Ankrah v. Gonzalez, et al  

This past month, the United States District Court for the District of Connecticut (Court) reviewed the applicable analysis in determining derivative citizenship status under former 8 U.S.C. § 1432.  Petitioner Samuel Ankrah filed a petition for review challenging a final order of removal entered against him by the Board of Immigration Appeals (BIA) and a petition for a writ of habeas corpus challenging his ongoing detention by the Department of Homeland Security (DHS).   

Petitioner Ankrah was born to unwed parents in Ghana .  In 1987, Ankrah immigrated to the US , along with his mother, as lawful permanent residents.  In 1991, when Ankrah was fifteen years old, his mother became a naturalized citizen.  The present case stems from a series of criminal convictions between 1998 and 2002, in which Ankrah was convicted twice of possession of narcotics and convicted once of sexual assault in the second degree, all under Connecticut statutes.  In 2005, the DHS placed Ankrah in removal proceedings, issuing him a Notice to Appear that cited removal based on Ankrah’s criminal convictions.   

Throughout the course of Ankrah’s case, several key rules were followed.  Primarily, whether a petitioner has derived citizenship from a naturalized parent falls under the paradigm set forth in former 8 U.S.C. § 1432(a).  This statute explains that a child born outside of the United States of alien parents and out of wedlock derives US citizenship from his mother when she becomes a naturalized U.S. citizen if: (1) the naturalization occurred before the child’s eighteenth birthday; (2) at the time of his mother’s naturalization, the child resided in the U.S. as a lawful permanent resident; and (3) the child’s paternity was not established by legitimation.  8 U.S.C. § 1432(a)(3).  To establish whether a petitioner qualifies for derivative citizenship under 8 U.S.C. § 1432(a)(3), the Court considers whether paternity has been established by legitimation under the laws of the child’s native country.  Gosrira v. Loy, 357 F. Supp. 2d 453, 459 (D. Conn. 2004).     The burden is initially on the government to prove that a petitioner is of foreign birth.  Zhang v. Slattery, 55 F.3d 732, 752 (2d. Cir. 1995).  Once the government has met that burden, the petitioner must then prove his citizenship.  See United States ex rel. Barilla v. Uhl, 27 Supp. 746, 746-47 (S.D.N.Y. 1939) aff’d per curiam, 108 F.2d 1021 (2d. Cir. 1940).   

This particular case deals primarily with the third prong of the former 8 U.S.C. 1432(a)(3) test for paternity, namely, whether or not Ankrah’s paternity was established by legitimation.  Ankrah presented his case before the immigration court in July 2005.  At this time, Ankrah brought evidence of Ghana ’s laws concerning legitimation.  First, Ankrah submitted a letter from an attorney in Ghana , in which the attorney explained that Ghana does not have statutes dictating the exact method a child is legitimized; however, the common law does lay forth a basic analysis.  Citing several Ghana Supreme Court cases, the attorney explains that a child born out of wedlock in Ghana is not legitimized unless the father cared for the mother during her pregnancy and the father also named the child in accordance with the tribe’s naming rituals.  Ankrah also produced a report written by a foreign law expert at the Library of Congress confirming that there is no specific statutory law concerning legitimation of children born out of wedlock in Ghana .  The reports included law review articles discussing the laws of marriage and legitimation, indicating that legitimation in Ghana is established when the father "acknowledges" the child.  As a third piece of evidence, Ankrah included a second letter from the same Ghana attorney.  This letter explained that "acknowledgment" of a child born out of wedlock is accomplished by the father’s caring for the mother of the child during her pregnancy and also naming the child in accordance with tribal rituals.  During the hearing, Ankrah’s mother, Stella Owusu, and aunt, Vivien Darko, gave testimony that explained the course of events surrounding Ankrah’s birth.  Both testimonies explained that Owusu notified Ankrah’s father, who lived three hours away, that she was carrying his child, but he questioned this fact and neither of Ankrah’s parents contacted the other for the remainder of the pregnancy.  Ms. Darko testified that she, her fiancé at that time, and Ms. Owusu worked to support the family during the pregnancy and during Ankrah’s childhood.  Furthermore, Ms. Darko explained that because the father’s name was known, her fiancé placed the name on the birth registry and the birth certificate.  Ms. Owusu testified that Ankrah’s paternal grandmother came to the Darko home after Ankrah was born and gave Ankrah the family name.  

          The government presented evidence to refute Ankrah’s arguments.  The government argued that his paternity was legitimized in Ghana because Mr., Ankrah’s father’s name is on his birth certificate, and because Ankrah concedes that his father eventually admitted he is his son.  Furthermore, the government submitted into the record a copy of documents submitted by Ms. Owusu, Ankrah’s mother, in support of Ankrah’s original application to obtain lawful permanent residence and a copy of his immigrant visa.  This packet included letters submitted by Ankrah’s father; in one declaration, Ankrah’s father states "during the period of our friendship she became pregnant and I accepted responsibility for the pregnancy."  

          Upon examination of the evidence, the Immigration Judge (IJ) found that Ankrah was removable based on his criminal convictions.  The IJ also determined that Ankrah was not a derivative citizen, that he had not met his burden of proof in establishing what the law is in Ghana concerning legitimation of children born out of wedlock or in presenting sufficient facts to prove that his paternity was not established by legitimation.  On appeal, a three-member panel of the BIA concluded that Ankrah had met his burden of proof in establishing the manner in which paternity can be established by legitimation for children born out of wedlock in Ghana .  The BIA concluded that a father in Ghana "acknowledges" paternity by caring for the mother during pregnancy and by "naming" the child after birth through cultural ceremonies unique to each Ghanaian culture.   The BIA further stated that if the testimony of Ms. Owusu and Ms. Darko were truthful, then Ankrah had established that his paternity had not been legitimated.  The BIA remanded the case to the IJ to make a specific credibility finding regarding the testimony of these witnesses.  Once again before the immigration court, however, the IJ failed to establish credibility.  Instead, the IJ referred to the fact that the testimony could be read in conflict with the package submitted with Ankrah’s father’s letters.  The IJ also hedged the credibility question by stating "it is very, very difficult to evaluate these witnesses’ credibility."  After sidestepping the issue of credibility, the IJ made a determination that Ankrah had failed to carry his burden of proving that he had not met his burden of proving that he did not meet the legitimation requirements of Ghanaian law.  Ankrah appealed the decision, and his case again came before the BIA, this time before a one-member panel.  The BIA affirmed the IJ’s decision without opinion and dismissed the appeal.  The BIA held that although the IJ did not find the testimony lacking credibility, he failed to affirmatively credit their testimony.  This second BIA decision did not make a clear credibility finding, but did find the law concerning legitimation in Ghana is unclear and supported the IJ’s determination that Ankrah had not established the correct rule of law.  The BIA made this determination as contrary to the first BIA decision, which found that Ankrah had sufficiently established the relevant Ghanaian law on legitimation.  

          In April 2006, Ankrah commenced the present case by filing a Petition for Writ of Habeas Corpus with this Court challenging his continued detention by the immigration authorities.  In August, the Court denied that Ankrah’s claim that his due process rights were violated; furthermore, the Court held that it lacked jurisdiction over the merits of Ankrah’s nationality claim under 8 U.S.C. § 1251(b)(5) and transferred the case to the Second Circuit Court of Appeals.  By stipulation, the parties agreed that both Ankrah’s Petition for Review and Petition for Habeas Relief be transferred back to the present Court pursuant to 8 U.S.C. § 1251(b)(5)(B).   

          In analyzing Ankrah’s arguments and the history of the case as it progressed back and forth between the IJ and BIA, this Court made two relevant determinations.  First, the Court found that Ankrah did indeed establish Ghanaian law concerning legitimation.  The Court noted that the first BIA decision clearly held that Ankrah had established the legal mechanism for legitimation in Ghana ; therefore, under the "law of the case" doctrine, the second BIA decision was misplaced in that it completely disregarded the existence of the prior ruling.  The Court explained that the law of the case doctrine "posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case."  See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 815-16, 108 S.Ct. 2166, 2177 (1988).  The Court found the BIA erred in its second ruling by adhering to the IJ’s misguided determination and failing to uphold the  prior BIA conclusion that Ankrah had established the relevant Ghanaian law of legitimation.    Going forward, the Court reasoned that Ankrah had proffered sufficiently reasonable, substantial and probative evidence.  The Court explained that the two letters from a Ghanaian attorney, two decisions from the Ghanaian Supreme Court, and copies of a Ghanaian family treatise all established that a child born out of wedlock is legitimated in Ghana when the father cares for the mother during pregnancy and names the child after its birth according to tribal customs.  

          As the second prong of analysis, the Court questioned whether Ankrah’s submitted evidence showed the requirements of legitimation were not met; the Court also looked to the credibility of testimony presented by Ms. Owusu and Ms. Darko.  The Court first noted that credibility questions in deportation proceedings are generally analyzed in the asylum context as questions of fact subject to the substantial evidence standard.  Secaida-Rosales, 331 F.3d at 307 (citations omitted).  Furthermore, when an IJ analyzes the testimony to determine credibility, such a determination must be supported by carefully detailed reasoning.  Id.   The Court goes explain that because it has not reviewed a credibility determination in the context of a claim for derivative citizenship, it will adopt the Second Circuit’s standard of review of credibility determinations in the context of the denial of asylum applications.  See, e.g., Pang Bureau of Citizenship & Immigration Servs., 448 F.3d 102 (2d. Cir. 2006).  By using these rules as guidance, the Court found that the IJ, without any clarification or cogent rationale, had failed to make a credibility determination.  The Court noted that BIA also failed to make a clear credibility determination, again without any logical reasoning to support this omission.  In its own review of the record, the Court concludes that Ms. Owusu and Ms. Darko’s testimony is credible, as nothing in the record reflects questions or misrepresentations.  Furthermore, the Court found that both Ms. Owusu and Ms. Darko’s testimony established that Ankrah’s father did not provide tangible support or financial care during Ms. Owusu’s pregnancy.  This fact alone trumps any subsequent "acknowledgment" the father may have made because one of the key principles in Ghanaian legitimation is that the father must care for the mother during the pregnancy.  The Court reasoned that simply having the father’s name on the child’s birth certificate is not proof of legitimation; furthermore, the father’s statement, "accept[ing] responsibility for the pregnancy," could go no further than he acknowledged he was responsible in causing the pregnancy and conceded he was the father.  Neither of these facts negate the established truth that Ankrah’s father did not care for Ms. Owusu during her pregnancy; therefore, Court found that Ankrah had shown that the legitimation test under Ghana law was not met.  

          In conclusion, the Court found Ankrah had derived U.S. Citizenship through the naturalization of his mother when he was fifteen, living in the United States as a permanent resident and in her sole legal custody.  As a citizen, the Court held he is not removable and must be released from custody.  Accordingly, his petition for a write of habeas corpus was granted.