what i'd like to start by noting that this case was decided on summary judgment on points of law and points of law only so the facts have not really been determined and there was no trial and he was not given the opportunity to set forth any things that would have been you know factual issues so they're all presumed at this point to be as he alleged and during the course of the proceedings this case involves a very human drama with three principal actors the u s citizen father and the two sisters who were one of whom was the appellant's mother and the other one was the wife of the u s citizen father for clarity i'd like to refer to them as the father the mother and the wife the father  wife were living in texas had a family when for whatever reason the mother came to live with them and the father and the mother started up a relationship of which a child who's born in texas the older brother is the pound here in the wife took a look at the baby and said i know whose baby that is that's my husband's baby and so she threw the mother  infant out and they went back to mexico the father trying to do the right thing bought a home for them in mexico but as a us citizen who is difficult for him to register in his name so this registered in her name but he's the only one who ever paid on it and mother never worked in and she and her growing family were totally dependent on the father they had two more children together of which the opponent here in was the youngest born in one nine hundred sixty nine and had her around then it apparently became clear to the father that his health was not going to last much longer and he started to again to try to do the right thing to the extent he couldn't make provisions for both his mexican family and his texas family in the meantime he had been going back and forth spending a lot of time in mexico a lot of time in texas and the record demonstrates that that during picture where he wears a herd announces a little bit older and there he's there very proudly with him in a family member and there's a third picture so it's clear that he bonded to a great degree during the few years he was alive and well during the opponent's life but in nineteen sixty it became clear to him apparently the his health was failing so one of the things that he did was to  to secure the property for the mother and his three children with her but he said he bought it in her name he bought it in her name but it was the only one who had paid for it so he did what would amount in this country to a any interest he had in it went to her and his three kids and be executed what would be i would think the equivalent of a quit claim deed in the united states saying that you know i hereby give to her by name and the three children by name you know all my interest in this and he paid it off to make sure that it was all paid off now that he had registered the middle child the first of the three born with this woman was born in texas the second was born in mexico he registered to miss his child but he did not get around to registering honest to his his child and as it became clear that his health was failing he the mother decided that she had to register him and according to the decision of the mexican judge who later on heard the case when she went to the civil registry she told them that the truth father us citizen and they said no you need to register him in the name of your new husband because she had recently remarried since he was really no longer able to support them so she could obtain a new sponsor so those around history as a child of his mother and her her new husband fast forward many years later he became a permanent resident but got in trouble with the law was deported and in that process he was told by the border patrol officer i don't know why you're doing this you're you a citizen your dad's a u s citizen you need to go fiction papers so he went back to mexico and conducted  whereby the judge found that there had been a fraud and ordered the civil registry to correct it admission essentially and so the civil registry complied and they issued a new birth certificate he's also relying on the court judgment which was essentially itself we believe retroactive saying that this we you know we find that there was fraud committed in the in fact the true father is this this man one so how do you argue and how do you get around that are there any exceptions to that is there any case law that allows an exception i what the court said and what this court said in that case was we need not and therefore do not rule out the possibility that some set of circumstances might exist in which we would recognize and one proton amended divorce decree is sufficient to prove that there was a reason but for to correct a fraud or an error in the beginning is rectification and the court then considered in your continued in bustamante that y that hypothetical case there would be no differential treatment between on the one hand a minor child who was unquestionably in the sole vaghul custody of his naturalized and from the outset and on the other hand one whose parents original custody decree placed him in form that petitioner does not fall within the law to group he has shown us no evidence that the amended to create is effective for purposes of federal immigration naturalization voth on the contrary the un contradictory and hunted contradicted evidence confirms that the amended decree was brazenly obtained for the sole purpose of manipulating federal immigration law and had no they didn't state purpose whatsoever here the legitimate state purpose was to correct fraud that had occurred with the complicity of the mexican civil registry in one nine hundred seventy two and that's what the mexican court found and that's what they did and that's the issue that this court left open in bustamante now with respect to the holographic will that occurred while he was only a year old and then the question is whether that was adequate it met the substantive requirements for law but not to procedural requirements but the expert that was hired by the appellant should under the procedures in mexico there are procedures by which an unregistered what they call a private will can be formalized and recognized and he also did expert also determined that mexican  would recognize this holographic well as sufficient to prove paternity even though it was not perhaps a sufficient to transfer property which was really as your honor noted didn't need transferring because it was in her name and it was just a question of demonstrating that he was giving any interest he might have to the mother of his three children and those three children so the  district court judge ruled that as a matter of law there could be no exceptions for retroactivity and bustamante got it at least that question open so that's one of the issues that is before this court whether where the mexican court has done what it can to try to rectify a from what by ordering ab initio registration with the true facts and the issue before the mexican court was to make certain that it's records for correct this was a legitimate state purpose and the purpose on the part of the mix a kind according to company have gone and tried to get an american birth certificate he wasn't born in the united states you know oh i thought he was born on the u s side is older brother was but he was born in mexico he was born in mexico so it was the mexican birth certificate or before he was twenty one that's not in the statute and none of the cases that that i have found construe fourteen zero nine is requiring an act of the judge in the nation and that are covered it  matter of bustamante but it leaves open the possibility of a new the proper circumstances of recognizing retroactively a foreign judgment that is done for legitimate foreign reasons to reflect the reality as it existed at that time and that is the case that we have here we believe mr gonzalez has a right and deserves the opportunity to prove up the allegations that he has made to demonstrate that the purpose of fourteen zero nine which the district court correctly observed was to to show that in the through they had the opportunity to bo when he was young clearly they did you have these beautiful pictures in the record and to show that it was a fraud that was committed on the when the birth record was originally filed and to also show that the holographic will under mexican civil procedure would have been considered out of put in the opinion of his expert to demonstrate paternity and therefore to to legitimize him by well it depends on the certain says and what you're looking at and what you consider to be sympathetic about the case i mean the question of whether a sympathetic is really not doesn't really come into play here the question is ultimately does this the circumstances of this case there is a significant amount of case law there that discusses they're attracted to and specifically with regard to this provision for example the district the district of columbia circuit court found in miller v christopher that found that to a little mr miller's again retroactive benefit of a state court judgment would undercut congress's clearly stated acquirements and have the effect of establishing citizenship in ways are inconsistent with that religiously asian and that was it that that case is is is very similar to the case here moreover as the district court found there has been a lot of discussions print court about this particular provision that was found both in former three  non citizen child to establish connections during the age of minority and although petitioner argues here that this judgment this court judgment somehow recognize that these bonds existed at this young age the supreme court also observed in miller v albright in the context of an equal protection challenge that there were additional purposes to you under the months to the minority recognition by the father which were to ensure that there was reliable evidence of  it's simply incorrect for the position here to claim that there's just no there's no purpose to this under twenty one requirement it's very specifically stated in the plain language of the nationality of regulation and i don't hear saying that there is no purpose to the twenty one year but i think she's saying that there may be reason to make so it's a sort of love making exception to that an individual case and she's asking just to go to trial so all the all the facts can be  examined and i understand that she's making the argument with regard to this court's holding and in bustamante pereira but it's also important for this quarter recognize that in addition to that language that she cites in that case they also discussed the fact that relying on and on her tongue to order such as the one here would open the floodgates for abuse with regard to these types of federal laws and create loopholes in immigration laws based on perceived equity or fairness because simply the idea that a father could be a found it could have been found to have legitimately his child during the age of minority when he's a actually died when that child was five years old and this court rendered a judgment two thousand and seven when the petitioner was thirty eight years old to somehow find that that fits either even the spirit of the of the regulation it simply does not and argues that there's been no indication in law that there needs to be some type of act of the generation that is also incorrect as as as i mentioned in miller v albright the supreme court discussed the fact that there does need to be a formal act in a formal act of legitimat is is clearly required by by the law and that it needs either to be acknowledgement or at a jew and adjudication by a court and this case in this case yes there was an adjudication by a court and as the district court found  certainly that adjudication it may now have legitimated the petitioner in for purposes of mexican law retroactively to the date of either his birth or to the day of the filing of the birth certificate but the quest is not the question here  does that somehow serve as an act of legitimation that occurred while he was a minor and the district were probably found the government would argue that this is not because this this act did not happen when he was a minor and indeed the judgment itself it relies on here doesn't even discuss any type of act that occurred by the father there's just sort of a very second hand discussion in the judgement the mexican judgment of the types of contacts that maybe this individual had with a child during that time well that doesn't mean it doesn't stand for what it stands for with roots of he was the father right well it stands for the thought of having the federal law doesn't require more of the map gets well but it does but it does require the government would would argue it does require clearly under if i decide to turn it off statute fourteen zero nine b if the paternity of such child is established at any time while under the age of twenty one but the point is paternity of such  the father right but it but it specifically states while while while there and while they were child and that isn't language that has been found to be significant both by the supreme court and i'm not talking about the timing i'm to you were making the argument i thought but that this decree this rectification did not necessarily establish paternity because the father didn't do something more course he was dead but discussed or i'd addressed in the district court's decision and the reason that they were not addressed is because they were raised after so the the expert testimony that the are relying on him for the same ago was actually raised after the district court had i'm sorry after they've had filed motions the government had filed motions for summary judgment and after the district court had requested briefs on the issue of the will  only then did did the petitioner asked to ask for leave from the court to x to appoint an expert on the issue of the will however the district court rendered his decision before ever granting the motion for a leave as in the expert because this is far far out of time we'd already gone through a whole process of discovery we'd already gone through briefing on the issue of the will and it was never discussed this this expert testimony that's been that's been completely relied on or we would the government argue that the court should find that the district court currently found based on its own review of the law and on a review of the government's expert witness which is that ten thirty one in the record actually a holographic will under section four of article three seventy seventy nine of the  for even if a court were to consider the export that was submitted on appeal for the first time on appeal it's not clear how these how these provisions somehow satisfy the formation of of a will under article three seventy nine civil procedure provisions that have been submitted and they concern the wait that's right to report a certain evidence but they don't there's also no the sisters have not in any way addressed how their document that they have  requirements somehow that we have argued are required are not are not necessary for the formation of the well as are expert has set forth in the record in the porch and find that the district on very briefly taking matters into reverse order as far as the expert report is concerned the plaintiff upon here did file a motion for leave to file that expert report attach the expert report to th that motion was denied as moot in other words the court never ruled on whether it should be considered or not because we've already i've already made up my mind so it was denied as a look at but a proper motion was made and as far as the procedure of the eleven requirements yes but the first four are the substantive and the other seven were the procedural ones and the four substantive ones are the ones that he complied with and the procedural ones are the ones that his expert a pint could be either done later because or one of the provisions allows you to go to court with what's called a private will which is what this was and have it recognized or that even if it was not adequate procedurally for profit passing property it was adequate because the substantive requirements were filled for demonstrating proving legitimacy now as to the government's argument regarding naturalization i beg to disagree because as the supreme court held it and no are there are two means of becoming a us citizen by birth and b naturalization naturalization is defined in the act as citizenship acquired after birth acquired sit and that's called to arrive to citizenship that's when your parents actualize and you get naturalization because at birth through his us citizen father and what we are now attempting to do is to document that he is it us citizen as the border patrol agent told him if he was being deported when we went to the border patrol agent telling the had as patrol agent was correct or not is what you know we're trying to determine now but that's what started it for him to because he hadn't even you know thought of it before that because he's not a lawyer he's one of the you think there are of that would defeat the operation of law that that is incorporated in the summary judgment materials have to a lawyer on the legal arguments are that mexican procedural made the provisions  in fact i think and that's something that was as the knowledge is that the court denied even consider the court did not consider his his expert opinion at all because she ruled as a matter of law that  it wouldn't help and therefore deny the motion to introduce it as needed in terms of material fact other than that i don't think there is much the government was disputing the bonds between them or that fulfilled the requirement and also the required the other requirements that she was referring to that if the that are matters that are the policy behind it that they were also fulfilled court and all the courts have been very clear that rectification is inherently ab initio it's inherently retroactive this is not a question of of something that well you know i think it ought to be retroactive because that would be in the interest of justice but this is where the this is the issue that this court left open in bustamante of under the proper facts can we give credence to a foreign judgment that was created for purposes of that foreign court that fulfilled some state purpose of that foreign court and was not just done to manipulate the u s laws and that's what we have here thank you very much