Tag Archive for: INA 320

David Isaacson

Residence in the Twilight Zone: Are USCIS and the State Department Trying to Encourage Some U.S. Citizen Parents to Get Divorced?

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Under section 301(c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1401(c), a child born outside the United States is a citizen when born “of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person.”  Unlike some other provisions of the INA, no minimum required period of residence is specified.

Historically, this provision has been interpreted as applying whenever either parent had been present in the United States for any significant period of time, excluding only very brief presence in transit and the like.  (I believe this was set out in former section 1133.5 of volume 7 of the State Department’s Foreign Affairs Manual, but have so far been able to find on the Internet Archive only a reference to the February 2016 guidance that first sought to exclude the sorts of less-brief but still non-permanent stays discussed further below.)  This makes sense, because residence is defined in INA § 101(a)(33), as one’s “principal, actual dwelling place in fact, without regard to intent”, 8 U.S.C. § 1101(a)(33). Any time one dwells and sleeps in the United States for a period of time, whether this is days, weeks, or months, the dwelling place in the United States would seem to have become one’s residence under this definition for that period of time, since what distinguishes that dwelling place from any other more permanent residence one may have is primarily one’s intent to return abroad, and the definitional provision (as opposed to other parts of the INA) specifically deems intent irrelevant.

On August 28, 2019, however, USCIS issued new guidance in the form of a Policy Alert, PA-2019-05, effective October 29, 2019, which will update the USCIS Policy Manual to impose a stricter interpretation of “residence” for purposes of INA § 301(c) and other provisions of the INA which use the term.  According to the new guidance in PA-2019-05, even spending two months at a time in the United States may not qualify as having ever had a “residence” there, if one lived outside the United States for the rest of the year and came to the United States to attend a summer camp or stay for a couple of weeks at a time with different relatives.  There is a specific example given where “As a child, U.S. citizen parent came to the United States for 3 consecutive summers to attend a 2-month long camp. The parent lived and went to school in a foreign country for the rest of the year.”  PA-2019-05 at 3.  It is said that this parent did not show past residence in the United States to enable transmission of citizenship under INA 301(c).

This follows on the heels of similar guidance from the State Department, which amended the Foreign Affairs Manual, specifically 8 FAM 301.7-4(B) (last amended June 27, 2018), to describe residence as a “very fact-specific test” that “takes into account the nature and quality of the person’s connection to the place.”  According to the current version of 8 FAM 301.7-4(B), “Department guidance clearly states that residence is more than a temporary presence and that visits to the United States are insufficient to establish residency for the purposes of citizenship transmission under INA 301(c).”  8 FAM 301.7-4(B)(h.) elaborates: “While the definition of residence is not dependent on a specific time period in the United States, the longer the duration of a person’s stay in a particular place in the United States (e.g., six months or more), the more likely it is that that place can be characterized as the person’s residence.  On the other hand, if the stay at a place in the United States was relatively brief (e.g., a few months or less), then in order for that place to be considered a “residence” additional evidence may be required to show why the stay, though brief, was other than a temporary visit.” The U.S. District Court for the District of Columbia recently upheld some State Department findings of lack of citizenship under this policy in Chacoty v. Pompeo.

This stricter interpretation of INA § 301(c), however, has some truly bizarre implications when it is read in the context of the rules governing transmission of citizenship to children born to one U.S. citizen parent and one non-citizen parent, and the rules governing citizenship to children born out of wedlock.  Counting periods of presence of “a few months or less” as not establishing residence even if repeated, as PA-2019-05 and the current version of 8 FAM 301.7-4(B) do, implies that certain U.S. citizen women who are contemplating giving birth to a child outside the United States ought to divorce their spouses, and leave them, in order to ensure that their children will be U.S. citizens.  It also implies that certain U.S. citizens contemplating starting families outside the United States should reject some U.S. citizen spouses in favor of non-citizen spouses, again to ensure that their future children will be U.S. citizens.

To see why, we need to turn first to INA § 301(g), 8 U.S.C. § 1401(g), which confers U.S. citizenship at birth on

a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization as defined in section 288 of title 22, may be included in order to satisfy the physical-presence requirement of this paragraph.

That is, when a U.S. citizen parent has a child with someone who is not a U.S. citizen or national (what the statute calls an “alien”, although some immigration lawyers try to avoid using a word that makes noncitizens sound like they are from another planet), the basic rule is that the U.S. citizen can transmit citizenship if he or she has been actually or constructively physically present in the United States for a total of five years, at least two of which are after the age of 14.  This physical presence, even USCIS and the State Department recognize, is not limited to periods of time qualifying as “residence”; it covers any time spent in the United States (or spent abroad serving in the armed forces, or employed by the U.S. government or a qualifying international organization, or as the dependent unmarried son or daughter and household member of someone so serving or employed).  Indeed, the chart on page 3 of PA-2019-05 specifically credits its hypothetical purportedly non-resident U.S. citizen parents with the amount of physical presence they had accrued during their trips to the United States.

The next piece of the puzzle is INA § 309(a), 8 U.S.C. § 1409(a), which describes the circumstances under which fathers of a child born out of wedlock are considered for purposes of transmission of U.S. citizenship.  According to the statute:

The provisions of paragraphs (c), (d), (e), and (g) of section 1401 of this title, and of paragraph (2) of section 1408 of this title, shall apply as of the date of birth to a person born out of wedlock if-

(1) a blood relationship between the person and the father is established by clear and convincing evidence,

(2) the father had the nationality of the United States at the time of the person’s birth,

(3) the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and

(4) while the person is under the age of 18 years-

(A) the person is legitimated under the law of the person’s residence or domicile,

(B) the father acknowledges paternity of ‘the person in writing under oath, or

(C) the paternity of the person is established by adjudication of a competent court.

Children born out-of-wedlock to U.S. citizen mothers were formerly treated differently under INA § 309(c), 8 U.S.C. § 1409(c), which required a single year of continuous physical presence in the United States by the mother, but the Supreme Court declared this different treatment of mothers and fathers unconstitutional in its June 12, 2017 decision in Sessions v. Morales-Santana, and prospectively struck it down for children born after the Court’s decision.

With these legal background rules in mind, consider the situation of a U.S. citizen prospective parent who was born abroad and grew up primarily in a foreign country, but has come to the United States for two months every year—to visit relatives, to attend summer camp as a child, to serve as a counselor at that same summer camp as an adult, and so on.  By the time he or she is over age 30, he or she will have more than 60 months of combined physical presence, that is to say, five years, and more than two of those years of physical presence will have been after the age of 14.  According to PA-2019-05 and the current version of 8 FAM 301.7-4(B), however, it appears that USCIS and the State Department will consider such a U.S. citizen never to have had a “residence” in the United States.  The perverse effect of disregarding, as “residence”, periods of physical presence sufficiently substantial to add up to more than 5 years, is to leave such a U.S. citizen parent worse off under INA § 301(c) than under INA § 301(g), even though § 301(c) was apparently intended to be more lenient than §301(g).

Assume that such a U.S. citizen is contemplating marriage, and that one potential suitor is a U.S. citizen who does not meet the residence requirement (either because he or she has never been to the United States or because he or she fails the new stricter residence test), while another is not a U.S. citizen or national.  A child born outside the United States to this purportedly “non-resident” U.S. citizen and another non-resident U.S. citizen will not be a U.S. citizen, under the PA-2019-05 / 8 FAM 301.7-4(B) interpretation of INA § 301(c).  A child born in wedlock to this same U.S. citizen parent and a foreign parent, on the other hand, will be a U.S. citizen under INA § 301(g), because the U.S. citizen parent has accumulated at least five years of physical presence, at least two of which were after the age of 14.  So it appears that USCIS and the Department of State would suggest, at least implicitly, that our hypothetical U.S. citizen parent should make sure to marry the foreign prospective spouse and not the non-resident U.S. citizen prospective spouse.

This is bizarre enough, but it gets worse.  Assume that our hypothetical U.S. citizen prospective parent, with more than 60 months of physical presence accrued in two-month increments, is a woman who has already married a never-resident U.S. husband, presumably not having done the above analysis, and has become pregnant.  She would like to give birth to her child outside the United States, perhaps because that is where more of her relatives live, but she would like the child to be a U.S. citizen.  It appears that what she needs to do is divorce her U.S. citizen husband before the child is born, and make sure that the father does not take the steps prescribed by INA § 309(a), such as promising in writing to support the child as required by INA § 309(a)(3).

As a single parent, our hypothetical U.S. citizen mother presumably ought to again be subject to the rules of INA § 301(g), under which she qualifies to transmit citizenship.  As the Supreme Court put it in Sessions v. Morales-Santana, the “five- year requirement should apply, prospectively, to children born to unwed U. S.-citizen mothers.”  Morales-Santana, slip op. at 28.  State Department guidance asks a consular officer encountering the situation of an out-of-wedlock child born to U.S. citizen parents after June 2017, where the father has not satisfied the requirements of INA § 309(a), to “please refer to AskPPTAdjudication@state.gov”, but it is difficult to see how that office could reject a claim valid under INA § 301(g) on the basis that the existence of the father, who could not be counted as relevant under the statute, should leave the mother and her child worse off than if the father was a non-citizen or was simply unknown (or was claimed to be unknown).  Indeed, the Foreign Affairs Manual specifically states at 8 FAM 301.7-4(E)(3)(g.) that

An individual born abroad out of wedlock on or after June 12, 2017 to a U.S. citizen mother and alien father acquires U.S. citizenship at birth if the U.S. citizen mother has been physically present in the United States for five years, two of which are after the age of 14, prior to the child’s birth.

Regardless of what AskPPTAdjudication@state.gov would say if confronted with affirmative documentation of a known U.S. citizen father who did not satisfy INA § 309(a), it is difficult to picture an interrogation regarding the identity of the father followed by a denial of U.S. citizenship because the suspected father was thought to be a U.S. citizen himself.

Nor is this the end of the absurdities created by the current interpretation.  There is the concept in immigration law of a sham divorce, if the parties to a former marriage do not actually separate but continue to reside together and have divorced only for immigration purposes, as described in Matter of Aldecoaotalora, 18 I&N Dec. 430 (BIA 1983).  Such a divorce is not considered valid for immigration purposes.  Thus, it appears that our hypothetical U.S. citizen mother should not merely divorce her husband, but also actually leave him, if she wishes to be able to transmit U.S. citizenship, lest her divorce be deemed a sham under Matter of Aldecoaotalora.

There is a certain amount of déjà vu in all of this for the author of this blog, who wrote a law journal article more than a decade ago that discussed a similar anomaly formerly applicable to a mother born in the United States who left after the age of one year and before the age of sixteen, due to the separate provision of INA § 309(c), 8 U.S.C. § 1409(c), for children born out of wedlock to U.S. citizen mothers.  With its 2017 decision in Sessions v. Morales-Santana striking the separate rule of INA § 309(c) as unconstitutional, however, the Supreme Court has eliminated that anomaly for children born on or after June 12, 2017.  USCIS and the State Department appear determined to create another one.

If the U.S. government does not really mean to be encouraging some prospective mothers to divorce and leave their husbands, and encouraging other prospective U.S. citizen parents to make sure to marry foreigners rather than U.S. citizens, it should reconsider the guidance contained in as PA-2019-05 and the current version of 8 FAM 301.7-4(B), and return to the earlier, more liberal construction of “residence”.  Indeed, the bizarre result produced by the current guidance suggest that it may be incompatible with the legislative intent behind the statute, since one doubts that the Congresses that enacted the relevant sections of the INA intended to encourage divorce or the favoring of foreign spouses over U.S. citizen spouses.  Courts adjudicating future litigation regarding INA § 301(c), and lawyers litigating cases regarding INA § 301(c), would be well advised to consider this.

David Isaacson

Watson v. United States: The Second Circuit Tells U.S. Citizens Improperly Detained by ICE to File Their Claims for Damages While Their Immigration Court Case is Ongoing

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In its July 31, 2017, opinion in Watson v. United States, a panel of the U.S. Court of Appeals for the Second Circuit, over the dissent of Chief Judge Robert A. Katzmann, declared untimely the claim of false imprisonment brought by a U.S. citizen, Davino Watson, who had been detained by immigration authorities for nearly three years. A district court had awarded Mr. Watson compensation for the initial portion of this detention, although not for the portion of his detention when he was being prosecuted negligently in proceedings before an immigration judge (on the theory that malicious prosecution under New York law requires actual malice rather than mere negligence). According to the Second Circuit panel majority, however, Mr. Watson’s claim of false imprisonment needed to have been brought soon after the proceedings against him began, or at least within two years of the time he was first incorrectly found to be a removable noncitizen by an immigration judge.  The implication is that many people with plausible claims of U.S. citizenship who are detained by immigration authorities should file an administrative claim regarding their detention, and likely sue in federal court regarding that detention, even before their immigration proceedings are over.

Davino Watson had been born in Jamaica to unmarried parents, and had come to the United States as a lawful permanent resident (LPR) in 1998, at the age of thirteen, to live with his father.  Watson’s father then became a U.S. citizen on September 17, 2002, when Watson was only seventeen years old.  Watson also became a U.S. citizen at that time under section 320(a) of the Immigration and Nationality Act (INA), 8 U.S.C. §1431(a), which bestows U.S. citizenship on the child of a U.S. citizen, under the age of eighteen, who is “residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.” INA §320(a)(3), 8 U.S.C. §1431(a)(3).

After Watson pleaded guilty in New York State court in 2007 to sale of cocaine, agents of Immigration and Customs Enforcement (ICE), as the Second Circuit recounted, “investigated his citizenship status to determine whether he was deportable.” This investigation, however, was, as the panel majority acknowledged, “beset by errors.”  That is putting it mildly.  Watson told ICE he was a U.S. citizen during his very first interview, and gave them the phone number of his father and stepmother, but the ICE agents never called that number, even though the same number had been listed in Watson’s pre-sentence report.  ICE did make some attempt to look up Watson’s parents in a government database, but it appears to have been an extremely slipshod attempt.  Instead of Watson’s father, Hopeton Ulando Watson, who lived in New York and whom Watson had told them was married, ICE found records for an unmarried man named Hopeton Livingston Watson, who lived in Connecticut, “did not have a child named Davino, and became a lawful permanent resident three years after the date of Davino Watson’s lawful permanent residency.”  (ICE also confused Watson’s mother, Clare Watson, with a “Calrie Dale Watson” in their database, although Calrie Dale Watson was married not to anyone with a name remotely resembling Hopeton Watson but rather  to a man named Gabriel Miller.)   This despite the fact that Davino Watson’s own file contained an affidavit from his father, submitted in connection with Davino’s application for lawful permanent residence, which “contained Hopeton Ulando Watson’s date of birth, alien number, and social security number, none of which matched the corresponding file data for Hopeton Livingston Watson.”  Relying on the (irrelevant) fact that Hopeton Livingston Watson was not a U.S. citizen, a supervisory ICE officer drafted a Notice to Appear, and another supervisor, the district court found, “mindlessly signed” it and forwarded it to ICE officers who took Watson into custody.

Watson was detained by ICE for nineteen days before his Notice to Appear was filed with the Immigration Court, and “he first appeared before an immigration judge about a month afterward.”  In total, that is, Watson was detained for forty-eight days before he even saw an immigration judge.  He again asserted his U.S. citizenship, and filed an application for a certificate of citizenship with U.S. Citizenship and Immigration Services (USCIS).

Watson’s application for a certificate of citizenship was denied on the basis of the then-recent decision of the Board of Immigration Appeals (BIA) in Matter of Hines, 24 I&N Dec. 544 (BIA 2008), which had held that a child born in Jamaica could only have his paternity established “by legitimation” if the child’s parents married. Because being “legitimated” is a prerequisite for someone born out of wedlock to qualify, with respect to their father, as a “child” for purposes of INA §320(a) under the definition of “child” in INA §101(c)(1), 8 U.S.C. §1101(c)(1), USCIS determined based on Hines that Davino Watson did not qualify as his father’s “child” and so could not have acquired citizenship under INA §320. The Immigration Judge agreed, and ordered Watson’s removal on November 13, 2008.

The application of Matter of Hines to deny Watson’s claim to U.S. citizenship was problematic for a number of reasons, and the BIA ultimately concluded that Watson was indeed a U.S. citizen, although as the Second Circuit panel majority noted, “[t]he government’s precise views on the application of Hines to Watson’s case are somewhat obscure.” Matter of Hines may, as ICE suggested in a memorandum and Chief Judge Katzmann emphasized in his dissent, never have been meant to apply retroactively to those like Watson who would have been citizens under the previous precedent of Matter of Clahar, 18 I&N Dec. 1 (BIA 1981). The general rule is that citizenship is acquired based on the law in effect when the last of the conditions for it is met—which, in Watson’s case, would have been in 2002 when his father naturalized, after Clahar was decided and long before Hines was decided.  In addition, the Hines definition of “paternity by legitimation” for purposes of a different INA provision may not, as the BIA indicated in an unpublished opinion in Watson’s case, have applied to the word “legitimated” in INA §101(c)(1). After Watson’s case had been resolved, the BIA partly overruled Matter of Hines in a published opinion, Matter of Cross, 26 I&N Dec. 485 (BIA 2015), which reinstated and reaffirmed Matter of Clahar and confirmed that Hines should not be applied to prevent a child born to unmarried parents in Jamaica from qualifying as a “child” under INA §101(c)(1) and §320(a). Rather, all children born or residing in Jamaica after the 1976 effective date of the Jamaican Status of Children Act, which gave equal rights to children born out of wedlock, are considered legitimated for purposes of INA §101(c)(1) and §320(a).

The Second Circuit remanded Watson’s removal case to the BIA for clarification regarding the legitimation issue on May 31, 2011, in Watson v. Holder, 643 F.3d 367 (2d Cir. 2011). Watson was released from ICE custody in November 2011, evidently on the basis of his claim to U.S. citizenship, although he was released “into rural Alabama (where he knew nobody), without money, and without being told the reason for his release.”  His removal proceedings formally continued for more than a year after that, until the BIA ruled that he was a citizen and terminated his removal proceedings.  He then finally received a certificate of citizenship on November 26, 2013.

Having been recognized as a U.S. citizen, Mr. Watson sought compensation for his legally unjustified detention by filing an administrative claim for damages with the Department of Homeland Security (DHS) on October 30, 2013, under the Federal Tort Claims Act (FTCA).  After that claim was denied, he brought a lawsuit in the U.S. District Court for the Eastern District of New York on October 31, 2014.  While the district court rejected his malicious-prosecution claim because, as noted above, such claims under New York law (incorporated by reference through the FTCA) require actual malice and not mere negligence of the sort exhibited in Mr. Watson’s case by ICE, the district court found that Mr. Watson had a meritorious claim for false imprisonment regarding the initial period of his detention.  That claim was subject to a two-year statute of limitations, but the district court found that this statute of limitations had not begun to run until Watson received his certificate of citizenship in November 2013, or in the alternative that Watson’s claim was saved by equitable tolling of the statute of limitations.  The Second Circuit panel majority, however, over the vehement dissent of Chief Judge Katzmann, disagreed on both points.

The two-year clock for Watson to file his claim, the Second Circuit held, began at the latest in November 2008, when the Immigration Judge ordered Watson’s removal. At that point, if not earlier, the false imprisonment ended, the Second Circuit held, because Watson was held “pursuant to legal process.”  This was more than two years before Watson filed his claim in 2011.

The Second Circuit panel majority also overruled the district judge’s finding that Watson was entitled to equitable tolling of the limitations period.  According to the majority, Watson had not shown that “some extraordinary circumstance stood in his way” and prevented him from timely making his claim.  The district court had granted equitable tolling, as the majority explained, “based on Watson’s lack of education and legal training, his unawareness that he could bring an FTCA claim until being advised by appointed counsel, his depression, and ‘most significantly,’ the fact that government officials told Watson that he was not a U.S. citizen.” The Second Circuit panel majority found that “[n]one of these reasons justifies equitable tolling.”  Given Watson’s ability to fight his case in immigration court, the panel majority held, he could not show that his depression or his having been repeatedly told he was not a U.S. citizen prevented him from bringing an FTCA claim.  And because Watson’s lack of education and legal training were “an entirely common state of affairs,” they were not sufficiently extraordinary to justify equitable tolling, even though Watson had not had legal counsel during most of his time in detention.

Chief Judge Katzmann, in his dissent, disagreed with both the panel majority’s ruling regarding the initiation of “legal process” in immigration court as beginning the running of the statute of limitations on Watson’s false-imprisonment claim, and the majority’s decision to overturn the grant of equitable tolling.  On the “legal process” point, Chief Judge Katzmann objected to the significance that the panel majority attached to a hearing process in which the detained person was not entitled to, and did not have, the assistance of counsel.  In the criminal context, the procedural landmarks upon which “legal process” has been held to commence and cut off a false-imprisonment claim are also times at which a criminal defendant is entitled to the assistance of counsel.  Here, on the other hand, the government was arguing that Watson’s false-imprisonment claim should end because of a legal proceeding at which he, alone and without an attorney, bore the burden of making a complex argument regarding the significance of legitimation.  Chief Judge Katzmann observed that “if there is any case where meaningful legal process cannot be said to have begun without the assistance of counsel, this, surely, is one.”  As for equitable tolling, Chief Judge Katzmann found that the district judge had not abused his discretion in holding it to be warranted.  As he concluded:

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. 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.” 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.

Watson, slip op. at 18 (Katzmann, C.J., dissenting) (internal citations omitted).

As a practical matter, it seems to this author unfair to fault Mr. Watson for not filing an administrative claim sooner.  Chief Judge Katzmann appears to me to have the better of the argument with the panel majority regarding the impropriety of overturning the district judge’s fact-specific finding of equitable tolling under these circumstances.  Beyond that, however, the Second Circuit’s decision has created a legal situation that DHS may come to regret.

According to the Second Circuit’s decision in Watson, it appears that any immigration detainee who believes that he or she is a U.S. citizen and has been improperly detained should commence the process of filing an FTCA claim, and if necessary suing the government in federal court, before the removal proceedings against him or her are resolved.  At least in the Second Circuit, the government cannot object in response to such a filing that the claim cannot be brought until the removal proceedings are terminated.  The Second Circuit majority in Watson has rejected that analysis, which the district court had followed based on an analogy to Heck v. Humphrey, 512 U.S. 477 (1994) (requiring that a criminal conviction be set aside or declared invalid in some way before one can seek damages relating to an unconstitutional conviction or sentence). Rather, according to Watson, the government must defend the FTCA claim, and the related lawsuit, in parallel with the removal proceedings.

Moreover, a federal court judgment in the FTCA action declaring that the detainee was a citizen and thus unlawfully detained should, it seems, have preclusive effect on the removal proceedings. Thus, a claimed U.S. citizen would not have to wait for the judicial review of this citizenship claim that would be available under 8 U.S.C. §1252(b)(5) after the Immigration Court and BIA had addressed his case. Rather, by pursuing the FTCA action, it would be possible to obtain judicial review of the U.S. citizenship claim before the removal proceedings had otherwise run their course.

This earlier judicial attention to a U.S. citizenship claim might also have the salutary effect of provoking a quicker release of the detainee from custody. Faced with possible liability on the part of the United States, one would hope that an Assistant U.S. Attorney or an attorney from the Department of Justice’s Office of Immigration Litigation might intervene with DHS to get a detainee released more quickly.

Ultimately, the troubling decision in Watson may still result in more lost redress for unjustly imprisoned U.S. citizens, who lacked legal counsel, than it does additional opportunities for counseled detainees.  However, there is a possible silver lining to the cloud, and it is one the government may find itself displeased to have created.