El Badrawi v. Department of Homeland Sec.

• Decision Date: 22 September 2008
• Docket Number: Civil Action No. 3:07-CV-1074 (JCH).
• Citation: 579 F.Supp.2d 249
• Court: U.S. District Court — District of Connecticut
• Parties: Rashad Ahmad Refaat EL BADRAWI, Plaintiff v. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

579 F.Supp.2d 249

Rashad Ahmad Refaat EL BADRAWI, Plaintiff v. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

Civil Action No. 3:07-CV-1074 (JCH).

United States District Court, D. Connecticut.

September 22, 2008.

COPYRIGHT MATERIAL OMITTED

Michael J. Wishnie, Jerome N. Frank Legal Services, Hope R. Metcalf, Ramzi Kassem, Yale Law School, New Haven, CT, for Plaintiff.

Brant S. Levine, Laura K. Smith, U.S. Department of Justice, Washington, DC, Lisa E. Perkins, U.S. Attorney's Office, Maura Murphy-Osborne, Attorney General's Office, Hartford, CT, Victoria S. Shin, Skadden, Arps, Slate, Meagher & Flom LLP, New York, NY, for Defendants.

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]

JANET C. HALL, District Judge.

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 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 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 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 1-213, 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 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 1-286 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 strip-searched upon entering the facility and then placed in the general population of convicted criminals and criminal pretrial 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.

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...