                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


 PAUL ECCLESTON JACKSON,

         Petitioner,

                 v.                                       Civil Action No. 18-26 (JEB)


 ATTORNEY GENERAL OF THE
 UNITED STATES,

         Respondent.


                                   MEMORANDUM OPINION

       This immigration and citizenship controversy hinges on one very simple question: who is

Petitioner Paul Jackson’s biological father? Would that the answer were so easily found. Three

years ago, the Board of Immigration Appeals ordered the Jamaican-born Jackson’s removal from

this county. He petitioned a federal appellate court for judicial review of that order, maintaining

that he could not be deported because he is a U.S. citizen. More specifically, Petitioner alleged

that he acquired citizenship via his putative American father — Herbert Jackson. The appellate

court found that there were genuine issues of material facts as to Paul’s citizenship status, and

the case has made its way here for de novo consideration of that issue.

       Following about a year and a half of discovery, he now moves for summary judgment on

his citizenship claim or, in the alternative, for partial summary judgment on several elements of

that claim. In rejoinder, the Government chiefly contends that the identity of Petitioner’s natural

father remains in dispute. Having combed through the record, the Court concludes that Paul has

satisfied all but one part of his claim — that is, biological paternity. For that reason, it will grant

only partial summary judgment and require a trial to finally determine Petitioner’s true lineage.

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I.     Background

       To set the stage, the Court begins by laying out the uncontested facts bearing on

Petitioner’s progenitors before turning to those in dispute. It will then offer a few words on this

case’s procedural history.

       A. Factual History

       Upon multiple facts do the parties agree. In October 1967, Eupheme Finlayson gave

birth to Petitioner in Kingston, Jamaica. See ECF No. 25 (Appendix Volume II) at RESP624–

25. She filled out a “Birth Registration Form” by hand, leaving blank the lines designated for the

names of the child and the father. Id. at RESP624. Later that month, she amended the form and

named the child “Paul Eccleston Matthews.” Id. She did not, however, enter a name for the

child’s father. Id.

       After a few months passed, in March 1968, she filed a summons in her country, seeking

child support for the newborn and other relief from a Jamaican man named Fahrin Matthews. Id.

at RESP106. That summons was dismissed for lack of jurisdiction. Id. at RESP102–12. Before

the end of the year, in November 1968, Eupheme came to the U.S. as a legal permanent resident,

leaving her infant son with her relatives in Jamaica. Id. at RESP21–22, 27–28; see ECF No. 26

(Appendix Volume III) (Deposition of Paul Jackson) at 34–37.

       Within three years of arriving in this country, in 1971, Eupheme married Herbert

Jackson — an American citizen — in Maryland. See Vol. II at RESP12, 16; ECF No. 24

(Appendix Volume I) at PET1. Two years later, the couple moved to Jamaica. See ECF No. 31-

2 (Resp. Statement of Facts) at 17, ¶ 37; Vol. II at RESP14; Vol. I at PET36. Upon returning to

the island, Eupheme legally changed her son’s surname from “Matthews” to “Jackson.” See

Vol. II at RESP708–13.



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       For a number of years, the Jacksons resided in Jamaica, but they eventually made their

way back to Maryland. See Resp. SMF at 17–18, ¶¶ 39–40. Herbert and Eupheme returned

first, see Vol. I at PET36 (Herbert returned in 1979); Vol II at RESP2 (Eupheme returned in

1980), and in 1981, Paul joined them, entering this country as a legal permanent resident. Id. at

RESP613–17. With the assistance of a relative, he filled out his immigration paperwork and

identified Herbert as his father. Id. Further, an application for a social-security number the

following year stated the same thing. See Vol. I at PET49.

       The path now turns more crooked. Because Herbert passed away decades ago, the

foolproof method of determining whether he is Paul’s birth father — i.e., a DNA test — is not

available. See Vol. I at PET239 (Herbert died in 1992); see also id. at PET237–38 (Eupheme

died in 1986). That being so, Petitioner must rely on a variety of circumstantial evidence — all

of which the Government contests — to make his case. For example, he points to the deposition

testimony of a family friend who alleged that Herbert and Eupheme were in a romantic

relationship before she gave birth to Paul. See Vol. III (Deposition of Clive Gifford) at 8, 27–29.

As evidence, this witness testified that, on several occasions, Herbert visited Eupheme in

Jamaica while she was pregnant with Petitioner. Id. at 22–26. During those visits, the two

allegedly were physically affectionate with one another. Id. at 22 (stating that he saw them

“hug” and “kiss”).

       The Government, however, maintains that this testimony is wholly unreliable, riddled

with inconsistencies, and directly contradicted by other witness accounts. See Resp. SMF at 11,

¶ 22. Those people aver that Herbert met Eupheme long after Paul had been born. See Resp.

Opp. at 5; Vol. III (Deposition of Leonard Jackson) at 23 (stating his belief that the two met in

the United States — i.e., sometime after November 1968). More telling still, the Government



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points out that Herbert could not legally travel to Jamaica until 1973 — when he first applied for

a U.S. passport. See Resp. SMF at 11, ¶ 22; Vol. I at PET172–73. As such, Herbert and

Eupheme could not have been together at the time of Paul’s conception. The Government posits,

in short, that the timelines simply do not add up.

       B. Procedural History

       Since the late 1980s, Petitioner has had multiple encounters with law enforcement that

have landed him in prison and subject to removal. See Vol. II at RESP72–83 (chronicling drug

and illegal-reentry offenses). Indeed, he has been deported to Jamaica several times. Id. at

RESP74 (listing deportations in 1993, 1996, and 2009). As a result of his latest criminal episode

in 2012, an immigration judge once again ordered Paul’s removal from this country following

the completion of his prison sentence. See Jackson v. Att’y Gen., 3d Cir. No. 17-1318, Doc.

3112588204. After serving out his sentence, Paul moved to reopen this removal decision, but an

IJ denied his request. See Jackson v. Att’y Gen., 663 F. App’x 245, 246 (3d Cir. 2016). The

case then wound its way through the administrative-appeals process, culminating with the Board

of Immigration Appeals’ affirming that order in January 2017. See Jackson, Doc. 3112588204.

       Undeterred, Paul sought review before the Third Circuit pursuant to 8 U.S.C. § 1252(b).

Id.; see also id. (noting that he was then detained by immigration authorities in Pennsylvania).

That statute permits a would-be deportee to challenge his removal order on the basis that he is a

U.S. citizen and therefore not subject to deportation. See Ricketts v. Att’y Gen., 897 F.3d 491,

492 (3d Cir. 2018) (citing 8 U.S.C. § 1252(b)(5)). Petitioner argued that he could not be

deported because his alleged biological father (Herbert) was an American citizen, which makes

him one, too.




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       The Third Circuit identified a genuine issue of fact underlying his acquired-citizenship

claim. See Jackson, Doc. 3112808615. It therefore transferred the proceeding to a federal

district court in Pennsylvania for a de novo hearing. Id. (invoking 8 U.S.C. § 1252(b)(5)(B)).

That court, in turn, transferred the case here when Paul moved to the District of Columbia. See

Docket Entry Jan. 9, 2018.

       With discovery having concluded, Petitioner has filed a Motion for Summary Judgment

on his citizenship claim. In the alternative, he moves for partial summary judgment on several

elements of that claim. Briefing is now complete, and the Court is ready to rule on the Motion.

II.    Legal Standard

       Upon a party’s motion, Federal Rule of Civil Procedure 56(a) requires the Court to “grant

summary judgment if the movant shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” A fact is “material” if it can affect

the substantive outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A dispute is “genuine” if

the evidence is such that a reasonable factfinder could return a verdict for the non-moving party.

See Scott v. Harris, 550 U.S. 372, 380 (2007); Holcomb, 433 F.3d at 895.

       When a motion for summary judgment is under consideration, “[t]he evidence of the non-

movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Liberty

Lobby, 477 U.S. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)); see

also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C. Cir. 2006) (same). Courts, moreover, must

apply the same evidentiary standard of proof that would apply at trial. See Liberty Lobby, 477

U.S. at 254 (holding that “the judge must view the evidence presented through the prism of the

substantive evidentiary burden.”). They, however, must “eschew making credibility



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determinations or weighing the evidence.” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir.

2007).

         To defeat summary judgment, an opposition must be supported by affidavits,

declarations, or other competent evidence, setting forth specific facts showing that there is a

genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 323–24

(1986). The non-movant is required to provide evidence that would permit a reasonable jury to

find in its favor. Laningham v. U.S. Navy, 813 F.2d 1236, 1243–44 (D.C. Cir. 1987). If the

non-movant’s evidence is “merely colorable” or “not significantly probative,” summary

judgment may be granted. Liberty Lobby, 477 U.S. at 249–50.

III.     Analysis

         The legal principles that govern citizenship claims are well established. Time and again,

the Supreme Court has made clear that there are only “two sources of citizenship”: birth and

naturalization. Miller v. Albright, 523 U.S. 420, 423 (1998) (quoting United States v. Wong

Kim Ark, 169 U.S. 649, 702 (1898)). As to the first category, the Constitution expressly grants

U.S. citizenship to all persons born in this country. See U.S. Const. amend. XIV, § 1. Those

born abroad, on the other hand, “acquire citizenship by birth only as provided by Acts of

Congress.” Miller, 523 U.S. at 424 (citing Wong Kim, 169 U.S. at 703).

         Paul maintains that, though he was born on Jamaican soil, he became an American citizen

by virtue of his biological father’s citizenship and subsequent legitimation. In evaluating his

claim, the Court must look to the law in effect at the time of Petitioner’s birth in 1967. See

Sessions v. Morales-Santana, 137 S. Ct. 1678, 1687 n.2 (2017). At such time, Congress

provided for a blanket grant of citizenship to those children born abroad who had at least one

U.S. citizen parent, subject only to that parent’s meeting a physical-presence requirement in this



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country. See 8 U.S.C. § 1401(a)(7) (1964 ed.). Under that criterion, the citizen parent must have

been present in the U.S. for ten years prior to the child’s birth, and at least five of those years had

to follow the parent’s 14th birthday. Id.

       The legislature, moreover, imposed an additional requirement on a “child born out of

wedlock” to a citizen father. See 8 U.S.C. § 1409(a) (1964). Namely, before that child turned 21

years old, his father’s paternity must have been established by legitimation (under the law of

either the father’s or the child’s domicile). Id.; id. § 1101(c)(1) (1964); Tineo v. Att’y Gen., 937

F.3d 200, 204 (3d Cir. 2019).

       Putting all this together, to succeed on his citizenship claim, Petitioner must prove that:

(1) Herbert is his biological father; (2) Herbert was a U.S. citizen when Paul was born; (3) before

Paul’s birth, Herbert had been physically present in the U.S. for at least ten years, at least five of

which were after he turned 14; and (4) prior to Paul’s turning 21, Herbert legitimated him as his

son under Jamaican or Maryland law.

       Of these elements, the Government has effectively conceded the last three by wholly

failing to challenge the sufficiency of Petitioner’s evidence, which is, in any event, solid on all

three. See ECF No. 31 (Resp. Opp.) at 23–24. In Respondent’s view, it is unnecessary to reach

these elements because the first one — biological paternity — has not been established. Id. The

Court disagrees. Even assuming for a moment that Paul has not shown that Herbert was his birth

father, partial summary judgment on the undisputed components of his claim would still be

appropriate. See Fed. R. Civ. P. 56(a) advisory committee’s note to 2010 amendment

(recognizing that partial summary judgment could be sought “as to a claim . . . or part of a

claim”) (emphasis added); see also Hotel 71 Mezz Lender LLC v. Nat’l Retirement Fund, 778

F.3d 593, 606 (7th Cir. 2015) (“[P]atrial summary judgment can serve a useful brush-clearing



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function even if it does not obviate the need for a trial . . . .”). For these reasons, the Court finds

that Paul has surmounted the summary-judgment hurdle as to the last three elements. All that

remains to analyze, then, is whether he has satisfied the first element.

        A. Requisite Burden

        To decide whether Herbert is Petitioner’s natural father, the Court must first address a

threshold issue — viz., exactly how much proof must Paul adduce to shoulder his burden? The

parties vigorously disagree on this, each offering a different approach for the relevant burden and

quantum of proof.

        For starters, Petitioner urges this Court to adopt the Ninth Circuit’s three-part burden-

shifting framework. See ECF No. 27-3 (MSJ) at 3–7. Under that approach, the government

bears the initial burden to prove non-citizenship. Mondaca-Vega v. Lynch, 808 F.3d 413, 419

(9th Cir. 2015) (en banc). It can do so, for example, by pointing to a petitioner’s admission that

he was born abroad. See, e.g., Corona-Palomera v. INS, 661 F.2d 814, 818 (9th Cir. 1981). This

creates a rebuttable presumption of non-citizenship. Id.

        At that point, the burden shift backs to the petitioner, who must present “substantial

credible evidence” of citizenship to “burst” the non-citizenship presumption. Mondaca-Vega,

808 F.3d at 419. (For those unfamiliar with this standard, “[s]ubstantial evidence is more than a

scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Rivera v. Mukasey, 508 F.3d 1271, 1274 (9th Cir. 2007) (quoting Turcios v. INS,

821 F.2d 1396, 1398 (9th Cir. 1987)); see also Rose v. Sessions, 679 F. App’x 557, 559 (9th Cir.

2017) (“Substantial evidence is ‘more than mere scintilla,’ . . . but less than a preponderance.”)

(omission in original) (quoting Saelee v. Charter, 94 F.3d 520, 522 (9th Cir. 1966)).)




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        If a petitioner meets this burden, the government must then counter with “clear and

convincing evidence” of non-citizenship. Mondaca-Vega, 808 F.3d at 419; see also United

States v. Montague, 40 F.3d 1251, 1255 (D.C. Cir. 1994) (noting that “clear-and-convincing

standard” requires factfinder “to reach a firm conviction of truth on the evidence about which he

or she is certain”).

        For its part, the Government rejects this scheme altogether. See Resp. Opp. at 12–14. It

maintains that, in proceedings brought under § 1252(b)(5)(B), the onus falls squarely on the

petitioner to prove his citizenship claim by a preponderance of the evidence. Id. at 15. It finds

support for this position in the provision’s text — chiefly, the requirement that district courts are

to make “a decision on [a citizenship] claim as if an action had been brought . . . under [the

Declaratory Judgment Act, 28 U.S.C. § 2201].” See Resp. Opp. at 10 (quoting 8 U.S.C.

§ 1252(b)(5)(B)). Because individuals seeking declaratory judgments of citizenship must meet a

preponderance standard, the argument goes, a petitioner claiming citizenship in a

§ 1252(b)(5)(B) proceeding must meet the same burden. Id. at 10–11, 13. The Government is

not alone in its thinking; a number of appellate courts have set the bar at a preponderance of the

evidence. See, e.g., Espichan v. Att’y Gen., 945 F.3d 794, 801 (3d Cir. 2019); Kamara v. Lynch,

786 F.3d 420, 425 (5th Cir. 2015); Leal Santos v. Mukasey, 516 F.3d 1, 3–4 (1st Cir. 2008).

        Fortunately, the Court, at this point, need not decide who has the better of this dispute.

Even if Petitioner has met the substantial-evidence standard, he does not prevail on his Motion

for Summary Judgment. That is because, as will become plain shortly, a factfinder could

reasonably determine that the Government has countered with clear and convincing evidence that

Herbert is not his birth father.




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       B. Merits

       According to the Government, the record shows that Paul’s biological father is likely

Fahrin Matthews — not Herbert. See Resp. Opp. at 16–18. To start, it looks to the events

surrounding Petitioner’s birth. Recall that weeks after her son was born, Eupheme amended his

birth certificate, entering “Matthews” as the child’s surname. See Vol. II at RESP624. Shortly

thereafter, Eupheme sued Fahrin for custody and child support. Id. at RESP102–12. Naturally, a

factfinder could conclude that Eupheme would have taken these actions only if she had believed

that Fahrin, not Herbert, was Paul’s birth father.

       Additional record evidence shows that, for several decades, Petitioner held the same

belief. He has represented as much to multiple probation officers. See, e.g., Vol. I at PET182

(1988 Presentence Report) (identifying Fahrin as father); Vol. II at RESP65 (1999 PSR) (“The

defendant stated that he is the only child born from a relationship between Farim [sic] Matthews

and Eupheme Jackson (nee: Finlayson).”); id. (referring to Fahrin as his “natural father”); id. at

RESP80 (2012 PSR) (“Paul Eccleston Jackson was born to Farim [sic] Matthews and Eupheme

Finlayson . . . .”). In those same reports, he made clear that he did not believe that Herbert is his

birth father. See, e.g., 1999 PSR at RESP65 (referring to Herbert as his “stepfather” several

times); 2012 PSR at RESP80 (“Ms. Finlayson married Herbert Jackson when defendant was four

or five years old; and it is [Herbert] who the defendant refers to as his father. The defendant

indicated that he was adopted by [Herbert].”).

       Consider also the whereabouts of Herbert and Eupheme at the time of Petitioner’s

conception. Eupheme was in Jamaica. See Vol. II at RESP14 (listing Kingston as her residence

from 1965–67); see also id. at RESP4 (indicating that she did not come to America until 1968 —

a year after Paul’s birth). And, says the Government, Herbert did not leave the U.S. until 1973 at



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the earliest because he did not have a passport. See Vol. I at PET172. So he necessarily could

not have been with Eupheme in Jamaica when Paul was conceived, unless he managed to travel

to the Caribbean without such documentation or such documentation was not required at that

time.

        To sum up, even under Petitioner’s preferred evidentiary framework, he comes up short.

That is because a factfinder could reasonably conclude that the Government has adduced clear

and convincing evidence that, contrary to Paul’s take on the facts, Herbert is not his biological

father. Petitioner has thus not met his summary-judgment burden of showing the absence of a

disputed material fact. See Celotex, 477 U.S. at 323.

IV.     Conclusion

        For these reasons, the Court will grant in part and deny in part Petitioner’s Motion for

Summary Judgment. A separate Order so stating will issue this day.

                                                             /s/ James E. Boasberg
                                                             JAMES E. BOASBERG
                                                             United States District Judge
Date: April 20, 2020




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