petitioner was seven years old petitioner is married to a u s citizen and together he and his wife have three u s citizen children the youngest of whom is eleven petitioner remains in the custody of ice since he successfully completed his criminal sentence over nine hundred seventy three days ago the statutory scheme of fourteen thirty two a facially classifies children raised through toulon very sympathetic to your argument and i understand that you hear pro bono and i'm appreciative that would you tell me why these arguments aren't squarely set aside for a second to an extent as well and i think it's a break in the chain and i think it requires this court to apply the same scrutiny that the supreme court applied to morales santana's barriers to  sort of didn't really resolve whether or not intermediate scrutiny applied and did not resolve squarely whether or not the classification based on marital status was indeed a marital status   went on and said even if we were to assume intermediate scrutiny and i guess going back to your honor's first question well santana in foot no twenty five the court held that intermediate scrutiny needs to be applied and then to your honor's follow up question whether or not intermediate scrutiny is applied i think you have to examine how morality applied that and the venom and vigor in which morality santana really pressed the government to identify the compelling interest and then also look at the fit between the articulated government interest and whether there was a means or there was a there was a match between them so it's not enough for the government and i think what rouse intended it requires this court to do is really you know peel that peel the onion and really look at what he has started interest is that the government assert my reading  is that we did precisely that we looked at the two primary interests preservation of the family unit protection of parental rights of the elderly and parent and then determined as a matter of in a media scrutiny whether it's you know some of those assumptions and presumptions that undergird fourteen thirty two away where do we find what the underlying purposes are for the section i mean isn't there is a little bit of signing up legislative history but not much in the breeze right your honor and i don't believe necessarily you have to find intent by the congress i think what you need to do under tenet is examine under today's standards and how families are organized and how fathers are involved in very sure your argument is that there are that the statute is spaced on assumptions and stereotypes and where do we find that what is the support for that assertion your honor you look at the structure of fourteen thirty two a and you look at the fact that the first two provisions have to do deal with when both parents are naturalized you're looking just at the face of the statute and is there anything else b beyond the wants of the statue well i think there is a limited legislative history which you know demo which is cited in the brief that supports the idea and historically the idea that children born outside of marriage are presumed to be the responsibility of their mothers and that fathers are absent from their lives and i think what  does is show historically that that's a gender stereotype an overgeneralization and reflects the norms that are outmoded the statistics you know demonstrate that for at of ten children are born outside of marriage one out of five single parents are fathers this notion historically which is embedded in you know our our history even the word illegitimate it's it sort of legitimate and is is not an issue that's on the table in this case because there's no dispute that there was legitimation right the government waived and abandoned any any claim to legitimation so going back legitimate determination and under you know while in this particular unique case they're not claiming that attorney wasn't establishes and i supply yes your honor they're not they're not contesting that but i'm going back to the structure of fourteen thirty two eighty three and what i'm trying to focus the court's attention on is if you look at that it allows a married parent a father or mother to convey derivative  separation the need to look at what the asserted interest is and then we need to look at if legal separation in the context can only be applied to married parents then we s correct and it well it did did leave open yes there were but if it only applies to married parents then on its face the statute discriminates based upon marital status if that separation then going to your other honors first question you need to look at the interest that's asserted and whether there's a match and i would agree that custody would match the interest of the parent but this artificial artifice imposes a burden of separation on unmarried parents and that doesn't make any sense as i say here found it's impossible for a separated people to read in connection with the list portion of that marvellous antenna as broadly involving not only gender but marital status that's what you're in answer to just keenan that's that's your response intend in that footnote twenty five which was more in the section of the opinion dealing with remedy they do make clear that the same intermediate scrutiny needs to be applied to marital status and it's interesting if you look at what the predicament was for the court in trying to choose that remedy they didn't want to provide a remedy to unmarried fathers that would put unmarried parents in an advantageous situation to married parents and that's precisely what i'm asking this court to do now is just put married it on married parents in the same equal footing which the law to requires it was one as you pointed out a footnote in the in which we pointed out  alluded to the possible exception to the general that unmarried couples can't legally separate and if if if in that case the  sum statute in jamaica made it clear that an unwed couple could legally separate then we would consider that have you looked at whether the i think is the dominican republic here right have separate yes your honor i did look and i was not able to find any provision or procedure by which they could do so and i would say this case could be limited to its facts although i want to be sensitive i'm over at the time but this case could be limited to the very facts that are presented in this petition and that the petitioners father entered into two legal marriages in the dominican republic before he came to live in united states with his father and a legal to a legal separation the first unofficial marriage that's that's in essence what you are practically it's true your honor because under both dominican law where the marriages were entered into it's illegal to enter into a marriage if you're still married and there's been no showing in this rites mean you were legally separated but it satisfies the requirement this concern if if the burden that's being imposed by fourteen thirty two eight three is limited to married parents then that the interest and i guess that's where i would ask the government to really identify what is the interest i understand custody and there is no dispute here about custody that addresses the government's interest and going to judge keenan's question the statute was amended in two thousand and now it just requires that the parent have custody and the child come to live in the united states so this demonstrates that whatever that compelling objective that the congress was trying to meet in one nine hundred forty or one nine hundred fifty two could be met and was met when the congress revised the statute and they did so because they wanted to address you know the serious issue of someone like mr gonzales france who's lived in this country for twenty years always thought he was a u s citizen and he engaged in criminal please the court stephanie had us for respondent in this case the court should deny the petition for review as this court pointed out it has already held that former section eight u s c fourteen thirty two eighty three the legal separation portion of that has a clear and unambiguous meaning and applying intermediate scrutiny this court has determined that it does not present an equal no your honor so because that's already binding precedent before this court a panel would only be able to revisit its precedent do you if we were persuaded most foreclosed at all from considering whether morale is santana has impact on this case the government's position is that morale is santana does not have an impact on this case such that the court needs to revisit its decisions in l pierre and we've laid out a few reasons for that in our brief one would be that morale is santana involved a completely different statute it also involved different government interests and i think w something that's very important in this case is that in evaluating the the interests involved in morale is santana the supreme court honor and that is that is not a departure from established law regarding intermediate scrutiny that that's what this court did in pierre but even looking at what the court did in morale is santana i think it's important to recognize know because the statute doesn't discriminate based on whether you're born in or out of wedlock it has to do with whether there was a marriage to the parents so you could have a situation where if someone was parents weren't married statute and if your parents were married if your parents were not ultimately marry well as this as this court pointed out the in louison pierre the legal separation the court did leave open the possibility that a legal separation could be affected in some jurisdictions when the parties  purse i guess so your honor i don't i i mean i'm trying to think of because there were lots of considerations in play here because when they were trying to get to us what more does the reason for and posing different requirements for children born in wedlock and born out of wedlock what are the reasons the purposes what are we trying to serve with this statue ok that's that's actually where i was going with part of the supreme court's decision and morale is santana because in that decision it left intact nguyen which was the supreme court case that dealt with a situation similar to the one we have here where there was a what are the interests are and vance purportedly advanced by this statute and in the differential treatment of children born and out of wedlock when the child is born out of wedlock the idea is that when a when a father has not established his paternity by legitimation that there isn't a known parent and in that instance this aligns with what this court laid out in pierre which is that the general rule was that both parents had to naturalize in order to derive citizenship and it was only in the context where it was fair to to believe that there wasn't another parent involve to paternity the father is the father why apply this in that scenario why apply these provisions in that scenario when there is no dispute that since the fall because it also so in that instance where there's an where there isn't a married couple and there's no dispute as to the father like in this case that section that second provision of a three would apply to neither parent neither me for a legal separation this court has already identified that is establishing a bright line rule to show that there is no longer a unity between th peak but i believe that in pierre this court did apply intermediate scrutiny to both yes to both legitimacy and and marital status  and in and once again i think one of the things that this court that this court focused on n p r was the fact that it did leave open this ability to show that there had been a legal separation of the parties and also ok so i the court went through the fact n p r the court went through you know that there was there was uncertainty as to the level of scrutiny to be applied but then said there was no occasion to address that because there wasn't discrimination on on the basis of a protected class and then also it also went on to satisfy do have paternity established that takes out the second part of eighty three and as to the first part the legal separation requirement is applied universally so even in the context of married couples i the informally separated and is that if the if the parents were not married there can never be a legal separation and therefore the first clause in subdivision three cannot apply that's the government's analysis under morales santana like i see that i'm out of time but i will get you going to the in morality santana again it was applying the intermediate scrutiny that this court already applied in its prior decisions that doesn't that doesn't break new ground in the equal protection law it reiterates the interest for treating in that scenario the children  born out of wedlock differently is that there is there what and this court but this court describes this in one of its prior decisions that it did establish great mind way of showing that the parents were no longer to gather in a formal way this was this was the rationale for another one of this court's decisions percent which dealt with a married couple and there was an that generally someone can derive citizenship through only one parent but when congress did that it chose not to apply that retroactively so it only applies to citizenship claims that busted from  two thousand going forward  generally derivative citizenship was only available as an automatic as an automatic benefit when both parents naturalized and there were these two exceptions one way or the other parent was deceased and then these these provisions in eighty three and because citizenship was automatic the idea was that you wanted to preserve congress want preserve the rights of the alien parent when the alien parent was still in the picture and so that's where this court previously has focused on the fact that there was a provision that would his father to apply for him to obtain citizenship through his father's naturalization but he did and he didn't end up doing that in in this case so read together the idea was that congress was trying to preserve the rights of the alien parent who may not actually want the child to become a citizen and because derivative citizenship under this provision was automatic it only afforded that when both when both parents naturalized and this is in line with what the court this court has previously held in pierre thank you thank you your hon thank you your honors just briefly i just wanted to address the wind case the government raised when dealt with a different provision and the the difference of when is that that dealt with more of this idea of the way that you could look in the main and there it's also important to remember supreme court looked at that it was a minimum burden under that statute because in that is that you could establish paternity by which statute which we all agree is complex and messy and they identify it and then there's a criterion imposed or a classification imposed there and then say just because they applied it to media scrutiny it satisfied everywhere and my point is this it's very nuanced in when the the requirement they were looking at was that under that statute which is different than this which this statute is even more onerous on the steps in paternity you've got to do it through the gentle mation which they've got a very onerous standard under that it's got to be equivalency between unmarried and married parents but that's not in this case my point is just and when the supreme court was really looking at that it was a minimum burden to require a parental acknowledgement and so my point is the government gets up here talks for a long period of time doesn't identify the objective your honor raises the objective that they proffered in pierre it's really important in light of morality you can't just accept proffered and i would also just say too that if you really go back to the cases and even peer and you trace back the ones that have have looked at this you know discrimination in this fourteen thirty two a lot of the precursor cases did not apply intermediate scrutiny but applied the rational basis and then the courts that said that they were applying it to me to scrutiny follow those courts so this goes back to my point i made in my opening you really need to peel back and really put the government to articulating what is the objective and i would say respectfully if the objective is the rights of the alien parent that is satisfied by the custody requirement that could be imposed under fourteen thirty two a three which is satisfied in this case and it's also what congress adopted when they changed the statute in two thousand so i would say the means to address the rights of the alien parent are met by the custody requirement that's imposed by the statute but let's go back to what is the reason that you need legal separation it's just obvious separate legal existences that doesn't that doesn't advance the assert government interest that we hear and so i think the means of achieving that can be achieved in a less onerous without imposing an undue burden on an unmarried parent for all these reasons  petitioners request that the order of removal be vacated and following this court's example in and would request that he be released from custody as quickly as possible thank you thank you for taking on the case and