## Facts

- Mohamed Majed Chehade Refai, a German citizen with close family ties to the United States, arrived at McCarran International Airport on December 28, 2006, seeking entry under the Visa Waiver Program.
- A CBP officer escorted him to a secondary room, told him he was being denied entry without explanation, questioned him, and recorded answers on an administrative sworn statement Chehade alleged he was forced to sign.
- Chehade was told he could return to Germany immediately or remain detained pending further investigation; although he chose to depart, he was not allowed to leave on the next flight.
- DHS Senior Special Agent Peter Lazaro arrived and interrogated Chehade; the complaint alleged Lazaro asked unusual questions and pressed him for cooperation.
- Chehade alleged he was detained for four days and three nights at a local detention facility before being returned to Germany.
- During detention, he alleged he was twice ordered to strip, kneel, and cough for visual inspection of his genitals and anus.
- Chehade alleged Lazaro and another agent told him only they could help him and that he would not be able to return to the United States unless he agreed to spy when he returned to Germany.
- Chehade alleged Lazaro knew of his serious cardiac history and need for heart medication, yet he was deprived of medication for about 36 hours while experiencing high blood pressure, arrhythmia, and nosebleeds.
- He alleged public handcuffing and media statements implying criminal or terrorism-related reasons for detention, and that the incident stemmed from a watchlist error.
- Chehade sued the United States under the FTCA and sued Lazaro individually, including for intentional infliction of emotional distress (IIED) under Nevada law.

## Issues

1. Whether tort claims against the United States were barred for failure to exhaust FTCA administrative remedies and by FTCA limits and exceptions, including discretionary-function and misrepresentation-based bars.
2. Whether the complaint plausibly stated an IIED claim against Lazaro under Nevada law.
3. Whether Lazaro was entitled to qualified immunity at the Rule 12(b)(6) stage.

## Decision

- The court granted the United States’ motion to dismiss, dismissing the claims against the United States for lack of subject-matter jurisdiction and failure to state a viable FTCA claim, including lack of administrative exhaustion.
- The court denied Lazaro’s motion to dismiss in substantial part as to the IIED claim, holding the allegations could satisfy Nevada’s “extreme and outrageous conduct” and “severe emotional distress” requirements.
- The court denied Lazaro qualified immunity at the pleading stage because the alleged conduct, if proven, would violate clearly established rights concerning bodily integrity, limits on intrusive searches, and provision of basic medical care to detainees.

## Legal Principles

- FTCA administrative presentment and denial requirements are jurisdictional; failure to exhaust deprives a federal court of subject-matter jurisdiction over FTCA tort claims.
- The FTCA’s waiver of sovereign immunity is limited by statutory exceptions, including the discretionary-function exception and the misrepresentation exception, which can bar claims tied to policy-laden enforcement decisions and alleged misinformation.
- Nevada IIED requires: (1) extreme and outrageous conduct with intent or reckless disregard, (2) severe emotional distress, and (3) causation; conduct may qualify when it exceeds all bounds of decency in a civilized community.
- At the motion-to-dismiss stage, a plaintiff need only plead sufficient facts to make the elements plausible; disputes about personal participation and attribution may be developed through discovery.
- Qualified immunity is unavailable at the pleading stage where the alleged facts plausibly show a violation of clearly established constitutional rights such that a reasonable officer would have known the conduct was unlawful.

## Conclusion

The court dismissed all claims against the United States because the FTCA did not provide jurisdiction and a viable waiver of sovereign immunity on the pleadings, but it allowed the individual-capacity IIED claim against the DHS agent to proceed and rejected qualified immunity based on allegations of coercion, invasive searches, denial of essential medication, and resulting severe distress.


Chehade Refai v. Lazaro, 614 F. Supp. 2d 1103 (D. Nev. 2009)