JANET C. HALL, District Judge.
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.
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.
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
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
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 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, 360-61. 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 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 itinerary was cancelled. Ultimately, the government rescheduled El Badrawi's
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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 2505, 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, 106 S.Ct. 2505; Graham, 230 F.3d at 38. "This remedy that precludes a trial is properly granted only when no rational finder of fact could find in favor of the nonmoving 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).
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:
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 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
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. 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 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
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 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, 221 Ct.Cl. 325, 607 F.2d 930, 934 (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 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
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.
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:
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:
El Badrawi I, 579 F.Supp.2d at 278.
"As most commonly defined, the [law of the case] doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the
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.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.
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, 117 S.Ct. 905, 137 L.Ed.2d 79 (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 University v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (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. Georgetown Univ. Hospital, 488 U.S. 204, 212-13, 109 S.Ct. 468,
The court's analysis begins with the text of the regulation. The provision at issue states:
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 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
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.
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 hand-in-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).
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 the regulation at issue.
Indeed, the only pieces of record evidence suggesting that anyone in DHS has ever taken the position that the government
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 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.
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 question, "Can I get an extension of stay if my status already expired?," the Guide provides:
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 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.
Similarly, in Long Island Care at Home, the Department of Labor was not a party to the litigation. Instead, the litigation between private parties, see 551 U.S. at 164, 127 S.Ct. 2339, 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, 127 S.Ct. 2339. 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, 127 S.Ct. 2339. 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, 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.
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, 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, 121 S.Ct. 2491, 150 L.Ed.2d 653 (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, 121 S.Ct. 675, 148 L.Ed.2d 576 (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, 108 S.Ct. 1392, 99 L.Ed.2d 645 (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, 127 S.Ct. 2339 (changes in interpretation are not a basis to disregard an agency interpretation "as
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, 121 S.Ct. 2491. Second, on the government's interpretation, these aliens are subject to removal from the country, which also gives rise to serious due process concerns. See Jordan v. De George, 341 U.S. 223, 231, 71 S.Ct. 703, 95 L.Ed. 886 (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, 68 S.Ct. 374, 92 L.Ed. 433 (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, 68 S.Ct. 374)); Restrepo 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).
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 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
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, 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 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.
The government also relies on two recent, non-binding rulings that were not
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 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:
Id. at 577 (footnote omitted).
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 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)."
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).
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, 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. § 274a.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
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, 529 A.2d 171 (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.
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 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:"
Dada v. Mukasey, 554 U.S. 1, 11, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008); see also id. at 23, 128 S.Ct. 2307 (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").
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.
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 provides that, upon granting voluntary 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).
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, 876 A.2d 522 (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
Neither Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (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, 121 S.Ct. 2491. 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, 121 S.Ct. 2491. 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 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
Although the government acknowledges that Zadvydas and Turkmen are 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.
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. 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
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. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321, 74 L.Ed.2d 21 (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 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.
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.
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 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
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 ¶¶ 57-59. 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 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.
For the foregoing reasons, the United States' Motion for Summary Judgment is
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).
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 42-day 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.
