it does a status the mother was legally married we will we need to look at two of evaluating the legal relationships it's going to be the law and again as i said we're trying to figure that out of wedlock you know it's the reason that matters is there are two separate statutes talking about derivative citizenship and this is citizenship acquired by birth and it's acquired by operation of law as i said earlier there's no father listed on the birth certificate so legally the petitioner has no father it does not matter of the petitioner believes what the government believes legally he has no father or father's relationship is not going to stop this by law as legally only a putative father in the us who that's what our contention is as we said earlier the family to presented evidence saying that they weren't married but we argue that that doesn't matter because he had no father it's impossible to say his mother mother was ever married to his father in other words out of wedlock means the parents were married he has no father he can't his parents can't be married it's the legal relationship that matters this legitimacy so again inside that section which all of the section talks about out of wedlock births illegitimacy seems to matter the other thing that's important is an eight u s c eleven zero one the definitions of a child or parent the definitions for child or parent applied to titles three which is the citizenship part specifically make reference to legitimation i mean it does not allow us a child  legitimacy so to speak that it has to work both ways ok and in mexico the law that applied to him when he was born there's an article articles three twenty four that says that the relationship of sure why this person if it doesn't i don't know if that's what happens for illegitimate children we're not really sure your client has the burden of proof in this under the air he's got the burden of proof in the surname her name disappeared on his birth certificate in speculation your client loses because he's got the burden of proof well as far as burden of proof we would go is our we also our argument would be the burden of proof if would the other thing that we would have liked to have presented no not like to what went on the record but what's in the record is we presented an affidavit from the mother saying that the child that she was not married at the time of birth so not married she said i was single  but what we what what we would argue is if you're going to apply the presumption in mexico from letter to law that he would should have been able to to use the are they should have used the other aspects or less of the law that show that says and her she was married a year before to the child admittedly powerchair father that she was not that this child was a woman illegitimate that the birth certificate establishes that i'm the only the only thing that we  read article three twenty four that says that says a child of the marriage is proven by the birth certificates and the that and the match to for gets to the same or and then we read three forty and three forty one that talks about a child's mother was married because she focused on not alleging a nation but on the fact that the mother was married article three forty says the relationship of children born to a marriage is proof of the birth certificate and with the marriage certificate  have both we have a birth certificate but it's not it's again focus on that the word and as opposed to or the verse to begin proves that a child was born and it proves that the mother approves the mother but it doesn't prove the former in this case i'd like to point the court to supreme court decision and the silver vs valentine which in that case they were interpreted in child well of the copyright act and they determined it determined legitimate child in this case what we say he wasn't he wasn't legitimate in mexico the other thing that we point to was is the language from era chatter he said that this person was his biological father and that he and his mother lived with his biological i don't believe it was it was the question that was asked by the government counsel and i don't believe it was actually clear as to what the answer was at the time and as to what the ten to fifteen years has actually addressed as to you know what it was sort of double question of where your father in your lives and if you are living with your father i mean it was it was actually asked in terms of the group the marriage relationship is what they were trying to establish at that point not well i guess my next question is judge seemed to think that your client had the burden to establish that his biological father did not subsequently legitimize him even assuming you can separate your argument the birth certificate throw this into  says no i was born in the united states they contended his mom was born in mexico then he went through the process of proving that his mother was a citizen even if would have the right citizenship through her grandfather his grandfather her father because her grandfather was a u s citizen and that she lived her childhood years here they take every every hearing was a different was basically a moving of the goalpost on and eventually i mean eventually the government that the judge you know had so that's sad so our sense is yes it's not established but we don't we believe that it would be proper to transfer this to court to to to go over that our our contention is that it's actually by proving he was illegitimate at the time of birth through the post as a kit in the marriage he said that he is as a matter of law there is no fact question on that that he is he is that he's proven point i don't believe there will be a tough please the court rebecca hospers phillips on behalf of the united states attorney general i'd like to just present the plain and simple facts just because this is what really matters here and these facts are not in for a father's name so it wasn't that it was amended and it wasn't that it was potentially unknown in fact the evidence shows that the father was no yes what's in the record what's the effect of a birth certificate like this one und mexican law that's what petitioner has not demonstrated that he says he demonstrated so where he wants to do is take the birth certificate in isolation and say that because according to the birth certificate we don't know who the father  shows that there is no disputing the facts he actually quoted article three twenty four is being article three forty or forty one before he he said article three twenty four and then told you the contents of three forty and forty one through twenty four says there is a presumption under mexican law that after one hundred eighty days a marriage a child born more than one hundred eighty days after that marriage is considered a child born of the marriage and this presumption is very much like what we have in a lot of the states here and it's a lot like what the foreign affairs manual says that the state department follows in terms of this presumption so there are two presumptions here number one the presumption is he's an alien he doesn't dispute he was born in mexico and number two the presumption is under mexican law that he was a child born of the marriage now he has tried to create the mexican law if anything so about the birth certificate lacks a space he has not shown that it says anything about that he is a child born of the marriage from what he has presented because the burden is on him to show the mexican law how does he were but that presumption under mexican law is what i'm understanding that you're asking i don't know based on what he has argued he claims as a matter of law that under three forty three forty one that's how you were but the presumption and that's what i tried to flesh out in my brief that that's not at all with those articles say and she has not actually explained he's not recognizing the presumption against him it seems even though he's stated it and i may even with this exchange with this court i'm not sure that he understands where the burden of proof lies here if if this were a matter before the district court i believe the government would have summary judgment at this point because you're not showing where the genuine issue of fact is here and when it's his burden to overcome this presumption so it wasn't on the government to things she did she did say single she did say single she did she didn't say not married and she didn't say divorced and she didn't say anything that would actually reflect the marital status so yes this court should require something more than the government's position is that that's the most she could say because she was married to him and there was no evidence of a divorce prior to petitioners birth and so to say you are single i mean if you're separated if you're living on your own if the father is not present in being single you could technically say that in a way but you know the fact that she didn't say not married it's what she didn't say and what she could have said to make it crystal clear what was going on here to reason genuine issue once it became clear what was it issue he could have provided mother often david from his mother he could have provided an affidavit for himself these affidavits could have really is genuine issues of fact that's what that's what we're looking for here a genuine issue of fact not trying to create mexican law and try to rely on her birth certificate alone to create an issue of fact when you know the facts her attempts to she got a divorce at some point before her subsequent marriage because she would have had to have been divorced to marry someone else or at least the eyes of the texas law would have wanted to believe that she was a legit will to be married and so we know that by you know around two thousand  the year two thousand that she was divorced by that point because she got remarried but we don't know anything that's the concrete evidence that we would say that she was divorced some time fifteen years later that she was able to remarry we don't have other evidence but again that would have been for petitioner to bring forth to show that there's a genuine issue of fact because he needs to overcome a presumption here what's the evidence  about the wife and the husband living together oh yes i wanted that was another one i wanted to point out so i would like to this is exactly what's in the record because my posing counsel tried to say that it wasn't that it was something other than what it was so you testified sir that your father was marsa lino correct hernandez he responds is it because he was saying my father i never recalled him being garcia and he was always hernandez to me this is the petitioner saying so the judge says we could have gone by both those names ok so did you ever live with him yes how long he raised me whenever they they went their own ways over here for i guess about ten fifteen years so you knew he was your biological father correct yes you just didn't know whether your parents got legally married or whether they just live together correct right it was never something that would even bother me i always knew them as my mom and dad so this is the testimony regarding the identity and the relationship and how he lived with his father for those years now you know when you combine that information his name reflects that t hernandez where does hernandez come from the fact that his birth certificate lists his name as hernandez and his mother is listed as de hernandez and in the in the spanish language that signifies the marriage  that appears on the birth certificate and the birth certificate is not in dispute it's not in dispute at all i think the reply brief try to make it seem like maybe we the government has some sort of other version of it we don't this is not in dispute the marriage certificate and the birth certificate t documents that you need are not in dispute the fact of the marriage to lie nine hundred eighty five the fact of his birth august one thousand nine hundred six his birth he was born with the name hernandez with his mother listed as being married to her nando's coupled with his testimony that he knows who his father is and he lived with him for ten to fifteen years inside the mother and his father and that's why he said he raised me you're right he said he raised me we knew based on the that she raised him at some point to that's what's that's not a material issue you know in terms of you know who raised him when it seems as though he had a relationship with both and they went their separate ways obviously we know that they ultimately married other people but the fact that they married other people and that other people don't know about their first marriage doesn't make it not so and as he stated today he's not disputing the fact of the marriage he's not disputing that he he said so right before you so there's a presumption in play here and it's under mexican law and it's under our law born out of wedlock means the same thing in mexico as it does here it's a very plain language term if you're born out of wedlock you're considered quote unquote a gentleman so he's trying to start with the illegitimate aspect and by substituting the words he's trying to make a legal argument but legitimately if you're illegitimate it's the result of being born out of wedlock it's a i understand you an interchange them because in a way you can but but what they actually mean that's not in dispute your biological parents were not born and it's at that we're not married at the time of your birth that's pretty much a born out of wedlock it can't mean anything else he hasn't offered another definition he actually hasn't in what he's just claiming is that he's quote unquote illegitimate he's not actually disputing what born out of wedlock means and in fact there were some exchanges before the immigration judge where he basically agreed  end when he said aha my birth certificate doesn't list a father that means we can pretend like we don't know who my father is and say that i don't have line under the eyes of the law and as your own and pointed out every kid in mexico in that state of  it's not our burden but i have tried to do my due diligence in reviewing what i can of the mexican law and i'm simply not finding anything that makes the birth certificate of that nature alone somehow determinative of you're no longer born to a marriage as i mentioned particularly where the name those are often absent that's often evidence of the marriage and evidence of the genesee if you take your father's name and your and you have physical custody with the father that's usually evidence of legitimacy if it were even required which it's not i mean the we just care whether his biological parents were married at the time of his birth there's no burden of proof on the genocide that that's that's i think that's that's what's really fundamentally confused here we don't need to be was it at the time of his birth his father can still legitimize him some point he could be he be born out of wedlock if you were born to parents biologically with the product of an adulterous affair if his parents divorced before he was born those are the things that he would show we would be going down the legitimacy route because legitimacy as this court recognized in you're a chattel seemed legitimacy was important in the field lights when you're when the biological relationship was being questioned he's trying to drive citizenship from his mother where the biological relationship is not questioned at all that's not an issue so his ability to derive citizenship from her as her son is not at issue she doesn't need to legitimize him we know who his mother is there's no legitimacy issue here and that's what's so fundamentally confused because by substituting the words he's an illegitimate child because he's born out of wedlock it's confusing the terms a little bag and i understand where it's coming from because it's a term of art to say if you're illegitimate because you're born out of wedlock but it's an infant then so if you're born out of wedlock you're illegitimate and if you're illegitimate and you're trying to acquire citizenship or a father and you don't know the biological relationship to the the father has to legitimize this the the child in order to be able to acquire citizenship from the fall are now if we knew who if we know who his mother is because she is on the birth certificate right and we've never questioned the relationship that way so legitimisation is is not it's just a term of art in the end i like how the scorn in your chat is moving toward acknowledgement as as a term because i think that whether something is legitimate or illegitimate kind of confuses a musician you know in the context of driving citizenship from a father and that simply has no role in this provision so i think that that's where you sort of go down a really different trail that way that isn't applicable here you know if you have to just stick with the plain language of the statute that's that's all we're doing nobody has offered another definition of one out of wedlock i know he keeps purporting to say that that there's some differen biological parents married at the time of birth it's as simple as that and every circuit court ever addressed this provision has looked at it exactly that way it's almost so straightforward that there isn't a decision bothering to go through some interpretation of  board is using the words legitimate and illegitimate but what their ultimate looking forward is we must determine whether the relationship would be considered a marriage under mexican wrong that's what they're that's what they're looking for in this is under a previous version of the i and a but it's the same idea where you're looking to mexican law to see if it would be considered a marriage look at the legal relationship under mexican law so that's exactly what the board did here and looked at the definition of marriage whether the parents were married is the question that's what the board saying here so i think it's more helpful to toss out the legitimate language and focus on born out of wedlock it's means what it says it says what it means and no hort has ever bothered really to go into that so much at least that i feel because it is that plain and simple so any circuit court addressing this you'll see that they just sort of go right into the inquiry where the biological parents married and i cited you know a few cases in my brief about  that one of the the third circuit had an unpublished decision to twenty six f e d e p x two forty two me twenty second two thousand and seven the petitioners mother in that case filed an affidavit alleging that her husband was not the father of her son and there the her husband was listed on the child's birth certificate so there was you know everyone thought that was the father at that mother intervened with an affidavit said that's not the father here's matthew david and then the court transferred the case for the d n a findings and for the paternity test because that raised a genuine issue of material fact over the paternity here you know the closest he gets to raising a genuine issue is the mother closest he gets here really the only evidence of record that's right your honor that's the only evidence so the question is whether his mother saying that she was single at the time for his birth does that raise enough of a genuine issue given everything else that we know to be true does that raise enough that we need to go through all the proceedings just to find out that the father is who he says he is the father is who the name reflects in the birds and the birth certificate and in his mother's married name to go through that process based on the mother's simple sentence that says i was single at because and the father was not present she knows who the father has but by were for into the father was not present at the time of the birth she knows who the father is so there's no it's not like we're wondering we don't know who the father is maybe he doesn't really know who the father is if the mother knew who the father was there's no reason to think that he wouldn't know who his father was particularly if you lived with someone for ten to fifteen years  s it really stretches the minds of think that it could be any other way so is the rejection you an issue that's worth transferred to the district court i mean that's what this court really needs to decide here because it's you know he needs to raise enough of a material dispute to warrant going through an entire discovery process at the district court level the government's position is that he has not done that with what he has presented with a single sentence that i was single and  his brief made a lot more of that affidavit than what's actually in the affidavit that's why i felt i needed to make it very clear what was actually in the affidavit because it doesn't say anything more than you know i was single the father was not present i can be contacted with further questions however she with the mother was never brought in for testimony or if she was she never testified about it that way she never brought in another affidavit and there's been no other affidavit from the father or from anyone else or even from the petitioner himself saying anything disputing the marriage or the paternity those are the two ways he can raise a material issue of fact question the marriage which he told you today he's not questioning the marriage he agrees that they were married about thirteen months prior to his birth what he's trying to do is create this legal fiction that we can pretend we don't know who the father is based on the birth certificate not providing a space for the father and that simply is not based on anything in mexican law and it would create the absurd result of allowing every child in that state of mexico to acquire a born out of wedlock illegitimate status simply because there's no space to put a father's thing i see that my time is fifteen years the ten to fifteen years we don't know if that's mean in raised we don't mean know if that's when his parents went their own ways we don't know what that means and again this was asked by the government and it went straight into their biological relationship so i don't know paternity and the quote is despite recent scientific advances it remains preferable to congress to require some formal legal art to establish paternity our focus is it's the legal one in this case it would been a played it was it put the petition or placed him in the same legal position as a child born in wedlock regardless of the applicable legally again our argument is because there is no child on the name of the first of a get he is in the same identical fernandez which is a relatively common name in mexico is a big assumption back to the possible factual issue is you know that the government just talked about how there's no space for bush to take it in and there's no space for naming a father in that state in mexico well that's a factual issue that wasn't established before we don't know we do have the burden of proof but we don't know i think it's fair it's unfair to say that this is going to open up the floodgates because in mexico there's no pod just misunderstand your question but you're saying the weather what mexican law provides in this context is a fact question you have the burden of proof to raise a fact question we have his birth certificate and you again i would say the fact question is is whether birth certificates in general in mexico all have in that same mexico all have a blank for the father or or was that only for there's a birth certificate from the mother and her birth certificate that the government allowed on the show the mother was born in mexico and i'm sorry i don't have the cite for that but there are two instances of that show of it on the record and it isn't a burst of a get away will they all it has a mother has a