responding to the court's questions about the appropriate standard of review for the claims presented here and then i'll turn to explaining why the petition requirement in section fourteen thirty three which congress has eliminated is a child citizenship act imposed an unconstitutional burden on u s citizens like my clients parents who adopted children born abroad and on those children like my client mr grant first with respect to the standard of review the courts opposed to questions the first is whether judicial scrutiny that is actually the crucial question at issue in this appeal mr duran has standing both on behalf of himself and he has thirty party standing to bring claims on behalf of his us citizen parents both of whom are deceased with respect to his parents violated here so because that's true the answer to the court's first question about whether constitutional scrutiny applies is clearly yes but even setting aside the rights of his parents and focusing exclusively on mr durant's own claims both of the court's questions have already been resolved definitively by this court in barthelemy v ashcroft a two thousand and three decision that case reaffirms two principles that govern here the first is that constitutional scrutiny is appropriate for an individual to claim stand with question but for the operation of an unconstitutional distinction internationalization statute he is a citizen and the second principle is that the proper level of scrutiny for such a claim is rational basis review and not less stringent stance is running the record indicates that the mother ever filed an application for citizenship for the child there is nothing in the record to indicate that well isn't that significant i don't think it is  of the now with respect to the third party standing in law with respect to the merits because the issue is that we don't know one way or the other but it is because there's nothing in the record either way but it seems logical to think that she didn't understand that she had to file a certificate for citizenship but i don't weigh the point is that there was an administrative requirement that it was imposed on on her as a u s citizen that was not imposed on non u s citizens who adopted foreign born children and brought them or maybe we're talking right past and his chips i have some difficulty if you never pursued her own choice her alleged rights are presumed rights under the you're so you're saying that the the eighty six statute impermissibly discriminated against adoptive children of native born american citizens that required of the titian that in the first place where as  but can we grant that what you're out of this would not be necessarily and i don't want to quibble with words but it wouldn't necessarily be a granting of citizenship where it does not already exist it would be as it was in the case of washington a declaration of preexisting declaration of citizenship as this court gave and watch out or in the alternative the court actually doesn't have to do that another alternative would be a declaration that constitutional rights have been violated and then an injunction against imposing consequences attaching consequences to the imposition of that unconstitutional requirement and so  in the alternative the court instead of declaring mr duran a citizen could for lack of a better term wind back the clock to the time when he received his notice of removal and thereby a radical the  correct that's true it can but it can't be in contradiction to how is the government's rationale in contradiction here what the problem here is that the  of problems one is that it is the imposition of the administrative requirement on the parents and the other is the consequences that attaches for the child and the only interest that the government has asserted here is one that's based on the petition requirement serving as a comparable affirmative act to the naturalization process in creating a connection between the child and the country but there is not that rationale like the one and watch it was actually internally inconsistent because first it ignores the fact government's argument is that the naturalization process provides some kind of pomp and ceremony that that will imbue the child with a sense of connection to this country and that i think is doesn't pass rational basis review substantial naturalization ceremonies where there are all kinds of formal activities including abandoned all that kind of thing as isn't isn't that the pomp and circumstance we're talking about i'm sure that's true but that is notably absent from the petition requirement so the extent of the government is arguing that this is asserting that this petition requirement creates the same kind of pomp and circumstance and and grand jury and forging of time between the interests it seems to me that you and i don't know if the government actually expressed this all that well you know it's very it seems to me that there's a connection with service necessarily that would be done in the case of former boring errands with their foreign born children they would have that interaction with the service that recognition of citizenship and going to the lawful process administrative connection is actually not important and i'm not relying simply on the fact that the child citizenship act was passed because i recognize that simply the fact that congress passes a later statute doesn't mean that our prior one violates rational basis but if you look carefully at the legislative history and the statements of say representative smith who introduced the bill they make clear not only that congress had made a different policy choice about whether or not it was a good idea to impose this petition requirement but they actually make it clear that  the congress thought and i'm quoting no valid reason for for having that attention requirement it was simply an extra burden and extra piece of discrimination against united states citizens and the children that they've chosen to adopt from abroad so that's that's the first part of the question and the first answer to the question and then the second answer is that the so the petition requirement doesn't serve any of the interest that say the supreme court has recognized in either miller or in the end with respect to creating or fostering ties between the child and this country or immigration will in ministries of immigration related  consequences because fourteen thirty one and fourteen thirty two back in one nine hundred eighty six which i think that it's that provides for automatic derivative citizenship for foreign born children who were adopted by one or two  parents who subsequently naturalized their congress congress provided that it was fine for there to be no no particular requirement because presumably the naturalization process would serve that function here the fact that the children are lawful permanent residents and have to go through some kind of immigration related process where the country recognizes their tie to this country and requires them to live with their us citizen parents you know family unit that is tied to this in two thousand and three he was convicted in california state court on two charges of transporting or selling cocaine and heroin and was sentenced to a total of three years in prison removal proceedings were commenced in two thousand and six between why did you ever serve any time in over at the moment is in mexico but we still have jurisdiction because there is a this this pending matter is that correct yes your honor because it can be a little bit confusing under the nineteen eighty six statute if you're the child adopted child of parents who are going through the naturalization process you're under eighteen when you're in the united states the moment that they become citizens you become a citizen correct automatically no petition correct and that is not the statute that applies to mr gerardo that's that's eight congress changed the statutory regime to sort of marry those two things so that these two different classes were treated the same but you have to be under eighteen correct and an in two thousand  citizenship only by strict compliance with the provisions that congress has set forth what's the rational basis for treating native born american citizens differently than naturalized citizens in other words giving naturalized citizens a greater immigration benefit the native born citizens i'm not certain i understand the question since native born citizens have no naturalization requirements i assume no do we have to go back and go through this again the eighty six statute treats naturalized citizens in terms of what happens to their adoptive children more beneficially the navy born citizens you agree whether the statute applies here or not i don't believe your honor that the there you agree there is a difference between having automatic citizenship and having to petition for it oh yes you're ok and you agree that one group gets it automatically the other one has to petition in the instance of a child who is being brought along with the family as it naturalized as an application is being made pen is being put to paper the same requirement applies to an adopted child of native born citizen pen has to be put to paper a petition has to be made there's not really much in the way of diverse treatment here in no petition is required if you're naturalized or you have to do is list the name of the  kid on your petition your next year all naturalization petition and satisfy somebody that they're here in the united states right the parent has to make application on behalf of the family and it only applies to a child who is under the age of eighteen that is the same what is the context here this is an application filed by the alien parents joining their adoptive child in a an a pplication for naturalization is that is that the context of the eighty six act i'm not certain of the procedural process but yes there is a petition that needs to be filed by the native born parents so the same action give citizenship to the parents and the adopt the child it's all in the same proceedings that yes we understand are not native born adoptive parent yes it brings the family along provided the child is otherwise eligible and is under the age of eighteen let me ask another question then under the eighty six statute looks say to a man and a woman apply for naturalization they don't list children they go through the adoption process i mean they go to the naturalization process and they later of adopting a child is that in the child is under eighteen under the eighty six that act with that child automatically become a citizen no i believe not because if it's not the child is not brought along as is the family unit because if they make a they just leave the child the child is with them it was with them when they entered the country they inadvertently left the child off their own naturalization  application it's her does that child autum is that child have to petition to become a citizen or is he or she automatically a citizen if there's not strict compliance with the terms of the statute in the child would have to otherwise a alien family is naturalizing for some reason a child is left off i would believe i would submit that under the procedure that applied to mr gerardo the now citizen parents would have to petition on behalf of the alley and child provided they are still under the age of i believe the statute says that they need to be eligible for lawful permanent residence i don't think that conveys it automatically now runners i would submit that the process that we've just gone through is not wholly irrational which is the pardon of mr gerardo in this case the legislative history this is a burden to establish that it's irrational the statute is presumed constitutional and somebody challenging it must rebut every conceivable justification so yes it is the burden what's the best justification in the department's opinion that the one that we briefed is that an affirmative act must be undertaken on behalf of the child