citizenship it's essentially challenging its own prior terminates and it must bear the burden by clear and convincing evidence that it was wrong lolol with the burden there is there any case law that says  that doesn't make a lot of sense again to us your honor because again the writ is just an equable remedy he actions just a civil action like and other so we did make that argument and it doesn't and it makes no difference that  of someone in october of one thousand six hundred saying on the next door neighbor and he live in the there is no evidence whatsoever their entire case relies on hearsay and the judge did not abuse his discretion in fit in declining to admit the hearsay conviction without hesitation of the precise truth of the matter in issue there is no way on this record to meet that standard properly applied and that's why that's why this is not just to remain from the findings this requires a vs corpus proceeding but the heart of the matter involved his citizenship so why doesn't the burden of proof the whole framework burden shifting cup pli in this particular case you've got the naturalization cases you've got removal cases explain creation cases all of those cases involve the government bearing the burden of proof by clear and convincing evidence why doesn't that apply here even though the procedural vehicle that the mr court proceeded under was a b s position well the naturalization cases would have a different standard of proof  and this all turns on the the assertion that petitioner was making that there were prior determination as to his citizenship in this case and the government's position is that there were not there in this case the petitioner had a late registry late registration birth certificate issued by the state of california which the court found to be not credible for multiple reasons but before getting to the findings who's got the burden of proof doesn't this relate to his citizenship because you're trying to take this is a chip away saying that it's was fraudulent really issued and he's saying oh no and in fact the citizen that is the heart of the case right ira would frame it differently it is not the heart of the case that we're taking citizenship away from this individual he was and essentially and alien arriving in many issues is he an alien are not and we're all here trying to figure it out right right it has to do with this alien which now tell me what happened there was a noticed notice to appear that was issued and as i understand it the government was th context all right let me back up half the government done what it's supposed to do who would bear the burden of proof and what with that burden be it depends on which avenue you which there are multiple avenues available to petition or to government by clear and convincing evidence  sir and do you agree if we were to conclude that that applies here that the government would not be able to meet its burden by clear and convincing evidence based upon the factual record here no not if so what's the evidence something to that there that was elicited by petitioner on direct examination without eliminating limiting instruction or a objection as to hearsay regarding the mother's testimony or that the consular that he was born in mexico but with the statement itself seems to be inadmissible hearsay what was the testimony that you say was elicited a trial without objection that was the the mother testified and in the record at twenty three twenty three at six and supplemental excerpts of the record thirty five to thirty six that the mother testified that she told the consular  right she's repeating the hearsay statement right so i'm still looking for the exception the statement itself is hearsay i don't know what exception applies i don't think there are any exceptions but you know you're free  to articulate your best exception than that the hearsay rule and then on the stand she repeated that hearsay statement does that then change the years the nature of the statement no but there was no sure say objection as to her testimony so it would be waived if there is hearsay and the context of it was that it was given to allege that that statement was coerced and the court did examine that and found that it was given voluntarily and that was not challenged on this appeal and before i also want to add that should i really quite understand your theory so you outside of court tell somebody something and that's not admissible in court you say well yeah i told them that but it's not really true in the absence of a hearsay objection then the government gets to use the truth of the statement that was thought i thought it was a little by petition for the purpose of feuding refuting it and showing also lack of voluntariness and lack of correctness so if the petitioner wasn't offering it for the truth of the matter asserted what's the issue but we're in objection we need to be made who's offering this context for the voluntariness issue and the refutation yes and the court found that it was voluntary right and it's additional evidence of foreign birth but there is additional evidence of foreign birth in the record that it stands right now there is there any i know that there were some documents that basically repeat at the hearsay statement do you have anything independent of that that would then meet the government's burden assuming we say that the government bears the burden in this case yes your honor and that comes in the form the court found that petitioners mother and two of the aunts testified that petitioners grandmother was present at the time of the birth and that's that we are thirty two at twelve and we are thirty nine the court also found that there is consistency between the petitioners grandmothers vs a petition which was admitted into evidence which indicates that she was in mexicali mexico until november of one nine hundred sixty nine when she moved to los angeles november of one thousand nine hundred sixty nine is approximately three months after the petitioner was born that is consistent with petitioners mother submitting a application for social security number in november of one thousand nine hundred sixty nine as well so the court found that the consistency between those two documents for regular that's mother and that's a problem undercuts their their affirmative proof because the court found that the testimony was suspect but what affirmative evidence that the government present that would demonstrate that he was in fact born in mexico i would say that that that is evidence of foreign birth that it's consistent that consistency shows that petitioners mother was not in the united states until approximately three months after her birth and of the birth of the mother says the birth was in the united states the mother says grandmother was present rameau's documentation shows grandma was not present in the united states until three months later and that's your evidence along with the first documentary evidence that can show that the petitioner's mother was in the united states near the time of the birth is consistent with that date of november nine hundred sixty nine and  the dividing line between satisfying something by a mere preponderance and satisfying something by clear and convincing evidence it's more likely than not for substantial evidence and i want to believe i mean how does how does fact finder of fact making that determination know where to draw that line well i have full confidence that judge hayes knows how to drive that draw that line he's very experienced judge and i think that what he does is he weighs all of the evidence and he made many credibility determinations in the record which are not challenge here on appeal the credibility determinations went to all of the petitioners evidence all of the testimony including the birth wrong would not change the whole picture because you're here pointing to the absence of affirmative evidence instead of arguing your own affirmative evidence and so i think the allocation of the burden if we determine that it was wrongly placed on the petitioner instead of on the government with that warrant then a man for do over well we don't see our argument as arguing the absence of evidence i've believe that the evidence that the court found and the testimony that we're relying on is a firm of evidence of birth but so so you're saying that if this panel concludes that the burden should have been on the government and that should have been by clear and convincing evidence you still think that there's enough on this record to affirm i do your honor and i also would say that additionally if the petitioner would have some burden either prima facia or providing substantial evidence which they cannot me because all of the evidence that they submitted was found to be not credible or not showing birth within the united states and that hasn't been challenged on appeal all right thank you thank you counsel when you sit down before you said we should have a judgment not a remained but as i hear the government's evidence we have their evidence was that mother said that grandma was present at the birth documents show th i was not present or was was in mexico at the time of the purported birth not present to the u s later so isn't that some evidence so even if we agree with everything else you've argued doesn't that mean that there should be a remain and so the district judge can decide whether that koos and for clear and convincing evidence where you draw the line to your question your honor is is a clear conviction without hesitating scene of the truth of the precise facts in this what the government points to is impeachment evidence that grandma was there in the room at the time of the birth now maybe that's impeachment evidence but impeachment evidence is not affirmative evidence of the truth and even if it is part of something a web of circumstantial evidence on that is that is affirmative circumstantial evidence and it hardly can lead to the standard that i just quoted precisely when the evidence is clear on the record that's november is also when oscar's mom went to work someone had to watch baby oscar it's precisely when  grandma's other grandson was born someone might have had to come over to watch him there's a lot of things happening in november of one nine hundred sixty nine and does not lead to this clear conviction without hesitancy of the truth or it can't as a matter of law the other the other way  the other way that other reason that remained is not justified is because this was all everyone's had a fair opportunity to do this mystery leave us has been for eight years banished and exiled and stateless there is nothing more that's going to come out and no new evidence is going to come out on we managed to to show that oscar was in mexico in september or october it's not going to happen and so because it was unfair notice because the evidence on the record as a matter of law cannot meet that standard judgment as a matter of law as appropriate i would only add that just to a point was made earlier about the testimony acknowledging your own testimony doesn't your acknowledging your own hearsay statement so there's still a double hearsay problem and there's no need to objects to it and the judge is very scrupulous in analyzing all that has with scrupulous in this regard all the references to hearsay to the hearsay statement he went through as many as he could find and said i don't consider those first so you have to assume that you have done the same thing here if you had been a little proceedings he would have for the initial burden the birth certificate in the prior determinations make that initial burden then shifts the burden to the government by clear and convincing evidence and that's just a standard they can't meet as a matter of will thank you thank you o