resolution of this case at this early stage of proceedings on a twelve b one motion is inappropriate and it's inappropriate because of the specific allegations that my client made particularly that when i speak and it's initial questioning whatever probable cause they might have had to begin that questioning it was called into question the moment that they received some very critical information and they did nothing in response to that the critical information was that they learn that my client's mother became a united states citizen while my client was a leave legal permanent resident and a minor and upon learning that fact we plead it would have been a basic application of basically asking one question to my client did you live with your mother when you were a minor at that time to conclusively establish that he had become a united states citizen by operation of law people who only additional fact they're needed that's the only additional fact  now there was something in the printings about how the face of the equivalent of the police report the record of sworn statement that the ice officers prepare did not include like the effective date of the of when the act went into place but that's the only thing would have made it the only other thing they had to do was do some very simple math to determine that my client was under eighteen on the date that his mother became a lawful permanent excuse me the us a us citizen and so what we're alleging not it's not an investigation question the question is did they have any authority upon learning that information to ignore or to not ascertain or determine whether they had the jurisdiction here's this information i am not a u s citizen not relevant i'll tell you why because regardless of you know who bears the burden of proving citizenship or whatever he says two things one is the it doesn't relieve the essential prosecutor of the case of to us make sure that they have probable cause on which to act so much like a police officer who thinks they have probable cause receives information that calls into question their ability the act here it's like a jurisdictional authority whether the individual an alien they had to that burden is not relieved by admission in the second reason is that you know there are cases that the white why are those things different let's take your analogy about a police officer developing probable cause if if a police officer comes up to me and says you know i'm looking for the murderer of john smith and i say well i am the murder of john smith i killed him yesterday i think we would all agree the police officer has probable cause to make an arrest there probable cause to make the arrest but the oath but they like a prosecutor or a border a court wouldn't be able to accept an admission to relieve an obligation to prove the i understand the obligation on the part of the united states if it's who's given information that says if you sort of add two plus two makes four you determine that the man is a citizen or you're given almost all the information all you need is a very small question to be answered which this person can answer then we know as u s citizen that maybe that's that's a pretty strong that's a pretty strong position for your client but what if while the government small question would have been that still doesn't relieve the immigration officer from an independent duty to ascertain as a matter of law whether or not that individual is an alien or isn't ok if i run over now and so far you citizenship so saying i'm a mexican citizen does not in self and get us is yes right and also you know the timeline is particularly critical here so there was on the twenty seventh of november there was the initial discussion and where we understand that our client is you know said my mom's they discovered that the mother we had become a citizen when he was a minor three days pass before the charging document of served before they actually prefer the individual to proceedings and it's alleged although it's not in the excerpts of record that i could find it's alleged that he signed a record of sworn statement any king in admission at that time but so that's the only time where purportedly  but i mean my understanding of immigration was there had to be a record of sworn statement somewhere with a stipulation but that would have come three days after they had learned the critical information but you're not contesting so much so the stipulation is entered before the before the deportation were contesting the arrest the detention for that the three days before that the notice to appear was served the charging document in the five days after that before he was actually deported and the actual deportation and that was the side know something that the district court failed to do in terms of the proper analysis of how their discretionary function exception applies we know it's very clear that it must be analyzed with immigration officers believe they had at the time that they brought you know the in our planning for initial questioning first we allege that dissipated upon learning this information and that of the fact that probable cause can dissipate or that a reasonable officer you know would even somewhat complicated and the criteria for citizenship depending on the situation can be very complicated how much immigration law are these officials supposed to carry around in their heads the bin about well i don't disagree that it can be complicated we did create a paragraph or two of our complaint that this is a basic application this particular law is very easy it was neither too old nor new to old who had never been forgotten nor to you knew of a lot to have not had training but there is the detention and deportation officers field manual in our materials and i under battle i can give you the citation but it indicates there that you will be officer expected to carry out legal research you'll be expected to carry out factual whether they have authority to act at on these facts here that was meant was a simple application as they are in trying to deport undocumented immigrants i'd like to just turn if i might before the end of this part of your time to the second prong of the berkovitz test on the d f t and that is the public policy it's hard it would be very hard to identify a public policy of the united states they could be advanced by allowing immigration officer it doesn't the d f e the public policy analysis is really taken boy you know avoid courts coming in and like messing up what congress you know kind of wanted to promote as a policy or what are some legitimate decisions what we know that that's not what we're asking for here because congress already spoke it's broke through eight hundred u s seaforth four thousand and one when it said hey nice officers you could arrest to deport you all this stuff but you can't do that to a u s citizen and they put it in the immigration and nationality act their powers their authority to act the jurisdictional thore is limited to u s citizens so the only during the argument of the united states was made on the argument that was observed and when stat that every government action is going to involve some amount of budgetary expenditure i mean that when the government acts to spend money and if we're going to say that every act of the government simply because that to make budgetary choices becomes discretionary well then that's just going to swallow the exception in total the other here is that you know it helps us kind of figure out the mandatory nature of the duty with regard to the money money issue if we look at a case like government you well you may have other things want to spend your money on we get that but you don't have discretion to just like not maintain it at all so here we're not you know we're and we're not saying that maybe the level the increase that we think that was triggered by the learning of the mother's naturalization date it is going to be present in every case i mean on these pings in this case there was you know there was really no not going to be an expenditure of resources so we not that is beyond something that's reasonable so we're not arguing here for a bright line we're arguing simply that we get a chance to develop the record and really get into what is you know what is it that the ice officers knew what steps did they take maybe they didn't take any the last point on the public policy bit which the district court mentioned although it's not advanced as i noted in the government's briefing was the suggestion like you know immigration matters are involved in national security and they evolve sovereignty and so we just but the government do whatever they want well those cases the district court cited and the rationale and the underlying them really is you know the product of an good morning and may it please the court joseph you so on behalf of the united states and i think i'd like to begin this morning by discussing all the judgment calls and matter of choice that the immigration officers here faced when they investigated mr r t outgrew we says citizenship and remove ability so to begin with the record reveals that they queried four different government databases and assembled quite a bit of information about this individual including his foreign birth to non citizen parents at the time his later conversion to a lawful permanent resident not a citizen and the lack of any further documentation of the individual having obtained citizenship at each step of those procedures the officers had discretion about which databases to query what searches to use what information to rely on and when to think no i think i need to dig a little deeper on this they then had to face the question of what to do when they interviewed the plaintiff the target of the investigation and when he says i stipulated you know this really is a discretionary function exception and the duty to investigate why doesn't this case come within the exception to the exception in subsection each your honor i believe this court resolved in a case called go g a s h o n one nine hundred ninety four but the law enforcement privy to the intentional torts exception does not subtract from a discretionary function exception into six eight zero a well i read not a show and i'm not sure i think there's an over reading order to to require this court to address it so i would think you'd be forfeited and you wouldn't need to address in this case but again we think that gosh oh settles this we think that two six eight zero eight and two six a both have independent force so but again i would just emphasize the plaintiffs have not raised this argument so i don't think you would need to address it here and if you were to seek to address that i actually would appreciate an opportunity to address that issue in a short letter brief w we were to rely on that i think both sides should be allowed supplemental briefing i get to but and they have and your honor i do believe that gosh no settles this question but just sort of to go back to the discretionary function exception and why it covers the types of claims once these immigration officers interviewed mr r t i girlies and he stipulates to being a removable non citizen they have a lot of choices to make do they did he see that he was a non citizen and what point do we get some from of the state by him or by his lawyers that is a non citizen what i get at the beginning is i'm a citizen of mexico and of course dual citizenship is a possibility so say i'm a citizen next stipulation that the document that appears to be dated november twenty seventh which i think is the day that he was first taken into custody but in any event there's a lot of discretion a determination to give me that one more time just to make sure i'm on the same page with you i believe we  at excerpt of record two one five which of the top is dated november twenty seventh this is a list of stipulations and i think that this is the record documenting the stipulation to being a removable non citizen your honor but i believe m i believe those are the initials of the immigration officer at issue here your honor but i'm not sure about fact that's correct so i'm trying to figure out ok that's not quite a stipulation signed either by the client or by his lawyer event your honor i don't think that this issue is the term of of this case because even without the stipulation there would have been quite a bit of discretion in these officers whether to negate the possibility of derivative citizenship when he appears to be due to his foreign birth to non citizens to be removable non citizen strongest i can make it in his favor he says i'm a mexican citizen and he makes no claim whatsoever to u s citizenship and reasonable is not the last step of any of these the terminations all of that information from the investigation i believe is then presented to an immigration judge who makes another determination is this person a movable non citizen that same person has all of the same information the immigration judge came to the same reasonable to terminations and so the immigration judge is not going to perform further investigation there's not an investigatory function there as there was with regard to these officers right you know under my understanding this goes beyond the record somewhat is that immigration judges do have the ability to talk with a person who's presented in front of them in one of these final removal proceedings and they can ask further follow up questions but i don't think that's in the record so you shouldn't  policy that would have subtracted that discretion at any point the simplest are human on the other side is if the immigration officer or anyone who connects with the united states government asked one question that would and the question had been answered truthfully and he had the knowledge within his own control that would have determined i would have demonstrated he was a citizen that's not much of the investigation let's assume that's a simple question the answer is yes or no  it would have taken less than thirty seconds and you say that's an investigation as a matter of policy and discretion the united states government is not required to undertake your honor just to look at your position so it is the i want to spin out why we think that's a reasonable position to take in the correct position so first i don't think it's technically true there's just one question to ask i think there's also the question of presence in the united states between the effective date of the statute and when he turned eighteen kind of situation they're presented with two options about how to best give effect to the statute one doing the gate the possibility of derivative citizenship in a case like this and avoid a very sad case of mutual mistake like we have here or do i turn my attention to a disputed case of movability and try to make sure that someone who is claiming citizenship is indeed a citizen or do i go out and try to target higher priority cases to bring them into the system those are the kind of choices imbued with public policy decision making like i said i would be very sympathetic to that question their approach and as stated by you i am sympathetic to it except that when you say time away from this kid time spent on this case is time taken away from other cases the amount of time we're talking about i guess we're doing two questions i'll say less than a minute your honor that then you know so we waste minutes all the time that may be true your honor i think that it may not be the case that those simple questions where they answered would then establish true but of citizenship you of course would then have to track down whether all of that is true there be fewer interviews involved there be quite a bit more time spent and i just want to highlight tagaris filed his form asking for recognition of his derivative citizenship he felt quite a bit more information than we would have obtained even if these ice officers had asked those two questions and i also want to highlight that this court in  ary choices that congress meant to protect this judge which are explored with ms and draw today you state in your brief that the policy choices that are to be made here or officers inevitable choices about how to allocate scarce resources might have unfortunate priorities and it was on that basis that the district court rested its decision and the question i have is why doesn't the exception of the rule aren't all particularly given judge fletcher's comments about how low the potential opportunity cost of time here was known all federal employees including both you and me probably make decisions every day that have some effect on resource allocation i think that might be true but again here we're not talking about resources allocation simpliciter we're talking about resource allocation in order to give effect to the value of the statute protects is it more important to avoid the possibility of mutual mistake a very sad case of mutual mistake when someone is not claiming u s citizenship or is it more important to turn around and maybe spend some time on a case in which someone is claiming state citizenship and fully due to cable but the short answer to the two questions would have shown the entire u s citizenship assuming that the answers were truthful so that immediately puts him into the category of someone claiming u s citizenship not because he knows about it but because those answers come for the officer if you know as the law says well if that's true you are a citizen and your entitled the claimant and so once that happens he's immediately into what you call the cat or the favored category and at that point we can spend the time on it so we can push it into the favored category very quickly that may be true in some hypothetical case your honor but what remains the case is that in this case we do have a case of mutual mistake and mr r t out there always was not claiming its state citizenship and at that point provided the answer to those two questions the officer well informed as to the law would have said well of that's true you're a citizen and i think you would have said won that case i don't claim it i don't i doubt there would have been they simply review the papers the second is that not all the information that the ice officers obtain particularly the record of sworn statement would have been in front of the judge the officers field manual that we mentioned earlier at chapter forty one point one indicates that the record  proceedings does not include the record of sworn statement the i two thirteen form the other i mean a probably really the most important thing here is you know we're not saying the investigation was deficient we're saying there was no make sure that if there was a tort of ledge in the carrying out of a of a duty of an officer in this context that there would be a remedy available for them and i believe that is the case that disproves that but i apologize obligations which is the thing that was printed on the twenty seventh and then on the thirtieth there was later a signature by our client for the first time indicating that he was going to proceed with a stipulated removal order and the letters r c m on there is you know from the initials as by a deportation officer and they indicate that there was letters were put on their on in the handwriting was put on there not until november thirtieth of ember thirtieth i think that becomes clear i don't have it in front of me but if you go to the next page of the talking about it individual who's in a detained setting who's talking with trained in you know immigration officers who go to what academy presumably are trained at some point about you know who they have authority to act upon it who they don't my client doesn't have any of that training and he who is in the better position to know the people who are taking action that is prescribe prescribe action by statute in terms of the limits of their authority or an individual a person who hasn't had any that that identifies the proper way in which to carry out this analysis the d f e analysis so we're not back here on something like that again and that would provide my client a chance to really develop the record on to all sorts of facts that we're interested in including