that means she's a citizen of the united states yes are under twenty two u s yes twenty seven zero five but the congress has given three separate entities the authority to determine who is and who is not a citizen the united states it could be the courts immigration or the department of state in this instance the department of state had issued a passport to claude in reno if there is a turk carbonation or if there is a belief that that passport should not have been issued there  a method for a revocation well in the united states who said she's not a citizen but that is correct that he fits we've got this is a crazy case it is so she's not a citizen she knew that she wasn't a citizen she knew she was born in mexico and adopted in new mexico she was removed from the united states she knew she had no right to be here and less in spite of all that she procured a passport and says citizen that does not mean that i cannot become a citizen i don't later time and in this instance remember the state department's independent authority so if the fifth circuit says you're not eligible to be a citizen that in no way precludes the state department from determining department of state recognizes citizenship is to confer a passport it also says they passed poor issued by the secretary of state to a citizen of the united states which we take from the rebuttable i don't see how you can do that by definition if it's conclusive what else is there to do and there is a method for the state department to come back and say you are not a citizen by way of this passport and the method for that is  of the law and as the last of at the time and i would still say that does if a statute says that a passport is conclusive evidence of us solution ship and that was the person's belief at the time how can a person make a willful statement if both they have a passport they have and c i see a report from the f b i indicating that her citizenship is that the united states if  word conclusive  statute vet says that he issued passport is conclusive evidence then what should we make of this troublesome language in twenty seven o five one that says the passport is issued by the secretary of state to a citizen of the united states statutory language to rely upon suggesting that the possession of an issue passport is  court back to the issue that statute or cases reward relating to the fact that a certificate of naturalization of citizenship is accepted as complete evidence of its own validity or if you look at the magazine case and that's cited on twenty the court said there first by section twenty's over those of five congresses vests the power the secretary of state decided who was a u s citizen by deeming passports conclusive evidence of citizenship congress as us also quoting from the ninth circuit twenty seven zero five plainly states that a passport has the same force in effect as a certificate of naturalization or citizenship of these other documents can use them as conclusive evidence of citizenship so the ninth circuit bootstrapping the conclusive nature of the so she's that she's she's driving zero with the court she's been zero with homeland security slush immigration and you're saying that doesn't really matter because she's got in a thousand with the state department state department has given her the imprimatur she needs that's it let's have a battle among the three entities capable of conferring citizenship on on people is that wrong i think it's wrong in one position that the state department can carry and that by the issuance of a passport to smith the state department would have independent authority they can come at a later time and say we're going to confer citizenship that's their independent authority and unless the supreme court says that they violate it's one of their own rules as to whether the state department schools i don't think that even the supreme court could broach the department states authority to determine who is in fact a citizen and just want one  that in the paper in the application for the passport which is approved there is a box that says what is its proof of citizenship and it lists her birth certificate so that was a determination and whether or not that was a mistake isn't the salient issue  passport this is this is conclusive proof of her citizenship and therefore we can't make a decision we can't make a determination on this record then set it back down said determine if she should have been given a passport if not then i'll submit a new decision  good morning mate says the court kelly lake i represent the united states in this matter i am prepared to answer any questions your honour's might have first question is why didn't they on the record of evidence that notice was given to miss marino for revocation of the passport in september of i believe the record says two thousand and eleven notice was sent to miss marino  passport was never given back to her once it was confiscated mr i never had that passport again so you're going to have notified her of revocation but to your knowledge nothing has happened in the last fourteen months that's correct to my knowledge nothing has happened why i honestly don't know him an error you know that's that's and i understand this is not in your control as well but i do hope you will take it back it's almost insulting to this court frankly to be given a very very difficult statutory issue like this one and then have the government suggest by implication that it's not even sufficiently important for them to proceed with relocation of the passport and that very very troubling and again i realize it's not your call but perhaps my colleagues don't share that view but it is mine i do i mean the state department doesn't care about this why should we i mean this is one of the stranger cases a person i think they're on the street here because there is sufficient evidence to ramos conviction for falsely representing herself to the united states citizen and she will flee did so by representing herself to be a united states citizen even though she was told multiple times she was not then tell us a little bit about the the evidence i don't remember it i'm sure as well as you could just tell us now was the defense that hey i am a united states citizen here's a passport proving i am didn't fact way that evidence and decided i guess that the passport was outweighed by the fact that she was born in mexico she had been adopted a new mexico she had been previously removed she was deemed not a citizen by the fist circuit was all  proof of her citizenship is that right that is correct it is not my position your honor in order to get a passport you must prove you are eligible for a passport you that they had a matter the court has held that a u s citizen is entitled to a u s passport and that is proof of citizenship unassailable in administrative hearings and so the case law does not hold that  the past court came up in trial only during the defense is that correct the the government called ms martin's department of state employee good as it should adopt an approach similar to what the eighth circuit seems to have done in kiel and say well that only really applies and understated proceedings wouldn't apply here and this criminal rome i think would be reading words into a statute that are not there and there's no indication that congress intended to limit twenty seven o five to administrator for seeing that the language does not call for that and i think that the court can read them in into th citizenship issued by the attorney general or by a court having naturalization jurisdiction you would be reading in but only in administrative proceedings the law seems to indicate that those three things a court immigration or the department states the terminations of the ship but the court in the naturalization process i i thought at least give you my view that they've already given your client the thumbs down so if you want if you if you argue the twenty seven zero five requires that your client receive the same treatment that she gets from naturalization in from a court then you're arguing that she gets no relief i'm not saying that if you look at the  she got to draw from homeland security you have a loss from the fifth circuit how does that get you victory here well because if you're asking the very materia treatment and i don't see how that gets you a victory when you haven't established a victory in one of the other realms i don't believe that i have to do so what i'm saying what are all saying is that the department said it's independent authority to to make this is an immigration has independent authority and a court would have independent authority to do that and you don't have to win a clean sweep in order to do so you can have one of those branches make a determination that would be binding but this branch namely the secretary of state needs to give it to a citizen that's what the statu requires yes and this is i go back to sort of in doing so if you look at six sixty seven of the joint appendix it clearly says that the basis is what's her purpose for this is shift it's her birth certificate that's why they're issuing it and i think in issuing that passport they had made a determination whether right or wrong that she was a u s citizen and on march sixteenth two thousand level there had never been a revocation and also that a decision from two thousand  the court did not permit me to send that document back but what the court did permit was the documents the government wanted saying she had not established citizenship oh absolutely correct but in a willful in a crime this case when you have her attorney telling her yes you are a u s citizen in this case how can these things be willful when branches of the government including the documents that were turned over on the eve of trial saying look this is a valid passport we can't hold her we have to let her go because this is proof of her citizenship how can someone make it willfully false statement that was uttered by the part members of the department homeland security and sent to her in her for the request saying that your citizenship is that a united states how do you make a willful false statement regardless whether or not it's true doesn't matter and in a good faith aren't you don't have to prove that your belief is reasonable that justice in syria held the government's agent larzelere minute she was since you know she really believed that she was a united states citizen and that evidence out and that that's what we were three determination on of use discretion which is a very very high hurdle for an opponent to absolute is that i and i recognize that but i would ask the court to look at when you look at the abuse discretion what is the standard under for three to keep something out that goes to a central issue that's a very high burden for the opponent of the evidence to overcome there's a presumption of admissibility and we've established authenticity relevancy was all conceded this is something going to the central issue in the you judge thinks it might even cause jury confusion absolutely it's enough they got you now yes but if it's an abuse of discretion when it's something that's so central to an issue in the case in the case that look when you have something that is that the main point of a case you should really never keep that evidence out and what went back to the jury was also the bad evidence none of the good evidence got to go back with a jury to review to see whether  you made a good faith statement of her citizenship at the time what do you make of this notion your court was prosecuted under title eighteen for violating criminal law of the united states the tension between the two i mean of course my position is a bit the passport conferred citizenship and that would be defeat in title twenty two's in title four and really i'm trying to make sure we don't lose the forest here while we're deep into the trees and twenty two is entitled foreign relations and intercourse so i mean we don't want people in buffalo you know stopping people with passports and saying oh is this real is this fake you know isn't that what twenty seven o five is all about is about saying look if someone shows up with a passport they're coming in but why should we transport that into the criminal law when the criminal law has a tendency to it a whole panoply of of more detailed procedures and protections for the queues the problem with not being permitted to utilize title twenty two is title twenty two is what gives foreign born persons the ability to establish their citizenship if the government is attempting to one of the elements they have to prove is a lack of citizenship you have to be able to use the vehicle that congress has provided to establish the documents that would establish your citizenship and those documents are a certificate of naturalization or certificate issued by the tourney general pursuant to a court naturalization those are the two ways or a passport it has a passport has the same force in effect as those other designer ways we can't treat we can't treat the department of the passport as a stepchild to the  the certificate of naturalization what congress is saying is these are all equal methods of establishing citizenship and you can't say one is better than the other or that you need all three as long as the passport during its period of v issued by the secretary to a citizen of the united states and i agree with that but the if you mean that here i mean we've only been looking at the import of this with respect to this case which was a nine eleven prosecution but does that mean that if there are any other benefits at all incident to being a citizenship citizen in the united states that during that period until up until such time as the department of state elects to revoke that perhaps for ideal obtain past poor incidences citizenship should be available to the person who holds the passport because it is conclusive evidence of citizenship i think that's what congress said and to protect against those other issues they said here's a very easy method all the only thing they have to do to revoke a passport you don't even have to have it here although if they do send you a notice and say it's been revoked then the onus is on you to come back and say it should not do that to your client absolutely not i think it was late said last year there was a notice of revocation the that was well after the crime else he submits a valid document which was first to pick it of birth in that situation that is different than what the government saying in kiel where it's a person i'm impersonating you and i get that that pass why those well carrying the minor fraud or mere inadvertence or mistake by the bureaucracy what's the difference among any of those people think you have that that ticket to ride that passport that you say is conclusive and each one of them got it well in a situation where it's me impersonating someone that passport is and is being issued to the person under whose name it is not the person who fortunately conveyed themselves to be that person this is a situation where miss perino said this is me here's  birth the department states that i'm relying on your stick it of birth maybe mistakenly and they gave you their passport whether or not this department state needs a nother method to do so to revoke that passport the code of federal federal regulations gives an easy thing to do is send a letter it's revoked automatically i think we understand your position mr kenny it's a very interesting case an unusual case and we thank both sides from there very helpful presentations thank you will take the case and re