got birth certificate or he identifies a community where she may have been born and where she was baptized he's had the opportunity to get those records and there are no records so none of that is in evidence offense if the i guess what it was if both offenses were run if the jury disbelieves or the jury did not accept the fact that mr smith was a derived citizen under fourteen zero one then they could find that he had a and then they got chemicals understand the evidence did not and the district court probably excluded of that absolutely did not happen that's coupled with some of the other government's claims about the falsity of this information there was not one hearing about this information being true or false the government or the district reasons quest what if that's what i want to know why the judge said that the alternative defense would not be available if whether he made a ruling on district court would still be faced with the issue of whether or not they could preclude the you're not going to find i don't i don't understand a question if you have a new trial the government has the obligation to prove its case correct and if you have any affirmative certain residency requirements of course yes and if and if that let's assume apparently the requirement and assuming no parents meet the requirement then they need to go through the extra step of applying for citizenship s you are a system by birth within the united states if you're not born within the united states you need to be recognized by an authority a persecution says if you're not born in the united states you need to be recognized by a majority that that person is not born in the that his mother was born or naturalized lived here for those years that she's an american citizen she met the conditions of the statute he met the conditions that he was a citizen by birth i would say well i think i think you point to it in the district court just mosque which was of the opinion that the united states needed to disprove alun age beyond a reasonable doubt as to the regular citizenship and that's clearly not the standard well your honor what she would need to do is he would need to apply have a ruling by the immigration judge that would go to the board of immigration appeals and then it could come to the ninth circuit if there was any issue and be remanded to the district  this statute and in doing versus ins it refers to individuals that are foreign born as potential citizens at time of birth not that they are citizens but that they are potential citizens they need to go the extra step further because they are foreign born if you get recognition by the united states authorities that's what needs to take place and that didn't take place in this case there were remedies available to mr smith and in this case now mr smith in his deportation proceedings illegally have you ever had any immigration papers no do you believe that you have a legal right in the country no is your father an american or he said yes now was he she married two years to your mother yes sir yes do you want to fact that he wants them to believe he was positive in this case the other is how if you are you have the right you know whether they will waive the other thing is whether he or whether you're not a citizen to the get this effort and you are the question is who makes that determination as to what as to whether a person meets meets those requirements and what what the defense with a vote would argue is that it's something that a jury can determine but obviously what the united states position is that it's not something that a jury can determine it can only be determined by either the immigration and naturalization service or just be the coins out of the courts not by  thinking and his findings about it's not legally relevant because he he someone needs to make that determination the part becomes relevant whether it's the court within the night they killed the whole family i mean you've got to have and they need to attach it to you to make it relevant that's right example is there's an american that you mistakenly believe is a european and you want to prosecute him being american who did so he has a right to go to a jury and say here's my passport is my american citizenship i want you to determine as a fact that i'm an american we would all agree that the jury can decide that it's a fact yes absolutely it is a story first in the united states the second where you know there's a reason why congress delegated this authority for factual findings before the immigration judge to make these determinations not for juries and also throws in the chaos of what is one of them in the answer to the question  jury and say this person is presumed to be an alien and i'm happy and to bring a plaything that he's not correct that's correct right so that if if what the district court state is that we have to prove beyond a reasonable doubt that asleep and crossed the border or someone that wanted to cross the border and in fact didn't know that they were entering the united states that's not going to stick a fact that's being claimed here the mistake of fact is being claimed here is that he thought he was  united states citizen and didn't need permission however in those instances where i heard you cited those were expressed areas where an individual could make application this is not the case if you didn't the court got it right when they classify that as a mistake of law type of defense what he was saying is that i knew i was deported i knew when i got to the port of entry that i was going to the united states but what i didn't know was that i was breaking the law by doing so because i verdict in this case but that's the same time the issue is not what can be presented you can't simply present everything that's under the sun in order to refute the defense if indeed we didn't have all the proof that we have in this particular case we have to get back to what was the mistake of fact that he's asserting the mistake of fact that he's asserting is that look i thought that i thought i thought that i was a united states citizen not that i thought i had the express consent of the attorney general to reenter the united states as under the under the the framework the god requires that individual that wants to claim that they they are a citizen needs to at least make up a case now this person has been deported if somebody always thought he was an american believed his whole life but then you did your investigation whatever whatever message to repin give him of the patriot act and you determine that he's really not an anything absolutely convinced this was a mistake he didn't have a lawyer he doesn't know what happened he learns when he's gone and he really is an american he believes ok reasonable police well one more question report page seventeen of your brief and your summary of the argument you make the expressed statement on appeal the government will not argue that the evidence should have been excluded based on collateral estoppel you stand by that statement yes  is there any reason that you are prevented from offering that people the facts is it different from an ordinary criminal trial where the defendant's story is not very credible or