i want to address the question raised by this court regarding the application to the secretary of state richard why you have not applied to the secretary of state and the reason for not doing so highlights why this court is the sole mechanism for determining his nationality review of such a reading of policy laying out this unlawfully restrictive reading is referenced in the record at two hundred and forty eight in pretend but actually the correct current citation is eight f fact is the venue for the determination of nationality we agreed you could you just tell us what you object to in the definition why did you decide not to apply her yeah i mean the policy position taken by the state they assume that it does accrue from birth and but that's not the position in the foreign affairs me right which this court has found you know does not have if there had been a regulation but but that's the position taken by the state farm and why would have been futile to been sort of reworked and so you look at those citations and nothing comes up such as why do you that you citation but but as far as i know that policy has been has gone back to the victory had not sort of discovered it right and so hence the argument below that we needed time but then upon sort of federal research right discovered that policy and that it would be futile to to apply the state so why shouldn't we be quite concerned about that given that the statute says it needs approval from the state department look at ok as he met the requirements and one of the requirements is whether he got permission from the state department and that's still reviewed by asked though there isn't you know there isn't a real i guess that the statutory no language you're using to say that it's just a confirmation i mean it sounds like a requirement not a confirmation can you explain where this idea that it's just a confirmation comes from her i guess to me it's that you know congress is explicit and in   delegation of exclusive authority no to the process in the fives involved if you the five the only reading is is to say yes that congress you know created a power transitional scheme in in b to allow for confirmation of is the st but we still two have to apply the language that says shall not be considered to be conferred i'm not sure what you so i don't understand have against reconciled with what we have to do if we are of the gatekeepers of no you don't get there but it's not mister it's not completely delegated it's just one condition among several conditions so i guess what i don't is it and if the secretary of is there a review of that and i guess that's where i don't know that's where i think i know the reading provided by respondent i think fails right is that is that it is only the secretary of state that can confer it right and where is the role or the court's right as provided by is that unconstitutional or has had them valid based on conflict with something else that was what exactly would you have us home yeah i think that i think that i could see that sort of reading that language to apply to those who have a final order to move all right if you know to to not have that apply right that is the way to avoid to avoid constitutional beforehand congress makes it even more clear ten years after that for those in removal proceedings there is you know exclusive authority in this court right that there's not a prior process for anyone else but that this court had  exclusive authority for determining nationality so as i get that that's the way i see it read that you know is that to avoid the constitutional problems regarding judicial review and and indeed sort of inherent to the scheme that congress  no point me is for i get that i think we agree that if that binding law and we're not trying to argue that but i guess that that congress would choose to do to make such a decision in something that they chose to have be a n it made by like a staff member something that i had a congress didn't vote on putting it in a no right i actually i think they i think they did if you look at if you look at the heart of the language itself of the in acting i don't remember seeing that yeah i mean again i will try to look up that site and i'm reading our times maybe i can give it to you on the bottle but but but but you know again my my memory is that there is explicit language where congress decides where to place where to place bla t as if you want us to rule for you as a matter of statutory construction what with precision is the language that you would have us read into the statute as as a necessary component of your client giving relief and you also might be really the answer my question  as to what's your best authority we have the ability to do that because he did not sit still like his mother did before him to the satisfaction of the secretary of state's section one thousand four hundred and four requirements so on this record and on that basis the court sho she for review to answer the court's question that it posed before argument it would not make a difference whether or not there was a handing out location for the secretary of state whether or not one was denied because the unambiguous terms of the statute dictate that he is not a us national he is not a us national because he was not or not of parents law that his mother was born under which at the time required that you have to the us nationals to become a us national but after the statute there was a pathway to become a us national but the thing is the petitioner is under the same requirements that his mother was and the difference is he was not born into or born of a us national because the us nationality was not conferred upon her pro the statute until she satisfied to the secretary of state these requirements there's nothing in the statute that suggests that it's retroactive to the date of the statute being passed that is retroactive to the birth of the person seeking nationality what the persons who are considered nationals at bir it's that it's all the statute passed by congress it's a requirement and it specifically says those born before must satisfy this requirement as his mother  he did not and i would suggest that it's not a policy reading by the secretary of state but it's a claim language interpretation of the statute itself though but your point is not quite as government would agree that even though it's a requirements to becoming a national it's still the role of the court to make the final determination it's a it's of it's a condition i think you're on to use the term gatekeeper i don't think there is a conflict at all i think this court has the jurisdiction to review it and i don't i don't believe there's a conflict there don't totally clear with there when you were arguing about whether the national health status goes back to birth whether you were invoking the argument that his mother his nationality didn't go back to birth or just the fact that you think the approval from the secretary of state is actually a requirement for condition or the the st time sorry as to that of our and you talk a lot about this back to the birth point and i'm trying to figure out which of the arguments you're using that for because i didn't really think your focus had been about whether the mothers nationality was it your age i didn't think your focus was really on the mother well i didn't focus on that because you know the four didn't focus on it you know before kind of just without and now assist in just a matter of assumption kind of took a somewhat superficial but valid path to finding no nationality and that is that he did the petition is not to fill that requirement to the satisfaction of the secretary of state you know you go one sort of one layer below and it's well you know what do we what's really what's the case really about and i think i had it in a footnote just because i but you know that word and i think that the i actually assumed that he didn't have a problem on that count at all so it seemed like you maybe today or shift your focus that i'm interested in why well because it as i was also you know researching and writing the that his mother through the grace of congress who can limit that grace was able to take advantage of the statute because she indeed was born on one us national her mother was a u discuss so that's a i that's a sort of a difficult position to be in right now isn't it well i mean it's it would be cherry again it's you know there's no deference i think it's a plane it's a plane this and then come out and explicitly you know do the the heavy lifting of the analysis but i think you know they do find that you know they make that finding and you know the i think a more fulsome analysis actually can be found in the immigration judge's decision and that's an a r two hundred and thirty eight where is the i g truly explain step by step especially the point i'm making and that is that  unfortunately on future generations of someone who took who was able to take advantage of this statute cannot benefit there from they on their own account on their own must satisfy the statutes requirements and while his mother could because she was born of a u s national her son was not at the time of his birth he was when that me well i it kind of wouldn't make much sense if you know for every generation thereafter say my great grandmother three times s national and therefore everyone receives nationality based on that st becoming a national i mean congress has the power dose of limit it's race and in this case it did  imply a different time frame well i think it's fairly well settled that the law at the time of your birth is what's applicable so he was born in one thousand and sixty seven she was his mother was born in one thousand nine hundred and forty three they both were born at a time when the law in place required two u s nationals to become to be born  two u s nationals the prior prior statute a person born outside the us i'm sorry can you point to any case and apply that at the time of birth principle when when and i couldn't find a case that said that even when you have that kind of retroactivity argument you still have to apply the law at the time well i mean if at birth was also in the language up like if we were thinking of resolving this case in a published opinion or unpublished is this the only time this has ever come up or the need of public opinion because of the comment here it's well to be frank i was told by my supervisor know he again is under the same was born under the same requirements as his mother you know and she fulfill those requirements and he cannot and we would suggest we would argue  that the court should find that that is the plain meaning of the statute that's how it should be interpreted that as your honor to trial and said you know a code writer putting it in where it's that currently there is a policy that when prohibit the secretary of state from granting approval in this situation and there's no way to get your visual review of that so this question about retroactive you with actually never be view this court has that review he is not placed there nobody would have got a passport from the secretary of state that's the question he said it would have been futile for him to try because there is this retroactivity the idea is i understood it that there is a policy against treating the mother as having been a citizen and her and that's true and it's not really her review of all that and no court will ever be able to value whether that's the right reading is that your understanding of the situation so there's nothing to prevent this court from are again reviewing the nationality claim writ large you know that could we review the denial by the secretary of state of a path for i think that removal proceedings and the he is not to fill the requirements necessary to be a u s national whether the court decides it on the grounds that the four did that he didn't fill his you know to the satisfaction the secretary of state or do a plain you know a statutory interpretation of the of that itself the government is arguing that he was not he's not capable of becoming a us national based on the plain language of the statute and i see i'm definitely over so i would believe in needed an extra minute that's the end of the any relief in this case so it is odd that redefine ourselves in this situation i don't know if i've ever seen as detriment of the delegation to the to the other agency is on the very question is before us is not so can are they satisfy the statutes requirements and i still think that's something that this court can review but that's couple of questions on points that are probably totally irrelevant under the statute and if they are i want to just to form to my colleague and to the parties that i will follow the proper path of press so don't worry about that but in the meanwhile while i'm thinking about this case we have so many immigration cases on each docket sexual abuse case ok thank you i apologize for raising irrelevant issues here i think i'm right and i hope i haven't confused cases i'm looking at counsel and he's looking around but i think i'm right on that well i may have mike things up here with my questions a little we'll let you go oh thank you and we hope everything's going well in the capital and  wasn't that was sort of assumed by the agency below a defector i also know that the statute is actually i think pretty clear that it up i that birth that's a language but in fact in the statutory note it says that this applies for people born before on or after you nachman date so it explicitly applies representatively you know and that's that different than some nationality statutes right where there is that sort of split in dates right where you know you're looking at when you know when it happened but here it explicitly applies retroactively so i think it really and i'm somewhat surprised by that and again that's sort of the argue that we're making here right if that's the incorrect reading that the position of the secretary of state has taken and  therefore there is no build each of by the secretary of state in this court so what if your client had applied for a passport before the removal proceedings began are you do you have a cite for us that says there wouldn't have been a way to get you you better get a passport before you commit a crime i mean essentially if the idea is you could get a pass for it and if you got denied you could get review i mean if it totally illogical that this rule should work this all out before you end up  you'd agree with you would we need to send it to the district court to figure out the physical presence i don't think so i think both sides agree that that there's no issues material facts right that the evidence presented at the evidence you're hearing in two thousand and six before that you know the immigration trial for which the immigration judge found you know found to be sufficient you know that's what you know in responding brief at page seventeen they say that no there there are no issues of material fact in dispute and i mean i think both sides agree on that right that there aren't that i you know be five be makes that clear right that yes that if there were an issue it would be it would be transferred to that to the district court and again you know that my reading of of of their brief is they you know they they they state  ank you both especially thanks given the covert stresses ok stacey could you mark this