SAN FRANCISCO (CN) - An Iranian-born legal U.S. resident who claims he was jailed for 19 months because he wouldn't infiltrate San Jose-area mosques as a paid FBI informant filed his suit too late, a federal judge ruled.
Hassan Abpikar sued Immigration and Customs Enforcement officers David Harris and Dwayne Sanchez and FBI agent Robert Durr - initially named as Robert "Carr" and then "Garr" this past November in Federal Court. Neither the United States nor the agencies the officers work for were named as defendants in the lawsuit.
Abpikar claimed the men violated his civil rights, falsely imprisoned him, assaulted and battered him and caused him emotional distress throughout the ordeal - which began in 2006, when San Jose police picked him up for using a fake ID.
Although released, ICE picked him up almost immediately despite his permanent legal resident status. Abpikar said an FBI agent promised his release if he agreed to infiltrate Bay Area mosques and keep an ear out for terrorism plans and threats.
The man took the agent's card and agreed to visit the FBI office the following day and was promptly released. But he never showed up at the field office and was arrested three months later, again on a fake ID charge.
ICE put another immigration hold on him, this time serving him with deportation papers for committing two crimes of moral turpitude. But an immigration judge threw the case out because Abpikar hadn't been convicted of any crimes involving moral turpitude.
The cycle repeated itself several more times, and Abpikar spent a total of 19 months in detention - leading to his lawsuit against the agents who he claimed caused off of it.
But Abpikar's complaint did not mention that in 1979 - in the United States on a student visa - he was convicted of phoning in a bomb threat to an Oklahoma car dealership. He also pleaded no contest to petty theft in 1999, both of which might have led Sanchez to order the ICE holds.
Regardless, U.S. Magistrate Judge Howard Lloyd on Thursday found that Abpikar's Bivens claim - a remedy for constitutional violations committed by federal officials acting in their individual capacities - was filed five years after "he had formed the belief that the detentions were unlawful," well beyond the two-year statute of limitations.
The judge also disagreed with Abpikar's arguments that his frequent bouts of jail time impaired his access to the courts and justified his late filing.
"Plaintiff was not in uninterrupted incarceration from the time the statute of limitations began to run and when he was statutorily required to file his complaint," Lloyd wrote. "Plaintiff was released from custody on Nov. 6, 2009. Plaintiff has not shown that his house arrest amounted to imprisonment. Although California courts have not addressed the issue of whether house arrest amounts to 'imprisonment,' the California Court of Appeal has held that an adult parolee is not entitled to tolling because parolee status 'neither precluded nor significantly impaired a plaintiff's ability' to assert his claim while on parole. The court finds that any disability tolling terminated on Nov. 6, 2009, at which point the two-year statutory clock for a Bivens claim began to run."
Furthermore, Lloyd found that Abpikar's claim is barred by qualified immunity, which shields government officials from being sued for doing their jobs - as long as their actions don't violate anyone's constitutional rights.
In this case, Sanchez had reason enough to believe Abpikar had committed acts of moral turpitude - the 1980 bomb-threat conviction - to issue a detainer. Although the 9th Circuit eventually ruled that crime did not involve moral turpitude the case wasn't decided until years after these events, Lloyd said.
As for Durr's visits to Abpikar in jail encouraging him to become an FBI informant, the judge noted that Abpikar doesn't allege that Durr coerced or pressured him to talk or brought up any past or pending criminal charges.
"There is no constitutional right to be free from visits by law enforcement on matters unrelated to pending charges, or to be free from voluntary discussions with law enforcement," Lloyd wrote. "Accordingly, plaintiff's Bivens claim is barred by qualified immunity."
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