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In dissenting opinion, federal judge decries lack of legal representation in immigration proceedings

New York City – After U.S. Immigration and Customs Enforcement (ICE) subjected a U.S. citizen to three and a half years in remote detention and threats of deportation, he brought a lawsuit seeking monetary damages from the government. Today, a panel of the U.S. Court of Appeals for the Second Circuit ruled his claims were barred because he failed to file them within the first two years of his detention, while he was still fighting his deportation without an attorney. His case demonstrates the need for reforms of the detention and removal process and the need for appointed counsel for individuals subject to mandatory ICE detention.

ICE took Davino Watson into custody using an immigration detainer request in May 2008 and charged him as a deportable national of Jamaica. Mr. Watson, who was not able to find an attorney until his case reached the Second Circuit in 2010, repeatedly told ICE officials that he was a U.S. citizen. The officials refused to investigate his claims and relied on incorrect files to pursue his deportation. In today’s ruling, the court agreed 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,” but that a “statute of limitations” required Mr. Watson to have filed a damages lawsuit within two years of his removal proceedings, when he was without attorneys and detained far from family.

“What happened to Mr. Watson is an awful injustice. Today’s federal court ruling is deeply disappointing as it fails to hold ICE accountable for its grossly negligent actions,” said NIJC National Litigation Coordinator Mark Fleming. “Americans should be concerned that the U.S. government locks up a U.S. citizen, isolates him from attorneys, and spends years trying to deport him when there is ample evidence that, as a citizen, he has every right to remain here.”

Second Circuit Chief Judge Robert Katzmann dissented in the case, citing Mr. Watson’s story to explain why individuals in immigration proceedings should be guaranteed legal representation. “This case is a striking illustration of the consequences that stem from the government’s broad discretion to initiate detention and removal proceedings, coupled with the sometimes limited ability even a U.S. citizen has to assert a valid claim of citizenship in the absence of the assistance of counsel,” he wrote.

The government does not provide appointed counsel to individuals facing deportation, even though studies have repeatedly shown that whether someone has an attorney is a major factor in whether they are able to succeed in their case. As the U.S. government increases its reliance on immigration detainers to bring people into ICE custody, such injustices are likely to increase. A University of California-Los Angeles Law School study of more than 1.2 million deportation cases decided between 2007 and 2012 found that, among similarly situated detained immigrants, those with counsel obtained relief three times more often than those without counsel. The study estimated that only 14 percent of detained immigrants were represented by an attorney.

Mr. Watson is represented by NIJC’s Mark Fleming and a team of Holland & Knight attorneys including Mark Flessner, Robert Burns, Tiana Stephens, Joshua McLaurin, and Lisa Kpor. Mr. Watson’s attorneys are considering what, if any, further legal action to take.