good morning ladies and gentlemen welcome to the ninth circuit we have five matters on the docket today three of which have been submitted and will begin by submitting those fishley the first is united states versus paterson the second is united states versus lee's ola and the third is warden versus miranda we have two cases for arguments day we have a little bit of an unusual could appear as of a government could appear by video and so we're continuing with that day when it's a government star and they'll appear by video so counsel if you're ready to begin please case would you say that's a good question we i have a comprehensive review of the case law and i can't find a single case that identifies the need for a presumption but i understand why it would arise because we have a foreign born individual and we do agree that the presumption arises in this case and talk of a go and that would that would be step step one of three steps monday aka vega focused on step three which is the ultimate burden of persuasion that rests on the government per supreme court precedent in would be versus ins or face i take it your argument is that step two describes a burden of production rather than persuasion precisely your honor and i think that's a critical distinction and unfortunately the term burden of proof is quite slippery because it tends to refer both to production or can produce refer to production and also persuasion here's my here's here's a question thank you has her about that in order for us to get into these twelve fifty two proceedings at all some panel of the ninth circuit has to determine that there is a question of fact correct correct you know which is which is to say that it's not a summary judgment case correct your honor as no one would would be strange then have a procedure in front of a district judge in which he was able to summary judgment because somebody didn't meet their burden of production as i've reviewed the order are directed verdict because someone didn't meet their burden of production we've already decided there's a fact issue to be resolved yes you transfers it to the district court so we've some panel not the three of us already decided in this case that there was a disputed issue of fact correct and that and that fact issue would be the citizenship claim and more specifically that the guy who wrote it and he didn't do a good job but as i read your argument is that at step two the judge in effect would be free to say you haven't produced beginning yes your honor and again i've not found any specific analysis on the relationship between the court of appeals in the district court but it does seem i know in the case of a leave us versus solace our it seems that the circuit court took the position that we need to allow the district courts to handle fact issues and that's kind of the the way it worked i mean i agree i mean my opinion having reviewed it it seems like a it's an unflushed out rel that's why i'm it doesn't make much more sense to view step two as a burden of persuasion we use the word credible we wouldn't use the word credible if we're talking about a burden of production correct and that i think goes directly vaguer where we're looking at the adjective unequivocal and figuring out if that actually means something or if it's just sort of a a word that slipped in there without probably where it shouldn't have now  talking about credibility here i want to find out as you know titian or apply for a certificate of citizenship in one nine hundred eighty and then sought to reopen that same denied claim two additional times and each occasion the trier of fact considered the evidence presented much of which has also been presented in this case and concluded that based upon among other things there were three birth certificates at least one possibly two of which had the data or the place of birth written in it was falsified words what precludes the effect if any does that prior zero deference however you and i will speak to that point because it obviously is there i've i'm not a forensic guy i mean i think i understand what the immigration judge was saying heat and the judge didn't know that that was if it was an issue would have been an action in gauged in by my client's father who is long deceased does it not on whether or not he was born in the united states and after all if you conceded that's really the issue before she got  a presumption of alien inches that's not rebutted your client loses arguably so you need to show that there is evidence that his father was born in the united states and this is one of the elements of proof that was presented at an earlier point ultimate burden of persuasion again like we did but they did bring it to the court's attention correct and that and so and so our issue is on the burden of proof analysis the problem was that it was used by the court by the district court to find that we hadn't burst a presumption because she didn't find the evidence that you presented of not your client's native birth but his father's native birth credible correct so let me ask this question differently if you're wrong know i believe whoever frankly in this case i believe whoever bears the burden of persuasion is going to lose because we're looking at an event in the distant past with largely illiterate poor people out on the reservation it's go impossible to print prove i believe certainly to clear and convincing which is we're going to judge the judge could have believed your evidence it was certainly you had some evidence in the judge it was a strange case because there were very few live witnesses one only one live witness but the judge could have looked at all of this evidence and said i find this is credible and bursts the presumption that arose from your your client's foreign birth and therefore government let me see let me now figure out whether you've proved your case by clear and convincing evidence but she didn't believe it and so my question is is it in your view this case turns entirely on the burden of proof correct or whether it's a burden of production or a burden of persuasion c and also will say again this court in rose versus sessions i believe it's an unpublished decision but the court said when it's referring to the substance previously the only reference we've had to substantial crevel credible evidence is zero it's certainly provided here so we don't need to look at what quote what quantum of evidence is required in rose versus sessions when they looked at that standard and that was the fifty percent case where the district court said it's imprecise eckel poise and what the panel did with that they said well that's weird and then they said well we know that substantial evidence is more than a scintilla but less than a preponderance that was the standard than the panel used in that case and they said well since the district court found a fifty record on which the district court could have based its conclusion that's not that's not a that's that's quite different than what we say to the district court in terms of burdensome persuasion of production isn't it is there's a distinction my understanding however there is only one white basically recognized burden of production that's rule for federal rule three zero one which which is the substantial evidence standard and that set forth in lieu versus m it says a presumption which shifts the burden of production has the sole effect of forcing the opponent of the presumption to produce enough evidence to avoid a directed verdict that what is in the standards of dental credible evidence not just substantial evidence right and so then we have them on doc a vaguer question are we looking here at a never before seen i guess it would be a fourth and is my point it would have to be a fourth burden of proof persuasion because by definition if we're saying that the adjective credible has any meaning it means that we're doing a merits based determine a sure and that's what a burden to persuade it's a burden of persuasion where we're saying to the district judge first of all they've got to come forward with something it has to be substantial they just can't say gee i think i was born my father was born in the united states that doesn't meet the burden and second you have to find it credible and that's exact that's exactly what district judges do all the time is now as a burden of persuasion yes so munt the doc of a good test says when the government offers we interpret it to work maybe basal we're saying is worse we need to figure out if we're going to call it a rebuttal presumption or for actually if it gives rise to a shift in the burden of persuasion by counsel let's just say you're right about  the whether we change the standard used to have this underlying presumption of alien really do you not it just kind of like a low level of high tension wire is down below because whatever we decide on that that kind of tips the scale unless you can come up with something that pushes it over right right and the judge at the district court found that we produced again in light of the circumstances we're looking at a fairly you know document a sparse environment with with no living witnesses but the court found is that we produced some steps of well enough evidence to survive a summary judgment of evidence from which a reasonable jury you know on a good day that's where you get back to what  judge her is mentioned earlier your past your three months i don't know whether you want to save some of your time or whatever you like it's your get your case so you tell us where they want to proceed at this point i want to save time for rebuttal i'm like to just just conclude with one point which is that the the rebuttable presumption are arises because foreign born people we can assume may not be united states citizens the question is what quantum of proof should we put on that person to burst that rebuttable presumption three zero one is the only recognize standard that we know in the federal federal context of bursting a presumption and it's and that's set forth in rule three zero one and it's also that you know that we can come up with some other other cases it's not a burden of persuasion and again if we do put the burden of persuasion on the petitioner we've relieved the government of its burden of persuasion which is a supreme court mandate the government has to prove all facts supporting to portability by clear unequivocal which does you know which we can delete clear and convincing evidence if we deport this individual who has a known frivolous claim to u s citizenship we're deporting him because we saying he hasn't produced enough evidence to satisfy this judge that's a very ill burden of persuasion it's not allowed under would be in or something or a summation i think that the balance of your time and thank you thank i just want to begin by thanking this court imposing counsel for your understanding in a difficult circumstance to let us appear do video i'm sure this is not ideal for anyone but we will do the best you can with the technology that we have  substantial credible evidence standard but what is really contesting in this case or the district court's factual finding this is not a case like rose in which the evidence was an echo point is oh this is a case in which the district court made specific credibility find of production because it is a burden of production the other side produced sufficient evidence to avoid summary judgment or is it a burden of persuasion under which the district court must evaluate that evidence and see persuasion how do we match that up with the notion that the government has to prove its case by clear and convincing evidence we district judges really don't move along in three steps in making findings but when we look at this record as a whole what you are clear and convincing evidence that this that this person is is not of the united states it is your honor i think i think there are a number of things in the record  it the sister's birth certificate authentic we are views that the original one the one that indicated mexican nationality is most likely authentic that's the one that indicates that birth certificate of the sister indicates that he and there was no breaking we understand we had several interesting got positions in this trial during discovery phase that informed us on almost what exactly go on i think i think there are a few things again that cut against that hundred twenty two we have no backers either mexico or the united states but i mean if that is going to come any way you know you look at that original not just one record it's the microfilm that's almost a hundred years old now it's that the father was living in sono course was very familiar with our standard for summary judgment is it not was it i assume it was if that's the strong why didn't they say that's the standard we're looking at here therefore it's a darker burden of production it would have been very simple for them to say it would clear everything up but they didn't say that she we draw any conclusions from the fact that they didn't indicate that this was that they intended that we followed the summary judgment standard manage that well i'm sorry again for the delay did you file a summary judgment motion in this case we did your honor so under your theory that was an improper motion was it not now that's a court of appeals had already determined that there was a disputed issue of fact how can a district court and or summary judgment in a case in which the court of appeals has already determined is a judge in light of that holding grant summary judgment now luckily for you she didn't because if she did she would have committed error but the government your position today that it's a burden  judge didn't believe at the evidence established that but that was not an unreasonable inference from some of his evidence was correct around so one of the one of the reasons one of the reasons we've got this difficulty with the burden of production your burden of proof is that you took the position it was a burden of production below and the district judge standards on burden of proof are enough and there are only three preponderance clear and convincing and beyond a reasonable doubt and there's only one if it's not a burden of proof of persuasion it's a burden of production and that's governed by rule three zero one there's only one thing i'm sorry why shouldn't we look at the result and destroyed or like a jury verdict because they are a bench trial because because they applied the wrong burden of proof and so that's the that's the we're not disputing the the factual findings were saying that the logically necessarily the clutha and if in fact the court we brief this below because i was looking at the law and i was like this is weird and i said look we have to figure out is it a bird a production or a burden of persuasion or your argument is that the district court improperly instructed itself correct it said for example it said can grab a citation but it's yes it's prior to that in the in the preamble it says this is a part and there is some confusion in the order back i want to get back to judge hawkins his question let's look at this record as a whole the judge made a finding that was not born in the united states is there a clear error in that finding as if she made the finding on a proponent you know if she she determine that we point about this issue i mean it's been addressed well first of all i just like to point out we also where does a substantial credible evidence come from i trace that in the brief it doesn't come from chalon it doesn't come from the other footnote in the other  brief what they're saying is it's a rebuttable presumption that's burst upon prison present upon production of sufficient evidence to survive directed verdict so we and that those a supreme sorry that's a ninth circuit case and a sixth circuit case ninth circuit