Full opinion text
PUBLIC VERSION OF RULING ON MOTIONS FOR SUMMARY JUDGMENT ON CLAIMS AGAINST THE UNITED STATES JANET C. HALL, District Judge. 1. INTRODUCTION On the morning of October 29, 2004, Plaintiff Rashad Ahmad Refaat El Badrawi left for work only to be met outside his apartment building by federal agents. The agents placed him in handcuffs and arrested him on the charge that he had overstayed his period of authorized stay as a nonimmigrant visa holder. El Badrawi was brought to a government facility where he was questioned about alleged ties to jihadist and extremist groups. El Badrawi was then held without bail at the Hartford Correctional Center (HCC), a state run prison facility, for nearly two months. El Badrawi claims that, while he was incarcerated at HCC, he was not permitted to join the “Ramadan list” and therefore was not able to observe the Muslim Holy Month of Ramadan by fasting during daylight hours. El Badrawi also claims that prison staff refused to provide medication, which had been prescribed to him and which he had at the time of his arrest. On November 10, 2004, El Badrawi appeared before an Immigration Judge for a hearing on the charge that he was subject to removal for overstaying his visa. However, rather than adjudicating that issue, the parties informed the Immigration Judge that they had agreed that El Badrawi would voluntarily depart the country, under government safeguards, “as soon as possible.” The government then kept El Badrawi detained at HCC for an additional 42 days and continued to investigate him. The government finally escorted El Badrawi out of the country on December 22, 2004. El Badrawi brought this action against various departments and officials of the federal and state, governments, challenging the legality of his arrest, his detention, and the conditions under which he was detained. In a prior decision, El Badrawi v. Dep’t of Homeland Security (“El Badrawi I”), 579 F.Supp.2d 249 (D.Conn.2008), this court dismissed a number of those claims. However, the court held that El Badrawi had stated claims against the United States under the Federal Tort Claims Act (“FTCA”) for false arrest and for abuse of process with respect to his detention following the agreement to voluntarily departure. The court also held that El Badrawi had stated claims, pursuant to 42 U.S.C. section 1983, against HCC’s Warden, Charles Lee, for violations of the Free Exercise Clause and the Eighth Amendment. The court also granted El Badrawi permission to amend the Complaint in order to plead claims against Warden Lee; James Pitts, a Chaplain at HCC; and Thomas McGrail, HCC’s Director of Food Services, pursuant to the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc et seq. This Ruling addresses the parties’ Motions for Summary Judgment on El Badrawi’s two claims against the United States. The United States and El Badrawi have each moved for summary judgment on both of these claims. After the Motions were briefed, the court heard oral argument. For the reasons that follow, the United States’ Motion for Summary Judgment is denied. El Badrawi’s Motion for Summary Judgment against the United States is granted with respect to the claim for false arrest and denied with respect to the claim for abuse of process. II. BACKGROUND El Badrawi, a citizen of Lebanon and Egypt, lived in the United States in compliance with immigration law for over ten years. El Badrawi was admitted to the United States in 1993 on a nonimmigrant student visa. El Badrawi pursued and obtained a master’s degree in pharmaceutical sciences and a master’s degree in information systems engineering at Northeastern University. In 1999, El Badrawi was granted an H-1B visa that would permit him to live in the United States while working in the biotechnology industry. El Badrawi and his employers periodically renewed his H-1B visa as necessary, and he occasionally departed and reentered the country as necessary to maintain his immigration status. On April 4, 2003, El Badrawi received an H-1B visa to perform research work at the University of Connecticut Health Center (the “University”). Under that visa, he was authorized to live and work in the country until May 1, 2004. In October 2003, the Department of State (“DOS”) executed a Certificate of Revocation with respect to El Badrawi’s visa. Pl. Ex. 18. By the terms of this Certificate, the revocation of El Badrawi’s visa would become effective only upon El Badrawi’s departure from the United States. From October 2003 until December 22, 2004, El Badrawi never left the United States, and therefore the DOS revocation never became effective. DOS did not provide any notice of the Certificate of Revocation to El Badrawi or to the University. On March 31, 2004, the University and El Badrawi filed a timely application for an extension of El Badrawi’s stay under the H-1B visa program. The University requested and paid an additional $1000 fee for premium processing of the application. This meant that the United States Customs and Immigration Service (“USCIS”) was required to act on that application within 15 days or refund the additional fee. Despite contacting USCIS multiple times, neither El Badrawi nor the University was ever notified whether his extension of stay had been approved or denied. Federal regulations provide an automatic extension upon a timely application for an extension of an H-1B visa: “A nonimmigrant alien [with an H-1B visa] whose status has expired but who has filed a timely application for extension of such stay ... [is] authorized to continue employment with the same employer for a period not to exceed 240 days beginning on the date of the expiration of the authorized period of stay.” 8 C.F.R. § 274a.12(b)(20). This extension terminates prior to the 240-day limit if USCIS denies the application before that period ends. Id. With respect to El Badrawi, this period of extension began upon the expiration of the period of stay authorized under El Badrawi’s visa— May 1, 2004 — and barring early termination, would continue until late December 2004. At no time did USCIS deny El Badrawi’s application for extension. In the Spring of 2004, following the Madrid train bombings, the federal government became concerned that al-Qaida might plan a similar attack timed to occur around or just before the 2004 United States presidential election. See USA Ex. 16. The administration formulated and began to implement a plan for heightened enforcement of immigration laws in order to help prevent or disrupt terrorist attacks in the period leading up to the presidential election. See USA Ex. 21. In October 2004, Immigration and Customs Enforcement (“ICE”) Agent Gregory Manack, the Resident Agent in Charge of ICE’s Hartford office, assigned Senior Special Agent Michael Loser to investigate El Badrawi. During his investigation, Loser confirmed that El Badrawi’s visa had expired and that El Badrawi had a pending application for extension which had not been adjudicated by USCIS. Nonetheless, Loser concluded that El Badrawi “appears to be in violation of his immigration status at this time.” USA Ex. 29. On October 28, 2004, Manack issued a warrant for El Badrawi’s arrest— which alleged that El Badrawi was in the country in violation of United States immigration laws, USA Ex. 30 — and a Notice to Appear — which directed El Badrawi to appear for removal proceedings based on the charge that he had overstayed his period of admission, USA Ex. 31. On the morning of October 29, 2004, El Badrawi left home to commute to his job at the University. Outside his apartment building, however, he was met by Agent Loser and one or more other officers. The officers arrested El Badrawi and placed him in handcuffs. After searching his apartment, the officers transported El Badrawi to an ICE facility, where he was detained and interviewed to determine whether he had any knowledge of or involvement in extremist, jihadist, or terrorist groups. El Badrawi denied any such knowledge or involvement. Later that day, El Badrawi was transported to HCC, where he remained incarcerated until December 22, 2004. El Badrawi was brought before an Immigration Judge (“IJ”) on November 3, 2004. At that initial hearing, the IJ was informed that El Badrawi had a pending application for extension of his H-1B visa and that DOS had previously issued a Certificate of Revocation based on national security grounds. The IJ informed the parties that he was uncertain of how these facts affected El Badrawi’s immigration status, but the government’s attorney indicated that she was not prepared to address the merits of the case. USA Ex. 40, at 10-11. The IJ continued the hearing until November 10,' 2004; instructed the parties to address the merits at that hearing; and ordered that El Badrawi remain in confinement until that time. Id. At the November 10, 2004 hearing, the parties did not address the issue of whether El Badrawi was removable. Instead, at the start of the hearing, the government’s attorney immediately informed the IJ that the parties had agreed to “voluntary departure under safeguards] ... as soon as possible.” USA Ex. 41 at 1. The IJ asked whether 80 days would provide enough time, and the parties each agreed. Id. The parties further agreed that the first choice of destination would be Lebanon, with Egypt as a second choice if Lebanon would not accept El Badrawi. Id. The IJ accepted the agreement and informed El Badrawi that he would be “escorted to JFK, but this is not a deportation order, which makes it easier for you in the future to get another visa.” Id. at 2. El Badrawi claims that the government’s attorney, John Marley, told him that he would be able to leave the United States within six days. Pl. Ex. 1 ¶ 34. Although the hearing ended without any discussion of whether El Badrawi was in fact removable — and certainly without an admission of such by El Badrawi — the IJ issued a form order that begins: “Upon the basis of respondent’s admissions, I have determined that the respondent is subject to removal on the charge(s) in the Notice to Appear.” USA Ex. 42. The Order indicated that El Badrawi had been granted voluntary 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 departure for December 22, 2004, and permitted him to leave the country on that date. III. SUMMARY JUDGMENT STANDARD On a motion for summary judgment, the burden is on the moving party to establish that there are no genuine issues of material fact in dispute and that it is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 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 non-moving party.” Carlton v. Mystic Transportation, Inc., 202 F.3d 129, 134 (2d Cir.2000). “When reasonable persons, applying the proper legal standards, could differ in their responses to the question” raised on the basis of the evidence presented, the question must be left to the jury. Sologub v. City of New York, 202 F.3d 175, 178 (2d Cir.2000). IV. DISCUSSION A. False Arrest Claim In El Badrawi I, 579 F.Supp.2d at 275-77, the court held that El Badrawi had alleged a claim for false arrest under the FTCA, 28 U.S.C. §§ 1346(b)(1), 2674. As the court explained there: El Badrawi’s false arrest claim will stand or fall depending on whether or not the ICE officials had probable cause to believe that El Badrawi was in the country illegally. Under Connecticut law (and federal constitutional law), probable cause exists when an officer has knowledge of sufficient facts and circumstances to warrant a reasonable officer in believing that the arrestee has committed or is committing an arrestable offense. Id. at 276 (citing Walczyk v. Rio, 496 F.3d 139, 156 (2d Cir.2007)). In this case, an “arrestable offense” includes a violation of immigration law, because federal immigration officers have authority to arrest where they have probable cause to believe “that the alien so arrested is in the United States in violation of any [law or regulation regarding the admission, exclusion, expulsion, or removal of aliens].” 8 U.S.C. § 1357(a)(2); see United States v. Sanchez, 635 F.2d 47, 63 n. 13 (2d Cir.1980). Resolution of El Badrawi’s claim for false arrest depends on two issues. First, the court must determine whether, as the government contends, the doctrine of 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.l2(b)(20), the regulation providing that El Badrawi was “authorized to continue employment with the same employer for a period not to exceed 240 days” while his application for an extension of stay was pending. The parties agree that the merits of the false arrest claim turn entirely on this regulation. If the regulation permitted El Badrawi to remain in the country and protected him from removal during the extension period, then the ICE officers did not have probable cause to arrest him. If it did not provide such protection, then the ICE officers did have probable cause. After examination of the record and the parties’ arguments, the court finds that there is no genuine issue of material fact and that the claim is resolved, as a matter of law, in favor of El Badrawi. 1. Collateral Estoppel Does Not Bar El Badrawi’s Claim Collateral estoppel forecloses re-litigation 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 contends that this regulation provides two different procedures for obtaining voluntary departure: by grant of an IJ, as described in subsection (b)(1), and by stipulation of the parties as described in subsection (b)(2). The requirement that the alien concede removability appears only in subsection (b)(1). El Badrawi argues that such a concession is not required where the parties stipulate pursuant to subsection (b)(2). The government, on the other hand, argues that a stipulation under subsection (b)(2) is not an entirely separate procedure and that, even with a stipulation, the IJ must still grant voluntary departure under subsection (b)(1) and must still require a concession of removability. The court need not resolve this dispute, because the government’s reading only supports the conclusion that the IJ ought to have required El Badrawi to concede removability, whereas the transcripts show that the IJ did not so require, and El Badrawi did not so concede. Assuming for the sake of argument that the IJ should have required a concession of removability, and granting the fact that an agreement to voluntary departure can be binding, the court finds that the agreement at issue here did not constitute a binding concession of removability by El Badrawi. As a general rule, where an issue in litigation is resolved by stipulation, its binding effect in future litigation depends upon the parties’ intent: “Most courts have held that a fact established in prior litigation by stipulation, rather than by judicial resolution, has not been ‘actually litigated.’ However, we have 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 concession and without any discussion of whether El Badrawi was removable, the IJ issued a form order that begins: “Upon the basis of respondent’s admissions, I have determined that the respondent is subject to removal on the charge(s) in the Notice to Appear.” USA Ex. 42. There is no explanation of the “admissions” to which the Order refers. It is clear, however, that “admissions” does not refer to any express admission of removability, as the record shows that there was not one. The IJ’s unsupported finding of removability also does not support collateral estoppel. As already explained, the record shows that the parties did not actually litigate the issue, and there is no evidence that they intended for the IJ to resolve this issue. In addition, the government has not shown that it was necessary for the IJ to make this determination. Even assuming the government’s reading of 8 C.F.R. § 1240.26(b) is correct, it would have been El Badrawi’s concession of removability that was required, not the IJ’s independent determination of removability. Therefore, the IJ’s finding of removability appears to be gratuitous, not the resolution of an issue that was actually and necessarily litigated. In sum, the record shows that the parties did not actually and necessarily litigate the issue of whether El Badrawi was removable for overstaying his visa in the immigration proceedings. Therefore, the immigration proceedings do not preclude El Badrawi from litigating that issue here. 2. Law of the Case Does Not Bar Reconsideration Turning to the merits of El Badrawi’s claim, the parties agree that the issue depends entirely on the interpretation of 8 C.F.R. § 274a.l2(b)(20). See, e.g., USA Reply at 3; Pl. Mem. at 24. That regulation provides, in part: A nonimmigrant alien [who was admitted under one of various forms of work-based visas, including an H-1B visa] whose status has expired but who has filed a timely application for an extension of such stay ... [is] authorized to continue employment with the same employer for a period not to exceed 240 days beginning on the date of the expiration of the authorized period of stay. 8 C.F.R. § 274a.12(b)(20). The government contends that this extension applies only to an alien’s authorization to work in the United States and that it does not extend an alien’s authorization to be in the United States. The government argues that an alien may remain in the country during this period, but he does so subject to the government’s discretion to arrest, detain, and remove him. El Badrawi notes that the court has already rejected that interpretation and argues that the claim for false arrest can be resolved simply by application of the law of the case doctrine. In El Badrawi I, the court rejected the government’s proposed reading: Ultimately, the government’s interpretation of 8 C.F.R. § 274a.12(b)(20) makes little sense. El Badrawi’s reading, in which employment authorization necessarily includes the right to physically remain in the country, is a much more reasonable one. And with this interpretation clarified, it becomes clear that Manack and Loser lacked probable cause to arrest El Badrawi. El Badrawi’s FTCA claim for false arrest/false imprisonment survives the government’s Motion to Dismiss. El Badrawi I, 579 F.Supp.2d at 278. “As most commonly defined, the [law of the case] doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983). Strict application of this doctrine would appear to resolve the merits of this claim. However, the court is mindful that the “doctrine of law of the case is not an inviolate rule, and the decision whether or not to apply law-of-the-ease is, in turn, informed principally by the concern that disregard of an earlier ruling should not be allowed to prejudice the party seeking the benefit of the doctrine.” United States v. Uccio, 940 F.2d 753, 758 (2d Cir.1991) (internal quotation and citations omitted). “In this context ‘prejudice’ ... refers to a lack of sufficiency of notice’ or a lack of sufficient ‘opportunity to prepare armed with the knowledge [the prior ruling is not deemed controlling].’ ” Id. (quoting United States v. Birney, 686 F.2d 102, 107 (2d Cir.1982)). Furthermore, law of the case should not be followed if there are “cogent and compelling reasons to deviate, such as an intervening change of controlling law, the availability of new evidence, or the need to correct a clear or prevent manifest injustice.” Uccio, 940 F.2d at 758 (quotations omitted). In light of these standards, the court does not rely on the law of the case doctrine. El Badrawi is not prejudiced, in the requisite sense, by the court’s reconsideration of this issue. El Badrawi has not been unfairly surprised by the government’s reassertion of its position, and his counsel have briefed the issue extensively in connection with the pending motions. Furthermore, interpretation of the regulation requires consideration of whether deference is due to an agency interpretation of this regulation, and the parties have now had a more adequate opportunity to develop the record on that issue. See Davidson v. Bartholome, 460 F.Supp.2d 436, 443 (S.D.N.Y.2006) (“it is well settled that the law of the case doctrine does not preclude a court from entertaining a subsequent summary judgment motion on the basis of an amplified record”). Therefore, the court considers each of the government’s arguments below. However, after such consideration, the court remains persuaded that its prior holding is correct. 3. Government Counsel’s Reading Is Not Entitled to Deference The government contends that its reading is owed deference as an agency’s interpretation of its own regulation. Generally, an agency’s interpretation of its regulations deserves deference “unless plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461, 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, 102 L.Ed.2d 493 (1988); see also Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 171, 127 S.Ct. 2339, 168 L.Ed.2d 54 (2007) (granting deference because the “agency’s course of action indicates that the interpretation reflects its considered views”); Auer, 519 U.S. at 462, 117 S.Ct. 905 (granting deference because “the Secretary’s position is in no sense a ‘post hoe rationalization’ ” but instead “reflectfs] the agency’s fair and settled judgment”). The court’s analysis begins with the text of the regulation. The provision at issue states: (b) Aliens authorized for employment with a specific employer incident to status. The following classes of nonimmigrant aliens are authorized to be employed in the United States by the specific employer and subject to the restrictions described in the section(s) of this chapter indicated as a condition of their admission in, or subsequent change to, such classification. An alien in one of these classes is not issued an employment authorization document by the Service (20) A nonimmigrant alien within the class of aliens described in [certain specified subsections of this section (b) ] whose status has expired but who has filed a timely application for an extension of such stay. These aliens are authorized to continue employment with the same employer for a period not to exceed 240 days beginning on the date of the expiration of authorized stay. Such authorization shall be subject to any conditions and limitations noted on the initial authorization. However, if the district director or service center director ... denies the application for extension of stay, the employment authorization under this paragraph shall be automatically terminated upon notification of the denial decision[.] 8 C.F.R. § 274a.12(b)(20) (emphasis added). Focusing first on the text of subsection (20) itself, the authorization to “continue employment with the same employer” is stated in nearly unconditional terms. The only two conditions are with regard to time and with regard to any conditions of the initial authorization. With regard to time, the regulation states that the extension begins immediately, on the date that the period of previously authorized stay expires. With regard to the conditions of the initial authorization, the regulation continues all “conditions and limitations noted on the initial authorization.” This appears to indicate that the temporary authorization carries forward the same terms that applied prior to the expiration. The government’s position — that, in order to avoid arrest and deportation, the alien must obtain separate authorization to stay in the country or must leave the country until she does — is difficult to square with language stating an unconditional authorization to continue employment under the same terms from the day that the visa expires. At the very least, it is fair to say that the government’s reading imposes extremely significant additional conditions upon the authorization stated in the regulation; those conditions are entirely unsupported by the text of the regulation; and those conditions significantly alter the meaning of the plain text. Thus, even limiting the focus to the text of subsection (20) itself, the agency’s interpretation is difficult to reconcile with the text of the regulation. Reading subsection (20) in the context of 8 C.F.R. § 274a.12(b) as a whole, the problems with the government’s interpretation increase. The right to work provided by this regulation is expressly described as a right “incident to status.” 8 C.F.R. § 274a.12(b). It is described this way because employment in the country is the very reason that aliens affected by this regulation are permitted to be in the country. See, e.g., 8 U.S.C. § 1101(a)(15)(H) (giving authority for the H-1B visa program by identifying classes of aliens permitted to “com[e] temporarily to the United States to perform services”); 8 C.F.R. § 214.2(h)(1)(i) (providing that, under the H-1B visa program, “an alien may be authorized to come to the United States temporarily to perform services or labor for, or to receive training from, an employer, if petitioned for by that employer”). Thus, for the classes of aliens affected by subsection (b), work authorization is part and parcel of their authorization to be in the country, not a separate matter. The direct connection between these two rights is further highlighted by the fact that such aliens are “not issued a separate employment authorization document by the Service.” 8 C.F.R. § 274a.12(b). Despite this direct connection between work authorization and immigration status, the government contends that its reading is permissible because, as a general matter in immigration law, the right to be in the country and the right to work in the country do not always go together. It is undisputed that the right to be in the country does not generally imply the right to work in the country. The court need not determine whether the right to work in the country always implies the right to be in the country. The question here is whether this particular regulation’s grant of authority to continue employment includes a right to be in the country. The fact that section 274a.12(b) pertains solely to aliens whose immigration status is based and conditioned upon their need to work in the country strongly indicates that the two rights go together here. An extension of only the right to work, without the right to remain in the country, is at odds with the nature and purpose of the affected work-based visa programs. In sum, the government’s reading conflicts with the text of the regulation. The government’s interpretation would render the authorization to “continue employment with the same employer” meaningless. An alien may not “continue employment with the same employer” in the United States if that alien may not remain in the United States. Although, in some instances, work authorization may be a separate matter from immigration status, this does not show that the regulation at issue here can be read to extend only work authorization. For H-1B visa holders, and for all other aliens affected by this regulatory provision at issue, work authorization and immigration status go 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.l2(b). On the government’s reading, however, subsection (b)(20) of that provision grants a form of work authorization that is entirely separate from, not incident to, status. Because the government’s reading cannot be reconciled with the text of the regulation, it is not entitled to deference. In addition, the government has failed to show that its proposed reading is the agency’s settled interpretation, rather than an expedient litigation position. First, the government fails to identify a single agency publication or internal memorandum showing that the Department of Homeland Security (“DHS”), its subsidiary agencies, or their predecessors, ever took the view that the government now asserts with respect to the regulation at issue. The government argues instead that its position is supported by agency practice. However, despite being pressed to do so repeatedly in this litigation, the government has failed to make a record of any other case in which it has sought to remove an alien based on this interpretation of the regulation. Indeed, the only pieces of record evidence suggesting that anyone in DHS has ever taken the position that the government asserts here are the IJ’s Order with respect to El Badrawi, USA Ex. 42, and the testimony of Agent Manack, the ICE agent who issued the order to arrest El Badrawi, USA Ex. 9 at 181-92. The government does not contend that either the IJ or Agent Manack has been delegated authority to establish official DHS policy. The IJ’s Order states no reasoning and shows no consideration of the regulatory provision at issue. See USA Ex. 42. Nor does Agent Manack’s testimony indicate what DHS’s policy is. Agent Manack stated that he arrived at his reading of the regulation based on his training and experience, but he admitted that he could not recall being provided with any agency guidance on the meaning of the specific regulation at issue. Id. at 183. Agent Manack also admitted that he could not recall any case in which he or anyone else at ICE had ever arrested or initiated removal proceedings against an alien covered by the provision at issue here. Id. at 190-91. This testimony provides no indication that Agent Manack’s reading of the regulation reflects the settled view of DHS, rather than a mistaken view of the law held by an ICE agent. 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?,” PI. 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. In response to the question, “What if I file [for an extension of stay] on time but USCIS doesn’t make a decision before my 1-94 expires?,” the USCIS Guide provides the following answer: If we receive your application before your status expires, and if you have not violated the terms of your status and meet the basic eligibility requirements, you may continue your previously approved activities in the United States (including previously authorized work) for a maximum period of 240 days, or until the first of the following occurs: • We make a decision on your application; or • The reason for your requested extension has been accomplished. If your application is denied after your previously approved stay has expired and you are still in the United States, you will be considered ‘out of status’ as of the date of your original period of stay expired. You must cease employment (if such employment was authorized) and depart the United States immediately. Pl. Ex. 39 at 2 (emphasis added). The USCIS Customer Guide provides quite different guidance with respect to aliens who file an untimely application for extension of stay. In response to the question, “Can I get an extension of stay if my status already expired?,” the Guide provides: If your status expired before you filed an application with USCIS to extend your stay in the United States, or if you have otherwise violated the terms of your status (such as by working without authorization), then you are “out of status.” .... If you fall out of status, we recommend that you leave the United States as soon as possible to limit the possible impact on your ability to the United States in the future. Pl. Ex. 39 at 2 (emphasis added). These answers cannot be squared with the position that the government advances here. They indicate that the alien will be considered “out of status” only if the application is not timely filed, if the alien has violated the terms of his status, or if the timely-filed application is denied. In contrast, where an application is timely filed, the Guide states, “you may continue your previously approved activities in the United States (including previously authorized work).” Pl. Ex. 39 at 2. This permission can only be read to include permission to be present in the United States. It is plainly not limited to work, as work is listed as just one example of “previously approved activities,” and being present in and temporarily residing in the United States are certainly among the “previously approved activities” of an alien admitted on a nonimmigrant visa. Furthermore, where the extension application is timely-filed, the Guide indicates that the alien will be considered “out of status” only if the application is denied, and that, upon such denial, the alien then “must cease employment (if such employment was authorized) and depart the United States immediately.” Id. This plainly indicates that DHS’s position is that the alien may remain in the United States until the application is denied and need only leave once it is denied. Finally, the Guide contemplates that the alien might “accomplish” the reason for the requested extension (e.g., complete the 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. Given the lack of support for the government’s proposed reading, the government argues that an agency interpretation may be entitled to deference even though it is first stated in the course of litigation. See Long Island Care at Home, 551 U.S. at 171, 127 S.Ct. 2339; Auer, 519 U.S. at 462, 117 S.Ct. 905; Rock of Ages, 170 F.3d at 156. But those cases do not support deference here. In Auer, the agency interpretation was set forth in the Secretary of Labor’s amicus brief, provided at the request of the Supreme Court. 519 U.S. at 461, 117 S.Ct. 905. Because the Secretary was not a party to the case and because the amicus brief clearly required the Secretary to consider and state the Department’s official position, the Court concluded that the interpretation could not be gainsaid as a “post hoc rationalization advanced by an agency seeking to defend past agency action against attach” and that there was “no reason to suspect that the interpretation does not reflect the agency’s fair and considered judgment on the matter in question.” Id. at 462, 117 S.Ct. 905. Furthermore, the Court found that the regulation “comfortably bears” the Secretary’s interpretation. Id. 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. To the contrary, the only directly pertinent agency publication is directly contrary to the government’s proposed interpretation. See, supra, at 218-22. Moreover, DHS was named as a defendant in this highly controversial litigation, and its agents’ interpretation and application of the regulation forms the basis for plaintiffs claim. Thus, the circumstances of this case provide no reassurance that the government’s position is not simply a “post hoc rationalization.” See Bowen, 488 U.S. at 212-213, 109 S.Ct. 468 (“Deference to what appears to be nothing more than an agency’s convenient litigation position would be entirely inappropriate”). Finally, it cannot be said that the regulation “comfortably bears” the reading proposed by the government, Auer, 519 U.S. at 462, 117 S.Ct. 905, or that the proposed reading is “consistent with the language, history and purpose” of the regulation, Rock of Ages, 170 F.3d at 156. See, supra, at 217-19. In sum, the record indicates that the reading proposed by government counsel is not, in fact, the “fair and considered judgment” of DHS. Therefore, the court concludes that the reading proposed by government counsel is not entitled to deference. The court’s conclusion is buttressed by the fact that the government’s proposed interpretation presents grave due process concerns. The government has argued that, on its reading of 8 C.F.R. § 274a.12(b)(20), an alien who has filed a timely application for extension may remain in the country, but if he does, the government has discretion to arrest, detain, and remove him. There is a serious question as to whether this interpretation is consistent with the Fifth Amendment’s Due Process Clause. Therefore, 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 long as interpretive changes create no unfair surprise”). This principle of fair notice is well established in administrative law. See, e.g., County of Suffolk v. First American Real Estate, 261 F.3d 179, 195 (2d Cir.2001) (“Due process requires that before a ... significant civil or administrative penalty attaches, an individual must have fair warning of the conduct prohibited by the statute or regulation that makes such sanction possible”); United States v. Approximately 64,695 Pounds of Shark Fins, 520 F.3d 976, 980 (9th Cir.2008) (“Due process requires that an agency provide fair notice of what conduct is prohibited before a sanction can be imposed”) (quotation omitted); Trinity Broadcasting of Florida, Inc. v. FCC, 211 F.3d 618, 628 (D.C.Cir.2000) (“we have repeatedly held that in the absence of notice — for example where the regulation is not sufficiently clear to warn a party about what is expected of it — an agency may not deprive a party of property by imposing civil or criminal liability”) (quotation omitted); General Elec. Co. v. E.P.A., 53 F.3d 1324, 1328 (D.C.Cir.1995) (“The due process clause thus prevents ... deference from validating the application of a regulation that fails to give fair warning of the conduct it prohibits or requires”) (quotation omitted). The government’s interpretation of section 274a.12(b)(20) implicates liberty interests that are protected by the Due Process Clause. First, on the government’s interpretation, aliens who do continue their employment may be arrested and detained. “The Fifth Amendment’s Due Process Clause forbids the Government to ‘depriv[e]’ any ‘person ... of ... liberty ... without due process of law.’ Freedom from imprisonment — from government custody, detention, or other forms of physical restraint — lies at the heart of the liberty that Clause protects.” Zadvydas, 533 U.S. at 690, 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) (“[Deportation, 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). Based on the text of the regulation, aliens making a good faith effort to comply with immigration law could not reasonably be expected to anticipate the position advanced by the government, ie., that despite being admitted under a work-based visa, and despite an express government authorization to continue that work while a timely-filed extension application is pending, they remain subject to arrest, detention, and removal at any time. Given its plain meaning, the regulation gives rise to a reasonable expectation that affected aliens “are authorized to continue employment with the same employer” subject to the same conditions and limitations that applied during their previously authorized period of stay. Where a complicated or unclear regulation raises concerns about pre-enforcement notice, these concerns can sometimes be addressed through the agency’s enforcement process (e.g., through a non-punitive warning issued prior to the attachment of sanctions) or through guidance in agency publications. See General Elec., 53 F.3d at 1329 (notice may be provided by “the agency’s pre-violation contact with the regulated party” or by “the regulations and other public statements issued by the agency”). Such is not the case here. There was no direct, pre-enforcement warning to El Badrawi. There is not even any indication that an affected alien might have indirect notice through a pattern of enforcement actions against other similarly situated aliens. The only relevant agency guidance is the USCIS Customer Guide. That Guide is entitled to significant weight in this analysis, because it is published for the purpose of explaining the relevant regulation to the very people who are put at risk by the government’s proposed interpretation. That Guide plainly supports and fosters the expectation that aliens in El Badrawi’s position may remain in the country while awaiting a determination on their timely filed extension applications. Most significantly, the government does not concede that any additional notice is needed. The government has argued that any alien who overstays his initial period of authorization should be aware that he is subject to removal, and that section 274a.12(b)(20) and the USCIS Guide do nothing to change this. The government maintains that the regulation leaves the government with unbridled discretion to arrest and detain aliens who remain in the country during the 240-day extension period. In other words, the government maintains that the authorization to continue employment in 8 C.F.R. § 274a.12(b)(20) should be interpreted as an authorization to continue employment, subject to the risk of arrest, detention, and removal, regardless of whether or not the government provides any advance notice of that risk. 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.l2(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. 4. Case Law Does Not Support the Government’s Reading The government also relies on two recent, non-binding rulings that were not considered in El Badrawi I. Neither of these opinions directly addresses the issue before the court, and neither is controlling or persuasive. First, the government relies on a 2008 Board of Immigration Appeals opinion because it contains the statement, “work authorization is not equivalent to lawful status; nor is it necessarily reflective of a right to lawfully be or remain in this country.” In re Rotimi, 24 I. & N. Dec. 567, 578 (B.I.A.2008