Badrawi v. U.S.

• Decision Date: 12 April 2011
• Docket Number: Civil Action No. 07–cv–1074 (JCH).
• Citation: 787 F.Supp.2d 204
• Parties: Rashad Ahmad Refaat EL BADRAWI, Plaintiff,v.UNITED STATES of America, et al., Defendants.1
• Court: U.S. District Court — District of Connecticut

787 F.Supp.2d 204

Rashad Ahmad Refaat EL BADRAWI, Plaintiff,

v.UNITED STATES of America, et al., Defendants.1

Civil Action No. 07–cv–1074 (JCH).

United States District Court, D. Connecticut.

April 12, 2011.

Hope R. Metcalf, Yale Law School Michael J. Wishnie, Jerome N. Frank Legal Services, New Haven, CT, Kenneth Kimerling, Sameer Ahmed, Asian American Legal Defense and Education Fund New York, NY, for Plaintiff.Brant S. Levine, Edward J. Martin, U.S. Department of Justice–Torts Branch, Melissa E. Crow, Washington, DC, Lisa E. Perkins, U.S. Attorney's Office, Maura Murphy–Osborne, Steven R. Strom, Attorney General's Office, Hartford, CT, Victoria S. Shin, Skadden, Arps, Slate, Meagher & Flom LLP, New York, NY, Michael J. Boyle, Law Offices of Michael J. Boyle, North Haven, CT, for Defendants.

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

JANET C. HALL, District Judge.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. 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 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 H–1B 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 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 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 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....