Written By: Allyson Swecker
Articles and Symposium Editor, American Journal of Trial Advocacy
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”[i] These words from the Fourteenth Amendment to the Constitution seem fairly straightforward. Unfortunately, in the case of United States citizen Davino Watson, these words provided no protection from a three-year false imprisonment amidst deportation proceedings. The Fourteenth Amendment was created to ensure that no person be deprived of their freedom “without due process of law.”[ii] This is true regardless of whether a person is a United States citizen.[iii] For Davino Watson, the Fourteenth Amendment provided seemingly no protection.
Thirteen-year-old Watson immigrated to the United States in 1998 with his father, who at the time was a permanent resident of the United States.[iv] In 2002, at the age of seventeen, Watson became a United States citizen when his father became a naturalized citizen.[v] Watson ran into trouble in 2007 when he became involved with selling cocaine, and ultimately plead guilty in a New York state court for his criminal activity.[vi] While Watson was serving his sentence in a New York state prison, Immigrations and Customs Enforcement (“ICE”) was investigating his citizenship status in an effort to determine his eligibility for deportation.[vii]
According to the Second Circuit Court of Appeals, “[t]he investigation [into Watson’s citizenship status] was beset by errors.”[viii] Watson provided ample information, including the names of his father and stepmother, as well as the telephone number for their home, in order to validate his status as a U.S. citizen.[ix] ICE agents never called the telephone number, but they did make feeble attempts to identify and locate Watson’s father.[x] Yet, instead of locating Watson’s father, Hopeton Ulando Watson, ICE agents located Hopeton Livingston Watson who was a non-U.S. citizen.[xi] In addition to the incorrect name, ICE agents failed to note that this Hopeton Watson did not live in New York, as indicated by Watson, but instead resided in Connecticut.[xii] Moreover, this man did not have a child named Davino Watson and did not become a lawful permanent resident of the United States until three years after Watson’s actual father did so.[xiii]
After ICE agents neglected to call the phone number Watson provided for his father, and after their subsequent incorrect identification of Watson’s father,, Watson ultimately found himself in prison even after an appeal because he “was ineligible for derivative citizenship under the [Board of Immigration Appeals]’s then-current interpretation of Jamaican law.”[xiv] In November 2011, following several appeals in various courts, ICE determined that it was actually possible for Watson to be a U.S. citizen and released Watson “into rural Alabama (where he knew nobody), without money, and without being told the reason for his release.”[xv] After a long and difficult road, Watson finally received his certificate of citizenship, which stated that he had been a citizen since 2002, when his father was naturalized.[xvi]
Watson decided to file suit against the Government for false imprisonment based on the Federal Tort Claims Act.[xvii] The district court found that the Government was liable to Watson, and awarded damages against the Government.[xviii] Unfortunately, on appeal, the Second Circuit determined that Watson was in fact not entitled to damages because the statute of limitations had been tolled on his false imprisonment claim while he was still in prison and unaware that he had a claim against the government.[xix] The court examined whether Watson might be entitled to an equitable statute of limitations, wherein he might be entitled to an extended limitation period.[xx] In the Second Circuit, “it is not enough for a party to show that he experienced extraordinary circumstances. He must further demonstrate that those circumstances caused him to miss the original filing deadline.”[xxi] Regrettably, the court held that Watson did not meet the requirements for equitable tolling of the statute of limitations.[xxii]
Watson additionally brought two negligence claims against the government: one for a negligent investigation on the part of the ICE agents, and the other for USCIS negligently failing to provide his citizenship certificate for a period of over two years after his release.[xxiii] The district court dismissed both claims after a motion from the defense, and the Second Circuit affirmed the district court’s dismissal.[xxiv] Specifically, the court chose not to accept Watson’s argument that the ICE agents failed to follow internal regulations, and therefore they were negligent in their investigation into his citizenship.[xxv] The court cited a similar case wherein the plaintiff “failed to establish that New York law recognizes a freestanding duty to abide by private regulations.”[xxvi] The ICE agents’ failure to abide by private regulations constituted evidence of negligence, but did not “demonstrate ‘negligence in itself.’”[xxvii] There is no law in the State of New York imposing a duty to abide by private rules and regulations, and therefore the court could not allow Watson’s first negligence claim to go forward.[xxviii]
Regarding Watson’s second negligence claim for the delayed certificate of citizenship, the district court determined that Watson was unable to secure employment because of “his criminal history, drug use, and general lassitude, not his immigration status.”[xxix] Moreover, the court determined that the depression Watson suffered after his release from custody was not sufficiently shown to be caused by “the government’s failure to provide a certificate of citizenship earlier than it did.”[xxx] The Second Circuit determined that the district court imposed a complete bar on Watson’s second negligence claim because he failed to establish damages.[xxxi]
The Second Circuit admits that “there is no doubt that the government botched the investigation into Watson’s assertion of citizenship, and that as a result a U.S. citizen was held for years in immigration detention and was nearly deported.”[xxxii] Regrettably, Davino Watson will receive no compensation for his legitimate claims based on the tolling of the statute of limitations while he was still in detention, nor for his negligence claims based upon a lack of “cognizable damages.”[xxxiii]
Watson was unable to file his claims in a timely fashion because he was being detained, and also because his claims were civil, not criminal. The Constitution does not provide a right to counsel in civil matters – only in criminal matters.[xxxiv] Because of this lack of a right to counsel, Watson did not have access to an attorney who could help him. The Federal Government has admitted to committing a wrong against Watson, and yet he has no recourse against it. According to District Judge Jack Weinstein of the Eastern District of New York, “[t]he ‘whole legal disaster’ could have been avoided if Watson had an attorney at the outset.”[xxxv]
In criminal law, a defendant is presumed innocent until proven guilty.[xxxvi] This means that the burden of proof is on the prosecution to prove more than simply that the defendant committed the crime. The prosecution must prove each and every legal element of a crime for the defendant beyond a reasonable doubt to be found guilty by either a judge or jury.[xxxvii] On the other hand, the standard for removal proceedings of an alien convicted of an aggravated felony is that the alien “shall be conclusively presumed to be deportable from the United States.”[xxxviii] Additionally, because immigration proceedings are technically civil proceedings, there is no right to counsel for those who are being removed from the United States.[xxxix] After pleading guilty and serving a reasonable amount of time for the crime Davino Watson committed, the change in court procedures did not provide Watson with the justice he deserves as an American citizen. The court specifically stated that “[a]n American citizen was detained on the basis of a ‘grossly negligent’ investigation that ‘led to [his] wrongful detention.’”[xl] Watson still has one other court he can appeal to: the United States Supreme Court. The main argument that Watson will need to make is that the statute of limitations should be extended for him as a matter of equity due to the fact that the statute of limitations expired while he was still in custody during removal proceedings. If his argument is strong enough, he could merit a reversal from the Supreme Court. Otherwise, his avenues for appeal will be exhausted.
[i] U.S. Const. amend XIV.
[iii] Boumediene v. Bush, 553 U.S. 723, 743 (2008) (“the substantive guarantees of the Fifth and Fourteenth Amendments protect persons as well as citizens, foreign nationals who have the privilege of litigating in our courts . . . .”) (citation omitted).
[iv] Watson v. United States, 2017 WL 3221270, at *1 (2d Cir. July 31, 2017).
[vi] Id. at *2.
[x] Watson, 2017 WL 3221270, at *2.
[xiv] Id. at *2-3.
[xv] Id. at *3.
[xvi] Watson, 2017 WL 3221270, at *4.
[xx] Id. at *5-6.
[xxi] Id. at *5 (quoting Harper v. Ercole, 648 F.3d 132, 137 (2d Cir. 2011)) (emphasis in original).
[xxii] Watson, 2017 WL 3221270, at *7.
[xxiii] Id. at *8-9.
[xxiv] Id. at *8.
[xxvi] Id. (quoting McGowan v. United States, 825 F.3d 118, 127 (2d Cir. 2016)).
[xxvii] Id. (quoting McGowan v. United States, 825 F.3d 118, 127 (2d Cir. 2016)).
[xxviii] Watson, 2017 WL 3221270, at *8.
[xxix] Id. at *9 (citation omitted).
[xxx] Id. (citation omitted).
[xxxiv] U.S. Const. amend VI.
[xxxv] Camila Domonoske, U.S. Citizen Who Was Held by ICE for 3 Years Denied Compensation by Appeals Court, National Public Radio (August 1, 2017), http://www.npr.org/2017/08/01/540903038/u-s-citizen-held-by-immigration-for-3-years-denied-compensation-by-appeals-court.
[xxxvi] Yee Hem v. United States, 268 U.S. 178, 184 (1925) (“Every accused person, of course, enters upon his trial clothed with the presumption of innocence.”).
[xxxvii] In re Winship, 397 U.S. 358, 364 (1970) (“[W]e explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”).
[xxxviii] 8 U.S.C. § 1228 (c).
[xxxix] U.S. Const. amend VI.
[xl] Watson, 2017 WL 3221270, at *18 (alteration in original).