16 -6 55 (L)

Watson v . U nited States

UNITED STATES COURT OF APPEAL S

FOR THE SE COND CIRCUIT

August Term, 2016

(Argued: Apr il 6, 2017 Decided: July 31, 2017)

Docket Nos . 16-655 (L), 16-1357 (XAP)

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DAVINO WATSON,

Plai ntiff-Appellant -Cro ss-Appe ll ee,

- v.-

UNITED STATES OF AMERICA,

Defe ndant-Appellee-Cr oss-Appe ll ant,

JUAN ESTRADA, MICHAEL ORTIZ, TIM OTHY GUNTHER, JOHN DOES , 1-8,

Defe ndants.

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Before : KATZM ANN, C hief Judge, JACOBS , and LIVINGSTON,

Circuit Judges.Davino Watson, a United States citizen, was improperly held in

imm igration detention for more than three years b ecause the government

mistak enly believed that he was a depor table ali en. He s ued under the Feder al

Tort Claims Act i n the United States D istrict Court for the Easter n District of New

York (Weinstein, J.), asse rting four claim s: (1) false imprisonment, (2) mal iciou s

prose cution, (3) negli gent investigati on into his cit izenship status, and (4)

negligent fail ure to issue a cer tifi cate of citi zenship until years after his r elease.

The district court found the government liable to Watson on the false

imprisonment cl aim, di smissed the mali cious prosecution claim and negligent

investigati on claim on motion, and entered judgment for the gove rnment on the

negligent delay cl aim post-t rial.

We re verse the judgment wi th resp ect to the false imprisonment clai m,

which is ti me-barr ed. We affirm the judgment in al l other res pects. The

mali cious prosecution claim fails because the gover nment did not act wi th

mali ce, the ne gli gent investigati on claim fails for lack of a private analogu e, and

the negligent delay clai m fail s becaus e Watson suffe red no c ognizable damages.

Chief Judge Katzmann concurs in part and disse nts in part in a separate

opinion.

MARK A. FLESSNER (Robert J. Burn s on

the brief), H olland & K night LLP, Chicago,

IL, for Plai ntiff-Appellant -Cro ss-Appe ll ee

Davino Watson.

JOSEPH A. MARUTOLLO (Varuni Nelson,

James R. Cho, and Elliot M . Schachne r on

the brief), for Robert L. C apers , United

States Attorney for the Eastern District of

New York, Br ooklyn, NY, for De fendantAppellee-Cr oss-Appe ll ant United States of

America.

2Trina Realmu to, National I mmi gration

Project of the National Lawyers Guil d,

Boston, MA; Mary Kenney, American

Imm igration Council , Washington, DC, f or

amici curiae National I mmi gration Project

of the National Lawyers Guil d; American

Imm igration Council , in support of Davino

Watson.

JACOBS , Circuit Judge:

Davino Watson, a United States citizen, was held in im mig ration custody

for thre e-and-a-half year s on the mistaken belief that he was a depor table ali en.

He sued unde r the Fede ral Tort Claim s Act (the “FTCA”) in the United States

District Court for the Eas tern D istrict of New York (Weinstein, J.), asse rting false

imprisonment, m ali cious prosecution, and two negligence claim s. One

negligence claim is that i mmi gration offici als conducted a negligent investig ation

into Watson’s citi zenship status; the other is that the government negligently

failed to del iver a certificate of citi zenship to Watson in a tim ely manner. 1

After a be nch trial, the district court found the gover nment li able on the

false imprisonment cl aim, t hough the district court li mit ed damages to the first

twenty-seven days of Watson’s deten tion. The district court had pre viously

dismi ssed on moti on the mali cious prosecution claim as barr ed by 28 U.S.C

. § 2680(h), as well as the negligent investigat ion clai m for want of a state-law

analogue. After trial, the district court enter ed judgment against Wat son on his

claim that the government ne gli gently delayed delivery of his certificate of

citi zenship, concluding that Watson had not demonstrated negligence and h ad

suffere d no damages.

Watson also brought two claim s pursuant to Bivens v. Six Unkn own Named 1

Agents of Fede ral Bureau of Nar cotics, 403 U.S. 388 (1971), which the district

court dismi ssed. Watson does not challenge that ruling on appeal.

3Watson appeals the adve rse r uli ngs on his malici ous prose cution cl aim and

both negligence claims, and also appeals the district cou rt’s decision to li mit the

government’s damages o n the false imprisonment clai m. The government cros sappeals the district court’s judgment on the false im prisonment claim

, contending that the claim is ti me-barr ed by the FTC A’s two-year statute of

li mit ations.

It i s arr esting and disturbing that an American cit izen was detained for

years in immi gration procee dings whil e facing deportation, but Watson’s claims

for damages are foreclosed b y prece dent. Watson’s false imprisonment claim is

untim ely, and we reve rse the judgment to t hat extent. We othe rwise affirm.

Watson’s mali cious prosecution claim fails because no gover nment official acted

with m ali ce; his negligent investigati on claim fails because ther e is no analogous

tort under N ew York law, as required by the FTC A; and his claim that the

government ne gli gently delayed delivery of his certificate of ci tizenship fail s

because Watson did not suffer cognizable damages.

In sum, we rever se the judgment of the district court on the false

imprisonment cl aim, affi rm the judgment i n all ot her r espe cts, and dismiss as

moot Watson’s appeal from the lim itat ion on damages for false imprisonment.

I

At the tim e of his birth in Jamaica, neither of Watson’s pare nts were U.S.

citi zens. Whe n Watson was thirteen ye ars old in 1998, he enter ed the United

States as a lawful permanent re sident to li ve with his father, who was then a

lawful permanen t resident of the United States. Watson ’s father was naturalized

on Sep tember 17, 2002, and the re is no longer any dispute that Watson

automat icall y became a U.S. citizen at the same time as his father. However , for

most of the relevant per iod, the government had r eason to be li eve that Watson

was not a U.S. citizen. As wil l be shown, that misunderstanding res ulted i n part

from the fact that Watson’s father (H opeton Ulando Watson) and his mother

(Dore tte McFarlane) never married. The re levant statutes governing Watson’s

citi zenship status are set out in the margin. 2

A child born outside of the United States automati cally becomes a citizen 2

of the United States when all of the followi ng conditions have bee n

4A

In 2007, Watson pleaded guil ty in New York state court to selling cocai ne.

While serving his prison sen tence, Immi gration and Customs Enforce ment

(“ICE”) agents investigated Watson’s citizenship status to determine whether h e

was depor table.

The investigati on was be set by er rors . From the beginning, ICE agents

were p rese nted with informati on strongly suggesting that Watson was a citi zen

based on his father’s natur ali zation, but the agents did not competently pursue

the leads. For e xample, during Watson’s first interview with I CE, he claim ed

U.S. citizenship, tol d the ICE agents the n ames of his father and step-mother, and

gave their telephone number to assist the investigation. The ICE agents did not

call t he telephone number, des pite writi ng a note to do so in order “to verify

fulfi ll ed:

(1) At least one paren t of the child i s a citizen of the United

States, whethe r by b irth or naturalizati on.

(2) The child is under the age of eighteen years.

(3) The child is residing i n the United States in the legal and

physical custody of the citi zen par ent pursuant to a lawful

admission for permanent re sidence.

8 U.S.C. § 1431(a). For purpose s of that provision, “child” i s defined as:

an unmarried per son under twenty-one year s of age and includes a

child l egiti mated under the law of the child’s residence or domicil e,

or under the law of the father’s r esidence or domici le, whether in the

United States or elsewh ere , . . . if such legit imat ion . . . takes place

befor e the child reache s the age of 16 ye ars . . . and the child i s in the

legal custody of t he legiti mati ng . . . paren t . . . at the ti me of such

legit imat ion . . . .

8 U.S.C. § 1101(c)( 1).

5status.” App’x at 206, 500. There may be reas on to suspect a pr offere d phone

number, but the call was never made, even though Watson’s pre-s entencing

repor t, a copy of which ICE received, indicated that he was a U.S. citizen, li sted

the names of his father and step-mother, an d gave the same phon e number that

Watson had provided.

Although they did not cal l his father and step-mother , ICE agents did

attempt t o learn more ab out them as part of the investigati on into Watson’s

citi zenship. Importantly, Watson’s father’s name is “Hope ton Ulando Watson”

and his step-mother’s name is “ Clare Watson.” When ICE agen ts searc hed an 3

ICE database for “Hopeton Watson” and “Clare Watson,” the y found a

“Hopeton Livingston Watson” and a “ Calrie Watson.” Because these two per sons

were b orn in Jamaica and li ved near New York, ICE age nts assumed that they

were Watso n’s pare nts.

The agents might be forgiven for maki ng that assumption: “Hopeton”

mig ht seem like an unusual nam e, and “C alrie” is wi thin a typo of “Clare.” But

the ICE agents also ignored or failed to recognize flags that these people wer e not

related to Watson. Aside from the fact that Hopeton Livingston Watson had the

wrong middle name, his fi le also reflected that he lived in Connecticut (rather

than New Yor k), did not have a child nam ed Davino, and b ecame a lawful

permanen t resident thre e years after the date of Davino Watson’s lawful

permanen t residency. Evidently, the ICE officers also failed to look at t he

affidavit that Watson’s actual father (Hopeton Ulando Watson) had sub mit ted in

connection with Davino’s applicat ion for legal permanent res idency in 1998.

That affidavi t contained Hopeton Ulando Watson’s date of birth, alien number,

and social security number, none of which matched the corre sponding file data

for Hope ton Livi ngston Watson.

Nonethe less, the gover nment assumed that Hopeton Livingston Watson

was Davino’s father . And since Hope ton Livi ngston Watson was not a citizen,

ICE agents be li eved that Watson simil arly lacked cit izenship and was subject to

deportation.

When ICE agen ts asked Watson for his mother’s name, he ap paren tly gave 3

them the name of his step-mother.

6A supervisor y ICE officer, re lyi ng on this conclusion wi thout undertaking

more investigati on, drafted a “N otice to Appear,” which initi ates depor tati on

procee dings. In the words of the district court, another s upervisory officer

“mindl essly signed” the No tice to Appear and for warded it to the ICE office

resp onsible for taking Watson into custody.

B

After Watson completed his state prison s entence , he was ar reste d by ICE

agents, and placed in custody despite Watson’s insistence that he was a citizen.

Watson’s Notice to Appear was formally fi led nineteen days later, and h e first

appeare d befor e an immi gration judge about one month afterward.

C

Watson actively sought t o prove h is citi zenship throughout his

imm igration detention. Early on, he applied to t he United States C iti zenship and

Imm igration Services (“USC IS”) for a cer tifi cate of citi zenship (a document that

evidences the bear er’s U.S . citi zenship). USC IS denied his request on the b asis of

In re Hines, 24 I. & N. D ec. 544 (BIA 2008), decided by the Boar d of Imm igration

Appeals (“BIA”) twenty-eight days after Watson was detained.

Hines dealt with the requisi tes of “legiti mati on” under J amaican l aw. That

issue was critical t o Watson becaus e he could der ive citi zenship fro m his father

only if he had been “legitimat ed” by his father . See 8 U.S.C. §§ 1101(c)( 1),

1431(a). In Hines, the BIA stated that it “wil l deem a chil d born o ut of wedlock i n

Jamaica t o have had his or her p aternity established ‘by legiti mati on’ only upon

proof that the child’s paren ts married at some tim e after the child’s birth.” 24 I. &

N. De c. at 548. Because Watson’s paren ts never married, he was n ot deemed to

have be en “legiti mated,” and consequently was ineli gible for derivative

citi zenship under the BIA’s then-curr ent interpre tati on of Jamaican law.

Ulti mately, Hi nes led to the den ial of Watson’s application for a certificate of

citi zenship by US CIS, the issuance of an orde r of re moval by the im mig ration

judge, and the affirmance of Watson’s or der of r emoval by the BIA.

7D

In a prior appeal, Watson petitioned this Court to review the immi gration

judge’s order of removal. We denied his petition, but i n so doing we declined to

consider whe ther the BIA corr ectly concluded that Wat son had not be en

“legit imat ed;” rather , we relied on the BIA’s alternative ruling that Wat son had

not produced e vidence showing that his father had legal custody over him,

which would preclude derivative ci tizenship regardless of legiti mati on. See 8

U.S.C. § 1431(a)(3) . However , after Watson filed an emerge ncy petition i n this

Court, we r ecalled our mandate and reinstated Watson’s or igi nal petiti on. We

then asked the BIA to cl arify and justify i ts “legit imat ion” analysis. Watson v.

Holder, 643 F.3d 367 (2d Cir. 2011) (p er cur iam).

After our r emand, ICE appare ntly began to suspect that Hines might not

apply to Watson, and that Watson mi ght be a U.S. citizen under the BIA’s preHines pre cedent. The gove rnment’s pr ecise views on the app li cation of Hines to

Watson’s case are so mewhat obscure. In any event, ICE re leased Watson in 4

November 2011 into rural Alabam a (where he knew n obody), without m oney,

Shortly befor e Watson was r eleased fr om custody, an ICE memo suggested 4

that Hines should not be applied retroac tively . If so, Watson would be a citi zen

because , under the pre-H ines pre cedent In re Clahar, 18 I. & N. De c. 1 (BIA 1981),

Watson would have been deemed legitim ate pursuant to the BIA’s interpre tati on

of Jamaican l aw. App’x at 402-03. The BIA did not appear to rely on that

reaso ning when it formall y terminated Watson’s removal procee dings more than

a year later. Instead, the BIA’s unpublished opinion reas oned that Hines dealt

with the statut ory phr ase “pater nity by legi tim ation,” and thus did not i mpli cate

the statutory term “legiti mated,” which was the relevant term in Watson’s case

. App’x at 457; see also 8 U.S.C. § 1432(a)(3) (2000), r epealed by C hild Cit izenship

Act of 2000, Pub. L. No. 106-395, § 103, 114 Stat. 1632-33. In any event, the

government conce ded that Watson had be en “legiti mated” under Jamaican law,

and the BIA concluded that Watson consequently “derived citi zenship through

his father’s natur ali zation.” App’x at 457. The BIA’s shifti ng interpre tati ons of

Jamaican l aw did not end, however : it has since overr uled Hines in it s entirety,

returning to the interpr etation first expres sed in Clahar. S ee In re Cros s, 26 I. &

N. De c. 485, 485-86 (BIA 2015).

8and without being tol d the reas on for his r elease. Removal procee dings

technicall y continued for more than a year , ending at last when the BIA,

resp onding to this Court’s remand, issued an unp ublished decision concludi ng

that Hines did not apply to Watson’s case. The BIA deter mined that Wat son

“was legiti mated” under Jamaican law, deduced that Watson “derived

citi zenship through h is father’s naturalization,” and accordingly t erminated

Watson’s re moval proceedings. App’x at 457.

Watson later moved to reope n his applicati on for a ce rtificat e of

citi zenship, which he r eceived after a long delay. The certificate states that

Watson has be en a citizen since the date of his father ’s naturalizati on.

E

Watson filed an admi nistrative clai m for damages with DHS on Octob er

30, 2013, which was denied approx imat ely one year later. H e initi ated this

lawsui t in the Eastern D istrict of New York on October 31, 2014.

II

The district court found the government liable to Watson on his clai m of

false imprisonment. The government’s argument that the claim w as untimel y

was rejecte d on alternative grounds. First, the cour t ruled that the statute of

li mit ations for the false imprisonment did not begin to run until the day Watson

rece ived his certificate of cit izenship (November 26, 2013). Second , even if

Watson’s claims were filed after the lim itat ions period had ex pired, the district

court ruled that Watson would be entitl ed to equit able toll ing unti l the day that

Watson was informed by his lawyer of his r ight to bring an FTCA clai m (Jul y 31,

2014). Since both e vents post-dated the fili ng of Watson’s administrati ve claim

, the false imprisonment clai m woul d be timely.

We disagree . Watson’s false imprisonment clai m is unti mely, and the

judgment of the district court is rever sed to the ex tent it held t he gover nment

li able on Watson’s false imprisonment claim

.

9A

Watson brought his claim pursuant to the FTCA, which im poses a twoyear statute of lim itat ions:

A tort clai m agai nst the United States shall be for ever barr ed unless

it i s pre sented in writing to the appropriate Fede ral agency within

two years after such claim accrues . . . .

28 U.S.C. § 2401(b ). Since Watson’s administrative clai m for false imprisonment

was filed on October 30, 2013, it is untim ely if i t accrued be fore Oc tober 30, 2011.

The question, then, is when Watson’s claim accrued. 5

The district court (errone ously) held that thi s question was governed b y

Heck v. Humphre y, 512 U.S. 477 (1994). But Watson concedes on appeal (and 6

we agree ) that the proper framework is provided b y Wall ace v. Kato, 549 U.S. 384

(2007). Wallace held that “[l ]imi tati ons be gin to run against an acti on for false

imprisonment when the alleged false im prisonment ends .” Id. at 389 (q uoting 2

H. Wood, Limi tati ons of Actions § 187d(4), p. 878 (re v. 4th ed. 1916)). It is of

The district court’s denial of the government’s motion for summary 5

judgment based on the claim’s accrual date i s reviewed de novo. Se e Buttry v.

Gen. Signal Corp., 68 F.3d 1488, 1492 (2d C ir. 1995).

In Heck, the Supr eme Cour t held that a prisoner cann ot bring a claim against 6

the govern ment “for allegedly unconstit utional conviction or im prisonment”

unless the plaintiff can prove that the “conviction or sentence has be en re verse d

on direct appeal, exp unged by ex ecutive order, de clared invali d by a state

tribunal authorized to m ake such dete rminati on, or called into q uestion by a

feder al court’s issuance of a writ of habeas c orpus.” Id. at 486-87. In li ght of that

ruling, the Supreme C ourt further held that “a § 1983 cause of action for damages

attributable to an unconstit utional conviction or sentence does not accr ue until

the conviction or sentence has be en invalidat ed.” Id. at 489-90. Analogi zing to

Heck, the district court determined that Watson’s false imprisonment clai m did

not accrue until he rece ived his certificate of cit izenship on Novembe r 26, 2013.

10course p ossible for the tor t of “false im prisonment” to end while physical

detention continues. That is so because o f the distincti on betwee n the tort of false

imprisonment and the tort of mal iciou s pros ecution: false im prisonment is

character ized by “detention without legal process ,” while m ali cious prosecution

involves detention resulting from “ wrongful institution of legal process.” Id. at

389-90 (emphases in original ). “[F]alse imprisonment ends once the victi m

becomes h eld pursuant to such process --when, for example, he is bound ove r by a

magi strate or ar raigned on char ges.” Id. at 389 (emphasis in original ).

“Thereaf ter, unlawful detention forms part of the damages for the ‘entirely

disti nct’ tort of mali cious prosecution.” Id. at 390 (q uoting W. K eeton et al.,

Prosser & Keeton on Law of Torts § 119, p. 885-86 (5th ed. 1984) ). In short, a false

imprisonment cl aim starts to run when a detainee be gins to be held pursuant to

legal process.

The timel iness of Watson’s c lai m therefor e depe nds on whe n he be gan to

be he ld pursuant to legal proces s. There are se veral potential dates, incl uding the

day Watson was ser ved with a “Notice to Appear” (which starts re moval

procee dings), and the day Watson first appear ed bef ore an immig ration judge.

But we need not dec ide the precise date on which Watson was first held

pursuant to legal process b ecause we conclude that Watson was certainly held

pursuant to such pr ocess b y the tim e an immi gration judge ordere d Watson’s

removal, which occurred on N ovember 13, 2008. By that point, Wat son and the 7

government had filed opposing br iefs on re movabil ity, and the im mig ration

judge weighed the arguments and r uled against Watson, thereby affirming the

government’s r ight to detai n him. The Supreme C ourt has indicated that a cause

of action for false imprisonment begins at least by the point a crimi nal defendant

is arraigned on char ges, se e Wallace, 549 U.S. at 391, and by Novembe r 13, 2008,

Watson had gone thr ough an entire trial-li ke proce eding to determine the

It bears emphas is that l egal process may attach prior to an im mig ration 7

judge’s determination of removabili ty.

11lawful ness o f his detention. Because that date occurr ed more than two year s

befor e Watson filed his admi nistrative clai m, his cause of action is unti mely. 8

B

Alternatively, t he district court ruled that Watson’s claim s were tim ely on

the ground of e qui table toll ing. In these circumstances, we re view the district

court’s decision to all ow equit able toll ing for abuse of discr etion. See Philli ps v.

Generations Famil y Health Ctr., 723 F.3d 144, 149 (2d C ir. 2013).

“Generally, a li tigant seeking equi table toll ing bears the burden of

establishing two elements: (1) that he has bee n pursuing his rights dili gently, and

(2) that some extraor dinary circumstance stood in his way.” Mott ahedeh v.

United States, 794 F.3d 347, 352 (2d Cir. 2015) (quoting Pace v. DiG ugli elmo, 544

U.S. 408, 418 (2005)). In this appeal, the second e lement is decisi ve.

Watson’s case is certainly extraordinary in a number of unfortunate ways.

However , “[t]he term ‘extr aordinary’ re fers not to the uniq ueness of a party’s

circumstances, but rather to the sever ity of the obstacle im peding compli ance

with a l imi tati ons per iod.” Harper v. Er cole, 648 F.3d 132, 137 (2d Cir. 2011). So:

“[t]o secure equit able toll ing, it is not enough for a par ty to show that he

experienced extraor dinary circumstances. He must further demonstrate that those

circumstances caused him t o miss the original fili ng deadline.” Id. (emphasis

added).

Watson also contends that, since he was a U.S. citizen, he was not subject to 8

“legal process” b ecause immi gration judges lack ju risdicti on to conduct removal

procee dings against U.S. citi zens. He cites Ng Fung Ho v. White, 259 U.S. 276,

284 (1922): “Jurisdicti on in the exe cutive to order depor tati on exists only if the

pers on arr ested is an alien. The claim of citi zenship is thus a denial of an

esse ntial jurisdict ional fact.” Nevertheless, an imm igration j udge has jurisdiction

to consider a pers on’s claim t o citi zenship when the govern ment all eges the

pers on is an alien; and such jurisdicti on is sufficient to al low l egal process to

begin.

12The district court’s grant of equit able toll ing was based on Watson ’s lack of

education and legal t raining, his unawareness that he could bring an FTCA claim

until being advised by appointed counse l, his depress ion, and “most

signifi cantly,” the fact that government official s told Watson that he was not a

U.S. citizen. App’x at 181-82. None of thos e re asons justifies equi table toll ing.

We begin with the circumstance emphasized by the district court (and by

Watson on appeal), that “the gover nment actively and repeatedly insisted . . . that

he was not a citizen, which made it more difficul t for Watson to rec ognize his

FTCA cause of action.” Watson’s Reply Br. at 35. But making i t “more difficul t”

for Watson to asse rt his false imprisonment clai m is i nsufficient. Rather, Watson

must demonstrate that the government’s as sertion of his alien status was a

sufficientl y “sever e” obstacle that “caused” him to mi ss his fili ng deadline.

Harpe r, 648 F.3d at 137.

Watson’s own actions fore close the argument. He mounted a vigorous

case in the immi gration court in the effort to pre vent depor tati on: he ob tained

copies of important documents supporting his clai m to ci tizenship, prese nted

those documents to the immi gration judge and other officials, fi led a pro se

moti on to terminate his removal proceedings, and r esponde d to the

government’s b rief in opposition. During his detention, Watson also appli ed to

USCIS for a certificate of citi zenship, pr offering documents in support of his

claim of derivative citi zenship.

The govern ment’s asser tion of Watson’s ali enage could not have be en so

disheartening as to pr eclude him from fi li ng an administrati ve claim for damages

while (at t he same time) it di d not inhibit him from contesting hi s citizenship in

an imm igration proceeding base d on identical fact s. The gover nment’s position

theref ore did not “cause[] him to mi ss the or igi nal fil ing deadli ne” for h is

admini strative clai m. Harper, 648 F.3d at 137.

It i s hars h to place the burde n on Watson to file a clai m for damages while

he is in im mig ration detention and fighti ng to preve nt his deportation. But the

Supre me Court has s tated: “We know of no suppor t . . . for the far-r eaching

proposition that equi table toll ing is appropriate to avoid the risk of concurre nt

13li tigat ion.” Wall ace, 549 U.S. at 396. The facts of Wallace are de monstrative.

Arre sted by C hicago poli ce in 1994, Wallace confessed to murder while i n police

custody. Id. at 386. Years later, Ill inois state appellat e courts vacated the

conviction because Wallace had been arre sted without probable cause.

Prosecutors droppe d charges in 2002, and a year later Wallace fil ed a § 1983 suit

seeking damages for false imprisonment. I d. at 387. The Supre me Court held

that the clai m for false imprisonment accrued when Wallace appear ed bef ore a

magi strate, and be cause that occurre d (many) more than two years b efore he

filed sui t, his clai m was unti mely. Id. at 391-92. Eq uitabl e tolli ng was re jected 9

notwithstandi ng that Wall ace was either awaiti ng trial or was im prisoned

pursuant to a then-valid convicti on throughout that two-year per iod. Id. at 396-

97. Equi table toll ing was not warranted e ven though a district court woul d have

stayed or dismissed Wallace’s suit pursuant to Heck if Wal lace had filed his tort

claim befor e his conviction had been ove rturned. Id. at 396-97. In li ght of

Wall ace, we cann ot justi fy the grant of equitable tol li ng to Watson on the ground

that he was (howeve r under standably) focused on avoiding deportation befor e

fili ng his claim for administrati ve damages.

Watson’s depr ession cannot justify equi table toll ing for simi lar reason s.

Depr ession did not preve nt him from contesting hi s citizenship before the

imm igration j udge, so it could not have prevented h im from fi li ng his

admini strative clai m for damages.

Nor can e qui table toll ing be pre mised on Watson’s lack of education, pro

se status, or ignoran ce of the r ight to bring a clai m. See, e.g., Men ominee Indian

Tribe v. United States, 136 S. C t. 750, 756-57 (2016) (tribe’s mistake of law di d not

constitute extraordinary circumstance sufficient to justi fy equit able toll ing);

Smith v. McG innis, 208 F.3d 13, 18 (2d Cir. 2000) (habeas petiti oner’s “pro se

status . . . does not merit equit able toll ing”). “Equ itable tol li ng is a rare r emedy to

The Supre me Court did all ow toll ing for the time period that Wal lace was a 9

minor. Wall ace, 549 U.S. at 390. Such tolling i s distinct from equ itable tol li ng,

and has no app li cation to thi s case.

14be applied in unusual ci rcumstances, not a cure -all for an entirely comm on state

of affairs.” Wall ace, 549 U.S. at 396.

10

In sum, Watson’s false im prisonment claim was untim ely and cannot be

saved by e qui table toll ing. We therefor e grant the cr oss-appe al of the United

States on this issue and r ever se the judgment of the district court wit h res pect to

the govern ment’s liabi li ty on Watson’s false imprisonment clai m.

III

The district court dism issed Watson’s malici ous prose cution cl aim on

moti on, concluding that t he cause o f action was foreclosed b y 28 U.S.C. § 2680(h ),

which bars FTC A claim s that arise out of mali cious prosecution unless cer tain

exce ptions apply. App’x at 135. One such ex ception is a clai m for mali cious

prose cution “with regard to acts or omissions of investigati ve or law enfor cement

officers of the Un ited States government.” 28 U.S .C. § 2680(h). Watson ar gues

that the district court fai led to recognize that his mal iciou s pros ecution clai m was

based on acts and omissions by ICE and DHS officers, who (Watson contends)

are “investigative or law enforcement officer s” within t he meaning of § 2680(h).

Though Watson is corre ct on this point, see Liranzo v. United States, 690 F.3d 78,

91 (2d Cir. 2012), the district court’s factual findi ngs are fatal to hi s claim

.

To recover under the FTCA, a plainti ff must show that a government

employee commi tted a tort “under circumstances whe re the Un ited States, if a

private pers on, would be liabl e to the claim ant in accordance with the law of the

place where the act or omission occurred.” 28 U.S .C. § 1346(b)(1) ; see also 28

The dissent thrice adve rts to this quot ed passage , drawing the invali d 10

inference that the majorit y deems the multi -year de tention of an American citi zen

as an “entirely common state of affairs.” Dissen t at 1, 15, 18. What i s “an entirely

common sate of affairs” is Watson’s 11th-grade e ducation and the corollary that

he lacks knowledge of the law. The dissent would rely on those ch aracteristics to

toll the lim itat ions period. But those char acteristics, commonpl ace for pr o se

li tigants (and for a substantial segment of the populati on), are wh olly insuffici ent

to justi fy the “rar e re medy” of equit able toll ing. Wall ace, 549 U.S. at 396.

15U.S.C. § 2674. The parties agree that New York law applies to thi s appeal. In

New York, the elements of mali cious prosecution are: “(1) the init iati on of a

procee ding, (2) it s termination favorably to plai ntiff, (3) lack of probable cause,

and (4) mali ce.” Savino v. City of New Yor k, 331 F.3d 63, 72 (2d Cir. 2003).

As the Ne w York Cour t of Appeals has re cently reaffirmed, the tort of

mali cious prosecution requires pr oof of both malice and a lack of probable cause,

which are “indepen dent and indispensab le elements.” Torres v. Jones, 26 N .Y.3d

742, 761 (2016) (quoti ng Martin v. City of Al bany, 42 N.Y.2d 13, 17 (1977)). To

prove malice, a plai ntiff mu st show that the defen dant acted in bad faith, i.e., on

the basis of “a wro ng or improper moti ve, something other than a de sire to see

the ends of justice served.” Id. (quoti ng Narde ll i v. Stamberg, 44 N.Y.2d 500, 503

(1978)). After a be nch trial on li abili ty wit h res pect to the claim s that survived

dismi ssal, the district court found that Watson’s “harm was caused by a s eries of

negligent acts by government officials,” and that “[t]here is no evidence of mali ce

or intent to harm plainti ff.” App’x at 226. Because Watson cannot demonstrate

mali ce under New York law, his mali cious prosecution claim fails.

IV

Watson asse rts two distinct cl aims of negli gence. The first clai m is that ICE

agents negligently fai led to compl y with i nternal re gulati ons for h ow to

investigate a suspected alien’s asser tion of U.S. citi zenship. The district court

dismi ssed, r easoning that Watson was es sentiall y arguing that I CE agents

conducted a “negligent investigati on,” which is not actionable under New Yor k

tort law. We review that decision de novo. Fountain v. Kari m, 838 F.3d 129, 134

(2d Cir. 2016).

Under the FTCA’s private analogue requirement, see 28 U.S.C. § 1346(b )(1),

“a plainti ff’s cause of action must be comparable to a cause of action against a

private citi zen re cognized in the jurisdict ion where the tort occurre d.” McGowan

v. United States, 825 F.3d 118, 125 (2d Cir. 2016) (internal quotati on marks

omit ted). And “[u]nder New York law, a plainti ff may not recover under ge neral

negligence principles for a claim t hat law enforcement officers failed to exercise

the approp riate degree of care in effe cting an arrest or init iati ng a prose cution.”

Bernar d v. United States, 25 F.3d 98, 102 (2d Cir. 1994).

16Watson concede s that there is no N ew York tort of ne gli gent investigati on,

but contends that he is ass erting the distinct cl aim t hat Watson’s injury was

caused by the failu re of ICE to follow it s own internal directives. A simil ar re

character izati on was attempted in McG owan; like the plai ntiff i n McGowan,

Watson has “failed to establish that New York law recognizes a fr eestanding

duty to abide by private regulations.” 825 F.3d at 127. Al though fail ure to abide

by internal regulations may “constit ute[] evidence of negligence,” it does not

demonstrate “ne gli gence in itself.” Id. (emphasis in origi nal). Because Ne w York

does not re cognize a duty to fol low private regulati ons, Watson cann ot ground

his negligence claim on ICE’s failure to foll ow its own directives regarding how

to pursue an investigation int o a subject’s citizenship. 11

This negligence clai m consequently fai ls for lack of a private analogue, and

we affirm the district court’s dism issal of that cl aim.

V

Watson asse rts that USCIS ne gli gently delayed providing him with hi s

certificate of citi zenship for more than two years after he was release d from

custody. After a be nch trial, the district court enter ed judgment for the

government for two independent re asons. First, Watson failed to demonstrate

that the government acted ne gli gently. Second, “[e]ve n if a duty of care was

viol ated . . . , plainti ff failed to sati sfy his burde n of establishing damages caused

by the br each.” App’x at 231.

Specificall y, with respect to damages, the district court found that

Watson’s “inabili ty to secure wor k was a res ult of hi s criminal history, drug use,

and gener al l assitude, not his im mig ration status,” and that there is “no cre dible

evidence that plainti ff’s post-re lease depr ession was cause d by the gover nment’s

failu re to pr ovide a certificate of cit izenship earlier than it did.” I d. Without

Watson also contends that this negligence claim is partial ly based on the 11

government’s “failure to act.” Watson’s Reply Br. at 24. But the “failure to act”

that Watson all eges is simply a fai lure to conduct a non-negligent investigat ion.

New York law does n ot recognize such a tor t. Bernar d, 25 F.3d at 102.

17challenging t hose findings, Watson argue s that the district court found that

Watson had suffere d other cognizable harm as a res ult of hi s delay in receiving his

certificate of citi zenship.

Watson evidently relies on the district court’s “Alternative Damages

Award,” in which the district court provided for conditional damages “in the

event that the Co urt of Appeals concludes th[e] [district] court er red in lim iti ng

damages to . . . false imprisonment.” App’x at 242. Wit h res pect to Watson’s

claim for negligent delay of his certificate of cit izenship, the Alternative Damages

Award stated that: “ If

plainti ff is entitl ed to damages for the p eriod betwee n his

release from ICE custody and his rece ipt of a certifi cate of citi zenship, he would

be en tit led to $1,000 per day for what amounts to a constructive lim itat ion on his

li ber ty, and an additi onal $250 per day for the emotional injury caused by the

government’s failure to timel y provide the cer tifi cate.” Id. (emphasis added).

Watson contends that this passage is an im plici t findi ng that Watson did suffer

cognizable damage as a result of the delayed delivery of the ce rtificat e, of a

nature (emotional dam ages and a cons tructive li mit ation on li ber ty) disti nct from

the damages the district court found unavail able in its prim ary finding on

damages (i.e., that Watson could not show damages for depr ession or lost

income).

We disagree with Watson’s reading of the district court’s order . The

district court was q uite cl ear that Watson’s failure to demonstrate damages was a

complete bar to re covery on h is negligent delay cl aim: “[e]ven if a duty of care was

viol ated by the time it

took to issue a certificate of cit izenship, plainti ff failed to

satisfy his burden of e stablishing dam ages caused by the br each.” App’x at 231.

The district court ordere d damages to be awarde d in the alternative only i f we

disagree with the district court’s threshold conclusion that Watson had failed to

prove damages; we do not.

Accordingly, we affirm the distri ct court’s determination wit h res pect to

Watson’s se cond negligence claim. 12

In li ght of our disposition, we have no nee d to consider the district court’s 12

conclusion that Watson’s negligence clai m was suffici ently analogous to a cl aim

18CONCLUSION

In sum, there is no doubt that the govern ment botched the investigation

into Watson’s asser tion of cit izenship, and that as a res ult a U.S. ci tizen was held

for year s in im mig ration detention and was near ly deported. None theless, we

must conclude that Wat son is not entitled to dam ages fro m the government. His

false imprisonment cl aim w as untimel y, his mal iciou s pros ecution clai m does not

demonstrate malice, his “negli gent investigati on” claim fails for lack of a proper

analogue in state law , and his claim for negligent delivery of a certificate of

citi zenship fails because Watson could not show cognizable damages.

Accordingly, the judgm ent of the district court is rever sed on the false

imprisonment cl aim and affi rmed in all other r espe cts. Watson’s appe al

regar ding the amount of dam ages for false imprisonment i s dismissed as moot.

recognized b y New York tor t law t o survive the FTCA’s p rivate analogue

requirement.

191 K ATZMANN

, Chief Judge

, concurring in part and dissenting in part:

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. Aris v. Mukasey

, 517 F.3d 595, 600 (2d Cir. 2008) (internal

quotation marks omitted). 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 in order to secure release. 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.

While I join the majority’s disposition of Watson’s malicious prosecution

and negligence claims, I do not join the other aspects of the decision, for two

principal reasons. First, I do not share the majority’s confidence that, for the

purposes of Watson’s false imprisonment claim, “Watson was certainly held

pursuant to [legal] process” by no later than November 13, 2008. Maj. Op. at 11.

Second, I do not find that, after a thorough bench trial and detailed findings of

fact, the district court abused its direction in concluding that equitable tolling

was warranted. I cannot agree with the inference that the conditions surrounding

Watson’s wholly unjustified 1,273

‐ day detention were an “entirely common state

of affairs.” Maj. Op. at 22 (quoting Wallace v. Kato

, 549 U.S. 384, 396 (2007)). To

the best of my knowledge, this is the first time this Circuit has ever reversed a

district court’s decision to grant equitable tolling in such a fashion, and I simply

do not think such a reversal is warranted in light of the circumstances of

Watson’s detention. For the reasons that follow, I respectfully dissent as to these

issues.

I. The Government’s Negligent Detention of Watson

Prior to acknowledging in a “revised memorandum” in November 2011

what the government should have recognized from the start

— that Watson has2 been a U.S. citizen since 2002

— the government had detained Watson for 1,273

days. Watson v. United States

, 133 F. Supp. 3d 502, 518 (E.D.N.Y. 2015) [hereinafter

Watson I ]. I do not share the majority’s view that the government’s mistake

“resulted in part from the fact that Watson’s father (Hopeton Ulando Watson)

and his mother (Dorrette McFarlane) never married,” Maj. Op. at 4, because

regardless of his parent’s marital status, Watson’s derivative citizenship claim, if

properly investigated, would have been easily verified. Instead, as the district

court explained in its post

‐ trial findings, Watson’s “wrongful” detention resulted

from the government’s “negligent failure to properly investigate plaintiff[’]s

claim of citizenship” and from the “grossly negligent” “[r]epeated and routine

approval of the initial investigation by public officials without checking the

facts.” Watson v. United States

, No. 14

‐ CV

‐ 6459, 2015 WL 7281637, at *1 (E.D.N.Y.

Nov. 16, 2015) [hereinafter Watson II ]. These errors, which occurred prior to

Watson’s detention, were then compounded during Watson’s removal

proceedings by the misapplication of relevant case law by government lawyers,

the immigration judge (“IJ”), and even the BIA, which was only brought to light

once Watson’s case finally reached our Court and we assigned him pro bono

counsel. I thus share the trial court’s cogent view that “[i]f plaintiff had counsel

upon his initial detention, it is likely that he would promptly have been found to

be a United States citizen and released.” Watson v. United States

, No. 14

‐ CV

‐ 6459,

2015 WL 7281638, at *1 (E.D.N.Y. Nov. 17, 2015) [hereinafter Watson III ].

It is worth reflecting on the “grossly negligent” government actions that

led to Watson’s three

‐ and

‐ a

‐ half

‐ year detention. Watson II

, 2015 WL 7281637, at

*1. Early in ICE Deportation Officer Erik Andren’s investigation into Watson’s

citizenship status and eligibility for removal, Andren interviewed Watson “at

New York’s Downstate Correctional Facility where plaintiff was incarcerated.”

Watson v. United States

, 179 F. Supp. 3d 251, 262 (E.D.N.Y. 2016) [hereinafter

Watson IV ]. Watson told Officer Andren that he was a U.S. citizen and provided

the names and phone number of his father and step

‐ mother, who could verify his

citizenship status. Prior to that interview, Officer Andren had received a packet

of information from the New York State Department of Correctional Services that

included a “New York City Department of Probation Pre

‐ Sentence Investigation

Face Sheet.” App. 254. That document corroborated the names and phone3 number of Watson’s father and step

‐ mother, and it clearly indicated that Watson

was a U.S. citizen.

From the earliest stages of the investigation, then, there were clear

indications that Watson was a citizen and therefore ineligible for removal. Yet

Andren appears to have made almost no effort to verify Watson’s claim of

derivative citizenship. At trial, when asked if he ever contacted Watson’s

parents, Andren answered, “I don’t recall calling them,” App. 500, and the trial

evidence indicated that he never successfully reached anyone at Watson’s

parents’ phone number. Andren also introduced errors into the report he

produced, pulling the alien files ostensibly for Watson’s father and step

‐ mother

— Hopeton Ulando Watson and Clare Watson

— but actually requesting the

alien files of two entirely unrelated individuals with different names

, Hopeton

Livingston Watson and Calrie Dale Watson. As the district court succinctly noted

after its bench trial,

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. The file for

Hopeton Livingston Watson indicated that he lived in

Connecticut and was not married; plaintiff told Officer

Andren that his father lived in New York and was married.

It also indicated that Hopeton Livingston Watson became a

permanent resident of the United States on April 14, 2001,

three years after plaintiff came to the United States as a

permanent resident. And none of the children listed just a

few pages into the file were named Davino Watson, or were

listed as living in the United States. Each of these facts

should have indicated that this was not the correct file.

. . . It

is obvious that the file for Calrie Dale Watson is not the

correct file. In addition to the incorrect first name, this file

shows that Calrie Dale Watson was married to a Gabriel

Miller, not Hopeton Watson. The file indicates that the

Watson name came from this individual’s first husband,

Rowan Eric Watson, who died in 1983.4 Watson IV, 179 F. Supp. 3d at 263 (citation omitted). In short, rather than contact

Watson’s parents to ascertain plaintiff’s naturalization history, Officer Andren

ordered the incorrect alien files for Watson’s parents, and to compound this

error, “[n]either Officer Andren—who did not even wait for the files to arrive

before making his decision—nor any other ICE official took reasonable steps to

investigate plaintiff’s well founded claim of United States citizenship.” Id. The

report Andren produced misidentified Watson’s parents (and introduced a new

error by referring to Watson’s step

‐ mother as “Claire” rather than either “Calrie”

or, correctly, “Clare”), omitted their address and phone number, and stated that

Watson was “a national and citizen of Jamaica” and that neither he nor his

parents were U.S. citizens. App. 260.

Andren’s report was passed on to his superior, Officer Juan Estrada, who

conducted no independent investigation of his own and relied only on Officer

Andren’s report and the incorrect alien files to produce charging documents

indicating that Watson’s “parents are nationals and citizens of Jamaica who have

not naturalized,” so “[n]o issue of derivation applies,” a conclusion which the

trial court found “was flatly wrong.” Watson IV

, 179 F. Supp. 3d at 264 (emphasis

omitted). An ICE attorney then reviewed the charging documents to confirm

legal sufficiency to initiate removal proceedings without pursuing any

independent verification of their accuracy, an action the district court labeled a

“level of review [that] was effectively a mindless failure.” Id. Finally, ICE

Supervisory Deportation Officer Michael Ortiz “merely signed off on the obvious

errors already committed,” “a shirking of duty.” Id. at 264–65.

As a result of this “grossly negligent” investigation, Watson II

, 2015 WL

7281637, at *1, Watson was promptly taken into ICE custody upon his release

from state prison on May 8, 2008. He was told at that time by the ICE officers

who arrested him that the government had reason to believe that Watson was an

alien eligible for removal as a result of his criminal convictions. Watson

challenged their assertion, informing them that he was in fact a U.S. citizen, but

ICE officers responded that Watson would appear before an immigration judge

within 24 hours and could raise the issue then. Despite this representation,

Watson ultimately did not appear before an IJ until June 25, 2008. Rather5 incredibly, then, the government detained a U.S. citizen for 48 days before he even

had the first opportunity to appear before a judicial officer to contest the basis for

his detention. Despite Watson’s immediate assertion that he was a citizen, no one

from ICE ever circled back to interview Watson or reopen his file to determine if

the government had made a mistake.

In addition to the ICE officers’ negligence in initiating removal

proceedings, the government also committed errors in asserting the ongoing

legal basis for removal. At the time that Watson’s father became a naturalized

U.S. citizen in 2002, the BIA’s interpretation of Jamaican legitimation law was

governed by Matter of Clahar

, 18 I. & N. Dec. 1 (B.I.A. 1981), which, as applied to

Watson, meant that Watson

— then a minor

— immediately acquired derivative

U.S. citizenship at the time of his father’s naturalization. On June 4, 2008,

however, the BIA decided Matter of Hines

, 24 I. & N. Dec. 544 (B.I.A. 2008), which

revised the BIA’s interpretation of Jamaican legitimation law to such effect that,

if applied to an individual similarly situated to Watson, that individual would

not obtain derivative citizenship upon the naturalization of his/her father.

Although Watson contended he had obtained derivative citizenship in 2002

— long before Hines was decided

— the government’s legal position after June 4,

2008, was that under Hines ’s interpretation of Jamaican legitimation law, Watson

had always been ineligible for derivative citizenship. The IJ’s November 13, 2008,

oral decision finding that Watson was not a citizen also relied on Hines as the

basis for the ruling, rejecting any applicability of Matter of Clahar

.

This conclusion of law is patently incorrect, because courts must “apply

the law in effect when [an alien] fulfilled the last requirement for derivative

citizenship,” Ashton v. Gonzales

, 431 F.3d 95, 97 (2d Cir. 2005), which in Watson’s

case was his father’s naturalization in 2002. As explained above, Matter of Clahar

was indisputably the law in effect at that time. Indeed, applying the “law in

effect when the last material condition [of derivative citizenship] is met” has

been the BIA’s own longstanding rule. In Re Rodriguez

‐ Tejedor

, 23 I. & N. Dec. 153,

163 (B.I.A. 2001) (citing Matter of L—

, 7 I. & N. Dec. 512, 513 (B.I.A. 1957)). This is

because “derivative citizenship is automatic; that is, when certain conditions

exist, a child becomes a U.S. citizen even though neither parent, nor the child, has6 requested it and regardless of whether any of them actually desires it.” Lewis v.

Gonzales

, 481 F.3d 125, 131 (2d Cir. 2007) (per curiam); see also 8 U.S.C. § 1431. As

a result, if an immigration judge is later charged with determining an alien’s

derivative citizenship status, the IJ must apply the law in effect at the time the

last material condition for obtaining such citizenship was satisfied, even if, as of

the date of adjudication, that law is no longer valid. 1 Had the government not

urged an obviously incorrect legal justification for Watson’s detention, or had the

IJ caught the government’s error and properly followed the law at Watson’s

November 13, 2008, removal hearing, Watson would have been spared an

additional three years in detention.

II. “Legal Process” in Immigration Detention and Removal Contexts

Turning now to Watson’s intentional tort claims, while I agree with the

majority that the district court’s false imprisonment analysis was incorrect as a

matter of law, I cannot join the majority’s approach either. As an initial matter,

we have never applied Wallace ’s “legal process” test for distinguishing a false

imprisonment claim from a malicious prosecution claim to immigration

detention and removal, and there are reasons to doubt whether Wallace ’s

analysis, developed in response to a criminal prosecution, applies with equal

measure to such proceedings. In Wallace

, the Supreme Court highlighted the

significance of “legal process” in distinguishing between a false imprisonment

claim and a malicious prosecution claim in the context of a criminal prosecution,

1 Even on its face, Matter of Hines is clearly limited only to prospective cases : the BIA

declared that it would apply its revised understanding of Jamaican legitimation law

only “in future cases,” and by expressly stating that it was “now prompt[ed]

. . . to

overrule Matter of Clahar ,” it clarified that it would “ hereafter deem a child born out of

wedlock in Jamaica to be the ‘legitimated’ child of his biological father only upon proof

that the petitioner was married to the child’s biological mother at some point after the

child’s birth.” Matter of Hines

, 24 I. & N. Dec. at 548 (emphasis added). This language

would seem to make clear that Matter of Hines did not have retroactive application, and

so notwithstanding the “law in effect” rule, Matter of Clahar never ceased to be the

controlling law as to Watson’s derivative citizenship claim.7 holding that because “false imprisonment consists of detention without legal

process, a false imprisonment ends once the victim becomes held pursuant to

such process.” 549 U.S. at 389 (emphasis omitted). Wallace emphasized that such

process might be said to take place “when, for example, [a criminal defendant] is

bound over by a magistrate or arraigned on charges.” Id. Those procedures, of

course, have no direct analogue in civil immigration removal proceedings, which

do not trigger the panoply of rights guaranteed to criminal suspects pending

trial. 2

Critical among these rights, of course, is the right to counsel. The Supreme

Court has held that “a criminal defendant’s initial appearance before a judicial

officer, where he learns the charge against him and his liberty is subject to

restriction, marks the start of adversary judicial proceedings that trigger

attachment of the Sixth Amendment right to counsel.” Rothgery v. Gillespie Cty.

,

554 U.S. 191, 213 (2008). The Court has “pegged commencement” of the right to

counsel “to the initiation of adversary judicial criminal proceedings—whether by

way of formal charge, preliminary hearing, indictment, information, or

arraignment.” Id. at 198 (internal quotation marks omitted). In the criminal

context, then, the point at which legal process begins is the moment when a false

imprisonment claim accrues, a potential malicious prosecution claim applies

instead, and when the detainee is assured of the assistance of counsel.

2 Another significant difference between criminal and civil removal proceedings that

may counsel against Wallace ’s applicability here is that in a criminal prosecution, the

government must establish probable cause before a neutral body such as a judge or a

grand jury in order to initiate a prosecution against a defendant. In the immigration

context, no such independent ratification of probable cause is necessary to justify

initiating removal proceedings, including detention. See 8 C.F.R. 239.1 (listing executive

branch officers authorized to issue Notices to Appear). Nor, as Watson’s experience

makes abundantly clear, is there a requirement that the government establish probable

cause (or something akin to it) to justify maintaining removal and detention pending a

final decision as to removability. See 8 C.F.R. 1240.10.8 The critical difference between the criminal and immigration removal

proceedings is that no such assistance of counsel is ensured during the detention

and removal process, which means that a detained individual

— even a detained

U.S. citizen

, as Watson was

— is forced to wage his legal battle against the

government without the assistance of counsel if he cannot afford it. This is

especially problematic in the context of removal proceedings because in the

removal context, unlike the criminal context where the government must

establish probable cause to initiate a prosecution, if the respondent was born

overseas, “there is a presumption of alienage and the respondent has the burden

of going forward with the evidence to establish a claim to United States

citizenship.” Matter of Leyva

, 16 I. & N. Dec. 118, 119 (B.I.A. 1977) (emphasis

added); see also Gupta v. Lynch

, 661 F. App’x 737, 740 (2d Cir. 2016) (“Clear and

convincing evidence that the petitioner was born abroad creates a presumption

of alienage” which may be rebutted “only by proving, by ‘a preponderance of

the credible evidence,’ that [the respondent] is a citizen notwithstanding his

foreign birth.”). Thus even though an immigration judge lacks jurisdiction to

initiate removal proceedings against a U.S. citizen, as the majority acknowledges,

see Maj. Op. at 12 n.8 (citing Ng Fung Ho v. White

, 259 U.S. 276, 284 (1922)), the

legal burden to demonstrate citizenship, and therefore to establish a lack of

jurisdiction, rests with the respondent.

The difference in legal burdens is also important when it comes to the

immigration judge’s decision as to removability. “A respondent charged with

deportability shall be found to be removable if the [government] proves by clear

and convincing evidence that the respondent is deportable as charged,” 8 C.F.R.

§ 1240.8, an easier burden to meet than the criminal reasonable doubt standard.

Yet this lesser level of proof leads to removal from the country

— in Watson’s

case, his home from the time that he moved to the United States in 1998 at the

age of 14. As the government itself acknowledges, “[t]he determination of

whether a foreign

‐ born person has derived citizenship involves complex legal

and factual issues, and often requires consideration of foreign law and events

that occurred outside the United States.” Gov. Br. 47. U.S. citizens like Watson

are often forced to go it alone in navigating these “complex legal and factual

issues” involving the interpretation and application of foreign law without9 counsel to assist them. Such respondents have limited capacity to gather

evidence while detained pending removal, and are provided with little

instruction into the applicable laws and doctrines, and yet have the burden of

affirmatively establishing their citizenship to end removal proceedings and

defeat the government’s claim of deportability.

Thus even though Watson asserted his U.S. citizenship status at the very

first interview with Officer Andren months before his detention, the New York

State Department of Correctional Services files clearly corroborated that

citizenship status, and Watson provided his parents’ contact information to

further confirm it, ICE officers apparently did not feel they were obligated to

pursue any leads before detaining Watson and subjecting him to removal

proceedings. Instead, it became Watson’s burden to demonstrate that Matter of

Hines had only prospective application and therefore did not control in his case;

it was Watson’s burden to explain that derivative citizenship claims are governed

by the law in effect when the last prerequisite to citizenship is satisfied and that

he satisfied such conditions; and it was Watson’s burden to persuade the IJ that

because Matter of Clahar was the controlling law at the time his father became a

naturalized U.S. citizen in 2002, Watson automatically became a derivative

citizen under Clahar the same day his father obtained citizenship.

It is not surprising that Watson was initially unable to prevail in his legal

case before the IJ, and not simply because Watson had only a partial high school

education, no legal training, and limited access to legal resources in the library of

the detention facility where he was held. Watson I

, 133 F. Supp. 3d at 523. After

June 4, 2008, Watson’s citizenship claim rested on establishing that Matter of

Clahar rather than Matter of Hines controlled the interplay between Jamaican

legitimation law and U.S. derivative citizenship law, a difficult issue of law that

Watson was particularly ill

‐ equipped to assert on his own while in detention.

Indeed, government lawyers, the IJ, and even the BIA all overlooked the BIA’s

clear rule of law when incorrectly concluding that Matter of Hines and not Matter

of Clahar controlled Watson’s derivative citizenship status. It was not until we

ordered that counsel be appointed from the Court’s Pro Bono Panel that the legal

argument about the inapplicability of Matter of Hines

— and the applicability of10 Matter of Clahar

— first emerged; unfortunately, Watson did not have the

assistance of counsel until July 2010, over two years into his detention. Once

armed with the assistance of pro bono counsel, Watson’s legal argument as to his

citizenship was quickly put forward: on May 17, 2011, we heard argument on his

case, and a mere two weeks later, on May 31, 2011, we remanded to the BIA to, in

part, clarify the confusion between the BIA’s seemingly conflicting

interpretations of legitimation under Matter of Clahar and Matter of Hines

. See

Watson v. Holder

, 643 F.3d 367, 369 (2d Cir. 2011). Within months, ICE Chief

Counsel sent a memorandum recognizing Watson’s probable citizenship, Watson

was released the next day, and shortly thereafter, ICE filed a supplemental brief

with the BIA acknowledging that Matter of Hines applied only prospectively and

therefore Matter of Clahar

, and not Hines

, controlled Watson’s derivative

citizenship claim. Watson IV

, 179 F. Supp. 3d at 268–69.

Despite all this, the majority states that “Watson was certainly held

pursuant to [legal] process by the time an immigration judge ordered Watson’s

removal, which occurred on November 13, 2008.” Maj. Op. at 11. In the abstract,

certainly, that is not an unreasonable view, but it seems to me that the concept of

“legal process” loses much of its significance in circumstances where the

government’s profound errors caused the problems that adversely affected the

detainee, and where the detainee had no assistance of counsel and yet bore the

difficult burden of establishing a claim of citizenship or else face the possibility

of deportation, notwithstanding what in retrospect was a valid claim of

citizenship all along. Thus Watson’s November 13, 2008, hearing came over six

months into his detention in large part because the IJ had previously adjourned

the proceedings on three different occasions so that Watson could attempt (in

vain) to obtain pro bono assistance. Watson IV

, 179 F. Supp. 3d at 265–66. Because

Watson could not afford counsel and because he was unable to obtain pro bono

counsel, he was ultimately forced to proceed pro se.

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 of11 receiving an order of deportability. A recent study of immigration proceedings

found that 60% 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% of the time. See Accessing Justice: The Availability

and Adequacy of Counsel in Removal Proceedings New York Immigrant Representation

Study Report: Part 1

, 33 Cardozo L. Rev. 357, 363 (2011). 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% of individuals who are detained and who go without

counsel have successful outcomes, as compared to 74% of individuals who are

represented and are either released or never detained

– a nearly 2400% increase

in the odds of prevailing. Id. at 363–64. Watson, of course, fell into the former

group until we ordered the appointment of pro bono counsel two years into his

detention; once armed with counsel, those who are represented but detained

have successful outcomes 18% of the time, a 500% increase in odds over those

similarly situated but without counsel. Id.

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. In the criminal context, “by the

time a defendant is brought before a judicial officer, is informed of a formally

lodged accusation, and has restrictions imposed on his liberty in aid of the

prosecution, the State’s relationship with the defendant has become solidly

adversarial.” Rothgery

, 554 U.S. at 202. Given these considerations, it seems

appropriate that the initiation of legal process coincides with the commencement

of the right to the assistance of counsel. This is because, as the Supreme Court

reflected in Gideon v. Wainwright

, “The right to be heard would be, in many cases,

of little avail if it did not comprehend the right to be heard by counsel. Even the

intelligent and educated layman has small and sometimes no skill in the science

of law.

. . . He lacks both the skill and knowledge adequately to prepare his

defense, even though he have a perfect one. He requires the guiding hand of12 counsel at every step in the proceedings against him. Without it, though he be

not guilty, he faces the danger of conviction because he does not know how to

establish his innocence.” 372 U.S. 335, 344–45 (1963) (quoting Powell v. State of

Ala.

, 287 U.S. 45, 68–69 (1932)). Yet these considerations are equally true of

removal proceedings, and the need for adequate legal representation is

particularly acute, not only because human beings stand to lose what Justice

Brandeis described as “all that makes life worth living,” Ng Fung Ho

, 259 U.S. at

284, but also because there is a wide disparity in the success rate of those who

have lawyers and those who proceed without counsel.

As the case at hand well demonstrates, adequate legal representation

would serve not just the respondent, but also the government and the courts,

which must adjudicate the difficult issues before them. Such representation is

essential to the fair and efficient administration of justice. I believe the time has

come to extend the right to counsel to immigration removal proceedings, and

while I know that this is not the present state of the law, if there is any case

where meaningful legal process cannot be said to have begun without the

assistance of counsel, this, surely, is one.

III. Equitable Tolling

Because the majority concludes that Watson’s false imprisonment claim

accrued no later than November 13, 2008, and because that date was more than

two years prior to the date Watson filed his administrative complaint, the

majority holds that his cause of action was untimely. The majority then

concludes that even after a bench trial, the district court abused its discretion in

determining that Watson’s specific circumstances warranted equitable tolling.

Notwithstanding the open question as to when legal process can be said to have

begun, I do not agree that the district court abused its discretion in deciding that

equitable tolling was warranted. It is important to note that, to the best of my

knowledge, our Circuit has only once reversed a district court that granted

equitable tolling, and that unusual case concerned the tolling of a new cause of

action added to an amended complaint on remand. See Tho Dinh Tran v. Alphonse13 Hotel Corp.

, 281 F.3d 23, 36–37 (2d Cir. 2002), overruled by Slayton v. Am. Exp. Co.

,

460 F.3d 215 (2d Cir. 2006). 3

Below, the district court concluded that even if Watson’s FTCA claims

were untimely, they should be equitably tolled until July 31, 2014

– the date

Watson was first informed that he had the right to sue the government. Among

the factors the district court identified as warranting equitable tolling were

Watson’s eleventh

‐ grade education, his lack of legal training, the significant

depression that set in as a result of his detention, his lack of awareness that he

could bring an FTCA action against the United States until he was informed by

his legal counsel around July 31, 2014, and

— most important in my mind

— the

fact that the government repeatedly told Watson that he was not a citizen, a

position adopted by the IJ, affirmed by the BIA, and sustained by the

government until after Watson’s release from detention in November 2011.

Watson I

, 133 F. Supp. 3d at 523.

The Supreme Court has cautioned that in considering equitable tolling

claims, courts of appeals must avoid a “standard [that] is too rigid,”

“emphasizing the need for flexibility, for avoiding mechanical rules.” Holland v.

Florida

, 560 U.S. 631, 649–50 (2010) (internal quotation marks omitted).

Accordingly, we have since recognized that “the exercise of a court’s equity

powers must be made on a case

‐ by

‐ case basis, mindful ‘that specific

circumstances, often hard to predict in advance, could warrant special treatment

in an appropriate case,’” Harper v. Ercole

, 648 F.3d 132, 136 (2d Cir. 2011) (quoting

Holland

, 560 U.S. at 649–50). “The ’flexibility’ inherent in ‘equitable procedure’ is

necessary ‘to meet new situations [that] demand equitable intervention’

. . . [where] specific circumstances, often hard to predict in advance, could warrant

3 In Tho Dinh Tran

, the district court equitably tolled an untimely RICO action added to

plaintiff’s amended complaint after a remand from our Circuit, under a doctrine

permitting such tolling if a plaintiff established fraudulent concealment of a RICO

violation. Id

. at 36. We reversed the grant of equitable tolling because “[t]he plaintiff

did not establish any of the elements of equitable tolling at trial and did not argue in its

post

‐ trial briefs that he had done so.” Id

. at 37.14 special treatment in an appropriate case.’” Dillon v. Conway

, 642 F.3d 358, 362 (2d

Cir. 2011) (quoting Holland

, 560 U.S. at 650).

In my view, the majority applies our precedents too mechanically, contra

Holland

, 560 U.S. at 650, rather than considering the “specific circumstances”

Watson confronted in their totality. The majority concludes that equitable tolling

cannot “be premised on Watson’s lack of education, pro se status, or ignorance of

the right to bring a claim,” Maj. Op. at 14, but it bases this broad statement on

just two prior cases in which courts found that one of these factors alone

, given the

particular circumstances of the case at hand, was insufficient to warrant

equitable tolling. Thus, this Court has previously held that a plaintiff’s pro se

status alone did not constitute extraordinary circumstances, see Smith v. McGinnis

,

208 F.3d 13, 18 (2d Cir. 2000) (“Smith’s pro se status until March 1997 does not

merit equitable tolling.”), not that a lack of legal knowledge or access to legal

resources can never be a factor in equitable tolling analysis. Cf. Hizbullahankhamon

v. Walker

, 255 F.3d 65, 75 (2d Cir. 2001) (anticipating a probable grant of equitable

tolling in a hypothetical case where “deprivation of a prisoner’s access to his own

legal materials and law library materials prevented a prisoner from” filing

(emphasis omitted)). Similarly, the Supreme Court has observed that a party’s

own “mistaken reliance [of law],” when “not an obstacle beyond its control,” by

itself did not constitute an extraordinary circumstance, but explicitly left open

whether a reasonable mistake of law could, in some circumstances, constitute the

extraordinary circumstances justifying equitable tolling. Menominee Indian Tribe of

Wisconsin v. United States

, 136 S. Ct. 750, 756 & n.3 (2016) (“[W]e need not decide

whether a mistake of law, however reasonable, could ever be extraordinary.”).

The Supreme Court’s decision in Menominee Indian Tribe certainly does not stand

for the proposition that the government’s persistent and clearly mistaken legal

position taken at plaintiff’s detriment can never be relevant to equitable tolling

analysis.

The majority also summarily concludes that “Watson’s depression cannot

justify equitable tolling” because it “did not prevent him from contesting his

citizenship before the immigration judge, so it could not have prevented him

from filing his administrative claim for damages.” Maj. Op. at 14. Yet we have15 previously found that mental health issues can provide the basis to grant

equitable tolling. See Harper

, 648 F.3d at 137; Bolarinwa v. Williams

, 593 F.3d 226,

231 (2d Cir. 2010). The expert who assessed Watson and who testified at trial

diagnosed Watson with adjustment disorder, “a mental disorder that is

characterized by an intense emotional reaction to an identifiable stressor,” in this

case, brought on by Watson’s ICE detention. App. 505–06. The expert identified

“clinical symptoms of depression and anxiety,” including “hopelessness and

isolation,” as Watson was cut off from his family and reported that he considered

hanging himself while in detention. App. 506. The expert also testified that for

individuals “incarcerated improperly, the psychological effect [of incarceration]

is much greater; there’s much more distress” because they know they are

innocent and yet “ha[ve] to fight for their life.” App. 507–08. Whether a physical

or mental health condition “did in fact inhibit

. . . or otherwise impair” one’s

ability to act such that it “might excuse the tardy filing” is a question of fact to be

found by the trial court. Brown v. Parkchester S. Condominiums

, 287 F.3d 58, 60 (2d

Cir. 2002). Because I do not think Watson’s ability to “contest[] his citizenship

before the immigration judge,” Maj. Op. at 14, necessarily means that Watson’s

depression could not have prevented him from pursuing additional,

independent relief in the form of an FTCA action, I do not share the majority’s

view that the district court’s factual finding was clearly erroneous.

Most critically, in my mind, is the fact that here, ICE officers, government

lawyers, the IJ, and the BIA, all incorrectly and repeatedly asserted for nearly

three and a half years that Watson did not satisfy the legal requirements for

derivative citizenship and that his detention throughout was thus lawful. Such a

circumstance is far from the “entirely common state of affairs” contemplated by

Wallace

. After Matter of Hines was decided on June 4, 2008, Watson was told by

the government that his detention was lawful because of Hines ’s supposed

applicability to his case, and so Watson’s potential false imprisonment claim

rested on a question of law

– i.e.

, whether Jamaican legitimacy law as interpreted

in Matter of Hines or in Matter of Clahar controlled his derivative U.S. citizenship

claim. This question of law, of course, was not something Watson, a pro se

litigant, could easily know on his own, especially in light of the government’s

repeated erroneous assertions that he had no legal claim to citizenship,16 notwithstanding Watson’s belief that he had possessed derivative citizenship

since his father’s naturalization in 2002. This is a distinct contrast from the typical

criminal case, where the defendant knows whether he committed the actions

purportedly justifying his arrest and therefore knows whether his detention is

actually supported by probable cause. In those circumstances, such as the one

contemplated in Wallace

, the defendant knows that he did not take the actions

alleged, and armed with the knowledge of the absence of probable cause, he may

be confident that his imprisonment is false and that a potential tort claim should

eventually have merit. As discussed above, until Watson had access to counsel,

he had to confront alone the deeply flawed assertions of governmental

authorities that he had no legal claim to citizenship. As a result, Watson was not

able to articulate a legal basis for his claim of citizenship even for the purposes of

preventing his removal, let alone to anticipate and assess the legal basis for a

potentially meritorious false imprisonment suit. Given the “specific

circumstances” of Watson’s detention, I cannot conclude that the district court

abused its discretion in concluding that this was an “appropriate case”

warranting “special treatment.” Holland

, 560 U.S. at 650.

As to diligence, “the district court should consider all of the relevant facts

and circumstances

. . . to determine, utilizing its own discretion, whether the

plaintiff

. . . [was] sufficiently diligent.” Phillips v. Generations Family Health Ctr.

,

723 F.3d 144, 153 (2d Cir. 2013). The Supreme Court has cautioned that “[t]he

diligence required for equitable tolling purposes is reasonable diligence, not

maximum feasible diligence.” Holland

, 560 U.S. at 653 (emphasis added) (citation

and internal quotation marks omitted). Below, the district court emphasized that

Watson diligently attempted to establish his legal status as a U.S. citizen in his

immigration proceedings, evinced by the fact that he “promptly and

continuously asserted his citizenship, and took every action he knew of—or

could reasonably be expected to know of—to demonstrate that he was a citizen,”

Watson I

, 133 F. Supp. 3d at 523, all while ICE officers, government lawyers, the

IJ, and even the BIA repeatedly asserted that as a matter of law Watson was not a

citizen and should be deported. From the beginning, Watson had provided the

correct information for his father to establish the link to his claim of derivative

citizenship, and within two months of his detention had obtained and provided a17 copy of his father’s certificate of naturalization. Watson also filed an N

‐ 600

application for a certificate of citizenship, which was denied by USCIS on the

basis of its wrongful reliance on Matter of Hines

. Watson appealed this

determination to USCIS’s Administrative Appeals Office, which dismissed his

appeal. Despite Watson’s repeated insistence that he was a citizen, until

November 2011 the government maintained that Watson was a removable alien,

which was effectively ratified when the IJ concluded that Watson was an alien

eligible for removal. Watson pursued his claim through multiple appeals to the

BIA and the Second Circuit; eventually, the Second Circuit remanded his case to

the BIA, at which point ICE released him shortly thereafter, without explanation,

on November 2, 2011. Even at the time Watson was released, he was not yet told

that the government now believed Watson had been a U.S. citizen all along;

rather, he was only notified that the government had changed its position when

ICE filed its supplemental brief with the BIA determining that Matter of Hines did

not have retroactive effect. Watson also testified that there were few resources

about the law available to him while he was in detention, and that he received no

assistance from the guards or anyone else about his legal options. Finally,

Watson was also diligent in filing his claim upon release. Watson was made

aware in November 2011, shortly after his release, that his detention was

unlawful when the government conceded that Watson had been a citizen all

along. Watson filed his administrative tort claim within the two

‐ year limitations

window from the day his detention was terminated and he was released.

I do not believe the district court abused its discretion in finding that

Watson had pursued his claims with “reasonable diligence,” Holland

, 560 U.S. at

653 (internal quotation marks omitted), given that Watson did everything

possible to assert his citizenship in the face of colossal government failure

resulting in his 1,273

‐ day detention, and given that he had no assistance of

counsel during the first two years of that detention and little access to legal

resources throughout it. All the while, the government maintained that Watson

was not a citizen as a matter of law and was therefore ineligible for relief. It is not

clear to me how, under these circumstances, Watson should have known in 2008

that he needed to file an administrative tort claim to preserve a possible tort

claim that could not possibly succeed until the government acknowledged his18 derivative citizenship over three years later, let alone know that his false

imprisonment claim would accrue a few months into his three

‐ and

‐ a

‐ half year

detention. Given that even now we are uncertain as to precisely how to determine

when legal process begins and a false imprisonment claim accrues, see Maj. Op.

at 11–12, it is difficult for me to think that Watson had adequate notice himself.

Given “all of the relevant facts and circumstances,” Phillips

, 723 F.3d at 153,

I do not think the district court abused its discretion in finding that Watson both

exhibited “reasonable diligence” and faced extraordinary circumstances

warranting equitable tolling.

IV. Conclusion

I would hope that nothing about Watson’s 1,273

‐ day detention can be said

to have been “an entirely common state of affairs.” Maj. Op. at 14–15 (quoting

Wallace

, 549 U.S. at 396). 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.” Watson II

, 2015 WL 7281637, at *1. The

government, the IJ, and the BIA all misapplied clear precedents of law, which,

coupled with Watson’s lack of counsel until mid

‐ 2011, resulted in his three

‐ and

‐

a

‐ half

‐ year detention. Watson had an eleventh

‐ grade education, suffered from

depression as a result of his detention, and was repeatedly told by ICE officials,

government lawyers, the IJ, and the BIA that he was not a U.S. citizen and that he

would be removed from the country he had known as his home from the time he

was 14 years old. Given all this, I cannot conclude that the “legal process”

Watson experienced should extirpate his legal claims, nor can I draw the

conclusion that the district court abused its discretion in determining that

Watson’s case merited equitable tolling. Although I join the majority’s

disposition of Watson’s malicious prosecution and negligence claims, I cannot

join the rest of the decision. 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.