entirely at odds with the Court’s reasoning in Zadvydas, which demonstrated significant deference to the executive in recognizing the presumptively reasonable six-month period. See Zadvydas v. Davis, 533 U.S. 678, 700-01 (2001). Further, the plaintiffs’ claims assume that all that is required for the Attorney General to secure removal is a deportation order and an airplane. This assumption ignores legitimate foreign policy considerations and significant administrative burdens involved in enforcing immigration law in general, and, specifically, those concerns immediately following a terrorist attack perpetrated on the United States by noncitizens, some of whom had violated the terms of their visas at the time of the attack. 2006 WL 1662663 *39. The Second Circuit agreed with the district court that there was “no authority clearly establishing a due process right to immediate or prompt removal (following an order of removal or voluntary departure).” Turkmen v. Ashcroft, 589 F.3d 542, 550 (2d Cir. 2009). The Second Circuit affirmed the dismissal of the aliens’ claims including those of the alien who had been detained for nearly four months after being granted voluntary departure: “Because plaintiffs were thus lawfully detained as aliens subject to orders of removal (or voluntary departure), they could not state a claim for unconstitutionally prolonged detention without pleading facts plausibly showing ‘no significant likelihood of removal in the reasonably foreseeable future.’” Id. quoting Wang v. Ashcroft, 320 F.3d 130, 146 (2d Cir. 2003).
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Although Turkmen involved constitutional torts as opposed to abuse of process, neither the district court nor the Second Circuit found an investigation of potential terrorist connections to be inappropriate after an alien is granted voluntary departure. To the contrary, the courts recognized that a national security-related investigation is a legitimate and established part of the removal process. See 2006 WL 1662663 at *39 and *41; 589 F.3d at 542. It necessarily follows that Plaintiff cannot, as a matter of law, show that a shorter delay, for comparable reasons, was illegitimate so as to amount to an abuse of process.
In any event, the only evidence that Plaintiff was being investigated after he was granted voluntary departure is the research done by ICE’s Cyber Crime Center, which began shortly after Plaintiff’s arrest and concluded on December 3, 2004. See Ex. 12 at 11, 33-34, 65; Ex. 37; Ex. 38. This research was conducted to determine if Plaintiff used the Internet in ways that would violate federal export laws relating to national security. Ex. 12 at 33-34. This research had no effect on length or the timing of Plaintiff’s detention, as the Cyber Crime Center conducted its research independently of the removal proceedings and could continue its work even after aliens had departed the country. See id. at 11, 33-34, 64, 86-89; Ex. 7 at 43, 58, 102, 104-06, 153 (“C3 [the Cyber Crime Center] has no influence over arrest, release, detention, length of detention”); Ex. 11 at 29-30, 49-50. But even if Plaintiff could show that his departure was delayed by this or any other investigation, he cannot succeed on his abuse of process claim because, as explained above, investigation is a critical part of the removal process.
C. Plaintiff Cannot Meet His Burden of Proving an Abuse of the Standard Removal Process
As the Connecticut Supreme Court has explained, “the most frequent form of such abuse [of process by police officers] is by working upon the fears of the person under arrest, for the purpose of extorting money or other property, or of compelling him to sign some paper, to give
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up some claim, or to do some other act, in accordance with the wishes of those who have control of the prosecution.” McGann v. Allen, 134 A. 810 , 814 (Conn. 1926) (allowing a claim for abuse of process to proceed against police officers who allowed a store owner to detain an arrestee who allegedly received stolen goods). By contrast, the evidence in Plaintiff’s case simply does not support the essential inference of collateral purpose necessary to prove his abuse of process claim. Rather, the evidence shows that that Plaintiff’s detention furthered legitimate immigration purposes, followed standard removal procedures, and was authorized by an immigration judge.
Just five days after his arrest, Plaintiff appeared before an Immigration Judge, represented by counsel, and requested bond. See Ex. 39; Ex. 10 at 15, 25, 51, 61; Ex. 1 at 18. The Immigration Judge, however, learned that Plaintiff’s visa had been revoked on national security grounds and declined to release him. See Ex. 10 at 63; Ex. 14 ¶ 42. Moreover, when the Immigration Judge granted Plaintiff voluntary departure, the Judge specified that it was to be “under safeguards,” meaning that plaintiff’s detention would continue until ICE escorted him out of the country. Ex. 14 ¶¶ 45-48; Ex. 41 at 2; Ex. 1 at 40, 44; Ex. 10 at 69-72; Ex. 11 at 34. See also Matter of M.A.S., 24 I. & N. Dec. 766 (B.I.A. 2009) (“the term ‘voluntary departure with safeguards’ is commonly used to characterize the requirement that an alien remain in custody until he or she departs from the United States”). Thus, Plaintiff’s post-voluntary departure detention resulted not from an arbitrary action of a law enforcement officer, but from the considered judgment of an immigration judge.
Although the Immigration Judge stated that Plaintiff was to depart within thirty days of the order, the court also recognized that legal obstacles may prevent the United States from removing him that quickly. See Ex. 42. In fact, the court allowed up to ninety days for ICE to determine whether Plaintiff could be removed to his country of choice, Lebanon, or whether
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Plaintiff would instead be removed to Egypt, which Plaintiff specified in court as his alternate
country. See Ex. 42; Ex. 10 at 107-08; Ex. 41. In addition, the removal process for Plaintiff likely
did not begin until the week after he was granted voluntary departure, as the ICE Counsel’s
Office routinely took between three days and one week to transfer an alien’s file to ICE’s Detention and Removal Office.5 See Ex. 10 at 111-112, Ex. 11 at 48-49. In addition, Veterans
Day fell on November 11th, the day after Plaintiff was granted voluntary departure.
As Judge Gleason indicated in Turkmen, the assumption that all that is required “to
secure removal is a deportation order and an airplane . . . ignores legitimate foreign policy
considerations and significant administrative burdens.” 2006 WL 1662663 *39. Plaintiff was one
of over 200,000 aliens formally removed from the United States in 2004, and ICE’s ability to
remove him and others was limited both by the agency’s internal resources and external
constraints. See Ex. 5 ¶ 13. Cf. Rajah, 544 F.3d at 447 (“The enforcement of immigration laws is
subject to significant resource constraints”). In fact, nearly a dozen steps needed to occur before
Plaintiff could be placed on a flight to Lebanon, including verifying travel documents, making
5 After the Immigration Judge granted Plaintiff voluntary departure under safeguards, ICE trial attorney John Marley contacted an attorney at U.S. Citizenship and Immigration Services to let that attorney know that there was no longer a need to adjudicate the pending request for an extension of Plaintiff’s stay because Plaintiff had been granted voluntary departure and that “once he departs the US (next week)” there will no longer be any visa to extend. Ex. 43. As Attorney Marley subsequently explained, he did not believe Plaintiff would actually depart the country in one week, and he likely meant only to convey that the removal process would begin the following week. See Ex. 10 at 92-95, 98-99, 111-112. In any event, as discussed above, the evidence is clear that a departure within one week would have been impossible because the single step of obtaining clearance from Lebanon alone required at least ten business days. See Ex. 5 ¶ 11. Similarly, the District Court in Turkmen found no cause of action for a plaintiff allegedly held to investigate terrorist activities for almost four months after he received his voluntary departure order, despite allegations that that immigration judge “assured” the plaintiff that he would be allowed to depart the United States “within a matter of days.” 2006 WL 1662663 *15.
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travel reservations, notifying the State Department, coordinating with the commercial airline, and determining whether Lebanon would accept Plaintiff. See Ex. 5 ¶ 13.
Although the government has been unable to locate records to document every step taken to effect Plaintiff’s departure, the government has presented undisputed facts as to what the standard process is, and it may thus be inferred that the process was followed in this case. See Fed. R. Evid. 406 (evidence of the routine practice of an organization is relevant to prove that the conduct of the organization on a particular occasion was in conformity with the routine practice). According to documents that have been located, on November 20, 2004, ten days after being granted voluntary departure under safeguards, the ICE Hartford Detention and Removal Office prepared a standard notice informing Plaintiff that he was required to depart the country under safeguards within thirty days of the Immigration Judge’s order. See Ex. 44. A few days later, on November 23, 2004, Plaintiff’s employer sent an update to his colleagues stating, “FYI, Rashad is still in Hartford. DHS says that he needs different clearances from various agencies before they can send him home including clearance from his home gvt.” Ex. 54.
After the Thanksgiving holiday, on December 6, 2004, ICE’s travel agency issued a flight itinerary for Plaintiff, booking him on a commercial airline flight departing on December 22, 2004, from New York to Beirut through Milan, Italy. See Ex. 45. Also on December 6th, ICE Headquarters sent a cable regarding Plaintiff’s removal to the American Embassy in Beirut, the American Consulate in Milan, and the American Consulate in Frankfurt. See Ex. 46; see also Ex. 5 ¶ 15. Pursuant to ICE policies and procedures, cables like this one are sent to the American Embassy in Beirut because the Regional Security Office there (referred to as “RSO” in the dissemination line) was responsible for notifying the Lebanese government of an alien’s removal. See Ex. 5 ¶ 15. Also pursuant to ICE policies and procedures, cables like this one are
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sent to the American consulate in Milan because the Italian government must also be notified when ICE is removing a Lebanese national through Italy. See id. Finally, pursuant to ICE policies and procedures, cables like this are sent to the American Consulate in Frankfurt because ICE maintains an office there, and that office reviews pending removals to ensure compliance with country and airline requirements. See id.
For unknown reasons, the December 6th cable listed a flight itinerary for Plaintiff that was different than the flight itinerary issued by ICE’s travel agency that same day. See Exs. 45, 46. Instead of departing on December 22nd, as the travel itinerary stated, the cable stated that Plaintiff would be departing on December 13, 2004. The information in the cable may simply have been a mistake, as ICE’s travel agency only has one record of a flight itinerary for Plaintiff, or it is possible that ICE needed additional time to remove Plaintiff, as flights were routinely changed due to a variety of reasons, including officer availability, lack of third agency check clearance, or initial refusal of Lebanon to accept Plaintiff on that date. See Ex. 11 at 27-8. Ex. 5 ¶¶ 6, 7, 9, 12, 16. In any event, the day after ICE issued the cable, ICE issued a second cable cancelling the notice provided in the first one, see Ex. 47, and Plaintiff departed the country on December 22, 2004, when ICE agents escorted him to JFK International Airport, see Ex. 14 ¶¶ 56-57.
Overall, Plaintiff was detained for forty-two days from the time he was granted voluntary departure until the time he departed the country, less than half of the time provided by Congress to effect removal orders. See 8 U.S.C. 1231 (a)(1)(A). The 42-day period also is consistent with the Supreme Court’s ruling that a detention of up to six-months is presumed to be “reasonably necessary to effect removal.” Zadvydas, 533 U.S. at 699. The rationale for this six-month period is to further “uniform administration in the federal courts,” to provide the Executive with
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“necessary . . . leeway,” and “to limit the occasions when courts” may intrude into the Executive’s core functions of administering the immigration laws and conducting the nation’s foreign policy. Id. at 700-01. Thus, the Supreme Court held that only after this six-month period must the government be prepared to justify the detention by showing that the alien is likely to be removed in the reasonably foreseeable future. See id. at 701; See also Wang, 320 F.3d at 146. Although Zadvydas involved detained aliens subject to final removal orders, the Second Circuit recently applied this six-month “presumption of reasonableness” to an alien granted voluntary departure under safeguards who was detained nearly four months. See Turkmen, 589 F.3d at 548.
At the pleading stage, this Court concluded the Zadvydas six-month presumption was inapplicable in part because Plaintiff pled that his detention was unsupported by evidence that he posed a danger to the community or a flight risk. El Badrawi, 579 F.Supp.2d at 270. Now, however, the evidence shows that immigration officials had to treat plaintiff as both a potential danger to the community and a risk to flee. At the time Plaintiff was granted voluntary departure,
Ex. 15 ¶ 28; Ex. 3 at 203, 208, 242
Ex. 8 at 169-70. In addition, the State Department had revoked Plaintiff’s visa on national security grounds, and an immigration judge found that he violated the law and ordered him to depart the country. Therefore, Plaintiff’s detention was not arbitrary and the Zadvydas presumption should apply.
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In sum, just like with his arrest, Plaintiff’s true grievance regarding his detention appears to be with the immigration system itself, not with tortious acts of individual federal employees. But again, the Federal Tort Claims Act is not the appropriate vehicle to challenge immigration policy. Although Plaintiff’s detention may have lasted much longer than he anticipated, he cannot proceed on his claim for abuse of process because he cannot show that the removal process used in his case was any different than that applied to any other similarly situated alien. Even Plaintiff’s own immigration attorney testified that he had no reason to believe that anyone at ICE intentionally delayed the departure of his client, noting that removals usually take between twenty to forty days. See Ex. 1 at 55-56, 57-58. Given these facts, Plaintiff cannot meet his burden to show that he was detained for a collateral purpose unrelated to his removal, and he thus cannot proceed with his claim for abuse of process.
CONCLUSION For the reasons stated above, this Court should grant summary judgment to the United States.
Respectfully submitted,

David Fein United States Attorney
Lisa E. Perkins Assistant United States Attorney Federal Bar No. ct23164 450 Main Street Hartford, CT 06103 Telephone No. (860) 947-1101 Facsimile No. (860) 760-7979
Lisa.Perkins@usdoj.gov

Tony West Assistant Attorney General
Ann M. Ravel Deputy Assistant Attorney General
Timothy P. Garren Director, Torts Branch
Richard Montague Senior Trial Counsel
/s/ Brant S. Levine

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August 30, 2010 For Defendant United States of America

Brant S. Levine, Federal Bar No. phv02106 Edward J. Martin, Federal Bar No. phv03440 Trial Attorneys
United States Department of Justice, Torts Branch P.O. Box 7146, Ben Franklin Station Washington, D.C. 20044 Tel: 202-616-4373 Fax: 202-616-4314 Brant.Levine@usdoj.gov

Certificate of Service
I hereby certify that on August 30, 2010, a redacted copy of this Memorandum of Law was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of the court’s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the court’s CM/ECF System. An unredacted copy of this memorandum was electronically sent to all counsel of record and all exhibits were sent to counsel via FedEx.
/s/ Brant S. Levine Brant S. Levine, Federal Bar No. phv02106 Trial Attorney
United States Department of Justice, Torts Branch P.O. Box 7146, Ben Franklin Station Washington, D.C. 20044 Tel: 202-616-4373 Fax: 202-616-4314 Brant.Levine@usdoj.gov

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

RASHAD AHMAD REFAAT EL BADRAWI Plaintiff v.
DEPT. OF HOMELAND SECURITY, ET AL. Defendants

: : CIVIL ACTION : 3:07-CV-01074-JCH : : : : : : : September 10, 2010

STATE DEFENDANTS’ MEMORANDUM IN SUPPORT OF SUMMARY JUDGMENT
I. INTRODUCTION The defendants, Charles Lee, Albert Pitts, and Thomas McGrail, (collectively “State Defendants”) hereby move pursuant to Fed. R. Civ. 56 for summary judgment as to Counts three, four and five of the plaintiffs’ Second Amended Complaint (Docket # 83). The State Defendants are entitled to summary judgment on plaintiff’s Section 1983 claims because he cannot establish that his First Amendment rights were substantially burdened by Warden Lee or that Warden Lee was deliberately indifferent to his serious medical need. Warden Lee is also entitled to qualified immunity base upon the undisputed facts in this case. The State Defendants are also entitled to summary judgment plaintiff’s claims under RLUIPA because they cannot be held individually liable for money damages under RLUIPA; plaintiff cannot establish a “substantial burden” on his religious exercise; plaintiff cannot establish that he is a

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“person” covered by RLUIPA and the defendants are also entitled to qualified immunity on plaintiff’s RLUIPA claims.
II. FACTUAL BACKGROUND The plaintiff, Rashad El Badrawi, is a citizen of Lebanon and Egypt and a practicing Muslim who attended school and worked in the United States from approximately 1995 to 2004. He is a highly educated professional; he has an undergraduate degree from the American University in Beirut, Lebanon, (Pl. depo. 22); a master’s degree in Pharmaceutical Sciences from Northeastern University, (id.), and a master’s degree in Information systems from Northeastern University. (Id. at 26). Plaintiff was also admitted to two separate Ph.D. programs at Northeastern University in Pharmacology and a Ph.D. program in Computer System Engineering. (Id. at 40-41). Plaintiff describes himself as “highly educated” (id. at 42), fluent in English, (id. at 11), and “somewhat social” (id. at 38). Before beginning employment at UConn Health Center (“UConn”), plaintiff worked at two other companies in the United States: Proteome in the Boston area (id. at 26); and Curagen in New Haven, Connecticut. (id.). In June 2003, plaintiff was hired at UConn where he continued to work as a researcher until approximately 2004. (Id. at 28). Plaintiff was close with some of his co-workers there. (Pl. depo. 30, 108). Plaintiff suffers from Crohn’s disease, a disease that is an inflammation of the gastrointestinal tract. (Pl. depo. 47; Exhibit 24, p.2). Plaintiff was first diagnosed with Crohn’s disease in 1996 at age 27 by Dr. Gail Kaufman, a physician in Boston, Massachusetts and his Crohn’s has been stable since 1996. (Pl. depo. 48-49, 53-54, 59). Dr. Kaufman diagnosed plaintiff’s Crohn’s disease as a “mild” case and prescribed 400 milligrams of Asacol taken as
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six tablets as day. (Id. at 55-56). Dr. Kaufman also advised plaintiff to avoid stress. (Id. at 57, 65). Later treating physicians concurred with Dr. Kaufman’s diagnosis of a mild case of Crohn’s disease. (Exhibit 26).
Since the onset of Crohn’s disease, plaintiff has experienced infrequent “flare up” episodes of his Crohn’s disease. (Pl. depo. 58). From 1996-2000, plaintiff experienced fewer than ten minor episodes of Crohn’s disease, a minor episode being one that involves moderate pain and lasting less an hour or less, (id. at 58, 60), and no major episodes between 1996-2000, a major episode being one that involved abdominal pain for more than hour, some bleeding and difficulty digesting. (Id. at 58, 61). From 2000-2003, plaintiff experienced a “handful”, approximately five, minor flare up episodes. (Id. at 62). From 2005-2007, plaintiff experienced five minor flare up episodes and no major episodes. (Id. at 62).
Plaintiff believes emotional stress and stress at work triggered, or contributed to, these flare up episodes. (Id. at 63). Plaintiff does not obtain his prescribed medication, Asacol, through a conventional means – - i.e. a drug store near his home or work or through mail order - but instead gets his medication in Lebanon while he is there on a visit. (Pl. depo. 65). Plaintiff also pays for his prescription medication in cash, (id. at 69), so there are no records of his transactions for his prescription medication. Plaintiff then brings the medication from Lebanon to the country where he resides. (Id. at 65). In September 2009, plaintiff did not know how much Asacol he had purchased in Lebanon in January 2009 and did not know how much of a supply remained. (Pl. depo. 71). Plaintiff testified that he could not recollect whether he used the UConn pharmacy to obtain Asacol while he was working at UConn, (id. at 75), or whether he used a CVS pharmacy near his home in Hartford. (Id. at 76).
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Plaintiff was born in a Sunni Muslim family and continues to practice that faith. (Pl. depo. 80). Plaintiff abstains from drugs, alcohol and pork products and prays five times a day and occasionally attends a mosque (Pl. depo. 81, 83- 84). Plaintiff usually goes to Friday services every week and only misses Friday prayer services if he is ill or far from a location where a prayer service is offered. (Pl. depo. 84-85). When Plaintiff resided in Connecticut, he did not attend a mosque in Connecticut but would go to Friday prayer services at chapel at UConn. An Imam would not preside at the UConn Friday prayer service, which lasted only ten minutes. (Pl. depo. 86-87).
As a practicing Muslim, plaintiff has observed the Muslim Holy Month of Ramadan since the age of 10. (Pl. depo. 93). Ramadan is the Muslim Holy Month during which Muslims are required to fast during daylight hours, and abstain from material pleasures, among other practices-fasting is the main requirement of observing Ramadan. (Pl. depo. 88-89). If a Muslim is suffering from a medical condition, he or she is excused from fasting. (Id. at 92). During the Ramadan fast, a Muslim is required to eat and drink only before dawn, (id at 113), and after sunset. (Id. at 94). In 2004, Ramadan occurred from October 14, 2004 to November 13, 2004. (Exhibit 15).
On October 29, 2004, at approximately 8:00 a.m., federal Immigration and Customs Enforcement (ICE) officials arrested plaintiff outside his apartment in Hartford, Connecticut in his parking garage as he prepared to leave for work. (Docket # 83, ¶ 2, Pl. depo. 100-101). Federal officials arrested plaintiff on charges that he violated federal immigration laws. (Docket # 83, ¶ 51). The State of Connecticut and the individual state defendants were not involved in the decision to arrest or detain plaintiff or the actual arrest. Plaintiff was initially
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detained at a federal building in Hartford and remained there until the evening of October 29, 2004. Throughout the day of the 29th, plaintiff believed he was going to be released on bail because a federal official had told him several times that day that he would be released, and had advised him to contact a bail bondsman. (Pl. depo. 107).
While at the federal building in Hartford, plaintiff contacted his supervisors at UConn and apprised them of his arrest by the federal officials. (Pl. depo. 105). In the afternoon or evening of October 29, 2004, plaintiff was told by a federal official that he would not be released that day but would instead be transferred to Hartford Correctional Center (HCC) that evening. (Pl. depo. 107). Plaintiff does not clearly understand the difference between the state and federal governments in the United States and he did not understand the difference between state and federal facilities. (Pl. depo. 114-115).
Plaintiff was transported alone in a van to Hartford Correctional Center between 5-6 p.m. on October 29, 2004. (Pl. depo. 110-111). Plaintiff was initially put in room with forty other prisoners and/or pretrial detainees at HCC. (Id. at 114). He recalls he had his picture taken and was asked some questions, but he does not remember what those questions were. (Pl. depo. 114). After being photographed, plaintiff was searched, he showered and was issued some HCC property, such as inmate clothing, a mattress and personal hygiene products. (Pl. depo. 118). Plaintiff was very confused throughout the HCC admission process. (Pl. depo. 114). He does not recall who he spoke with at HCC during the admission process. (Pl. depo. 115). Plaintiff did not ask for a meal and does not recall telling any HCC personnel or federal official that he was observing Ramadan or that he had not eaten that day. (Pl. depo. 115). Plaintiff was
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shocked, depressed and confused at this time and his mind was not clear and this may have contributed to his failure to inform any official that he was fasting for Ramadan. (Pl. depo. 110, 115-116).
Plaintiff then underwent the standard medical intake process at HCC, which included a mental health and physical health screening and evaluation. (Pl. depo. 120, 125; Lee Decl. ¶ 12; Exhibits 1-4). During his mental health screening, plaintiff told the mental health nurse that he had a history of depression. (Exhibit 2). He told the medical nurse that the suffered from Crohn’s disease and took the medication Asacol. (Pl. depo. 126; Exhibits 1-3). The nurse noted that plaintiff had not taken his Asacol since October 2, 2004, twenty-seven (27) days before his admission to HCC. (Exhibit 1). CMHC did not stock Asacol onsite in the HCC medical unit and the nurse faxed the request for Asacol to the pharmacy at UConn that night. Plaintiff felt stressed during his intake, (Pl depo. 125), and he does not recall if he said anything about Ramadan to the medical or mental health intake nurses. (Pl. depo. 128). Plaintiff was not mistreated by any of the HCC intake or admission personnel. (Pl. depo. 128). Plaintiff found the entire experience of being arrested, detained by the federal officials and then transported to HCC “too shocking, too intimidating” and was overwhelmed by this situation. (Pl. depo. 116).
The HCC admission process lasted 3-4 hours, (Pl depo. 119), and plaintiff was brought to his housing unit, Dorm 3, between 9-9:30 p.m. (Id. 118-119, Exhibit 22). The HCC personnel on the housing unit did not mistreat plaintiff upon his arrival to the housing unit. (Pl. depo. 120). After plaintiff arrived at Dorm 3, he told another inmate that he was in pain and the inmate alerted a Dorm 3 correction officer. The correction officer responded to the complaint and brought plaintiff to the HCC medical unit. (Pl. depo. 131; Exhibit 22). At the medical unit,
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plaintiff spoke with an African-American female nurse and told her he was “beginning to have serious pain” and that he had brought medication for his Crohn’s disease to HCC. (Pl. depo. p. 132). Plaintiff understood from federal officials that his medication was going to be brought to HCC. (Id. at 109). The nurse informed plaintiff that she did not have documentation that indicated he should be taking medication and said he should see doctor. (Pl. depo. 132). Plaintiff was then returned to his cell. (Pl. depo. p. 133).
Plaintiff does not recall what steps he took on his first full day in HCC, Saturday, October 30, 2004, to obtain a Ramadan meal accommodation or prescription medication. Plaintiff believes he had a meal on Saturday and went to the HCC dining hall that day. (Pl. depo. 134). He does not recall if spoke with any correction officer in dining hall on Saturday morning during breakfast about obtaining a Ramadan meal accommodation but he thinks he “probably… started talking about it on that day.” (Pl. depo. p. 135). During the plaintiff’s incarceration at HCC the regularly scheduled evening meal for his dorm occurred after sunset so plaintiff did not require a schedule accommodation for the evening meal in order to observe Ramadan. (Pl. depo. 136).
On Sunday, October 31, 2004, plaintiff experienced abdominal pain after he awoke. (Pl. depo. 137). Plaintiff was unable to eat due to pain and he does not recall eating any meals on Sunday. (Pl. depo. 137). Plaintiff does not recall if he spoke to any HCC personnel about fasting for Ramadan on that Sunday. (Pl. depo. 137). Plaintiff also did not recall hearing of any religious services announcements at HCC on that Sunday. (Pl. depo. 138). He did recall hearing announcements meals and in the morning. (Pl. depo. 134, 138). He thinks that at one
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time he may have mentioned fasting or “something like that” to a correction officer. (Pl. depo. 139).
Plaintiff received orientation to HCC on Monday November 1, 2004. Orientation is a scheduled a presentation provided to all new inmates at HCC by several HCC personnel on a variety of subjects, including but not limited to, medical care programs available at HCC, religious programs, how to make an inmate request using an inmate request form, and how to file an inmate grievance. (Lee Decl. ¶ 44; Exhibit 11). The HCC “orientation counselor” covers the topic addressed in the HCC handbook. (Pitts Decl. ¶ 14). Plaintiff recalls that orientation was held in the HCC dining hall and that multiple HCC personnel made presentations during orientation but he does not recall the day orientation was held. (Pl. depo. 139, 141-142). Plaintiff also does not recall the name of any HCC staff who conducted orientation or how many inmates were in the room during orientation or how long it lasted. (Id. 143). Plaintiff thinks he completed forms at orientation but does not remember what forms he completed. (Pl. depo. 141; Exhibits 8-9). Although plaintiff does not recall the forms he completed, he acknowledged that he signed a document stating that he had received the HCC handbook. (Pl. depo. 141-142; Exhibit 8). Although plaintiff signed a form acknowledging receipt of the HCC handbook, plaintiff testified at his deposition that he was not provided a handbook at orientation and does not remember whether he ever received a HCC handbook. (Pl. depo. 141, 144). Plaintiff does recall learning about the grievance process during orientation. (Pl. depo. 147).
Plaintiff remembers there was something said about religion at orientation and about identifying one’s religion, (Pl. depo. 145), but he does not recall hearing anything about
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specific religious services or the presence of chaplains at HCC. (Id. at 147). Plaintiff does not recall any religious staff being present at orientation, or in particular any women, such as, Sister Loretta Sullivan, a chaplain who was on duty at HCC that day and toured plaintiff’s housing unit, Dorm 3, that day. (Dep. p. 143, 146; Exhibit 23, p.2). Plaintiff recalls that a religious designation form was provided to him at orientation, (Exhibit 9), but he does not recall if he requested the form or if it was simply given to him. (Pl. depo. 146). Plaintiff does not recall saying anything to the HCC staff person to whom he submitted his religious designation form at orientation, or informing the HCC staff person that he was fasting for Ramadan. (Pl. depo. 148). In fact, plaintiff does not recall whether he spoke to anyone about Ramadan at orientation. (Pl. depo. 148). Religious programs are always discussed at orientation. (Avci depo. 78-79; Pitts Decl. ¶ 14; Bruno Decl. ¶ 19). New inmates to HCC in 2004 were permitted to join the Ramadan List after the Ramadan and plaintiff could have completed a Ramadan sign-up form at his orientation or requested one. (Avci depo. 84).
Plaintiff learned about the inmate request form process from inmates and correction officers during the first few days at HCC. Inmates and correction officers instructed him on how to complete an inmate request form. (Pl. depo. 146-147). Plaintiff completed an inmate request form on November 1, 2004 requesting the prescription medication Asacol. (Exhibit 5).
At the time of his orientation, plaintiff had very little understanding of the prison environment and did not understand what orientation meant. (Pl. depo. 139). He did not understand common prison terminology, such as the abbreviation “C.O.” for correction officer. He recalls that correction officers often used inmate numbers. (Pl. depo. 140). Plaintiff purposely avoided contact with other people while at HCC including other inmates and
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correction officers. (Pl. depo. 156). There was a turnover of inmates in plaintiff’s dorm and he did not go to any particular inmate with questions and for assistance the first weeks at HCC. (Pl. depo. 133-134). Plaintiff had no visitors and made no phone calls while he was at HCC. (Pl. depo. 156). Plaintiff did not purchase food or other items at the HCC commissary, did not open an inmate trust account, and did not use the HCC library. (Pl. depo. 155). Plaintiff had access to recreation but spent most of his time sitting in his cell. (Pl. depo. 155-156).
On October 29, 2004, the CMHC intake nurse faxed a request for Asacol for plaintiff to UConn and noted in the medical notes that plaintiff had not taken Asacol since October 2, 2004. On first night at HCC, plaintiff started to experience pain, which he believes was probably brought on by the stress he was experiencing from being arrested and one missed dose of Asacol. (Pl. depo. p. 179). That night, plaintiff was seen by a CMHC nurse in the medical unit and later returned to his cell. Plaintiff does not allege that he requested that his name be added to the “sick call” list at HCC. On Monday, November 1, 2004, plaintiff filled out an inmate request form requesting Asacol for his Crohn’s disease. (Exhibit 5). Plaintiff filled out the inmate request form for Asacol because this is what he was instructed to do by someone at HCC. (Pl. depo. 170). On Wednesday, November 3, 2004, a CMHC nurse delivered a thirty day supply of Asacol to plaintiff’s housing unit and plaintiff was permitted to keep the Asacol “on his person” (KOP) at his bed and take it as it was prescribed to him. (Exhibit 6, p.1).
On November 12, 2004, plaintiff was seen by Dr. James McKenna, a CMHC physician, at HCC. (Pl. depo. p. 180; Exhibit 7). Plaintiff does not recall if he was already receiving Asacol when he met Dr. McKenna on November 12, 2004. (Pl. depo. 180). Plaintiff believes he told Dr. McKenna that he had had severe pain and small amount of blood in his stool but
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that that issue resolved. (Pl. depo. 180, 182). Plaintiff testified that he had blood in his stool two days after being admitted to HCC. (Pl. depo. 179). Dr. McKenna did not note a report of severe pain by plaintiff. (Exhibit 7). A report of severe pain would be relevant to Dr. McKenna’s course of treatment of plaintiff’s Crohn’s disease because severe abdominal pain could indicate a serious medical problem and could require further tests to rule out a more serious condition. (Exhibit 24, p.6). Plaintiff believes that the “flare up” of his Crohn’s disease hindered his ability to fast during Ramadan and that this flare up was a major reason he could not fast the last weeks of Ramadan. (Pl. depo. 176-177). Plaintiff also testified that he missed a few days of fasting for Ramadan “because of the lack of medication.” (Pl. depo. 164). Plaintiff is not sure if he would fast at HCC those first days even if put on Ramadan List. (Pl. depo. 176177).
Plaintiff never filed a medical grievance or an emergency medical grievance while he was at HCC. (Pl. depo. 179). Plaintiff testified that he did not receive his medication for one week after entering HCC, which would have been November 5, 2004, and that if a CMHC medication administration form indicates that he received his medication earlier than one week following October 29, 2004, that document is false and inaccurate. (Pl. depo. 180).
October 29, 2004, the date of plaintiff’s admission to HCC, was the approximate halfway point of the Muslim holy month of Ramadan. Plaintiff did not request a Ramadan meal accommodation during the HCC intake process or otherwise apprise the medical staff or HCC intake staff that he was fasting or had not eaten all day. At some uncertain date following his admission to HCC, plaintiff learned from one or more HCC correction officers or staff that there was a Ramadan List for inmates who were fasting for Ramadan. (Pl. depo. 165). Plaintiff
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does not recall seeing any other inmates in Dorm 3 receive a bag breakfast delivered to their cell before dawn. (Pl. depo. 166). Since the sun was setting by roughly 5 p.m. each evening after October 30, 2004, plaintiff did not require a meal accommodation for the evening meal because his dorm went to the dining hall after sunset. (Exhibit 15). Plaintiff did not learn of the existence of a Ramadan sign-up form at HCC and he did not ask anyone for the form. (Pl. depo. 167). DOC policy required inmates who wanted to fast for Ramadan complete a Ramadan sign-up form, and that no inmate would be permitted to join the Ramadan List unless he completed the Ramadan sign-up form and signed it before a Chaplain. (Bruno Decl. ¶¶ 26-27, 32; McGrail Decl. ¶ 6).
At some point- plaintiff is not sure when- plaintiff spoke with HCC personnel about joining the Ramadan List. At his deposition, he was not sure when he first inquired with HCC staff about Ramadan but in his responses to interrogatories he indicated he believed it was within the first few days of his arrival at HCC. (Exhibit 25, p.3). Plaintiff testified he “probably” made three requests to join the Ramadan List. (Pl. depo. 167). Plaintiff recalls asking a blond correction officer about fasting for Ramadan because he had been told by another inmate that this blond correction officer had a reputation for being helpful. (Pl. depo. 167). This blond correction officer was not “necessarily” assigned to plaintiff’s housing unit. (Pl. depo. 167). Plaintiff recalls “probably” complaining to other inmates about fact he could not fast and those inmates may have given him a name or description of the blond officer but he does not recall if he was given a name. (Pl. depo. 168). The blond correction officer directed plaintiff to speak with someone of higher authority than him and told plaintiff that he would have to “start at the top” with his request for a meal accommodation. (Exhibit 25, p.5). At his
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deposition, plaintiff did not recall whether his requests regarding a Ramadan meal schedule accommodation were ever made in writing but in his responses to interrogatories, plaintiff indicated that all requests were verbal. (Pl. depo. 170; Exhibit 25, p.5).
Plaintiff does recall that he completed an inmate request form requesting a “common fare” diet but is uncertain about when he made the request and believes it was “probably” after Ramadan ended on November 13, 2004. (Pl. depo. 157). Plaintiff does not recall how much time elapsed between his submitting the inmate request form for the common fare diet, and when he began receiving a common fare diet. (Pl. depo. 158). When plaintiff was in the HCC dining hall, he did not speak to inmates who are employed on the kitchen staff in the dining hall about a desire to get on the Ramadan List. (Pl. depo. 153). Plaintiff never filed a grievance relating to Ramadan and contends he was not aware of grievance process at HCC. (Pl. depo. 171). Plaintiff also does not recall ever seeing any mailboxes in the housing units for different subject areas, such as grievances or religion, but he might have seen a box in his housing unit. (Pl. depo. 171-172). Plaintiff also did not observe the postings in his housing unit regarding religious programming, Ramadan sign-up or the listing of Reverend Pitts as the appropriate HCC staff to whom to address any religious inquiries. (Lee Decl. ¶ 49; Pitts Decl. ¶ 15; Bruno Decl. ¶ 20).
Plaintiff testified that during the first three weeks of his detention at HCC - roughly October 29, 2004 to November 19, 2004 - he was unaware that HCC had religious personnel on staff. (Pl. depo. 169). The fact that religious personnel were on staff at HCC was discussed at orientation, noted in posting in the HCC housing units and covered in the HCC handbook. (Lee Decl. ¶¶ 44, 53, 54; Pitts Decl. ¶¶ 14-15; Bruno Decl. ¶ 20; Exhibit 11). Plaintiff does not
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recall ever seeing any religious personnel on tours in Dorm 3 during this time there. (Pl. depo. 165, Exhibit 23). HCC religious personnel routinely toured HCC housing units. (Lee Decl. ¶ 56; Pitts Decl. ¶17; Exhibit 23). During his first weeks at HCC, plaintiff did not request a Quran or a prayer rug. (Pl. depo. 157). He later received a Quran from the Muslim Chaplain at a November meeting in the Chaplain’s office. (Pl. depo. 156-157). Plaintiff was unaware that HCC held an end of Ramadan feast known as the Eid Ul Fitr on or after November 13, 2004. (Pl. depo. p. 166; see also Bruno Decl. ¶ 37). If plaintiff had known about the Eid, he “might have attended.” (Pl. depo. 167).
Plaintiff is not certain, but he believes, the first time he saw any religious personnel at HCC was approximately three weeks after his arrest, and about a month before his December 22, 2004 release from HCC. On or about November 22, 2004, plaintiff met with the Islamic Chaplain, Imam Avci1, in the Chaplain’s office. (Pl. depo. 159). Plaintiff did not know that there was a part-time Imam or Muslim Chaplain at HCC until this meeting. (Pl. depo. p. 160). Before he learned there was an Imam on staff at HCC, plaintiff did not request meeting with any Chaplain. (Pl. depo. p. 165).
Plaintiff was also not aware that Imam Avci, or another DOC Imam, conducted weekly Friday Jumah services at HCC until after he met with Imam Avci and Imam Avci told plaintiff about the Jumah services. (Pl. depo. p. 160-161). Plaintiff also doesn’t recall learning about or attending Taleem, or Islamic religious studies, those first three weeks and he never attended
1 Although plaintiff could not recall the name of the Imam with whom he spoke in November 2004, Durmas Avci, was the only Islamic Chaplain assigned to HCC in 2004 and has worked as an Islamic chaplain in the DOC since 2003. Plaintiff did remember that the Imam had a Turkish accent and Imam Avci is a native of Turkey. (Exhibit 25, p.5; Avci depo. 10).
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Taleem at HCC. Plaintiff recalls attending Jumah only two or three times during the entire time he was at HCC, which was October 29, 2004 to December 22, 2004. (Pl. depo. 161). Instead, plaintiff would pray inside cell. (Pl. depo. p. 162). He recalls that on one occasion when he requested to go to a Friday Jumah service, a correction officer declined to release him go to Jumah initially because he did not know Jumah was scheduled, but after plaintiff “insisted” he be permitted to go he was released to attend Jumah. (Pl. depo. 163).
Plaintiff does not recall how the one meeting with Imam Avci was scheduled. He does not recall if he made verbal or written request to meet with the Chaplain, but he recalls the meeting lasted approximately one half-hour. (Pl. depo. p. 172). During the meeting, plaintiff complained to Imam Avci that he had not been able to fast for Ramadan. (Pl. depo. p. 173). Plaintiff also may have complained to Imam Avci about the delay in receiving his medication. (Pl. depo. 173). Plaintiff believes he “might” have told Imam Avci that his Crohn’s disease hindered his ability to fast during Ramadan. (Pl. depo. 174). Plaintiff was not put on the Ramadan List because he did not speak with a Chaplain during Ramadan. (Avci depo. 71, line 16 – 72, line 13). Imam Avci would have put plaintiff on the Ramadan list if plaintiff attended Jumah services on November 5, 2004. (Avci depo. 81, line 1 – 10).
Plaintiff testified at his deposition that Imam Avci confirmed what he had heard from the unnamed correction officer: that he was required to be at HCC from beginning of Ramadan in order to be allowed to join the Ramadan List. (Pl. depo. 173). Imam Avci testified that if plaintiff had told him could not get on the Ramadan List simply because the inmate entered HCC after the start of Ramadan he would have “solve[d] the problem (id.) and added his name to the Ramadan List. (Avci depo 72, line 8). Imam Avci testified that 2004 was his first
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Ramadan in a DOC facility, (Avci depo. 9), and that he recalled he put newly admitted inmates on the Ramadan List after the start of Ramadan in 2004. (Avci depo. 97, lines 10-21; Exhibit 17).
Plaintiff does not recall whether Imam Avci advised him to submit a complaint, grievance or inmate request form to the Warden regarding his complaint about not being added to the Ramadan List. (Pl. depo. 174). Plaintiff does not recall if he told Imam Avci that he thought he was treated differently than other inmates because he was a Muslim. (Pl. depo. 174). Plaintiff testified that he made up for a few days of missed fasting caused by his medical issue. (Pl. depo. 175). Plaintiff acknowledges that throughout Ramadan, he was able to eat one meal a day in the evening but that that meal was “less than filling.” (Pl. depo.178). Plaintiff does not remember if he abstained from drinking water during the day. (Pl. depo. 178). Plaintiff noted that no one forced him to eat, so he tried to satisfy Ramadan while he was at HCC. (Pl. depo. 178).
Plaintiff does not recall if ever personally met or saw Warden Lee, Reverend Pitts, or Thomas McGrail while he was incarcerated at HCC. (Pl. depo. 187-188). Each of these defendants toured HCC housing units (Pitts Decl. ¶ 17; McGrail Decl. ¶ 10). Plaintiff acknowledges that he never complained to Warden Lee about either a medical issue or religious issue. He does not know if anyone informed Warden Lee, Reverend Pitts or Thomas McGrail about his desire for a Ramadan meal accommodation. (Pl. depo. 188). Plaintiff claims that it was too difficult for him to learn about the complaint process or Ramadan sign-up processes on his own. (Pl. depo. 188). Plaintiff claims that he did not inquire further about his Ramadan
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request or in writing because he believed he was “going through what that system tells me.” (Pl. depo. 169).
Plaintiff was removed from HCC by federal officials on December 22, 2004. On the day of his release, CMHC personnel noted that they provided plaintiff with a supply of Asacol, (Exhibit 6), but plaintiff contends that no one gave him any medication to take with him on December 22, 2004. (Pl. depo. p. 184). Plaintiff never filed an inmate grievance regarding either his medical care or religious practices. Plaintiff departed the United States for Lebanon in December 2004 and eventually moved to Toronto, Canada in 2007, where he continued to reside as of September 2009.
III. STANDARD OF REVIEW Summary judgment is a favored remedy: “Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather . . . . must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate. . . , prior to trial, that the claims and defenses have no factual basis.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (emphasis added.) A moving party is entitled to summary judgment if there is no genuine issue or dispute as to any material fact and it is clear that the moving party is entitled to judgment as a matter of law. Celotex Corp., 477 U.S. at 322; Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir. 1995); Larkin v. Town of West Hartford, 891 F. Supp. 719, 723 (D. Conn. 1995). Rule 56(c) of the Federal Rules of Civil Procedure provides, in relevant part, that summary disposition
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shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.
As the Supreme Court has emphasized, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there is no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Thus factual disputes that are irrelevant or unnecessary to the resolution of the legal issues shall be disregarded in a motion for summary judgment. Anderson, 477 U.S. at 248.
A factual issue is not "genuine" unless "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248, 106 S. Ct. at 2510; Larkin, 891 F. Supp. at 723-24. A factual issue is not "material" unless it "might affect the outcome of the suit under the governing law." Id.
To defeat the motion, the nonmoving party must show more than that "some metaphysical doubt as to the material facts." Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986); Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996). "A party may not 'rely on mere speculation or conjecture as to the true nature of facts to overcome a motion for summary judgment.'" McCloskey v. Union Carbide Corp., 815 F. Supp. 78, 81 (D.Conn. 1993) (quoting Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12, (2d. Cir. 1986) cert. denied, 480 U.S. 932 (1987). “To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars would necessitate a trial in all Title VII cases." Meiri v. Dacon, 759 F.2d
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989, 998 (2d Cir.), cert. denied, 474 U.S. 829 (1985). Moreover, "summary judgment must be entered against 'a party who fails . . . to establish the existence of an element essential to [its] case, and on which it will bear the burden of proof at trial,'" Larkin, 891 F. Supp. at 723, aff’d without opinion, 101 F.3d 109 (2d Cir. 1996), quoting Celotex, 477 U.S. at 322.
IV. ARGUMENT Plaintiff has brought suit against three State of Connecticut defendants, Charles L. Lee, the former Warden of Hartford Correctional Center (HCC), Reverend Albert Pitts, the Institutional Religious Facilitator (IRF) at HCC in 2004, and Thomas McGrail, a former DOC Kitchen Supervisor III at HCC. When plaintiff commenced this action, his only claims against a State defendant were two claims under Section 1983 and a Religious Land Use and Institutionalized Person Act, (RLUIPA), 42 U.S.C. § 2000cc et seq., against Warden Lee. Warden Lee moved to dismiss both the Section 1983 claims and the official capacity RLUIPA claim. In 2008, this Court dismissed the official capacity RLUIPA claim against Warden Lee because sovereign immunity barred a claim for money damages against a state official in his official capacity and in enacting RLUIPA Congress had not validly abrogate that state sovereign immunity. (Docket # 82, p.19). The Court also permitted plaintiff to amend his complaint to add an individual capacity claim against defendant Lee under RLUIPA and permitted plaintiff’s Section 1983 claims to proceed. On October 13, 2008, nearly four years after the events alleged in his complaint, plaintiff sought leave to amend his complaint to add individual capacity RLUIPA claims against Warden Lee and two additional state defendants, Reverend Pitts and Thomas McGrail.
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Warden Lee is the only state defendant who is alleged to have violated plaintiff’s rights under both Section 1983 and RLUIPA, the remaining two state defendants, Pitts and McGrail, are alleged to have violated plaintiff’s right protected under RLUIPA only. Plaintiff alleges Warden Lee violated his constitutional rights to medical care and free exercise of his religion protected under Section 1983 while he was detained at HCC. Plaintiff alleges all three State Defendants violated his religious exercise rights protected under RLUIPA and should be held individually liable for money damages under that statute.
A. Plaintiff’s Section 1983 Claims Plaintiff brings two Section 1983 claims against Warden Lee, one for deliberate indifference to his serious medical needs under the Due Process Clause of the Fourteenth Amendment; and another for deprivation of his right to free exercise of his religion under the First Amendment. It is well established that in order for plaintiff to prevail on a Section 1983 individual capacity claim against Warden Lee, plaintiff must establish Warden Lee had direct or personal involvement in the actions which are alleged to have caused him constitutional harm. Gill v. Mooney, 824 F.2d 192, 196 (2d. Cir. 1987). It is insufficient for plaintiff to establish only that Warden Lee had supervisory role as the warden of HCC and that a subordinate inflicted a constitutional tort. See Monell v. Dep't of Social Servs., 436 U.S. 658, 692-95 (1978) (Doctrine of respondeat superior does not apply in Section 1983 cases.). "A supervisor may not be held liable under section 1983 merely because his subordinate committed a constitutional tort." Poe v. Leonard, 282 F.3d 123, 140 (2d Cir. 2002), see also Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir. 1999).
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Here, plaintiff alleges Warden Lee established a policy at HCC where newly admitted inmates were not permitted to join the Ramadan List once Ramadan had begun. Plaintiff will also allege that Warden Lee failed to supervise or train HCC personnel and thereby created or condoned policies and practices at HCC that caused plaintiff to: (1) not be permitted to join the Ramadan List; and (2) not be provided his medication for Crohn’s disease. A supervisor who has not directly participated in the alleged unconstitutional tort may be found personally involved if:
(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)(internal citations and quotations omitted). The Supreme Court has recently held that a supervisor may be held personally liable only for “his or her own misconduct.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948-1949 (2009). A “supervisor's mere knowledge of his subordinate's discriminatory purpose” is insufficient to establish the individual liability of the supervisor. Id. In Iqbal, the Supreme Court stated that the relevant inquiry is the supervisor’s purpose in establishing policies or practices and not his knowledge of the conduct of subordinates. Id. As another court in this district has noted, personal liability of a supervisor under the Colon factors listed above, based on a claim of a supervisor’s passive acquiescence in the misconduct of subordinates, may no longer be
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appropriate after Iqbal. See Vega v. Lantz, No. 04 Civ. 1215 (DFM), 2009 U.S. Dist. LEXIS 88550 (D. Conn. Sept. 25, 2009).
The Colon factors have recently been thrown into some doubt by the Supreme Court's ruling in Ashcroft v. Iqbal, U.S. , 129 S.Ct. 1937, 1948, 173 L. Ed. 2d 868 (2009), which discussed issues of supervisory liability. See Bellamy v. Mount Vernon Hosp., No. 07 Civ. 1801(SAS), 2009 U.S. Dist. LEXIS 54141 (S.D.N.Y. June 26, 2009) (under Iqbal, "a supervisor is only held liable if that supervisor participates directly in the alleged constitutional violation or if that supervisor creates a policy or custom under which unconstitutional practices occurred. The other Colon categories impose the exact types of supervisory liability that Iqbal eliminated -- situations where the supervisor knew of and acquiesced to a constitutional violation committed by a subordinate"); Estate of Young v. N.Y. Office of Mental Retardation & Developmental Disabilities, No. 07Civ.6241(LAK), 649 F. Supp. 2d 282, 2009 U.S. Dist. LEXIS 78049 (S.D.N.Y. Aug. 27, 2009). The court need not reach this unbriefed issue in this matter. Id., at *15 n.12. After Iqbal, Warden Lee cannot be found personally liable for the misconduct of his subordinates based on a claim that he should have known about the misconduct or the likelihood of the misconduct occurring and passively acquiesced in the misconduct of his subordinates. After Iqbal, any claim based on establishment of an unconstitutional policy would have to demonstrate, at a minimum, in the absence of actual Lee’s personal involvement, that Warden Lee established the unconstitutional policy because of the unconstitutional effect on plaintiff and not merely in spite of the effect. Even if Iqbal did not eliminate supervisory liability based upon mere acquiescence, which defendants contend that it did, plaintiff still cannot state a claim under the Colon factors. Plaintiff cannot establish personal liability of Warden Lee under the prongs set forth in Colon, and in a manner consistent with Iqbal, because Warden Lee had no direct involvement in either plaintiff’s alleged requests for medical care or religious accommodation; Warden Lee was
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never informed of either request through a report, grievance or inmate request by plaintiff or anyone else; he did not create any a policy or custom governing either medical care or religious programs at HCC; he was not grossly negligent in supervising subordinates because, even assuming the truth of plaintiff’s allegations and that the conduct of subordinates and CMHC staff alleged rises to the level of a constitutional tort, which it does not, Warden Lee had no notice of the alleged deficiencies in medical care and religious program accommodations plaintiff alleges; and, lastly, Warden Lee did not exhibit deliberate indifference to the rights of plaintiff because he had no notice of any of the facts alleged in plaintiff’s complaint at the time he was at HCC and, therefore, could not have been deliberately indifferent to plaintiff’s request. A finding of personal liability on these facts would be grossly unjust because of the information and procedures so readily available to plaintiff that could have permitted him to quickly remedy any of his complaints alleged in this lawsuit. Plaintiff could have easily availed himself of reasonable formal and informal HCC procedures and information, which he was informed of in written and oral form shortly after entering HCC, which would have quickly remedied the constitutional harms he claims in this lawsuit.
i. Plaintiff’s Section 1983 Medical Claim Against Warden Lee Plaintiff’s medical claim against Warden Lee arises out of plaintiff’s allegation that Warden Lee unconstitutionally deprived him of adequate medical care when plaintiff did not receive his Crohn’s disease medication, Asacol, until November 3, 2004, a period of four days after he entered HCC. Warden Lee is entitled to summary judgment on this Section 1983 medical claim because plaintiff cannot establish that Warden Lee knew of and disregarded an excessive risk to plaintiff’s health or safety and that he was both aware of facts from which he
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could have drawn an inference that a substantial risk of serious harm to plaintiff existed, and that he actually drew that inference or that Warden Lee supervised medical personnel. Caiozzo v. Koreman, 581 F.3d 63, 71, 72 (2d Cir. 2009) citing Farmer v. Brennan, 511 U.S. 825 (1994).
As a pretrial detainee, plaintiff’s right to be free from deliberate indifference to his serious medical needs was protected by the Due Process Clause of the Fourteenth Amendment and this right has been interpreted by the Second Circuit and other Circuits to be the same as the deliberate indifference standard applied in Eighth Amendment “cruel and unusual punishment” claims.
A convicted prisoner's claim of deliberate indifference to his medical needs by those overseeing his care is analyzed under the Eighth Amendment because the right the plaintiff seeks to vindicate arises from the Eighth Amendment's prohibition of "cruel and unusual punishment." Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996). In the case of a person being held prior to trial, however, "the 'cruel and unusual punishment' proscription of the Eighth Amendment to the Constitution does not apply," because "as a pre-trial detainee [the plaintiff is] not being 'punished,'" Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000); see also Weyant, 101 F.3d at 856. Instead, a person detained prior to conviction receives protection against mistreatment at the hands of prison officials under the … Due Process Clause of the Fourteenth Amendment if held in state custody. Caiozzo v. Koreman, 581 F.3d 63, 69 (2d Cir. N.Y. 2009). Even construing the facts in the light most favorable to him, plaintiff cannot meet the high legal standard required in a “deliberate indifference” claim, which requires a showing of both an objectively excessive risk of serious harm, and that Warden Lee had subjective knowledge of the excessive risk to his health and chose to disregard the excessive risk. There is no dispute that Warden Lee was not aware of plaintiff while he was at HCC and had no knowledge of plaintiff’s request for Asacol or that he suffered from Crohn’s disease. It is also undisputed
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that under long standing DOC policy, Warden Lee did not supervise medical personnel at HCC. It is also undisputed that through a Memorandum of Understanding between the Department of Correction and the University of Connecticut, healthcare for all inmates is provided by the University of Connecticut Correctional Managed Healthcare ("CMHC"), a subdivision of the University of Connecticut Health Center. (Lee Decl. ¶ 13, Exhibit 14). CMHC provides medical, dental and mental health services to all inmates as well as ancillary services including radiology, laboratory, pharmaceutical, hospitalization/inpatient care, outpatient/medical clinic care, and physician specialty care and Warden Lee does not supervise medical care. (Exhibit 14, Exhibit 24, p. 5). It is undisputed that CMHC personnel provided all medical care to plaintiff at HCC, including the mental health and medical screening of plaintiff at the time of his admission to HCC and that CMHC personnel are not employees of the DOC. (Exhibits 14).
Plaintiff’s allegations center on the conduct of CMHC personnel. CMHC personnel determined how to process plaintiff’s request for Asacol and when to deliver it to plaintiff. CMHC staff faxed a prescription request to UConn that same night of plaintiff’s intake. CMHC staff also assessed plaintiff’s medical condition when he went to the HCC medical unit on October 29, 2004 with a complaint of pain. It was CMHC staff who determined whether plaintiff required immediate medical attention at that time and when he should be seen by a physician. Plaintiff completed an inmate request form requesting Asacol on November 1, 2004 and that inmate request form was submitted to CMHC personnel per the DOC’s protocol governing medical care. (Exhibits 5, 14; Lee Decl. ¶ 13). There is no evidence that Warden Lee had any knowledge of any of plaintiff’s requests. In fact, the evidence demonstrates that HCC custody personnel, over whom Warden Lee did have supervisory authority, responded
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appropriately to plaintiff’s request for medical treatment by escorting him to the medical unit when he complained of pain on October 29, 2004 and by instructing him on how to complete an inmate request form regarding his Asacol request on or near November 1, 2004. (Exhibit 5, Pl. depo. 176). There is also no evidence that plaintiff made any further requests for medical care to HCC custody staff or to CMHC staff beyond his statement to CMHC intake staff that he took Asacol; his visit to the medical unit on October 29, 2004; and submission of an inmate request form on November 1, 2004.
Plaintiff does not allege that correction officers ignored requests by him for medical care. Plaintiff does not allege that he requested to be placed on the HCC daily “sick call” list on any day and that this request was ignored by either CMHC personnel of HCC custody staff. Plaintiff does not allege that he spoke with CMHC medical staff on their daily tours of Dorm 3. Plaintiff does not allege that he told any of the HCC Captains, Majors or Lieutenants, who toured Dorm 3 that he was in severe or excessive pain and needed to see a physician. In fact, plaintiff testified that while he was at HCC he purposely avoided contact with other inmates and staff. Plaintiff further testified that he was shocked, anxious and disoriented during his initial incarceration and had difficulty understanding prison protocol and procedure.
Notwithstanding plaintiff’s subjective difficulty in understanding the operation of HCC, which he never conveyed to HCC personnel to permit a clearer explanation of appropriate procedure, plaintiff was provided with reasonably sufficient information about how to obtain adequate services from HCC staff and CMHC staff. He received an orientation that covered topics relevant to this litigation – medical care, religious programs and grievances; he resided in an open dorm unit where access to other inmates, correction officers and supervisory officers
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was easily had; his dorm had clearly posted information regarding a host of programming information such as to the appropriate individuals to send inmate requests to about medical or other issues and religious programming. His dorm correction officers made daily announcements about “sick call” and the presence of CMHC personnel in the dorm. There were prominently displayed mailboxes for correspondence on grievances, medical issues and, as is discussed below, religious issues, in his dorm.
Not only can plaintiff not establish that Warden Lee was deliberately indifferent to his serious medical need, plaintiff also cannot establish facts that would permit a trier of fact to conclude that a delay in receiving Asacol created an excessive risk of serious harm to him. Plaintiff cannot establish based on his assertions of severe pain alone, which are not corroborated by the contemporaneous medical documentation, that a four day delay in providing him with Asacol caused his pain and subjected him to an excessive risk of serious medical harm. The unrebutted expert testimony, which is based upon plaintiff’s own medical records and testimony, is that the abdominal pain he alleges would not have been caused by four days of missed dosages of Asacol. (Exhibit 24, p. 5 ¶ 2). Plaintiff has not adduced expert medical testimony to the contrary.
Plaintiff’s claim of the gravity of his medical situation during those first days at HCC is also belied by the fact that his medical issues quickly resolved. By the time plaintiff saw Dr. McKenna on November 12, 2004, he reported that his issues from the previous week – a small amount of blood in his stool - had resolved and Dr. McKenna made no notation of plaintiff reporting severe pain. It is undisputed that plaintiff suffered no lasting effects from the flare-up of his Crohn’s disease he alleges was caused by four days of missed Asacol. It is undisputed
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that since plaintiff departed HCC he has continued to suffer from a “mild” case of Crohn’s disease, which continues to be stable and, as of September 2009, did not even see a treating physician for his Crohn’s disease. (Pl. depo. 66).
Moreover, Plaintiff cannot establish by a preponderance of the evidence that the missed doses of Asacol was the cause of his alleged Crohn’s disease flare-up and not the stress and anxiety he felt due to his arrest. Plaintiff testified that his sudden arrest and detention by federal officials caused him extreme stress and even mental disorientation. He also testified that external factors such as stress caused or contributed to his Crohn’s disease flare-ups and that he was advised by his doctor to avoid stress. He also testified that he would experience flare-ups of his Crohn’s disease in the past, when he was presumably taking his Asacol regularly, due to external stressful events in his life. The unrebutted expert medical testimony is that a failure to receive Asacol for four or five days would not cause a severe flare up of Crohn’s disease or any flare up at all. Plaintiff has adduced no expert medical testimony that would establish that the four day delay in receiving Asacol caused the flare-up or that plaintiff would not have experienced the flare-up anyway because of the external stress and anxiety of being suddenly and indefinitely incarcerated. Accordingly, plaintiff cannot establish by a preponderance of the evidence that any delay in receiving Asacol was the cause of his abdominal pain.
CMHC personnel noted plaintiff had not taken his Asacol for twenty-seven days before he was admitted to HCC, (Exhibit 1), a notation that is consistent with both a mild case of the disease and plaintiff’s noncompliance with prescribed course of treatment. Plaintiff cannot establish his regular compliance with his Asacol medication because he provided defendants no
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medical records regarding his prescription refills, could not recall what drug store he went to in the Hartford area, had no medical records from a pharmacy although records were subpoenaed from CVS in this lawsuit. (Exhibit 27). Plaintiff also cannot establish that he did not receive his Asacol on an expedited basis because CMHC staff concluded from this medical notation that he did not urgently need to take Asacol on a daily basis. While plaintiff disputes that he told the CMHC personnel he did not take his Asacol for twenty-seven days before coming to HCC, and testified that this medical notation was in error, this is at most a claim of negligence or medical malpractice by CMHC personnel and not a claim of deliberate indifference against Warden Lee who had absolutely no supervisory authority over these CMHC staff or knowledge of what they were doing regarding plaintiff’s medical treatment.
Mere negligence will not support a section 1983 claim; the Eighth Amendment is not a vehicle for bringing medical malpractice claims, nor a substitute for state tort law. Thus, not every lapse in prison medical care will rise to the level of a constitutional violation; rather, the conduct complained of must “shock the conscience” or constitute a barbarous act. Klemonski v. Semple, 2010 U.S. Dist. LEXIS 49472 (D. Conn. May 19, 2010) (citing Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003) (internal quotations and citations omitted)). The alleged lapse in medical claimed by plaintiff clearly does not rise to the level of a constitutional violation cognizable under the Fourteenth Amendment. Plaintiff also cannot establish that Warden Lee knew of his request for Asacol, and his abdominal pain and deliberately chose to disregard or ignore plaintiff’s request for medical care. Plaintiff did not file an inmate grievance regarding his lack of Asacol, he did not file an emergency medical grievance, which Warden Lee would have responded to within 24 hours, and he did not file an inmate request form that was directed to Warden Lee. Warden Lee had
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no knowledge of plaintiff’s need or request for Asacol. “[N]o reasonable trier of fact could conclude, based on [plaintiff’s] evidence, that any action or inaction on [Warden Lee’s] part[…] "caused" his injury. Shirback v. Lantz, 2008 U.S. Dist. LEXIS 25840 (D. Conn. Mar. 28, 2008). Allegations of negligent medical care provided by CMHC personnel are insufficient to state a claim for supervisory liability against Warden Lee.
The facts alleged by plaintiff and the undisputed testimony of the State defendants establish that Warden Lee is entitled to qualified immunity on plaintiff’s medical claim. Warden Lee is entitled to qualified immunity on plaintiff’s Section 1983 claim unless his conduct violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified immunity is ‘an entitlement not to stand trial or face the other burdens of litigation.’” Saucier v. Katz, 533 U.S. 194, 200 (2001), overruled on other grounds by Pearson v. Callahan, U.S. , 129 S.Ct. 808, 818, 172 L. Ed. 2d 565 (2009) (internal quotations omitted).
“In order to overcome a qualified immunity defense, a plaintiff must demonstrate that taken in the light most favorable to the plaintiff, the facts alleged show that the officer's conduct violated a constitutional right, and that the right allegedly violated was ‘clearly established.’” Amore v. Novarro, 610 F.3d 155, 162 (2d Cir. 2010) (internal quotations and citations omitted). The second prong of qualified immunity is whether the right was clearly established such that a reasonable officer in those circumstances would have thought or clearly understood her or his conduct violated a constitutional right. Saucier, 533 U.S. at 201; Amore, 610 F.3d at 166. These prongs need not be addressed by the Court in any particular order. Pearson, 129 S.Ct. at 818. "In the context of determining whether there is a violation of clearly
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established right to overcome qualified immunity, purpose rather than knowledge is required to impose [] liability on the subordinate for unconstitutional discrimination; the same holds true for an official charged with violations arising from his or her superintendent responsibilities." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
Warden Lee did not establish medical policy at HCC or in the DOC. (Lee Decl. ¶ 5; Exhibit 24, p. 5, ¶ 4); Kirwan v. Lantz, 2007 U.S. Dist. LEXIS 30746 (D. Conn. Apr. 24, 2007) (granting summary judgment to warden did not hire medical personnel or supervise their clinical practices). Warden Lee was not aware of how long CMHC took to provide medication to individual inmates but understood CMHC’s practice to be as soon as possible and always within medically acceptable timeframes. (Lee Decl. ¶ 28). Any time a medical issue came to Warden Lee’s attention, he would refer it to the CMHC Health Services Administrator (HSA) for HCC, Sharon Brown, and seek to address the inmate’s medical concern in collaboration with CMHC. (Lee Decl. ¶¶ 6, 15). There is no evidence that Warden Lee had actual or constructive notice of an ongoing problem at HCC regarding undue delay in inmate’s receipt of prescription medication for chronic or acute medical problems. There is no evidence that Warden Lee had any knowledge of plaintiff being at HCC, until this lawsuit, or that he had any knowledge of his medical needs. (Lee Decl. ¶ 29). Moreover, plaintiff never took reasonable steps to bring his problem to the attention of Warden Lee. He never wrote to him, filed a grievance, spoke with Warden Lee when he toured Dorm 3. (Lee Decl. ¶¶ 28, 29). Plaintiff never spoke with any HCC supervisory personnel such as a Captain, Major or Lieutenant, on their regular tours of HCC about his medical issue.
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The undisputed evidence demonstrates HCC custody staff responded appropriately to plaintiff’s request for medical assistance when he requested their help: they escorted him to CMHC medical staff when informed he was in pain and, later, assisted him in preparing an inmate request form for Asacol which was later submitted to CMHC personnel. (Lee Decl. ¶ 23). These facts demonstrate that as a matter of law Warden Lee is entitled to a finding of qualified immunity on plaintiff’s medical claim. Even if the court finds that plaintiff was subjected to an excessive risk of serious medical harm as a result of a four day delay in receiving Asacol, which it should not for the reasons discussed above, it should find Warden Lee is entitled to qualified immunity because a reasonable warden in his position would not have known that his conduct violated a clearly established constitutional right.
ii. Plaintiff’s Section 1983 “Free Exercise of Religion” Claim Against Warden Lee
Plaintiff also brings a Section 1983 claim asserting Warden Lee violated the Free Exercise Clause of the First Amendment, which provides that "Congress shall make no law. . . prohibiting the free exercise" of religion. U.S. Const. Amend. 1. Prisoners retain some rights to freely exercise their religion while incarcerated.
Prisoners have long been understood to retain some measure of the constitutional protection afforded by the First Amendment's Free Exercise Clause. See Pell v. Procunier, 417 U.S. 817, 822, 41 L. Ed. 2d 495, 94 S. Ct. 2800 (1974). "Balanced against the constitutional protections afforded prison inmates, including the right to free exercise of religion, [however,] are the interests of prison officials charged with complex duties arising from administration of the penal system." Benjamin v. Coughlin, 905 F.2d 571, 574 (2d Cir. 1990). The free exercise claims of prisoners are therefore "judged under a 'reasonableness' test less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights." Farid v. Smith, 850 F.2d 917, 925 (2d Cir. 1988) (quoting O'Lone v. Estate of Shabazz, 482 U.S. 342, 349, 96 L. Ed. 2d 282, 107 S. Ct. 2400 (1987)).
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Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir. 2003). Warden Lee is entitled to summary judgment on this claim because plaintiff cannot satisfy his burden of proof to establish that Warden Lee created any policy or practice that caused a deprivation of plaintiff’s religious freedom; or that Warden Lee had any personal involvement in the alleged deprivation of plaintiff’s rights. Moreover, Warden Lee is entitled to a finding of qualified immunity
The following facts are undisputed: plaintiff is a practicing Muslim, Ramadan occurred between October 14, 2004 – November 13, 2004, plaintiff entered HCC midway through Ramadan on October 29, 2004; that Plaintiff was not placed on the list of inmates in his dorm, Dorm 3, who received a Ramadan meal accommodation (the “Ramadan List”). The formal policy within the DOC, and within HCC, at the time permitted newly admitted and transferred inmates to join the Ramadan List even if Ramadan had already begun. (Bruno Decl. ¶ 26). The year following plaintiff’s incarceration at HCC, the DOC instituted a sign-up deadline for Ramadan for reasons of administrative ease. (Bruno Decl. ¶ 33; Pitts Decl. ¶ 3). There was no sign up deadline in the Ramadan Guidelines issued by the Director of Religious Services, Father Bruno, in 2004 because there was no sign up deadline at all. In order to participate in Ramadan in 2004 and present, an inmate must have: 1) previously designated his religion as Islamic, and 2) sign the Ramadan sign-up form in the presence of a Chaplain. (Bruno Decl. ¶¶ 26, 32; Pitts Decl. 19-21).
It is also undisputed that: plaintiff did not ask for a Ramadan meal accommodation when he was admitted to HCC on October 29, 2004 or at his first meal in the HCC dining hall on Saturday, October 30, 2004; plaintiff did not ask for a Ramadan meal accommodation when he completed his religious designation form at HCC orientation on Monday, November 1, 2004;
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plaintiff did not ask a Chaplain or orientation counselor at orientation for a Ramadan meal accommodation; plaintiff never sought out an HCC Chaplain during Ramadan and he never completed a Ramadan sign-up form in the presence of an HCC chaplain – the required procedure for joining the Ramadan List; plaintiff never filed an inmate grievance about his Ramadan request, never spoke with Warden Lee when the Warden toured his housing unit, Dorm 3, never wrote a letter or inmate request to Warden Lee. Plaintiff cannot establish that he never spoke with any HCC supervisory custody staff – captains, lieutenants, or majors – about his request when they toured his unit. Plaintiff cannot establish that he placed written correspondence in the “religious” mailbox located in his housing unit regarding his request. Plaintiff has no clear recollection about whether he put his request for Ramadan meal accommodation in writing at all. That plaintiff allegedly spoke to three (or four) correction officers about fasting for Ramadan and was allegedly told he could not join the Ramadan List.
It is also undisputed that: plaintiff signed a form at HCC orientation acknowledging receipt of the HCC handbook; that the HCC handbook made clear that HCC employed religious personnel and that these religious personnel (i.e. chaplains) coordinated all religious programs at HCC; that chaplains regularly toured plaintiff’s housing unit and visited other inmates in his unit and that chaplains were announced when they arrived at his unit by custody staff and wore clothing and items that clearly identified them as clergy; that information regarding religious programs at HCC was posted in Dorm 3; that HCC held religious programs for Muslim inmates during those first three weeks of plaintiff’s detention there, such as Taleem and Jumah, and that those programs were announced on his unit either through a loud voice or over an intercom. Plaintiff did not attend any of the Islamic programs at HCC until a month after his arrival at
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HCC. Plaintiff did not speak with any religious personnel until approximately November 22, 2004, approximately a week after Ramadan had ended. If plaintiff had attended any of the Islamic programs at HCC during Ramadan, he would have meet HCC’s Islamic Chaplain, Imam Durmas Avci and Imam Avci could have put plaintiff on the Ramadan List if he made the request to Imam Avci. It is undisputed that had plaintiff spoken with any religious personnel at HCC during Ramadan, he would have likely been placed on the Ramadan List almost immediately and no later than the length of time it took the chaplain to verify his religious designation as Muslim; consult with the IRF; and travel to the kitchen to add plaintiff’s name to the kitchen’s Ramadan List.
It is also undisputed that Plaintiff was extremely shocked and anxious about being suddenly arrested, uprooted from his life and employment in Connecticut, and detained by federal officials for what could have been an indeterminate period of time. It is undisputed that plaintiff experienced some abdominal pain due to extreme anxiety and stress and an alleged flare -up of his Crohn’s disease when he first entered HCC and that his physical discomfort hindered his desire or ability to fast during Ramadan after he entered HCC. It is undisputed that the formal policy at HCC in 2004, and at all times, was to permit newly admitted inmates to join the Ramadan List.
Plaintiff alleges from these facts that Warden Lee created or condoned a covert and rogue policy at HCC of denying Muslim inmates’ access to the Ramadan List in clear contravention of DOC’s Administrative Directive 10.8 and the policies of the Religious Services Director. Based upon the undisputed facts, no reasonable trier of fact could find that Warden Lee
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established a policy of prohibiting new inmates from joining the Ramadan List or that this policy imposed a “substantial burden” on plaintiff’s Free Exercise rights.
Warden Lee had no direct involvement in running religious programs at HCC and he had no direct involvement in establishing religious policy. (Pitts Decl. ¶ 7, Lee Decl. ¶ 32) Religious policy at HCC was established by the Director of Religious Services in the DOC headquarters through the DOC Commissioner. (Bruno Decl. ¶ 7). Warden Lee’s involvement in religious issues was relegated to religious issues that intersected with facility safety and security concerns, such as religious garments, articles and the scheduling of inmate collective religious activities throughout the facility. (Lee Decl. ¶ 32).
There is no evidence of a widespread practice of new inmates being denied access to the Ramadan List. No grievances on the issue were filed at HCC during 2004 or the multiple years before or after 2004 for which grievances were reviewed at plaintiff’s request. Several clergy were deposed in this action, Father Anthony Bruno, Reverend Albert Pitts, Imam Durmas Avci and Imam Abdul Hasan, and each testified that newly admitted inmates at DOC and HCC were always permitted to join the Ramadan List. Imam Avci testified that he was not aware of any grievances at HCC regarding Ramadan. (Avci depo. 104, line 11). Furthermore, the Director of Religious Services and the Islamic consultant retained by the DOC had never heard of a complaint involving a new inmate was kept off the Ramadan List because he entered a facility after the start of Ramadan. (Bruno Decl. ¶¶ 39, 41-42). The testimony and documentary evidence also demonstrates that the Imams employed by the DOC meet and confer frequently to discuss the religious practices of Muslims in the DOC and have no reservations about voicing any concerns they may have or problems they learn about. (Exhibits 28-29). These
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DOC Imams have never reported to Warden Lee, Father Bruno or the Commissioner that there was a problem at HCC with new inmates receiving a Ramadan meal accommodation. (Bruno Decl. ¶ 39).
Three vague statements by three unnamed correction officers, without more, cannot as a matter of law, support a finding that Warden Lee established any “policy” at HCC of barring new inmates from the Ramadan List. “A Section 1983 action may be maintained based on a practice that "was so 'persistent or widespread' as to constitute 'a custom or usage with the force of law.'" Patterson v. County of Oneida, 375 F.3d 206, 226 (2d Cir. 2004) (quoting Sorlucco v. N.Y. City Police Dep't, 971 F.2d 864, 870 (2d Cir. 1992)). The alleged practice "must be so manifest as to imply the constructive acquiescence of senior policy-making officials." Sorlucco, 971 F.2d at 871. Here, there is no evidence that there was a persistent or widespread custom or policy at HCC of not permitting newly admitted inmates to join the Ramadan List. In fact, the undisputed evidence establishes that the opposite was true, newly admitted inmates and transferred inmates were routinely added to the Ramadan List at HCC. (Avci depo. 112; Pitts Decl. ¶ 9; McGrail Decl. ¶ 8).
Since there is no real dispute that the actual policy at HCC in 2004 was that new inmates could join the Ramadan List, plaintiff will allege that Warden Lee should be held personally liable because he failed to train or supervise the three correction officers who allegedly provided plaintiff with incorrect information about the HCC Ramadan policy in 2004. A reasonable trier of fact could not reach this conclusion. Even assuming three unnamed correction officers did erroneously tell plaintiff he could not get on the Ramadan List, Warden Lee is still entitled to summary judgment on a failure to train or failure to supervise claim
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because plaintiff cannot meet the high legal standard of establishing Warden Lee was deliberately indifferent to the need to train or supervise these three correction officers on this issue.
A prison official may be liable under Section 1983 for inadequate training or supervision only upon a showing that his inaction amounted to deliberate indifference to the need for training or supervision. City of Canton v. Harris, 489 U.S. 378, 388 (1989). The Second Circuit has established three requirements for showing that a lack of training manifests deliberate indifference.
First, to reach the jury, the plaintiff must offer evidence from which a reasonable jury could conclude that a policy-maker knows “to a moral certainty” that her employees will confront a given situation. Next, the plaintiff must show that the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation. Finally, the plaintiff must show that the wrong choice by the city employee will frequently cause the deprivation of a citizen's constitutional rights. In addition, at the summary judgment stage, plaintiffs must identify a specific deficiency in the [defendant’s] training program and establish that that deficiency is closely related to the ultimate injury, such that it actually caused the constitutional deprivation.
Green v. City of New York, 465 F.3d 65, 81 (2d Cir. N.Y. 2006) citing Walker v. City of New York, 974 F.2d 293, 297-98 (2d Cir. 1992) (later district court proceedings vacated by and remanded by Green v. City of New York, 359 Fed. Appx. 197, 2009 U.S. App. LEXIS 28590, 22 Am. Disabilities Cas. (BNA) 1384 (2d Cir. 2009) (cert. petition filed May 21, 2010).
There is evidence that Warden Lee was aware that new inmates entered HCC during Ramadan and that some of these inmates may request a Ramadan meal accommodation. It is less clear that he knew to a “moral certainty” an inmate would inquire only with custody staff,
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be ignorant of the existence of religious staff at HCC, and not consult HCC religious staff regarding a religious issue. However, even assuming that Warden Lee did know or should have known to a “to a moral certainty” that HCC custody staff would be exclusively asked for a Ramadan meal accommodation, and assuming Warden Lee could be considered a “policymaker” on this topic, plaintiff cannot establish the other requirements necessary to show a deliberate indifference to the need for additional training. Plaintiff cannot establish that being asked about a Ramadan meal accommodation presented the correction officers “with a difficult choice of the sort that training or supervision will make less difficult.” The undisputed evidence demonstrates that HCC staff were trained at the DOC Academy by Father Bruno to refer all religious questions to religious personnel. HCC custody staff were also provided this instruction on the job at HCC by the IRF, Reverend Pitts, and Reverend Pitts testified that he frequently fielded questions from correction officers on religious programs issues.
Warden Lee had no notice that any correction officer incorrectly responded to a question about religious programming incorrectly and did not refer a religious policy question to HCC religious personnel. Plaintiff also cannot establish that there was a history of “employees mishandling the situation;” there is no record of complaints of this type, no grievances at HCC about Ramadan during the relevant time period. None of the witnesses deposed by plaintiff, including two Imams, had ever heard of a problem with new inmates getting on the Ramadan List and the Islamic Chaplain at HCC actually recalled adding new inmates to the Ramadan List in 2004. The Imams who testified in this case stated they would have remedied any such problem if it came to their attention.
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Plaintiff also cannot show that the incorrect information provided to him is the sort of act that will frequently cause the deprivation of an inmate’s rights; or that the incorrect information is closely related to his particular constitutional injury. In other words, plaintiff cannot establish such that the failure to train these three correction officers was the legal cause of plaintiff’s alleged constitutional deprivation. Plaintiff cannot establish the requisite causal connection between the alleged incorrect information provided by three correction officers and his failure to obtain a Ramadan meal accommodation because accurate information was readily available to him and easily attainable from religious staff. Plaintiff could have easily overcome any burden to his religious exercise imposed by the allegedly incorrect information, if he had taken some very modest steps to vindicate his rights.
The DOC had two easily achievable and reasonable prerequisites to joining the Ramadan List that was applied to all inmates – the inmate must have already designated his religion as Muslim and the inmate had to complete a Ramadan sign-up form and sign it in the presence of a Chaplain. “[A] generally applicable policy will not be held to violate a plaintiff's right to free exercise of religion if that policy is reasonably related to legitimate penological interests.” Redd v. Wright, 597 F.3d 532, 536 (2d Cir. 2010) (internal quotation marks omitted). Plaintiff failed to comply with this DOC procedure and was therefore not placed on the Ramadan List. Plaintiff also failed to take reasonable steps to inquire further about what religious programs were available to him at HCC during Ramadan.
DOC policy required plaintiff take some affirmative steps to sign up for the religious program of Ramadan. This requirement, that plaintiff take measures that “entailed a modest act of commitment by the inmate,” did not violate plaintiff’s free exercise of religion. See Johnson
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v. Delaunay, 2010 U.S. Dist. LEXIS 62038, 10-11 (S.D.N.Y. June 18, 2010) (finding prison’s requirement that plaintiff designate his religion before being permitted to participate in religious programs did not violate the Free Exercise Clause).
While it may be regrettable that a correction officer may have provided plaintiff with incorrect information, there is no dispute that plaintiff could have received a Ramadan meal accommodation if he had just taken the time and modest effort required to reach out to a Chaplain at HCC at some date earlier than late November, 2004. The HCC Chaplains passed plaintiff’s bunk, walked through his dorm, announced their presence in his housing unit, wore clearly identifiable religious garb. Chaplains of other religious denominations carried Ramadan sign-up sheets with them and assisted Muslim inmates with signing up for Ramadan. (Avci depo. 113-114). One small word, one short note dropped in the Religious mailbox and plaintiff’s problem would have been “solved” and he would have been added to the Ramadan List. (Avci depo. 99, Pitts Decl. ¶ 21) Plaintiff may have just as easily gotten on the list if he stopped Warden Lee when he walked past him in Dorm 3, or one of Warden Lee’s supervisory subordinates such as a Captain, Major, or Lieutenant. (Lee Decl. ¶ 56).
Instead, plaintiff remained almost willfully blind to the various modes of communication available to him to speak with religious personnel or the Warden. Plaintiff claims to have been ignorant of the presence of religious personnel at HCC until on or about November 22, 2004. This claim is contrary to the overwhelming evidence that a reasonable person of reasonable intellect would have known there were religious programs and staff at HCC within days of entering HCC. Plaintiff is a highly educated and intelligent individual who spoke and read English fluently in 2004. He claims to have not read the HCC handbook that
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clearly lists religious programs, although he acknowledged receiving it with his signature; he claims to not have heard the religious programs portion of orientation although he may have heard “something” about religion there; he claims to have not seen the mailbox marked “religious” in his dorm; he claims to have not heard any of the announcements in his unit regarding religious programs; he claims to have not noticed the arrival of religious staff on the unit when they toured Dorm 3; he claims to have not witnessed other inmates leaving for religious programs of all denominations after announcement; he claims to have been ignorant of the weekly Jumah and Taleem services, claims to have not witnessed other inmates receiving bagged breakfast during Ramadan.
Plaintiff’s pleas of ignorance to all these patently obvious facts cannot be fairly attributed to Warden Lee such that he can be said to have caused plaintiff to not complete a Ramadan sign-up form in the presence of a Chaplain, which was the required protocol to join the Ramadan List. Warden Lee cannot be found to have imposed a substantial burden on plaintiff’s First Amendment rights through the acts of unnamed subordinates when any alleged burden could have been so easily and ameliorated by plaintiff himself. The only person who truly caused plaintiff to not join the Ramadan List was plaintiff, through his own apathy, neglect and disregard for obvious and easy access to religious programs. Plaintiff’s indifference to religious programs at HCC may have been occasioned by his withdrawal from contact with inmates or staff or his extreme emotional distress or anxiety about being arrested by federal officials but this cannot be a basis for finding Warden Lee individually liable, when Warden Lee did not and could not have known about plaintiff’s subjective mental state.
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Warden Lee is entitled to a finding of qualified immunity on the facts alleged by plaintiff because he had no knowledge of plaintiff’s situation and did not know any correction officer had provided incorrect information to him. (Lee Decl. ¶ 61). In Iqbal, the Supreme Court stated “a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution,” and it explicitly rejected the argument that “a supervisor's mere knowledge of his subordinate's discriminatory purpose amounts to the supervisor's violating the Constitution.”
Here, Warden Lee had no knowledge of plaintiff’s complaint or any complaint from any other inmate regarding access to the Ramadan List. A reasonable warden in Warden Lee’s position would have reasonably relied upon the Director of Religious Services to provide the all necessary information in the Ramadan Guidelines and for the religious personnel at HCC to conduct religious programs. A reasonable warden in Warden Lee’s position would have also reasonably concluded that new inmates know about the existence of religious programs and could direct any specific questions about religion to religious staff. It is not clear what “clearly established” right plaintiff contends was violated by Warden Lee. It cannot be his clearly established right to a Ramadan meal accommodation because that accommodation was available to him provided he followed the protocol of completing the Ramadan sign-up form. Plaintiff appears to be alleging that he had a clearly established right to the free exercise of his religion in a jail unburdened by a requirement that he follow facility protocol regarding signing up for programs or filing a written request for a program or grievance when that request is denied or make reasonable inquiries with appropriate personnel. There was no such clearly
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established constitutional right in 2004 such that Warden Lee can be held personally liable for violating it.
B. Plaintiff’s RLUIPA Claims Plaintiff also brings individual capacity claims against Lee, Pitts and McGrail under RLUIPA but those defendants are entitled to summary judgment on these claims because they cannot be individually liable for money damages under RLUIPA. Moreover, plaintiff was not an institutionalized person when he commenced this action and the facts alleged by him do not rise to the level of a “substantial burden” on his religious practice because his allegations are ones of mistake and negligence by prison officials that he could have easily rectified. Furthermore, there was not policy or official decision that denied him a properly made request to exercise his religious freedom and the State Defendants should be found to have qualified immunity on this RLUIPA claim. RLUIPA provides in relevant part that:
No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. § 2000cc-1(a). RLUIPA also provides that a person may "obtain appropriate relief against a government." 42 U.S.C. § 2000cc-2(a). RLUIPA defines the term "government" to include[s] a branch,
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department, agency, instrumentality, and official (or other person acting under color of law) of the United States, or of a covered entity; 42 USC § 2000bb-2 (1).
Plaintiff should not be permitted to continue to pursue a claim for money damages against the State Defendants in their individual capacities because an overwhelming number court that have considered the question of whether RLUIPA permits money damages against state officials in their individual capacities have found that it does not. Our Circuit has not yet addressed this precise issue, but four Circuit Courts of Appeals have addressed this issue since 2007, the 4th 5th 7th and 11th Circuits, and have concluded that individual liability under RLUIPA is not appropriate because RLUIPA was enacted pursuant to the federal government spending clause powers.2 Smith v. Allen, 502 F.3d 1255, 1272-1273 (11th Cir.2007) ; Sossamon v. The Lone Star State of Texas, 560 F.3d 316, 328-29 (5th Cir. 2009) cert. petition granted, Sossamon v. Texas3, 130 S.Ct. 3319 (Sept. 3, 2010 U.S.); Nelson v. Miller, 570 F.3d 868, 889 (7th Cir.2009); Madison v. Commonwealth of Virginia, 474 F.3d 118, 131-32 (4th Cir. 2006).
Courts in this district and circuit have also concluded, that because the cause of action permitted in RLUIPA is predicated on “contract based” relationship between the federal government and the recipient of federal funds, individual liability is inappropriate.
2 While RLUIPA does contain a reference to the commerce clause, there is no evidence here of an effect on interstate or international commerce to indicate that RLUIPA should be interpreted under the Commerce Clause. 3 The petition was granted on the question of: "Whether an individual may sue a State or state official in his official capacity for damages for violations of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq. (2000 ed.)."
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In a 2008 opinion, this Court held that RLUIPA does not abrogate state sovereign immunity and does not authorize suits for damages against individuals in either their individual or official capacities. See Pugh v. Goord, 571 F. Supp. 2d 477, 506-509 (S.D.N.Y. 2008). Since that time, every court in this circuit to consider the issue has reached the same conclusion. See Singh v. Goord, No. 05 Civ. 9680 (SCR), 2010 U.S. Dist. LEXIS 45330, 2010 WL 1903997, at *3 (S.D.N.Y. May 10, 2010) (adopting conclusion of magistrate judge that RLUIPA does not authorize suits for damages); Vega v. Lantz, No. 04 Civ. 1215 (DFM), 2009 U.S. Dist. LEXIS 88550, 2009 WL 3157586, at *4 (D. Conn. Sept. 25, 2009) (concluding "that RLUIPA provides no cause of action for damages against state officials in their individual capacities," in a case where the official capacity claims had already been dismissed); Sweeper v. Taylor, No. 06 Civ. 379 (NAM) (GJD), 2009 U.S. Dist. LEXIS 27318, 2009 WL 815911, at *9 (S.D.N.Y. Mar. 27, 2009) (citing Pugh and noting that "it has been held that a RLUIPA plaintiff may not obtain monetary damages under the statute either from defendants in their individual or official capacities" and that the plaintiff "would not be able to obtain money damages from defendants"); El-Badrawi v. Dep't of Homeland, Sec, 579 F. Supp. 2d 249, 261-62 & n.13 (D. Conn. 2008) (holding "that RLUIPA lacks an 'unmistakably clear' waiver of sovereign immunity" and noting that "RLUIPA was not meant to extend to claims for money damages"); see also Bock v. Gold, No. 05 Civ. 151 (JGM), 2008 U.S. Dist. LEXIS 9326, 2008 WL 345890, at *1 (D. Vt. Feb. 7, 2008) (adopting a magistrate judge's conclusion that "RLUIPA does not create an action for damages against state employees in either their official or individual capacities").
Johnson v. Delaunay, 2010 U.S. Dist. LEXIS 62038 (S.D.N.Y. June 18, 2010), see also
Fortress Bible Church v. Feiner, 2010 U.S. Dist. LEXIS 82043 (S.D.N.Y. Aug. 11, 2010)
(“This Court agrees and therefore finds that Plaintiffs are not entitled to monetary damages
under RLUIPA.”); Prescott v. Annetts, 2010 U.S. Dist. LEXIS 75025 (S.D.N.Y. July 22, 2010)
(“RLUIPA should not be construed as permitting the recovery of money damages against
defendants in their individual capacities because such a construction would be incongruent with
the reach of Congress' spending power”)(internal quotations omitted).
Accordingly, plaintiff’s claims against the defendants in their individual capacity should
be dismissed. And since this Court has previously held that claims in their official capacity for
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money damages are not proper under RLUIPA, defendants are entitled to summary judgment on plaintiff’s RLUIPA claims in their entirety.
Plaintiff’s RLUIPA claims should also be dismissed because a reasonable trier of fact could not conclude that his religious exercise rights were substantially burdened by any of the State Defendants. While RLUIPA does not define "substantial burden," the Second Circuit has interpreted the phrase as a “term of art” synonymous with same term used in “the Supreme Court's free exercise jurisprudence.” Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338, 348 (2d Cir. 2007). "A substantial burden on religious exercise exists when an individual is required to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion . . . on the other hand." Westchester Day Sch., 504 F.3d at 348 (citing Sherbert v. Verner, 374 U.S. 398, 404, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963)); see also San Jose Christain College v. City of Morgan Hill, 360 F.3d 1024, 1034-35 (9th Cir. 2004) (“For a burden to be substantial under RLUIPA, it must be oppressive to the extent that it renders religious exercise effectively impracticable.”).
Where there is “reasonable opportunity for [a plaintiff] to submit a modified application, the denial does not place substantial pressure on [plaintiff] to change [his] behavior and thus does not constitute a substantial burden on the free exercise of religion.” Westchester Day Sch., 504 F.3d at 349, see also Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir. 2006) (substantial burden is something that "puts substantial pressure on an adherent to modify his behavior.").
Here, plaintiff cannot allege that there was an actual denial of a properly made request for a religious meal accommodation. Plaintiff cannot allege that anyone actually forced him or
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pressured him not to fast; he cannot allege that if he had modified his request for a Ramadan meal accommodation to follow established protocols and put his request in writing in an inmate request form, or a grievance form, or directed his verbal request to a Chaplain, or that his request would have been denied. At most, he can make out a claim that three unnamed correction officers negligently provided him with incorrect information about Ramadan and that he opted to rely exclusively upon that information. This is insufficient, as a matter of law, to constitute a “substantial burden” on an inmate’s free exercise rights.
Moreover, plaintiff cannot state a RLUIPA claim against defendant McGrail because he played absolutely no role in determining who was put on the Ramadan List, was not aware of plaintiff at HCC, did not supervise any correction officer and simply worked in the HCC kitchen preparing the food served to inmates. (McGrail Decl. ¶¶ 6, 10 ). In addition, Plaintiff should be found to not be a “person” for purposes of RLUIPA because plaintiff was “residing in or confined to an institution” at the time he commenced this action and therefore is not entitled to bring a RLIUPA claim under this provision. The State Defendants should also be found to be entitled to qualified immunity for this RLUIPA claim for the same reasons discussed above in, Section A, ii and iii.
C. Defendants Are Entitled to Summary Judgment Before Trial Based Upon Plaintiff’s Failure to Attempt to Reenter the Jurisdiction to be Present for Trial.
The State Defendants should also have plaintiff’s claims against them dismissed before trial unless plaintiff returns to the District of Connecticut for trial or demonstrates that he had made reasonable efforts to lawfully return to the District of Connecticut. Plaintiff testified at his deposition that he ceased his attempts to obtain an entry visa to the United States in 2007.
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(Pl. depo. 192), and that he may choose to decline to enter the District of Connecticut even if he were granted an entry visa. (Id.) The State Defendants played no role in the removal of plaintiff from the United States or in any decision to permit him a visa to travel here.
The Federal Rules require that a “witnesses' testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise. For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.” Fed. R. Civ. P. 43; see also El-Hadad v. United Arab Emirates, F.3d 658, 669 (D.C. Cir. 2007) (finding the requirements of Rule 43 met where the “district court insisted that El-Hadad prove he had pursued and repeatedly been denied a visa to the United States”); Matovski v. Matovski, 2007 U.S. Dist. LEXIS 65519 (S.D.N.Y. 2007) (authorizing testimony via live video line for party who had been denied an entry visa into the U.S.). Plaintiff’s cannot establish good cause in compelling circumstance as to the State Defendants because he has not established that he was denied an visa to return to Connecticut for his trial and he has indicated he might not return even if he received one.
Plaintiff has sued the State Defendants in their personal capacity for money damages and they are entitled to effectively cross examine him at trial. Plaintiff was unable to recall many significant facts at his deposition and as the party with the burden of proof the defendants should be permitted an thorough opportunity to press plaintiff on his recollections or any new facts he recalls at the time of trial. “The importance of presenting live testimony in court cannot be forgotten. The very ceremony of trial and the presence of the factfinder may exert a
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powerful force for truthtelling.” Dagen v. CFC Group Holdings Ltd., 2003 U.S. Dist. LEXIS 20029 (S.D.N.Y. 2003) (internal citation omitted).
IV. CONCLUSION For the foregoing reasons, the State Defendants respectfully request that the Court enter summary judgment in their favor on Counts three, four and five of plaintiff’s Second Amended Complaint.
Respectfully Submitted, DEFENDANTS CHALRES LEE, ALBERT PITTS AND THOMAS MCGRAIL RICHARD BLUMENTHAL ATTORNEY GENERAL BY: _/s/ Maura Murphy Osborne__________
Maura Murphy Osborne Assistant Attorney General Federal Bar No. ct19987 55 Elm Street P.O. Box 120 Hartford, CT 06141-0120 Tel: (860) 808-5020 Fax: (860) 808-5347 Maura.MurphyOsborne@ct.gov
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CERTIFICATION
I hereby certify that on September 10, 2010, a copy of the foregoing Memorandum of Law in Support of Summary Judgment was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system.
/s/ Maura Murphy Osborne Maura Murphy Osborne

 
 Case 3:07-cv-01074-JCH Document 382 Filed 11/05/10 Page 1 of 58
UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

RASHAD AHMAD REFAAT EL BADRAWI :

Plaintiff

:

:

v.

:

:

DEPARTMENT OF HOMELAND

:

SECURITY, et al.

:

Defendants

:

CIVIL ACTION NO. 3:07-CV-1074 (JCH)
NOVEMBER 4, 2010

PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEPARTMENT OF CORRECTIONS’ MOTION FOR SUMMARY JUDGMENT*
Michael Wishnie Hope Metcalf
Pouneh Aravand, Law Student Intern Bonnie Doyle, Law Student Intern Alex Iftimie, Law Student Intern Stephen Poellot, Law Student Intern Alexander Post, Law Student Intern
Saurabh Sanghvi, Law Student Intern ALLARD K. LOWENSTEIN INTERNATIONAL HUMAN RIGHTS CLINIC NATIONAL LITIGATION PROJECT
127 Wall Street New Haven, Connecticut 06510
Sameer Ahmed, Fed. Bar No. phv03980 ASIAN AMERICAN LEGAL DEFENSE
AND EDUCATION FUND 99 Hudson Street
New York, NY 10013 Phone: (212) 966-5932 -EXT 220
*Plaintiff respectfully requests oral argument regarding this motion.

Case 3:07-cv-01074-JCH Document 382 Filed 11/05/10 Page 2 of 58
TABLE OF CONTENTS
Table of Contents ............................................................................................................................ ii Table of Authorities ....................................................................................................................... iv List of Exhibits.............................................................................................................................. vii
INTRODUCTION .......................................................................................................................... 1
FACTS AND PROCEEDINGS ...................................................................................................... 4 A. In 2004, Defendant Lee Had Ultimate Control At HCC, Defendant Pitts Supervised Religious Services and Defendant McGrail Supervised Food Services......................... 4 B. Defendants Lee and Pitts Were Required to Ensure That HCC Officials Understood and Implemented DOC Policies. .................................................................................... 5 C. Defendant Lee Failed to Adequately Train HCC Staff About Ramadan........................ 6 D. Defendant Lee Improperly Encouraged Correction Officers to Answer Inmates’ Questions About Religious Services. ............................................................................. 7 E. Defendant Pitts Created an Unwritten Deadline for Inmates to Join the Ramadan List. 8 F. Defendant McGrail Refused to Allow Certain Muslim Inmates on the Ramadan List. . 9 G. No New Muslim Inmates at HCC Were Able to Join the Ramadan List in 2004. ....... 10 H. Muslim Inmates at HCC in 2004 Were Required to Complete an Unpublicized, 2-Step Process to Practice Ramadan........................................................................................ 12 I. HCC Officials Refused to Add Mr. El Badrawi to the Ramadan List, Substantially Burdening His Religious Exercise. .............................................................................. 14 J. Medical Staff and HCC Officials Failed to Provide Mr. El Badrawi With Urgently Needed Medication Until the Sixth Day of His Incarceration at HCC ........................ 17
ARGUMENT ................................................................................................................................ 19
I. Standard of Review........................................................................................................... 19
II. Defendant Lee Is Not Entitled to Summary Judgment on Mr. El Badrawi’s § 1983 Free Exercise Claim. ................................................................................................................. 20
A. A Jury Could Conclude That HCC Staff Imposed a Substantial Burden on Mr. El Badrawi’s Religious Exercise ...................................................................................... 21
1. A Jury Could Conclude That HCC Custom Did Not Permit New Inmates to Join the Ramadan List Mid-Month ................................................................................ 21
2. HCC Staff Told Mr. El Badrawi that He Could Not Join the Ramadan List.......... 23 i. Multiple HCC Staff Told Mr. El Badrawi that He Could Not Join the Ramadan List, Thereby Imposing a Substantial Burden on his Religious Exercise .............. 24 ii. HCC Religious Policies Did Not Alleviate the Substantial Burden Imposed on Mr. El Badrawi .............................................................................................................. 25
B. A Jury Could Conclude That Defendant Lee Was Sufficiently Involved to Be Liable Under § 1983 ................................................................................................................ 28
1. Ashcroft v. Iqbal Does Not Disturb This Circuit’s Colon Framework for Analyzing Personal Involvement Under § 1983. .................................................................... 28
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2. Defendant Lee Was Personally Involved in Imposing a Substantial Burden on Mr. El Badrawi’s Religious Exercise. ........................................................................... 29
i. A Jury Could Conclude Defendant Lee Created or Allowed the Continuance of a Custom.................................................................................................................... 29
ii. A Jury Could Conclude that Defendant Lee Was Grossly Negligent in Supervising Staff ........................................................................................................................ 31
iii. A Jury Could Conclude Defendant Lee Failed To Act In Light of Evidence of the Constitutional Violation ......................................................................................... 35
C. Defendant Lee Has Not Demonstrated that He Is Entitled to Qualified Immunity Because a Jury Could Conclude that He Violated Mr. El Badrawi’s Clearly Established Rights. ....................................................................................................... 35
III. Defendants Lee, Pitts, and McGrail Are Not Entitled to Summary Judgment on Mr. El Badrawi’s RLUIPA Claim................................................................................................ 37
A. RLUIPA Provides for Damages in Individual Capacity Suits...................................... 37 1. Congress Authorized Individual Capacity Suits Under its Spending Power .......... 38 2. Congress Authorized Individual Capacity Suits Under the Commerce Clause...... 39
B. A Jury Could Conclude That Defendants Imposed a Substantial Burden on Mr. El Badrawi’s Religious Exercise ...................................................................................... 41
C. A Jury Could Conclude That Defendant McGrail Was Sufficiently Involved to Be Liable Under RLUIPA. ................................................................................................ 41
D. Defendants Have Not Demonstrated that They Are Entitled to Qualified Immunity Because a Reasonable Jury Could Conclude that Mr. El Badrawi’s Clearly Established Rights Were Violated. .................................................................................................. 43
IV. Defendant Lee Is Not Entitled to Summary Judgment on the Medical Claim under § 1983 Due to Numerous Material Disputes of Fact. ................................................................... 45
CONCLUSION............................................................................................................................. 49
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TABLE OF AUTHORITIES
Cases Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir. 2010) ........................................................... 24 Adams v. Suozzi, 433 F.3d 220 (2d Cir. 2005).............................................................................. 41 Agrawal v. Briley, 2004 WL 1977581 (N.D. Ill. 2004) ................................................................ 43 Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) ............................................................................... 28, 29 Beatty v. Davidson, 713 F.Supp.2d 167 (W.D.N.Y. 2010)........................................................... 49 Beatty v. Davidson, WL 1407311 (W.D.N.Y. 2010).................................................................... 32 Caiozzo v. Koreman, 581 F.3d 63 (2d Cir. 2009) ......................................................................... 47 Cerilli v. Rell, 2010 U.S. Dist. LEXIS 99358 (D. Conn. Sept. 23, 2010) .................................... 20 City of Canton v. Harris, 489 U.S. 378 (1989)............................................................................. 32 Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995) ..................................................................... passim D'Olimpio v. Crisafi, 2010 WL 2428128 (S.D.N.Y.,2010) ......................................................... 29 El Badrawi v. Dept. of Homeland Sec., 579 F.Supp.2d 249 (D. Conn. 2008).............................. 21 Estelle v. Gamble, 429 U.S. 97 (1976) ......................................................................................... 45 Farmer v. Brennan. 511 U.S. 825 (1994) .................................................................................... 47 Ford v. McGinnis, 352 F.3d 582 (2d Cir. 2003) ............................................................... 29, 36, 44 Green v. City of New York, 465 F.3d 65 (2d Cir. 2006) ............................................................... 32 Hall v. Epke, 2010 WL 3996211 (2d Cir. 2010)........................................................................... 41 Harnett v. Barr, 538 F. Supp. 2d 511 (N.D.N.Y. 2008) ............................................................... 43 In re Dana Corp., 574 F.3d 129 (2d Cir. 2009)...................................................................... 19, 28 Joseph v. Fischer, 2009 U.S. Dist. LEXIS 96952 (S.D.N.Y. 2009)............................................. 42 Katzenbach v. McClung, 379 U.S. 294 (1964) ............................................................................. 40
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Kaytor v. Electric Boat Corp., 609 F.3d 537 (2d Cir. 2010) ........................................................ 20 Layman Lessons, Inc. v. City of Millersville, Tenn., 2008 WL 686399 (M.D.Tenn. 2008) ......... 43 M‘Culloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).............................................................. 38 Maye v. Vargas, 638 F.Supp.2d 256 (D. Conn 2009)................................................................... 36 Morse v. Nelson, 2010 U.S. Dist. LEXIS 11186 (D. Conn. Feb. 8, 2010) ................................... 20 Nelson v. Miller, 570 F.3d 868 (7th Cir. 2009)............................................................................. 24 Orafan v. Goord, 2003 WL 21972735 (N.D.N.Y. Aug.11, 2003) ............................................... 38 Prall v. Hartford Prosecutors, 2010 U.S. Dist. LEXIS 39857 (D. Conn. Apr. 22, 2010) ........... 20 Price v. N.Y. State Board of Elections, 540 F.3d 101 (2d Cir. 2008) ........................................... 19 Qasem v. Toro, No. 09 Civ. 8361, 2010 WL 3156031 (S.D.N.Y. Aug. 10, 2010)....................... 29 Revere v. Mass. Gen. Hosp., 463 U.S. 239 (1983) ....................................................................... 45 Sabri v. United States, 541 U.S. 600 (2004)................................................................................. 38 Sadler v. Lantz, 2010 U.S. Dist. LEXIS 86956 (D. Conn. Aug. 20, 2010) .................................. 20 Salahuddin v. Goord, 467 F.3d 263 (2d Cir. 2006) ............................................................... passim Sherbert v. Verner, 374 U.S. 398 (1963) ...................................................................................... 21 Sossamon v. Texas, 560 F.3d 316 (5th Cir. 2009) ........................................................................ 41 Torres v. Howell, 2006 U.S. Dist. LEXIS 38568 (D. Conn. May 26, 2006) ................................ 20 Vt. Teddy Bear Co. v. 1-800 BEARGRAM Co., 373 F.3d 241 (2d Cir. 2004) .............................. 20 Walker v. City of New York, 974 F.2d 293 (2d Cir. 1992)............................................................ 32 Westchester Day Sch. v. Village of Mamaroneck, 504 F.3d 338 (2d Cir. 2008) .......................... 41 Youngberg v. Romeo, 457 U.S. 307 (1982) .................................................................................. 45 Zellner v. Summerlin, 494 F.3d 344 (2d Cir. 2007)...................................................................... 36
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Case 3:07-cv-01074-JCH Document 382 Filed 11/05/10 Page 6 of 58 Statutes 42 U.S.C. § 2000cc(a)(2)(B)......................................................................................................... 39 42 U.S.C. § 2000cc-1(b)(2)........................................................................................................... 39 42 U.S.C. § 2000cc-2(a) ............................................................................................................... 37 42 U.S.C. § 2000cc-2(g) ............................................................................................................... 40 42 U.S.C. § 2000cc-5(4)(A)(iii).................................................................................................... 37 Other Authorities DOC Statistics: Population Count by Facility, available at
http://www.ct.gov/doc/cwp/view.asp?a=1492&Q=270036&docNav=| .................................. 10
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LIST OF EXHIBITS
Depositions and Declarations 1. Declaration of Plaintiff Rashad El Badrawi 2. Deposition of Plaintiff Rashad El Badrawi 3. Deposition of Charles Lee 4. Deposition of Anthony J. Bruno 5. Deposition of Albert Pitts 6. Deposition of Thomas McGrail 7. Deposition of Durmas A. Avci 8. Deposition of Sufu Hashim 9. Expert Report of Omer Bajwa 10. Deposition of Joseph Del Cararra 11. Deposition of Abdul-Majid Karim Hasan
Documents Provided During Discovery 12. Administrative Directive 8-1 13. Administrative Directive 2-7 14. Roll Call Notice re: Ramadan 2005 15. 2004 Ramadan Sign-Up Sheets 16. 2006 Ramadan Guidelines Memo 17. HCC Ramadan Statistics 2006 18. 2005 Inmate Handbook
vii

Case 3:07-cv-01074-JCH Document 382 Filed 11/05/10 Page 8 of 58 19. DOC Ramadan Guidelines 2006 20. DOC Email on Cost Calculations, 7/13/05 21. DOC Email on Cost Calculations, 8/8/06 22. Memo on Religious Affiliations 23. HCC Daily Ramadan Sheets 2005 24. 2005 HCC Religious Services Audit 25. 2004 HCC Religious Services Audit 26. DOC Ramadan Guidelines 2001 27. DOC Ramadan Guidelines 2002 28. DOC Ramadan Guidelines 2003
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INTRODUCTION Rashad El Badrawi (“Plaintiff” or “Mr. El Badrawi”) brings this lawsuit to seek redress for the denial of his right to observe religious practices and his right to adequate medical care while he was an immigration detainee at the Hartford Correctional Center (“HCC”). Mr. El Badrawi entered HCC in the middle of Ramadan, the holy Islamic month during which Muslims are required to fast from dawn to sunset. An observant Muslim, Mr. El Badrawi had fasted every Ramadan of his adult life and had already been fasting for two weeks when he arrived at HCC. Intent on observing his faith, Mr. El Badrawi quickly asked an HCC official how he could join the Ramadan meal plan in order to continue his fast. The officer denied his request, stating that he could not be added to HCC’s Ramadan meal list because he arrived midway through the holiday. Undeterred, Mr. El Badrawi made repeated inquiries with prison officials and requested to speak with a Muslim chaplain. But HCC officials consistently responded that HCC policy did not permit anyone to join the list mid-month. When HCC officials finally granted Mr. El Badrawi’s request to speak to the Muslim chaplain, Ramadan had ended and the chaplain merely confirmed what the officers had told Mr. El Badrawi. The record in this case demonstrates that denial of Mr. El Badrawi’s religious accommodations was the result of Defendants’ actions, not—as Defendants claim—to his own “apathy” and “neglect.” Defendants are not entitled to summary judgment because of multiple disputes of material fact that present genuine issues for trial. In particular, a jury could reasonably infer that: (1) In 2004, Defendants allowed a custom and practice at HCC to refuse to allow new
inmates to join the Ramadan list mid-month. As a result, Defendants added no new inmates to the HCC Ramadan list in 2004. Over the next two years, as the policy
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changed in 2005 to make an express exception for mid-holiday additions for new arrivals and in 2006 to better publicize this exception, that figure increased dramatically. (2) Even if formal HCC policy allowed inmates to join mid-month--which is subject to dispute—Mr. El Badrawi’s right to religious exercise was substantially burdened because correction officers repeatedly denied his requests to join the list and did not provide any information to explain how he could join. (3) Defendants are themselves personally liable as they failed to train correction officers (a) how properly and correctly to answer inmates’ questions about Ramadan meal accommodations; or (b) absent such training, that correction officers should not answer such questions at all. In fact, Defendant Lee specifically instructed correction officers to respond to religious inquiries, in contravention of the direction of Director of Religious Services for the Connecticut Department of Corrections. Thus, as a direct consequence of Defendants’ conduct, correction officers denied Mr. El Badrawi his right to religious exercise. (4) After learning that new inmates had been denied the opportunity to join the Ramadan list in 2004, Defendants failed to (a) take steps to prevent future unconstitutional denials from occurring, and (b) create clear policies or train their employees to make inmates aware, through HCC’s inmate handbooks or orientation, of how to join the Ramadan list using established processes. Simply put, taking Mr. El Badrawi’s uncontradicted declaration as true – as this Court must on the government’s motion, either the Defendants allowed a custom to prohibit inmates from joining the list mid-month or Defendants personally took actions that led to un-trained
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officials providing incorrect answers that denied Mr. El Badrawi his right to free exercise. Either way, the government’s motion must fail.
In addition, for the first six days Mr. El Badrawi was at HCC, officials did not provide him with Asacol, medication he needs to control his Crohn’s disease, a serious gastrointestinal disorder. In discovery, Plaintiff obtained documents that confirmed the delay in medication, his requests for medication, and his injuries, including rectal bleeding, as well as the policies that led to the failure to be able to provide medications in a timely fashion. Plaintiff has produced evidence from which a jury could reasonably infer that HCC personnel were deliberately indifferent to Mr. El Badrawi’s serious medical need. Moreover, a jury could reasonably conclude that Defendant Lee was aware of complaints about delays in receiving medication at HCC, and yet was grossly negligent in training subordinates and allowed for the continuation of a policy that resulted in a denial of adequate medical care.
In sum, nearly every fact about HCC’s 2004 Ramadan policies for new inmates is in dispute, and significant disputes exist regarding Mr. El Badrawi’s medical claim. Moreover, Defendants’ legal arguments run afoul of precedent and Congressional intent. Individual damages are plainly appropriate under RLUIPA pursuant to both the Spending and Commerce Clauses. Despite the fact that Congress expressly provided that RLUIPA must be construed broadly to protect religious exercise, Defendants attempt to argue that Mr. El Badrawi is not a “person” under the statute and should not be entitled to any form of damages.
To support their motion for summary judgment, Defendants rely on a number of flawed arguments. Despite the fact that no inmates joined the list mid-month in 2004, Defendants claim inmates were able to join at that time. Despite the fact that Mr. El Badrawi made repeated attempts to join the list to multiple HCC officials only to be repeatedly denied, Despite the fact
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that Defendant Lee specifically was responsible for ensuring correction officers properly implemented DOC policies and instructed them to answer religious questions against DOC policy, Defendants claim he had nothing to do with religious matters. Despite the fact that Defendant Lee was responsible for the safety and security of his inmates, the Defendants claim he was not responsible when inmates endure severe pain due to delays in obtaining medication.
Because of the substantial evidence supporting Mr. El Badrawi’s claims, and because this Court must disregard any evidence favorable to Defendants that a jury would not be required to believe, this Court should deny Defendants’ motion.
FACTS AND PROCEEDINGS On October 29, 2004, Rashad El Badrawi, a foreign national who had lawfully studied and worked in the United States for nearly eleven years was wrongfully arrested by federal immigration enforcement agents. Ex. 1 ¶¶ 1, 3. Later that day, Mr. El Badrawi was transferred to Defendant Lee’s custody and detained at the HCC. Ex. 1 ¶ 3. A. In 2004, Defendant Lee Had Ultimate Control At HCC, Defendant Pitts
Supervised Religious Services and Defendant McGrail Supervised Food Services. In October 2004, Defendant Lee was the Warden of HCC and was responsible for maintaining control of the facility, preserving the safety and security of the inmate population, and ensuring that Connecticut Department of Correction (DOC) policies and directives were properly implemented. See Ex. 3 at 21, 26-27, 100; Ex. 4 at 21. As the Institutional Religious Facilitator at HCC in 2004, Defendant Pitts was responsible for coordinating religious services at HCC and implementing DOC’s religious services directives. Ex. 5 at 9; Def. Ex. 11 (2003 Inmate Handbook) at 10. Any issue concerning religious services would “filter through the religious department.” Ex. 5 (Pitts Depo.) at 9. In 2004,
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Defendant Pitts was responsible for determining whether an inmate could receive Ramadan meal accommodations at HCC. See id. at 94.
Defendant McGrail supervised food service operations at HCC in 2004 and implemented DOC’s food and nutrition policies. Food services handled requests for the provision of meals accommodating religious dietary restrictions–the “common fare diet.” See Ex. 6 (McGrail Depo.) at 37; Ex. 5 at 135. Although DOC policies required the Institutional Religious Facilitator, Defendant Pitts, to control the Ramadan meal accommodation lists, see Ex. 6 at 63; Ex. 5 at 94, in 2004 Defendant McGrail exercised power over inmates’ Ramadan meal accommodations. See Ex. 7 at 108 (Imam Avci discussing how Defendant McGrail refused to add two new inmates to the Ramadan list); Def. Ex. 17 (HCC Ramadan Statistics 2004, including note that “Kitchen supervisor didn’t allow inmates to remove temporaraly [sic]”).
B. Defendants Lee and Pitts Were Required to Ensure That HCC Officials Understood and Implemented DOC Policies.
Broad DOC policies are distributed to individual facilities in the form of administrative directives. See Ex. 3 at 30-32; Def. Ex. 12 (Administrative Directive 10-8 on Religion); Ex. 12 (Administrative Directive 8-1 on Medical Care). Correction officers are trained in DOC policies and administrative directives in pre-service training and through various types of in-service training, which the DOC’s academy coordinates. See Ex. 3 (Lee Depo.) at 35-36; Ex. 13 (Administrative Directive 2.7). Units within DOC, including the Religious Services Unit, may create and distribute DOC policies through memoranda on specific issues. Ex. 3 at 35-36.
When a policy changed and a new administrative directive was issued, the change “would go to the warden, and the warden’s responsibility would be to make staff aware.” Ex. 4 (Bruno Depo.) at 39. Wardens instruct facility staff on the content of policy memoranda on specific issues through daily roll calls. Ex. 3 (Lee Depo.) at 57-58. Defendant Lee was responsible for
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determining the content of roll calls. See Ex. 5 (Pitts Depo.) at 33; see also Ex. 23 (Roll Call Notice regarding Ramadan 2005). Through roll call, Defendant Lee could train facility staff on issues and correct any systemic problems with correction officer behavior. Ex. 5 (Pitts Depo.) at 32, 48. As institutional religious facilitator, Defendant Pitts was responsible for answering correction officers’ questions regarding religious services and directing recurring issues to the Warden. Id. at 48-49.
As warden, Defendant Lee was responsible for ensuring that inmates received information about DOC and HCC policies through the Inmate Handbook. Ex. 3 (Lee Depo.) at 30, 122; Ex. 5 (Pitts Depo.) at 133-34. HCC officials were supposed to provide new inmates with a copy of the Inmate Handbook and explain its contents at orientation. Ex. 4 at 111; Ex. 5 at 57. Defendant Lee had overall responsibility for the content of the handbook for HCC and reviewed the content before it was finalized. Ex. 3 at 122. As institutional religious facilitator, Defendant Pitts reviewed and approved the content of the religious services section of the Inmate Handbook before sending it to Defendant Lee for final review. Ex. 5 at 133-34.
C. Defendant Lee Failed to Adequately Train HCC Staff About Ramadan. In September 2004, Defendants Lee and Pitts received a memorandum from DOC’s Director of Religious Services, Rev. Anthony Bruno, containing DOC’s 2004 Ramadan Guidelines. Def. Ex. 15 (2004 Ramadan Guidelines Memo) at 1. DOC administrative directives do not address Ramadan, see Def. Ex. 12 (Administrative Directive 10-8 on Religion), and these posted staff guidelines were the only written DOC policy document for Ramadan. Ex. 5 (Pitts Depo.) at 74. General DOC training for correction officers and staff does not include any specific information about Ramadan. See Ex. 7 (Avci Depo.) at 29; Ex. 13 (Administrative Directive on training); Ex. 5 (Pitts Depo.) at 74. As a result, roll call was the only opportunity to provide
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training to HCC staff regarding Ramadan policies. Ex. 3 (Lee Depo.) at 57-58; Ex. 5 (Pitts Depo.) at 77. Rev. Bruno’s memorandum did not contain any instructions on how to train staff regarding the Ramadan Guidelines. See Def. Ex. 15 at 1. However, at HCC, where Defendant Lee determined the content of roll call, see Ex. 5 (Pitts Depo.) at 33, commanding officers only explained certain “portions” of the Ramadan guidelines to HCC staff and correction officers. Ex. 3 at 59. Officers leading roll call read the dates when Ramadan began and ended, how inmates would receive bagged breakfasts, and how to remove an inmate who has broken the fast. Id. Defendant Lee did not take any steps other than roll call to inform HCC staff and correction officers on how to handle new inmates or other Ramadan policies. See id. at 57.
D. Defendant Lee Improperly Encouraged Correction Officers to Answer Inmates’ Questions About Religious Services.
In spite of their lack of training on Ramadan, Defendant Lee encouraged his correction officers—contrary to DOC policy—to answer inmates’ questions about Ramadan policies. See Ex. 3 (Lee Depo.) at 143. According to DOC’s Director of Religious Services, correction officers were not permitted to answer any questions relating to religious matters and were required to refer all such questions to chaplains. See Ex. 4 (Bruno Depo.) at 34-35. This rule was so important that the Religious Services Director testified that he would “jump up and down” at new employee trainings to ensure that staff knew never to answer religious questions. See Id. at 30-31.
In depositions, religious services personnel noted several reasons for this policy. First, correction officers were unqualified to answer religious questions. Ex. 4 (Bruno Depo.) at 30-31. Second, current and former imams at HCC testified that some HCC correction officers deliberately discriminated against Muslim inmates who asked for assistance. See Ex. 7 (Avci Depo.) at 111 (“[Correction officers at HCC] assume all Muslims bad.”); see also Ex. 8 (Hashim
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Depo.) at 54-56 (noting “overall disrespect for Muslims” among HCC staff and noting that it was a risk to complain to HCC commanding officers about anti-Muslim bias because “a lot of stuff falls on deaf ears, and sometimes it can be dangerous.”). Third, religious services personnel would not necessarily be aware if correction officers provide incorrect information. See Ex. 4 (Bruno Depo.) at 31-32; Ex. 5 (Pitts Depo.) at 42.
In his deposition, Defendant Lee acknowledged the risk of his policy but did not note any safeguards that he put in place: “If a correctional officer is giving wrong information, then that sometime or another, I'm hoping that information would be corrected because the inmate would not be able to do what he requested based on the information that the officer gave him.” Ex. 3 at 143-44. To minimize the risk that incorrect information resulted in a violation of an inmate’s constitutional right to practice his religion, DOC’s Director of Religious Services implemented a policy that required correction officers to refer all questions to religious services, even if a correction officer believed he/she knew an answer to the question. See Ex. 4 (Bruno Depo.) at 31-32. However, Defendant Lee insisted it was an affirmative “responsibility” of correction officers at HCC to “answer any question they have knowledge of,” including religious ones, greatly increasing the risk of a constitutional violation. Ex. 3 at 143-45.
E. Defendant Pitts Created an Unwritten Deadline for Inmates to Join the Ramadan List.
The DOC’s 2004 Ramadan guidelines did not require a sign-up deadline for Muslim inmates, but at HCC in 2004, evidence suggests that Defendant Pitts and HCC religious services staff imposed a deadline anyway. Ex. 5 (Pitts Depo.) at 111-12; Ex. 7 (Avci Depo.) at 39-40. The DOC’s Director of Religious Services indicated that according to DOC policy in 2004: “These guidelines do not provide for a deadline for signing up, so people are signing up all through Ramadan.” Ex. 4 (Bruno Depo.) at 68. However, in his deposition, Defendant Pitts, when asked
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about a deadline for Ramadan sign-ups in 2004 at HCC, explained: “I think it was there, but I don't think it was written and I don't think it was in the guidelines, and thereby maybe confusing about whether or not we could do that or not. So, I think, if I remember correctly, it was implicit.”1 Ex. 5 at 112. Defendant Lee, who did not recall if there was deadline in 2004, testified that the absence of an explicit deadline in DOC policy meant that at HCC, he allowed Defendant Pitts to determine an appropriate deadline. Ex. 3 at 65. Evidence suggests that Imam Avci believed that HCC imposed a deadline of five days before the start of Ramadan in 2004. Ex. 7 at 39-40. Evidence also suggests that a deadline at HCC was not intended to apply to new inmates in 2004. Ex. 3 at 65; Ex. 7 at 46-47. Neither Defendant Lee nor Defendant Pitts believed a deadline at HCC should have applied to new inmates in 2004. Ex. 3 at 65; Ex. 5 at 112. However, because Defendant Pitts’s deadline was unwritten, the specific details, including an exception for new inmates, would not have been posted for correction officers to read and would not have been explained to correction officers during the Ramadan roll call training, which was limited to the content of the DOC’s Ramadan guidelines. Ex. 3 (Lee Depo.) at 57-58; Ex. 5 (Pitts Depo.) at 77.
F. Defendant McGrail Refused to Allow Certain Muslim Inmates on the Ramadan List.
Evidence suggests that because Defendants Lee and Pitts failed to provide supervision or clear guidance, inmates who were entitled to be on the Ramadan list were not allowed on. See Ex. 7 (Avci Depo.) at 55, 107-09; Ex. 1 ¶¶ 10-15. Under HCC policy, Defendant Pitts controlled access to the Ramadan list in 2004. Ex. 5 (Pitts Depo.) at 94. According to DOC’s Ramadan guidelines, the Islamic chaplain should interview any Muslim inmate found to have broken the fast to determine if there are religious reasons for the inmate to be reinstated. Def. Ex. 15 (DOC
1 At the conclusion of his deposition, upon cross-examination from his attorney, Defendant Pitts changed his position and stated that there was no implicit or explicit deadline in 2004. Ex. 5 at 156-57.
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Ramadan Guidelines 2004) at 3. Evidence suggests that in 2004, Defendant McGrail imposed a policy that Muslim inmates were not allowed to be removed temporarily from the Ramadan list. See Ex. 7 (Avci Depo.) at 55; Def. Ex. 17 (HCC Ramadan Statistics 2004) (“Kitchen supervisor didn’t allow inmates to remove temporaraly [sic]”). For the Food Services department at HCC, adding inmates who arrived in the middle of the month to the Ramadan list was a disruptive, burdensome process. See Ex. 5 (Pitts Depo.) at 109 (“[Food Services] have to revamp their list, make the bags, and they just kind of complained about it.”); Ex. 4 (Bruno Depo.) at 95-96 (noting problems for kitchen staff for adding new inmates). When asked in his deposition about whether there was any confusion at Food Services in HCC due to the challenge of adding new inmates, Defendant Pitts replied: “Confusion? They didn't like doing it, there was no confusion.” Ex. 5 at 113-14. In addition to not allowing inmates to be removed temporarily from the Ramadan list in 2004, Defendant McGrail also refused to allow HCC’s Islamic chaplain to add new inmates to the Ramadan list after the deadline had passed. See Ex. 7 (Avci Depo.) at 107-09. Although the Islamic chaplain believed that Defendant Lee was able to remedy the situation, HCC’s 2004 Statistics and Sign-up Sheets show that not a single new inmate joined the Ramadan list in 2004. Cf. Ex. 7 at 107-09; Def. Ex. 17 (HCC Ramadan Statistics 2004); Ex. 20 (2004 Ramadan Sign-Up Sheets).
G. No New Muslim Inmates at HCC Were Able to Join the Ramadan List in 2004. HCC is a large2 high-turnover correctional facility, see Ex. 5 (Pitts. Depo) at 61-62; Def. Ex. 33 (Lee Decl.) ¶ 9, that houses a substantial number of Muslim inmates.3 Yet HCC records
2 In 2004, HCC held approximately 950 inmates. See DOC Statistics: Population Count by Facility, available at http://www.ct.gov/doc/cwp/view.asp?a=1492&Q=270036&docNav=|. 3 A little less than one in ten DOC inmates affiliates as Islamic, see Ex. 26 (Memo on Religious Affiliations).
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show that not a single new Muslim inmate joined the Ramadan meal plan mid-month in 2004. See Def. Ex. 17 (HCC Ramadan Statistics 2004).4
Moreover, in 2005, DOC’s Religious Services Unit changed the written Ramadan guidelines to require that facilities have an explicit deadline, but also to accept new inmates. (“For planning purposes, there must be a posted deadline for signing up, after which only new inmates into the institution will be allowed to sign up.”). See Def. Ex. 19 at 3 (DOC Ramadan Guidelines 2005). The memo accompanying the Ramadan guidelines mentioned the required deadline but did not mention new inmates. See Id. at 1 (2005 Ramadan Guidelines Memo). In 2006, DOC’s Religious Services Unit applied a DOC-wide deadline date, but also included the exception for new inmates in both the guidelines and the memorandum circulated to all facilities. See Ex. 18 (DOC Ramadan Guidelines 2006); Ex. 19 (2006 Ramadan Guidelines Memo) (“Please note Paragraph 14: Except for new inmates entering the facility, the absolute deadline...”). As the DOC’s written Ramadan policy more explicitly took discretion away from the Defendants at HCC, more new Muslim inmates were able to join mid-month:

Year

DOC Ramadan Memo & Guideline

New Muslim Inmates Added to

Ramadan List at HCC

4 HCC archived its 2004 Ramadan sign-up forms. See Ex. 20 (2004 Ramadan Sign-Up Sheets). Every Muslim inmate who joined the Ramadan list was required to fill out a sign-up form, Ex. 5 at 66-68; Ex. 7 at 39, and HCC officials received all 2004 forms before October 14. See Ex. 20 (2004 Ramadan Sign-Up Sheets). Thus all inmates who participated in Ramadan at HCC in 2004 must have arrived before October 14. HCC also maintained a 2004 Ramadan Statistics Sheet. See Def. Ex. 17 (HCC Ramadan Statistics 2004). According to the Sheet, thirty-eight Muslim inmates began Ramadan. Id. Twenty-four inmates were permanently removed from the list before completion. Id.; see also, Ex. 20 (2004 Ramadan Sign-Up Sheets, noting reasons for removal). Twelve inmates completed Ramadan at HCC, Def. Ex. 17 (HCC Ramadan Statistics 2004), and two inmates transferred to other facilities. Id.; see also Ex. 20 (2004 Ramadan Sign-Up Sheets, noting inmate transfer to another facility). Strangely, the Islamic chaplain in 2004 suggested during his deposition that the 2 “transferred” inmates refer to new inmates, see Ex. 7 at 97, and the Defendants therefore cite these statistics as evidence for the fact that new inmates were added. Def. Local Rule 56(a)(1) Statement ¶ 194. However, Defendant Pitts and Defendant Lee themselves were shown the 2004 Statistics Form and testified that the term “transferred inmates” refers to inmates transferring out of HCC, not new inmates. See Ex. 3 at 100; Ex. 5 at 81-82. The Defendants have failed to explain why, if the term “transferred” referred to new inmates, the form statistics account for only 36 of the 38 inmates who started Ramadan.
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2004 DOC memo and guidelines are silent on the issue of a

0

sign-up deadline.

20055 DOC memo requires a sign-up deadline but is silent on

3

the issue of inmates; DOC guidelines require a sign-up

deadline but indicate there is an exception for new

inmates.

2006 DOC memo and guidelines both require a sign-up

11

deadline but both include an exception for new inmates.

See Def. Ex. 15 (2004 Ramadan Guidelines Memo and DOC Ramadan Guidelines 2004) at 1-3;
Def. Ex. 19 (2005 Ramadan Guidelines Memo and 2005 DOC Ramadan Guidelines) at 1-3; Ex.
19 (2006 Ramadan Guidelines Memo); Ex. 18 (DOC Ramadan Guidelines 2006). Def. Ex. 17
(HCC Ramadan Statistics 2004); Ex. 21 (HCC Daily Ramadan Sheets 2005); Ex. 22 (HCC
Ramadan Statistics 2006)
H. Muslim Inmates at HCC in 2004 Were Required to Complete an Unpublicized, 2-Step Process to Practice Ramadan.
According to formal but unpublicized HCC policies in 2004, new Muslim inmates
seeking to practice Ramadan had to first designate their religion as Islamic on a Religious
Affiliation form, and then seek out a chaplain in order to complete a Ramadan sign-up form. See
Ex. 5 (Pitts Depo.) at 77-78; Ex. 4 (Bruno Depo.) at 102-03. Inmates may learn of most HCC
policies through HCC’s inmate handbook or inmate orientation, which is based on the inmate
handbook. Ex. 3 (Lee Depo.) at 30, 122; Ex. 5 (Pitts Depo.) at 133-34. Religious services is one
out of forty-nine sections of the handbook that would be reviewed in orientation. See Def. Ex. 11
(2003 Inmate Handbook); Ex. 14 (2005 Inmate Handbook). Defendants Lee and Pitts, who both
reviewed the content of the inmate handbook, see Ex. 3 at 122; Ex. 5 at 133-34, did not ensure
5 The Defendants did not produce a Ramadan statistics sheet or Ramadan sign-up sheets for Ramadan at HCC in 2005. However, the Defendants did produce daily “Ramadan sheets” for fifteen of the thirty days of Ramadan in 2005. See Ex. 21 (HCC Daily Ramadan Sheets 2005). The Ramadan sheets list the individual inmates who participated in Ramadan each day. Id. When compared, the daily Ramadan sheets show that three HCC inmates were added to the Ramadan list mid-month—on October 7, 2005 (inmate K-7), October 22, 2005 (inmate Q-1), and November 2, 2005 (inmate G-5). Id.
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that the handbook included any contain any reference to Ramadan, an Islamic chaplain, or any explanation of how to sign up for Ramadan. See Def. Ex. 11 (2003 Inmate Handbook); Ex. 14 (2005 Inmate Handbook).6 In a confusing contrast, the Inmate Handbook instructs inmates to refer all requests for religious diets to food services staff. Id. The Defendants maintain that inmates would have known about Ramadan because Ramadan information was posted in housing units. See Def. Local Rule 56(a)(1) ¶ 163. However, every set of Ramadan Guidelines provided by the Defendants reads, in full caps along the top of the page: “STAFF GUIDELINES—NOT FOR GENERAL POSTING.” See Ex. 15 (DOC Ramadan Guidelines 2001); Ex. 16 (DOC Ramadan Guidelines 2002); Ex. 17 (DOC Ramadan Guidelines 2003); Def. Ex. 15 at 2 (DOC Ramadan Guidelines 2004); Def. Ex. 19 at 2 (DOC Ramadan Guidelines 2005); Ex. 18 (DOC Ramadan Guidelines 2006). At his deposition, Defendant Pitts denied that the Ramadan guidelines would be posted where inmates could access it. Ex. 5 at 89. Defendants have failed to produce evidence of other Ramadan materials available to inmates in 2004.
Muslim inmates could not expect to receive written notice of Ramadan procedures in 2004, and the Defendants also failed to take steps to ensure that new inmates would receive verbal notice at orientations. Defendant Pitts believed that Ramadan should have been mentioned and sign-up forms provided in the weeks before Ramadan started. Ex. 5 at 67-68. But Defendant Lee and Rev. Bruno both testified that Ramadan sign-up forms were not provided at orientations. Ex. 3 at 71; Ex. 4 at 77.
Dorm tours by chaplains were also an unreliable means for alerting new inmates to HCC Ramadan policies. Although religious services staff tour as part of their required duties, the visits
6 HCC did not provide a 2004 Inmate Handbook in discovery, and Mr. El Badrawi did not recall receiving one, although he was required at orientation to sign a form saying that he received one. See Badrawi Dec. HCC did provide copies of the 2003 and 2005 Inmate Handbooks, and there is no material divergence in the religious or food services sections of the handbooks. Cf. 2003 and 2005 Inmate Handbooks.
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may brief and inmates would not necessarily be present. Ex. 7 (Avci Depo.) at 74, 76; see also Def. Ex. 23 (Chaplain Log Book, November 2004, noting that chaplains covered dorms with hundreds of inmates in each tour). For instance, on November 3, 2004, Imam Avci toured thirteen dorms in three hours. Each dorm housed approximately sixty inmates and the 13 dorms together thus housed approximately seven hundred and eighty inmates. See Def. Ex. 23 at 2 (Chaplain Log Book, November 2004); Ex. 7 (Avci Depo.) at 73. Moreover, Imam Avci wore business attire that would not identify him as an Islamic chaplain. See Ex. 5 (Pitts Depo.) at 55; Ex. 7 (Avci Depo.) at 14-15. Additionally, Imam Avci testified at his deposition that some correction officers at HCC improperly refused to announce him and other chaplains. Ex. 7 at 76. (“Because they don't like Islam, they don't like imam.”).
Defendants’ failure to ensure that new Muslim inmates had information about Ramadan is especially consequential because delays in processing religious affiliation forms made it difficult for Islamic chaplains to learn the identities of new Muslim inmates. See Ex. 5 (Pitts Depo.) at 126. According to Defendant Pitts, it “would take up to two weeks. . . There’s only one person doing it and there was a backlog all the time. . . Because as it happened, we deal with Ramadan. That would even cause us to push that list back a little further.” Ex. 5 at 126. In 2004.
I. HCC Officials Refused to Add Mr. El Badrawi to the Ramadan List, Substantially Burdening His Religious Exercise.
Mr. El Badrawi is a practicing Sunni Muslim. Ex. 1 ¶ 7. In observance of his faith, he prays five times a day and refrains from consuming any drugs, alcohol, and pork products. Id. In addition, in every year of his adult life with the exception of 2004, he has fasted during the month of Ramadan, in accordance with the tenets of Islam. Id. Ramadan is the holiest month of the Islamic year and completing a Ramadan fast is a fundamental religious obligation for all adult Muslims. Ex. 9 (Expert Report of Omer Bajwa). Fasting means abstaining from eating or
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drinking anything from dawn until sunset. Id. Participating Muslims fast throughout the day until sunset, when participating Muslims break their fast with a meal known as iftar. Id. Participating Muslims are permitted to eat and drink until the next morning. Id.
Mr. El Badrawi was wrongfully arrested and entered HCC custody on October 29, 2004, the sixteenth day of the month of Ramadan. Ex.1 ¶¶ 3, 8. During his arrest, he maintained his fast and refused any food that was offered to him. Id at ¶ 9. Once he was in custody at HCC, he began the first of a number of requests to be allowed to have a meal accommodation in order to continue to observe Ramadan. Id at ¶ 10. He made his first request for a meal accommodation to an HCC official in the initial two days of his incarceration. Id at ¶ 11. The official denied his request, stating that because he had arrived at HCC after Ramadan had started, he could not be placed on the Ramadan meal accommodation list. Id. In total, Mr. El Badrawi made three requests, to three different HCC officials, during Ramadan: a white male prison counselor in his thirties, an African-American female correction officer, and a white male correction officer with blond hair. Id at ¶ 14. All told him the same thing: because he had arrived at HCC after Ramadan had started, the official could not place him on the Ramadan meal accommodation list. Id at ¶¶ 11-13. Because multiple HCC officials consistently responded to Mr. El Badrawi’s requests for a meal accommodation by citing HCC policy, Mr. El Badrawi had no reason to believe that there were any other steps he could take to be placed on the Ramadan list. Id at ¶ 15. None of the officials told Mr. El Badrawi to file a written request, and he reasonably believed that any request would have been futile. Id at ¶ 16.
HCC officials did not provide Mr. El Badrawi with any other information about Ramadan policies at HCC. Id at ¶ 17. The presenters at the orientation that Mr. El Badrawi attended did not mention Ramadan, an Islamic chaplain, or religious personnel at HCC. Id at ¶ 19. The
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presentation did not include a video and Mr. El Badrawi was not provided with a copy of an inmate handbook, although HCC officials required him to sign forms attesting to both. Id. Because of the inadequate orientation, Mr. El Badrawi was unaware that there was an Islamic chaplain until he spoke to another inmate, who told him about the chaplain. Id at ¶ 21.
Once he learned that there was a Muslim chaplain at the HCC, Mr. El Badrawi requested to speak with him to ask him why the other HCC officials did not add him to the Ramadan list. Id at ¶ 13. But the Islamic chaplain did not meet with Mr. El Badrawi until after Ramadan concluded. Id. When Mr. El Badrawi finally spoke to the Islamic chaplain, the chaplain confirmed that HCC officials were not able to add Mr. El Badrawi to the Ramadan list once Ramadan had begun. Id.
The HCC officials’ denial of Mr. El Badrawi’s request for a meal accommodation was especially important because different officials at HCC had also denied Mr. El Badrawi necessary medication for his Crohn’s disease. Id at ¶ 23. Because Mr. El Badrawi was in serious pain and needed adequate nutrition, he could not have subsisted on the single meal that HCC gave Mr. El Badrawi after sunset. Id. As a result, for the first time as an adult, Mr. El Badrawi could not observe Ramadan. Id at ¶ 25.
After he received his medication from HCC officials, Mr. El Badrawi resumed fasting by surviving on the single meal HCC officials provided to him after sunset. Id at ¶ 26. Without breakfast or lunch, Mr. El Badrawi was able to sustain himself through small amounts of food, an apple or a cookie, that other inmates provided to him out of pity. Id. When the inmates were not able to give him food, his only other sustenance was a glass of water. Id at ¶ 27. Because of the actions of HCC officials that prevented Mr. El Badrawi from freely exercising his religion, Mr. El Badrawi suffered severe distress. Id at ¶ 44.
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J. Medical Staff and HCC Officials Failed to Provide Mr. El Badrawi With Urgently Needed Medication Until the Sixth Day of His Incarceration at HCC
At the time of his arrest and detention, Mr. El Badrawi suffered from Crohn’s disease, a chronic disorder that causes inflammation of the gastrointestinal tract, resulting in severe pain when left untreated. Ex. 1 ¶ 29. Mr. El Badrawi would take six Asacol pills a day, an average of 180 pills a month. Ex. 1 ¶¶ 30-31; Ex. 2 at 79. He took his medication daily up until the day prior to entering HCC on October 29, 2004. Ex. 1 ¶ 32. If Mr. El Badrawi ever missed a dose of his medication, he would try to make up for it in the same day by taking it in the afternoon or evening. Ex. 2 at 78-79. When he was being arrested, Mr. El Badrawi asked ICE officials to bring his Asacol pills and he was sure they were brought to the federal facility where he was kept on October 29, 2004. Ex. 1 ¶¶ 34-35; Ex. 2 at 111-112.. While he was being held at the federal facility, he “specifically asked” two males who were handling his transfer to HCC to bring his Asacol medication. Ex. 2 at 106. Mr. El Badrawi was under the impression that his medication was accompanying him to HCC. Id. However, HCC did not make arrangements to receive his medication. Ex. 1 ¶ 35
HCC is a direct intake facility that experiences very high turnover rates of its inmate population. Def. Ex. 33 ¶ 9. At all relevant times, healthcare for inmates at HCC was overseen by University of Connecticut Correctional Managed Healthcare (CMHC), a subdivision of the University of Connecticut Health Center (UConn). Def. Ex. 33 ¶¶ 5, 13. A Memorandum of Understanding between DOC and University of Connecticut established the services provided by CMHC. Def. Ex. 14. Newly admitted inmates at HCC underwent a medical and mental health evaluation. Ex. 10 at 14-16; Def. ex. 33 ¶ 12; Def. Ex. 1. These evaluations were conducted by medical personnel employed by CMHC. Def Ex. 33, ¶ 13.
Shortly after being transferred to Defendant Lee’s custody, Mr. El Badrawi informed
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officials at HCC of his medical condition and made repeated requests for his medication. Ex. 1 ¶¶ 36.38-41.7 On the evening of October 29, upon arriving at HCC, Mr. El Badrawi informed the two individuals performing his medical screening that he needed his medication. Id. ¶ 38; . Between the night of October 29 and the morning of October 30, he informed a number of his inmates of the severe abdominal pain he was experiencing and his need for his Asacol pills. Id. ¶ 39. One inmate informed a correction officer about his condition. Id. During the night of October 29 and morning of October 30, Mr. El Badrawi also informed an HCC nurse about the need for his medication. Id. ¶ 40. The nurse, however, said that she was not authorized to provide him with his Asacol pills. Id. Mr. El Badrawi also filled out an inmate request form on November 1, requesting the medication that was being denied to him. Id. ¶ 41; Def. Ex. 5.
Despite repeated and persistent requests, however, Mr. El Badrawi did not receive Asacol pills until his sixth day of imprisonment at HCC. Def. Ex. 6 at 1. During this time, Mr. El Badrawi experienced severe pain and internal bleeding that could have been alleviated by his medication. Ex. 1 ¶¶ 36-37. The pain prevented him from sleeping for an entire night and occurred periodically throughout that week. Ex. 1 ¶ 37.
During the relevant period, if an inmate requested uncommon medication during the intake process, a nurse would fax a request for the medication to an offsite pharmacy. Ex. 10 at 32. HCC had two locations where medication was accessed: an onsite dispensary and an offsite pharmacy. Id. at 33-34. The HCC medical unit did not keep in stock every prescription medication that might be needed by an inmate and would request non-stock items from UConn. Def. Ex. 33 ¶ 17. The turnaround time for medication not commonly provided was three or four days. Ex. 10 at 33. A request for Asacol would be delivered to an inmate in “[t]hree or four days if [the pharmacy]
7 The 2003 HCC Inmate Handbook states that for emergency health problems, an inmate is required to “tell a staff member immediately.” Def Ex. 11 at 11. HCC custody staff can learn that an inmate is in need of medical care “through the inmate directly” or “observing the inmate in pain.” Def. Ex. 33 ¶ 16.
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had it in stock and everything was working right.” Id. at 34. If Asacol was ordered for an inmate, Mr. El Badrawi’s intake nurse mentioned that follow-up would be conducted “two to three days later” if it had not been received. Id. Follow-up calls to the pharmacy were not recorded. Id. at 35. There is no evidence that such a follow-up was conducted by CMHC staff to ensure that Mr. El Badrawi receive his medication in a timely manner.
Defendant Lee stated that if he were “informed of a problem or undue delay that caused any inmate harm, “[he] would have contacted the appropriate CMHC supervisor to request that the medication be delivered as soon as possible and [he] would have requested an explanation for the delay.” Def. Ex. 33 ¶ 28. It was Defendant Lee’s responsibility “to have made sure that plaintiff was provided any medication he needed as quickly as possible.” Id.
Defendant Lee has been aware of inmates complaining that they have not received their medication. “In talking to 500, 600, a thousand inmates per day in one form or another,” Lee said he was “sure” that he has heard of such complaints. Ex. 3 at 107. However there is no evidence that Defendant Lee responded to these delays in medication.
ARGUMENT I. Standard of Review
On summary judgment, the moving party must show that “there is no genuine issue of material fact to be tried, and the facts as to which there is no such issue warrant the entry of judgment for the moving party as a matter of law.” Fed.R.Civ.P. 56(c)(2); see Price v. N.Y. State Board of Elections, 540 F.3d 101, 107 (2d Cir. 2008). In this context, the court’s role is not to “resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists.” In re Dana Corp., 574 F.3d 129, 151 (2d Cir. 2009); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). Moreover, “the court must draw
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all reasonable inferences in favor of the nonmoving party,” Kaytor v. Electric Boat Corp., 609
F.3d 537, 545 (2d Cir. 2010) (emphasis in original), “even though contrary inferences might
reasonably be drawn.” Id. (internal quotations omitted) Thus, “[s]ummary judgment is
inappropriate when the admissible materials in the record make it arguable that the claim has
merit . . . for the court in considering such a motion must disregard all evidence favorable to the
moving party that the jury is not required to believe.” Kaytor, 609 F.3d at 545 (emphasis in
original).
II. Defendant Lee Is Not Entitled to Summary Judgment on Mr. El Badrawi’s § 1983 Free Exercise Claim.
Defendant Lee argues that: (1) there was no “substantial burden” on Mr. El Badrawi’s
religious exercise, (2) Defendant Lee was not personally involved, and (3) Defendant Lee is
entitled to qualified immunity. None is persuasive. Significant evidence demonstrates that
Defendant Lee allowed a custom of not allowing new inmates to join the Ramadan List in 2004,
and that his specific actions with regard to training and supervision led to Mr. El Badrawi’s
inability to join the list and observe his faith. Moreover, a jury reasonably could conclude that
Defendant Lee should have known his actions would deprive Mr. El Badrawi of his clearly established rights.8
8 Plaintiff respectfully requests that the Court deny Defendants’ Motion for Summary Judgment because their Local Rule 56(a)(1) Statement is defective. Local Rule 56(a)(1) requires that each assertion of material fact “must be followed by a specific citation to (1) the affidavit of a witness competent to testify as to the facts at trial and/or (2) evidence that would be admissible at trial.” Local R. 56(a)(3). Moreover, counsel must “cite to specific paragraphs when citing affidavits or responses to discovery requests and to cite to specific pages when citing to deposition or other transcripts or to documents longer than a single page in length.” Id. Failure to abide by this rule may result in “the Court imposing sanctions, including, when the movant fails to comply, an order denying the motion for summary judgment . . .” Id.
Courts have routinely denied motions for summary judgment because the moving party has failed to adhere to the requirements of Local Rule 56(a). See, e.g., Cerilli v. Rell, 2010 U.S. Dist. LEXIS 99358 (D. Conn. Sept. 23, 2010)(denying motion for summary judgment for failure to comply with Local Rule 56(a)); Sadler v. Lantz, 2010 U.S. Dist. LEXIS 86956 (D. Conn. Aug. 20, 2010)(same); Prall v. Hartford Prosecutors, 2010 U.S. Dist. LEXIS 39857 (D. Conn. Apr. 22, 2010) (same); Morse v. Nelson, 2010 U.S. Dist. LEXIS 11186 (D. Conn. Feb. 8, 2010)(same); Torres v. Howell, 2006 U.S. Dist. LEXIS 38568, 2-3 (D. Conn. May 26, 2006)(same); see also Vt. Teddy Bear Co. v. 1-800 BEARGRAM Co., 373 F.3d 241, 244 (2d Cir. 2004) (“[I]n determining whether the moving
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A. A Jury Could Conclude That HCC Staff Imposed a Substantial Burden on Mr. El Badrawi’s Religious Exercise
HCC staff imposed a “substantial burden” on Mr. El Badrawi’s religious exercise by
denying his repeated requests to join the Ramadan List. The “starting point” of a substantial
burden analysis is whether an individual is made to “choose between following the precepts of
her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her
religion . . . on the other hand.” Westchester Day Sch. v. Vill. of Mamdroneck, 504 F.3d 338, 348 (2d Cir. 2008) (quoting Sherbert v. Verner, 374 U.S. 398, 404 (1963)).9 Based on this standard,
courts have concluded that a failure to accommodate religious dietary requirements imposes a
substantial burden. See El Badrawi v. Dept. of Homeland Sec., 579 F.Supp.2d 249, 259 (D.
Conn. 2008) (“The Second Circuit has regularly held that failure to accommodate a prisoner’s
dietary restrictions will constitute a free exercise violation.”) (citations omitted).
1. A Jury Could Conclude That HCC Custom Did Not Permit New Inmates to Join the Ramadan List Mid-Month
A reasonable jury could infer that in 2004 HCC custom did not allow Muslim inmates
who arrived during Ramadan to participate in the special meal plan, contrary to the Defendants’
assertions. Since under controlling case-law, such a custom would have constituted a substantial
burden on Mr. El Badrawi’s religious exercise, this dispute constitutes a genuine issue for trial.
party has met th[e] burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts contained in the moving party’s Rule 56.1 statement. It must be satisfied that the citation to evidence in the record supports the assertion.”). In this case, Defendants have failed to adhere to the “specific citation” requirement of Local Rule 56(a)(3) in 50 paragraphs throughout their Local Rule 56(a)(1) statement. Defendants have failed to cite any evidence whatsoever for 41 paragraphs. See Def. Local Rule 56(a)(1) Statement at ¶¶ 19, 31-32, 48, 54, 60, 70, 87, 96, 100-01, 117-18, 122-27, 129-32, 134, 150, 161-62, 166-72, 175, 177, 182, 195, 200, 210, 212. Furthermore, in nine paragraphs, Defendants have failed “to cite to specific pages when citing to [a] document[] longer than a single page in length.” Local Rule 56(a)(3); see Def. Local Rule 56(a)(1) Statement at ¶¶ 10, 28, 80, 116, 139, 206-08, 211. Therefore, this Court should deny Defendants’ Motion for Summary Judgment. 9 Westchester Day Sch. is a RLUIPA case, but as the Second Circuit notes, Congress intended in RLUIPA to incorporate the Supreme Court’s conception of “substantial burden” from free exercise jurisprudence. Westchester Day Sch., 504 F.3d at 348.
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Mr. El Badrawi’s experience provides significant evidence of this custom. He was told by
a prison counselor, two correction officers, and a Muslim chaplain, that he could not join the
Ramadan meal plan because he had arrived mid-month. Ex. 1 at ¶¶ 11-13. HCC records
corroborate Mr. El Badrawi’s experience. HCC is a high-turnover prison that receives 50-80 new
inmates a day, see Ex. 5 at 61-62, a significant proportion of whom are Muslim (in June 2005,
approximately 1,500 out of a general DOC population of 18,000, or 8%, was Muslim). See Ex.
26 (Memo on Religious Affiliation). One would therefore expect that at least some new Muslim
inmates would arrive during Ramadan. And if HCC in fact allowed new inmates to join the
Ramadan list mid-month, then many of these new arrivals should have been added to the list.
Yet according to authoritative HCC records, Ex. 5 at 90, 99, no inmates were added mid-month
in 2004. Def. Ex. 17 (HCC Ramadan Statistics 2004). But only after DOC guidelines were
amended in 2005 and clarified in 2006 expressly to allow new inmates to join the list mid-month
do the statistics indicate new additions. See Facts section (G) supra. For example, 3 individuals
joined mid-month in 2005, and the number rose sharply to 11 inmates joining mid-month in
2006. See Ex. 21 (HCC Daily Ramadan Sheets 2005); Ex. 22 (HCC Ramadan Statistics 2006).
Numerous witnesses noted potential causes for resistance to Ramadan observance at HCC.10 Imam Avci, HCC’s Islamic chaplain suggested that inmates had trouble joining the
10 The absence of inmate grievance records regarding Ramadan in 2004 demonstrates neither that grievances were not filed nor that inmates were not aggrieved. Defendants admit that they lacked any system for retaining complaints and Inmate Requests Forms and that such records were regularly destroyed. Ex. 5 (Pitts Depo.) at 149; Ex. 3 at 4243. Chaplain Pitts’ was particularly disorganized in his management of religious matters. He specifically recalled disposing of Inmate Request Forms, Ex. 5 at 147, and an official DOC audit of HCC religious services “recommended that Chaplain Pitts devote some time to organizing the piles of paperwork in his office.” Ex. 28 at 2. The grievance process was also slow and cumbersome and new inmates would have had little incentive to use it to remedy any Ramadan related problems. Inmates were required to submit an Inmate Request Form before they were allowed to file a formal grievance. Ex. 3 (Lee Depo.) at 45. Because the appropriate unit had fifteen days to respond to Inmate Request Forms, Ex. 3 (Lee Depo.) at 47, and Ramadan lasts only a month, a new inmate denied access to the meal plan might not even be able to file a formal grievance before the end of Ramadan. Although there was an emergency grievance procedure, it was not well known—even HCC’s former Islamic chaplain was unaware it existed. Ex. 8 (Hashim Depo.) at 46. In addition, new inmates, those most likely to be aggrieved by the Ramadan policy, were also the least likely to know about these processes. For these reasons, a jury could reasonably infer that
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Ramadan lists because of intra-HCC tensions and anti-Muslim sentiments. See Ex. 7 (Avci Depo.) at 108-11. A former HCC imam confirmed that anti-Muslim biases existed at HCC, Ex. 8 at 53-55, and both Defendant Pitts and Rev. Bruno noted that food services staff were aggravated by adding new inmates mid-month. Ex. 4 at 95-96; Ex. 5 at 113-14.
Defendants’ assertion that the “formal policy . . . within HCC” permitted new inmates to join the Ramadan list mid-month, Def. Br. 33, is insufficient basis for summary judgment. It is undisputed that there was no written policy in 2004; the Ramadan Guidelines did not say that new inmates could join the list mid-month.11 Moreover, there is substantial confusion among DOC witnesses about what the so-called “formal” policy was. Rev. Bruno claimed that all inmates should have been able to join the Ramadan list at anytime. Ex. 4 (Bruno Depo.) at 68. But according to Chaplain Pitts, there was an “implicit” sign-up deadline for existing inmates. Ex. 5 at 112. Warden Lee lacked any memory of whether or not such a deadline existed. Ex. 3 at 64-65. Given the conflicting understandings among HCC staff and the uncontroverted evidence that no Muslim inmates joined the list mid-Ramadan in 2004, a jury would not be “required to believe” that any “formal” policy existed, much less that it was followed.
2. HCC Staff Told Mr. El Badrawi that He Could Not Join the Ramadan List.
Even if HCC policy allowed new inmates to join the Ramadan list mid-month, there is an additional dispute of fact as to whether HCC staff imposed a substantial burden on Mr. El Badrawi’s religious exercise by repeatedly providing him incorrect and misleading information about such policy. A substantial burden can exist short of an outright denial of dietary accommodations if the system makes it too difficult for an individual to exercise his rights. The
there are no records of Ramadan grievances because Defendant s threw away or lost the documentation or because aggrieved inmates chose not to file grievances. 11 In addition, the Inmate Handbook and Administrative Directives do not state any such policy, either. See Def. Ex. 11 (2003 Inmate Handbook); Ex. 14 (2005 Inmate Handbook); Def. Ex. 12 (Administrative Directive on Religion).
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“burden need not be found insuperable to be held substantial,” Westchester Day Sch., 504 F.3d at 349, and when the plaintiff has “no ready alternatives, or where the alternatives require substantial delay, uncertainty, and expense," Id. (internal quotations omitted), a substantial burden exists. Such circumstances include when government officials “inconsistently appl[y] specific policies” or make their decisions “without explanation.” Id. Thus, the “procedural requirements for obtaining a religious diet” can itself constitute a substantial burden. Nelson v. Miller, 570 F.3d 868, 879 (7th Cir. 2009). The question of whether a substantial burden exists is a question of fact to be determined at trial when there is a reasonable dispute. Abdulhaseeb v. Calbone, 600 F.3d 1301, 1317-18 (10th Cir. 2010) (holding that whether particular dietary restriction was substantial burden is “genuine issue of material fact” and citing cases).
i. Multiple HCC Staff Told Mr. El Badrawi that He Could Not Join the Ramadan List, Thereby Imposing a Substantial Burden on his Religious Exercise
Mr. El Badrawi asked three HCC staff, a prison counselor and two correction officers, how he could join the Ramadan meal plan, but every staff person told him that he was barred under HCC policy. Ex. 1 ¶¶ 11-12. Within two days of entering HCC, Mr. El Badrawi approached a prison official and requested to be added to the Ramadan list. Id. at ¶ 11. The official denied Mr. El Badrawi’s request and explained that he could not be added to the list because he had arrived mid-way through the month. Id. Rather than accept this answer, Mr. El Badrawi approached a correction officer and made a second request. Id. at ¶ 12. This request was also denied and Mr. El Badrawi was again told that he could not join the Ramadan list midmonth. Id. Still unwilling to take “no” for an answer, Mr. El Badrawi approached another correction officer, only to receive his third consecutive denial. Id. In none of these conversations did HCC staff mention that he could file a formal written request to join the Ramadan list. Id at
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¶¶16-17. When Mr. El Badrawi finally learned from a fellow inmate that there was a Muslim chaplain at HCC he immediately requested a meeting. Id. ¶13. However, by the time Mr. El Badrawi met with Imam Avci, Ramadan had already concluded.12 Based on this evidence, a reasonable jury could conclude that even if official HCC policy permitted new inmates to join the Ramadan list, Mr. El Badrawi faced a substantial burden when he attempted to take meaningful advantage of this policy.
ii. HCC Religious Policies Did Not Alleviate the Substantial Burden Imposed on Mr. El Badrawi
Defendants deny that HCC staff imposed a substantial burden on Mr. El Badrawi and instead argue that Mr. El Badrawi did not work hard enough to access the Ramadan list. Defendants argue that Mr. El Badrawi failed to make even a “modest act of commitment,” Def. Br. 40-41(internal quotations omitted), and that the “only person who truly caused plaintiff to not join the Ramadan List was plaintiff, through his own apathy, neglect and disregard for obvious and easy access to religious programs.” Id. at 42. These assertions are belied by Mr. El Badrawi’s persistent efforts to join the Ramadan list. Moreover, if HCC policy permitted new inmates to join the Ramadan list mid-month, then it was not Mr. El Badrawi but HCC staff who “neglect[ed] and disregard[ed]” HCC’s religious policies by repeatedly denying Mr. El Badrawi’s requests. See Def. Br. 42. Indeed, it is hard to credit Defendants’ assertion that Mr. El Badrawi “remained almost willfully blind” to HCC’s religious policies, Id at 41, when multiple HCC staff remained wholly ignorant of these policies. If trained and experienced staff were unfamiliar with HCC’s policies, they could hardly have been “obvious” to a newly arrived inmate. There are several material disputes of fact arising from these arguments.
12When they finally met, Imam Avci told Mr. El Badrawi that he could not have been added to the Ramadan list because HCC policy did not permit new inmates to join mid-month. Ex. 1 ¶13.
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First, there is a material dispute as to whether “Plaintiff could have completed a Ramadan sign-up form at his orientation or requested one.” Def. 56 Statement ¶ 88 (Citing Def. Ex. 31 (Excerpts from Avci Deposition) at 84). Defendants provide no evidence that the topic of Ramadan was raised at Mr. El Badrawi’s orientation, much less that a sign-up form was circulated or even mentioned. To the contrary, Warden Lee and Rev. Bruno both said that no Ramadan sign-up sheet was made available at orientation. Ex. 3 at 71; Ex. 4 at 77.
Second, there is a material dispute of fact as to whether “[r]eligious programming information, including Ramadan sign-up information and the listing of religious staff and medical staff were posted in Dorm 3” Def. 56 Statement ¶ 163 (Citing Def. Ex. 33 (Declaration of Charles Lee) at ¶ 49; Def. Ex. 34 (Declaration of Reverend Albert Pitts) at ¶ 15; Def. Ex. 32 (Declaration of Father Anthony Bruno) at ¶ 20). Although Lee stated that the Ramadan guidelines were posted on the inmates in each housing unit, Ex. 3 at 60, Mr. El Badrawi does not recall seeing anything posted. Ex. 1 ¶ 20. The Religious Services Audit of 2004 also revealed that religious activity signs were not consistently posted. Ex. 27 at 4 (2004 HCC Religious Services Audit). A reasonable jury could therefore infer that Ramadan information was not clearly posted in Mr. El Badrawi’s housing unit. Moreover, a reasonable jury could also conclude that the posting of such information would not have been sufficient to alleviate the substantial burden on Mr. El Badrawi’s religious exercise.
Third, there is a material dispute as to whether chaplains’ tours through housing units provided adequate notice of HCC Ramadan policies. Def. Br. 34. Chaplains’ tours were neither sufficiently frequent, lengthy, or well-publicized to provide adequate notice. HCC Chaplain Log Book shows that Sister Loretta, another chaplain, passed through plaintiff’s dorm on November 1, and Imam Avci did not visit until November 3 and 9, well after Plaintiff’s arrival on October
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29. See Def. Ex. 23 (Chaplain Log Book for period of Ramadan 2004); Ex. 7 (Avci Depo.) at 73; Ex. 1 ¶3. Tours were also extremely short because chaplains had to cover a large amount of ground. For instance, Imam Avci normally spent only 5-25 minutes in each dorm. Ex. 7 at 73. On November 3, 2004, he had to cover thirteen dorms, housing 780 inmates, in just three hours. See Def. Ex. 23 (Chaplain Log Book for period of Ramadan 2004). At this pace, it is easy to see how Mr. El Badrawi could have failed to notice Imam Avci’s visit.
Defendants provide no evidence to support their assertion that “[c]haplains were announced when they arrived at [Mr. El Badrawi’s] unit by custody staff and wore clothing and items that clearly identified them as clergy; that information regarding religious programs at HCC was posted in Dorm 3.” Def. 56 Statement ¶ 175. In fact, chaplains’ visits were sometimes not announced. Ex. 7 (Avci Depo.) at 75. Imam Avci believed that some correction officers did not announce his visits because of anti-Muslim bias. Id. (“[N]ewcomers . . .might . . . not know us. Q. You said some [DOC] officers don't want to announce; why not? A. Because they don't like Islam, they don't like imam.”) In addition, chaplains generally toured the dorms in professional clothing, not religious clothing. Ex. 5 (Pitts Depo.) at 55.13
Based on this evidence, a reasonable jury could still conclude that Defendants’ imposed a substantial burden on Mr. El Badrawi’s religious exercise. Because “[t]he function of the district court in considering the motion for summary judgment is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists,” In
13 Defendants also assert as a material fact that “Plaintiff had no visitors and made no phone calls and did not seek out inmates with questions while he was at HCC.” Def. 56 Statement ¶93 (Citing Def. Ex. 30 (Excerpts from Plaintiff’s Deposition) at 133-134, 156). Plaintiff disputes this characterization: Plaintiff spoke to another inmate who told him that HCC had an Islamic chaplain. Ex. 1 ¶21. More fundamentally, though, Plaintiff disputes the underlying suggestion that obtaining information on religious services through discussions with other inmates satisfied any part of the Defendants’ responsibility to provide clear guidelines to inmates. Indeed, Rev. Bruno explicitly conceded that such a method of information transfer was not adequate, as “inmates cannot function on behalf of other inmates.” Ex. 4 at 74.
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re Dana Corp., 574 F.3d 129, 151 (2d Cir. 2009), Defendants’ motion for summary judgment should be denied.
B. A Jury Could Conclude That Defendant Lee Was Sufficiently Involved to Be Liable Under § 1983
Defendant Lee is personally liable for imposing a substantial burden on Mr. El Badrawi’s religious exercise. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) is the authoritative Second Circuit precedent for determining personal involvement. Defendants are incorrect to assert that Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) altered the personal involvement standard set forth in Colon.
1. Ashcroft v. Iqbal Does Not Disturb This Circuit’s Colon Framework for Analyzing Personal Involvement Under § 1983.
Defendants incorrectly assert that the Colon factors have been superseded by Ashcroft v. Iqbal, arguing that “[a]fter Iqbal, any claim based on establishment of an unconstitutional policy would have to demonstrate, at a minimum, in the absence of Lee’s personal involvement, that Warden Lee established the unconstitutional policy because of the unconstitutional effect on plaintiff and not merely in spite of the effect.” Def. Br. 22. This argument dramatically overreads Iqbal. The Iqbal Court made clear that “[t]he factors necessary to establish a Bivens violation will vary with the constitutional provision at issue” and that its holding was limited to Iqbal’s claim of “invidious discrimination in contravention of the First and Fifth Amendments.” Iqbal, 129 S. Ct. at 1948. The Court was speaking to Iqbal’s discrimination claim when it stated that its “decisions make clear that the plaintiff must plead and prove that the defendant acted with discriminatory purpose,” id (emphasis added), and further stated that “[u]nder extant precedent purposeful discrimination requires more than intent as volition or intent as awareness
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of consequences.” Id (emphasis added) (internal quotations omitted). Because Mr. El Badrawi
does not claim that he was the victim of discrimination, Iqbal is inapposite.
Moreover, Mr. El Badrawi’s free exercise claim does not require any proof of intent. In
order to prevail on his free exercise claim, Mr. El Badrawi “must establish a substantial burden
on his religious exercise.” Ford v. McGinnis, 352 F.3d 582, 591 (2d. Cir. 2003). But he is not required to demonstrate that this burden was intentional.14
2. Defendant Lee Was Personally Involved in Imposing a Substantial Burden on Mr. El Badrawi’s Religious Exercise.
There is a material dispute of fact whether Defendant Lee was personally involved in
depriving Mr. El Badrawi of his right to free religious exercise because (1) he “allowed the
continuance” of a “custom” under which inmates who arrived at HCC during Ramadan were
unable to sign up for the Ramadan meal plan (2) he “created” or “allowed the continuance” of a
“custom” under which unqualified HCC staff provided inmates information about religious
matters and (3) he was “grossly negligent in supervising” subordinate correction officers who
gave Mr. El Badrawi incorrect and misleading information about the Ramadan list. Colon, 58
F.3d 865 at 873.
i. A Jury Could Conclude Defendant Lee Created or Allowed the Continuance of a Custom
Defendant Lee is personally liable under Colon because he created or allowed the
continuance of a custom under which Mr. El Badrawi suffered a substantial burden on his
14 Other courts in this circuit have confirmed that Iqbal does not require proof of intent when a constitutional claim would not otherwise require such proof. See e.g. Qasem v. Toro, No. 09 Civ. 8361, 2010 WL 3156031, at *4 (S.D.N.Y. Aug. 10, 2010) (J. Stein) (“the five Colon categories supporting personal liability of supervisors still apply as long as they are consistent with the requirements applicable to the particular constitutional provision alleged to have been violated.”); Sash v. United States, 674 F. Supp. 2d 531, 544 (S.D.N.Y. 2009) (J. Peck) ( “[i]t was with intent-based constitutional claims in mind, specifically racial discrimination, that the Supreme Court rejected the argument that ‘a supervisor’s mere knowledge of his subordinate’s discriminatory purpose amounts to the supervisor’s violating the Constitution.’”); D'Olimpio v. Crisafi, 2010 WL 2428128, at *5 (S.D.N.Y.,2010) (“As Iqbal noted, the degree of personal involvement varies depending on the constitutional provision at issue”).
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religious exercise. Colon, 58 F.3d 865 at 873. A jury reasonably could find that Defendant Lee created or allowed the continuance of a custom under which 1) Muslim inmates who arrived at HCC after the beginning of Ramadan were not allowed to participate in the Ramadan meal plan or 2) unqualified HCC staff answered inmates’ religious questions instead of referring such questions to chaplains.
Based on the evidence detailed above, a jury could reasonably infer that Defendant Lee created or allowed the continuance of a custom that denied new Muslim inmates access to the Ramadan list mid-month. In addition, it would not be unreasonable to infer that Defendant Lee allowed this custom to continue despite learning from Imam Avci in 2004 that Defendant McGrail was frustrating efforts to add two Muslim inmates to the Ramadan list. Ex. 7 (Avci Depo.) at 109-112. This custom is evidenced by HCC statistics showing that no Muslim inmates were added to the Ramadan list mid-month in 2004. See Def. Ex. 17 (HCC Ramadan Statistics 2004).
Even if HCC custom did permit new inmates to join the Ramadan list, Mr. El Badrawi’s personal experiences and Defendant Lee’s own statements demonstrate that Defendant Lee created or allowed the continuance of a custom under which unqualified HCC staff routinely dispensed uninformed answers to inmates’ religious questions. A reasonable jury could infer that this custom caused Mr. El Badrawi to receive incorrect information about the Ramadan list and thereby imposed a substantial burden on his religious exercise. Mr. El Badrawi asked a prison counselor and two correction officers how he could join the Ramadan meal plan, but not one of these HCC employees directed him to speak with a Muslim chaplain. Ex. 1 ¶¶ 11-13. Defendant Lee’s own statements confirm that Mr. El Badrawi’s experience was indicative of HCC custom. According to Defendant Lee, because “correction officers . . . communicate with inmates daily”
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it was “their responsibility” to answer inmates’ questions about religious matters. Ex. 3 at 146. Indeed, Defendant Lee stated that HCC used “on the job training,” “in-house training,” and “roll call” to try to train its employees to answer inmates’ religious questions. Id. at 144, 147.
By permitting his staff to answer inmates’ religious questions, Warden Lee created or allowed the continuance of a custom under which there was a significant risk that inmates would receive incorrect information about religious matters. According to Father Anthony Bruno, Director of Religious Services for the DOC, “staff persons . . . are not qualified to be answering religious questions” and therefore “should be referring all religious issues and matters to chaplains.” Ex. 4 at 34. When asked whether “staff members are not supposed to give religious advice to inmates . . . because they may give incorrect information?”, Rev. Bruno responded, “[t]hat's a possibility. A very distinctive possibility.” Id at 35. Rev. Bruno therefore conducted orientation sessions for all “new employees” during which he “insist[ed]” that the employees refer religious questions to chaplains: “I say chaplains don't give out medical pills, chaplains don't fix the pipes, it's not our job. Your job is not to be a chaplain. Period. End of discussion.” Id at 30-31. Based on Rev. Bruno’s statements, it is not surprising that the HCC employees who answered Mr. El Badrawi’s Ramadan questions provided him with misleading information that substantially burdened his religious free exercise.
ii. A Jury Could Conclude that Defendant Lee Was Grossly Negligent in Supervising Staff
A jury could also reasonably conclude that Defendant Lee was personally involved in depriving Mr. El Badrawi of his right to free religious exercise because he “was grossly negligent in supervising subordinates who committed the wrongful acts.” Colon, 58 F.3d 865 at 873. Four HCC employees—Imam Avci, two correction officers and a counselor— informed Plaintiff that he could not join the Ramadan list mid-month. Ex. 1 ¶¶ 24-26. If, as the State
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argues, HCC policy permitted inmates to join the list mid-month, these statements suggest that Warden Lee was grossly negligent in supervising his employees. As this Court recognized, "the fact that multiple officials disobeyed, or misunderstood, prison regulations certainly makes it plausible that Warden Lee failed to appropriately train and/or supervise his staff to ensure that they accommodated Ramadan observances." El Badrawi, 579 F.Supp. 2d 249, at 257.
Defendants mischaracterize the standard for finding a supervisor to have been “grossly negligent in supervising subordinates who committed the wrongful acts.” Colon, 58 F.3d 865 at 873. Defendants rely on Green v. City of New York, 465 F.3d 65 (2d Cir. 2006) and Walker v. City of New York, 974 F.2d 293 (2d Cir. 1992), see Def. Br. 38, which use a four-prong test “for showing that a lack of training manifests deliberate indifference.” Green, 465 F.3d 65, at 80. This test is inapposite because it was developed by the Second Circuit, following City of Canton v. Harris, 489 U.S. 378 (1989), to determine when a municipality is liable for a constitutional violation by an employee. By contrast, Colon directly addressed whether a supervisory official was personally involved in a constitutional violation by a subordinate. Colon, 58 F.3d at 873.
Warden Lee was “grossly negligent in supervising subordinates,” Colon, 58 F.3d at 873, because there is “some evidence that [he] knew or should have known of a substantial risk that constitutional rights would be violated due to [his] lack of supervision, that [he] consciously disregarded the risk by failing adequately to supervise, and that such disregard caused a constitutional violation committed by subordinates.” Beatty v. Davidson, WL 1407311, *9-10 (W.D.N.Y. 2010) . As described above, Warden Lee used “on the job training,” “in-house training,” and “roll call” to train HCC correction officers to answer inmates’ religious questions directly. Ex. 3 (Lee Depo.) at 144, 147. This custom directly contravened Rev. Bruno’s instructions. Rev. Bruno was adamant that correction officers should have been “referring all
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religious issues and matters to chaplains” because they were “not qualified to be answering religious questions.” Ex. 4 at 34. Indeed, Rev. Bruno said that he “jump[ed] up and down” during orientation presentations to emphasize this very point, instructing new employees: “[A]ny religious questions [you] have, you refer them to the chaplain. You are not religious experts.” Id. at 30. Warden Lee therefore should have known that allowing his staff to answer religious questions created a significant risk that inmates would receive incorrect information which would impose a substantial burden on their religious exercise.
Warden Lee knew or should have known there was a substantial risk that correction officers who were not adequately aware of Ramadan policies could violate an inmate’s constitutional rights. Defendant Lee’s decision to have HCC correction officers answer questions about religious policies, discussed above, greatly heightened this risk. DOC’s Ramadan policies were entirely encompassed in the staff guidelines and accompanying memorandum that Rev. Bruno sent to all DOC wardens. See 2004 Ramadan Guidelines and Accompanying Memorandum. All training and clarification of Ramadan guidelines, which were posted at HCC, took place during roll call. See Ex. 3 (Lee Depo.) at 57-58; Ex. 5 (Pitts Depo.) at 77. Defendant Lee was responsible for determining the content of that roll call. See Ex. 5 (Pitts Depo.) at 33; see also Ex. 23 (Roll Call Notice Regarding Ramadan 2005). In spite of the substantial risk that correction officers might not understand the details of DOC’s Ramadan policies, the only aspects of Ramadan guidelines discussed at roll call were the start and end dates of Ramadan, the bagged breakfast process, and how to remove an inmate from a Ramadan list. Ex. 3 at 59.
Additionally, in 2004, Defendant Pitts added an implicit deadline for inmates to sign up for Ramadan. Ex. 5 (Pitts Depo.) at 111-12; Ex. 7 (Avci Depo.) at 39-40. Although Defendants claim that new inmates were supposed to be excepted from that deadline, they produce no
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written guidance to that effect. Ex. 5 (Pitts Depo.) at 111-12 (noting deadline was implicit). Defendant Lee was aware that Defendant Pitts had the authority to interpret and clarify Ramadan guidelines, and therefore knew or should have known when Defendant Pitts did so in 2004. Ex. 3 at 65. A jury could reasonably find that there was a substantial risk that, given the lack of guidance in the formal deadline, that an implicit deadline could be improperly applied if not adequately explained to correction officers. A jury could further find that Defendant Lee consciously disregarded the risks inherent in not ensuring that any exceptions to implicit deadlines were adequately explained.
In light of a history of anti-Muslim prejudice among HCC employees, Warden Lee also knew or should have known that allowing correction officers to answer religious questions created an especially acute danger that Muslim inmates would receive misleading information that would impose a substantial burden on their religious exercise. Imam Hashim witnessed HCC employees exhibiting anti-Muslim bias on multiple occasions, see e.g. Ex. 8 at 53-54, including a particularly “[o]ffensive and insulting” incident, id. at 66, in which a correction officer referred to a Muslim inmate whose last name was “Hussein” as “Saddam Hussein.” Id. at 54-55 (“So I called one particular pod, asked the CO in charge to send me down -- this person's name was something Hussein. He said, Oh, we send down Saddam Hussein? . . . That's unexpected from . . from professional people. I don't expect it from professionals.”).15 Imam Avci also said that many HCC correction officers were prejudiced against Muslims: “[O]fficers are not educated, just high school . . . so they assume all Muslims [are] bad….” Ex. 7 at 111. Defendant Lee should have known that this prejudice increased the risk that HCC staff would provide Muslim prisoners with incorrect or misleading information with respect to religious matters.
15 Imam Hashim explained that he did not report this incident to HCC management because he was worried about potential retaliation: “If you complain . . . anything can happen . . . a lot of these things I based on somewhat survival. . . a lot of stuff falls on deaf ears, and sometimes it can be dangerous.” Ex. 8 at 56.
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Defendant Lee’s disregard for these risks led to the violation of Mr. El Badrawi’s constitutional rights. When Mr. El Badrawi asked multiple HCC officials to be added to the Ramadan list, they refused to give him a Ramadan meal accommodation. Ex. 1 ¶¶ 11-13. Thus, a jury could reasonably conclude that Defendant Lee was grossly negligent because he failed adequately to supervise the dissemination and implementation of Ramadan policies to HCC staff, and that his gross negligence led to the denial of Mr. El Badrawi’s constitutional right to free exercise.
iii. A Jury Could Conclude Defendant Lee Failed To Act In Light of Evidence of the Constitutional Violation
Defendant Lee was also personally involved in depriving Mr. El Badrawi of his right to free exercise because he “exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.” Colon, 58 F.3d 865 at 873. As noted above, Imam Avci informed Warden Lee in 2004 that Defendant McGrail refused to add two inmates to the Ramadan meal list mid-month. Ex. 7 at 109-112. Although Avci believed that they were then added to the list, HCC statistics reveal that Warden Lee failed to act to remedy this problem because they show that no people were added to the Ramadan list midmonth in 2004. See Def. Ex. 17 (HCC Ramadan Statistics 2004) at 109.
C. Defendant Lee Has Not Demonstrated that He Is Entitled to Qualified Immunity Because a Jury Could Conclude that He Violated Mr. El Badrawi’s Clearly Established Rights.
Defendant Lee is not entitled to summary judgment on grounds of qualified immunity. Defendant Lee’s argument is based on unsubstantiated assertions about what a “reasonable warden” in his position would have believed. Def. Br. 43. However, as this Court has noted, “because the issue of reasonableness depends on the facts of the situation, if there is a dispute as
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to the facts, that must be resolved by the factfinder before qualified immunity can be granted,” Maye v. Vargas, 638 F. Supp. 2d 256, 262 (D. Conn 2009); see also Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007). The proper test, then, is not whether Defendant Lee thinks he behaved reasonably, but “whether the evidence is such that, even when it is viewed in the light most favorable to the plaintiff and with all permissible inferences drawn in his favor, no rational jury could fail to conclude that it was objectively reasonable for the defendant to believe that he was acting in a fashion that did not violate a clearly established right,” Salahuddin v. Goord, 467 F.3d 263, 263 (2d Cir. 2006).
At the time of the events at issue in this case, it was “clearly established that a prisoner has a right to a diet consistent with his or her religious scruples,” absent a legitimate penological justification. Ford v. McGinnis, 352 F.3d 582, 597 (2d Cir. 2003). Defendant Lee should have known he was imperiling the free exercise rights of HCC inmates when he instructed his staff to answer religious questions, See Ex. 3 (Lee Depo.) at 143, despite the Director of DOC Religious Services’ insistence that staff should refer all such questions to chaplains. See Ex. 4 (Bruno Depo.) at 31-32. Defendant Lee acknowledged the risk of this policy, but implemented no safeguards: “If a correctional officer is giving wrong information, then that sometime or another, I'm hoping that information would be corrected because the inmate would not be able to do what he requested based on the information that the officer gave him.” Ex. 3 at 143-44. In addition, there are material disputes of fact whether Defendant Lee allowed the continuance of a custom that did not permit inmates to join the Ramadan list mid-month and failed to act in light of information regarding potentially unconstitutional acts. See Argument, supra, at II.B.2.i. and II.B.2.iii. In light of these disputes, a jury could reasonably conclude that it was not objectively reasonable for Defendant Lee to believe he was acting in a fashion that did not violate Mr. El
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Badrawi’s clearly established rights. Thus, Defendant Lee should not be awarded summary judgment on the basis of qualified immunity.
III.Defendants Lee, Pitts, and McGrail Are Not Entitled to Summary Judgment on Mr. El Badrawi’s RLUIPA Claim The Defendants are not entitled to summary judgment on Mr. El Badrawi’s RLUIPA
claim.16 Contrary to the government’s arguments, RLUIPA authorizes individual capacity damages, a jury could reasonably conclude that Mr. El Badrawi faced a substantial burden of his free exercise rights, see Argument, supra, at II.A, Defendant McGrail was personally involved and the Defendants are not entitled to qualified immunity.
A. RLUIPA Provides for Damages in Individual Capacity Suits Defendants argue that government officials are not subject to suit in their individual capacities for damages for violations of RLUIPA. This argument is incorrect because RLUIPA expressly authorizes suits against “any . . . person acting under color of State law,” 42 USC § 2000cc-5(4)(A)(iii); see 42 U.S.C. § 2000cc-2(a), and because Mr. El Badrawi’s claims constitute valid applications of Congress’ power under both the Spending Clause and the Commerce Clause. Defendants’ argument also fails because Second Circuit authority assumes that government officials are liable for damages under RLUIPA. In Salahuddin v. Goord, the Second Circuit vacated a district court judgment to the extent that it granted summary judgment to the defendant officials on multiple damages claims under RLUIPA. 467 F.3d 263, 282-83 (2d Cir. 2006). Because the Salahuddin Court’s extensive qualified immunity analysis presumes that RLUIPA authorizes claims for damages against government officials. See also Orafan v. Goord,
16 RLUIPA prohibits the imposition of a “substantial burden on the religious exercise” of an institutionalized person unless that burden “(1) is in furtherance of a compelling governmental interest” and “(2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000cc-1(a). The Defendants do not even attempt to argue that the denial of Mr. El Badrawi’s right to join the Ramadan list served any compelling government interest.
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2003 WL 21972735, *9 (N.D.N.Y. Aug.11, 2003) (RLUIPA “[c]learly . . . contemplates individual liability”).17
1. Congress Authorized Individual Capacity Suits Under its Spending Power Defendants urge the Court to follow courts from outside this circuit that have analogized the Spending Clause to a contract and have therefore concluded that it does not give Congress power to impose liability on actors who do not directly receive federal funds. Def. Br. 45. However, the Solicitor General recently filed an amicus brief in Sossamon v. Texas in which it argued that these courts’ “conclusion that RLUIPA does not authorize damages suits against state officials in their individual capacities is incorrect.” Brief for the United States as Amicus Curiae, Sossamon v. Texas, 130 S.Ct. 3319 (U.S. May 24, 2010) (No. 08-1438), at 11. As the Solicitor General explains, Defendants overlook the interplay between the Spending Clause and the Necessary and Proper Clause, which gives Congress the authority to enact legislation that it believes to be “convenient,” “useful,” or “plainly adapted” to the exercise of its enumerated powers. M‘Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 413-14, 421 (1819). Therefore “[j]ust as Congress may attach conditions to its disbursement of federal funds, so it is empowered to prevent third parties from interfering with a fund recipient’s compliance with those conditions.” Brief for the United States as Amicus Curiae, Sossamon v. Texas, at 13. Congress’ power to impose liability on individuals who interfere with its spending objectives is demonstrated by Sabri v. United States, 541 U.S. 600 (2004). In Sabri, the Supreme Court held that the Spending Clause and the Necessary and Proper Clause together provide
17 The State also makes the puzzling argument, for which it cites no authority, that Mr. El Badrawi “should be found to not be a ‘person’ for purposes of RLUIPA because plaintiff was not ‘residing in or confined to an institution’ at the time he commenced this action and therefore is not entitled to bring a RLIUPA claim under this provision.” Def. Br. 48. Former detainees such as Mr. El Badrawi are fully entitled to bring damages suits under RLUIPA. Salahuddin, 467 F.3d at 272 (Plaintiff’s “right to seek damages is not affected” by fact that he is no longer incarcerated in “the prison facilities in which the actions complained of . . . occurred”).
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Congress authority to impose criminal liability on persons who bribe officials of state or local entities that receive at least $10,000 in federal funds. Id. at 602-608. Sabri was no more a direct recipient of federal funds than the individual defendants in this case. Moreover, the criminal liability imposed on Sabri was significantly more onerous than the civil liability that RLUIPA imposes on the defendants in this case. If Congress had authority to impose criminal liability in Sabri, it surely has authority to impose civil liability upon government officials who actively interfere with the statutory scheme set forth in RLUIPA by undermining the compliance of federal fund recipients.
2. Congress Authorized Individual Capacity Suits Under the Commerce Clause RLUIPA also authorizes suits against government officials in their individual capacities pursuant to Congress’ Commerce Clause power. In Westchester Day School v. Village of Mamaroneck, the Second Circuit observed that “Congress made explicit reference to . . . [the Commerce Clause] by limiting the application of RLUIPA to cases in which, inter alia, ‘the substantial burden affects, or removal of that substantial burden would affect, commerce . . . among the several States.’” 504 F.3d 338, 354 (2d Cir. 2007) (citing 42 U.S.C. § 2000cc(a)(2)(B)); see also 42 USC § 2000cc-1(b)(2) (using identical language to limit application of RLUIPA in cases involving institutionalized persons). Where this "jurisdictional element is satisfied, RLUIPA constitutes a valid exercise of congressional power under the Commerce Clause.” Westchester Day Sch., 504 F.3d 338 at 354. Moreover, “the evidence need only demonstrate a minimal effect on commerce to satisfy the jurisdictional element.” Id. Indeed, according to RLUIPA’s “Limitation” provision, the jurisdictional element is presumptively satisfied unless “the government demonstrates that all substantial burdens on . . . similar religious exercise throughout the Nation would not lead in the aggregate to a substantial effect
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on commerce . . . among the several States.” 42 U.S.C. § 2000cc-2(g) (emphases added). Defendants make no such showing.
RLUIPA’s jurisdictional element is satisfied in this case because denying Muslim prisoners throughout the country the opportunity to participate in Ramadan meal plans would lead in the aggregate to at least “a minimal effect on commerce.” Westchester Day Sch., 504 F.3d 338 at 354. The provision of Ramadan meals is a large commercial undertaking, requiring procurement of additional food items and substantial overtime payments to government employees. According to the Director of Religious Services for the Connecticut Department of Corrections (DOC), “Ramadan results in significant additional costs to the DOC.” Ex. 24 (DOC Email on Cost Calculations, 7/13/05).18
If Muslim prisoners throughout the country were excluded from Ramadan meal plans, departments of corrections could substantial reduce their expenditures. Because correctional facilities purchase food products that move across state lines and because these products also may include ingredients and packaging materials that move separately across state lines, a reduction in Ramadan food purchases by correctional facilities would directly affect interstate commerce. See e.g. Katzenbach v. McClung, 379 U.S. 294, 304 (1964) (upholding constitutionality of Civil Rights Act of 1964 as applied to restaurant that “serves food a substantial portion of which has moved in interstate commerce.”) In addition, reduced overtime payments to correctional department staff would lower demand for labor which, in the aggregate, could affect interstate labor markets. See e.g. Adams v. Suozzi, 433 F.3d 220, 225-26 (2d Cir.
18 In 2005, for example, prisoners on the Ramadan meal plan received an extra orange or apple for breakfast each morning, costing DOC an estimated $7000. Id. In addition, the “overtime cost alone for DOC food services personnel for the 30 days of Ramadan . . . exceeded[ed] $85,000.” Id. In 2006, the “[t]otal estimated Ramadan cost” rose to $130,402.70. Ex. 25 (DOC Email on Cost Calculations, 8/8/06). This total included “added breakfast items (Peanut butter, 2 slices of wheat bread)” costing $7379.70, an “added dinner item (Fish)” costing $13,023, and “overtime for staff” costing $110,000. Id.
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2005) (“Congress has authority to regulate public employment under the Commerce Clause, just
as it can regulate employment in the private sector . . . This power extends to ostensibly intrastate
economic activity that has a cumulative substantial effect on interstate commerce.”). RLUIPA’s
jurisdictional element is satisfied in this case because excluding Muslim prisoners throughout the country from Ramadan meal plans would, in the aggregate, affect interstate commerce.19
B. A Jury Could Conclude That Defendants Imposed a Substantial Burden on Mr. El Badrawi’s Religious Exercise
RLUIPA prohibits the imposition of a “substantial burden on the religious exercise” of an institutionalized person. 42 U.S.C. § 2000cc-1(a).20 The “substantial burden” standard for
RLUIPA is no higher than for § 1983. See e.g. Westchester Day Sch. v. Village of Mamaroneck,
504 F.3d 338, 348 (2d Cir. 2008). As demonstrated above (Argument, supra, at II.A),
Defendants imposed a substantial burden on Mr. El Badrawi’s religious exercise.
C. A Jury Could Conclude That Defendant McGrail Was Sufficiently Involved to Be Liable Under RLUIPA.
A reasonable jury could infer that Defendant McGrail either created or allowed the
continuance of a custom under which Muslim inmates who arrived at HCC after the beginning of
Ramadan were not allowed to participate in the Ramadan meal plan. Colon, 58 F.3d 865 at 873.
While the Defendants argue that Defendant McGrail “played absolutely no role in determining
19This Court may also adopt the approach of Hall v. Epke, 2010 WL 3996211, at *3 (2d Cir. 2010) , in which the Second Circuit determined to hold in abeyance a RLUIPA appeal pending the Supreme Court’s decision in Sossamon v. Texas, 560 F.3d 316 (5th Cir.2009), cert. granted, 130 S.Ct. 3319 (U.S. May 24, 2010) (No. 08-1438). The Supreme Court granted certiori specifically to decide "[w]hether an individual may sue a State or a state official in his official capacity for damages for violations of” RLUIPA. Sossamon v. Texas, 130 S.Ct. 3319 (2010) (emphasis added). The Second Circuit reasoned that “resolution of th[is] question may also shed light on Hall's ability to sue defendants in their individual capacities for money damages,” and it therefore “ reserve[d] decision on Hall's challenge to the award of summary judgment on his RLUIPA claim in its entirety.” Id. (emphasis added). Accordingly, like the Second Circuit in Hall, this Court may wish to hold in abeyance the State Defendants’ motion for summary judgment regarding whether Mr. El Badrawi may sue State Defendants for damages in their official capacities “pending the Supreme Court's resolution of th[is] question.” Hall, 2010 WL 3996211, at *3. 20 Although the imposition of a substation burden may be justified if it “(1) is in furtherance of a compelling governmental interest” and “(2) is the least restrictive means of furthering that compelling governmental interest,” 42 U.S.C. § 2000cc-1(a), Defendants do not raise this defense and therefore have waived it.
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who was put on the Ramadan List,” Def. Br. 48, documents from Ramadan in 2004 and testimony from HCC’s Islamic chaplain in 2004 directly contradict this assertion. First, HCC’s Islamic chaplain testified that Defendant McGrail refused to add new inmates to the Ramadan list. Ex. 7 at 108-09. Second, HCC’s 2004 Ramadan Statistics Sheet contains a typewritten category, “Number of inmates temporarily removed from fasting list but later reinstated to the list,” and a handwritten note: “Kitchen supervisor didn’t allow inmates to remove temporaraly [sic].” Def. Ex. 17 (HCC Ramadan Statistics 2004).
Defendant McGrail’s refusal to allow Muslim inmates to remove temporarily was directly contrary to DOC religious policy for two reasons. First, according to DOC’s Ramadan guidelines, the Islamic chaplain, not the Defendant McGrail, must determine if there are religious reasons for the inmate to be reinstated. Def. Ex. 15 (DOC Ramadan Guidelines 2004) at 3. Second, Defendant Pitts, not Defendant McGrail, was supposed to be in charge of the Ramadan list. Ex. 5 at 94. Both Defendant Pitts and DOC’s Director of Religious Services testified that Food Services complained about and did not like to add inmates to the Ramadan list once Ramadan had begun because it made their job considerably more difficult. Ex. 4 (Bruno Depo.) at 95-96; Ex. 5 (Pitts Depo.) at 113-14.
A reasonable jury that considered Defendant McGrail’s refusal to add new inmates, his control over whether inmates were added to the Ramadan list, his motive for avoiding adding any new inmates to the Ramadan list, and the fact that no new Muslim inmates were added in 2004, could infer that Defendant McGrail was liable for, or created or allowed to continue, a custom of refusing to new Muslim inmates to the Ramadan list in 2004.21
21 The State Defendants do not cite any legal standard to judge personal involvement under RLUIPA, and in fact “[n]either the Supreme Court nor the Second Circuit have directly addressed the issue of whether personal involvement is a prerequisite for any valid RLUIPA claim, as it is under § 1983.” Joseph v. Fischer, 2009 U.S. Dist. LEXIS 96952, *50 (S.D.N.Y. 2009). A number of courts have found that any personal involvement standard under
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D. Defendants Have Not Demonstrated that They Are Entitled to Qualified Immunity Because a Reasonable Jury Could Conclude that Mr. El Badrawi’s Clearly Established Rights Were Violated.
The Defendants are not entitled to qualified immunity for their RLUIPA claims. They fail
to provide any explanation for why Defendants Lee, Pitts, and McGrail are entitled to qualified
immunity for Mr. El Badrawi’s RLUIPA claims, except to incorporate their arguments for why
Defendant Lee is entitled to qualified immunity from Mr. El Badrawi’s 1983 claim. For
Defendant Lee, Plaintiff incorporates by reference the reasons to deny Defendant Lee qualified
immunity, as explained above. For Defendants’ Pitts and McGrail, the Defendants cannot
incorporate arguments relating to the reasonableness of a different prison official in a different
position who took different actions. The argument that Defendants Pitts and McGrail are entitled
to qualified immunity is therefore waived.
Even assuming arguendo that it has not been waived, Defendants cannot demonstrate that
given the evidence “viewed in the light most favorable to the plaintiff and with all permissible
inferences drawn in his favor,” “no rational jury could fail to conclude that it was objectively
RLUIPA would be broader than the standard for § 1983, and in particular have allowed for liability under a theory of respondeat superior, which is not available for § 1983. See Agrawal v. Briley, 2004 WL 1977581, *14 (N.D. Ill. 2004) (“In light of Congress's stated preference for a broad construction [of the RLUIPA statute], this court is unwilling to assume that Congress intended to incorporate into RLUIPA the judge-made limits of potential liability under § 1983 if other principles of tort law casting a broader net might result in ‘appropriate relief.’); see also Layman Lessons, Inc. v. City of Millersville, Tenn., 2008 WL 686399, *20 (M.D.Tenn. 2008) (RLUIPA allows for liability under respondeat superior). At a minimum, a showing that Defendant McGrail is personally involved under the Second Circuit’s Colon framework for § 1983 is sufficient. See Harnett v. Barr, 538 F. Supp. 2d 511, 526 (N.D.N.Y. 2008) (allowing RLUIPA claim to proceed under Colon personal involvement standard). The State Defendants do not contest the personal involvement of Defendants Lee and Pitts under RLUIPA. That argument is therefore waived. In any event, the evidence shows that Defendant Lee is liable for at least the same reasons he is liable under Colon and Defendant Pitts is liable for the same reasons that his defense of qualified immunity to Mr. El Badrawi’s RLUIPA claim should be denied, discussed infra. Moreover, both Defendant Lee and Pitts would be liable additionally under a theory of respondeat superior since Defendant Lee unquestionably supervised the correction officers who denied Mr. El Badrawi’s request to join the Ramadan list, See Ex. 3 at 21, 2627, 100; Ex. 4 at 21 and Defendant Pitts had responsibility over all religious policies at HCC. See Ex. 5 at 9; Def. Ex. 11 (2003 Inmate Handbook) at 10.
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reasonable for the defendant to believe that he was acting in a fashion that did not violate a clearly established right.” Salahuddin v. Goord, 467 F.3d 263, 263 (2d Cir. 2006).
Applied to Defendant Pitts, the arguments for qualified immunity are entirely inapposite. The Defendants claim that, “A reasonable warden in Warden Lee’s position would have reasonably relied upon . . . the religious personnel at HCC to conduct religious programs.” Def. Br. at 43. But Defendant Pitts was the head of religious personnel at HCC and the record establishes that he was involved in almost all aspects of religious services at HCC. Defendant Pitts was responsible for determining whether an inmate could receive Ramadan meal accommodations at HCC, see Ex. 5 at 94, ensuring the DOC religious policies were correctly implemented, see Ex. 5 at 9, creating a Ramadan sign-up deadline in order to fill a gap in a DOC Ramadan policy, see Ex. 3 at 65, Ex. 5 at 112, and answering correction officers’ questions about religious services and directing any problems or issues to Defendant Lee. Ex. 5 at 48-49.
At the time of the events at issue in this case, it was “clearly established that a prisoner has a right to a diet consistent with his or her religious scruples,” absent a legitimate penological justification. Ford v. McGinnis, 352 F.3d 582, 597 (2d Cir. 2003). Evidence suggests that in 2004, Defendant Pitts may have acted contrary to DOC policy by creating an implicit deadline at HCC for joining the Ramadan list. Ex. 5 (Pitts Depo.) at 111-12; Ex. 7 (Avci Depo.) at 39-40. Moreover, Defendant Pitts was responsible for the Ramadan list but allowed the kitchen supervisor to add new inmates and dictate HCC custom. See Def. Ex. 17 (2004 HCC Ramadan Statistics Sheet). Further, as discussed above, because a reasonable jury could infer that HCC custom in 2004 was to refuse to allow new Muslim inmates to join the Ramadan list and that Defendant Pitts was responsible for ensuring that religious policies were properly implemented, it could also infer that Defendant Pitts should have known why no new inmates could join the
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Ramadan list, and in failing to do so he allowed the continuance of that custom – all done in violation of clearly established rights.
Qualified immunity also cannot apply to Defendant McGrail. As discussed above, a jury could reasonably infer that Defendant McGrail exercised control over the Ramadan meal accommodations list and refused to add new inmates to the Ramadan list, thereby creating or allowing the continuance of a custom of denying new Muslim inmates, including Mr. El Badrawi, access to the Ramadan list. Based on his conduct, a jury could reasonably conclude that it was not objectively reasonable for Defendant McGrail to believe he was acting in a fashion that did not violate a clearly established right.
IV. Defendant Lee Is Not Entitled to Summary Judgment on the Medical Claim under § 1983 Due to Numerous Material Disputes of Fact. As an immigration detainee, Mr. El Badrawi was entitled to medical care at least
equivalent to that required by the Eighth Amendment for convicted inmates. Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244-45 (1983); Youngberg v. Romeo, 457 U.S. 307, 321-24 (1982). There are numerous disputes of material fact as to whether Defendant Lee was deliberately indifferent to Mr. El Badrawi’s serious medical need. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976).
This Court has held that “[t]here can be no real dispute that Crohn’s disease, which causes severe pain when left untreated, constitutes a serious medical condition.” El Badrawi, 579 F. Supp.2d at 258. Crohn’s disease is a chronic disorder that causes inflammation of the gastrointestinal tract and can result in severe pain and internal bleeding when left untreated. Ex. 1 ¶ 29; Ex. 2 at 49. Mr. El Badrawi was diagnosed with Crohn’s disease in 1996 and was prescribed to take 400 mg of Asacol six times daily to treat his condition. Ex. 1 ¶ 30. The extreme physical pain and internal bleeding that Mr. El Badrawi experienced after being
45

Case 3:07-cv-01074-JCH Document 382 Filed 11/05/10 Page 54 of 58
deprived of his medication clearly supports a finding that he had a serious medical need. Ex. 2 at 179.
Defendant Lee claims that the expert report by Dr. Edward Blanchette proves that Mr. El Badrawi’s Crohn’s flare-up would not have been caused by his missed medication and could have been experienced anyway because of stress. Def. Br. 28. Yet there are several material disputes of fact surrounding the causation and severity of Mr. El Badrawi’s flare-up that are genuine issues for trial. First, nowhere did Dr. Blanchette state that medication could not have alleviated the pain Mr. El Badrawi experienced as a result of his Crohn’s flare-up. Def. Ex. 24. Instead, contrary to Mr. El Badrawi’s consistent and persistent testimony, Ex. 1 ¶ 23, 37; Ex. 2 at 179, Dr. Blanchette doubts that Mr. El Badrawi experienced his severe flare-up at all. Def. Ex. 24 at 5. There is also a dispute as to whether Mr. El Badrawi had been taking his prescribed dosage of Asacol daily throughout the month of October 2004 up until his arrest. Ex. 2 at 112, 127. Mr. El Badrawi testified that if he ever missed a dosage, he would try to make up for it in the same day. Ex. 2 at 78-79. Without basis, Dr. Blanchette finds it “most unlikely” that the medical intake nurse entered false information when he recorded the last date on which Mr. El Badrawi took his medication. Def. Ex. 24 at 5. This is a genuine issue for trial. Finally, there is a dispute as to the severity of the effects a deprivation of medication would have on Mr. El Badrawi’s health. Mr. El Badrawi only started experiencing the extreme symptoms of his Crohn’s disease after he missed his dosage upon transfer to HCC, and those symptoms subsided as soon as Mr. El Badrawi started taking the medication (that he was able to obtain only on his sixth day of incarceration). Ex. 2 at 179; Def. Ex. 6 at 1.
There are also disputes of material fact as to whether HCC personnel were deliberately indifferent to Mr. El Badrawi’s serious medical needs by failing to provide medication for six
46

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days. Here, there is evidence to suggest that staff failed to provide medication “with knowledge that harm will result.” Farmer v. Brennan. 511 U.S. 825, 835 (1994); see also Caiozzo v. Koreman, 581 F.3d 63, 71 (2d Cir. 2009). After being transferred to HCC, Mr. El Badrawi made repeated requests for his medication, Ex. 1 ¶¶ 36, 38-41, which he had been taking up until the night before his arrival. Id. ¶ 32. On the evening of his arrival, October 29, 2004 through October 30, he informed two individuals performing his medical screening, id. ¶ 38, a number of his fellow inmates, one of whom notified a correction officer, id. ¶ 39 and a nurse at HCC of the need for his medication. Id. ¶ 40. On November 1, Mr. El Badrawi filled out an inmate request form for the medication he had yet to receive. Id. ¶ 41; Def. Ex. 5. Mr. El Badrawi did not receive his medication until his sixth day of imprisonment at HCC. Def. Ex. 6 at 1. For nearly a week, he experienced severe pain and internal bleeding that could have been alleviated by his medication. Ex. 1 ¶¶ 36-37. A jury could reasonably conclude that staff at HCC who were on notice of Mr. El Badrawi’s condition and the severe pain he was experiencing, demonstrated deliberate indifference by failing to provide him with his Asacol pills. There is no evidence that officials followed up with the request for Mr. El Badrawi’s medication to ensure that he received it in a timely manner. The nurse who conducted his intake stated that if he ordered Asacol for an inmate, he would follow up “two to three days later.” Ex. 10 at 35. There is no evidence any follow-up occurred, and Mr. El Badrawi received his medication on his sixth day of incarceration. Def. Ex. 6 at 1.
Defendant Lee argues that he was not personally involved in the violation of Mr. El Badrawi’s Due Process rights to the extent necessary to state § 1983 liability.22 Def. Br. 23.
22 Defendant Lee is not entitled to qualified immunity from Mr. El Badrawi’s medical claim because he cannot establish that “viewed in the light most favorable to the plaintiff and with all permissible inferences drawn in his favor, no rational jury could fail to conclude that it was objectively reasonable for the defendant to believe that he was acting in a fashion that did not violate a clearly established right.” Salahuddin, 467 F.3d at 263. It is clear that
47

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However, for a defendant to be personally involved under § 1983, “direct participation is not always necessary.” Al-Jundi, 885 F.2d at 1066; see also El Badrawi, 579 F. Supp. 2d at 258 ( “a state official can be liable under § 1983 for. . .the creation or failure to rectify an unconstitutional policy or custom.”). There are disputes of material fact as to whether Defendant Lee created a custom that allowed for his subordinates’ failure to provide adequate medical care for Mr. El Badrawi in violation of the Fourteenth Amendment. See Colon, 58 F.3d at 873. A jury could also reasonably find that Defendant Lee was “grossly negligent” in supervising his subordinates and that his negligence resulted in Mr. El Badrawi’s constitutional injury. See id. Defendant claims that there is “no evidence” that he had “actual knowledge of a problem at HCC regarding undue delay in inmate’s receipt of prescription medication for chronic or acute medical problems. Def. Local Rule 56(a)(1) ¶ 118. However, he testified that he has been aware of inmates complaining that they have not received their medication. “In talking to 500, 600, a thousand inmates per day in one form or another,” Defendant Lee said he was “sure” that he has heard of such complaints. Ex. 3 at 107.
It was ultimately Defendant Lee’s responsibility “to have made sure that plaintiff was provided any medication he needed as quickly as possible.” Def. Ex. 33 ¶ 28. Though DOC had a Memorandum of Understanding with the University of Connecticut Health Center (UCHC), Def. Ex. 14, Defendant Lee was ultimately responsible for the safety and security of his inmates. Ex. 3 at 100. Defendant Lee confirmed that if he were informed of a problem or undue delay that caused any inmate harm, “[he] would have contacted the appropriate CMHC supervisor to request
Defendant Lee had an affirmative obligation under the Due Process Clause to provide Mr. El Badrawi with adequate medical care during his confinement. City of Revere, 463 U.S. at 244 (1983); El Badrawi, 579 F. Supp. 2d at 257 (“When the State incarcerates an individual pending further proceedings, the Due Process Clause requires that the State provide a certain level of medical care.”). No reasonable warden could conclude that failing to act on inmate complaints about delays in obtaining medication and allowing a custom of medication delays would not violate an inmate’s constitutional rights.
48

Case 3:07-cv-01074-JCH Document 382 Filed 11/05/10 Page 57 of 58
that the medication be delivered as soon as possible and [he] would have requested an explanation for the delay.” Def. Ex. 33 ¶ 28. However there is no evidence that Defendant Lee responded to the delays in medication of which he was aware, leading in large measure to Plaintiff’s denial of necessary medication for the first six days of his detention.
Defendant Lee need not have had knowledge of the Plaintiff’s “particular condition” but should have been aware that inmates with conditions such as that of Mr. El Badrawi were housed at HCC from time to time and that no process was in place by which Lee’s subordinates could ensure that patients received urgent medication without undue delays. See Beatty v. Davidson, 713 F.Supp.2d 167, 177 (W.D.N.Y. 2010). Defendant Lee has stated that he was aware that inmates complained of delays in medication. Ex. 3 at 107. There is also evidence that in the event that medication would be delayed, there was no clear procedure by which subordinates were trained to ensure the timely delivery of urgent medication, as was demonstrated in Mr. El Badrawi’s case. Accordingly, a jury could also reasonably find that Defendant Lee was “grossly negligent” in supervising his subordinates and that his negligence resulted in Mr. El Badrawi’s constitutional injury.
CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that Defendants’ Motion for Summary Judgment be denied.
Respectfully Submitted,
BY: /s/ Hope Metcalf_______ Hope Metcalf, Fed. Bar No. ct27184 Michael J. Wishnie, Fed. Bar No. ct27221
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Case 3:07-cv-01074-JCH Document 382 Filed 11/05/10 Page 58 of 58
Pouneh Aravand, Law Student Intern Bonnie Doyle, Law Student Intern Alex Iftimie, Law Student Intern Stephen Poellot, Law Student Intern Sasha Post, Law Student Intern Saurabh Sanghvi, Law Student Intern Jerome N. Frank Legal Services Organization P.O. Box 209090 New Haven, CT 06520-9090 Sameer Ahmed, Fed. Bar No. phv03980 ASIAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND 99 Hudson Street New York, NY 10013 Phone: (212) 966-5932 -EXT 220 Counsel for Plaintiff
50

 
 Melissa Crow American Immigration Council 1331 G Street NW, Suite 200 Washington, DC 20005 Tel: (202) 507-7523 Fax: (202) 742-5619 E-mail: mcrow@immcouncil.org
Michael Boyle Law Offices ofMichael Boyle 169 Montowese Avenue P.O. Box 335 North Haven, CT 06473-0335 Phone: (203) 239-2299 Fax: (203) 985-8207 E-mail: mboyle@immigrantcenter.com
Attorneys for Amici Curiae

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

RASHAD AHMAD REFAAT EL BADRAWI, )

)

Plaintiff,

)

)

v.

)

)

DEPARTMENT OF HOMELAND

)

SECURITY, ET AL.,

)

)

Defendants.

)

)

3:07-cv-01074 (JCH) November 5, 2010

BRIEF AMICI CURIAE OF THE AMERICAN IMMIGRATION COUNCIL AND THE AMERICAN IMMIGRATION LAWYERS ASSOCIATION IN OPPOSITION TO THE MOTION OF DEFENDANT UNITED STATES FOR SUMMARY JUDGMENT AND IN SUPPORT OF PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT

TABLE OF CONTENTS
INTRODUCTION ........................................................................................................................... 1
STATEMENT OF INTEREST ........................................................................................................3
ARGUMENT ...................................................................................................................................4
I. CONGRESS DESIGNED THE H-lB VISA PROGRAM TO ENABLE U.S. EMPLOYERS TO HIRE EDUCATED, HIGHLY SKILLED IMMIGRANTS TO FILL CRITICAL GAPS IN U.S. LABOR MARKETS....................................4
II. EXISTING LAW DICTATES THAT THE BENEFICIARY OF A PENDING TIMELY FILED H-lB EXTENSION REQUEST IS ENTITLED TO REMAIN IN THE UNITED STATES UNTIL THE REQUEST HAS BEEN ADJUDICATED...................................................................................................... 8 A. Viewed in the Context of the Legal and Regulatory Framework Governing the H-IB Program, DHS's Restrictive Interpretation of 8 C.F.R. § 274a.l2(b)(20) is Clearly Flawed...................................................8 B. DHS Misconstrues the Case Law Cited To Support Its Position...................13
ill. A CONTRARY INTERPRETATION OF EXISTING LAW WOULD DISRUPT KEY SECTORS OF THE U.S. ECONOMY AND THEREBY UNDERMINE THE GOALS OF THE H-lB PROGRAM...................................16
CONCLUSION .............................................................................................................................. 19
EXHIBIT A: Declaration of Edward L. Skornia ...........................................................................21
EXHIBIT B: Declaration of Bradley S. Paskievich.......................................................................25
EXHIBIT C: Declaration of Deborah A. Marlowe........................................................................29
EXHIBIT D: Memorandum from Michael A. Pearson, Period of stay authorized by the Attorney General after 120 day tolling period for purposes of section 212(a)(9)(B) of the Immigration and Nationality Act (March 3, 2000) ........................................................................34
EXHIBIT E: Memorandum from Thomas E. Cook, Guidance on Interpretation of "Period of Stay Authorized by the Attorney General" in determining ''unlawful presence" under section 212(a)(9)(B)(ii) of the Immigration and Nationality Act (April 2, 2003) .....................................41
1

TABLE OF AUTHORITIES Cases Bokhari v. Holder, No. 09-60538,2010 WL 3768016 (5th Cir. 2010) ........................................ 15 El Badrawi v. DHS, 579 F. Supp. 2d 249 (D. Conn. 2008) ...................................................... 9, 16 Matter ofEssex Cryogenics, 141. & N. Dec. 196 (Dep. Assoc. Co='r 1972)............................ 4 Matter ofRotimi, 24 I. & N. Dec. 567 (BIA 2008)....................................................................... 13 Matter ofShaw, 111. & N. Dec. 277 (Dist. Director 1965) ........................................................... 4 Matter ofTeberen, 151. & N. Dec. 689 (BIA 1976) .................................................................... 15 Rotimi v. Holder, 577 F.3d 133 (2d Cir. 2009) ............................................................................. 14
Statutes American Competitiveness in the Twenty-First Century Act of2000 (AC21),
Pub. L. 106-313, 114 Stat 1251 ................................................................................................ 10 Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 ......................................... 8 Immigration Act of 1990, Pub. L. 101-649, 104 Stat. 4978 ................................................... 4,5,6 Immigration and Nationality Act of 1952, Pub. L. 82-414,66 Stat. 163 ................................... 4,5 INA § 212(a)(9)(B)(iv), 8 U.S.C. § 1182(a)(9)(B)(iv) ................................................................. 12 INA § 212(h), 8 U.S.C. § 1182(h) ................................................................................................ 13 INA § 214(a), 8 U.S.C. § 1184(a) ................................................................................................... 8 INA § 214(b), 8 U.S.C. § 1184(b) .................................................................................................. 5 INA § 214(c)(7), 8 U.S.C. § 1184(c)(7) ....................................................................................... 19 INA § 214(c)(9)(A), 8 U.S.C. § 1184(c)(9)(A) ............................................................................ 18 INA § 214(c)(9)(B), 8 U.S.C. § 1184(c)(9)(B)............................................................................. 18 INA § 214(g)(1)(A)(vii), 8 U.S.C. § 1184(g)(1)(A)(vii) ................................................................ 1 INA § 214(g)(4), 8 U.S.C. § 1184(g)(4) ......................................................................................... 6 INA § 214(g)(5)(C), 8 U.S.C. § 1184(g)(5)(C) .............................................................................. 1 INA § 214(i)(1), 8 U.S.C. § 1184(i)(1)....................................................................................... 1,5 INA § 214(n), 8 U.S.C. § 1184(n) ................................................................................................ 10 INA § 245(k), 8 U.S.C § 1255(k) ................................................................................................. 15
11

Regulations 8 C.F.R. § 103.7(e).......................................................................................................................... 9 8 C.F.R. § 214.2(h)(4)(ii)................................................................................................................ 5 8 C.F.R. § 214.2(h)(4)(iii)(D)(5) .................................................................................................... 5 8 C.F.R. § 214.2(h)(4)(v)(A) .......................................................................................................... 5 8 C.F.R. § 214.2(h)(9)(i)(B)............................................................................................................ 9 8 C.F.R. § 214.2(h)(9)(iii)(A)(I) .............................................................................................. 7, 11 8 C.F.R. § 214.2(h)(14)................................................................................................................... 8 8 C.F.R. § 214.2(h)(15)................................................................................................................. 11 8 C.F.R. § 214.2(h)(16)(i) ............................................................................................................... 6 8 C.F.R. § 274a.12(b)(20) ...................................................................................................... passim
Federal Register Control of Employment of Aliens, 52 Fed. Reg. 16216 (May 1, 1987) ............................... 2,9, 16 Control ofEmployment of Aliens, 56 Fed. Reg. 41767 (Aug. 23,1991)............................. 2,9,16 Adjustment of the Immigration and Naturalization Benefit Application and Petition Fee
Schedule, 72 Fed. Reg. 29851 (May 30, 2007) ........................................................................ 18
Legislative ffistory 136 Congo Rec. H8637 (dailyed. Oct. 2, 1990).............................................................................. 6
U.S. Citizenship and Immigration Services Documents Memorandum from Michael A. Pearson, Period of stay authorized by the Attorney General
after 120 day tolling period for purposes of section 212(a)(9)(B) ofthe Immigration and Nationality Act (March 3, 2000) (Exhibit D) ............................................................................ 12 Memorandum from Thomas E. Cook, Guidance on Interpretation of "Period of Stay Authorized by the Attorney General" in determining "unlawful presence" under section 212(a)(9)(B)(ii) of the Immigration and Nationality Act (ApriI2, 2003) (Exhibit E) ..............12 Memorandum from Donald Neufeld, Lori Scialabba, Pearl Chang, Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act (May 6, 2009) ..............................................................................12 Press Release, U.S. Citizenship and Immigration Services, USCIS Reaches FY 2008 H-IB Cap (Apr. 3, 2007) .......................................................................................................................2 U.S. Citizenship and Immigration Services, Characteristics ofH-IB Specialty Occupation Workers: Fiscal Year 2009 Annual Report, Apri115, 2010 ........................................................5 U.S. Citizenship and Immigration Services, Online USCIS Processing Time Information ...... 10
111

Declarations Declaration of Edward L. Skornia, Senior Vice President and General Manager of
O'Grady Peyton International ......................................................................................... passim Declaration of Bradley S. Paskievich, Senior Legal Counsel, Compliance and
Employment, DHL Global Business Services ................................................................ passim Declaration of Deborah Marlowe, Director of Global Personnel Alliance ................... .passim Miscellaneous Dr. Jeanne Batalova, The Growing Connection Between Temporary and Permanent
Immigration Systems, Migration Policy Institute (January 2006) ...............................................6 Dr. Jeanne Batalova, The H-IB Temporary Skilled Worker Program, Migration Policy
Institute (October 2010) ...............................................................................................................2 Bill Gates, Op-Ed, How to Keep America Competitive, Wash. Post, Feb. 25, 2007 .......................7 Dr. Alan Greenspan, Testimony before the Senate Subcommittee on Immigration,
Refugees, and Border Security, April 30, 2009 ...........................................................................7 State Department cable no. 9l-State-171ll5 (May 24, 1991), reprinted at 68 No. 21
Interpreter Releases 681 (June 3, 1991).......................................................................................6 Interview with Eric Schmidt, The Economic Times, Sept. 19, 2010 ...............................................7 Nancy Zuckerbrod, Bill Gates: Remove Limits on HI-B [sic] Visas, Associated Press,
March 8, 2007 ..............................................................................................................................7
IV

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

RASHAD AHMAD REFAAT EL BADRAWI, )

)

Plaintiff,

)

)

v.

)

)

DEPARTMENT OF HOMELAND

)

SECURITY, ET AL.,

)

)

Defendants.

)

)

3:07-cv-Ol074 (JCH) November 5, 2010

BRIEF AMICI CURIAE OF THE AMERICAN IMMIGRATION COUNCIL AND THE AMERICAN IMMIGRATION LAWYERS ASSOCIATION IN OPPOSITION TO THE MOTION OF DEFENDANT UNITED STATES FOR SUMMARY JUDGMENT AND IN SUPPORT OF PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

The H-IB visa program has enabled thousands of U.S. employers to retain the temporary

services of professional foreign workers in occupations requiring both highly specialized

knowledge and the attainment of a bachelor's degree, license, or equivalent training and

experience as a prerequisite for entry into the field. See INA § 2l4(i)(I), 8 U.S.C. § lI84(i)(I).

From the nation's leading technology companies to its most prominent research universities,

employers rely on H-IB visas to attract talented professionals from abroad and to allow those

educated on our shores to continue working in the United States. The program has proven so

popular that the annual cap on H-IB visas--currently set at 65,000 per fiscal year1-has been reached in as little as one day.2

1INA § 214(g)(1)(A)(vii), 8 U.S.C. § 1184(g)(1)(A)(vii). The first 20,000 H-lB beneficiaries who have earned a master's or higher degree from a U.S. educational institution are not counted toward the 65,000 numerical limit, resulting in a functional numerical limit of 85,000. INA § 214(g)(5)(C), 8 U.S.C. § 1184(g)(5)(C).

Since 2003, the majority of approved H-lB petitions have been filed by employers seeking to continue employing their own H-lB personnel or to hire individuals who previously worked for another H-lB employer.3 To compensate for adjudication delays and to avoid disruptions in the employment ofnonimmigrant workers, the former Immigration and Naturalization Service ("legacy INS") promulgated a regulation-now codified at 8 C.F.R. § 274a.l2(b)(20}-to automatically extend the period of employment authorization for certain categories ofnonimmigrant workers, including H-IB workers whose employers have filed extension requests prior to the expiration of their initial period of authorized stay.4 Amici argue that the right to continued employment necessarily implies the right to remain in the United States without risk of arrest, detention, or initiation of removal proceedings while the extension request remains pending.5 Any contrary interpretation of existing law would undermine the goals of the H-lB program and disrupt significant sectors of the U.S. economy that depend on HIB employees.
2 Press Release, U.S. Citizenship and Immigration Services, USCIS Reaches FY 2008 H-IB Cap (Apr. 3, 2007), available at http://www.uscis.gov/files/pressreleaselHlBFY08Cap040307.pdf. 3 See Dr. Jeanne Batalova, The H-IB Temporary Skilled Worker Program, Migration Policy Institute (October 2010) (citing U.S. Citizenship and Immigration Services, Characteristics o/HIB Specialty Occupation Workers). 4 Control of Employment of Aliens, 52 Fed. Reg. 16216, 16220 (May 1, 1987) (establishing automatic extension of employment authorization for 120 days given ''the possibility of delays in the processing of applications for extensions of stay"); Control of Employment ofAliens, 56 Fed. Reg. 41767, 41780-81 (Aug. 23, 1991) ("[T]his fmal rule extends the 120-day period to 240 days to ensure that work authorization documents are issued to these aliens without causing a gap in their employment authorization."). 5 This brief only addresses the risk of arrest, detention, and removal proceedings for alleged violations ofH-lB status.
2

STATEMENT OF INTEREST The American Immigration Council ("Council") (formerly the American Immigration Law Foundation) was established in 1987 as a not-for-profit educational and charitable organization. The Council, through its Legal Action Center, strives to increase the accountability of government agencies that administer the immigration laws and to ensure these laws are interpreted and implemented in a way that protects fundamental constitutional and human rights. The Council engages in impact litigation and appears as amicus curiae before administrative tribunals and federal courts in significant immigration cases on targeted legal issues. The Council also provides resources to lawyers litigating immigration cases and serves as a point of contact for lawyers conducting or contemplating immigration litigation. The American Immigration Lawyers Association ("AlLA") is a national association with more than 11,000 members throughout the United States and overseas. AlLA's members regularly practice before the immigration courts and federal courts. AlLA's members have a strong interest in ensuring that their clients' rights are protected by the Board of Immigration Appeals and the federal courts. The issue presented in this case-whether the beneficiary of a timely filed H-1 B extension request is entitled to remain in the country after his initial period of admission has expired-impacts employers who rely on the H-IB visa program, the continuity of their business operations, and the rights ofH-1B employees themselves. The Council and AlLA have monitored the H-IB visa program for many years and work closely with employers who rely heavily on H-IB employees. In light of their extensive experience in immigration law and practice, they are well-placed to assist the Court in understanding the complex legal and regulatory framework governing the H-IB program.
3

ARGUMENT I. CONGRESS DESIGNED THE H-IB VISA PROGRAM TO ENABLE U.S.
EMPLOYERS TO mRE EDUCATED, mGHLY SKILLED IMMIGRANTS TO FILL CRITICAL GAPS IN U.S. LABOR MARKETS. Though officially established in the Immigration Act of 1990, the H-lB visa is the modem offshoot of the "H-l" visa created in the Immigration and Nationality Act (INA) of 1952. The original INA authorized the issuance ofH-l visas to foreign nationals with "distinguished merit and ability ... to perform temporary services of an exceptional nature requiring such merit and ability." Pub. L. 82-414, § 101(a)(15)(H)(i), 66 Stat. 163, 168. Pursuant to subsequent agency determinations, noncitizens could qualify for an H-1 visa in one of two ways: by attaining a level of "preeminence" in their field of endeavor,Matter ojShaw, 11 I. & N. Dec. 277, 280 (Dist. Director 1965) (requiring H-l beneficiaries to possess a "degree of skill and recognition substantially above that ordinarily encountered"), or by virtue of their membership in a profession requiring specialized training and education. Matter ojEssex Cryogenics, 141. & N. Dec. 196, 197 (Dep. Assoc. Comm'r 1972) (holding that "a person who is qualified as a member of the professions qualifies as a person 'of distinguished merit and ability. "'). Following minor statutory revisions in subsequent decades, Congress revamped the H-l visa category in the Immigration Act of 1990, Pub. L. 101-649, 104 Stat. 4978. Jettisoning the phrase "distinguished merit and ability," lawmakers instead applied the new "H-IB" designation to noncitizens working in a "specialty occupation," which they defined as a position requiring both the ''theoretical and practical application of a body of highly specialized knowledge" and the "attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States." 104 Stat. 5020 (enacting INA
4

§ 214(i)(I)(A)-(B), 8 U.S.C. § 1184(i)(I)(A)-(B». As a result of this change, H-lB status is now available to noncitizens with bachelor's or higher degrees6 or equivalent experience that relate specifically to the job they intend to perform. 8 C.F.R. § 2l4.2(h)(4)(iii)(D)(5). (In addition, HIB workers must obtain state licensure if required for practice in the state. 8 C.F.R. § 214.2(h)(4)(v)(A).) Though the list is not exhaustive, federal regulations mention "architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts" as fields in which H-lB nonimmigrants may work. 8 C.F.R. § 214.2(h)(4)(ii).
A second change made by the Immigration Act of 1990 was to eliminate longstanding statutory requirements that had prevented many otherwise eligible foreign nationals from obtaiuing H-l status. Under the earlier INA, potential H-l beneficiaries-like all nonimmigrants-could not obtain a visa unless they established to consular officials' satisfaction that they intended to eventually return to their countries of origin. INA § 214(b), 8 U.S.C. § 1184(b). To ensure their stays were in fact temporary, Congress mandated that applicants seeking H-l visas possess a foreign residence that they had no intent of abandoning. Pub. L. 82414, § 101(a)(15)(H)(i), 66 Stat. 163, 168.
The Immigration Act of 1990 repealed both requirements,7 making H-lB beneficiaries one of only two categories ofnonimmigrants statutorily presumed to possess "dual intent"-
6 While Congress only requires H-IB beneficiaries to possess a bachelor's degree, government statistics show that the majority ofH-lB beneficiaries possess a master's or other advanced degree. Of the workers whose petitions were approved in fiscal year 2009, roughly 40 percent held a master's degree, 13 percent held a doctorate, and 6 percent held a professional (e.g. medical, legal) degree. U.S. Citizenship and Immigration Services, Characteristics ofH-IB Specialty Occupation Workers: Fiscal Year 2009 Annual Report at 10, April 15, 2010 (see Table 7, H-IB Petitions Approved by Level of Education of Beneficiary). 7 Pub. L. 101-649, §§ 205(b), (e), 104 Stat. 4978, 5020, 5022 (amending INA § 2l4(b), 8 U.S.C. § 1184(b».
5

namely, the ability to enter the United States on a temporary visa while simultaneously pursuing lawful pennanent residence. 8 INA § 214(b), 8 U.S.C. § 1184(b); 8 C.F.R. § 214.2(h)(16)(i). This change was intentional. As Representative Bruce Morrison (D-Conn.), the chief sponsor of the legislation in the House ofRepresentatives, explained, the elimination ofthese requirements was meant to "move[] in the direction ofbringing in pennanent workers rather than temporary workers." 136 Congo Rec. H8637 (dailyed. Oct. 2, 1990). Similarly, in a cable sent to all diplomatic and consular personnel, the State Department said the amendments reflected an "overwhelmingly strong congressional statement" to "eliminate[] nonimmigrant intent as a factor of consideration" in adjudicating H-lB visa petitions. State Department cable no. 91-State171115, paras. 2, 8 (May 24, 1991), reprinted at 68 No. 21 Interpreter Releases 681 (June 3, 1991). Thus, while retaining the requirement that H-lB beneficiaries remain in the United States "temporarily," Congress simultaneously enabled them to seek lawful pennanent residence in the United States without returning to their countries of origin.9
A final statutory change enacted in the Immigration Act of 1990 was the imposition of a six-year limit on the time during which a foreign national could remain in the United States in HIB status. Pub. L. 101-649, § 205(a), 104 Stat. 4978,1519 (enacting INA § 214(g)(4), 8 U.S.C. § 1184(g)(4». Under subsequently issued federal regulations that remain in effect, however, legacy INS mandated that no H-IB petition be approved for a period longer than three years.
8 At present, the other nonimmigrant categories exempt from the immigrant presumption are intra-company transferees holding "L" visas, and spouses and minor children oflawful fennanent residents holding "V" visas. Id.
Though the government does not keep precise statistics, some studies indicate that at least half ofH-IB beneficiaries ultimately adjust to pennanent residence. See, e.g., Dr. Jeanne Batalova, The Growing Connection Between Temporary and Permanent Immigration Systems, Migration Policy Institute (January 2006).
6

8 C.F.R. § 214.2(h)(9)(iii)(A)(I). As a result, employers wishing to employ H-lB workers for
six years must file at least one extension request.
Given the advanced skill set that H-lB nonimmigrants necessarily possess and the ever-
increasing need for such highly skilled workers, prominent members of the business community
and high-tech industry repeatedly have called for the program's expansion. Among the
program's most prominent supporters is Bill Gates, the founder and ChaUman Emeritus of
Microsoft Corporation, which sponsored the second-highest number ofH-1B applicants in fiscal
year 2009.10 In testimony before Congress, Gates asked lawmakers to eliminate altogether the annual cap on H-1B visas. 11 In 2009, former Federal Reserve Chairman Alan Greenspan
similarly told Congress that the current cap on H-IB visas is "far too small" to meet the
country's continuing need for skilled workers, particularly with the impending retirement wave
of skilled "baby boomers.,,12 And in September of this year, Google Chief Executive Officer
Eric Schmidt characterized the United States' failure to automatically provide H-1B visas to
foreign graduates of American universities as "the stupidest thing we've ever done.,,13
10 U.S. Citizenship and Immigration Services, Number ofH-IB Petitions Approved By USCIS in FY 2009for Initial Beneficiaries, available at http://www.uscis.gov/USCIS/Resources/Reports%20and%20StudieslH-1BIh-1 bfy09%20counts-employers.csv (listing Microsoft Corporation as the sponsor of 1,318 beneficiaries in fiscal 2009). Other institutions that filed large numbers ofH-IB petitions included Intel Corp. (723), Cisco Systems (308), Oracle (272), Google (211 ), Yahoo (183), Johns Hopkins University Medical Institute (179), Apple (168), Yale University (159), Stanford University (150), and Harvard University (145). Id. 11 Nancy Zuckerbrod, Bill Gates: Remove Limits on HI-B [sic] Visas, Associated Press, March 8, 2007 (quoting Gates as saying Congress should not impose "any limit" on H-lB visas); see also Bill Gates, Op-Ed, How to Keep America Competitive, Wash. Post, Feb. 25, 2007 (calling the 65,000 cap "not nearly enough to fill open technical positions"). 12 Dr. Alan Greenspan, Testimony before the Senate Subcommittee on Immigration, Refugees, and Border Security, April 30, 2009, available at http://judiciary.senate.govlhearings/testimony.cfm?id=3793&wiUd=7848. 13 Interview with Eric Schmidt, The Economic Times, Sept. 19,2010, available at http://economictimes.indiatimes.comlvideoshow/6600792.cms.
7

II. EXISTING LAW DICTATES THAT THE BENEFICIARY OF A PENDING TIMELY FILED B-IB EXTENSION REQUEST IS ENTITLED TO REMAIN IN THE UNITED STATES UNTIL THE REQUEST HAS BEEN ADJUDICATED.
The INA permits the Department of Homeland Security (DHS)14 to prescribe the
duration and conditions of the admission of nonimmigrants to the United States, but the agency
must do so by regulation. INA § 214(a), 8 U.S.C. § 1184(a). Detailed regulations govern the
filing of requests for H-IB extensions. To be considered timely, such a request must be filed
before the end of an H-lB employee's initial period of authorized stay in the United States,
which is generally indicated on Form 1-94 (Arrival/Departure Record). 8 C.F.R. § 214.2(h)(14).
To continue employment without having a timely extension request filed on his behalf, an H-lB
beneficiary ordinarily must leave the country, await the approval ofhis visa abroad, and re-enter
the United States after receiving approval.
A. Viewed in the Context ofthe Legal and Regulatory Framework Governing the B-lB Program, DBS's Restrictive Interpretation of 8 C.F.R. § 274a.12(b)(20) is Clearly Flawed.
The critical question in this case is whether an H-IB nonimmigrant has a right to remain
in the United States ifhis initial period of authorized stay expires during the pendency ofhis
employer's timely filed extension request on his behalf. While the immigration regulations do
not address this point directly, 8 C.F.R. § 274a.12(b)(20) permits the beneficiary of a timely filed
H-IB extension request to continue employment with the same employer for up to 240 days
beyond the expiration of his previously authorized period of stay. 15 Notwithstanding this
14 The Homeland Security Act of 2002 abolished the Immigration and Naturalization Service, Pub. L. No. 107-296, § 471, 116 Stat. 2135, 2205, and re-assigned responsibility for the enforcement ofthe Immigration and Nationality Act from the Attorney General to the Secretary of Homeland Security. Pub. L. No. 108-7, Div. (L) § 105, 117 Stat. 11,531. IS This regulation specifies that employment authorization is "subject to any conditions and limitations noted on the initial authorization" and "shall automatically terminate upon notification ofthe denial decision." 8 C.F.R. § 274a.12(b)(20).
8

provision, DHS argues that Mr. EI Badrawi had no right to remain in the United States after his initial period of admission had expired. Def. U.S. Mot. Summ. J. 15-22. Discounting DHS's argument as "bewildering" and "seemingly untenable," this Court correctly concluded that continued employment with the same employer "necessarily includes the right to physically remain in the country." El Badrawi v. DHS, 579 F. Supp. 2d 249,277 (D. Conn. 2008).
Acknowledging the likelihood of adjudication delays, DHS promulgated 8 C.F.R. § 274a.12(b){20) to ensure continuity of employment while H-IB extension requests are pending. See 52 Fed. Reg. 16216, 16220 (May 1, 1987) (acknowledging ''the possibility of delays in the processing of applications for extensions of stay"); 56 Fed. Reg. 41767, 41780-81 (Aug. 23,1991) (noting that the final rule was intended to prevent a gap in the applicant's work authorization during the pendency of an extension request). The immigration regulations have been construed to preclude an employer from filing an H-lB petition or an H-lB extension request more than six months before the date of anticipated employment. 8 C.F.R. § 214.2(h){9){i)(B); Declaration of Edward L. Skornia ("Skornia Dec."), Senior Vice President and General Manager of O'Grady Peyton Intemational, attached hereto as Exhibit A, ~ 4; Declaration of Bradley S. Paskievich ("Paskievich Dec."), Senior Legal Counsel, Compliance and Employment, DHL Global Business Services, attached hereto as Exhibit B, ~ 7. However, DHS will not guarantee that it will adjudicate such requests before an employee's initial period of authorized stay expires. 16 The most recent processing time reports from U.S. Citizenship and Immigration Services ("USCrS"), the DHS component that adjudicates benefit applications,
16 Although employers can try to expedite the adjudication of H-lB extension petitions by paying an additional $1,000 for premium processing, 8 C.F.R. § 103.7{e), most businesses try to avoid this additional expense. See Skornia Dec. (Ex. A), ~ 6; Paskievich Dec. (Ex. B), ~ 7. The payment of the additional fee does not guarantee that expedited processing will occur, but the fee is refunded if it does not. Skornia Dec. (Ex. A), ~ 6.
9

indicate that, as of August 31, 2010, H-1B extension requests took nearly twelve weeks to
process at the California Service Center and more than fourteen weeks to process at the Vermont
Service Center. U.S. Citizenship and Immigration Services, Online uscrs Processing Time
Infonnation, available at
https:llegov.uscis.gov/crislprocessTimesDisplayInit.do;jsessionid=bacjk8Lk5Bfs dBsINtRs
(scroll to bottom of page and follow "Instructions on Using the Table"). 17 uscrs itself
acknowledges that these reports are based on infonnation that is at least 45 days old, which
suggests that the actual processing times may be outdated. See id. The experience of many
AILA members confirms that actual processing times often exceed posted processing times.
Given that backlogs may extend beyond six months,18 8 C.F.R. § 274a.12(b)(20) ensures that
employers will not lose critical staff pending the adjudication of their H-lB extension requests. 19
The Court should thus construe 8 C.F.R. § 274a.l2(b)(20) as a necessary and proper
implementation of INA § 214, which provides that an H-lB beneficiary may be admitted to the
United States for up to six years pursuant to terms defined by regulations. See INA §§ 2l4(a),
17 At the time Mr. El Badrawi's employer filed his H-lB extension request, the uscrs Vermont
Service Center was still processing applications filed more than 170 days (i.e. almost six months)
earlier. See uscrs Vermont Service Center Processing Dates as of April 8, 2004, available at
http://www.aila.orglcontentldefault.aspx?bc=1016187671672211263111 0460. 18 See, e.g., Skornia Dec. (Ex. A), '116 ("The time for approval has varied widely over the years and has often exceeded six months-the maximum lead time for advance filing."); Declaration of Bradley S. Paskievich ("Paskievich Dec."), attached hereto as Exhibit B, '117 ("The time required for an extension of stay to be adjudicated has varied widely over the past few years and currently ranges between four and six months."); Declaration of Deborah Marlowe ("Marlowe Dec."), attached hereto as Exhibit C, '114 (noting that a delay of two or three months in the regular processing of extension petitions is "not uncommon"). 19 Under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), Pub. L. 106-313, 114 Stat 1251, the beneficiary of a timely filed H-lB extension request is also free to accept new employment upon the filing by the prospective employer of a new H-lB petition during an authorized period of stay. INA § 214(n), 8 U.S.C. § 1184(n). The authorization to work for the new employer "continue[s] for such alien until the new petition is adjudicated." ld. But, "[i]fthe new petition is denied, such authorization shall cease." ld.
10

(g)(4), 8 U.S.C. § 1184(a), (g)(4). Because the applicable regulations specify that an R-lB
nonimmigrant's initial period of authorized stay cannot exceed three years, 8 C.F.R.
§ 2l4.2(h)(9)(iii)(A)(I), the prospect of an extension is clearly anticipated. See also 8 C.F.R.
§ 214.2(h)(15) ("Extension of stay"). 8 C.F.R. § 274a.12(b)(20) facilitates the extension process
for the beneficiary of a pending timely filed petition, who is permitted to work for up to 240 days
after his initial period of authorized stay expires.
Without the ability to remain and work lawfully in the United States while an extension
petition is pending, all nonimmigrants in Mr. Badrawi's situation-and the employers who
depend on them-would fall victim to the vagaries of USCIS processing delays. If the government's argwnent were correct, DRS could render a broad spectrwn ofnonimmigrants20
removable simply by delaying adjudication oftheir employers' pending extension requests until
after their previously authorized stays had expired. Under this scenario, the 240-day extension of
employment authorization would serve no conceivable purpose. In fact, DRS would have an
incentive to increase adjudication backlogs in order to expand its arrest authority.
In other contexts, DRS has strived to ensure that nonimmigrants do not suffer adverse
consequences as a result of the agency's processing delays. For example, policy guidance issued
20 8 C.F.R. § 274a.12(b)(20) grants an extension of employment authorization to many categories of nonimmigrants with pending timely filed extension requests. These include R-l (religious workers); L-IA (intracompany transferees serving as executives, managers, or specialists for multinational corporations); A-3 (employees of foreign diplomats); E-l (persons in the United States pursuant to multilateral treaties of co=erce and friendship who are engaged in international trade) or E-2 (investors of substantial sums of capital in this country); I (foreign news correspondents and other media personnel); 1-1 (exchange visitors in a program designated by the Department of State); 0-1 (persons of extraordinary ability in the sciences, arts, education, business or athletics); P-l (other athletes, artists and entertainers); and TN (business professionals under the North American Free Trade Agreement). Adopting the government's position in this case would place these talented individuals, who make valuable contributions to our country, at great risk and could discourage others like them from coming to the United States in the future.
11

by legacy INS prior to Mr. Badrawi's arrest establishes that "[b]ecause of the current backlogs,
which in some cases tend beyond six months," nonimmigrants with timely filed extension
requests that "have been pending beyond the 120 day tolling period [in INA § 212(a)(9)(B)(iv),
8 U.S.C. § 1182(a)(9)(B)(iv)] should be considered to be in a period of stay authorized by the
Attorney General ...." See Memorandum from Michael A. Pearson, Period of stay authorized
by the Attorney General after 120 day tolling period for purposes of section 2l2(a)(9)(B) of the
Immigration and Nationality Act at 1 (March 3, 2000), attached hereto as Exhibit D.2l During
this period, the nonimmigrant does not accrue unlawful presence, which could render him
ineligible for certain immigration benefits and/or bar him from readmission to the United States
for certain periods. ld.
DHS suggests that an H-lB employee can remain in the United States only ifhis
employer's extension request is approved before the end of his initial period of authorized
admission. If this were true, the relevant provisions of the INA and immigration regulations
would be written differently. To be considered timely filed, an employer's extension request
would have to be submitted early enough forDHS to adjudicate it before the end of the H-lB nonimmigrant's initial period of authorized admission.22 In addition, DHS would have a
21See also Memorandum from Thomas E. Cook, Guidance on Interpretation of "Period of Stay Authorized by the Attorney General" in determining "unlawful presence" under section 2l2(a)(9)(B)(ii) of the Immigration and Nationality Act, at 4 (April 2, 2003), attached hereto as Exhibit E. Both the Pearson and Cook memos were subsequently consolidated and reaffirmed in a USCIS memo dated May 6, 2009, which rescinded the prior memos. See Memorandum from Donald Neufeld, Lori Scialabba, Pearl Chang, Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 2l2(a)(9)(B)(i) and 2l2(a)(9)(C)(i)(I) of the Act, at 32-33,35 (May 6, 2009), available at http://www.uscis.gov/USCISlLaws/MemorandaiStatic Files Memoranda/2009/revision redesig n AFM.PDF. 22As previously discussed, current law is generally interpreted to preclude an H-lB employer from filing an extension request more than six months ahead of the start of anticipated employment.
12

corresponding obligation to timely adjudicate the request. In the absence ofthose requirements, existing law must be construed to preserve the status quo during the pendency of an R-IB extension request.
B. DBS Misconstrues the Case Law Cited To Support Its Position. DRS relies heavily on Matter ofRotimi, 24 I. & N. Dec. 567 (BIA 2008), for the categorical proposition that "an alien's work authorization provides no safe harbor from arrest for being illegally present in the country." Def. U.S. Mot. Sunun. J. 12. As Plaintiffs counsel has noted, Rotimi involved a distinct provision ofinunigration law (INA § 212(h), 8 U.S.C. 1182(h)) unrelated to the issue in this case, and the Board explicitly limited its decision to the facts before it. Matter ofRotimi, 241. & N. Dec. at 571 (declining to issue a "comprehensive ruling that would address and resolve the many cases not now before us"). Moreover, the respondent's incidental receipt of employment authorization had no bearing on the Board's ultimate decision in Rotimi. Finally, as discussed below, the Second Circuit panel that reviewed the decision not only criticized the Board's reasoning but specifically found that its ruling would not apply to the very circumstances now presented in Mr. EI Badrawi's case. The central question in Rotimi was whether the respondent-a convicted criminal denied admission to the country following a trip abroad-was eligible for a waiver of inadmissibility under INA § 212(h).23 ld. at 570. To qualify for a waiver, Rotimi had to establish that he had "lawfully" resided in the United States for the seven years prior to his placement in removal proceedings. ld. at 571. Because Rotimi had been a lawful permanent resident for less than six
23 INA § 212(h), 8 U.S.C. § 1182(h), vests DRS with discretion to waive grounds of inadmissibility related to the commission ofvarious criminal offenses. Lawful permanent residents may take advantage ofthe provision in instances where a criminal conviction in the United States renders them inadmissible upon returning from a trip abroad. INA § 212(h)(2), 8 U.S.C. § 1182(h)(2).
13

years, he argued that he had "lawfully" resided in the country during the prior 13-month period after his tourist visa expired but while his applications for adjustment of status and asylum remained pending. Id. Although the Board rejected Rotimi's argument that his work authorization constituted evidence of "lawful" residence, id. at 578, this determination was irrelevant to the disposition of his case. The Board only addressed the matter in the fmal paragraph of its opinion, id., and mention of it is wholly absent from the Second Circuit's subsequent decision.
On appeal, the Second Circuit, exercising Chevron deference, adopted the Board's conclusion that Rotimi's period of "lawful residence" ended when his noninunigrant visa expired. Rotimi v. Holder, 577 F.3d 133, 137 (2d Cir. 2009).24 However, the panel expressly found the Board's decision inapplicable to a noncitizen who "applied for a lawful status early in a substantial period of some other lawful status ... and [the government] inexcusably postponed decision on the application until after the expiration of the initial lawful status." Id. at 139, n.5. Thus, the decision has no bearing on a noncitizen like Mr. El Badrawi whose timely filed extension request was still pending when his initial period of authorized admission ended. Indeed, two panel members deemed it "absurd and unjust" for the lawfulness of a nonimmigrant's continued presence in the United States to "turn on how quickly the immigration authorities adjudicate" his pending extension request. Id. at 142 (Katzmann, J., concurring). Given that this Court is not constrained by a prior agency determination ofthe question presented, it should adhere to its prior interpretation of 8 C.F.R. § 274a.l2(b)(20) to avoid reaching an "absurd and unjust" result.
24 Two of the judges on the panel noted that they would have resolved the question differently had it arisen in a judicial proceeding. Rotimi, 577 F.3d at 142 (Katzmann, J., concurring, joined by Feinberg, J.) ("I would interpret the statute differently were 1 called on to do so in the first instance.").
14

The Fifth Circuit's recent decision in Bokhari v. Holder, No. 09-60538, 2010 WL 3768016 (5th Cir. 2010), is similarly inapposite. Bokhari concerned the right of an L-IA (intracompany transferee) nonimmigrant to acquire pennanent resident status under INA § 245(k), 8 U.S.C § 1255(k). ld. at *2. As in Mr. El Badrawi's case, Bokhari's employer filed a timely extension request on his behalf. ld. at *1. In Bokhari's case, however, the extension request was adjudicated-and denied. ld. Following the denial, Bokhari filed a separate application for adjustment of status from a nonimmigrant to a lawful pennanent resident. ld. The Immigration Judge found Bokhari ineligible for adjustment of status under INA § 245(k) because he had failed to maintain "a lawful status" in the United States for more than 180 days. ld. This decision was affInned by both the Board ofImmigration Appeals and the Fifth Circuit. ld. at *1, *4.
Like Mr. El Badrawi, Bokhari was entitled to work and to reside in the United States during the pendency of his employer's extension request. The central question in Bokhari was whether DRS's denial of the L-IA extension request retroactively negated Bokhari's right to remain in this country while it was pending. Whatever the answer to this question, Mr. El Badrawi's situation is distinguishable because DRS never adjudicated the extension request filed on his behalf. Pending a final decision, he had a right to remain in the United States.
In both Bokhari and the case at bar, DRS places great weight on the Board's cursory decision more than three decades ago in Matter ofTeberen, 15 I. & N. Dec. 689 (BlA 1976). Teberen involved an international student placed in deportation proceedings following the expiration ofhis F-l (student) status, despite the timely submission of an extension request that the government apparently lost. ld. at 690. The Board affInned the deportation order in a terse, two-page opinion, holding that to establish a noncitizen's removability as an "overstay," the
15

government ''need only show that the alien was admitted as a nonimmigrant for a temporary
period, that the period has elapsed, and that the nonimmigrant has not departed." ld. (internal
quotations, citations omitted). Yet, as this Court previously held, Teberen is not relevant to this
case because it was decided more than a decade before legacy INS adopted the regulation upon which El Badrawi relies.25 El Badrawi v. DHS, 579 F. Supp. 2d 249,277 (D. Conn. 2008).
Indeed, Teberen is instructive only insofar as it highlights the lack of regulatory provisions
comparable to 8 C.F.R. § 274a.12(b)(20). Had Teberen been arrested in the face ofa regulation
authorizing international students to continue studying for an additional 240 days pending
adjudication of an F-l extension request, the Board may well have undertaken a more nuanced
analysis and reached a different conclusion.
m. A CONTRARY INTERPRETATION OF EXISTING LAW WOULD DISRUPT
KEY SECTORS OF THE U.S. ECONOMY AND THEREBY UNDERMINE THE GOALS OF THE H-IB PROGRAM.
The H-lB program has enabled thousands ofU.S. employers to compete effectively in
today's global market. As Deborah Marlowe, a founding member and director ofthe Global
Personnel Alliance,26 explains:
American companies must have knowledge of foreign operating conditions, consumer preferences, competing products, the regulatory environment and other expertise relating to those markets. Without access to a select number ofpersons from those markets with knowledge, American business and industry is at a severe disadvantage vis-a-vis its foreign competitors. Business opportunities are
25 Control of Employment of Aliens, 52 Fed. Reg. 16216, 16220 (May 1, 1987) (establishing automatic extension of employment authorization for 120 days for H visa applicants); 56 Fed. Reg. 41767, 41780-81 (Aug. 23, 1991) (extending 120-day period to 240 days). 26 The Global Personnel Alliance (GPA) is a forum for internationally active companies
interested in global personnel mobility, including immigration. Marlowe Dec. (Ex. C), 'Ill.
GPA provides companies with the opportunity to discuss best practices and co=on issues and to seek resolution of shared problems. ld. Companies involved in GPA include many major multinationals and smaller, emerging companies, which represent numerous industries, including technology, financial services, manufacturing and healthcare. ld.
16

found and lost with stunning rapidity, and the flexibility to respond promptly to problems and opportunities is of paramount importance.
Declaration of Deborah A. Marlowe ("Marlowe Dec."), attached hereto as Exhibit C, 'If 3. To
preserve their competitive edge, U.S. companies depend on their ability to employ foreign
professionals for varying periods and, where necessary, to extend H-lB nonimmigrants' initial
periods of authorized stay without a break in their employment. See Skomia Dec. (Ex. A),27 'If 5
(noting that physical therapists are "admitted for only one year initially, as opposed to the
maximum three years permitted under the regulations," which requires their employer to petition
for H-lB extensions during their first year of work); Paskievich Dec. (Ex. B)/8 'If 5 ("In order to
retain the foreign employees on nonimmigrant visas for the period of time required for them to
complete their duties in the U.S., the company frequently must file petitions for extensions of
stay or extensions of status.").
Employers rely on the elaborate legal and regulatory framework discussed in Section II,
supra-and on 8 C.F.R. § 274a.12(b)(20) in particular-to ensure the continuity oftheir business
operations during adjudication of their extension applications, which can be a lengthy and
unpredictable process. See Skomia Dec. (Ex. A), 'If 6; Paskievich Dec. (Ex. B), 'If 6. According
27 Edward L. Skornia is the Senior Vice President and General Manager of O'Grady Peyton International (OGP), a wholly owned subsidiary of AMN Healthcare, Inc. Skomia Dec. (Ex. A),
'If 1. OGP specializes in the recruitment and employment of foreign-trained healthcare personnel. ld., 'If 3. AMN provides high quality physicians, nurses and allied healthcare professionals to
thousands of hospitals, clinics, medical centers and other hea1thcare facility clients across the
United States, including many of the nation's top hospitals. ld., 'If 2.
28 Bradley S. Paskievich is Senior Legal Counsel, Compliance and Employment, DHL Global
Business Services. Paskievich Dec. (Ex. B), 'If 1. Global Business Services is a division of DPWN Holdings [USA] Inc., a subsidiary of Deutsche Post DHL. ld., 'If 2. Deutsche Post DHL
is the world's leading logistics group, with over 300,000 employees in more than 220 countries and territories around the world, and 2009 revenues of over 46 billion euros. ld. Deutsche Post DHL provides comprehensive services in international express, air and ocean freight, road and rail transportation, and contract logistics. ld. The company has substantial U.S. operations. ld.
17

to Marlowe, "[i]t would create havoc, and severely disrupt the conduct of projects and business if the integrity of these rules were not honored and preserved." See Marlowe Dec. (Ex. C), ~ 4.
The process of obtaining H-IB status can be both cumbersome and expensive.
Employers must submit documentation to two separate agencies--the Departments of Labor and
Homeland Security-and often wait up to six months for final approval. If the potential
employee is outside the United States, he must apply for a visa at a U.S. consular post, which can
add months to the process. The steps required to extend H-lB status are virtually identical.
Such petitions generally entail fees ranging from $1,070 to $1,820 depending on the size of the
company.29 Employers must comply meticulously with all requirements to enjoy the benefits of
the H-lB program. In return, DHS necessarily has a reciprocal obligation to adjudicate their requests. See Skornia Dec. (Ex. A), ~ 7 (noting that the prospect of arrest during the extension
processing period would "make a mockery of the over $1 [,]800 in fees that we pay for each such
first extension petition").
A policy that allowed DHS to arrest, detain, and initiate removal proceedings against an
H-1 B beneficiary during the processing period for a timely filed, pending extension request
would have devastating consequences for companies that depend on these employees.
According to Bradley S. Paskievich ofDHL Business Services:
If the government took such a position, it would send a sense of fear and insecurity through our highly valued foreign workforce, and create a great deal of instability to our business operations. Many of our foreign employees would
29 The filing fee for an initial H-lB petition or any subsequent extension is $320. Adjustment of the Immigration and Naturalization Benefit Application and Petition Fee Schedule, 72 Fed. Reg. 29851,29854, (May 30, 2007). Under federal law, employers must also pay separate fees of $750 or $1,500 (depending on the size of the employer) for an initial H-lB petition and the first extension. INA § 214(c)(9)(B), 8 U.S.C. § 1184(c)(9)(B). Employers are exempt from the latter fee if they are a primary or secondary education institution; an institution of higher education or affiliated nonprofit entity; or a nonprofit or government research organization. INA § 214(c)(9)(A), 8 U.S.C. § 1184(c)(9)(A).
18

likely decide to wait abroad, with their family members, for processing of extensions, which would prove highly disruptive and damaging to our normal U.S. business operations.
Paskievich Dec. (Ex. B), 'If 8. Similarly, Edward Skornia of O'Grady Peyton Intemational
affirms that such a policy would destroy his company's credibility, shake public confidence in its
stock, and cause irreparable damage to its business. See Skomia Dec. (Ex. A), 'If'If 7-8.
If, for whatever reason, DRS decided that Mr. Badrawi should leave the United States, the proper course of action would have been to adjudicate and, if appropriate, deny his employer's pending request to extend the R-IB petition or his period of authorized stay.30 At that point, Mr. EI Badrawi would have been on notice that he could no longer remain in this country. 31 Ifhe failed to depart, DRS could justifiably have initiated removal proceedings.
CONCLUSION For the foregoing reasons, Amici Curiae American Immigration Council and the American Immigration Lawyers Association respectfully request that that this Court deny the Motion of Defendant United States for Summary Judgment and Grant Plaintiff's Cross-Motion for Summary Judgment.
30 See Marlowe Dec. (Ex. C), 'If 5 ("It must be emphasized that continuing to maintain the
integrity of employment until the petition is adjudicated in no way limits government from pursuing necessary actions, including even prosecution or removal, where those are justified. In such a case, the government must simply first adjudicate the petition for extension."). 31 See INA § 214(c)(7), 8 U.S.C. § I I 84(c)(7) (requiring notification to the employer ofa negative determination, the reasons for the denial, and the process for appeal).
19

Respectfully submitted,

lsi Melissa Crow
Melissa Crow ct phv04326* American Immigration Council 1331 G Street NW, Suite 200 Washington, DC 20005 Phone: (202) 507-7523 Fax: (202) 742-5619 E-mail: mcrow@immcouncil.org

lsi Michael Boyle
Michael Boyle ct13518, juris 408629 Law Offices ofMichael Boyle 169 Montowese Avenue P.O. Box 335 North Haven, CT 06473-0335 Phone: (203) 239-2299 Fax: (203) 985-8207 E-mail: mboyle@immigrantcenter.com

Date: November 5, 2010

Attorneys for Amici Curiae

*Ben Winograd, a Law Fellow with the American Immigration Council, assisted in the preparation ofthis brief

20

EXHIBIT A
21

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

RASHAD AHMAD REFAATEL BADRAWI, )

)

Plaintiff,

)

)

v.

)

)

... .. ....... .RElJ:>1\'R.'I'lvIIINI9'[1119lVffl1ANR . .... ............1

SECURITY, ET A1.,

)

)

Defendants.

)

)

3:07-cv-Ol074 (JCH)
. ..... .N()Y~J11l:J~I4,'2QIQ

DECLARATION OF EDWARD L. SKORNIA

I, Edward 1. Skornia, declare as follows:

1. I am Senior Vice President and General Manager of O'Grady Peyton International,

Inc. (OGP). OGP is a wholly owned subsidiary of AMN Healthcare, Inc. (AMN).

2. AMN is a publicly traded company which employs the largest number of

healthcare employees in the United States who are deployed as "staffing company" employees.

Under this model, the individuals are recruited and employed by the staffing company, but they

are assigned to work for healthcare providers at their own worksites. AMN provides high quality

physicians, nurses and allied healthcare professionals to thousands of hospitals, clinics, medical

centers and other healthcare facility clients across the United States, including many of the

nation's top hospitals.

3. OGP is an AMN subsidiary that specializes in the recruitment and employment of

foreign-trained healthcare personnel. Our employees are primarily registered nurses (RNs) and

physical therapists (PTs). Our RNs come to the United States as immigrants and become lawful

permanent residents. However, most of our PTs come initially as nonimmigrants under the H-IB program.
4. There is a severe shortage of qualified PTs in the U.S. The majority of our PTs are placed in more mrallocations where there is a lack of qualified PTs for our clients to hire. In order to serve their patients, our clients need us to provide qualified licensed PTs who will ......... ............IemainwithJhemfoLuptotwoyearsJo..ensurecontinuityofcare. foLtheir. patients......We. get.... excellent reports back from our clients who are delighted with our PTs' excellent patient care.
5. Each year we petition for dozens ofH-lB pffirsical therapists. Because of state licensure laws, most PTs cannot receive a license without being physically present in the United States. Consequently, under USCIS regulations, they are admitted for only one year initially, as opposed to the maximum three years permitted under the regulations. We are regularly required to petition for the extension ofH-lB status during our PTs' first year of work for us. USCIS regulations limit the window in which we can file an extension petition to the final six months of an employee's currentH-lB visa.
6. OGP has been in the international nurse and PT business for over 30 years. We have succeeded by knowing and following USCIS regulations. We file to extend the H-IB status of currently employed PTs as expeditiously as possible, but we have always relied on the USCIS regulation providing an automatic extension of 240 days of employment authorization beyond the current 1-94 expiration date while the Form 1-129 petition is under consideration. The time for approval has varied widely over the years and has often exceeded six months-the maximum lead time for advance filing. Although the government has made "premium processing" available in more recent years, we try to avoid that expense, which must be passed on to the

healthcare facilities. There is no guarantee that the expedited processing will occur, only assurance of a refund of the fee if it does not.
7. It never occurred to us that DRS could arrest one of our PTs during the processing time for a timely filed extension petition. Such a rule makes no sense in light of the 240-day automatic extension of work authorization Such a rule would also make a mockery of the over ....$J,80Q..in fees that.we. pay foreachsuchfirst~extensionpetition. We..could .noLassure.our..clients.... .................................. . of the continued presence of our PT employees if they were subject to arrest simply because useIS failed to act on our extension netitions. Our business is based on nroviding den"'en"'da"""b"'le"',.~~~~~~ quality employees to care for the patients of our clients. It would only take one such incident to destroy the credibility that we have built over our past 30 years in business. Were our parent company to present such a risk to its public investors, their confidence in our stock would surely be shaken.
8. Our employees and our clients rely on us to understand and follow the immigration laws so that they can depend on the international healthcare workers that we assign to them. We would have difficulty explaining to them that the law permits DRS to arrest one of our employees while the agency was still deciding whether the employee's stay could be extended. While the one subject to arrest is the employee, we, the petitioner and employer, are a U.S. business. The mere threat of such a government option would do irreparable damage to our business.
Edward L. Skornia Senior Vice President General Manager O'Grady Peyton International, Inc. A subsidiary of AMN Realthcare, Inc.

EXHIBITB
25

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

RASHAD AHMAD REFAAT EL BADRAWI, )

)

Plaintiff,

)

)

v.

)

)

DEPARTMENT OF HOMELAND

)

SECURITY, ET AL.,

)

)

Defendants.

)

--------------------------)

3:07-cv-01074 (JCH) NOVEMBER I, 2010

DECLARATION OF BRADLEY S. PASKIEVICH

I, Bradley S. Paskievich, declare as follows:

1. I am Senior Legal Counsel, Compliance and Employment, for DHL Global

Business Services. DHL Global Business Services is a division ofDPWN Holdings [USA] Inc.,

a subsidiary of Deutsche Post DHL, a publicly-traded German company.

2. Deutsche Post DHL is the world's leading logistics group, with over 300,000

employees in more than 220 countries and territories around the world, and 2009 revenues of

over 46 billion euros. Deutsche Post DHL, through its integrated DHL and Deutsche Post

brands, provides comprehensive services in international express, air and ocean freight, road and

rail transportation and contract logistics. Deutsche Post DHL's Global Forwarding business is

the world's largest provider of air and ocean freight services. The company has substantial

operations throughout the U.S.

3. Neither Deutsche Post DHL nor any of its related entities are plaintiffs in the

above-captioned matter. On behalf of the Deutsche Post DHL, I hereby state that I do not

express any opinion as to the facts of the above-captioned matter. However, as a major

DB1/65936273.1

multinational company that employs foreign workers in the United States, Deutsche Post DHL has an interest in the specific legal issue of the lawful status of foreign nationals in the U.S. during the pendency of their extensions of stay.
4. While employees holding nonimmigrant visas represent only a very small percentage of our U.S. work force, Deutsche Post DHL and its subsidiaries in the U.S. rely on various categories of temporary visas to the U.S., primarily the H-IB and L visa categories, to facilitate the hiring of key talent and/or the international transfer of in-house experts, managers and executives to help ensure the consistency and high quality of our operations in the U.S.
5. In order to retain the foreign employees on nonimmigrant visas for the period of time required for them to complete their duties in the U.S., the company frequently must file petitions for extensions of stay or extensions of status.
6. While the company's petitions for extensions of stay are always filed on a timely basis, it often takes U.S. Citizenship and Immigration Services ("USCIS") several months to adjudicate these extensions. When an extension petition remains pending with USCIS beyond the expiration date of the employee's 1-94 document, the company relies upon the USCIS regulation at 8 C.F.R Section 274a.l2(b)(20) providing for an automatic extension of employment authorization of 240 days for certain classes of nonimmigrants whose extensions are not adjudicated prior to the expiration of their stay.
7. The time required for an extension of stay to be adjudicated has varied widely over the past few years and currently ranges between four and six months. For H-IB visa holders, the earliest time one can file an extension is six months prior to expiration of stay. For an L-I visa holder, the earliest time one can file an extension is four months prior to the expiration of stay. We attempt to file extensions at the earliest point in time possible. However, a foreign national
DB1/65936273.1

---- - - - - - - - - - - - - - - - - ------------ - - - - - - - - - - - - - - - - - - - - - - - - - - - -
must be physically present in the U.S. in order for an extension to be filed on his or her behalf. Because our business requires a highly mobile workforce, sometimes an extension must be filed on a date that is closer to an employee's expiration of stay, due to the employee's international travel plans. Although "premium processing" is available for most of these extension petitions, sound financial management dictates that we avoid the additional charges for this service wherever possible.
8. The notion that the 240 days of automatic work authorization would not be considered to be a period of lawful status, and that any of our employees in such a period would be subject to arrest and detention by officials of the Department of Homeland Security, undermines the reliance our multinational business places upon a rational immigration system. If the government took such a position, it would send a sense of fear and insecurity through our highly valued foreign workforce, and create a great deal of instability to our business operations. Many of our foreign employees would likely decide to wait abroad, with their family members,
:.:P::s:~e::o:e::::~ons, which wolid pro!%4a~ng to ourDonna!
Bradley s:PaSkieViCh
Senior Legal Counsel, Compliance and Employment DHL Global Business Services.
DB 1165936273.1

EXHIBITC
29

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

RASHAD AHMAD REFAAT EL BADRAWI, )

)

Plaintiff,

)

)

v.

)

)

DEPARTMENT OF HOMELAND

)

SECURITY, ET AL.,

)

)

Defendants.

)

-------------------------)

3:07-cv-01074 (JCH) October 29, 20 I0

DECLARATION OF DEBORAH A. MARLOWE

I, Deborah A. Marlowe, declare as follows:

I. I am one of the founding members and Directors of the Global Personnel Alliance

(GPA). GPA is a forum for internationally active companies interested in global personnel

mobility, including immigration. Immigration issues and policies directly affect the ability of

companies to create employment in the United States. GPA provides companies with the

opportunity to discuss best practices and common issues and to seek resolution of shared

problems. GPA holds conferences and briefings, and has testified before Congress on

immigration issues affecting the employment of foreign nationals in the United States.

Companies involved in GP A include many major multinationals, as well as smaller, emerging

companies, and these companies represent numerous industries, from technology to financial

services, from manufacturing to healthcare.

2. 1 understand that the American Immigration Council (AIC) is submitting an amicus

brief in the above-captioned matter. The purpose of this Declaration is not to express any

opinion with respect to the particular facts or circumstances of the above-captioned matter.

Rather, the purpose of this Declaration is to focus on a specific issue that is important to the stability of business, and the orderly progress of projects, conducted by United States companies that employ any foreign nationals as a part of their United States workforce.
3. The H-IB visa prol,'Tam is critical to the international competitiveness of American businesses. As GPA has explained in Senate testimony, "American companies must have knowledge of foreign operating conditions, consumer preferences, competing products, the regulatory environment and other expertise relating to those markets. Without access to a select number of persons from those markets with knowledge, American business and industry is at a severe disadvantage vis-a-vis its foreign competitors. Business opportunities are found and lost with stunning rapidity, and the flexibility to respond promptly to problems and opportunities is of paramount importance. The business community is already encumhered by logistical difficulties in securing the expeditious transfer of personnel needed to facilitate employment or exports. The regular petition process at ... CIS Service Centers is slow and difficult. The application procedure at Consulates abroad has become more complex and time-consuming ..... Requests for further information are frequent and not always logical. The leadership of ... CIS Homeland Security is well motivated and dedicated to efficiency, but is hampered badly by a lack ofresources ... Further unnecessary restrictions will literally handcuff American business on international markets."
4. These general concerns are applicable in the context of petitions for extension of H-1 B classification. In numerous instances, there are significant delays in the regular processing of extension petitions. A delay of two or three months is not uncommon. For this reason, the immigration service (legacy INS and now CIS) has long held, and enshrined in regulation, that status is preserved by a timely filed petition for extension (filed prior to the expiration of status).

Similarly, it has long been held, and enshrined in regulation, that employment authorization will continue for 240 days after expiration as long as a petition for extension was timely filed prior to expiration, and such application remains unadjudicated. It would create havoc, and severely dismpt the conduct of projects and business if the integrity of these mles were not honored and preserved. Projects would frequently and suddenly be halted, where government backlogs prevent prompt adjudication of petitions, with severe consequences for other employees and the timeliness and competitiveness of deliverables. Moreover, the abmpt cessation of appropriate status for H-IB employees in this circumstance would have far reaching consequences that could complicate the process of obtaining future cxtensions and/or the process of obtaining pennanent residence (a "green card") for key employees. These problems would be magnified even further by the fact that CIS, in a significant number of cases and with respect to certain industries, is moving toward a policy of often providing extensions of H-I B status for much shortcr periods of time.
5. In short, where a petition for extension ofH-IB status is timely filed prior to the expiration of status, where that petition remains unadjudicated , and where the employee has employment authorization as provided by regulation, the government should not be pennitted to consider an H-I B employee as having violated, or being without, status. To hold otherwise would create a highly unstable and dismptive immigration policy, and create significant logistical and economic problems for employers. It must be emphasized that continuing to maintain the integrity of employment until the petition is adjudicated in no way limits government from pursuing necessary actions, including even prosecution or removal, where those are justified. In such a case, government must simply first adjudicate the petition for extension. Creating an exception to this basic mIe would result in needless unintended

consequences that would be extremely hannful to the integrity of employment and the orderly conduct of business. Govemment must be required to abide by established regulations and procedures that are there for good reasons and have stood the test oftime.
GLOBAL PERSONNEL ALLIANCE
Deborah A. Marlowe

EXHIBITD
34

00-Mar-06 16:08 From-HOAON

2025140198

T-319 P.02/12 F-176

Office of the EJU:C\Ilive Associate Commissioner

U.S. Department of Justice Immigration and Naturalization Service
HQADN70/21.1.24-P
ADOO~07 4251 Street NW
Washington, DC 20536
MAR 3 2000

MEMORANDUM FOR REGIONAL DIRECTORS

DEPUTY EXECUTIVE ASSOCIATE COMMISSIONER, IMMIGRATION SERVICES DIVISION

~.),~,,~....,CTOR, OFFICE OF INTERNATIONAL AFFAIRS

FROM:~MiChael A. Executive sociate Commissioner
Office ofField Operations

SUBJECT:

Period of stay authorized by the Attorney General after 120-day tolling period for purposes of section 212(a)(9)(B) of the hrunigration and Nationality Act (the Act). (AD 00-07)

This memorandum addresses issues relating to the 3- and 1O-year bars to admission under section 212(a)(9)(B)(i)(I) and (ll) of the Act and the decision to designate as a period of stay authorized by the Attorney General the entire period during which a timely tiled, non-frivolous application for extension of stay (E/S) or change of status (CIS) is pending with the Service, provided the alien has not engaged in any unauthorized employment. This period of stay authorized by the Attorney General covers the 120-day tolling period described in section 212(a)(9)(B)(iv) of the Act, and continues until the date the Service issues a decision.

By way of background, section 212(a)(9)(B)(ii) of the Act states that an alien who is present in the United States without admission or parole, or who remains in the United States beyond the period of stay authorized by the Attorney General, accrues unlawful presence towards the 3- and 10-year bars under section 212(a)(9)(B)(i)(I) and (ll) of the Act. Section 212(a)(9)(B)(iv) ofthe Act is a tolling provision that covers certain nonimmigrants. If an alien has timely filed a nonfrivolous application for ElS or CIS, the first 120 days of unlawful presence are not counted towards the 3-year bar under section 212(a)(9)(B)(i) of the Act. Section 212(a)(9)(B)(iv) of the Act further states that the alien must have been lawfully admitted or paroled into the United States, and must not have been employed without authorization before the E/S or CIS application was filed or while it was pending.

00-Mar-06 16:08 From-HOADN

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T-319 P.03/12 F-176

212(a)(9)(B), page 2
Although legislative history is silent regarding the intent of the 120-day tolling period, an inference may be drawn that Congress expected the Service to adjudicate the petitions within such a timeframe. However, due to unprecedented workload, in many instances the Service has been unable to adjudicate a timely filed application for E/S or CIS within the 12Q..dayperiod envisioned by Congress.
Under current Service policy, if a decision is not rendered within the tolling period, aliens admitted to the United States until a specific date begin accruing unlawful presence on the 121st day after the expiration of their Form 1-94. Because of the current backlogs, which in some cases extend beyond six months, aliens who remain in the United States while the CIS or E/S is pending may incur a 3-year or even a 1O-year bar to admission if the application is ultimately denied.
Therefore, in order to alleviate problems aliens may encounter concerning unlawful presence through no fault of their own, the Service has determined that nonimmigrants who were admitted until a specific date and who apply for CIS or E/S and whose applications have been pending beyond the 120-day tolling period should be considered to be in a period of stay authorized by the Attorney General, if certain requirements are met. Because these requirements are the same as those for tolling under section 212(a)(9)(B)(iv) of the Act, the Service has further determined that the period of stay authorized by the Attorney General covers the E/S or CIS application for the entire period that it is pending.
As a practical matter, we note that this policy applies only to those nonimmigrants who were admitted until a specific date and whose 1-94 has expired while the E/S or CIS application is pending. This is because nonimmigrants admitted for duration of status (DIS) do not begin accruing unlawful presence until a status violation is found. Refer to the Service's memorandum dated September 19, 1997,96 Act #058, for a discussion of the Service's policy on unlawful presence as it relates to nonimmigrants admitted DIS.
This memorandum is being issued simultaneously with a sepaxate memorandum, HQADN 70112-P, amending the Service's 1/14/99 guidance on section 222(g), which is found in Chapter 15 of the Inspector's Field Manual (lFM). These policies and procedUres are effective immediately and will be included in the AFM and in the lFM, respectively, in the next release of INSERTS.
A new Chapter 30. 1(d) is added in the AFM to read as follows:
(d) Unlawful Presence under Section 212(a)(9)(B) of the Act. (1) The 3- and 10-year bars to admission under section 212(a}(9)B)(i)(I) and (IJ) of the Act do not apply to:
Applicants for adjustment of status under section 202(b) of NACARA

00-Mar-06 16:09 From-HQADN

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T-319 P.04/12 F-176

212(a)(9)(B), page 3
Applicants for adjustment of status under - of HRIFA; and
Registry applicants under section 249 of the Act
(2) Counting of Unlawful Presence for Nonimmigrants. An alien who remains in the United States beyond the period of stay authorized by the Attorney General is unlawfully present and becomes subject to the 3~ or 1O-year bars to admission under section 212(a)(9)(B)(i)(I) and (II) of the Act. Under current Service policy, unlawful presence is counted in the following manner for nonimmigrants.
(A) Nonimmigrants Admitted until a Specific Date. Nonimmigrants admitted until a specific date begin accruing unlawful presence on the date the period of admiSSion authorized by the Service expires, as noted on the arrival document issued at the port-of-entry.
(8) Nonimmigrants Admitted Duration of Status (D/S). Nonimmigrants admitted to the United States for D/S begin accruing unlawful presence on the date the Service finds a statu~iolation while adjudicating a request for another immigration benefit, or on the date an immigration judge finds a status violation in the course of proceedings. If, however, the immigration judge concurrently issues voluntary departure and the alien complies with the order by making a timely departure, no unlawful presence accrues. See sections (d)(2) and (d)(5) of this chapter regarding voluntary departure as a period of stay authorized by the Attorney General.
(3) Period of Stay Authorized by the Attorney General. The Service has also designated the following as periods of stay authorized by the Attorney General:
Voluntary departure;
Refugee status;
Asylee status;
Grants of withholding or deferral of removal under the United Nations Convention Against Torture;
Legalization and special agricultural worker applications for lawful temporary residence which are pending through an administrative appeal;
Grants of withholding or suspension of deportation, or cancellation of

00-Mar-06 16:09 From-HQADN

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212(a)(9)(B), page 4
removal;
Applications for temporary and permanent residence by Cuban-Haitian entrants under section 202(b) of PUb. L. 99-603 through administrative appeal;
Grants of Temporary Protected Status and Deferred Enforced Departure;
Properly filed, affirmative applications for adjustment of status under section 245 of the Act (including section 245(i», and properly filed, affirmative registry applications under section 249 of the Act. The period of stay authorized by the Attorney General continues if the application is denied and renewed in proceedings, through review by the Board of Immigration Appeals {BIA}. The alien must, however, be eligible to renew the denied application in proceedings and have a legal basis for renewing that application; and
Certain pending applications for extension of stay or change of status. See sections (d)(4) and (d)(5) of this chapter.
{4} Requirements for Period of Stay Authorized by the Attorney General with Respect to Pending Change of Status and Extension Applications.
(A) The application for change of status or for extension of stay was filed timely. To be considered timely, the application must.have been filed before the previously authorized stay expired, as provided under 8 CFR 214.1 (c)(4) and 8 CFR 248.1 (b).
(8) The alien did not work without authorization before the application for change of status or extension of stay was filed or while it was pending; and
(C) The change of status or extension application has been pending with the Service for more than 120 days after the date the 1-94 expired.
(5) Effect of Decision on Unlawful Presence and Tollinq.
(A) Approved Applications. If the Service approves an E/S or CIS application, the alien will be granted a new period of stay authorized by the Attorney General. retroactive to the date the previously authorized stay expired, as applicable to the nonimmigrant classification under which the alien was admitted pursuant to 8 CFR 214.2. No unlawful presence accrues. This applies to aliens admitted until a specific date and aliens admitted DIS.

00-Mar-06 16:10 From-HCADN

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212(a)(9)(B). page 5
(6) Denied applications. (i) Denial of Timely Filed Applications and Frivolous Applications; Unauthorized Employment. If the timely filed CIS or ElS application is denied because it was frivolous or because the alien engaged in unauthorized employment, any and all time after the Form 1-94 expiration date will be considered unlawful presence, if the alien was admitted until a specific date. If, however, the alien was admitted DIS, unlawful presence begins accruing on the date of the Service's decision.
(ii) Denial of Untimely Applications. If the application was untimely and was denied, unlawful presence begins accruing on the date the 1~94 expired, regardless of the reason for denial. For aliens admitted DIS, unlawful presence begins accruing on the date of denial.
(6) Voluntarv Departure as a Period of Stav Authorized by the Attorney General. The
of Service has deSignated voluntary departure as a period stay authorized by the
Attorney General. However, any unlawful presence that accrued before the date the voluntary departure was actually granted is not eliminated. And, if the alien does not make a timely departure, the counting of unlawful presence resumes. Moreover, the alien becomes subject to civil penalties and is ineligible for any further voluntary departure or other forms of relief, such as adjustment of status, registry. and cancellation of removal.
(7) Effect of Departure.
CA) Applicants for Nonimmigrant Visas. Date certain nonimmigrants who file an application for change of status or extension of stay who depart the United States while the application is pending and subsequently apply for another nonimmigrant visa must establish, to the satisfaction of the consular officer, that the application was timely filed and that it was not frivolous. The requirement that the application was timely may be established through the submission of evidence of the date the previously authorized stay expired. together with a copy of a dated filing receipt, a canceled check payable to the Service for the E/S or CIS application, or other credible evidence of a timely filing. To be considered non~frivolous. the application must have an arguable baSis in law and fact and must not have been filed for an improper purpose. If the consular officer finds that the alien qualifies for a visa in the same category as the visa classification that was sought in the abandoned E/S or CIS application, the consular officer may presume that the ElS or CIS application was not frivolous. The question then turns to whether the alien engaged in unauthorized employment before the E/S or CIS application was filed or while it was pending. Consular officers will determine this through the routine course of questioning. Consular officers may also review and consider evidence of an alternate means of support during the time in which the alien was not authorized to work. If the consular officer

00-Mar-06 16:10 From-HQAON

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212(a)(9)(B), page 6
determines that the application was timely filed. non-frivolous, and that the alien did not engage in unauthorized employment. the alien is not subject to the 3- or 10-year bars to admission under section 212(a)(9)(B)(i) ofthe Act. See Chapter 15 of the IFM for a discussion of the effect of the alien's departure on section
222(g). DIS nonimmigrants who depart the United States while an application for change of status or extension of stay is pending generally do not trigger the 3-
and 10-year bars under section 212(a){9)(B)(i) of the Act, unless a formal finding of a status violation has been made, and the alien has not been granted any other period of stay authorized by the Attorney General, such as voluntary departure.
(8) Applicants for Admission at a Port of Entry (POEl. When a date certain nonimmigrant files an application for change of status or extension of stay and departs the United States while the application is pending, Service officers at POEs should use the same procedures followed by consular officers to determine whether the application was timely and non-frivolous, and whether the alien engaged in unauthorized employment. If the extension application was timely and non-frivolous and the alien did not engage in unauthorized employment. the alien is not subject to the 3- or 10-year bar to admission. [See Inspectors Field Manual, Chapter 15 for the applicability to section 222(g).]
If Service Officers have any questions regarding this policy decision, contact Sophia Cox in HQADN at 202-514-4754.

EXHIBITE
41

U.S. Department of Justice Immigration and Naturalization Service

HQBCIS 70/2l.J.24-P
4251 Street NW Washington, DC 20536

April 2, 2003

MEMORANDUM FOR SERVICE CENTER DIRECTORS, BCIS REGIONAL DIRECTORS, BCIS OFFICE OF INTERNATIONAL AFFAIRS DIRECTOR, ADMINISTRATIVE APPEALS OFFICE

FROM:

Thomas E. Cook lsi Acting Assistant Commissioner Office ofAdjudications

SUBJECT:

Guidance on Interpretation of "Period of Stay Authorized by the Attorney General" in Determining "Unlawful Presence" under section 2l2(a)(9)(B)(ii) of the Immigration and Nationality Act (Act)

Attached is a legal memorandum from the Bureau of Citizenship and Immigration Services (BCIS) Office of General Counsel. It provides guidance to address questions on the accrual of unlawful presence, Specifically, the questions related to an alien who filed an application for extension of stay after the alien's authorized period of admission expired, but while in a period of authorized stay. The attached memorandum provided by the BCIS Office of General Counsel is BCIS policy.

Legal Memorandum

The attached legal memorandum, responding to questions from the Texas Service Center, advises that where the alien files a timely application for extension of stay (EOS) or change of status (COS), and where the application is denied, the alien can begin to accrue unlawful presence beyond the date of the denial regardless ofwhether the alien filed additional,but untimely, applications for EOS or COS. The BCIS Office of the General Counsel further advises that an application for EOS or COS filed after the alien's authorized period of admission has expired does not have the effect of prolonging the alien's status. The legal memorandum references two previously issued field memoranda, which are also attached:

• Period oJstay authorized by the Attorney General after l20-day tollingperiodJor purposes ojsection 212(a)(9)(B) oJthe Immigration and Nationality Act, March 3, 2000 ("3/3/00 Pearson memo"), and

• Unlawfol Presence, June 12,2002 ("6/12/02 Williams memo").

Office of the General Counsel

U,S. Department of Justice Immigration and Naturalization Service
HQCOU 90/15
4251 Street NW Washington, DC 20536

March 27, 2003

MEMORANDUM FOR THOMAS E, COOK ACTING ASSISTANT COMMISSIONER, OFFICE OF ADJUDICATIONS

FROM:

Janice Podolny /s/ Chief, Inspections Law Division, Office of General Counsel

SUBJECT: Interpretation of "Period of Stay Authorized by the Attorney General" in determining "unlawful presence" under INA section 212(a)(9)(B)(iil.

Issnes:
1, Where an alien files additional (untimely) applications for extension of stay (EOS) or change of status (COS) during the period in which a timely filed application for EOS or COS is pending before the Immigration and Naturalization Service (the "Service"), does that alien avoid becoming unlawfully present even ifthe Service ultimately denies the initial timely filed EOS or COS application?
2, Where an alien is awaiting Service adjudication of a timely filed EOS or COS application, does an EOS or COS application filed after the alien's authorized period of admission has expired have the effect of prolonging the alien's status beyond the period of his or her authorized admission?

Practical concern:
The Service is experiencing an increase in multiple filings for the same alien where the alien seeks to extend his or her stay and the petitioner seeks to change the alien's status, The multiple filings arise in the context of an alien wishing to remain in the United States beyond the period of lawful admission without accruing unlawful presence while he or she awaits adjudication of the application/petition.

Memorandum for Thomas E. Cook SUBJECT: Interpretation of "Period of Stay Authorized by the
Attorney General" in determining "unlawful presence" under INA section 212(a)(9)(B)(ii).

Page 2

It has become apparent to the Service that some immigration practitioners consider the "period of stay authorized by the Attorney General" to be equivalent to "status." They argue that, because an alien is in "status" during the time the Service takes to adjudicate the alien's application for EOS or COS, an alien can continuously file EOS or COS requests which, in effect, protect the alien from accruing unlawful presence even if a decision to deny is made on one or more of the filings.

Summary answer:

I. Where an alien files a timely EOS or COS application and that application is ultimately denied, the alien £ill! begin to accrue unlawful presence beyond the date of the denial regardless of whether the alien filed additional, but untimely, requests for EOS or COS that are awaiting adjudication.!

2. An EOS or COS application must be filed within the period during which the alien is in an
"authorized status", i.e., within an authorized period of admission as contemplated by parts 214.1 and 248.1.2 The period during which a timely filed EOS or COS application is pending
continues the alien's period of authorized stay in the United States (allowing the alien to avoid
accruing unlawful presence), but does not extend the alien's period of "authorized status.")

Case scenario for B-2 alien:

3116/01

.employer timely files 1-129 for COS and H-IB

There appears to be no question that an alien who files, initially, an untimely EOS or COS request which is ultimately denied can be determined to be unlawfully present retroactively to the date his or her initial period of admission expired regardless of whether the alien filed additional (untimely) requests for EOS or COS that are awaiting adjudication. See AFM 30.1 (d)(4). Therefore, we do not address this scenario any furiher.
In limited cases, failure to file before the period of previously authorized status expired may be excused at the discretion of the Service. See 8 C.F.R. 214.I(c)(4); 8 C.F.R. 248.I(b)
For the reasons explained herein, "authorized status" or authorized period of admission and "period of stay authorized by the Attorney General" are not interchangeable terms and do not carry the same legal implications. An alien's authorized period of admission is determined with reference to his or her Form 1-94 (arrival/departure record) or, where the alien is the beneficiary of an approved EOS or COS application, with reference to the validity dates on the Form 1-797 ("Notice of Action") approval notice.

Memorandum for Thomas E. Cook SUBJECT: Interpretation of "Period of Stay Authorized by the
Attorney General" in determining "unlawful presence" under INA section 212(a)(9)(B)(ii).

Page 3

9110/01
1217101 1/11/02 2/8/02 211 1/02

Thereafter, 1-94 arrival/departure record for B-2 alien expires
B-2 alien files untimely 1-539 for EOS (after difficult RFE is issued on 1-129 case)
initial timely filed COS and H-I B denied
same employer files a second 1-129 for COS and H-1B
untimely 1-539 EOS is denied for late filing.
second H-IB is approved but COS is denied for alien being out of status at time of filing.

Argumeuts and Analysis:
Some practitioners have argued that the above scenario creates, in effect, a "bridge" of continuing status stemming from the initially timely filed COS application such that an alien can eternally avoid becoming unlawfully present as long as they have a pending EOS or COS application with the Service. The essence of their argument relies on their misinterpretation of "period of stay authorized by the Attorney General" as equivalent to status. They argue that if the alien is in "status" because they have been granted "a period of stay authorized by the Attorney General," then that alien should be able to extend his or her stay or change status. A review of the relevant statutes and regulations indicates that the "bridge" of continuing status analysis is an incorrect and improper interpretation of the relevant statutes, regulations and INS memos on unlawful presence (see Memorandum for Regional Directors from Johnny N. Williams, Executive Associate Commissioner (Office of Field Operations) ("6112/02 Williams memo"); Memorandum for Regional Directors from Michael A. Pearson, Executive Assistant Commissioner (Office ofField Operations) ("3/3/00 Pearson memo"».
The relevant regulations distinguish between the period of time in which an alien is considered to be in "status" and the period of time during which he or she is deemed to be in a "period of stay authorized by the Attorney General".
8 C.F.R. 214.2(c)(4) provides that an extension of stay may be approved for an applicant who maintained his or her status before the application was filed. Similarly, 8 C.F.R. 248.1(b) provides that a change of nonimmigrant classification may be approved for an alien who maintained his or her status before the application was filed. In order to determine if an alien has maintained his or her status, the Service looks to see if the authorized period of admission has

Memorandum for Thomas E. Cook SUBJECT: Interpretation of "Period of Stay Authorized by the
Attorney General" in determining "unlawful presence" under INA section 212(a)(9)(B)(ii).

Page 4

been overstayed. The relevant inquiry as to "status" requires the Service to determine if the alien was still within a period of authorized admission at the time of filing the application.
For purposes of section 212(a)(9)(B)(ii) of the Immigration and Nationality Act an alien is "unlawfully present" in the United States after the expiration of the period of stay authorized by the Attorney General. The period of stay authorized by the Attorney General normally expires upon the expiration ofthe alien's Form 1-94 (arrival/departure record).4
For the reasons stated in previous INS guidance and restated here, the Service will deem the alien to be within a period of stay authorized by the Attorney General (and not unlawfully
present), if the alien has a filed a non-frivolous EOS or COS application with the Service Center
and that application is still pending, provided that such application was timely filed, Le., prior to the expiration of the Form 1-94. See 3/3/00 Pearson memo.
In these circumstances, the alien benefits from a continuation of the period of stay authorized by the Attorney General, but not from a continuation of "status." I.e., the alien was in a period of authorized stay when he or she was within the initial period of his or her admission and the period of authorized stay continues after the filing of a timely EOS or COS application. There is simply no analogous rule or guidance providing for a continuation of the alien's "status." Therefore, the alien will be in status only as long as he or she remains within the initial period of his or her admission. Of course, if the alien's EOS or COS application is granted, the alien will again be in "status."
In the above case scenario, the alien's initial period of admission (as per her 1-94 "ArrivallDeparture Record") expired prior to 9/10101. She was no longer in status once her 1-94 expired, but was considered to be·in a period of stay authorized by the Attorney General because of her pending, timely filed COS application. The second application for an extension of stay of the alien's B-2 nonimmigrant status was filed after the original B-2 status expired. Accordingly, it did not meet the requirements of8 C.F.R. 214.l(c) as it was not timely filed. The alien became unlawfully present upon the denial of her original, timely filed COS application (12/07/01). The fact that the alien was also the beneficiary of an untimely filed EOS application (09110/01) that was pending with the Service Center at the time it issued its denial of the COS application did not confer continuing "status" on the alien. As the alien was not within her initial period of admission when the B-2 EOS application was filed, she cannot invoke the policy outlined in the Pearson memo for purposes of avoiding unlawful presence.

4

Where the alien's application for EOS or COS has been approved, the alien is again in an

"authorized status." The expiration of his or her status and authorized period of stay in these

circumstances expires on the last day of validity of the EOS or COS approval notice.

Memorandum for Thomas E. Cook SUBJECT: Interpretation of"Period of Stay Authorized by the
Attorney General" in determining "unlawful presence" under INA section 212(a)(9)(B)(ii).

Page 5

Relevant Authorities:
The regulations governing the Service's ability to extend the stay of certain aliens are found at 8 C.F.R. 214.1. Under 214.I(c)(4), certain aliens are ineligible for grants of extension of stay. The regulations provide, in relevant part, that "an extension of stay may not be approved for an applicant who failed to maintain the previously accorded status or where such status expired before their application or petition was filed, except that failure to file before the period of previously authorized status expired may be excused in the discretion of the Service ..." (emphasis added)
The Service's authority to change the nonimmigrant classification of certain aliens to another nonimmigrant classification is found at INA section 248 "Change of Nonimmigrant Classification." The applicant must be "continuing to maintain" his or her nonimmigrant status.s
INS regulations at C.F.R. 248.1 state that "a change of status may not be approved for an alien who failed to maintain the previously accorded status or whose status expired before the application or petition was filed, except that failure to file before the previously authorized status expired may be excused in the discretion of the Service ..."(emphasis added)6
INA section 212(a)(9)(B)(ii) provides that "an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General ...."
The Service has previously provided guidance on the issue at hand. The 3/3/00 Pearson memo addressed the Service's change in policy allowing certain aliens with pending applications to remain in the United States beyond the 120 days provided by the tolling provision without accruing unlawful presence "because of the current backlogs, which in some cases extend beyond six months." As a result, a "period of stay authorized by the Attorney General" was defined to include the entire period during which a timely filed, non-frivolous application for extension of stay or change of status is pending with the Service ... " Specifically, the "period of stay authorized by the Attorney General covers the 120 day tolling period described in section 212(a)(9)(B)(iv) of the Act, and continues until the date the Service issues a decision." The

This memo does not address collateral issues that may otherwise affect an alien's ability to extend his or her stay or change status (e.g., lawful admission, inadmissibility, unauthorized employment, etc.)

6

The regulations at CFR 248.1 do not provide a definition of "maintaining status."

However, in determining whether the applicant has maintained status, the Service will consider

whether the authorized period of admission has been overstayed and any other conduct relating

to the maintenance of current status, including unauthorized employment.

Memorandum for Thomas E. Cook SUBJECT: Interpretation of"Period of Stay Authorized by the
Attorney General" in determining "unlawful presence" under INA section 2l2(a)(9)(B)(ii).

Page 6

policy change, consistent with the ensuing new Chapter of the Adjudicators Field Manual, stressed that only aliens with timely filed applications would benefit. "This policy applies only to those nonimmigrants who were admitted until a specific date and whose 1-94 has expired while the EOS or COS application is pending." Presumably, the practitioners of the multiple filing (or "bridge") theory described above would read the above requirement as: "nonimmigrants who were admitted until a specific date and whose 1-94 has expired either before or while the EOS or COS application is pending" in order to avoid an unlawful presence determination for their clients. This reading is contrary to the express language of the Pearson memo.
The Pearson memo added Chapter 30.1 (d) to the Adjudicators Field Manual (AFM):
30.l(d) Unlawful Presence under Section 2l2Ia)19)(B) of the Act provides an exclusive designation of "periods of stay authorized by the Attorney General." This list includes "certain pending applications for extension of stay or change of status. See sections Id)13) and Id)14) of this chapter." Therefore, it is improper to consider whether a pending EOS or COS application is a "period of stay authorized by the Attorney General" without reference to (d)(3) and (d)(4). Sections (d)(3) and (d)(4) make it clear that for an alien with a pending EOS or COS request to be considered within "a period of stay authorized by the attorney general" the alien application "must have been filed before the previously authorized stay expired." See AFM 30.1 (d)(3). If the application was untimely and was denied, unlawful presence begins accruing on the date the 1-94 expired, regardless of the reason for denial. See AFM 30.l(d)(4).
The policy outlined in the Pearson memo is further reiterated, without modification, in the 6112/02 Williams memo.
The Williams memo provides that, for purposes of section 2l2(a)(9)(B)(ii) of the Act, the INS has designated the following periods of stay authorized by the Attorney General "Certain pending applications for extension of stay or change of status." There is no express of implied indication in the Williams memo that the Service intends to alter existing Service practice and policy. Therefore, this section cannot be read separate an apart from sections (d)(4) and (d)(5) of Chapter 30.I(d) as introduced by the Pearson memo. See discussion supra.
For the reasons outlined above, where the alien filed a timely EOS or COS application and that application is ultimately denied, the alien can begin to accrue unlawful presence beyond the date of the denial regardless of whether the alien filed additional, but untimely, requests for EOS or COS that are awaiting adjudication.
Moreover, for the reasons outlined above, an EOS or COS application filed after the alien's authorized period of admission has expired does not have the effect of prolonging the alien's status.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT
CERTIFICATE OF SERVICE

RASHAD AHMAD REFAAT EL BADRAWI, )

)

Plaintiff,

)

)

v.

)

)

DEPARTMENT OF HOMELAND

)

SECURITY, ET AL.,

)

)

Defendants.

)

--------------------------)

3:07-cv-01074 (JCH) November 5, 2010

I hereby certify that on November 5, 20 I0, a copy of the foregoing BriefAmici Curiae of the American Immigration Council and the American Immigration Lawyers Association in Opposition to the Motion of Defendant United States for Summary Judgment and in Support of Plaintiff's Cross-Motion for Sllmmary Judgment was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent bye-mail to all parties by operation of the Court's electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Court's CMlECF system.

/s/ Melissa Crow
Melissa Crow ct phv04326 American Immigration Council 1331 G Street NW, Suite 200 Washington, DC 20005 Phone: (202) 507-7523 Fax: (202) 742-5619 E-mail: mcrow@immcouncil.org

 
 Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 1 of 39
CLOSED, EFILE, HBF, REFCNF
U.S. District Court United States District Court for the District of Connecticut (New Haven)
CIVIL DOCKET FOR CASE #: 3:07−cv−01074−JCH

El Badrawi v. Department of Homeland Security et al Assigned to: Judge Janet C. Hall Referred to: Judge William I. Garfinkel (Settlement) Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 07/13/2007 Date Terminated: 07/12/2011 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Rashad Ahmad Refaat El Badrawi

represented by Hope R. Metcalf Yale Law School 127 Wall St. New Haven, CT 06520 203−432−9404 Email: hope.metcalf@yale.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kenneth Kimerling Asian American Legal Defense and Education Fund 99 Hudson Street 12th Floor New York, NY 10013 212−966−5932 Fax: 212−966−6029 Email: kkimerling@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J. Wishnie Jerome N. Frank Legal Services − Wall St Yale Law School 127 Wall Street New Haven, CT 06511 203−432−4800 Fax: 203−432−1426 Email: michael.wishnie@yale.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ramzi Kassem Yale Law School −POB PO Box 209090 New Haven, CT 06520−9090 203−432−0138 Fax: 203−432−1222 Email: ramzi.kassem@mail.law.cuny.edu TERMINATED: 08/12/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sameer Ahmed Asian American Legal Defense and Education Fund 99 Hudson Street 12th Floor New York, NY 10013 212−966−5932 Fax: 212−966−4303

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 2 of 39
Email: sahmed@aaldef.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Department of Homeland Security TERMINATED: 03/09/2011

represented by Brant S. Levine U.S. Department of Justice−Tort/Civ.POB−7146 Torts Branch, Civil Division P. O. Box 7146 Washington, DC 20044 202−616−4373 Fax: 202−616−4314 Email: Brant.Levine@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edward J. Martin U.S. Department of Justice−Torts Branch Civil Division P.O. Box 7146 Washington, DC 20044 202−616−1024 Fax: 202−616−4314 Email: edward.martin2@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura K. Smith U.S. Department of Justice − Torts Branch, Box 7146 Torts Branch PO Box 7146 Washington, DC 20044 Washington, DC 20044 202−616−0419 Fax: 202−616−4314 Email: Laura.Smith2@usdoj.gov TERMINATED: 09/10/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa E. Perkins U.S. Attorney's Office−HFD 450 Main St. Room 328 Hartford, CT 06103 860−947−1101 Fax: 860−760−7979 Email: lisa.perkins@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maura Murphy−Osborne Attorney General's Office −Elm Htfd 55 Elm Street Hartford, CT 06141 860−808−5020 Fax: 860−808−5347 Email: maura.murphyosborne@ct.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 3 of 39

Victoria S Shin Skadden, Arps, Slate, Meagher &Flom LLP−NY Four Times Square. New York, NY 10036−6522 212−735−3732 Fax: 203−773−5373 Email: Victoria.Shin@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Gregory Manack Resident Agent in Charge, Htfd Sub−Dist ICE, Dept of Homeland Security TERMINATED: 03/09/2011

represented by Brant S. Levine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura K. Smith (See above for address) TERMINATED: 09/10/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa E. Perkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maura Murphy−Osborne (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Victoria S Shin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Michael S. Loser Sr Special Agent, Htfd Sub−Dist, ICE, Dept of Homeland Security TERMINATED: 03/09/2011

represented by Brant S. Levine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura K. Smith (See above for address) TERMINATED: 09/10/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa E. Perkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maura Murphy−Osborne (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Victoria S Shin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 4 of 39

Defendant Michael Chertoff Sec of Dept of Homeland Security TERMINATED: 03/09/2011
Defendant Robert Mueller Dir, FBI TERMINATED: 03/09/2011
Defendant FBI TERMINATED: 03/09/2011

represented by Brant S. Levine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura K. Smith (See above for address) TERMINATED: 09/10/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa E. Perkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maura Murphy−Osborne (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victoria S Shin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brant S. Levine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura K. Smith (See above for address) TERMINATED: 09/10/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa E. Perkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maura Murphy−Osborne (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victoria S Shin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brant S. Levine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edward J. Martin (See above for address)

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 5 of 39

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura K. Smith (See above for address) TERMINATED: 09/10/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa E. Perkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maura Murphy−Osborne (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Victoria S Shin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
USA TERMINATED: 07/12/2011

represented by Brant S. Levine (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edward J. Martin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura K. Smith (See above for address) TERMINATED: 09/10/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa E. Perkins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maura Murphy−Osborne (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Victoria S Shin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Charles L. Lee Warden, Htfd Corr Ctr

represented by Maura Murphy−Osborne (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven R. Strom Attorney General's Office

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 6 of 39

Public Safety &Special Revenue MacKenzie Hall, 110 Sherman St. Hartford, CT 06105 860−808−5450 Fax: 860−808−5591 Email: steven.strom@ct.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Victoria S Shin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
James Pitts Chaplain Htfd Corr Ctr TERMINATED: 11/07/2008

Defendant
John Doe Dir Food Svc Htfd Corr Ctr TERMINATED: 11/07/2008

Defendant
Albert Pitts Chaplain Htfd Corr Ctr, I/O

represented by Maura Murphy−Osborne (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven R. Strom (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Thomas McGrail Dir Food Svc Htfd Corr Ctr, I/O

represented by Maura Murphy−Osborne (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven R. Strom (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
American Immigration Council c/o Law Offices of Michael Boyle PO Box 335 North Haven, CT 06473 2032392299

represented by Melissa E. Crow American Immigration Council's Legal Action Center Director 1331 G St., N.W., Suite 200 Washington, DC 20005 Email: mcrow@immcouncil.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michael J. Boyle Law Offices of Michael J. Boyle 169 Montowese Avenue PO Box 335

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 7 of 39
North Haven, CT 06473 203−239−2299 Fax: 203−985−8207 Email: mboyle@immigrantcenter.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/13/2007
07/13/2007 07/13/2007 07/16/2007 07/25/2007 07/25/2007 07/26/2007 09/19/2007 09/19/2007
09/20/2007
09/20/2007
09/26/2007 09/27/2007
10/05/2007 10/05/2007

# Docket Text
1 COMPLAINT against Hartford Corr Ctr, Michael Chertoff, Robert Mueller, FBI, USA, Department of Homeland Security, Gregory Manack, Michael S. Loser ( Filing fee $ 350 receipt number N021832), filed by Rashad Ahmad Refaat El Badrawi. (Attachments: # 1 Exhibit )(Rodko, B.) (Entered: 07/18/2007)
2 Order on Pretrial Deadlines: Motions to Dismiss due on 10/13/07.Amended Pleadings due by 9/11/2007.,Discovery due by 1/12/2008.,Dispositive Motions due by 2/11/2008.. Signed by Clerk on 7/13/07. (Rodko, B.) (Entered: 07/18/2007)
3 ELECTRONIC FILING ORDER. Signed by Judge Peter C. Dorsey on 7/13/07. (Rodko, B.) (Entered: 07/18/2007)
Summons Issued as to Hartford Corr Ctr, Michael Chertoff, Robert Mueller, FBI, USA, Department of Homeland Security, Gregory Manack, Michael S. Loser, U.S. Attorney and U.S. Attorney General (Rodko, B.) (Entered: 07/18/2007)
Summons Reissued as to Gregory Manack, Michael S. Loser. (Brown, S.) (Entered: 07/25/2007)
Summons Issued as to Charles L. Lee. (Brown, S.) (Entered: 07/25/2007)
4 ORDER OF TRANSFER. Case reassigned to Judge Janet C. Hall for all further proceedings. Signed by Judge Peter C. Dorsey on 7/26/07. (Brown, S.) (Entered: 07/27/2007)
5 NOTICE of Appearance by Brant S. Levine on behalf of Michael Chertoff, Robert Mueller, FBI, USA, Department of Homeland Security, Gregory Manack, Michael S. Loser (Levine, Brant) (Entered: 09/19/2007)
6 Consent MOTION for Extension of Time until November 19, 2007 and to set a briefing schedule to respond to the Complaint by Michael Chertoff, Robert Mueller, FBI, USA, Department of Homeland Security, Gregory Manack, Michael S. Loser. (Levine, Brant) (Entered: 09/19/2007)
7 ORDER granting 6 Motion for Extension of Time until November 19, 2007 and to set a briefing schedule to respond to the Complaint.The Court appreciates the cooperation and communication between counsel leading to this proposed schedule, which the court agrees with. SO ORDERED by Judge Janet C. Hall on 9/20/07. (Klein, V.) (Entered: 09/20/2007)
Answer deadline updated for Michael Chertoff to 11/19/2007; Robert Mueller to 11/19/2007; FBI to 11/19/2007; USA to 11/19/2007; Department of Homeland Security to 11/19/2007; Gregory Manack to 11/19/2007; Michael S. Loser to 11/19/2007. (Klein, V.) (Entered: 09/20/2007)
8 NOTICE of Appearance by Victoria S Shin on behalf of Michael Chertoff, Robert Mueller, FBI, USA, Charles L. Lee, Department of Homeland Security, Gregory Manack, Michael S. Loser as Local Counsel (Shin, Victoria) (Entered: 09/26/2007)
9 NOTICE of Appearance by Victoria S Shin on behalf of Michael Chertoff, Robert Mueller, FBI, Department of Homeland Security, Gregory Manack, Michael S. Loser Amended Notice of Appearance as Local Counsel on Behalf of Federal Defendants (Shin, Victoria) (Entered: 09/27/2007)
10 NOTICE of Appearance by Maura Murphy−Osborne on behalf of Charles L. Lee (Murphy−Osborne, Maura) (Entered: 10/05/2007)
11 First MOTION for Extension of Time until December 4, 2007 to file Answer by Charles L. Lee. (Murphy−Osborne, Maura) (Entered: 10/05/2007)

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 8 of 39

10/05/2007
10/05/2007
10/05/2007 10/05/2007 10/10/2007 10/11/2007 10/11/2007 10/15/2007 11/07/2007
11/19/2007 11/19/2007 11/19/2007 11/19/2007
11/19/2007

12 ENTERED IN ERROR − AFFIDAVIT of Service for Summons and Complaint served on Defendant Department of Homeland Security, Defendant Michael Loser, Defendant Charles Lee, Defendant Robert Mueller, Defendant Michael Chertoff, Defendant Federal Bureau of Investigation, Defendant United States of America on July 25, 2007 and August 3, 2007, filed by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) Modified on 10/10/2007 (Candee, D.). (Entered: 10/05/2007)
13 SUMMONS Returned Executed by Rashad Ahmad Refaat El Badrawi. Michael Chertoff served on 7/26/2007, answer due 9/24/2007; Robert Mueller served on 7/26/2007, answer due 9/24/2007; FBI served on 7/26/2007, answer due 9/24/2007; USA served on 7/26/2007, answer due 9/24/2007; Department of Homeland Security served on 7/26/2007, answer due 9/24/2007; Gregory Manack served on 7/26/2007, answer due 9/24/2007; Michael S. Loser served on 8/5/2007, answer due 10/4/2007. (Candee, D.) Modified on 10/10/2007 (Candee, D.). (Entered: 10/10/2007)
14 SUMMONS Returned Executed by Rashad Ahmad Refaat El Badrawi. Charles L. Lee served on 8/5/2007, answer due 8/25/2007. (Candee, D.) (Entered: 10/10/2007)
Answer deadline updated for Michael Chertoff to 9/24/2007; Robert Mueller to 9/24/2007; FBI to 9/24/2007; USA to 9/24/2007; Department of Homeland Security to 9/24/2007; Gregory Manack to 9/24/2007; Michael S. Loser to 9/24/2007. (Candee, D.) (Entered: 10/10/2007)
Docket Entry Correction − Docket entry modified re 12 Affidavit of Service to indicate entered in error as affidavit. Redocketed as 13 Summons Returned and 14 Summons returned executed. 13 Summons returned executed modified to update answer deadlines. (Candee, D.) (Entered: 10/10/2007)
15 ORDER granting in part 11 Motion for Extension of Time until 11/19/2007 to file an answer. SO ORDER by Judge Janet C. Hall on 10/11/2007. (Sanders, C.) (Entered: 10/11/2007)
Answer deadline updated for Charles L. Lee to 11/19/2007. (Sanders, C.) (Entered: 10/11/2007)
16 DISCLOSURE NOTICE: re: Judicial Recusal. Responses should be filed within 20 days of order. (D'Andrea, S.) (Entered: 10/15/2007)
17 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephonic Status Conference as to case numbers 07−cv−372 &07−cv−1074 set for 11/29/2007 04:00 PM in Chambers Room 417, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554.(DeRubeis, B.) (Entered: 11/07/2007)
18 NOTICE of Appearance by Laura K. Smith on behalf of Michael Chertoff, Robert Mueller, FBI, USA, Department of Homeland Security, Gregory Manack, Michael S. Loser (Smith, Laura) (Entered: 11/19/2007)
19 MOTION to Dismiss by Charles L. Lee.Responses due by 12/10/2007 (Murphy−Osborne, Maura) (Entered: 11/19/2007)
20 Memorandum in Support re 19 MOTION to Dismiss filed by Charles L. Lee. (Attachments: # 1 Exhibit A−C)(Murphy−Osborne, Maura) (Entered: 11/19/2007)
21 Motion for Permission by Rashad Ahmad Refaat El Badrawi for Law Student Intern Appearances (Attachments: # 1 Supplement Sameer Ahmed Law Student Practice Form# 2 Supplement Sarah Burg Law Student Practice Form# 3 Supplement Kathryn Hunt Law Student Practice Form)(Wishnie, Michael) Modified on 11/28/2007 (D'Andrea, S.) (Entered: 11/19/2007)
22 MOTION to Dismiss or for Summary Judgment by Gregory Manack, Michael S. Loser.Responses due by 12/10/2007 (Levine, Brant) (Entered: 11/19/2007)

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 9 of 39

11/19/2007
11/19/2007 11/19/2007 11/19/2007
11/19/2007 11/19/2007 11/19/2007 11/19/2007 11/20/2007 11/20/2007 11/26/2007 11/27/2007 11/28/2007 11/28/2007

23 Memorandum in Support re 22 MOTION to Dismiss or for 35 Summary Judgment filed by Gregory Manack, Michael S. Loser. (Attachments: # 1 Ex. A−−Declaration of Gregory Manack# 2 Ex. B−−Declaration of Michael Loser# 3 Ex. C−−Transcript of 11−03 Proceedings# 4 Ex. D−−Michael Pearson Memo# 5 Ex. F−−Record of Immigration Court# 6 Ex. G−−Transcript of 11−10 Proceedings# 7 Ex. H−−Order Granting Voluntary Departure)(Levine, Brant) Modified on 11/30/2007 to create a link to doc #35(D'Andrea, S.) (Entered: 11/19/2007)
24 Statement of Material Facts re 22 MOTION to Dismiss or for 35 Summary Judgment filed by Gregory Manack, Michael S. Loser. (Levine, Brant) Modified on 11/30/2007 to create a link to doc #35(D'Andrea, S.) (Entered: 11/19/2007)
25 MOTION to Dismiss or for Summary Judgment by Michael Chertoff, Robert Mueller, FBI, USA, Department of Homeland Security.Responses due by 12/10/2007 (Levine, Brant) (Entered: 11/19/2007)
26 Memorandum in Support re 25 MOTION to Dismiss or for 36 Summary Judgment filed by Michael Chertoff, Robert Mueller, FBI, USA, Department of Homeland Security. (Attachments: # 1 Ex. A−−Declaration of Gregory Manack# 2 Ex. B−−Declaration of Michael Loser# 3 Ex. C−−Transcript of 11−03 Proceedings# 4 Ex. D−−Michael Pearson Memorandum# 5 Ex. F−−Record of Immigration Court# 6 Ex. G−−Transcript of 11−10 Proceedings# 7 Ex. H−−Order Granting Voluntary Departure)(Levine, Brant) Modified on 11/30/2007 to create a link to doc #36 (D'Andrea, S.) (Entered: 11/19/2007)
27 Statement of Material Facts re 25 MOTION to Dismiss or for 36 Summary Judgment filed by Michael Chertoff, Robert Mueller, FBI, USA, Department of Homeland Security. (Levine, Brant) Modified on 11/30/2007 to create a link to doc #36 (D'Andrea, S.) (Entered: 11/19/2007)
28 NOTICE by Michael Chertoff, Robert Mueller, FBI, USA, Department of Homeland Security, Gregory Manack, Michael S. Loser re 26 Memorandum in Support of Motion, 23 Memorandum in Support of Motion, of Manual Filing of Ex. E (Levine, Brant) (Entered: 11/19/2007)
35 MOTION for Summary Judgment by Gregory Manack, Michael S. Loser.Responses Due by 12/10/2007. (D'Andrea, S.) (Entered: 11/30/2007)
36 MOTION for Summary Judgment by Michael Chertoff, Robert Mueller, FBI, USA, Department of Homeland Security.Responses Due by 12/10/2007. (D'Andrea, S.) (Entered: 11/30/2007)
29 MOTION to Seal by Michael Chertoff, Robert Mueller, FBI, Department of Homeland Security, Gregory Manack, Michael S. Loser. (Attachments: # 1 Text of Proposed Order)(Sanders, C.) (Entered: 11/20/2007)
30 Sealed Document by Michael Chertoff, Robert Mueller, FBI, Department of Homeland Security, Gregory Manack, Michael S. Loser re 25 MOTION to Dismiss or for Summary Judgment. (Sanders, C.) (Entered: 11/20/2007)
31 ORDER: So Ordered 29 Motion to Seal. Signed by Judge Janet C. Hall on 11/26/2007. (D'Andrea, S.) (Entered: 11/27/2007)
32 First MOTION for Extension of Time to File Response/Reply as to 22 MOTION to Dismiss or for Summary Judgment, 25 MOTION to Dismiss or for Summary Judgment, 19 MOTION to Dismiss until 12/29/07, 12/29/07, 12/21/07 by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 11/27/2007)
Docket Entry Correction re 21 MOTION. Modified to change Notice to Motion. (D'Andrea, S.) (Entered: 11/28/2007)
33 ORDER granting 32 Motion for Extension of Time to File Response/Reply re 22 MOTION to Dismiss or for Summary Judgment, 19 MOTION to Dismiss, 25 MOTION to Dismiss or for Summary Judgment Responses due by 12/29/2007 and Responses due by 12/21/2007; Reply brief due 1/19/2008. SO ORDERED by Judge Janet C. Hall on 11/28/2007. (Sanders, C.) (Entered: 11/28/2007)

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 10 of 39

11/30/2007 12/04/2007 12/19/2007 12/20/2007 12/21/2007 12/29/2007
12/29/2007 12/29/2007 12/29/2007
12/29/2007 12/29/2007 01/02/2008 01/03/2008 01/03/2008 01/08/2008

34 ORDER Approving 21 Motion for Law Students' Appearance Requests of Kathryn Hunt. Signed by Judge Janet C. Hall on 11/28/2007. (Attachments: # 1 Sameer Ahmed; # 2 Sarah Burg) (D'Andrea, S.) (Entered: 11/30/2007)
37 Minute Entry for proceedings held before Judge Janet C. Hall: Telephone Status Conference held on 12/4/2007. 15 minutes(Court Reporter T. Fidanza.) (Klein, V.) (Entered: 12/04/2007)
38 First MOTION for Leave to File Excess Pages in Opposition to Defendants Manack and Losers 22 Motion to Dismiss or for 25 Summary Judgment by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) Modified on 12/20/2007 to create links to doc #s 22 and 25 (D'Andrea, S.) (Entered: 12/19/2007)
39 First Memorandum in Opposition re 19 MOTION to Dismiss filed by Rashad Ahmad Refaat El Badrawi. (Attachments: # 1 Affidavit Declaration of Bram Elias (with Exhibits Attached))(Wishnie, Michael) (Entered: 12/20/2007)
40 ORDER granting 38 Motion for Leave to File Excess Pages. SO ORDERED by Judge Janet C. Hall on 12/21/07. (Klein, V.) (Entered: 12/21/2007)
41 First Memorandum in Opposition re 35 MOTION for Summary Judgment, 22 MOTION to Dismiss or for Summary Judgment filed by Rashad Ahmad Refaat El Badrawi. (Attachments: # 1 Statement of Material Facts in Opposition to Defendants' Statement of Facts, # 2 Declaration of Rashad El Badrawi, # 3 Declaration of Sameer Ahmed, # 4 Exhibit 1, # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6, # 10 Exhibit 7, # 11 Exhibit 8, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 13, # 15 Exhibit 14)(Wishnie, Michael) (Entered: 12/29/2007)
42 MOTION to Seal Exhibits 9, 12, and 15 by Rashad Ahmad Refaat El Badrawi. (Attachments: # 1 Text of Proposed Order)(Wishnie, Michael) (Entered: 12/29/2007)
43 NOTICE by Rashad Ahmad Refaat El Badrawi re 41 Memorandum in Opposition to Motion,, of Manual Filing of Exs. 9, 12, and 15 (Wishnie, Michael) (Entered: 12/29/2007)
44 MOTION to Continue or Deny Defendants' Manack and Loser's Motion for Summary Judgment under Fed. R. Civ. P. 56(f) by Rashad Ahmad Refaat El Badrawi. (Attachments: # 1 Memorandum in Support, # 2 Declaration of Michael Wishnie in Support of Plaintiff's Rule 56(f) Motion)(Wishnie, Michael) (Entered: 12/29/2007)
45 Memorandum in Opposition re 25 MOTION to Dismiss or for Summary Judgment, 36 MOTION for Summary Judgment filed by Rashad Ahmad Refaat El Badrawi. (Attachments: # 1 Statement of Material Facts Response to Federal Defendants 56a1 Statement of Material Facts)(Wishnie, Michael) (Entered: 12/29/2007)
46 MOTION to Continue or Deny Defendants' Motion for Summary Judgment Pursuant to Fed R Civ P 56f by Rashad Ahmad Refaat El Badrawi. (Attachments: # 1 Declaration of Michael Wishnie, # 2 Memorandum in Support, # 3 Declaration of Rashad El Badrawi)(Wishnie, Michael) (Entered: 12/30/2007)
47 Sealed Document: Exhibits 9,12 &15 by Rashad Ahmad Refaat El Badrawi re 41 Memorandum in Opposition to 35 MOTION for Summary Judgment (Candee, D.) (Entered: 01/02/2008)
48 ORDER granting 42 Motion to Seal Exhibits 9, 12, and 15. SO ORDERED by Judge Janet C. Hall on 1/3/08. (S−Klein, V.) (Entered: 01/03/2008)
49 ORDER to Seal − Exhibits 9, 12, 15 ordered sealed re: 42 MOTION to Seal Exhibits 9, 12, and 15 filed by Rashad Ahmad Refaat El Badrawi. Signed by Judge Janet C. Hall on 1/3/07. (Candee, D.) (Entered: 01/04/2008)
50 MOTION for Extension of Time to File Response/Reply Brief as to 44 MOTION to Continue or Deny Defendants' Manack and Loser's Motion for Summary Judgment under Fed. R. Civ. P. 56(f) MOTION to Continue or Deny Defendants' Manack and Loser's Motion for Summary Judgment under Fed. R. Civ. P. 56(f), 46 MOTION to Continue or Deny Defendants' Motion for Summary Judgment

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 11 of 39

01/15/2008
01/28/2008 02/04/2008 02/05/2008 02/07/2008 02/11/2008 02/11/2008 02/11/2008 02/11/2008
02/25/2008
04/01/2008

Pursuant to Fed R Civ P 56f until 02/11/08 by Michael Chertoff, Robert Mueller, FBI, USA, Charles L. Lee, Department of Homeland Security, Gregory Manack, Michael S. Loser. (Murphy−Osborne, Maura) (Entered: 01/08/2008)
51 ORDER granting 50 Motion for Extension of Time to File Response/Reply re 44 MOTION to Continue or Deny Defendants' Manack and Loser's Motion for Summary Judgment under Fed. R. Civ. P. 56(f), 46 MOTION to Continue or Deny Defendants' Motion for Summary Judgment Pursuant to Fed R Civ P 56f Responses due by 2/11/2008. SO ORDERED by Judge Janet C. Hall on 1/14/08. (Klein, V.) (Entered: 01/15/2008)
52 Consent MOTION for Leave to File Excess Pages for all Defendants' Reply Briefs by Michael Chertoff, Robert Mueller, FBI, USA, Department of Homeland Security, Gregory Manack, Michael S. Loser. (Levine, Brant) (Entered: 01/28/2008)
53 ORDER denying 52 Motion for Leave to File Excess Pages for all Defendants' Reply Briefs. Without prejudice to renew. the court would like to know the approximate length of the briefs before deciding the motion. SO ORDERED by Judge Janet C. Hall on 2/2/08. (Klein, V.) (Entered: 02/04/2008)
54 Second MOTION for Leave to File Excess Pages for all Defendants' Reply Briefs by Michael Chertoff, Robert Mueller, FBI, USA, Department of Homeland Security, Gregory Manack, Michael S. Loser. (Levine, Brant) (Entered: 02/05/2008)
55 ORDER granting 54 Motion for Leave to File Excess Pages. SO ORDERED by Judge Janet C. Hall on 2/6/08. (Klein, V.) (Entered: 02/07/2008)
56 REPLY to Response to 19 MOTION to Dismiss filed by Charles L. Lee. (Murphy−Osborne, Maura) (Entered: 02/11/2008)
57 REPLY to Response to 22 MOTION to Dismiss or for Summary Judgment, 35 MOTION for Summary Judgment filed by Gregory Manack, Michael S. Loser. (Levine, Brant) (Entered: 02/11/2008)
58 REPLY to Response to 25 MOTION to Dismiss or for Summary Judgment, 36 MOTION for Summary Judgment filed by Michael Chertoff, Robert Mueller, FBI, USA, Department of Homeland Security. (Levine, Brant) (Entered: 02/11/2008)
59 Memorandum in Opposition re 44 MOTION to Continue or Deny Defendants' Manack and Loser's Motion for Summary Judgment under Fed. R. Civ. P. 56(f) MOTION to Continue or Deny Defendants' Manack and Loser's Motion for Summary Judgment under Fed. R. Civ. P. 56(f), 46 MOTION to Continue or Deny Defendants' Motion for Summary Judgment Pursuant to Fed R Civ P 56f filed by Michael Chertoff, Robert Mueller, FBI, USA, Department of Homeland Security, Gregory Manack, Michael S. Loser. (Levine, Brant) (Entered: 02/11/2008)
60 REPLY to Response to 44 MOTION to Continue or Deny Defendants' Manack and Loser's Motion for Summary Judgment under Fed. R. Civ. P. 56(f) MOTION to Continue or Deny Defendants' Manack and Loser's Motion for Summary Judgment under Fed. R. Civ. P. 56(f), 46 MOTION to Continue or Deny Defendants' Motion for Summary Judgment Pursuant to Fed R Civ P 56f filed by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 02/25/2008)
61 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Oral Argument set for 4/25/2008 09:30 AM in Courtroom Two, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall, as to 25 MOTION to Dismiss or for Summary Judgment, 44 MOTION to Continue or Deny Defendants' Manack and Loser's Motion for Summary Judgment under Fed. R. Civ. P. 56(f), MOTION to Continue or Deny Defendants' Manack and Loser's Motion for Summary Judgment under Fed. R. Civ. P. 56(f), 35 MOTION for Summary Judgment, 19 MOTION to Dismiss, 22 MOTION to Dismiss or for Summary Judgment, 36 MOTION for Summary Judgment, 46 MOTION to Continue or Deny Defendants' Motion for Summary Judgment Pursuant to Fed R Civ P 56f. (DeRubeis, B.) (Entered:

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 12 of 39

04/11/2008 04/25/2008 04/25/2008
04/29/2008 05/01/2008 05/06/2008 05/07/2008 07/07/2008
07/21/2008 08/15/2008
08/22/2008
08/26/2008

04/01/2008)
62 NOTICE of Appearance by Lisa E. Perkins on behalf of Michael Chertoff, Robert Mueller, FBI, USA, Department of Homeland Security, Gregory Manack, Michael S. Loser (Perkins, Lisa) (Entered: 04/11/2008)
63 ORAL MOTION for Extension of Time for service of State Defendant by Charles L. Lee. (Klein, V.) (Entered: 04/29/2008)
64 Minute Entry. Proceedings held before Judge Janet C. Hall: Motion Hearing held on 4/25/2008 Taken under advisement 19 MOTION to Dismiss ; Taken Under advisement 22 MOTION to Dismiss; Taken under advisement 25 MOTION to Dismiss; Taken under advisement 36 MOTION for Summary Judgment; Taken under advisement 35 MOTION for Summary Judgment; Taken under advisement 44 MOTION to Continue; Taken under advisement 46 MOTION to Continue; granting nunc pro tunc 63 Motion for Extension of Time for service of State Defendant. Total Time: 2 hours and 45 minutes(Court Reporter Terri Fidanza.) (Klein, V.) (Entered: 04/29/2008)
65 First MOTION for Leave to File Notice of Supplemental Authority by Rashad Ahmad Refaat El Badrawi. (Attachments: # 1 Supplement Notice of Supplemental Authority)(Wishnie, Michael) (Entered: 04/29/2008)
66 ORDER granting 65 Motion for Leave to File Notice of Supplemental Authority. SO ORDERED by Judge Janet C. Hall on 4/30/08. (Klein, V.) (Entered: 05/01/2008)
67 NOTICE by Charles L. Lee Re: Filing of Unreported Decision (Attachments: # 1 Exhibit A)(Murphy−Osborne, Maura) (Entered: 05/06/2008)
68 RESPONSE re 65 First MOTION for Leave to File Notice of Supplemental Authority filed by Michael Chertoff, Robert Mueller, FBI, USA, Department of Homeland Security, Gregory Manack, Michael S. Loser. (Levine, Brant) (Entered: 05/07/2008)
69 NOTICE re 22 25 MOTION to Dismiss or for Summary Judgment by Michael Chertoff, Robert Mueller, FBI, USA, Department of Homeland Security, Gregory Manack, Michael S. Loser of Supplemental Authorities (Attachments: # 1 Arar v. Ashcroft, 06−4216, (2nd Cir. June 30, 2008), # 2 National Council of La Raza v. Mukasey, 07−816 (2nd Cir. July 3, 2008))(Levine, Brant) Motion links Modified on 7/8/2008 (Bauer, J.). (Entered: 07/07/2008)
70 RESPONSE re 22 25 MOTION to Dismiss or for Summary Judgment 69 Notice (Other), Notice (Other) filed by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael)Motion links Modified on 7/23/2008 (Bauer, J.). (Entered: 07/21/2008)
71 Second NOTICE OF ADDITIONAL AUTHORITY re 22 25 MOTION to Dismiss or for Summary Judgment by Michael Chertoff, Robert Mueller, FBI, USA, Department of Homeland Security, Gregory Manack, Michael S. Loser re 69 Notice (Other), Notice (Other) Regarding Arar v. Ashcroft filed by Michael Chertoff, Robert Mueller, FBI, USA, Department of Homeland Security, Gregory Manack, Michael S. Loser. (Attachments: # 1 Order Setting En Banc Hearing in Arar v. Ashcroft)(Levine, Brant) Motion links Modified on 8/18/2008 (Bauer, J.). (Entered: 08/15/2008)
72 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephonic Status Conference set for 8/26/2008 04:00 PM in Chambers Room 417, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554. (DeRubeis, B.) (Entered: 08/22/2008)
73 NOTICE Concerning Waiver of Judicial Disqualification. Signed by Clerk on 8/26/08. (Ferguson, L.) Modified on 8/28/2008 to indicate filed under SEAL. (S−Kunofsky, L.). (Entered: 08/26/2008)

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 13 of 39

08/26/2008 08/26/2008 08/26/2008 08/27/2008 08/28/2008 08/29/2008 08/29/2008 09/02/2008 09/22/2008
10/13/2008 10/16/2008 10/20/2008 10/21/2008
10/21/2008

74 Minute Entry for proceedings held before Judge Janet C. Hall: Telephonic Status Conference held on 8/26/2008. Conference Re: conflict and possible waiver procedure. Notice to issue from Clerk of Court. 40 minutes (Court Reporter T. Fidanza.) (Shultz, B.) (Entered: 08/26/2008)
75 AMENDED NOTICE Concerning Waiver of Judicial Disqualification. Signed by Clerk on 8/26/08. (Ferguson, L.) Modified on 8/28/2008 to indicate filed under SEAL. (S−Kunofsky, L.). (Entered: 08/26/2008)
76 NOTICE of Appearance by Ramzi Kassem on behalf of Rashad Ahmad Refaat El Badrawi (Kassem, Ramzi) (Entered: 08/26/2008)
79 NOTICE of Waiver by Rashad Ahmad Refaat El Badrawi re 75 Amended Notice Concerning Waiver of Judicial Disqualification. (Ferguson, L.) (Entered: 09/02/2008)
77 NOTICE of Waiver by Charles L. Lee re 75 Amended Notice Concerning Waiver of Judicial Disqualification. (Ferguson, L.) (Entered: 09/02/2008)
78 NOTICE of Waiver by Michael Chertoff, Robert Mueller, FBI, USA, Department of Homeland Security, Gregory Manack, Michael S. Loser re 75 Amended Notice Concerning Waiver of Judicial Disqualification. (Ferguson, L.) (Entered: 09/02/2008)
80 Statement by Counsel by Rashad Ahmad Refaat El Badrawi re 75 Amended Notice Concerning Waiver of Judicial Disqualification. (Ferguson, L.) (Entered: 09/02/2008)
81 Supplement by Charles L. Lee to 77 Notice of Waiver re 75 Amended Notice Concerning Waiver of Judicial Disqualification (Ferguson, L.) (Entered: 09/02/2008)
82 RULING Granting 22 Defendants' Motion to Dismiss; Granting in Part and Denying in Part 25 Defendants' Motion to Dismiss; Denying as Moot 35 Defendants' Motion for Summary Judgment; Denying 36 Defendants' Motion for Summary Judgment; Denying as Moot 44 Plaintiff's Motion to Continue or Deny Defendants' Motion for Summary Judgment; Denying as Moot 46 Plaintiff's Motion to Continue or Deny Defendants' Motion for Summary Judgment; Granting in Part and Denying in Part 19 Defendant's Motion to Dismiss. Signed by Judge Janet C. Hall on 9/22/2008. (D'Andrea, S.) (Entered: 09/23/2008)
83 AMENDED COMPLAINT against all defendants, filed by Rashad Ahmad Refaat El Badrawi. (Attachments: # 1 Memorandum in Support Notice of Filing of Amended Complaint)(Wishnie, Michael) (Additional attachment(s) added on 10/16/2008: # 2 MAIN DOCUMENT) (D'Andrea, S.). (Entered: 10/13/2008)
84 Docket Entry Correction re 83 Amended Complaint. MODIFIED to attach correct PDF. Amended as to clerical numeration only. (D'Andrea, S.) (Entered: 10/16/2008)
85 Joint STIPULATION re 83 Amended Complaint, by Michael Chertoff, Robert Mueller, FBI, USA, Department of Homeland Security, Gregory Manack, Michael S. Loser. AND El Badrawi (Attachments: # 1 Text of Proposed Order)(Levine, Brant) Filers Modified on 10/21/2008 (Bauer, J.). (Entered: 10/20/2008)
86 TRANSCRIPT of Proceedings held on April 25, 2008 before Judge Janet C. Hall. Court Reporter: Terri Fidanza. Type of Hearing: Oral Argument. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 11/11/2008. Redacted Transcript Deadline set for 11/21/2008. Release of Transcript Restriction set for 1/19/2009. (Fidanza, T.) (Entered: 10/21/2008)
87 ORDER re 85 Motion to Amend Complaint. Signed by Judge Janet C. Hall on 10/21/2008. (Heard, J.) Modified on 10/23/2008 to link to correct document. (DeRubeis, B.). (Entered: 10/22/2008)

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 14 of 39

10/22/2008
10/23/2008 10/30/2008 11/03/2008 11/04/2008
11/04/2008 11/05/2008
11/05/2008 11/07/2008 11/07/2008
11/07/2008 11/10/2008 11/18/2008 11/20/2008 12/11/2008 12/19/2008 12/30/2008

88 ORDER re 85 Stipulation, filed by FBI, Michael S. Loser, USA, Michael Chertoff, Department of Homeland Security, Rashad Ahmad Refaat El Badrawi, Robert Mueller, Gregory Manack. SO ORDERED by Judge Janet C. Hall on 10/21/08. (DeRubeis, B.) (Entered: 10/22/2008)
89 Docket Entry Correction re 87 Order. Modified to link to correct document. (DeRubeis, B.) (Entered: 10/23/2008)
90 ANSWER to 83 Amended Complaint, with Affirmative Defenses and Special Defenses by USA.(Levine, Brant) (Entered: 10/30/2008)
91 First MOTION for Extension of Time until ten days from this Court's ruling on motion for leave to file a Second Amended Complaint to Answer by Charles L. Lee. (Murphy−Osborne, Maura) (Entered: 11/03/2008)
92 MOTION to Amend 83 AMENDED COMPLAINT Second Amended Complaint by Rashad Ahmad Refaat El Badrawi. (Attachments: # 1 Exhibit A − Proposed Second Amended Complaint)(Wishnie, Michael) Motion relief and links Modified on 11/5/2008 (Bauer, J.). (Entered: 11/04/2008)
Set/Reset Deadlines as to 92 MOTION to Amend/Correct. Responses due by 11/26/2008 (Bauer, J.) (Entered: 11/05/2008)
93 ORDER granting 91 Motion for Extension of Time until ten days from this Court's ruling on motion for leave to file a Second Amended Complaint to Answer. SO ORDERED by Judge Janet C. Hall on 11/5/08. (Simpson, T.) (Entered: 11/05/2008)
94 ORDER granting 92 MOTION to Amend 83 AMENDED COMPLAINT Second Amended Complaint by Rashad Ahmad Refaat El Badrawi. SO ORDERED by Judge Janet C. Hall on 11/5/08. (DeRubeis, B.) (Entered: 11/05/2008)
95 AMENDED COMPLAINT Second against all defendants, filed by Rashad Ahmad Refaat El Badrawi.(Wishnie, Michael) Text Modified on 11/10/2008 (Bauer, J.). (Entered: 11/07/2008)
96 Joint STIPULATION re 95 Amended Complaint by Michael Chertoff, Robert Mueller, FBI, USA, Department of Homeland Security, Rashad Ahmad Refaat El Badrawi, Gregory Manack, Michael S. Loser. (Attachments: # 1 Text of Proposed Order)(Levine, Brant) (Entered: 11/07/2008)
97 ANSWER to 95 Amended Complaint with Affirmative Defenses and Special Defenses by USA.(Levine, Brant) (Entered: 11/07/2008)
98 ORDER re 95 Second Amended Complaint filed by Rashad Ahmad Refaat El Badrawi. Signed by Judge Janet C. Hall on 11/10/2008. (Heard, J.) (Entered: 11/12/2008)
Summons Issued as to Albert Pitts, Thomas McGrail. (Kelsey, N.) (Entered: 11/18/2008)
99 ANSWER to 95 Amended Complaint with Affirmative Defenses and Special Defenses by Charles L. Lee.(Murphy−Osborne, Maura) (Entered: 11/20/2008)
100 SUMMONS Returned Executed by Rashad Ahmad Refaat El Badrawi. Albert Pitts served on 11/24/2008, answer due 12/14/2008; Thomas McGrail served on 11/24/2008, answer due 12/14/2008. (Wishnie, Michael) (Entered: 12/11/2008)
101 REPORT of Rule 26(f) Planning Meeting. (Attachments: # 1 Supplement AGREEMENT REGARDING INADVERTENT PRODUCTION)(Wishnie, Michael) (Entered: 12/19/2008)
102 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. Telephonic Status Conference set for 1/16/2009 03:30 PM in Chambers Room 417, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. The conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at 203/579−5554. (Joseloff, B.) (Entered: 12/30/2008)

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 15 of 39

01/12/2009
01/14/2009 01/16/2009 01/18/2009 02/09/2009
02/10/2009 02/17/2009 02/23/2009 03/16/2009 03/16/2009 03/18/2009 03/18/2009
03/18/2009 03/20/2009

103 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. Telephonic Status Conference has been rescheduled for 1/14/2009 12:30 PM in Chambers Room 417, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. The conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at 203/579−5554. (Joseloff, B.) (Entered: 01/12/2009)
104 Minute Entry for proceedings held before Judge Janet C. Hall: Telephonic Status Conference held on 1/14/2009. A separate scheduling order will issue. Total Time: 0 hours and 15 minutes. (Court Reporter T. Fidanza.) (Joseloff, B.) (Entered: 01/14/2009)
105 SCHEDULING ORDER: re 101 Report of Rule 26(f) Planning Meeting. Discovery due by 8/31/2009. Dispositive Motions due by 9/30/2009. Status Report due by 4/15/2009. Trial Brief due by 9/30/2009. Signed by Judge Janet C. Hall on 1/15/2009. (Heard, J.) (Entered: 01/16/2009)
106 ANSWER to 95 Amended Complaint with Affirmative Defenses and Special Defenses by Albert Pitts, Thomas McGrail.(Murphy−Osborne, Maura) (Entered: 01/18/2009)
107 MOTION to Compel by Rashad Ahmad Refaat El Badrawi.Responses due by 3/2/2009 (Attachments: # 1 Memorandum in Support Memorandum of Law, # 2 Affidavit Mullkoff Declaration, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16)(Wishnie, Michael) (Entered: 02/09/2009)
108 Supplemental EXHIBIT to Mullkoff Declaration by Rashad Ahmad Refaat El Badrawi re 107 MOTION to Compel. (Attachments: # 1 Exhibit 5 − part 2, # 2 Exhibit 8, # 3 Exhibit 8 − part 2)(Wishnie, Michael) (Entered: 02/10/2009)
109 Consent MOTION for Extension of Time to File Response/Reply as to 107 MOTION to Compel until March 16, 2009 by USA, Charles L. Lee. (Levine, Brant) (Entered: 02/17/2009)
110 ORDER granting on consent, 109 Motion for Extension of Time to File Response/Reply re 107 MOTION to Compel. Responses due by 3/16/2009.SO ORDERED by Judge Janet C. Hall on 2/22/2009. (DeRubeis, B.) (Entered: 02/23/2009)
111 MOTION for Extension of Time to file response/reply as to 107 MOTION to Compel until March 20, 2009 file opposition memorandum by Charles L. Lee. (Murphy−Osborne, Maura) Motion relief, links and text Modified on 3/17/2009 (Bauer, J.). (Entered: 03/16/2009)
112 RESPONSE re 107 MOTION to Compel filed by USA. (Attachments: # 1 Declaration of FBI Executive Assistant Director Arthur M. Cummings, # 2 Privilege Log)(Levine, Brant) (Entered: 03/16/2009)
113 ORDER granting 111 Motion for Extension of Time to File Response/Reply re 107 MOTION to Compel. Responses due by 3/20/2009. SO ORDERED by Judge Janet C. Hall on 3/17/2009. (DeRubeis, B.) (Entered: 03/18/2009)
114 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Hearing re: 107 Motion to Compel set for 3/25/2009 11:30 AM in Courtroom Two, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. (Joseloff, B.) (Entered: 03/18/2009)
115 Consent MOTION to Continue Hearing on Plaintiff's Motion to Compel by USA. (Levine, Brant) (Entered: 03/18/2009)
116 ORDER granting 115 Motion to Continue. SO ORDERED by Judge Janet C. Hall on 3/20/2009. (Joseloff, B.) (Entered: 03/20/2009)

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 16 of 39

03/20/2009
03/20/2009 03/26/2009 03/27/2009 03/27/2009
03/30/2009 04/03/2009 04/03/2009 04/03/2009
04/06/2009 04/07/2009 04/13/2009 04/14/2009 04/15/2009 04/15/2009 04/15/2009 04/20/2009 04/27/2009

117 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Hearing re: 107 Motion to Compel RESCHEDULED for 4/30/2009 12:00 PM in Courtroom Two, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. (Joseloff, B.) (Entered: 03/20/2009)
118 Memorandum in Opposition re 107 MOTION to Compel filed by Charles L. Lee. (Murphy−Osborne, Maura) (Entered: 03/20/2009)
119 Consent MOTION for Leave to File Excess Pages in Reply to Defendant Lee's Response − Doc. No. 118 by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 03/26/2009)
120 MOTION for Extension of Time to file response/reply re 107 MOTION to Compel until 04/03/2009 by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) Motion relief, links and text Modified on 3/30/2009 (Bauer, J.). (Entered: 03/27/2009)
121 ORDER granting 119 Consent MOTION for Leave to File Excess Pages in Reply to Defendant Lee's Response − Doc. No. 118 by Rashad Ahmad Refaat El Badrawi. SO ORDERED by Judge Janet C. Hall on 3/27/2009. (DeRubeis, B.) (Entered: 03/27/2009)
122 ORDER granting 120 Motion for Extension of Time to File Response/Reply re 107 MOTION to Compel Responses due by 4/3/2009. SO ORDERED by Judge Janet C. Hall on 3/28/2009. (DeRubeis, B.) (Entered: 03/30/2009)
123 Exhibit 1 manually filed by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) Modified on 4/6/2009 (Bauer, J.). (Entered: 04/03/2009)
124 REPLY to Response to 107 MOTION to Compel filed by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 04/03/2009)
125 REPLY to Response to 107 MOTION to Compel Defendant Lee filed by Rashad Ahmad Refaat El Badrawi. (Attachments: # 1 Affidavit Martinez Declaration, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M)(Wishnie, Michael) (Entered: 04/04/2009)
126 NOTICE of Law Student Appearance Daniel Mullkoff by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael)Text Modified on 4/7/2009 (Bauer, J.). (Entered: 04/06/2009)
127 CERTIFICATE OF SERVICE by Rashad Ahmad Refaat El Badrawi re 126 Notice of Appearance Law Student Daniel Mullkoff Attorney Michael Wishnie. (Wishnie, Michael) Text Modified on 4/8/2009 (Bauer, J.). (Entered: 04/07/2009)
129 MOTION to Seal Exhibit by Rashad Ahmad Refaat El Badrawi. (Attachments: # 1 Text of Proposed Order Proposed Order)(Wishnie, Michael) (Entered: 04/13/2009)
130 ORDER granting 129 MOTION to Seal Exhibit by Rashad Ahmad Refaat El Badrawi. SO ORDERED by Judge Janet C. Hall on 4/14/2009. (DeRubeis, B.) (Entered: 04/14/2009)
131 RESPONSE re 129 MOTION to Seal Exhibit filed by USA. (Levine, Brant) (Entered: 04/15/2009)
132 Joint STATUS REPORT by Rashad Ahmad Refaat El Badrawi. ALL PARTIES (Wishnie, Michael) FILERS Modified on 4/16/2009 (Bauer, J.). (Entered: 04/15/2009)
133 CERTIFICATE OF SERVICE by Rashad Ahmad Refaat El Badrawi re 132 Status Report (Wishnie, Michael) (Entered: 04/15/2009)
134 NOTICE by Rashad Ahmad Refaat El Badrawi of Law Student Intern Appearance for Grant Martinez (Wishnie, Michael) (Entered: 04/20/2009)
135 NOTICE OF ADDITIONAL AUTHORITY by Rashad Ahmad Refaat El Badrawi re 107 MOTION to Compel, 125 Reply to Response to Motion, filed by Rashad Ahmad Refaat El Badrawi. (Attachments: # 1 Exhibit AA)(Wishnie, Michael)

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 17 of 39

04/30/2009 04/30/2009
05/01/2009 05/03/2009
05/08/2009 05/11/2009 05/13/2009 05/14/2009 05/17/2009 05/20/2009 05/20/2009 05/21/2009 05/21/2009 05/27/2009
06/17/2009

(Entered: 04/27/2009)
136 NOTICE of Appearance of law student intern on behalf of Rashad Ahmad Refaat El Badrawi Law Student Intern Anya Bernstein (Wishnie, Michael) Modified on 5/1/2009 (Bauer, J.). (Entered: 04/30/2009)
137 Minute Entry for proceedings held before Judge Janet C. Hall: Motion Hearing held on 4/30/2009 re 107 MOTION to Compel filed by Rashad Ahmad Refaat El Badrawi. Motion taken under advisement. Defendant United States shall provide the court with a sealed declaration no later than May 11, 2009, and shall arrange for the court to examine the documents at issue by the same date. Total Time: 1 hours and 30 minutes. (Court Reporter T. Fidanza.) (Joseloff, B.) (Entered: 04/30/2009)
139 STANDING PROTECTIVE ORDER. Signed by Judge Janet C. Hall on 4/30/2009. (Heard, J.) (Entered: 05/05/2009)
138 TRANSCRIPT of Proceedings held on April 30, 2009 before Judge Janet C. Hall. Court Reporter: Terri Fidanza. Type of Hearing: Oral Argument. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 5/24/2009. Redacted Transcript Deadline set for 6/3/2009. Release of Transcript Restriction set for 8/1/2009. (Fidanza, T.) (Entered: 05/03/2009)
140 Consent MOTION for Extension of Time until May 18, 2009 to file Declaration as permitted by 137 Motion Hearing, by USA. (Levine, Brant) (Entered: 05/08/2009)
141 ORDER granting 140 Consent MOTION for Extension of Time until May 18, 2009 to file Declaration by USA. SO ORDERED by Judge Janet C. Hall on 5/11/2009. (DeRubeis, B.) (Entered: 05/11/2009)
142 OBJECTION to In Camera, Ex Parte Review of Declaration filed by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 05/13/2009)
143 RESPONSE re 142 Objection to In Camera, Ex Parte Review of Declaration filed by USA. (Levine, Brant) (Entered: 05/14/2009)
144 MOTION for Extension of Time to File Motion to Compel as to Defendant United States by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 05/17/2009)
145 NOTICE by Rashad Ahmad Refaat El Badrawi. (Heard, J.) (Entered: 05/20/2009)
146 RESPONSE to Plaintiff's Letter Brief Regarding Discovery filed by USA. (Attachments: # 1 Plaintiff's Letter Brief (exhibits 3−8 omitted))(Levine, Brant) Modified on 5/21/2009 (Bauer, J.). Modified on 6/17/2009 (Bauer, J.). (Entered: 05/20/2009)
Docket Entry Correction re 146 Response : Letters may not be efiled. (Bauer, J.) (Entered: 05/21/2009)
147 ORDER re 145 Notice filed by Rashad Ahmad Refaat El Badrawi. Signed by Judge Janet C. Hall on 5/20/2009. (Heard, J.) (Entered: 05/21/2009)
148 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Hearing re plaintiff's letter briefs concerning discovery disputes with the United States and the State Defendants set for 6/18/2009 11:00 AM in Courtroom Two, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. (Joseloff, B.) (Entered: 05/27/2009)
149 NOTICE of Appearance by Edward J. Martin on behalf of USA (Martin, Edward) (Entered: 06/17/2009)

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 18 of 39

06/17/2009 06/17/2009 06/17/2009
06/18/2009 06/19/2009
06/24/2009
06/30/2009 06/30/2009 07/01/2009
07/01/2009 07/13/2009 07/14/2009 07/16/2009

150 MOTION to Continue Hearing Date by Charles L. Lee, Albert Pitts, Thomas McGrail. (Murphy−Osborne, Maura) (Entered: 06/17/2009)
151 ORDER granting in part 150 Motion to Continue. The Motion is granted as follows: the hearing scheduled for 6/18/2009 is continued to July 21, 2009 at 10:00 AM for the state defendants only. The state defendants have until July 8, 2009 to respond to plaintiff's 5/13/2009 letter. SO ORDERED by Judge Janet C. Hall on 6/17/2009. (Joseloff, B.) (Entered: 06/17/2009)
152 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Hearing re: discovery disputes with the state defendants set for 7/21/2009 10:00 AM in Courtroom Two, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. (Joseloff, B.) (Entered: 06/17/2009)
153 Minute Entry for proceedings held before Judge Janet C. Hall: Hearing re discovery dispute with defendant United States held on 6/18/2009. Total Time: 1 hours and 45 minutes. (Court Reporter T. Fidanza) (Joseloff, B.) (Entered: 06/18/2009)
154 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone Conference re: discovery schedule set for 7/1/2009 12:00 PM in Chambers Room 417, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. The conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at 203/579−5554. (Joseloff, B.) (Entered: 06/19/2009)
155 TRANSCRIPT of Proceedings held on June 18, 2009 before Judge Janet C. Hall. Court Reporter: Terri Fidanza. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 7/15/2009. Redacted Transcript Deadline set for 7/25/2009. Release of Transcript Restriction set for 9/22/2009. (Fidanza, T.) (Entered: 06/24/2009)
156 MOTION for Extension of Time until July 16, 2009 to file declaration asserting privilege 153 Miscellaneous Hearing by USA. (Levine, Brant) (Entered: 06/30/2009)
157 MOTION for Protective Order by USA.Responses due by 7/21/2009 (Attachments: # 1 Text of Proposed Order)(Levine, Brant) (Entered: 06/30/2009)
158 Minute Entry. Proceedings held before Judge Janet C. Hall: Telephone Conference held on 7/1/2009. Plaintiff's Oral Motion for Extension of Discovery Deadlines is granted for the reasons stated on the record. Discovery shall be completed no later than 10/31/2009. Dispositive motions (or the pre−trial memorandum) are due no later than 11/30/2009. 156 Motion for Extension of Time is granted for the reasons stated on the record. Total Time: 1 hours. (Court Reporter T. Fidanza) (Joseloff, B.) (Entered: 07/01/2009)
Set Deadlines/Hearings: Discovery due by 10/31/2009 Dispositive Motions due by 11/30/2009 Trial Brief due by 11/30/2009 (Bauer, J.) (Entered: 07/02/2009)
159 ORDER granting in part 157 Motion for Protective Order. SO ORDERED by Judge Janet C. Hall on 7/13/2009. (Joseloff, B.) (Entered: 07/13/2009)
160 NOTICE by USA re 153 Miscellaneous Hearing (Attachments: # 1 Declaration of Kumar C. Kibble with exhibits (filed under seal for in camera, ex parte review), # 2 Declaration of Kumar C. Kibble (public version))(Levine, Brant) (Entered: 07/14/2009)
161 NOTICE. The hearing re: discovery disputes scheduled for 7/21/2009 10:00 AM before Judge Janet C. Hall is CANCELED. (Joseloff, B.) (Entered: 07/16/2009)

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 19 of 39

07/16/2009
07/21/2009 07/27/2009
07/31/2009 08/04/2009 08/10/2009 08/10/2009 08/10/2009 08/12/2009 08/13/2009 08/14/2009 08/17/2009
08/18/2009
08/18/2009
08/18/2009 08/18/2009

162 Joint STATUS REPORT by Rashad Ahmad Refaat El Badrawi AND Michael Chertoff, Robert Mueller, FBI, USA, Department of Homeland Security, Gregory Manack, Michael S. Loser. (Wishnie, Michael) (Modified on 7/17/09 to add parties)(Jaiman, R.). (Entered: 07/16/2009)
163 NOTICE of Appearance of law student intern on behalf of Rashad Ahmad Refaat El Badrawi Law Student Intern Jeffrey Kahn (Wishnie, Michael) Modified on 7/23/2009 (Jaiman, R.). (Entered: 07/21/2009)
164 RULING ORDER granting in part and denying in part 107 Motion to Compel. The Defendant United States of America shall disclose the redacted documents to plaintiff's attorneys by August 10, 2009. The redacted documents shall be designated "Protected Documents" per the court's Protective Order Doc. Nos. 139 , 159 . Signed by Judge Janet C. Hall on 7/24/09. (Jaiman, R.) Modified on 7/31/2009 (Jaiman, R.). (Entered: 07/29/2009)
Docket Entry Correction...to edit the text re 164 Order on Motion to Compel, (Jaiman, R.) (Entered: 07/31/2009)
165 Consent MOTION for Extension of Time until August 17, 2009 to File Motion to Compel as to Defendant United States by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 08/04/2009)
166 ORDER granting 165 Motion for Extension of Time. SO ORDERED by Judge Janet C. Hall on 8/7/2009. (Joseloff, B.) (Entered: 08/10/2009)
167 MOTION for Reconsideration re 164 Order on Motion to Compel, by FBI, USA, Department of Homeland Security.Responses due by 8/31/2009 (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1)(Martin, Edward) (Entered: 08/10/2009)
168 MOTION for Ramzi Kassem to Withdraw as Attorney by Rashad Ahmad Refaat El Badrawi. (Kassem, Ramzi) (Entered: 08/10/2009)
169 ORDER granting 168 Motion to Withdraw as Attorney. Attorney Ramzi Kassem terminated. SO ORDERED by Judge Janet C. Hall on 8/11/2009. (DeRubeis, B.) (Entered: 08/12/2009)
170 Marked Plaintiff's Exhibit List. (DeRubeis, B.) (Entered: 08/13/2009)
171 ORDER terminating 144 Motion for Extension of Time. The relief requested was granted in 147 ORDER re 145 Notice. SO ORDERED by Judge Janet C. Hall on 8/13/2009. (Joseloff, B.) (Entered: 08/14/2009)
172 MOTION to Seal Motion to Compel and Exhibits by Rashad Ahmad Refaat El Badrawi. (Attachments: # 1 Notice of Manual Filing, # 2 Notice of Motion to Compel the Production of Documents and Testimony)(Wishnie, Michael) (Entered: 08/17/2009)
173 Consent MOTION for Extension of Time until August 18, 2009 nunc pro tunc to File Motion to Compel and Accompanying Exhibits 172 MOTION to Seal Motion to Compel and Exhibits by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 08/18/2009)
174 Consent MOTION for Extension of Time until September 14 to File Any Motion to Compel Arising from Plaintiff's Third Request for Production to the United States by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 08/18/2009)
175 ORDER granting 172 Motion to Seal; granting 173 Motion for Extension of Time. SO ORDERED by Judge Janet C. Hall on 8/18/2009. (Joseloff, B.) (Entered: 08/18/2009)
177 Sealed Motion; Motion to compel by Rashad Ahmad Refaat El Badrawi re: Exhibits (Attachments: # 1 Declaration of Anya Bernstein, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16)(Jaiman, R.) Modified on 9/29/2009 (Jaiman, R.). (Entered: 08/19/2009)

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 20 of 39

08/19/2009
08/21/2009 08/31/2009 09/01/2009 09/04/2009 09/08/2009 09/08/2009 09/10/2009 09/10/2009
09/11/2009 09/14/2009 09/14/2009
09/14/2009 09/16/2009 09/16/2009

176 ORDER granting 174 Motion for Extension of Time. In the future, the court does not expect to grant this motion. The 30−day rule is intended to move discovery along, and seems to the court sufficient time to allow counsel to confer. SO ORDERED by Judge Janet C. Hall on 8/19/2009. (Joseloff, B.) (Entered: 08/19/2009)
178 NOTICE by Rashad Ahmad Refaat El Badrawi re Law Student Appearance Form for Stephen Poellot (Wishnie, Michael) (Entered: 08/21/2009)
179 Memorandum in Opposition re 167 MOTION for Reconsideration re 164 Order on Motion to Compel, filed by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 08/31/2009)
180 MOTION to Amend/Correct 159 Order on Motion for Protective Order, 139 Protective Order by Rashad Ahmad Refaat El Badrawi.Responses due by 9/22/2009 (Attachments: # 1 Affidavit Declaration of Daniel Mullkoff, # 2 Exhibit Exhibit 1)(Wishnie, Michael) (Entered: 09/01/2009)
181 RULING denying 167 Motion for Reconsideration. Signed by Judge Janet C. Hall on 9/4/09. (Simpson, T.) (Entered: 09/08/2009)
182 MOTION for Laura K. Smith to Withdraw as Attorney by Michael Chertoff, Robert Mueller, FBI, USA, Department of Homeland Security, Gregory Manack, Michael S. Loser. (Smith, Laura) (Entered: 09/08/2009)
183 ORDER TO SHOW CAUSE re: Plaintiff's Motion to Modify the Protective Order. Show Cause Response due by 9/14/2009. Plaintiff may reply by 9/18/2009. SO ORDERED by Judge Janet C. Hall on 9/8/2009. (DeRubeis, B.) (Entered: 09/08/2009)
184 MOTION to Seal Opposition to Plaintiff's Motion to Compel by USA. (Levine, Brant) (Entered: 09/10/2009)
185 ORDER granting 182 MOTION for Laura K. Smith to Withdraw as Attorney by Michael Chertoff, Robert Mueller, FBI, USA, Department of Homeland Security, Gregory Manack, Michael S. Loser. Attorney Laura K. Smith terminated. SO ORDERED by Judge Janet C. Hall on 9/10/2009. (DeRubeis, B.) (Entered: 09/10/2009)
186 Memorandum in Opposition to Plaintiff's Motion to Compel Doc No. 177 re 184 MOTION to Seal Opposition to Plaintiff's Motion to Compel filed by USA. (Attachments: # 1 Exhibits)(Levine, Brant) Modified on 9/25/2009 (Jaiman, R.). (Entered: 09/11/2009)
187 ORDER granting 184 MOTION to Seal Opposition to Plaintiff's Motion to Compel by USA. USA shall file a redacted version on the public docket. SO ORDERED by Judge Janet C. Hall on 9/11/2009. (DeRubeis, B.) (Entered: 09/14/2009)
188 Consent MOTION for Extension of Time until September 16, 2009 to Respond to Plaintiff's Motion to Amend Protective Order 183 Order to Show Cause, 180 MOTION to Amend/Correct 159 Order on Motion for Protective Order, 139 Protective Order MOTION to Amend/Correct 159 Order on Motion for Protective Order, 139 Protective Order by USA. (Levine, Brant) (Entered: 09/14/2009)
189 Third MOTION to Compel Discovery by Rashad Ahmad Refaat El Badrawi.Responses due by 10/5/2009 (Attachments: # 1 Memorandum in Support, # 2 Exhibit Mullkoff Declaration, # 3 Exhibit 1, # 4 Exhibit 2)(Wishnie, Michael) (Entered: 09/14/2009)
190 MOTION to Compel Discovery Responses by Charles L. Lee, Albert Pitts, Thomas McGrail.Responses due by 10/7/2009 (Attachments: # 1 Memorandum in Support, # 2 Affidavit of Maura Murphy Osborne, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit D)(Murphy−Osborne, Maura) (Entered: 09/16/2009)
191 ORDER granting 188 Consent MOTION for Extension of Time until September 16, 2009 to Respond to Plaintiff's Motion to Amend Protective Order 183 Order to Show Cause, 180 MOTION to Amend/Correct. SO ORDERED by Judge Janet C. Hall on 9/15/2009. (DeRubeis, B.) (Entered: 09/16/2009)

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 21 of 39

09/16/2009 09/16/2009 09/17/2009
09/17/2009 09/17/2009 09/17/2009 09/18/2009 09/21/2009 09/23/2009 09/24/2009
09/25/2009 09/25/2009 09/28/2009

Set Deadlines/Hearings: Show Cause Response due by 9/16/2009; Plaintiff's reply due by 9/18/2009. (DeRubeis, B.) (Entered: 09/16/2009)
192 Memorandum in Opposition re 180 MOTION to Amend/Correct 159 Order on Motion for Protective Order, 139 Protective Order MOTION to Amend/Correct 159 Order on Motion for Protective Order, 139 Protective Order filed by USA. (Perkins, Lisa) (Entered: 09/17/2009)
193 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone Conference set for 9/17/2009 03:15 PM in Chambers Room 417, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554. (DeRubeis, B.) (Entered: 09/17/2009)
194 NOTICE of Appearance by Kenneth Kimerling on behalf of Rashad Ahmad Refaat El Badrawi (Kimerling, Kenneth) (Entered: 09/17/2009)
195 Minute Entry for proceedings held before Judge Janet C. Hall: Telephone Conference held on 9/17/2009. Deposition of Plaintiff will remain as scheduled for the reasons stated on the record. 25 minutes(Court Reporter T. Fidanza.) (Volek, J.) (Entered: 09/17/2009)
196 MOTION for Security for Costs by Charles L. Lee, Albert Pitts, Thomas McGrail. (Murphy−Osborne, Maura) (Entered: 09/17/2009)
197 REPLY to Response to 180 MOTION to Amend/Correct 159 Order on Motion for Protective Order, 139 Protective Order MOTION to Amend/Correct 159 Order on Motion for Protective Order, 139 Protective Order filed by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 09/18/2009)
198 NOTICE by Rashad Ahmad Refaat El Badrawi re Law Student Appearance Form for Saurabh Sanghvi (Wishnie, Michael) (Entered: 09/21/2009)
199 Minute Entry for proceedings held before Judge Holly B. Fitzsimmons: Telephone Conference re: deposition dispute held on 9/23/2009. 25 minutes (Larsen, M.) (Entered: 09/23/2009)
200 ORDER: At a telephone conference held September 23, 2009, plaintiff withdrew his claim for intentional infliction of emotional distress and agreed to limit his damage claims to "garden variety" emotional distress. Plaintiff will file a written withdrawal memorializing this representation within seven (7) days. Signed by Judge Holly B. Fitzsimmons on 9/24/09. (Esposito, A.) (Entered: 09/24/2009)
201 Consent MOTION for Extension of Time until 9/28/2009 to File Reply to Opposition to Motion to Compel 186 Memorandum in Opposition to Motion, by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 09/25/2009)
202 ORDER granting 201 Consent MOTION for Extension of Time until 9/28/2009 to File Reply to Opposition to Motion to Compel 186 . SO ORDERED by Judge Janet C. Hall on 9/25/09. (Volek, J.) (Entered: 09/25/2009)
205 ENTERED IN ERROR...JUDGMENT, ORDERED and ADJUDGED that the complaint is dismissed for failure to prosecute.

09/28/2009 09/29/2009

For Appeal Forms please go to the following website: http://www.ctd.uscourts.gov/forms.html. Signed by Clerk on 9/28/09. (Jaiman, R.) Modified on 9/29/2009 (Jaiman, R.). (Entered: 09/29/2009)
208 Sealed Document: Reply to United States Memorandum in Opposition to Motion to Compel by Rashad Ahmad Refaat El Badrawi re 186 Memorandum in Opposition to Motion to compel. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2 Part 1, # 3 Exhibit 2 part 2, # 4 Exhibit 3, # 5 Exhibit 4)(Jaiman, R.) (Entered: 09/30/2009)
203 MOTION to Seal Plaintiff's Reply to the United States' Opposition to Plaintiff's Motion to Compel by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 09/29/2009)

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 22 of 39

09/29/2009 09/30/2009 09/30/2009 10/01/2009 10/01/2009 10/02/2009 10/02/2009 10/02/2009
10/05/2009 10/07/2009
10/08/2009 10/09/2009
10/09/2009 10/09/2009
10/09/2009 10/12/2009

204 RULING denying 180 Motion to Amend 159 Order on Motion for Protective Order, 139 Protective Order. Signed by Judge Janet C. Hall on 9/29/09. (Simpson, T.) (Entered: 09/29/2009)
206 MOTION to Withdraw 189 Third MOTION to Compel Discovery from Defendant United States by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 09/30/2009)
207 NOTICE by Rashad Ahmad Refaat El Badrawi re Law Student Appearance Form for Naveed Rashid (Wishnie, Michael) (Entered: 09/30/2009)
209 ORDER granting 203 Motion to Seal. SO ORDERED by Judge Janet C. Hall on 9/30/2009. (DeRubeis, B.) (Entered: 10/01/2009)
210 NOTICE by Rashad Ahmad Refaat El Badrawi re: Law Student Appearance Form for Jennifer Chang (Wishnie, Michael) (Entered: 10/01/2009)
211 PROPOSED ORDER re 200 Order, by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 10/02/2009)
212 ORDER withdrawing 189 Motion to Compel; granting 206 Motion to Withdraw Motion to Compel. SO ORDERED by Judge Janet C. Hall on 10/1/2009. (DeRubeis, B.) (Entered: 10/02/2009)
213 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Hearing set for 10/7/2009 02:00 PM in Courtroom Two, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall re: 190 MOTION to Compel Discovery Responses, 177 SEALED MOTION. (Volek, J.) (Entered: 10/02/2009)
214 RESPONSE re 190 MOTION to Compel Discovery Responses filed by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 10/05/2009)
215 Minute Entry. Proceedings held before Judge Janet C. Hall: taking under advisement 177 Sealed Motion; terminating as moot 190 Motion to Compel. Motion Hearing held on 10/7/2009. Total Time: 1 hours and 15 minutes(Court Reporter Terri Fidanza.) (DeRubeis, B.) (Entered: 10/07/2009)
216 Memorandum in Opposition re 196 MOTION for Security for Costs filed by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 10/08/2009)
217 MOTION to Alter Judgment Re: Motion to Modify Protective Order by Rashad Ahmad Refaat El Badrawi.Responses due by 10/30/2009 (Attachments: # 1 Memorandum in Support Memorandum in Support of Motion to Modify Order)(Wishnie, Michael) (Entered: 10/09/2009)
218 MOTION to Seal Supplemental Memorandum Re: Procedure for Invoking the Law Enforcement Privilege by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 10/09/2009)
220 ORDER granting 196 Motion for Security for Costs. The defendant(s) having made application to the Clerk of Court for an order requiring the plaintiff(s) to deposit or file a bond with sufficient surety in the sum of $500.00 pursuant to Local Rule 83.3(a) of the Rules of Civil Procedure for the United States District of Connecticut, it is ORDERED that the plaintiff(s) herein file a bond as security for costs in this action within thirty (30) days from this date. Signed by Judge Janet C. Hall on 10/9/09. (Simpson, T.) (Entered: 10/13/2009)
227 MOTION to Seal by Rashad Ahmad Refaat El Badrawi. (Jaiman, R.) (Entered: 10/20/2009)
219 TRANSCRIPT of Proceedings held on October 7, 2009 before Judge Janet C. Hall. Court Reporter: Terri Fidanza. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 11/2/2009. Redacted Transcript Deadline set for

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 23 of 39

10/14/2009 10/14/2009 10/15/2009
10/16/2009 10/16/2009 10/19/2009 10/20/2009 10/20/2009 10/20/2009 10/20/2009 10/23/2009
10/23/2009 10/26/2009 10/26/2009

11/12/2009. Release of Transcript Restriction set for 1/10/2010. (Fidanza, T.) (Entered: 10/12/2009)
221 ORDER granting 218 Motion to Seal. SO ORDERED by Judge Janet C. Hall on 10/13/09. (Volek, J.) (Entered: 10/14/2009)
222 Joint STATUS REPORT by USA, Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 10/14/2009)
223 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone Conference re: Ruling on 177 SEALED MOTION set for 10/20/2009 12:00 PM in Chambers Room 417, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. Counsel are requested to participate in this conference via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554. (Volek, J.) (Entered: 10/15/2009)
224 Memorandum in Opposition re 217 MOTION to Alter Judgment Re: Motion to Modify Protective Order filed by USA. (Perkins, Lisa) (Entered: 10/16/2009)
225 ORDER dismissing with prejudice certain claims contained in the 95 Second Amended Complaint filed by Rashad Ahmad Refaat El Badrawi. Signed by Judge Holly B. Fitzsimmons on 10/16/09. (Esposito, A.) (Entered: 10/16/2009)
226 MOTION To Alter United States' Discovery Response Time by Rashad Ahmad Refaat El Badrawi.Responses due by 11/9/2009 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Wishnie, Michael) (Entered: 10/19/2009)
228 ORDER granting 227 Motion to Seal. Signed by Judge Janet C. Hall on 10/19/09. (Jaiman, R.) (Entered: 10/20/2009)
229 Sealed Document: Supplement Memorandum Re: Procedure for invoking the Law Enforcement Privilege by Rashad Ahmad Refaat El Badrawi. (Attachments: # 1 Declaration of Jeffrey Kahn)(Jaiman, R.) (Entered: 10/20/2009)
230 RULING denying 217 Motion to Alter Judgment. Signed by Judge Janet C. Hall on 10/20/09. (Jaiman, R.) (Entered: 10/20/2009)
241 Minute Entry. Proceedings held before Judge Janet C. Hall on 10/20/2009: granting in part and denying in part 177 SEALED MOTION filed by Rashad Ahmad Refaat El Badrawi for the reasons stated on the record. Total Time: 1 hour and 30 minutes(Court Reporter T. Fidanza.) (Volek, J.) (Entered: 10/29/2009)
231 TRANSCRIPT of Proceedings held on October 20, 2009 before Judge Janet C. Hall. Court Reporter: Terri Fidanza. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 11/13/2009. Redacted Transcript Deadline set for 11/23/2009. Release of Transcript Restriction set for 1/21/2010. (Fidanza, T.) (Entered: 10/23/2009)
232 Memorandum in Opposition re 226 MOTION To Alter United States' Discovery Response Time filed by USA. (Levine, Brant) (Entered: 10/23/2009)
233 REPLY to Response to 226 MOTION To Alter United States' Discovery Response Time filed by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 10/26/2009)
234 MOTION to Seal Memorandum in Support of Motion to Modify Protected Status of Certain Documents, and accompanying Exhibits by Rashad Ahmad Refaat El Badrawi. (Attachments: # 1 Supplement Notice of Manual Filing, # 2 Supplement Notice of Motion to Modify Protected Status of Certain Documents, # 3 Affidavit Declaration of Daniel Mullkoff)(Wishnie, Michael) (Entered: 10/26/2009)

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 24 of 39

10/26/2009 10/26/2009 10/26/2009 10/27/2009 10/27/2009 10/27/2009 10/29/2009
10/29/2009
10/30/2009 10/30/2009
11/04/2009
11/06/2009 11/06/2009

235 NOTICE of Appearance by James Bhandary−Alexander on behalf of Sufu Hashim (Bhandary−Alexander, James) (Entered: 10/26/2009)
236 OBJECTION to Defendants' Notice of Deposition and Request to Produce at Deposition filed by Sufu Hashim. (Bhandary−Alexander, James) (Entered: 10/26/2009)
243 Memorandum in Support re 242 MOTION Alter Protected Status of Certain Documents filed by Rashad Ahmad Refaat El Badrawi. (Attachments: # 1 Exhibit 1−6)(Jaiman, R.) (Entered: 10/30/2009)
237 NOTICE of Appearance by Steven R. Strom on behalf of Charles L. Lee, Albert Pitts, Thomas McGrail in their official and individual capacities, ONLY, (Strom, Steven) (Entered: 10/27/2009)
238 ORDER granting 234 MOTION to Seal Memorandum in Support of Motion to Modify Protected Status of Certain Documents, and accompanying Exhibits by Rashad Ahmad Refaat El Badrawi. SO ORDERED by Judge Janet C. Hall on 10/27/2009. (DeRubeis, B.) (Entered: 10/27/2009)
239 RESPONSE by FBI, USA, Department of Homeland Security to Plaintiff's Memorandum Seeking to Alter the Procedure for Invoking the Law Enforcement Privilege. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Martin, Edward) (Entered: 10/27/2009)
240 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone Conference set for 11/4/2009 03:00 PM in Chambers Room 417, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. Counsel are requested to participate in this conference via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554. (Volek, J.). (Entered: 10/29/2009)
242 MOTION Alter Protected Status of Certain Documents re 238 Order on Motion to Seal, 234 MOTION to Seal Memorandum in Support of Motion to Modify Protected Status of Certain Documents, and accompanying Exhibits by Rashad Ahmad Refaat El Badrawi.Responses due by 11/19/2009 (Attachments: # 1 Affidavit Mullkoff Declaration)(Wishnie, Michael) Modified on 10/30/2009 (S−Jaiman, R.). (Entered: 10/29/2009)
244 MOTION for James Bhandary−Alexander to Withdraw as Attorney by Sufu Hashim. (Bhandary−Alexander, James) (Entered: 10/30/2009)
245 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone Conference previously scheduled for 11/4/2009 03:00 PM before Judge Janet C. Hall will remain in effect and will address: 226 MOTION To Alter United States' Discovery Response Time, 244 MOTION for James Bhandary−Alexander to Withdraw as Attorney, and Procedures re: Law Enforcement Privilege. Counsel are requested to participate in this conference via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554. (Volek, J.) (Entered: 10/30/2009)
246 Minute Entry. Telephone Conference held before Judge Janet C. Hall on 11/4/09. For the reasons stated on the record, the court grants 244 Motion to Withdraw as Attorney; grants 226 Motion to Alter United States' Discovery Time; grants in part and denies in part 229 Sealed Memorandum re: Procedure for Invoking Law Enforcement Privilege. Attorney James Bhandary−Alexander terminated. 45 minutes (Court Reporter T. Fidanza.) (Volek, J.) (Entered: 11/04/2009)
247 MOTION to Seal Exhibits to Motion to Extend Discovery Deadline by Rashad Ahmad Refaat El Badrawi. (Attachments: # 1 Supplement Notice of Manual Filing)(Wishnie, Michael) (Entered: 11/06/2009)
248 MOTION for Extension of Time until 11/27/2009 Discovery Deadline 247 MOTION to Seal Exhibits to Motion to Extend Discovery Deadline by Rashad

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 25 of 39

11/10/2009 11/12/2009 11/12/2009 11/12/2009
11/13/2009 11/13/2009
11/13/2009 11/13/2009 11/15/2009
11/16/2009 11/17/2009 11/19/2009 11/19/2009
11/23/2009 11/24/2009

Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 11/06/2009)
249 ORDER granting 247 MOTION to Seal Exhibits to Motion to Extend Discovery Deadline by Rashad Ahmad Refaat El Badrawi. SO ORDERED by Judge Janet C. Hall on 11/10/2009. (DeRubeis, B.) (Entered: 11/10/2009)
250 Consent MOTION to Seal Opposition to Plaintiff's Motion to Extend Discovery by USA. (Levine, Brant) (Entered: 11/12/2009)
251 MOTION to Seal Exhibit to Motion to Compel Privilege Logs From Defendant United States or, In the Alternative, Extend Time to File Motion to Compel by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 11/12/2009)
252 MOTION to Compel Privilege Logs From Defendant United States Or, In the Alternative, Extend Time to File Motion to Compel by Rashad Ahmad Refaat El Badrawi.Responses due by 12/3/2009 (Attachments: # 1 Supplement Notice of Manual Filing)(Wishnie, Michael) (Entered: 11/12/2009)
253 ORDER granting 250 Motion to Seal; granting 251 Motion to Seal. SO ORDERED by Judge Janet C. Hall on 11/13/2009. (DeRubeis, B.) (Entered: 11/13/2009)
254 RESPONSE re 248 MOTION for Extension of Time until 11/27/2009 Discovery Deadline 247 MOTION to Seal Exhibits to Motion to Extend Discovery Deadline filed by FBI, USA, Department of Homeland Security. (Martin, Edward) (Entered: 11/13/2009)
256 Security for Costs in the amount of $ 500.00 posted by Rashad Ahmad Refaat El Badrawi. Receipt Number B018843. (Fazekas, J.) (Entered: 11/16/2009)
263 Sealed Document: by USA. (Jaiman, R.) (Entered: 11/25/2009)
255 TRANSCRIPT of Proceedings held on November 11, 2009 before Judge Janet C. Hall. Court Reporter: Terri Fidanza. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 12/6/2009. Redacted Transcript Deadline set for 12/16/2009. Release of Transcript Restriction set for 2/13/2010. (Fidanza, T.) (Entered: 11/15/2009)
257 Joint MOTION To Modify Dispositive Motion Schedule re 105 Scheduling Order, (Responses due by 12/7/2009, ), Joint MOTION for Clarification by USA, Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 11/16/2009)
258 Sealed Document: by USA. (Jaiman, R.) (Entered: 11/17/2009)
259 Consent MOTION to Seal Opposition to Plaintiff's Motion to Alter the Protected Status of Certain Information by USA. (Martin, Edward) (Entered: 11/19/2009)
260 Memorandum in Opposition re 242 MOTION Alter Protected Status of Certain Documents re 238 Order on Motion to Seal, 234 MOTION to Seal Memorandum in Support of Motion to Modify Protected Status of Certain Documents, and accompanying Exhibits MOTION Alter Protected Status of Certain Documents re 238 Order on Motion to Seal, 234 MOTION to Seal Memorandum in Support of Motion to Modify Protected Status of Certain Documents, and accompanying Exhibits filed by USA. (Martin, Edward) (Entered: 11/19/2009)
261 ORDER granting 259 Consent Motion to Seal. SO ORDERED by Judge Janet C. Hall on 11/20/09. (DeRubeis, B.) (Entered: 11/23/2009)
262 ORDER granting 257 Motion to Modify and to Clarify as follows: (1) the court agrees with the parties that the deadlines for motions to compel are solely the 30 day deadline in the court's Scheduling Order (Doc. No. 105) at 2 and the timetable set forth in the Telephone Conference of November 4, 2009 (Doc. No. 246); (2) the court agrees that filing of dispositive motions should follow the completion of discovery, which includes the resolution of any motion to compel and resulting orders which schedule compliance with an order to compel; and (3) the court orders the parties to confer and file within seven (7) days of the court's ruling on

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 26 of 39

11/25/2009 11/30/2009 11/30/2009 11/30/2009 11/30/2009
11/30/2009 11/30/2009 12/01/2009 12/01/2009 12/01/2009
12/01/2009 12/02/2009

the last disputed discovery issue (not seven (7) days after compliance). For the parties' information, the court expects that any dispositive motions would typically be filed by a party thirty (30) days after compliance by its opposing party with any court ruling compelling discovery of that opposing party. SO ORDERED by Judge Janet C. Hall on 11/24/09. (Volek, J.) (Entered: 11/24/2009)
264 RESPONSE re 252 MOTION to Compel Privilege Logs From Defendant United States Or, In the Alternative, Extend Time to File Motion to Compel filed by USA. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Martin, Edward) (Entered: 11/25/2009)
265 Consent MOTION to Seal Portion of Transcript from 10−07−09 Hearing by USA. (Attachments: # 1 Ex. A)(Levine, Brant) (Entered: 11/30/2009)
266 REPLY to Response to 248 MOTION for Extension of Time until 11/27/2009 Discovery Deadline 247 MOTION to Seal Exhibits to Motion to Extend Discovery Deadline Notice of Manual Filing filed by Rashad Ahmad Refaat El Badrawi. (Attachments: # 1 Affidavit Martinez Declaration, # 2 Exhibit 1, # 3 Exhibit 3)(Wishnie, Michael) (Entered: 11/30/2009)
267 MOTION to Seal Reply Memorandum and Exhibit 2 to Martinez Decl. for Doc. 266 by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 11/30/2009)
268 FILED UNDER SEAL PURSUANT TO COURT ORDER #311 − MOTION to Compel Production of Documents by Rashad Ahmad Refaat El Badrawi.Responses due by 12/21/2009 (Attachments: # 1 Affidavit Declaration of Naveed Rashid, # 2 Exhibit Exhibit A, # 3 Supplement Notice of Manual Filing of Memorandum and Exhibits)(Wishnie, Michael) Modified on 1/20/2010 (Simpson, T.). (Entered: 11/30/2009)
269 MOTION to Seal Memorandum in Support of Motion to Compel, Exhibits B, C, and D by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 11/30/2009)
270 MOTION to Compel by Rashad Ahmad Refaat El Badrawi.Responses due by 12/21/2009 (Attachments: # 1 Memorandum in Support, # 2 Affidavit Metcalf Declaration)(Wishnie, Michael) (Entered: 12/01/2009)
271 EXHIBIT by Rashad Ahmad Refaat El Badrawi re 270 MOTION to Compel. (Attachments: # 1 Exhibit 2, # 2 Exhibit 3, # 3 Exhibit 4, # 4 Exhibit 5, # 5 Exhibit 6, # 6 Exhibit 7, # 7 Exhibit 8, # 8 Exhibit 9, # 9 Exhibit 10, # 10 Exhibit 11, # 11 Exhibit 12, # 12 Exhibit 13)(Wishnie, Michael) (Entered: 12/01/2009)
272 ORDER granting 265 Motion to Seal; granting 267 Motion to Seal; granting 269 Motion to Seal. SO ORDERED by Judge Janet C. Hall on 12/1/2009. (DeRubeis, B.) (Entered: 12/01/2009)
273 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION., Telephone Conference set for 12/10/2009 11:00 AM in Chambers Room 417, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. The purpose of the Telephone Conference is for Oral Argument re: 242 MOTION to Alter Protected Status of Certain Documents, 248 MOTION for Extension of Time until 11/27/2009 Discovery Deadline, and 252 MOTION to Compel Privilege Logs From Defendant United States Or, In the Alternative, Extend Time to File Motion to Compel. Counsel are requested to participate in this conference via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554. (Volek, J.) (Entered: 12/01/2009)
276 Sealed Document: Reply Memorandum by Rashad Ahmad Refaat El Badrawi re 248 MOTION for Extension of Time until 11/27/2009 Discovery Deadline 247 MOTION to Seal Exhibits to Motion to Extend Discovery Deadline. (Simpson, T.) (Entered: 12/07/2009)
274 SEALED TRANSCRIPT of Proceedings held on October 7, 2009 before Judge Janet C. Hall. Court Reporter: Terri Fidanza. (Fidanza, T.) (Entered: 12/02/2009)

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 27 of 39

12/02/2009 12/07/2009
12/07/2009 12/07/2009
12/08/2009 12/08/2009 12/08/2009 12/08/2009 12/08/2009 12/08/2009 12/10/2009
12/17/2009 12/21/2009

275 Redaction of 219 Transcript,, held on October 7, 2009 before Judge Janet C. Hall for dates of October 7, 2009 Court Reporter: Terri Fidanza (Fidanza, T.) (Entered: 12/02/2009)
277 REPLY to Response to 242 MOTION Alter Protected Status of Certain Documents re 238 Order on Motion to Seal, 234 MOTION to Seal Memorandum in Support of Motion to Modify Protected Status of Certain Documents, and accompanying Exhibits MOTION Alter Protected Status of Certain Documents re 238 Order on Motion to Seal, 234 MOTION to Seal Memorandum in Support of Motion to Modify Protected Status of Certain Documents, and accompanying Exhibits filed by Rashad Ahmad Refaat El Badrawi. (Attachments: # 1 Exhibit Exhibit 1 (CT FOIA opinion))(Wishnie, Michael) (Entered: 12/07/2009)
278 MOTION to Seal Reply Brief in Support of Motion to Alter Protected Status of Certain Information by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 12/07/2009)
282 Sealed Document: by Rashad Ahmad Refaat El Badrawi re 242 MOTION Alter Protected Status of Certain Documents re 238 Order on Motion to Seal, 234 MOTION to Seal Memorandum in Support of Motion to Modify Protected Status of Certain Documents, and accompanying Exhibits MOTION Alter Protected Status of Certain Documents re 238 Order on Motion to Seal, 234 MOTION to Seal Memorandum in Support of Motion to Modify Protected Status of Certain Documents, and accompanying Exhibits. (S−Jaiman, R.) (Entered: 12/08/2009)
279 MOTION to Seal Reply Memorandum in Support of Motion to Compel Privilege Logs and Accompanying Exhibits B and C by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 12/08/2009)
280 REPLY to Response to 252 MOTION to Compel Privilege Logs From Defendant United States Or, In the Alternative, Extend Time to File Motion to Compel (Notice of Manual Filing) filed by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 12/08/2009)
281 ORDER granting 278 Motion to Seal. SO ORDERED by Judge Janet C. Hall on 12/8/09. (Volek, J.) (Entered: 12/08/2009)
283 Sealed Document: by Rashad Ahmad Refaat El Badrawi re 252 MOTION to Compel Privilege Logs From Defendant United States Or, In the Alternative, Extend Time to File Motion to Compel. (S−Jaiman, R.) (Entered: 12/08/2009)
284 ORDER granting 279 Motion to Seal. SO ORDERED by Judge Janet C. Hall on 12/8/09. (Volek, J.) (Entered: 12/08/2009)
297 Sealed Document: by Rashad Ahmad Refaat El Badrawi re 268 MOTION to Compel Production of Documents. (Jaiman, R.) (Entered: 12/30/2009)
285 Minute Entry. Telephone conference held on 12/10/2009 before Judge Janet C. Hall: granting in part and denying in part 242 Motion; granting in part and denying in part 248 Motion for Extension of Time; denying without prejudice to renew 252 Motion to Compel, all as provided in greater detail on the record. With respect to 252 Motion to Compel Privilege Logs, the time to file a motion to compel is extended to December 31, 2009. Defendants will then have 21 days to respond, after which plaintiff will have 14 days to reply. Plaintiff may renew its Motion to Compel Privilege Logs after defendants respond to any initial motion to compel that is filed before the December 31, 2009 deadline. SO ORDERED by Judge Janet C. Hall. Total Time: 1 hours and 45 minutes (Court Reporter T. Fidanza.) (Volek, J.) (Entered: 12/10/2009)
286 SEALED TRANSCRIPT of Proceedings held on December 10, 2009 before Judge Janet C. Hall. Court Reporter: Terri Fidanza. (Fidanza, T.) (Entered: 12/17/2009)
287 MOTION to Compel Production of Documents by Rashad Ahmad Refaat El Badrawi.Responses due by 1/11/2010 (Attachments: # 1 Affidavit Declaration of Daniel Mullkoff, # 2 Supplement Notice of Manual Filing of Memorandum of Law and Exhibits)(Wishnie, Michael) (Entered: 12/21/2009)

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 28 of 39

12/21/2009 12/21/2009
12/21/2009 12/22/2009 12/22/2009 12/23/2009 12/23/2009 12/23/2009 12/28/2009 12/28/2009 01/05/2010
01/05/2010 01/06/2010
01/06/2010
01/07/2010
01/07/2010 01/07/2010

288 MOTION to Seal Memorandum of Law in Support of Motion to Compel, Dkt. #287, and Exhibits by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 12/21/2009)
289 First MOTION for Extension of Time until December 23, 2009 To file opposition to plaintiffs 270 motions to compel production by Charles L. Lee, Albert Pitts, Thomas McGrail. (Murphy−Osborne, Maura) Modified on 6/14/2010 TO LINK TO DOC #270 (Simpson, T.). (Entered: 12/21/2009)
298 Sealed Document: by Rashad Ahmad Refaat El Badrawi re 287 MOTION to Compel Production of Documents. (Attachments: # 1 Exhibit A−C)(Jaiman, R.) (Entered: 12/30/2009)
290 ORDER granting 288 Motion to Seal; granting 289 Motion for Extension of Time. SO ORDERED by Judge Janet C. Hall on 12/22/2009. (DeRubeis, B.) (Entered: 12/22/2009)
291 Set/Reset Deadlines as to 270 MOTION to Compel. Responses due by 12/23/2009 (DeRubeis, B.) (Entered: 12/22/2009)
292 MOTION to Seal Opposition to Motion to Compel by USA. (Martin, Edward) (Entered: 12/23/2009)
293 Memorandum in Opposition re 268 MOTION to Compel Production of Documents filed by USA. (Martin, Edward) (Entered: 12/23/2009)
294 Memorandum in Opposition re 270 MOTION to Compel filed by Charles L. Lee, Albert Pitts, Thomas McGrail. (Attachments: # 1 Affidavit of Maura Murphy Osborne)(Murphy−Osborne, Maura) (Entered: 12/23/2009)
295 ORDER granting 292 Motion to Seal. SO ORDERED by Judge Janet C. Hall on 12/28/09. (Volek, J.) (Entered: 12/28/2009)
296 Sealed Document: by USA re 268 MOTION to Compel Production of Documents. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Jaiman, R.) (Entered: 12/30/2009)
299 Consent MOTION for Extension of Time until 01/11/2010 File Reply Memorandum 293 Memorandum in Opposition to Motion, 268 MOTION to Compel Production of Documents by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 01/05/2010)
305 AFFIDAVIT re 294 Memorandum in Opposition to Motion Signed By Maura Murphy Osborne filed by Charles L. Lee, Albert Pitts, Thomas McGrail. (Jaiman, R.) (Entered: 01/08/2010)
300 ORDER granting 299 Consent MOTION for Extension of Time until 01/11/2010 File Reply Memorandum to 293 Memorandum in Opposition to 268 MOTION to Compel Production of Documents by Rashad Ahmad Refaat El Badrawi. SO ORDERED by Judge Janet C. Hall on 1/6/2010. (DeRubeis, B.) (Entered: 01/06/2010)
301 Consent MOTION for Extension of Time until 12/8/2010 to File Plaintiff's Reply Memorandum relating to Plaintiff's Motion to Compel Production of Documents 270 MOTION to Compel, 294 Memorandum in Opposition to Motion by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 01/06/2010)
302 ORDER granting 301 Consent MOTION for Extension of Time until 12/8/2010 to File Plaintiff's Reply Memorandum relating to Plaintiff's 270 MOTION to Compel by Rashad Ahmad Refaat El Badrawi. SO ORDERED by Judge Janet C. Hall on 1/7/2010. (DeRubeis, B.) (Entered: 01/07/2010)
303 Set/Reset Deadlines as to 270 MOTION to Compel. Reply due by 1/8/2010 (DeRubeis, B.) (Entered: 01/07/2010)
304 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION., Telephone conference re: 268 MOTION to Compel Production of Documents, 270 MOTION

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 29 of 39

01/08/2010 01/08/2010 01/11/2010 01/11/2010 01/11/2010 01/12/2010
01/13/2010 01/13/2010 01/14/2010 01/15/2010
01/19/2010 01/19/2010 01/20/2010

to Compel set for 1/19/2010 02:00 PM in Chambers Room 417, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. Counsel are requested to participate in this conference via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554. (Volek, J.) (Entered: 01/07/2010)
Docket Entry Correction... Modified as affidavit was missing page 5 re 294 Memorandum in Opposition to Motion, 305 Affidavit (Jaiman, R.) (Entered: 01/08/2010)
306 RESPONSE re 270 MOTION to Compel, 294 Memorandum in Opposition to Motion filed by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 01/08/2010)
307 MOTION to Seal Reply Brief in Support of Motion to Compel, Dkt. #268, Exhibit E by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 01/11/2010)
308 REPLY to Response to 268 MOTION to Compel Production of Documents (Notice of Manual Filing) filed by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 01/11/2010)
316 Sealed Document: Plaintiff's Reply Brief in Support of Motion to Compel Production of Documents by Rashad Ahmad Refaat El Badrawi re 268 MOTION to Compel Production of Documents. (Attachments: # 1 Exhibit E)(Simpson, T.) (Entered: 01/21/2010)
309 NOTICE OF AMENDED E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone Conference set for 1/19/2010 re: Motions to Compel has been changed to 3:00 PM in Chambers Room 417, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554. (Amended calendar as to time change only.) (DeRubeis, B.) (Entered: 01/12/2010)
310 Consent MOTION to Seal Opposition to the Plaintiff's Motion to Compel by USA. (Martin, Edward) (Entered: 01/13/2010)
311 ORDER granting 307 Motion to Seal. SO ORDERED by Judge Janet C. Hall on 1/13/10. (Volek, J.) (Entered: 01/13/2010)
312 Memorandum in Opposition re 287 MOTION to Compel Production of Documents filed by USA. (Martin, Edward) (Entered: 01/14/2010)
313 NOTICE OF RESCHEDULED E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone Conference set for 1/19/2010 re: Motions to Compel has been changed to 3:30 PM in Chambers Room 417, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554. (Amended calendar as to time change only.)(Volek, J.) (Entered: 01/15/2010)
314 Minute Entry. Telephone Conference held on 1/19/10 before Judge Janet C. Hall: granting in part and denying in part 268 Motion to Compel as stated on the record. 40 minutes (Court Reporter T. Fidanza.) (Volek, J.) (Entered: 01/19/2010)
315 ORDER terminating 270 Motion to Compel. SO ORDERED by Judge Janet C. Hall on 1/19/10. (Volek, J.) (Entered: 01/19/2010)
Docket Entry Correction re 268 MOTION to Compel Production of Documents MODIFIED TO NOTE DOCUMENT HAS BEEN FILED UNDER SEAL PURSUANT TO COURT ORDER #311 (Simpson, T.) (Entered: 01/20/2010)

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 30 of 39

01/26/2010
01/26/2010 01/27/2010 01/28/2010
01/28/2010 02/04/2010 02/04/2010 02/04/2010 02/08/2010 02/08/2010
02/19/2010 02/22/2010

317 TRANSCRIPT of Proceedings held on January 19, 2010 before Judge Janet C. Hall. Court Reporter: Terri Fidanza. Type of Hearing: Telephone Conference. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 2/16/2010. Redacted Transcript Deadline set for 2/26/2010. Release of Transcript Restriction set for 4/26/2010. (Fidanza, T.) (Entered: 01/26/2010)
318 Consent MOTION To Supplement re 312 Memorandum in Opposition to Motion to Compel by USA.Responses due by 2/16/2010 (Attachments: # 1 Supplement)(Martin, Edward) (Entered: 01/26/2010)
319 Consent MOTION for Extension of Time until 2/4/2010 File Reply Memorandum 318 Consent MOTION To Supplement re 312 Memorandum in Opposition to Motion to Compel, 312 Memorandum in Opposition to Motion, 287 MOTION to Compel Production of Documents by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 01/27/2010)
320 ORDER granting 318 Consent MOTION To Supplement re 312 Memorandum in Opposition to Motion to Compel by USA; granting 319 Motion for Extension of Time until 2/4/2010 File Reply Memorandum 318 Consent MOTION To Supplement re 312 Memorandum in Opposition to 287 MOTION to Compel Production of Documents by Rashad Ahmad Refaat El Badraw Motion. SO ORDERED by Judge Janet C. Hall on 1/28/2010. (DeRubeis, B.) (Entered: 01/28/2010)
Reset Deadlines as to 287 MOTION to Compel Production of Documents. Responses due by 2/4/2010 (Simpson, T.) (Entered: 01/29/2010)
321 MOTION to Seal Reply Memorandum in Support of Motion to Compel and Exhibit D by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 02/04/2010)
322 REPLY to Response to 287 MOTION to Compel Production of Documents (Notice of Manual Filing) filed by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 02/04/2010)
325 Sealed Document: Reply to Response to 287 MOTION to Compel Production of Documents by Rashad Ahmad Refaat El Badrawi (Gutierrez, Y.) (Entered: 02/08/2010)
323 ORDER granting 321 MOTION to Seal Reply Memorandum in Support of Motion to Compel and Exhibit D by Rashad Ahmad Refaat El Badrawi. SO ORDERED by Judge Janet C. Hall on 2/5/2010. (DeRubeis, B.) (Entered: 02/08/2010)
324 Sealed Document: Memorandum in Opposition by FBI, USA, Department of Homeland Security re 312 Memorandum in Opposition to 287 MOTION to Compel Production of Documents. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit)(Gutierrez, Y.) Modified on 2/26/2010 (S−Gutierrez, Y.). (Entered: 02/08/2010)
326 ORDER granting 310 Consent MOTION to Seal Opposition to the Plaintiff's Motion to Compel by USA. SO ORDERED by Judge Janet C. Hall on 2/19/2010. (DeRubeis, B.) (Entered: 02/19/2010)
327 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone conference re: 287 MOTION to Compel set for 3/5/2010 03:30 PM in Chambers Room 417, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. Counsel are requested to participate in this conference via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554. (Volek, J.) (Entered: 02/22/2010)

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 31 of 39

02/25/2010
03/04/2010 03/05/2010 03/05/2010 03/08/2010 03/22/2010
03/24/2010
03/26/2010 03/30/2010

328 NOTICE OF rescheduled E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone Conference re: 287 MOTION to Compel has been RESCHEDULED for 3/5/2010 12:00 PM in Chambers Room 417, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. Counsel are requested to participate in this conference via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554. (Conference rescheduled as to time only). (Volek, J.) (Entered: 02/25/2010)
329 Consent MOTION for Settlement Conference by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 03/04/2010)
330 ORDER granting 329 Consent MOTION for Settlement Conference by Rashad Ahmad Refaat El Badrawi. SO ORDERED by Judge Janet C. Hall on 3/5/2010. (DeRubeis, B.) (Entered: 03/05/2010)
331 Minute Entry. Proceedings held before Judge Janet C. Hall: Telephone Conference held on 3/5/2010, granting in part 287 Motion to Compel as articulated in greater detail on the record. Total Time: 1 hour. (Court Reporter T. Fidanza.)(Volek, J.) (Entered: 03/05/2010)
332 ORDER REFERRING CASE to Magistrate Judge William I. Garfinkel for Settlement Conference. So Ordered by Judge Janet C. Hall on 3/8/10. (Gutierrez, Y.) (Entered: 03/10/2010)
333 TRANSCRIPT of Proceedings held on March 5, 2010 before Judge Janet C. Hall. Court Reporter: Terri Fidanza. Type of Hearing: Telephonic Conference. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 4/12/2010. Redacted Transcript Deadline set for 4/22/2010. Release of Transcript Restriction set for 6/20/2010. (Fidanza, T.) (Entered: 03/22/2010)
334 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.Telephone Pre−Settlement Conference is scheduled for March 26, 2010 @ 2:30 PM before Judge William I. Garfinkel. Counsel (Brant Levine) for the defendant, shall initiate this call. Once all parties are on the line, please contact Chambers at (203)579−5593. A date for the settlement conference will be set during the telephone call. As the Court requires parties or their representatives with settlement authority to attend the settlement conference, counsel should obtain dates of unavailability from their clients over the next 120 days and have their own calendars available to aid in the scheduling. During the telephone call, counsel should be prepared to discuss what information needs to be exchanged and anything else that needs to be accomplished prior to the settlement conference for the discussions to be productive. This telephone conference will not be rescheduled based on requests from counsel. If counsel is not available at the scheduled time, please arrange for coverage by another lawyer who will have the necessary background knowledge to participate. (Sanders, C.) (Entered: 03/24/2010)
335 Minute Entry for proceedings held before Judge William I. Garfinkel: Telephone Pre−Settlement Conference held on 3/26/2010. 30 minutes (Sanders, C.) (Entered: 03/26/2010)
336 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Settlement Conference to include the state case is set for June 8, 2010 @ 10:00 AM before Judge William I. Garfinkel. Counsel shall check in with Judge Garfinkel's chambers, room 429 prior to the conference, during that time a courtroom will be provided. PLEASE REVIEW THE SETTLEMENT CONFERENCE ORDER ATTACHED. (Sanders, C.) (Entered: 03/30/2010)

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 32 of 39

04/30/2010 04/30/2010 05/03/2010 06/02/2010 06/07/2010 06/08/2010 06/15/2010 06/17/2010
08/26/2010 08/27/2010 08/27/2010 08/30/2010 08/31/2010
08/31/2010 09/07/2010

337 MOTION for Leave to Appear Pro Hac Vice Attorney Sameer Ahmed. Filing Fee $25.00. Receipt Number B019634. by Rashad Ahmad Refaat El Badrawi. (Attachments: # 1 Affidavit of Sameer Ahmed)(Simpson, T.) (Entered: 04/30/2010)
338 ORDER granting 337 Motion for Attorney Sameer Ahmed to Appear Pro Hac Vice. Signed by Clerk on 4/30/2010. (Simpson, T.) (Entered: 04/30/2010)
339 NOTICE of Appearance by Sameer Ahmed on behalf of Rashad Ahmad Refaat El Badrawi (Ahmed, Sameer) (Entered: 05/03/2010)
340 Joint MOTION for Extension of Time until June 15, 2010 to file a briefing schedule 262 Order on Motion for Miscellaneous Relief,,,, by Rashad Ahmad Refaat El Badrawi, Charles L. Lee, Thomas McGrail, Albert Pitts, USA. (Levine, Brant) (Entered: 06/02/2010)
341 ORDER granting 340 Motion for Extension of Time. SO ORDERED by Judge Janet C. Hall on 6/7/10. (Volek, J.) (Entered: 06/07/2010)
342 Minute Entry for proceedings held before Judge William I. Garfinkel: Settlement Conference held on 6/8/2010. Case not settled. Mediation discussions ongoing. Counsel are instructed to follow−up with the court. Total Time: 10 hours (Sanders, C.) (Entered: 06/09/2010)
343 PROPOSED ORDER regarding briefing schedule for summary judgment motions by Rashad Ahmad Refaat El Badrawi, Charles L. Lee, Thomas McGrail, Albert Pitts, USA. (Levine, Brant) (Entered: 06/15/2010)
344 ORDER re 343 Proposed Order filed by Rashad Ahmad Refaat El Badrawi, Charles L. Lee, Albert Pitts, Thomas McGrail, USA. The court reluctantly grants this expanded schedule in a case now 3 years old. The court does not intend to grant any extensions of these deadlines. (Dispositive Motions due by 8/30/2010; opposition/cross motions due 10/14/2010; defendant's reply due 11/15/2010, and plaintiff's reply due 12/6/2010). SO ORDERED by Judge Janet C. Hall on 6/17/2010. (DeRubeis, B.) (Entered: 06/17/2010)
345 Consent MOTION to Seal Motion for Summary Judgment Related Pleadings by USA. (Martin, Edward) (Entered: 08/26/2010)
346 ORDER granting 345 Consent MOTION to Seal Motion for Summary Judgment Related Pleadings by USA. SO ORDERED by Judge Janet C. Hall on 8/27/2010. (DeRubeis, B.) (Entered: 08/27/2010)
347 First MOTION for Extension of Time until September 10, 2010 file Motion for Summary Judgment by Charles L. Lee, Thomas McGrail, Albert Pitts. (Murphy−Osborne, Maura) (Entered: 08/27/2010)
348 MOTION for Summary Judgment by USA.Responses due by 9/20/2010 (Attachments: # 1 Memorandum in Support, # 2 Statement of Material Facts, # 3 Exhibits)(Levine, Brant) (Entered: 08/30/2010)
349 ORDER granting 347 First MOTION for Extension of Time until September 10, 2010 file Motion for Summary Judgment by Charles L. Lee, Thomas McGrail, Albert Pitts. The court very reluctantly grants this Motion. The court set August 30 over 2 months ago. If counsel can not organize her work load to prepare a summary judgment motion in a case that is 3 years old within 2 months, then counsel should advise her supervisor or the Attorney General that the workload is excessive and must be reassigned. In the future, the court does not intend to grant any further extensions. Further, the court notes counsel failed to comply with the Local Rules. Plaintiff's deadline is extended accordingly. SO ORDERED by Judge Janet C. Hall on 8/31/2010. (DeRubeis, B.) (Entered: 08/31/2010)
Set Deadlines/Hearings: Dispositive Motions due by 9/10/2010 (DeRubeis, B.) (Entered: 08/31/2010)
350 MOTION for Leave to File Brief in Excess of 40 Pages by Charles L. Lee, Thomas McGrail, Albert Pitts. (Murphy−Osborne, Maura) (Entered: 09/07/2010)

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 33 of 39

09/08/2010 09/10/2010 09/10/2010 09/10/2010 09/10/2010 09/10/2010 09/10/2010 09/10/2010 09/10/2010 09/10/2010 09/10/2010 09/13/2010 09/13/2010 09/14/2010 10/07/2010 10/08/2010

351 ORDER granting 350 MOTION for Leave to File Brief in Excess of 40 Pages by Charles L. Lee, Thomas McGrail, Albert Pitts. Motion is granted for 50 pages. SO ORDERED by Judge Janet C. Hall on 9/8/2010. (DeRubeis, B.) (Entered: 09/08/2010)
352 MOTION for Summary Judgment by Charles L. Lee, Thomas McGrail, Albert Pitts. Responses due by 10/1/2010 (Attachments: # 1 Memorandum in Support)(Murphy−Osborne, Maura) (Additional attachment(s) added on 9/10/2010: # 2 MAIN DOCUMENT) (Simpson, T.). (Entered: 09/10/2010)
353 EXHIBIT 1 − 10 by Charles L. Lee, Thomas McGrail, Albert Pitts re 352 MOTION for Summary Judgment. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit)(Murphy−Osborne, Maura) (Entered: 09/10/2010)
354 EXHIBIT 11−20 by Charles L. Lee, Thomas McGrail, Albert Pitts re 352 MOTION for Summary Judgment. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit)(Murphy−Osborne, Maura) (Entered: 09/10/2010)
355 EXHIBIT 21−29 by Charles L. Lee, Thomas McGrail, Albert Pitts re 352 MOTION for Summary Judgment. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit)(Murphy−Osborne, Maura) (Entered: 09/10/2010)
356 EXHIBIT 30 pgs 1−50 by Charles L. Lee, Thomas McGrail, Albert Pitts re 352 MOTION for Summary Judgment. (Attachments: # 1 Exhibit)(Murphy−Osborne, Maura) (Entered: 09/10/2010)
357 EXHIBIT 30 pgs 51−106 by Charles L. Lee, Thomas McGrail, Albert Pitts re 352 MOTION for Summary Judgment. (Attachments: # 1 Exhibit)(Murphy−Osborne, Maura) (Entered: 09/10/2010)
358 EXHIBIT 31−35 by Charles L. Lee, Thomas McGrail, Albert Pitts re 352 MOTION for Summary Judgment. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Murphy−Osborne, Maura) (Entered: 09/10/2010)
359 Statement of Material Facts re 352 MOTION for Summary Judgment filed by Charles L. Lee, Thomas McGrail, Albert Pitts. (Attachments: # 1 Statement of Material Facts)(Murphy−Osborne, Maura) (Simpson, T.). (Entered: 09/10/2010)
360 MOTION to Seal Exhibits by Charles L. Lee, Thomas McGrail, Albert Pitts. (Murphy−Osborne, Maura) (Entered: 09/10/2010)
361 Docket Entry Correction re 352 MOTION for Summary Judgment MODIFIED TO ADD CORRECTED PDF DOCUMENT TO THE DOCKET ENTRY AND REMOVE THE INCORRECT (Simpson, T.) (Entered: 09/10/2010)
362 Docket Entry Correction re 359 Statement of Material Facts MODIFIED TO ADD CORRECTED PDF DOCUMENT TO THE DOCKET ENTRY AND REMOVE THE INCORRECT (Simpson, T.) (Entered: 09/13/2010)
363 Sealed Document: Exhibits 1−4, 6−7, 26 and 31 MANUALLY FILED IN PAPER FORM by Charles L. Lee, Thomas McGrail, Albert Pitts re 352 MOTION for Summary Judgment. (Simpson, T.) (Entered: 09/13/2010)
364 Memorandum in Support re 352 MOTION for Summary Judgment (Corrected) filed by Charles L. Lee, Thomas McGrail, Albert Pitts. (Murphy−Osborne, Maura) (Entered: 09/14/2010)
365 First MOTION for Extension of Time to File Response/Reply as to 352 MOTION for Summary Judgment until 11/04/2010 by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 10/07/2010)
366 ORDER granting 365 Motion for Extension of Time to File Response/Reply re 352 MOTION for Summary Judgment. Responses due by 11/4/2010. SO ORDERED by Judge Janet C. Hall on 10/8/2010. (DeRubeis, B.) (Entered: 10/08/2010)

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 34 of 39

10/08/2010 10/12/2010 10/13/2010
10/13/2010 10/14/2010 10/14/2010 10/14/2010 10/14/2010
10/14/2010
10/15/2010 10/18/2010 11/02/2010 11/02/2010 11/03/2010 11/03/2010 11/04/2010

Set/Reset Deadlines as to 352 MOTION for Summary Judgment. Responses due by 11/4/2010 (Payton, R.) (Entered: 10/12/2010)
367 Consent MOTION for Leave to File Excess Pages in Response to United States' Motion for Summary Judgment and for Plaintiff's Cross−Motion for Summary Judgment by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 10/12/2010)
368 ORDER granting 367 Consent MOTION for Leave to File Excess Pages in Response to United States' Motion for Summary Judgment and for Plaintiff's Cross−Motion for Summary Judgment by Rashad Ahmad Refaat El Badrawi. SO ORDERED by Judge Janet C. Hall on 10/13/2010. (DeRubeis, B.) (Entered: 10/13/2010)
369 Consent MOTION to Seal Plaintiff's Opposition to Motion for Summary Judgment by the USA and Plaintiff's Cross−Motion for Summary Judgment by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 10/13/2010)
370 Memorandum in Opposition (Notice of Manual Filing) re 348 MOTION for Summary Judgment filed by Rashad Ahmad Refaat El Badrawi. (Attachments: # 1 Cross−Motion for Summary Judgment, # 2 Motion to Strike)(Wishnie, Michael) (Entered: 10/14/2010)
371 Amicus Curiae APPEARANCE entered by Michael J. Boyle on behalf of American Immigration Council. (Boyle, Michael) (Entered: 10/14/2010)
372 First MOTION for Extension of Time until 11/05/2010 o file an amicus brief in support of Plaintiffs Response to Defendants Motion for Summary Judgment and Plaintiffs Cross−Motion for Summary Judgment by American Immigration Council. (Boyle, Michael) (Entered: 10/14/2010)
374 CROSS MOTION for Summary Judgment, MOTION to Strike by Rashad Ahmad Refaat El Badrawi. ORIGINALLY E−FILED IN ERROR AS PART OF DOCUMENT #370; REDOCKETED TO PROPERLY IDENTIFY AS A THREE PART DOCUMENT. Responses due by 11/4/2010 (Simpson, T.) (Entered: 10/15/2010)
378 Sealed Document: Memorandum of law in Opposition by Rashad Ahmad Refaat El Badrawi re 348 MOTION for Summary Judgment. (Attachments: # 1 Local Rule 56(a)(1) statement, # 2 Local Rule 56(a)(2) statement, # 3 Affidavit of Saurabh Sanghvi, # 4 Exhibit 1−47 SUBMITTED UNDER SEAL TO THE CHAMBERS OF JUDGE JANET C. HALL)(Simpson, T.) (Entered: 11/03/2010)
373 ORDER granting 369 Consent MOTION to Seal Plaintiff's Opposition to Motion for Summary Judgment by the USA and Plaintiff's Cross−Motion for Summary Judgment by Rashad Ahmad Refaat El Badrawi. SO ORDERED by Judge Janet C. Hall on 10/15/2010. (DeRubeis, B.) (Entered: 10/15/2010)
375 ORDER granting 372 Motion for Extension of Time. Signed by Judge Janet C. Hall on 10/18/10. (Hobbs, J.) (Entered: 10/18/2010)
376 Consent MOTION for Leave to File Excess Pages in Response to State Defendants' Motion for Summary Judgment by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 11/02/2010)
379 MOTION for Leave to Appear Pro Hac Vice Attorney Melissa E. Crow. Filing Fee $25.00. Receipt Number B020541. by American Immigration Council. (Simpson, T.) (Entered: 11/03/2010)
377 ORDER granting 376 Consent MOTION for Leave to File Excess Pages in Response to State Defendants' Motion for Summary Judgment by Rashad Ahmad Refaat El Badrawi. SO ORDERED by Judge Janet C. Hall on 11/3/2010. (DeRubeis, B.) (Entered: 11/03/2010)
380 ORDER granting 379 Motion for Attorney Melissa E. Crow to Appear Pro Hac Vice. Signed by Clerk on 11/3/2010. (Simpson, T.) (Entered: 11/03/2010)
381 NOTICE of Appearance by Melissa E. Crow on behalf of American Immigration Council (Crow, Melissa) (Entered: 11/04/2010)

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 35 of 39

11/05/2010 11/05/2010 11/05/2010
11/05/2010 11/09/2010 11/15/2010 11/15/2010 11/24/2010 12/02/2010 12/02/2010 12/03/2010
12/06/2010 12/06/2010 12/06/2010 12/06/2010 12/07/2010

382 Memorandum in Opposition re 352 MOTION for Summary Judgment filed by Rashad Ahmad Refaat El Badrawi. (Attachments: # 1 Statement of Material Facts, # 2 Affidavit, # 3 Exhibit)(Wishnie, Michael) (Entered: 11/05/2010)
383 EXHIBIT by Rashad Ahmad Refaat El Badrawi re 382 Memorandum in Opposition to Motion. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit)(Wishnie, Michael) (Entered: 11/05/2010)
384 EXHIBIT by Rashad Ahmad Refaat El Badrawi re 382 Memorandum in Opposition to Motion. (Attachments: # 1 Exhibit Exhibit 14 Part 1/4, # 2 Exhibit Exhibit 14 Part 2/4, # 3 Exhibit Exhibit 14 Part 3/4, # 4 Exhibit Exhibit 14 Part 4/4, # 5 Exhibit Exhibit 15, # 6 Exhibit Exhibit 16, # 7 Exhibit Exhibit 17, # 8 Exhibit Exhibit 18, # 9 Exhibit Exhibit 19, # 10 Exhibit Exhibit 20, # 11 Exhibit Exhibit 21 Part 1/2, # 12 Exhibit Exhibit 21 Part 2/2, # 13 Exhibit Exhibit 22, # 14 Exhibit Exhibit 23, # 15 Exhibit Exhibit 24, # 16 Exhibit Exhibit 25, # 17 Exhibit Exhibit 26, # 18 Exhibit Exhibit 27, # 19 Exhibit Exhibit 28)(Wishnie, Michael) (Entered: 11/05/2010)
385 Third Party RESPONSE Brief of Amici Curiae filed by American Immigration Council. (Crow, Melissa) (Entered: 11/05/2010)
386 MOTION for Leave to File Response to Amicus Brief by USA. (Martin, Edward) (Entered: 11/09/2010)
387 ORDER granting 386 MOTION for Leave to File Response to Amicus Brief by USA. SO ORDERED by Judge Janet C. Hall on 11/15/2010. (DeRubeis, B.) (Entered: 11/15/2010)
388 Memorandum in Opposition re 374 MOTION for Summary Judgment MOTION to Strike filed by USA. (Attachments: # 1 Statement of Material Facts, # 2 Exhibit)(Levine, Brant) (Entered: 11/15/2010)
389 RESPONSE re 385 Response to Amici's Memorandum filed by USA. (Attachments: # 1 Exhibit)(Levine, Brant) (Entered: 11/24/2010)
390 Consent MOTION for Leave to File Excess Pages in Reply to United States' Opposition to Plaintiff's Motion for Summary Judgment by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 12/02/2010)
391 MOTION for Leave to File Excess Pages by Charles L. Lee, Thomas McGrail, Albert Pitts. (Murphy−Osborne, Maura) (Entered: 12/02/2010)
392 ORDER granting 390 Consent MOTION for Leave to File Excess Pages in Reply to United States' Opposition to Plaintiff's Motion for Summary Judgment by Rashad Ahmad Refaat El Badrawi; granting 391 Motion for Leave to File Excess Pages by Charles L. Lee, Thomas McGrail, Albert PittsMotion for Leave to File Excess Pages. SO ORDERED by Judge Janet C. Hall on 12/3/2010. (DeRubeis, B.) (Entered: 12/03/2010)
393 Consent MOTION to Seal Plaintiff's Reply Memorandum in Support of Cross−Motion for Summary Judgment and Motion to Strike by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 12/06/2010)
394 REPLY to Response to 374 MOTION for Summary Judgment MOTION to Strike (Notice of Manual Filing) filed by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 12/06/2010)
395 REPLY to Response to 352 MOTION for Summary Judgment filed by Charles L. Lee, Thomas McGrail, Albert Pitts. (Murphy−Osborne, Maura) (Entered: 12/06/2010)
398 Sealed Document: Plaintiff's Reply in Support of Cross−Motion for Summary Judgment and Motion to Strike by Rashad Ahmad Refaat El Badrawi re 374 MOTION for Summary Judgment MOTION to Strike. (Simpson, T.) (Entered: 12/07/2010)
396 EXHIBIT A to State Defendants' Reply Brief by Charles L. Lee, Thomas McGrail, Albert Pitts re 395 Reply to Response to Motion. (Murphy−Osborne, Maura)

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 36 of 39

12/07/2010 12/10/2010 12/13/2010 12/20/2010 01/12/2011 01/12/2011 01/13/2011 01/25/2011 01/25/2011 01/25/2011 02/01/2011
02/04/2011 02/07/2011 02/07/2011
02/15/2011 02/16/2011

(Simpson, T.). (Entered: 12/07/2010)
397 ORDER granting 393 Consent MOTION to Seal Plaintiff's Reply Memorandum in Support of Cross−Motion for Summary Judgment and Motion to Strike by Rashad Ahmad Refaat El Badrawi. SO ORDERED by Judge Janet C. Hall on 12/7/2010. (DeRubeis, B.) (Entered: 12/07/2010)
399 Docket Entry Correction re 396 Exhibit MODIFIED TO ADD CORRECTED PDF DOCUMENT TO THE DOCKET ENTRY (Simpson, T.) (Entered: 12/10/2010)
400 ORDER. The court orders that docket number 383−3 shall be sealed immediately. Plaintiff shall file a redacted copy on the public record within five days. So ordered by Judge Janet C. Hall on 12/13/2010. (Hobbs, J.) (Entered: 12/13/2010)
401 EXHIBIT by Rashad Ahmad Refaat El Badrawi re 382 Memorandum in Opposition to Motion. (Wishnie, Michael) (Entered: 12/20/2010)
402 Joint MOTION to Seal Report of Violation of the Court's Protective Order and Motion to Amend the Court's Protective Order by Rashad Ahmad Refaat El Badrawi, USA. (Levine, Brant) (Entered: 01/12/2011)
403 Joint MOTION to Amend/Correct 159 Order on Motion for Protective Order and Report of Violation of the Protective Order by Rashad Ahmad Refaat El Badrawi, USA.Responses due by 2/2/2011 (Levine, Brant) (Entered: 01/12/2011)
404 ORDER granting 402 Motion to Seal; granting 403 Motion to Amend/Correct. SO ORDERED by Judge Janet C. Hall on 1/13/2011. (DeRubeis, B.) (Entered: 01/13/2011)
405 Memorandum in Opposition (Public version of memorandum filed under seal) re 348 MOTION for Summary Judgment filed by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 01/25/2011)
406 Memorandum in Support re 374 MOTION for Summary Judgment MOTION to Strike (Public version of memorandum filed under seal) filed by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 01/25/2011)
407 REPLY to Response to 374 MOTION for Summary Judgment MOTION to Strike (Public version of memorandum filed under seal) filed by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 01/25/2011)
408 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Oral Argument set for 2/17/2011 11:00 AM in Courtroom Two, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. (Hobbs, J.) (Entered: 02/01/2011)
409 Consent MOTION to Continue Oral Argument by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 02/04/2011)
410 ORDER granting 409 Motion to Continue Oral Argument. Calendar entry will follow. SO ORDERED by Judge Janet C. Hall on 02/07/2011. (Hobbs, J.) (Entered: 02/07/2011)
411 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Oral Argument re 348 &374 Cross−Motions for Summary Judgment on claims against federal government defendants is rescheduled for 2/23/2011 10:00 AM in Courtroom Two, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. (Hobbs, J.) (Entered: 02/07/2011)
412 Consent MOTION to Continue Motions for Summary Judgment Hearing by Department of Homeland Security, FBI, USA. (Martin, Edward) (Entered: 02/15/2011)
413 ORDER granting 412 Motion to Continue. Counsel are to contact chambers to identify an earlier date than March 23. SO ORDERED by Judge Janet C. Hall on 02/16/2011. (Hobbs, J.) (Entered: 02/16/2011)

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 37 of 39

02/17/2011
03/01/2011 03/01/2011 03/01/2011 03/03/2011 03/09/2011
03/10/2011 03/14/2011 03/30/2011 03/30/2011 03/31/2011 03/31/2011
04/01/2011
04/08/2011 04/11/2011

414 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Oral Argument on all parties' Summary Judgment Motions rescheduled for 3/9/2011 02:00 PM in Courtroom Two, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall (Hobbs, J.) (Entered: 02/17/2011)
415 NOTICE by Rashad Ahmad Refaat El Badrawi of Law Student Intern Appearance for Alex Iftimie (Wishnie, Michael) (Entered: 03/01/2011)
416 NOTICE by Rashad Ahmad Refaat El Badrawi of Law Student Intern Appearance for Alexander Post (Wishnie, Michael) (Entered: 03/01/2011)
417 NOTICE by Rashad Ahmad Refaat El Badrawi of Law Student Intern Appearance for Sirine Shebaya (Wishnie, Michael) (Entered: 03/01/2011)
418 Consent MOTION to Seal Courtroom During Motion for Summary Judgment Hearing by USA. (Martin, Edward) (Entered: 03/03/2011)
420 Minute Entry. Proceedings held before Judge Janet C. Hall: Motion Hearing held on 3/9/2011, taking under advisement 348 Motion for Summary Judgment; taking under advisement 352 Motion for Summary Judgment; granting 360 Motion to Seal; taking under advisement 374 Motion for Summary Judgment; taking under advisement 374 Motion to Strike; granting in part 418 Motion to Seal Courtroom. Parties agree that pursuant to the court's Ruling entered on 9/22/2008 Doc. No. 82 , defendants Dept. of Homeland Security, Gregory Manack, Michael Loser, Michael Chertoff, Robert Mueller and the FBI, are dismissed from this case. Total Time: 3 hours and 20 minutes(Court Reporter Terri Fidanza.) (DeRubeis, B.) (Entered: 03/10/2011)
419 MOTION to Withdraw Law Student Intern Appearance for Saurabh Sanghvi by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 03/10/2011)
421 ORDER granting 419 MOTION to Withdraw Law Student Intern Appearance for Saurabh Sanghvi by Rashad Ahmad Refaat El Badrawi. SO ORDERED by Judge Janet C. Hall on 3/12/2011. (DeRubeis, B.) (Entered: 03/14/2011)
422 NOTICE of Supplemental Authority by Charles L. Lee, Thomas McGrail, Albert Pitts (Attachments: # 1 Exhibit)(Simpson, T.) (Entered: 03/30/2011)
423 NOTICE. Plaintiff shall have 14 days to file a response to the Notice of Supplemental Authority 422 . SO ORDERED by Judge Janet C. Hall on 03/30/2011. (Hobbs, J.) (Entered: 03/30/2011)
424 SEALED RULING denying 348 MOTION for Summary Judgment, granting in part denying in part 374 CROSS MOTION for Summary Judgment, denying MOTION to Strike. Signed by Judge Janet C. Hall on 3/31/2011. (Simpson, T.) (Entered: 04/01/2011)
425 ORDER denying 348 Motion for Summary Judgment; granting in part and denying in part 374 Motion for Summary Judgment; denying 374 Motion to Strike, pursuant to court's Ruling 424 . SO ORDERED by Judge Janet C. Hall on 3/31/2011. (Simpson, T.) Modified on 4/1/2011 to add text to order (DeRubeis, B.). (Entered: 04/01/2011)
426 NOTICE re 424 Sealed Ruling. The court's Ruling has been docketed under seal in accordance with the parties' request. A copy of the Ruling will be made available on the public docket after 14 days. If the parties believe that any information contained in the Ruling should be redacted from the publicly accessible version, they are ordered to inform the court within 14 days. SO ORDERED by Judge Janet C. Hall on 03/31/2011. (Hobbs, J.) (Entered: 04/01/2011)
427 Consent NOTICE by USA re 426 Notice, of Proposed Redactions (Levine, Brant) (Entered: 04/08/2011)
428 CERTIFICATE OF SERVICE by USA re 427 Notice (Other) (Levine, Brant) (Entered: 04/11/2011)

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 38 of 39

04/11/2011 04/12/2011 04/12/2011 04/13/2011 04/14/2011 04/14/2011 04/14/2011 04/21/2011 04/22/2011 05/13/2011 05/16/2011 05/16/2011 05/16/2011 05/17/2011
05/20/2011
05/31/2011

429 RESPONSE re 422 Notice (Other) of Supplemental Authority filed by Rashad Ahmad Refaat El Badrawi. (Wishnie, Michael) (Entered: 04/11/2011)
430 ORDER re 427 Consent NOTICE by USA re 426 Notice, of Proposed Redactions. SO ORDERED by Judge Janet C. Hall on 4/11/2011. (DeRubeis, B.) (Entered: 04/12/2011)
431 PUBLIC VERSION of RULING re 424 Sealed Order denying 348 MOTION for Summary Judgment, granting in part denying in part 374 CROSS MOTION for Summary Judgment, denying MOTION to Strike. Signed by Judge Janet C. Hall on 4/11/2011. (Simpson, T.) (Entered: 04/12/2011)
432 Joint MOTION for Extension of Time until May 23, 2011 to file Joint Trial Memorandum 105 Scheduling Order, by Rashad Ahmad Refaat El Badrawi, USA. (Levine, Brant) (Entered: 04/13/2011)
433 ORDER granting 432 Joint MOTION for Extension of Time until May 23, 2011 to file Joint Trial Memorandum 105 Scheduling Order, by Rashad Ahmad Refaat El Badrawi, USA. SO ORDERED by Judge Janet C. Hall on 4/13/2011. (DeRubeis, B.) (Entered: 04/14/2011)
Set Deadlines/Hearings: Trial Brief due by 5/23/2011 (DeRubeis, B.) (Entered: 04/14/2011)
434 REPLY to Response to 352 MOTION for Summary Judgment filed by Charles L. Lee, Thomas McGrail, Albert Pitts. (Murphy−Osborne, Maura) (Entered: 04/14/2011)
435 Notice of Additional Authority re 352 MOTION for Summary Judgment filed by Rashad Ahmad Refaat El Badrawi. (Attachments: # 1 Sossamon v. Texas, No. 08−1438, 536 U.S. ___, (Apr. 20, 2011))(Wishnie, Michael) (Entered: 04/21/2011)
436 SEALED TRANSCRIPT of Proceedings held on March 9, 2011 before Judge Janet C. Hall. Court Reporter: Terri Fidanza. (Fidanza, T.) (Entered: 04/22/2011)
437 Joint MOTION for Extension of Time until June 13, 2011 to file Joint Trial Memorandum 105 Scheduling Order, by Rashad Ahmad Refaat El Badrawi, USA. (Wishnie, Michael) (Entered: 05/13/2011)
438 ORDER granting 437 Joint MOTION for Extension of Time until June 13, 2011 to file Joint Trial Memorandum 105 Scheduling Order, by Rashad Ahmad Refaat El Badrawi, USA. SO ORDERED by Judge Janet C. Hall on 5/16/2011. (DeRubeis, B.) (Entered: 05/16/2011)
Set Deadlines/Hearings: Trial Brief due by 6/13/2011 (DeRubeis, B.) (Entered: 05/16/2011)
439 RULING granting in part and denying in part 352 Motion for Summary Judgment. Signed by Judge Janet C. Hall on 5/16/2011. (Payton, R.) (Entered: 05/16/2011)
440 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephonic Status Conference set for 6/2/2011 10:30 AM in Chambers Room 417, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. Counsel are requested to participate in this conference, via telephone. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554. (DeRubeis, B.) (Entered: 05/17/2011)
441 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. Telephonic Status Conference rescheduled for 5/31/2011 12:30 PM in Chambers Room 417, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. This conference call is to be arranged between counsel. Once all parties are on the line, please telephone chambers at (203) 579−5554. (Hobbs, J.) (Entered: 05/20/2011)
442 Minute Entry for proceedings held before Judge Janet C. Hall: Status Conference held on 5/31/2011; Trial Brief deadline extended to 7/1/2011. Total Time: 15 minutes. (Court Reporter T. Fidanza) (Hobbs, J.) (Entered: 05/31/2011)

Case: 3:07-cv-01074-JCH As of: 10/11/2011 09:47 PM EDT 39 of 39

05/31/2011 06/16/2011 06/30/2011 07/07/2011 07/12/2011 07/12/2011
07/12/2011

443 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Bench Trial set to begin 11/1/2011 09:00 AM in Courtroom Two, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. (Hobbs, J.) (Entered: 05/31/2011)
444 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE.ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Trial Brief due by 7/1/2011. Pretrial Conference set for 9/28/2011 02:00 PM in Chambers Room 417, 915 Lafayette Blvd., Bridgeport, CT before Judge Janet C. Hall. (DeRubeis, B.) (Entered: 06/16/2011)
445 NOTICE TO COUNSEL: Pending Settlement, the Joint Trial Memorandum compliance date is extended to July 28, 2011. (Trial Brief due by 7/28/2011) SO ORDERED by Judge Janet C. Hall on 6/30/2011. (DeRubeis, B.) (Entered: 06/30/2011)
446 NOTICE of Voluntary Dismissal by Michael Chertoff, Department of Homeland Security, Rashad Ahmad Refaat El Badrawi, FBI, Michael S. Loser, Gregory Manack, Robert Mueller, USA (Levine, Brant) (Entered: 07/07/2011)
447 ORDER re 446 Notice of Voluntary Dismissal filed by FBI, Michael S. Loser, USA, Michael Chertoff, Department of Homeland Security, Rashad Ahmad Refaat El Badrawi, Robert Mueller, Gregory Manack. SO ORDERED by Judge Janet C. Hall on 7/12/2011. (DeRubeis, B.) (Entered: 07/12/2011)
448 ORDER OF DISMISSAL. The parties have reported that this action has been settled in full. Rather than continue to keep the case open on the docket, the Clerk is directed to administratively close the file without prejudice to reopening on or before August 13, 2011. If the parties wish to file a stipulation of dismissal (for approval by the court or simply for inclusion in the court's file), they may do so on or before August 13, 2011. The dates set forth in this order may be extended for good cause pursuant to a motion filed in accordance with Local Rule 7. SO ORDERED by Judge Janet C. Hall on 7/12/2011. (DeRubeis, B.) (Entered: 07/12/2011)
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08/09/2011 08/15/2011

https://ecf.ctd.uscourts.gov/cgi−bin/Dispatch.pl?survey (Simpson, T.) (Entered: 07/13/2011)
449 STIPULATION of Dismissal With Prejudice by Rashad Ahmad Refaat El Badrawi, Charles L. Lee, Thomas McGrail, Albert Pitts. (Murphy−Osborne, Maura) (Entered: 08/09/2011)
450 ORDER re 449 Stipulation of Dismissal filed by Rashad Ahmad Refaat El Badrawi, Charles L. Lee, Albert Pitts, Thomas McGrail. SO ORDERED by Judge Janet C. Hall on 8/15/2011. (Hobbs, J.) (Entered: 08/15/2011)