district court concluded that he had not proven that he was living there she did not conclude that he was living elsewhere but that just that he had not proven that he was living there and in the process of reaching that conclusion she made two very clear factual errors the st was when she stated that quote before we get into it is it is his burden there's no question that it's his burden to us it is it is his burden but under williamson he also is entitle to the opportunity to develop the record in prison and that was my nd question why did he i didn't see in the record perhaps i overlooked it did he supply a parade a declaration or affidavit of his own i know there is some evidence and i assume you're going to tell us about it did he provide a declaration under oath of his own we did not provide a declaration your honor we felt that there was going to be discovery and we had filed our joint discovery case management  plan in which we clearly asserted that he was living and and their wishes significant evidence no we did not provided the exploration that did not occur to me at the time and we only had twelve days between when the government filed its motion and when the gov and the court issued her decision so you're also suggesting again i am interrupting the a but tell us something that i want to hear but are you suggesting that you were going to take neither party disputes that plaintiff actually lived and worked in emporia kansas at the time he filed the suit and in support of that she cited to the government's evidence but the government's evidence significantly covered the period up to and including february of two thousand and seventeen and then again in two thousand and eighteen the government presented no evidence whatsoever of the period between may and december of two thousand and seventeen which is when may nd and he lived there through september he was month to month after august so in late september he moved to a cheaper apartment in edinburg which is a few miles away from the county and he lived there and the evidence we submitted included his lease rental change receipts and his credit cards and this is the problem one of the serious problems was the way  government and then the court handled the issues of credit cards and that was the government assumed and basically asserted that the only way you can use a credit card is by presenting it in person and that hasn't been the case since at least  and the court basically adopted that assumption you know what we would consider was improper judicial notice that because for example there wasn't a payment to the city have been pouring in kansas for twenty six two different places all right so tell me then is is your is your mr forest you see claiming to reside and you see does he reside in texas are does what we consider was that at all times his permanent residence was in texas he went to kansas he could teach briefly the cars under he wanted to come back to texas so we both are in about two homes i think he had his right texas and claims a restaurant or residence and in kansas or the reverse you know could be important in terms of trying to decipher the statute but if he's claiming a residence in texas a place of general abode the place and general abode of a person in his principal actually dwelling place in fact without regard to and ten and here is clearly he had his physical presence was in apartment an apartment that he rented so it's hard for me to understand whether he is residing in texas and claims are residents in and kansas or what is you either way you're going to kansas under the well no if it's venue because the government is a defendant the one of the possibilities is where the facts giving rise to the cause of actually occurred and we say that that was in mccown the cause of action is where was i born he was born in macallan his birth certificate was filed there the doctor who delivered him resided in practice there for almost sixty years delivered thousands of babies in your hand of absolutely impeccable reputation yet cetera so the facts would have allowed for venue and in there if it's a venue provision but going back to your show is question the question of residence that interesting the government provided a quote from black's dictionary law dictionary that's a residence that says it's a place for the time being and the evidence that the government submitted stopped as the claim a residence under the statute the one that will be bound to arm and a place of general about the place in general both means a person is principle actually when in place in fact without regard to can go the common meaning of reside and you may be stronger there claiming that he resides in an in texas and has a residence with the immigration act provides for the possibility that you could have more than one residence and the statute where it says resides or claims a residence the term a residence also appears and residence in a foreign country which you have no intent of abandoning so that even if you're not physically present in your foreign country when you're applying to extend your missive as a student or a visitor or whatever you must have ask you specifically to that time period between let's say may of two thousand and seventeen to december the th i think of two thousand and seventeen the date of the filing is what was his employment mr florrie's what was his employment at the time online teaching online teaching at the university in kansas or ship ok and what it's doing it from his apartment in and but he owned a home and she and cancers do you know he owned a home in texas and they owned a home in kansas such correct and and he rented and because his home in texas was rented out when he went to start teaching in kansas which lived when he came back he rented an apartment and he lived in the apartment he resided in that apartment for the time being for seven and a half months while before he filed the suit well we're talking about no we're not really talking about the determination of facts and much as whether he had an adequate opportunity to prove the fact because that is the way the timing went  in person and therefore she discounted his evidence that he had been living in the valley for the seven and a half months at which he spent approximately twenty three dollars days in kansas wasn't it wasn't the district court in time to make a fact the dispute over the facts is basically whether the credit card being made to use make payments in kansas meant that he was not actually physically in texas everything and that was the only dispute that the government argued and that the district court found the district court made those two totally improper findings of fact claiming that he had never claimed that he was residing there at the time which is false and that the that the parties don't dispute that he was living and working in kansas at the time he filed the suit that was in the judge's had that's what she found as fact in those facts are clearly erroneous head or your argument is that she was clearly erroneous correct she was clearly erroneous in the finding she made improper basically a judicial notice of how you can use a credit card she did not give him the opportunity under williamson that he was entitled to make can present a record she did not look at his or countervailing evidence was in the record if there was no affidavit or declaration from mr florrie's you're saying that there's a disputed fact what should the judge have looked at other than these credit card receipts just to or to at least understand that some of them could have been charge remotely and without the physical presence well this is bill's but there was zero have a danger that he was in kansas during that time the only evidence on record was the evidence that he presented because all of government should have been either play dated february of two thousand and seventeen or was twenty eight in the government totally ignored that period between may and december when we claimed that he was physically residing in texas state your the relief you are asking me is a remain correct for a hearing for the judge to make a record and make a finding of fact with respect to correct  the government's position that because the phrase resides or claims or residence modifies the district court that is it is the district court which is the relevant phrase here to determine whether it's a single dish a court or whether there are two but importantly your honor it doesn't matter in this case whether it is to fish or courts because under resides or claims of residence residence term reside just not defined in the statute so can't we look to keep coming in and dictionary which does refer to the possibility of temporary temporary presence so you're correct your honor that there are two possible you know constructions here but the one that the government adopts is the one that the th circuit is already adopted and that's what the term resides is defined by the i and a through the term brezec dense which is explicitly defined for cases and that's in the holder so in that case the pfister get defined the term reside it was an ion as statute that was in the immigration and nationality act the court defined the would mean the same thing is that there's your it would mean the same thing if resigns it was a lemonade from the statute so that it would be complete just in any district in which he claims or russia residence but the key here is that both the term resides and residence are defined the same way in the us are defined the same way and that's that's and certainly g s to meet you it's december th in this case two thousand and seventeen is there any evidence in the record that indicates that mr flores was not actually residing in texas at the time of that let's say someone else was living in the apartment that he claimed to be renting for himself is there anything in the record particularly in that period i spoke of earlier that may two thousand and seventeen to the date of filing suit just and we are so the government did not present any evidence  during that time period from me to december whether what the government did is present evidence in the prior case showing where he had certainly resided without dispute a from the other side in kansas at that time and then that all the evidence that led to that there are issues with each and every bit of the evidence that plaintive submitted in support of their contention that he was actually residing in the count at the time the suit was filed and the issues of the evidence there were several st if there's been a lot of discussion about the credit card statements that there were charges made in kansas and in macallan but there was also an issue with the leases submitted your honor that  at no point did plaintiff actually submitted declaration or state state to support those lease payments or credit card statements that he was the one actually residing in kansas the one actually living in that apartment as opposed to just renting it the person actually making those credit card charges as opposed to someone else making those credit card charges and then those issues those independent issues combined with the act clearly asked the court for jurisdictional discovery they mentioned in passing that this could be you know determined in some discovery without specifically mentioning jurisdictional discovery but they never actually moved the court said you know court greater reserves but yes your honor because this court would necessarily have to find that it was an abuse of discretion for the district court to dismiss without allowing them an additional opportunity to submit a declaration and we look at the standard here well is it clearly erroneous argument the court still looks through the rest of the evidence if the court was simply relying on the fact that he didn't dispute it then the court would have no need to go through the rest of the evidence to determine whether the evidence that plaintiff submitted supported the factual carried his burden that he actually is clearly is the court reviews that were clear air and the court may only ask whether the factual conclusion was plausible in light of the record you would in its entirety so not just based on that sentence in this district court's opinion but the record could have suggested it is plausible that the court's interpretation of the evidence there was plausible and that's enough for clear of you so it was the issue with the credit card statements was issued with the lease as well your hon i'm i'm not sure what inference you're saying that favors the government in this case your honor without a supporting declaration saying that he was making those credit card charges in addition to the evidence admitted that he es and a statute braces both but even presupposing your point that ask your primary residence why is the majority of time being in one state i guess i'm just confused that when you have sex after that that's that's the that's the clear majority of it's well over four months because we don't because additional court cannot ascertain from the evidence that he actually was making those credit card charges such that in would be the majority of the time in texas because when you looked at the evidence and it's a little bit got places stay in both find the question now is presupposing your primary residence argument why is it not the more plausible reading of the credit card records that his primary residence is in fact texas because additional court found that it could not that the plaintiff not carried its his burden to show that he was the one making those credit card charges in texas he personally was making those credit card charges and again your honor you know i do wonder what standard of proof was the one actually living and making those charges on the credit card statements and there's an issue with the lease payments as well your honor he end briefing stated that he regularly rents an apartment in  doesn't live there that he stated that yes he's gone back to kansas since the filing of the complaint which is all good and well and yet he still rents that apartment in macau and so the court took issue with that as well that even when that even under his own admission regularly rents an apartment in macallan without actually living there so then the court could look at those lease payments and those leases and assume that he was actually living there the court would have needed a declaration to say i'm actually living in this apartment i'm the one that was actually making these credit card charges and again your honor i would concede that in a normal case that credit card credit card charges and a leases and lease payments would be enough and any normal case but here you have a very particular m a purely or case really where you conceded that the dish would have been equally correct to resolve citizenship if the district court had found that ok the credit cards at least statements were enough to show that he was residing in the county texas had the suit was filed i would be up here with with the same hill to climb as plaintiffs to say that that finding wasn't plausible and i absolutely your honor but i think if we if we go back to to what plaintiff's burden is here that they have to show assuming that the resides as defined by residence or even assuming that it's it may be you know the credit card statements still don't show a do not carry his burden that he lived in macau and the respect that still don't carry his burden they lived in macallan so regardless of the definition that we applied to the resident and to the club resides or claims residence here he still hasn't met his burden because he would still have the same issues that the dishes were found and it in its opinion to be present and he had an ample opportunity to do it to i think you're saying that it's plausible that he stated to claim that it's plausible that he has a residence in texas just not a principal residence no your honor if that's not the possible no your honor because he would still have the same issues he would still have to show that he was actually the one living in the apartment that he was actually the one making clearly erroneous they were plausible based on the entire evidence in the record and when you look at the evidence of a submitted in the in the prior case where he was actually has a job in kansas has a home is in kansas it is it was plausible for the dish a court to infer that so he kept out apartment for a while when after he went back to kansas but that does not mean that he regularly rented an apartment without leaving and he never did that and never never claimed to do that also the government completely ignores williamson that says that if the motion to dismiss raises factual issues the government plaintiffs should have an opportunity to develop and argue the facts in a way manner that is adequate in the context of the disputed issues discovery routine and we believe that we were going to have discovery we didn't believe we needed to request a hearing because we thought we had discovery coming and then we would have a trial down the line judges room came a surprise a judge's ruling came as a surprise we had prepared at the same time she was preparing her opinion we were preparing our motion on the server reply to point out the facts in the government's opinion regarding the reply memo was filed on may the nd so that's the correct verses are applied that seems like it's a long enough time of things for to assume there's not going to be want unless you so advise them that i do intend to respond attached which was the th bush was the th and after we filed that the judge issued her her judgment which said it was being dismissed with prejudice and it was more than two weeks later that she amended that to say no no it should have been without prejudice ignoring our attempt to file sure replied if you asked for a rehearing based upon you miss the sara part because it was there and you obviously could not have considered it because you ruled so quickly it all happened so quickly josh no we did not we were in the process of thinking all right she said this is dismissed with prejudice i guess you know we were contemplating coming to this court at that point and then when she turned around and when the government talks about the proponents of the evidence they admitted there is absolutely no evidence contradicting his evidence showing that he was for those seven and a half months that he was in the in the valley so if you're talking about preponderance of the evidence that's all the evidence that there was about that time they showed that before that he was in kansas and they said that in twenty eight dollars hinn he was teaching in person in kansas but they never they presented nothing for that time frank so if you're talking about preponderance of the evidence our evidence was the only evidence as to where he was during that period of time and going back to the question of a residence it is very clear from  and fifteen that you can have you can be living in the united states temporarily but you must have a residence abroad that you have no intention of abandoning so clearly that residen abroad is not where you're spending your time so clearly the act contemplates having a residence and another residence and what we showed was that for those seven and a half months he was residing in the valley whether that's his primary or his secondary it's a little bit hard to say we consider that his printer residences in the valley because that's where he spent most of his time he was temporarily in kansas getting the credentials necessary to come back to teach in the valley because that was one of the prerequisites that if you graduate from the university here you have to teach elsewhere before you can come back and teach here and then with respect to the jurisdiction judge i would again refer you to john the vs gonzales and the language is very similar and also the legislative history shows that the it's our position that the judge should have either in compliance with williams she should either have considered or serif life or allowed for discovery or allowed for hearing that twelve days is simply not fifteen counts against the government all you fifteen is saying if you can have a nonimmigrant it is defined as somebody who is has a residence somewhere else and isn't wanting to be in the united states permanently that seems to me consistent with thirty so if you're talking about a residence where else to see immigration act talk about it residents it talks about a residence in the context of a non immigrant student or a visitor or whatever who is presently in the united states but has a residence abroad that he has no intention of abandoning so that's not inconsistent with thirty three dollars well no that's thirty three dollars that's where the act is perhaps in the need of a little updating because it's not necessarily one hundred percent consistent when you say that your residence is where you're actually staying but then you can have a residence abroad where you're not standing on yeah ok