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Gray v. Weselmann

United States District Court, D. Connecticut

March 31, 2017

WAYNE D. GRAY, Plaintiff,
JAY R. WESELMANN, et al., Defendants.



         It is frightening to think that our Government may mistakenly deport people who are actually U.S. citizens. It is frightening but not unheard of. See Jacqueline Stevens, U.S. Government Unlawfully Detaining and Deporting U.S. Citizens as Aliens, 18 Va. J. Soc. Pol'y & L. 606 (2011) (empirical study of incidence of wrongful removal of U.S. citizens).

         Plaintiff Wayne D. Gray is a U.S. citizen. He was born in Jamaica and came with his parents to the United States as a child. While still a child and living with his father, he became a citizen by automatic operation of law when his father naturalized as a U.S. citizen in January 1990. Unfortunately, plaintiff did not know that. Nor did the INS or even plaintiff's own immigration lawyer realize plaintiff's true status when he was deported to Jamaica in 1998 after having been convicted for a robbery.

         Plaintiff soon found his way back into the United States. But he was arrested again in 2012, and this time the federal government criminally charged him with unlawful reentry into the United States. It was a charge based in no small part on plaintiff's sworn statement to federal agents that he was illegally here in the United States. Only after plaintiff pleaded guilty to the charge and was awaiting sentencing did one of plaintiff's criminal defense attorneys realize that plaintiff may in truth be a U.S. citizen.

         This prompted a further investigation by immigration authorities that eventually validated plaintiff's claim. Plaintiff was released from prison, and the prosecution was dropped.

         Now a free man, plaintiff has sued the United States under the Federal Tort Claims Act. He alleges multiple tort claims including false arrest/imprisonment, malicious prosecution, negligence, and negligent/intentional infliction of emotional distress.

         The United States has moved for summary judgment. It readily concedes that plaintiff is a U.S. citizen but maintains nonetheless that its agents had probable cause for plaintiff's arrest, detention, and prosecution. I agree. Therefore, I conclude that the motion for summary judgment must be granted.


         Plaintiff immigrated with his parents to the United States in 1982 when he was 8 years old, and he became a lawful permanent resident. His parents soon divorced in 1986. On January 19, 1990, his father naturalized as a U.S. citizen. Although no one seemed to realize it at the time (not least of all plaintiff himself), the consequence of his father's naturalization was that plaintiff also derivatively became a U.S. citizen by operation of law, because plaintiff was living with his father at the time and was still a minor. See 8 U.S.C. § 1432(a) (now repealed); see also Gil v. Sessions, --- F.3d ---, 2017 WL 1032575, at *2 (2d Cir. 2017) (quoting and discussing former derivative citizenship statute that was repealed in 2000).

         Soon after plaintiff turned 18 years old, he was convicted of robbery in a Connecticut state court. After plaintiff served several years in prison for this robbery, the Immigration and Naturalization Service (INS) placed plaintiff into deportation (removal) proceedings in 1995.

         These proceedings were premised on a mistaken assumption that plaintiff was not a U.S. citizen. During those deportation proceedings, INS agents completed a Record of Deportable Alien, which consisted of notes discussing plaintiff's history. This record states in part: “Alienage and deportability established. . . . Subject is a 21 year old native and citizen of Jamaica. . . . Subject's parents are both [naturalized] [United States citizens (USC)]. Mother became USC on 9/4/92. Subject did not derive.” Doc. #42-3 at 15. Another note in the Record of Deportable Alien created during plaintiff's removal proceedings states: “Lives w/ mother. Father left mother in 1987.” Id. at 18. In short, these notes reflect a belief that plaintiff had lived with his mother (not his father) before he turned 18 years old, and therefore that he had not derived U.S. citizenship because his mother did not naturalize as a U.S. citizen until after plaintiff turned 18 years old.

         On the basis of this information, the INS issued an order to show cause alleging that plaintiff was not a citizen of the United States, and alleging that his robbery conviction rendered him deportable. Id. at 9-10. Despite being represented by an attorney at the time, plaintiff conceded the charge. Rather than contest plaintiff's deportability, plaintiff's lawyer requested discretionary relief from deportation, which relief was denied. Plaintiff was ordered removed from the United States to Jamaica on May 22, 1996.

         Still represented by counsel, plaintiff appealed his order of removal to the Board of Immigration Appeals (BIA). Again, he did not claim that he was actually a U.S. citizen. After the BIA affirmed the order of removal, plaintiff's counsel continued plaintiff's appeals: he moved to reopen with the BIA, appealed the BIA's reaffirmance of the appeal to the Second Circuit, filed a motion for stay of deportation, and filed a petition for writ of habeas corpus in federal court. During all of this time, from 1995 through 1998, plaintiff and his counsel continued to concede plaintiff's status as a Jamaican citizen. Plaintiff was finally deported in 1998, after he indicated that he no longer wanted to fight his case and wished to return to Jamaica.

         Plaintiff soon returned incognito to the United States in 1999. But more than ten years later, he was arrested in North Carolina in 2012 on a warrant for identity theft. This arrest in turn prompted a federal criminal prosecution against him for unlawful reentry after deportation. Plaintiff was transferred to immigration custody where he met with Special Agent Bryan Moultis of Immigration and Customs Enforcement (ICE). He told Agent Moultis that he was a Jamaican national who had been previously ordered removed from the United States by an immigration judge pursuant to an order of removal. He explained that he was ...

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