against mr lopez known as the nonmoving party it did so by placing the burden of proof on him rather than the on the government and its so despite this court's prior order finding a material issue a genuine issue of material fact on functionally the same record second the district court failed to request or receive a knowing and voluntary waiver of mr lopez goes right to counsel that that failure before allowing him to proceed pro se violated his due process rights so t first to the summary judgment order itself what the district court held was that mr lucas goma's and this is it your eleven fails to meet his burden to demonstrate by a preponderance of the evidence that he is a united states citizen that judgment proceeding was for the purpose of determining whether it makes sense for the case to go to trial so why did he have any evidence at trial beyond what we have in front of us now are two answers to that your first part of the reason for the lack of evidence in the record is his pro se status and i'll get to the to the problems of that cause but that infects this entire record going going through but second the evidence in the record caldera spent months at a time traveling between mexico and the united states and for the purpose of working in california and so it's certainly a reasonable inference and it may in fact be the best inference we that but it would have there would have to be an inference right so i'm just struggling with whether if we had this exact evidence a trial the judge would have to direct a verdict for the government because there isn't actually evidence of enough time here documentary specific documentary evidence is it is an abuse of discretion to find that testimonial evidence can be over over and by the lack of i agree that that's a could be testimony but we know so this testimony in the declaration itself is is somewhat vague and then we actually have a deposition that's even worse so i don't know why we should think that a trial will be better and do you have i mean you started to say before there's going to be some difference if he has counsel but what will the difference be we're on a we in this proceeding we have not been uncovered that specific evidence but if this were remanded for a hearing with counsel that counsel at that point could undergo that investigation but also point out you have any idea what that investigation could do it just seems i mean it's a sad situation but it seems like the honor but i think that that gets to the press the the the difference between the summary judgment standard and the trial standard right because the trial process is not just a formality it puts the witnesses live it puts the testimony live and it allows for an examination of the credibility where the fact finder could determine that this testimony is enough to allow an inference that mr calder was present in the united states for the sufficient amount of time will the declaration itself be admissible at trial or would it be i believe that would be hearsay or so what so the jury is going to get to consider the inferences in the declaration they're going to have the deposition of a man who honestly says i can't remember the date of my marriage i can't remember a lot of things who was found to have been very honest by the judge and but it has a situation where he's not suddenly going to reclaim his memory you know mr has he did a great job i'm real proud of you as a seattle davis right jermaine lawyer for doing what you did but you know judge district judges sometimes look at a case and say there's no hope here so let's put it out of its misery rather than deny a summary judgment under the standard you're talking about when there's absolutely nothing that can come forward so that's why i think judge freedman's question is a is a real sharp one what else could be presented there wasn't a witness who was excluded there wasn't a person who was unavailable and your client doesn't seem like he can add much either about what happened before he was born so where is it going to come from then i think that that would be that would be a question if the decision before the difficult were one that it was entitled to make because that gets through one of the other errors in the district court's decision when we got when this court first considered the record it had the same declaration clift and judged home and said that record creates a genuine issue of material fact but since then there has been discovery including these depositions and now the district court looked at the record saw the depositions the depositions are much more like what would happen at trial and the declaration won't be admissible so you look at what this trial would look like and you say why should we waste resources i think i mean i think i must know what it why is that not what the district court could have been thinking at that point i don't want to speculate about to make that he has to show that there's a whole present present he was physically present in the should consider are the facts about the father and this isn't the case over with answer the question chris will give you two minutes are about all ok and i would appreciate the opportunity to sketch the due process element as well if that's possible but the answer to your question judge person is that i do not believe that this court can grant summary judgment in favor of mr lopez going as it would need to what we're requesting is a remain to the district court for a full trial on that question now and and to get to the due process issue very briefly what i would just like to say is that even if this panel disagrees with me on the merits of the summary judgment order it cannot affirm without reaching the question of whether mr look was going to due process rights were violated we've set forth the argument in our brief and i think the the  lawyer in the district court no your honor no he didn't correct yeah  well you have a lawyer you point that out to you know he's got a lawyer he had a lawyer and he didn't pay his lawyer so his lawyer with true but he was told you have plenty of time to get another lawyer and he did have plenty of time to get another lawyer and he just proceeded on his own which is never a good decision especially under these circumstances which brings me to the next point mr henslee if we do remand this case would you retain remain on it as his pro bono lawyer a trial i would certainly be willing to discuss that with him if he would have me ok thank you will give you two minutes rebuttal what was your last  i said if you would like me if the client would like me to represent him i would be happy to talk to talk to him about that  the supreme court is currently deciding a case called morality santana right now which deals with the statute at issue in this case and could drastically affect the outcome of this case and i think we're looking at about four or five weeks from a decision so the court may want to wait if they want to cut just or break may want to wait five weeks or so to see what the supreme court does what is the question presented in that case it's an equal protection claim brought with respect to this statute the requirements for fathers are different than in mothers and there's an equal protection claim being  brought there's also a tricky issue of what the remedy would be in the case about whether they would make the mother's requirements apply to the father the father's requirement apply to the mothers of could if the mother's requirement would apply to the father in this case that would only require one year of presence in the united states which i think he would probably meet in this case so you want to wait five weeks probably save your clerk some time also you know this case may go on for a decade and a half so five more weeks isn't really going to be the difference here so about what could be the difference but it's not going to make it is going  to matter in terms of waiting so mr robbins i've never i've been a district judge now for one thousand years i've never done one of these is a jury trial that the petitioners entitled to in theory it can be able usually they end up being bench trials sometimes i judge either on summary judgment or some sort of record right there could have been a trial the district judge could certainly hold a trial but again in this case with respect to the summary judgment motion i don't want to beat a dead horse here too much because it seems like you're on as i understand what's happening here there's no genuine issue of material fact here we have a declaration but this vague testimony from the affiant to who is honest and admit he couldn't remember so the question is what happens if this case goes to trial they answer is nothing nothing really changes so as far as summary judgment is concerned with the court concede to a good lawyer well at the time he originally had a lawyer before the district or proceedings but he breached the fees and expenses agreements with that attorney and he was given notice an opportunity to about the withdrawal and when he was represented by counsel that he was actually he did actually have counsel present representing him before this court at that time but that counsel i'd i assume because he had different counsel in district court was not authorized to represent him in district court so he wasn't an represented at all but i have he did proceed pro se before the district court but again your honor that was his choice he was given notice an opportunity once his prior  well the i mean the district judge in this case pro complied with all the local rules that were wired for what happens when if you are a i said the district court in this in this case complied with the local rules in giving the petitioner notice an opportunity when his prior counsel withdrew from the case and so the argument the petitioner is making with respect to express waiver that only applies in removal proceedings that's a rule this court set in place in removal proceedings because they were i think him back into the fold well your honor there has to be a statutory basis for him to be due to derive citizenship that's the laws of our country and there has to be so there has to be a legal basis to do so and if the supreme court might  the age of fourteen and the problem is he can't show demonstrate that physical presence in the united states from the ages of fourteen to the time his son was born that's the problem with the case if he could establish that i would agree with you he would be a citizen but unfortunately he can't do that and that's and of course he didn't even really raise a create a genuine issue of material fact with respect to that point and that's why the district court granted summary judgment in this case and he didn't even contest the summary judgment you don't know and he didn't file anything he didn't argue but the government to their credit submitted the entire record which included the declaration that arguably if you take it that any time he came back to this country he stayed either four or five or six months to work and you look at that declaration in a light most favorable to mr lopez gomez you can come to the conclusion that there's a material issue of fact but it doesn't mean he can prove it a trial unless mr henslee goes out there and finds new people beyond his siblings to say yeah i have work records or something else that show he was here from this point to that point that's correct and it's and remember it's not you know that declaration is certainly part of the record but it's not the only thing in discovery we also have the deckle the deposition testimony of the affiant and that's really where the problem arises as you're on a point of the his honest testimony that he's not going to be able to fill in any of the inferred a certain amount of physical presence based on his assertions that he worked in the united states during the period between the ages of fourteen and one thousand nine hundred and nine hundred sixty eight when his son was born and they did in for about fourteen months of physical presence based on his assertions that he'd worked in that area in that area where they weren't able to do was make any inferences with respect to physical presence about the time that he claims to have traveled between and in fact when we asked him about it a deposition testimony to clarify what that time what kind of times or dates that we could infer with respect to that those assertions he specifically said i couldn't tell you if it's days or months or anything he really just admitted that he couldn't tell us what we could infer from that those assertions so yes the district judge didn't for assertions that were reasonable to make but did not make assertions where there was no factual predicate by which he could reasonably make any and for if he had counsel now and counsel could find employment records that showed more time is there anything that would preclude that from being introduced at trial i mean i'm having trouble finding it i can just page three seventy two it says petitioner has time to find new counsel is that the what you mean by informed of his right to counsel oh it's here and yet page three eighty two three eighty two is the judge's order here title here it's the record that was filed by petition in this case it's an order granting attorney linda pollock's motion to withdraw its docket number twenty nine on the district  are taken to avoid reasonably foreseeable prejudice to the rights of the client including giving due notice to the client allowing for time for employment of other counsel complying with rule three deaf seven hundred d and complying with applicable laws and rules here petitioner has infor counsel as there are no hearing date set for this case additionally politic reasonable steps to avoid reasonably foreseeable pressures to the petitioner rights council gave notice to petitioner with ample time for him to retain new counsel and returned all documents that she had related to this matter i'd also point out that petitioner acknowledged during deposition that his sister and he had authorized his sister to receive those documents and she did in fact receive all those documents so where does the judge tell him his right to counsel i didn't hear  also know the petitioner was informed way back in removal proceedings repeatedly that he had a right to counsel he acknowledged that and actually got counsel he had he was simultaneously while this order was being granted he was represented by counsel before this  court obviously he has counsel before district withdrew but it's i don't think there's any dispute here that he knew he had a right to counsel he had counsel all over the place i mean i think it be a stretch to say that he didn't know he i mean you know no one but that may be different than whether the judge actually went through dialog in which she informed him of his right again which is what you preach that we didn't say dialogue we just said he was informed of the right to counsel and i think this order pretty well does that we did mention we didn't say anything about a dialogue but again you know there's every local rule here with the district it was complied with by the judge we so we think that there is no error in what happened here i certainly agree that it's yes we think there is no because there's no genuine issue of material fact here that even if there are what workouts i mean he wasn't prejudiced because at the end of the day the evidence shows that the father went back to mexico and can't fill in the gaps about the physical presence that he needs to demonstrate to demonstrate citizenship through acquisition and i agree it's a sad case it's unfortunate the father has no more memory of what he what he wear he was but unfortunately that isn't going to change if he's represented by counsel  thank you others just make two very quick points on the question of the court's inquiry as to the no right to counsel the discussion that counsel was just referring to is on your three seventy one and two if your if you were looking for it  must inquire specifically as to whether a petitioner wishes to proceed pro se and then receive a knowing voluntary affirmative response and i don't think it's disputed that neither of those things occurred here so the so then the quote didn't then the legal question is whether that requirement applies in the district court proceeding under twelve fifty two b five and i think that and it's clear here that this is part of the rule proceedings we're discussing whether mr lopez gomez will be removed we're discussing and the only way he gets that hearing is on is through the execution of the removal statutes and then to turn to the merits of the summary judgment order and i want to point the court to two sections of mr called there as deposition that were not discussed in detail where he that he says repeatedly that while he may not remember the specifics of the details he stands by the veracity of those claims and what that means is nothing in the declaration was controverted we can't hypothesize that there be a lack of evidence when not with specific dates that is correct but they do not controvert the testimony that this court previously found established a genuine issue of material fact that warranted a trial thank you thank you both sides for your argument the case is submitted