Robinson v. United States, 15-CV-0988 (DRH) (AKT)

332 F.Supp.3d 516

Michael ROBINSON, Plaintiff,

v.UNITED STATES of America, Defendant.

15-CV-0988 (DRH) (AKT)

United States District Court, E.D. New York.

Signed August 22, 2018

For the Plaintiff: David A. Bythewood, Esq., 85 Willis Avenue, Suite J, Mineola, New York 11501, By: David A. Bythewood, Esq.

For the Defendant: Richard Donoghue, United States Attorney for the Eastern District of New York, 610 Federal Plaza, Central Islip, New York 11722, By: Diane C. Leonardo, Esq., Assistant U.S. Attorney, Josephine M. Vella, Esq., Assistant U.S. Attorney

MEMORANDUM AND ORDER

DENIS R. HURLEY, U.S.D.J.

Michael Robinson ("Robinson" or "Plaintiff") filed the present action against the United States of America (the "Government" or "Defendant") pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq. Plaintiff alleges that he was falsely arrested and imprisoned by the Department of Homeland Security ("DHS"), and Immigration and Customs Enforcement ("ICE"). He further claims to have been denied the benefits of lawful permanent resident status and United States citizenship by Defendant's negligence.

A bench trial was held on April 12 and 13, 2017 before United States Senior District Judge Leonard D. Wexler. The case was re-assigned to this Court on April 11, 2018. I conducted a telephone conference on April 19, 2018 to discuss whether either party wished to recall any witnesses pursuant to Rule 63 of the Federal Rules of Civil Procedure. Both parties stated that they did not want to recall witnesses and that the present record is sufficient. Upon review of the record, I certify familiarity with it, and determine that the case may be completed without prejudice to the parties based on the present record. Accordingly, the purpose of this decision is to provide my Findings of Fact and Conclusions of Law as required by Federal Rule of Civil Procedure 52.

Format of Decision

By way of format, a brief, largely undisputed, overview of the interactions between Robinson and the government officials will be provided, followed by the contentions of the parties and the applicable law. Against that backdrop, detailed findings of fact on contested issues will be furnished along with concomitant conclusions of law.

Part I – Undisputed Facts

1. Robinson was born in Jamaica on November 6, 1990. (Def. Ex A-000104.)¹ On May 3, 1997, he legally entered the United States on a B-2 non-immigrant visitor visa. (Def. Ex. A-000001.)

2. On August 13, 1998, an Application Form I-485 to adjust Robinson's status to lawful permanent resident was filed on his behalf by his stepmother (the "1998 Adjustment Application). (Pl. Ex. 23A; Tr. at 62:13–64:3.) Plaintiff, who was seven years old at the time, did not know anything about this application. (Tr. at 41:12-15.)

3. By Memorandum of Creation of Record of Lawful Permanent Residence approved on October 12, 2001 and bearing File No. A 75 555 590, Robinson's status was adjusted from B-2 to lawful permanent resident (the "2001 Adjustment Approval"). (Pl. Ex. 24.)

4. Robinson did not know the application had been approved and did not receive a green card as a result of the approval. (Tr. at 10:8-15, 43:15-18, 71:18-23.)

5. Robinson's father, Desmond Robinson, became a naturalized United States citizen on September 29, 2005. (Def. Ex. A-000040.)

6. A second Application Form I-485 for adjustment to permanent resident status, was filed on Robinson's behalf by his father on October 27, 2005 (the "2005 Adjustment Application"). (Pl. Ex. 18; Tr. at 65:8-13.) The 2005 Adjustment Application was assigned the file number A 96706661. (Pl. Ex. 18.)

7. From July 19, 2006 to February 21, 2008, Robinson's then-attorneys, Spar and Bernstein, P.C., wrote thirteen letters inquiring about the status of the 2005 Adjustment Application. (Pl. Exs. 3-15.) Each letter referred in the heading to File No.: 096-706-661, and each letter, in sum and substance, stated that Robinson and his father had appeared for an interview on May 15, 2006, and that at that time, "you indicated to us that you only had Michael's T file and that A file was at the National Records Center. You indicated that you would be requesting the A file and consolidating them and then approve the case." (Pl. Ex. 3.) The letters do not reference a second file number.

8. The second Form I-485 was approved on February 17, 2009. (Pl. Ex. 18.) Robinson received a green card in 2009. (Tr. at 47:4-6.)

9. On February 17, 2009, Robinson signed a document "voluntarily and willfully" requesting a withdrawal of the 1998 Adjustment Application for the stated reason that his father had "divorced petitioner Bernice E. Robinson, on 1/5/2001(the "Withdrawl Form"). (Def. Ex. N)² The Withdrawal Form bears only file number A096706661.

10. On October 20, 2010, Robinson was convicted of three counts of burglary in the second degree, Class C felonies under New York Penal Law, and sentenced to three and one-half years' imprisonment. (Tr. at 11:1-13, 13:3-6.)

11. Robinson served the state sentence for the felony convictions in state custody from October 2010 to September 27, 2013.³ (Tr. at 13:3-12.)

12. Robinson's case was referred to ICE by the New York State Department of Corrections to determine alienage and removability from the United States. (Tr. at 106:23–107:15.)

13. Prior to interviewing Robinson, ICE Deportation Officer Eddie Santiago ("Santiago") reviewed a Presentence Investigation Report that listed Robinson's citizenship as "Jamaican," status as "Legal Alien," and indicated that his immigration number was A096706661. (Tr. at 110:2-13; Def. Ex. A-000192.)

14. During an interview on November 29, 2010, Robinson told Santiago that he was a citizen of Jamaica and a lawful permanent resident of the United States. (Tr. at 16:3-20; Def. Ex. C.)

15. ICE officers use a database, the Central Index System ("CIS"), to review files. The database is maintained by United States Citizenship and Immigration Services ("USCIS"), a separate agency in the DHS. (Tr. 111:12-25, 157:22-158:4.)

16. Santiago used the CIS database to search for Robinson's file using the A number 096706661. (Tr. at 111:9-13.) He found the file, which indicated that Robinson was not a United States citizen. (Tr. at 112:3-6.)

17. Santiago testified that the database showed that Robinson became a lawful permanent resident in 2009 after he had turned 18 and thus he could not derive citizenship from a parent. (Tr. at 128:7-14).

18. Santiago testified that he had never seen the 2001 Adjustment Approval. (Tr. at 122-12-15.) At the time, he was unaware that there was another A file for Plaintiff. (Tr. at 130:16-17.)

19. Based on his database search, interview of Robinson, review of the files of both Plaintiff and his father, and state court records, Santiago determined that Robinson was deportable as a noncitizen and turned his files over to his supervisor for further action. (Tr. at 117:14-22.)

20. Robinson's case was assigned to ICE Deportation Officer Anthony Zito ("Zito") for preparation of the necessary paperwork to commence removal proceedings. (Tr. 152:20-153:1.)

21. Zito was only familiar with Robinson's alien number A096706661 and never saw file A75555590. (Tr. at 172:21-173:10; 176:1-2.)

22. Based on his review of the A file A096706661, Zito did not find any indication that Robinson had a claim to derivative citizenship. (Tr. at 163:5-8.) Zito testified that the 2001 Adjustment Application was not in the file when he made the removal determination. (Tr. at 167:21-23.)

23. Zito prepared a Notice to Appear ("NTA") for removal proceedings and forwarded it to his supervisor and ICE attorneys for approval. (Tr. at 160:1-12.)

24. An NTA for removal proceedings dated April 21, 2011 was served on Robinson on May 4, 2011. (Tr. at 19:8; Def. Ex. D.) The NTA charged that Plaintiff was a citizen of Jamaica and subject to removal due to his felony convictions. (Def. Ex. D.)

25. At the removal proceeding on October 12, 2011, Robinson testified that that he was a citizen of Jamaica (Tr. at 20:24–21:1.), and that he became a lawful permanent resident of the United States in February 2009. (Tr. at 22:10-13.)

26. By Order dated October 12, 2011, Robinson was ordered removed to Germany or, in the alternative, to Jamaica. (Def. Ex. F.)

27. Robinson did not appeal the removal decision by the Immigration Judge. (Tr. at 22:20-21.)

28. On June 24, 2013, Robinson moved to reopen the removal proceeding; the motion was denied on August 12, 2013 (Def. Ex. H; Def. Ex. A-000002.)

29. Robinson's sworn affidavit dated June 24, 2013 and made in support of the motion to reopen the removal proceeding, stated his belief that he is a citizen of Jamaica and that his status was adjusted to lawful permanent resident on February 17, 2009. (Def. Ex. H.; Tr. at 29:17-20.)

30. Robinson was released from State custody on September 27, 2013 and was transferred directly to an ICE detention center in Batavia, New York. (Tr. at 163:1-2.)

31. On October 4, 2013, ICE Deportation Officer Brent Stothers ("Stothers") took a sworn statement from Robinson, recording Robinson's answers as given. (Tr. at 190:2-20.) Robinson told Stothers that he was not claiming United States citizenship, said "I just want to be deported," and declined to answer further questions. (Def. Ex. J; Tr. 32:3-25, 33:1-1.)

32. On November 27, 2013, Robinson's new attorney, Millicent Y. Clarke ("Clarke"), filed a FOIA request on Robinson's behalf for records at the USCIS National Records Center for the stated purpose "[t]o determine whether I am in fact a United States citizen." (Def. Ex. K.; Tr. at 60:17-20.)

33. Clarke received the response to the FOIA request by CD received on February 17, 2014. (Tr. at 60:17-20.) Upon review of the file, Clarke saw that an application for adjustment to lawful permanent resident status had been filed in 1998 and that application had been approved; she found nothing in the file to indicate that a green card was issued at that time. (Tr. at 64:1-15)

34. Upon review of the file and...