Daily Beast — NIGHTMARE
By Harry Siegel Sept. 5, 2017
An ICE agent sent through—and his supervisors approved—mistaken paperwork ‘proving’ Davino Watson wasn’t a citizen. And no one’s been held to account for the catastrophic screw-up.
The thing that happened to Davino Watson, American citizen, when he was locked up in prison for 1,273 days awaiting deportation amounts to an “entirely common state of affairs,” according to two United States Court of Appeals judges riding the Second Circuit.
Watson’s nightmarish odyssey through the overloaded parallel legal system more concerned with pushing paper than with just outcomes began on May 8, 2008, the day the then-23-year-old high school dropout completed a bootcamp-style Shock program for non-violent offenders after pleading guilty to selling a small amount of cocaine in Times Square the previous year.
His story is, on the face of it, perfectly simple: He came from Jamaica as a 14-year-old in 1998 to live with his father and stepmother, and when his father became a citizen in 2002, he automatically became one too under the Child Citizenship Act of 2000. That’s what he told the first ICE agent who came to interview him while he was in the Shock program. Watson provided his parents’ contact information and the agent left without issuing a detainer.
He went through the story again with a second agent, Erik Andren, who also had a packet of information from the New York State Department of Corrections that listed his parents’ names and their phone number and explicitly stated that Davino was a citizen.
Yet “about three seconds” after his sentence was completed, Watson was arrested by ICE.
That seemed terrible but temporary, what with him being a citizen and his father (who had never married his mother, which plays a strange role in the mess that follows) and stepmother easily able to verify that with a phone call. Instead, it turned out to be the beginning of a years-long tragedy of needless errors, along with legal insults.
An NPR analysis this year found 693 citizens have been held in local jails on federal detainer requests since 2007 and 818 more have been imprisoned directly by ICE.
Even that’s just a fraction of the 3,600 American citizens a 2011 Berkeley study found were detained by ICE under the “secure communities” program started by President Bush, dramatically expanded and later suspended by President Obama, and now revived by President Trump, who’s threatening to withhold federal funds from localities that don’t sign up. Basically, the program crosschecks local and state fingerprints against federal immigration and criminal records, so that the feds can pick up “illegal immigrants” straight from jails or prisons when their term is up.
Take the case of Watson, as laid out last year by U.S. District Judge Jack Weinstein.
After meeting Davino Watson, paperwork indicates that Andren, the second ICE agent to interview him while he was in the Shock program, “never made a successful attempt to reach (his parents) at the phone number” he’d provided and “ignored the notation on the Pre-Sentence Face Sheet that plaintiff was claiming United States citizenship.”
Despite Davino Watson repeatedly providing the names of his biological father, Hopeton Watson, and his stepmother, Claire Watson, Andren somehow requested so-called alien files for Hopeton Livingston Watson and for Calrie Dale Watson—“obviously not plaintiffs parents properly described to the government by the plaintiff.”
Weinstein continues: “a reasonable person exercising even a modest amount of care would have recognized that these files did not—could not—belong to plaintiff’s father or step-mother.”
Hopeton Livingston Watson lived in Connecticut and was unmarried; Davino’s father lived in New York City and was married to his stepmother. Hopeton Livingston Watson became a permanent resident of the United States three years after Davino became a citizen. None of Hopeton Livingston Watson’s children, listed in the file, were named Davino. More, this Hopeton’s ex-wife was a citizen, which Weinstein notes should by itself have led Andren to look further into Davino’s citizenship status.
As for Calrie Dale Watson, not only was her name spelled differently than that of Davino’s stepmother, but her file showed that she was married not to Davino’s father but to a Glenn Miller, and took the name Waston from a previous husband, who died in 1983.
Andren, though, had sent on his paperwork deeming Davino a deportable alien even before the files he’d requested on Hopeton Livingston and Calrie Dale even reached him.
On April 7, a month before Davino Watson was to be released from the Shock program, Andren’s paperwork beginning his deportation process reached ICE Deportation Officer Juan Estrada, who, Weinstein writes, simply “rubber-stamped the incorrect conclusions of Officer Andren without the investigation or evaluation the file clearly indicated was needed” and instead “simply relied on the file he had been provided by another government worker, which (now) included the obviously incorrect Hopeton Watson and Calrie Watson alien files.”
Estrada testified that an attorney then reviewed his paperwork to ensure there was legal sufficiency to begin removal proceedings. Another rubber stamp and the paper was pushed on. “This level of review was effectively a mindless failure,” Weinstein writes.
Next, the file went to ICE Supervisory Deportation Officer Michael Ortiz, who “mindlessly signed” the so-called Warrant for Arrest of Alien and other paperwork, which was then forwarded to ICE’s Buffalo office.
“It does not appear that (Oritz) performed any independent investigation of the statements concerning plaintiff’s citizenship or analysis of the problem,” writes Weinstein. “He merely signed off on the obvious errors already committed. This was a shirking of duty.”
The paperwork about Davino Watson, filed by one agent and then pushed on without review by two supervisors and an attorney, finally caught up with the man himself on the day of his release from the Shock program. Judge Weinstein’s ruling runs through the absurdity and horror that followed, as Watson kept telling his simple story: “No, I’m a citizen.”
As Judge Weinstein recounts in this painstaking chronology, it took years and years for Watson—who was promised when ICE first arrested him that an immigration judge would be able to resolve things within 24 hours—to prove he was a citizen.
That was a lie.
And so he fought, representing himself for years because he couldn’t afford a lawyer and had no right to one. He kept fighting for himself while locked up for 49 days before he appeared before an immigration judge for the first time. Kept fighting for 190 days, representing himself in four more appearances and two conferences with judges before one orally ruled that a change in the American interpretation of Jamaican law made 27 days after ICE arrested him meant the son of an unmarried father born there such as himself was by definition “not a U.S. citizen.”
Kept fighting for 811 days before he was finally appointed a lawyer, after the second petition he wrote himself to the United States Court of Appeals for the Second Circuit finally convinced real federal judges to take up his case.
And then he fought some more. Kept fighting for all of the 1,273 days he was shipped from one detention to center to another, then a third and then a fourth. Kept fighting for 755 more days after ICE finally dumped him out in a small town, with no explanation and no money, a thousand miles from his home. For 450 days after that before the removal proceedings against him were finally terminated.
It was 2,028 days—more than six years—after ICE arrested him that Davino Watson finally received a certificate of United States citizenship, proving what had been true since day one, when he was promised a judge would clear things up with 24 hours.
He fought on, with legal help now, for 1,364 days after that, seeking accountability and compensation for his years of illegal imprisonment until his fight finally came to an end last month, when two federal appeals judges ruled that there was nothing to be done about what had been done to him.
If Judge Weinstein’s account of Watson’s long fight to prove he was a citizen, annotated here, feels exhausting to simply read through, imagine what it felt like to live through.
In his decision, Judge Weinstein ruled Watson was “badly treated by government employees. He deserves a letter of apology from the United States in addition to damages. But the court is not empowered to order this courtesy.”
Weinstein ruled that Watson was owed $82,500 for what ICE had done to him, broken down into $2,000 a day for 27 days of loss of liberty, $500 for 27 days of emotional injury, and $15,000 for false arrest. The remaining 1,246 days of imprisonment—after the Board of Immigration Appeals decided children of unmarried Jamaicans couldn’t use their paternity to claim American citizenship—were legally justified, since the government had fair reason from then on to think that Watson was “a non-citizen.”
Instead of issuing the apology Weinstein called for, the government appealed his ruling. Earlier this summer, a split three-judge Court of Appeals panel issued an unprecedented reversal of his decision, with Judges Dennis Jacobs and Debra Livingston deciding that Watson was, in fact, owed nothing since “the government did not act with malice” even in those first 27 days, since there’s no tort in New York that lines up with what happened to him after an ICE agent simply assigned him new parents, and since “Watson did not suffer cognizable damages” because he hadn’t been legally employed when he was arrested.
Remarkably, they also determined that Watson’s two-year clock to sue began to run on the 27th day of his incarceration—1,246 days before he was unceremoniously released in Alabama and 2,001 days before he finally received the certificate from the government showing that he was, in fact, a citizen.
“Watson’s own actions foreclose the argument” that he needed to be out of prison before suing for wrongful imprisonment, wrote judges Jacobs and Livingston. Since he vigorously argued his own case for years before even getting a lawyer, they ruled that Watson couldn’t credibly call being incarcerated a “severe” obstacle to suing for that incarceration. His lack of education, lack of a lawyer, and lack of awareness that he could sue also didn’t qualify as exceptional circumstances to bring an untimely claim.
“In sum, 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 nearly deported. Nonetheless, we must conclude that Watson is not entitled to damages from the government.”
Chief Judge Katzmann, dissenting in part, opened with a blistering reply, though surely one that felt like too little, too late for Watson: “It is well known that immigrants in this country ‘have no specific right to counsel’ in immigration proceedings, even for life-altering proceedings such as detention and removal. What is less well known, but no less consequential, is that U.S. citizens also have no such right if they are ensnared in our nation’s detention and removal system, and yet they bear the burden of establishing their citizenship to secure release.”
Katzmann continued, expanding his frame to the 34,000 non-citizens imprisoned by ICE on any given day: “Watson’s experience is far from unusual. Respondents are often forced into just such an unfortunate dilemma: either seek to postpone the removal hearing (and therefore extend their time in detention) in the hope of obtaining pro bono counsel, or else push forward without counsel and face a far greater likelihood of receiving an order of deportability. A recent study of immigration proceedings found that 60 percent of individuals in detention were unable to obtain access to counsel before their cases were completed, and that number rose for individuals who were transferred from New York to far-off detention centers like the Tensas Parish Detention Center in Louisiana that held Watson, where such individuals went without representation 79 percent of the time.
“The ‘legal process’ to which Watson was subjected, moreover, is one in which the odds are stacked against him and similarly situated respondents. The same study found that being detained and lacking representation ‘drops the success rate dramatically’ for the respondent: only 3 percent of individuals who are detained and who go without counsel have successful outcomes, as compared to 74 percent of individuals who are represented and are either released or never detained—a nearly 2400 percent increase in the odds of prevailing…
“I raise these points to emphasize how much the assistance of counsel is central not only to the ‘legal process’ of a criminal prosecution but also to immigration detention and removal proceedings.”
When the chief judge of the United States Court of Appeals for the Second Circuit writes a decision with the words “legal process” in scare quotes, something has gone seriously, terribly wrong.
Katzmann concluded, brutally: “I would hope that nothing about Watson’s 1,273-day detention can be said to have been ‘an entirely common state of affairs.’ If it were, we should all be deeply troubled. An American citizen was detained on the basis of a ‘grossly negligent’ investigation that ‘led to [his] wrongful detention.’ …
“I am hopeful that one day soon no immigrant or citizen will be forced to go through a predicament like Watson’s without the assistance of counsel to help vindicate his cause.”