Full opinion text
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 Ba-drawi 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 Ba-drawi 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. 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 Hl-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 Hl-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 Hl-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 Ba-drawi an Hl-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 Ba-drawi’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, Hi-fi visa, the government only authorized him to remain in the United States through May 1, 2004. 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.l2(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 Hl-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 Hl-B authorization. Additionally, on this same day, Manack signed an 1-286 form, stating that after El Ba-drawi 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 the October 2003 revocation of his visa, and the May 1, 2004 expiration of his Hl-B authorization. Although El-Ba-drawi 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 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. This promise was not fulfilled. Instead, El Badrawi remained at HCC for 42 days after agreeing to voluntary departure. During that entire time, El Ba-drawi’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 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 Cher-toff, 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; (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 Ba-drawi 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 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 Ba-drawi 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. As El Badrawi correctly notes, prison officials run afoul of the First Amendment’s Free Exercise Clause when they impose substantial burdens on a plaintiffs sincerely-held religious beliefs, for reasons not reasonably related to legitimate penological interests. See Ford v. McGinnis, 352 F.3d 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). 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, 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 (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 tolerated] 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. 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 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. 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, 103 S.Ct. 2979, 77 L.Ed.2d 605 (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 when left untreated, constitutes a serious medical condition. Cf., e.g., Brock v. Wright, 315 F.3d 158, 163 (2d Cir.2003) (plaintiffs 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 plaintiffs 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. 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. ¶ 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, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985); Kentucky v. Graham, 473 U.S. 159, 165-67, 105 S.Ct. 3099, 87 L.Ed.2d 114 (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 suits for damages. The issue presented by the parties is a difficult one that has split the circuits. The Eleventh Circuit has held that RLUI-PA 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(l), 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, 105 S.Ct. 3142; see also Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 79 L.Ed.2d 67 (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, 105 S.Ct. 3142. Additionally, because RLUIPA was enacted under the Spending Clause, 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, 126 S.Ct. 2455, 165 L.Ed.2d 526 (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, 112 S.Ct. 1028, 117 L.Ed.2d 208 (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 ease 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, 112 S.Ct. 1028. 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, 126 S.Ct. 1689, 164 L.Ed.2d 367 (2006) (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, 123 S.Ct. 1667, 155 L.Ed.2d 631 (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 generally could not assert sovereign immunity in the same manner as states. See Owen v. City of Independence, 445 U.S. 622, 638, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980); Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 400-401, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979); Lincoln County v. Luning, 133 U.S. 529, 530, 10 S.Ct. 363, 33 L.Ed. 766 (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, 112 S.Ct. 1011, 117 L.Ed.2d 181 (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, 112 S.Ct. 1011 (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. 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, 112 S.Ct. 1011. That manner was simply to make 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, 112 S.Ct. 1011. 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 37,112 S.Ct. 1011. Following Nordic Village, the Fourth Circuit concluded that the phrase “appropriate relief’ in RLUIPA was susceptible to more than one interpretation. Madi son, 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 “appropriate relief’ encompasses more than mere injunctive or declaratory relief. 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. 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, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), Congress responded by enacting RFRA in the hopes of restoring the pre-Smith level of religious protection. See City of Boerne v. Flores, 521 U.S. 507, 512-15, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). Then, when the Supreme Court concluded that RFRA was unconstitutional as applied to states, see id. at 536, 117 S.Ct. 2157, Congress reenacted a narrower version of the statute as RLUIPA. See Cutter v. Wilkinson, 544 U.S. 709, 715, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005). Importantly, in the pr e-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 pr e-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 Plaintiffs 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 Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (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. 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, — U.S. --, —, 127 S.Ct. 2588, 2597, 168 L.Ed.2d 389 (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 plaintiffs 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, 103 S.Ct. 2404, 76 L.Ed.2d 648 (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 “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 Ma-nack and Loser that special factors are present in this case. 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, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993); Department of Navy v. Egan, 484 U.S. 518, 530, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988); cf. Chappell v. Wallace, 462 U.S. 296, 304, 103 S.Ct. 2362, 76 L.Ed.2d 586 (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. 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, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976); see also Harisiades v. Shaughnessy, 342 U.S. 580, 588-89, 72 S.Ct. 512, 96 L.Ed. 586 (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, 123 S.Ct. 1708, 155 L.Ed.2d 724 (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, 342 U.S. at 589, 72 S.Ct. 512; see also Reno v. Flores, 507 U.S. 292, 305, 113 S.Ct. 1439, 123 L.Ed.2d 1 (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, 97 S.Ct. 1473, 52 L.Ed.2d 50 (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.” Mathews, 426 U.S. at 79-80, 96 S.Ct. 1883. 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, 108 S.Ct. 2460, 101 L.Ed.2d 370 (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) (Katz-mann, 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: (1) a claim for false arrest/false imprisonment; (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. 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 ha-beas 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, 597 A.2d 807 (1991) (discussing claims for vexatious suit and malicious prosecution). Similarly, to the extent that El Ba-drawi’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, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999), which held that Section 1252(g) acted as a jurisdictional bar to a suit seeking to enjoin removal proceedings because of selective prosecution. Id. at 472-76, 487, 119 S.Ct. 936; 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). 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, 525 U.S. at 485 n. 9, 119 S.Ct. 936. 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 actions that the Attorney General may take,” AADC, 525 U.S. at 482, 119 S.Ct. 936, and because the decision to arrest and detain an alien is “discrete” from the decision to commence removal proceedings, El Ba-drawi’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 949 (citing 8 U.S.C. § 1225(b)(l)(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, 121 S.Ct. 2491, 150 L.Ed.2d 653 (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 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, 121 S.Ct. 2491. 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, 121 S.Ct. 2491 (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. 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, 125 S.Ct. 716, 160 L.Ed.2d 734 (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, 125 S.Ct. 716. Duamutef is inconsistent with Clark because Duamutef failed to apply the canon of constitutional avoidance in interpreting Section 1252(g), notwithstanding the fact that the Duamu-tef 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, 121 S.Ct. 2491. Under the United States’s reading of Section 1252(g), a litigant would be unable to bring suit (through the habe-as statutes or otherwise) 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, 121 S.Ct. 2491 (holding that detention, 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, 119 S.Ct. 936. 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. 5 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 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, 121 S.Ct. 2491; Demote, 538 U.S. at 517, 123 S.Ct. 1708; 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 Ba-drawi 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 “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, 121 S.Ct. 2491; Kansas v. Hendricks, 521 U.S. 346, 356-57, 117 S.Ct. 2072, 138 L.Ed.2d 501 (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 Ba-drawi’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, 121 S.Ct. 2491). 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, 690-92, 121 S.Ct. 2491; 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. at 687-88, 121 S.Ct. 2491. El Badrawi’s case is distinguishable because he alleges that he was detained “without any immigration law enforcement purpose, and without evidence that [El 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. 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. 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, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (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, 118 S.Ct. 1708 (equating arbitrary conduct with conscience-shocking conduct); id. at 845, 118 S.Ct. 1708 (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, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)) (internal quotation marks omitted)). In addition to invoking the jurisdictional bar in Section 1252(a)(2)(B)(ii), the government advances its argument that El Ba-drawi’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, 123 S.Ct. 1708 (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 dis