permanent resident who was illegally deported in two thousand and six for an illicit trafficking crime for which he never committed and he was improperly reported by the department of homeland security in suppress my questions about that certification by it says jose g bar and my question is about this document that first question is did he testify he did not ok so this looks to me like a certification by jose barr that he is certifying himself as being a qualified records study and essentially is that right that's correct what else was offered a m opposing counsel the same question what else was offered apart from this to verify his ability to serve his custody and nothing was offered other than an unsworn certified letter this document that judge control direction and supervision of all the files in the records and that you can find that at their their brief at pages twenty one and twenty two so that's not an issue the issue that the i a e a found was that he was an authorised deputy while there is nothing in the record to substantiate that claim by the first of all the authorization issue officer bar claims that he was the official having legal custody not that he was an authorized deputy like to be i found he claims he was the official having legal custody under ironically under that i had a statute but the d h s s failed to cite any regulation and failed to provide any evidence of any authorization making him a deputy of the  h s secondly delegation for section two point one permits a legal custodian the legal custodian and serve occasion duties to be delegated but only quote by regulation directive or ward sort of write letters ok don't even call it a certificate you know rise that level and my now you know you would have a much harder argument if this mr barr actually showed up at the hearing correct and he placed under oath absolutely that's what  something of that nature right but there is a regulation your honor that lists what the job categories of and i saw in his not his and this is not it's a see a far two eight seven point five eight through f and that says that the powers or authority when i saw officer a deportation officer are to interrogate patrol the border arrest conduct searches execute warrants and carry firearms they are policemen for the d h as you know  an official record must be done by way of any station the word test appearance in the regulations the same is true with federal civil procedure forty four but the sole evidence upon which officer barr claims the elevated status as an authorized answer is what we do is we send the matter back down to the b i a we we manage it down there for purposes of determining whether or not with respect to the respondents or the petitioners motion to suppress whether or not his fourth and fifth amendments constitutional rights were violated if there was an egregious violation for purposes of the a motion to suppress along with whether or not there were statutory and regulatory  led in records that should have not been and they were not properly certified and so i just i think judge i don't mean to be a secret judge person but so if we would agree with you that means the motion to terminate should have been well if they reinitiate proceedings now they're going to be like start all over well i don't think so because i not because the motion to terminate was duly scheduled and it should have been the night because there were no certified records that was done it please the court my name is collette winston i represent the u s attorney general the responded in this case petitioner challenges his alien age where he himself voluntarily and in one instance under certification under penalty of perjury filed immigration forms to gain an immigration benefit stating that he was a citizen of mexico  counsel we haven't been subtle about our problem would be if you can get the evidence into the record right the government has to follow the rules and so if you get to the merits of what's in the records i think you have a strong argument but what about this problem with the certification well under the different regulations and rules the government has met its burden to show that the certification is sufficient to eight c f r twelve eighty seven point six a provides that an official record when admissible for any purpose shall be evidence by an official publication or by a copy attested by the official having legal custody of the record or by an authorized deputy then there's a statute saying the secretary of homeland security has control direction and supervision of all the files and records of the h s that's in eight us eleven zero three eight two moreover the secretaries authorized to confer on v h s officers or employees any of the powers privileges or duties conferred or imposed by this chapter or regulations issued there are under that's eight us eleven zero three a six finally eight c f r two point one so as it has to have a regular there is to be a regulation directive memorandum and this is the most important or other means as deemed appropriate by the secretary in the exercise of the secretary's discretion eight c f r two point one officer barr certified both the form a i four eighty five in g three twenty five and he doesn't have to come to the immigration court to make that  under oath because the certification was sufficient this says that he says he certified this says he says he's qualified and i realize i'm being close but that's my problem with it there's nothing but that's this is all we have i'm sorry there's nothing this is all we have right and in most cases these kinds of documents a document that was submitted in two thousand and two that was signed by the alien that says that he was from mexico that signed under penalty of perjury was he called to the stand at the hearing and asked is this your signature is issue no he has not nothing at all you did was present this document well the document was in and relevant and this was material probative and relevant and we said in our case law that you have to identify you have to authenticate these documents on case there was no authentication whatsoever so the iran case cited by petitioners coun is very different it's distinguishable here there is there's an author there's a certification a federal officer and legal record the certification states my official duties and responsibilities include creation and maintenance of official records pursuant to the delegated authority from the secretary of homeland security legal custodian under one hundred three words that delegated authority recorded or noted secretary to allow this in so he has this of the secretary has just discretion it's out there in the ether right he has it but where has it recorded that he has exercise that discretion to appoint this category of officers to to receives the benefit of getting adjustment of status in the same year that he filed this document if everyone you'd have to bring in the officer to say yes it was known as you would have to you wouldn't have to but it's not good enough to custodian is authorized and that's what we don't have right but isn't that gilding the lily here isn't that it's requiring the government to follow the rules what are the government they follow the rules he he made his statement he linked it t documents go ahead and under the c f r and those are the rules the government has and follow no question let me ask follow the follow up question to judge progress and question to counsel suppose let's just hypothetically speaking we disagree with under oath and the custodian the record and i looked at the a file and these documents which mr floor's got the benefit of by getting adjustment of status were in has a file that is one way to do that you have to do a little early and add a special you know statement on his official and how that is his duty here he says that the remedy should be the motion to terminate should be granted absolutely not and why not you had your can't you have the govern his chance to prove up its case failed to do so well that the government the government produced a certification from mr barr for each for each document and where there was no certification for example his birth certificate that was not admitted into evidence in a regular this is a civil case but you know regular civil cases if you fail to meet your burden of proof well in this case if we did meet our burden of proof and even if the court were to find otherwise there is sufficient information in the record and and there's a certain discretion on the part of the immigration judge and a presumption of regularity here there's a there's a lot of cases in the ninth circuit that says when when there's a document and there's some statement that it looks like it's from the alien it's an in the file and there's a some sort of occasion even if it doesn't show exactly what what your honour's are looking for but there's a presumption that we're looking for the required so you're saying that there's a prison there's case law we should look at that would say that this is typically are we missing something because if so i really want to hear what that would be well when there's a document that is said to be in the a file as this is in the ellen's file there's a presumption of reliability there's a presumption of regularity it would be very easily so what we need to make you know you're going right to the point like we believe in your education was enough and where the certification was missing it was not accepted by the immigration judge he bent over backwards to say we're not going to step the birth certificate but because mr barr didn't certify it and here mr barr certified the two documents that were signed by mr flores who had the same date of birth and both documents who stated he was from  was to florence mr flores was there right and he accepted that his counsel represented him but he didn't provide any testimony because when when the case got further along it was clear that when you for the few minutes for about a few minutes well with respect you have one point you have one minute thirteen seconds with respect to the issue of the evidentiary standard is not that the document is only probative material it's that it's admission would be would not be fundamentally unfair and that's the part that they can't meet the government can meet here with respect to the presumption of regularity yeah so the presumption of regularity is a red herring no there's no presumption they have to be authenticated iran says i don't care what kind of message method you use but they must satisfy due process and must not survive they were uncertified the motion to determine a should have been granted it should be reversed and and with that your honor i submit the petition should be granted the matter should be terminated and or remanded for the motion to suppress issue ok thank you