on whether a petition or removal proceeding must or about the presumption of an edge by substantial evidence or a preponderance of the evidence pursuant to supreme court precedent the answer to this question must be substantial evidence for three reasons first proceeding in removal proceedings or petitioner is not seeking the affirmative benefits of citizenship so the preponderance of the evidence standard does not apply second no order of removal can be entered unless the government proves all grounds for deportation including alien edged by clear unequivocal and convincing evidence and three the the risk of error in removal proceedings is on the government pieces counsel we we ordered this case transferred to the district court pursuant to statute because there were factual questions that needed to be resolved and the statute says that by virtue of the fact that your client is foreign born there is a presumption that he's an alien and he then has the burden to do so evidence to question  robot that statutory presumption the district court found the evidence in poyet did not make any credibility determination so did your client meet his burden of proof to rebut the presumption or did he not under that state of the record i do think that he did i think the standard has to be substantial evidence which is something less than a preponderance of evidence i believe this court has called it the district court as they move the ball back to the fifty yard line but exactly the fifty yard line right he didn't go over the line correct although i would just note that we are challenging the district court's finding and we believe that it was clear  ok but to get back to judge thomas question i'm going to interrupt you but just we have to take pricking this down i'm drawing pictures and everything else is so your your position is we know from the district court fact finding that that the ball got moved back at a set of the fifty yard line into your position is that substantial credible evidence right yes i think that doesn't exceed the substantial evidence standard ok so if i were to rank burden of proof by weight i would start with reasonable suspicion and probable cause substantial evidence preponderance proof beyond a below preponderance yes and that this court has actually said that and it was c levy chaytor ninety four that third five twenty the quote is substantial evidence is more than a the power or does it to make the board's decision as to whether or not he's the portable the only thing the district court had the authority to do was to conduct an evidentiary hearing and determine aurora i mean she essentially says you know he is or he's not entitled to citizenship but that's not really her call i don't i think you're right about that i think the remand is that mostly what she would be doing in an affirmative citizenship if there had never been a written level proceeding i mean just to finish that thought that's what i think you're yes going to write yeah ok and so do you know of any case from any circuit court where where this precise question has been asked in other words about a removal proceeding and what i'm considering as sort of a satellite citizenship proceeding and what the appropriate burden of proof is when it comes back i didn't find any case that decides that person ice issue so it follows that you may be correct that it's a substantial evidence test but if it's not you lose i would say that well even if the district court or city gets propounder and says no question that you didn't removal proceeding when we come back to the ninth circuit it's we're back into removal proceedings because this court's decision at the end of the day will decide whether my client is deported to jamaica well yeah but if you're correct in any if if if i get picked up and i get charged or you get picked up and you could charge with a drug offense you're not a u s there's there's some indication that you're not a u s citizen under your regime all you've got to do is say well look i've got this claim for us citizenship based on mother's residence here or whatever and then all of a sudden instead of being in removal put to proceedings the the landscape changes and you're in citizenship proceedings where the residency that it's a drastic deprivation to be removed in this country and in those cases the government bears the burden of proof and it bears the risk of there because here if that wasn't what we read that was what we transferred the case to the district court to decide the district court was given a very safe well i guess you could argue about how specific or or order was but as i understand the order the district court was essential he asked to determine whether or not since he was foreign born he could establish the he could rebut the statutory presumption and it seems to me that that question requires more than of evidence it requires let me put it a different way the district court said i can't tell one where the other the evidence could support a determination that harry rose was the father is convincing evidence standard on the government they've made an assessment and they've talked about this in a number of cases clear and convincing evidence goes to the proceedings before the board this is not a proceeding before the board of immigration appeals besides you've already answered this question what you said is that he had the burden and he moved the ball back to the fifty yard line and you think that substantial credible evidence i think and if you're changing the opposite and i really need to know that no i'm not changing that position and the statement i was going to make is the rest of error here is on the government because if so that say the government is wrong let's say that harry rose is not michael rose's father the government will be deporting a united states citizen out of this country and the rest of their four if michael is wrong about his parentage is that a resident his lecture for thirty years gets to say the risk of error for the government is much greater and that's why the supreme court requires them to prove removal by clear and convincing evidence so wh removal proceeding that's correct all right so but but it didn't go to the other precise question to circle back to judge parker's point right didn't go to the press question when we do this what i'm calling a case to the district court and when the case returned back to the ninth circuit they looked at it from the question of substantial evidence with regard to the removal proceedings yes i'm aware that i'm aware that it did have a satellite proceeding and it it doesn't answer precisely this question in a million should we need to answer it but we are looking at the possibility that in a firm in a proceeding there would be a different burden of proof i guess i would agree i a affirmative proceeding as opposed to being something that is embedded in the confines of a context of a removal proceeding that the burden of proof is different no i'm not aware of any authority so what's a proceeding before the district  citizenship proceeding or i think i would argue that it was a removal proceeding or it was far because i believe the statute was designed to resolve questions of fact that this court could not resolve  so that it could make a removal determination that it was an ultimate goal because when it comes before when the case comes back here at this is a removal proceeding well that's a circular because in either proceedings the result is going to be someone leaves or someone stay this now to the board of immigration appeals so that it may consider the district court's determination and perhaps further remained back to the immigration judge to reopen proceedings so that the government can then introduce evidence now that we have a ruling from the district court which is an equitable i think this court and determined that the order removal needs to be reverse we've already had an evidentiary hearing and the government has already had its opportunity to present evidence and it didn't do so well but we determined that there were unresolved questions of fact and so we transferred that's an issue to the district court to resolve and unfortunately we have an inconclusive answer to the question so it seems to me that some sort of further proceeding is in order if we conclude that your client did not meet his burden at the district court to rebut the statutory presumption and that the if you would conclude that he hasn't met his burden i would say that there should be additional proceedings but i do i'm sorry say that again if if you would conclude that he hasn't met the and again it depends i think on what standard you apply because i do believe he has met the substantial evidence standard  but if to that is to say you think you rebut it the presumption i do and in that case and that doesn't the burden shift back to the government to prove by clear cogent and convincing evidence that's correct that he's removable right and you must keep in mind here that the government hasn't even proven that it is more likely than not that mr rose is a u s citizen there is not a u s citizen and they have the burden to prove that he's an alien and they haven't they haven't even reached fifty favorite reach fifty percent two b five it's a transfer to the district court for nationality determination and as the statute reads it should be handled like a declaratory judgment action a declaratory judgment action has always had the burden of proof by preponderance of the evidence and that's why the district court used the preponderance of the evidence burden because the statute itself eight u s c twelve if you to be five indicates that should be the nationality determination in well so so all those cases i just mentioned indicate that the burden is by preponderance of the evidence and that's a standard that the district court in this case and roses case used now that we're confusion lies is th case was different counsel that the another word had been in interjected it wasn't clear and convincing was clear unequivocal and convincing about that court was saying is no that's the same thing that's correct but it but in the context of saying that the court the court on bond court said we're not going to add that and that's what we're struggling with ok and that's our second list so it really is very personal so let me give you some additional reasons if i may also in dhaka they get the district court in that case use the preponderance of the evidence standard if you go to the district court data they used to decide the preponderance of that and standard and when the court reviewed that on bach it didn't say that they used the wrong burden of proof right counsel but your problem is what the court did say at that level then it comes back to this court you have this is and should determination the district court after dyno hearing said he's not a citizen so now what you have is the removal water which wasn't challenge to do with respect to his remove ability as a result of his commission of an aggravated felony you have that you have the fact that the the district court said he was a citizen so there needs this is not a route he's not challenging remove ability on the put resolve that is did not visit district court went back to the fifty fifty yard line and the problem we've got is that's inconsistent when you want to cling to the district court's judgment in the ultimate conclusion and what we asked the district court to do is make this finding of fact  court wasn't able to do and that i disagree your honor i think the court declaratory judgment order said i understand you that he's not a citizen of the united states i understand you disagree but i just don't think you're answering the question  be adversarial but i but i if you don't have an answer to the question it's fine but on my scorecard that's the question how does one doc of a good fit into this or is it only because a substantial credible evidence language that you can so the first the first place you're losing me is is your position that substantial credible is the same as preponderance that's the first problem there's no one who used to said you know i mean i charged district i mean i charged your reach for years and years never occurred to me when i was charging the jury about to ponder and so the evidence to say so but they if certainly if they believed preponderance of evidence was incorrect they would have sent the nicer when you say certainly i thought you just told me that you didn't think they had to reach it that's correct but but nevertheless that this petitioner previously applied for cancellation of a rule and received it from the government in which he the government had to prove that he was an alien or he had to prove that he was an alien and he did that in two thousand and one and that's within the record so you have all those three three items the fact that this court said by punch seven seas not a citizen you have the fact that he previously claimed he was an alien and you have the fact i forgot the first one i mentioned who will change his story to tailor whatever his claim is at the time and his mother is an enabler i'm frankly surprised that judge silver did not make an adverse credibility finding with regard to the mother because i don't know what to believe with regard to her story and i agree with you that if the aliens evidence is not believe a ball then i don't see where the district court erred in determining that he didn't meet his burden to rebut the statutory presumption i tell you what my problem and i agree with that that's exactly right which my scorecard i agree with judge what judge tolman just said and we don't deport united states citizens and so what the other thing we have is not an absence of a finding we have a judicial finding after a hearing in a trap where we don't go that that the fact of michael's father who was michael's father is an unknow fact it's not that it's not that we don't know what it's that it could be it couldn't be determined on this evidence so he wasn't legitimized and under the statute if he's not legitimize he's a us citizen you can tell the senator to jail for the aggravated felony but you can't deport him want to look at the citizenship proceeding and you're not looking at the removal for now but all those who really are trying to deport the guy said that's a week we keep asking to answer that point though is understandable but in all those cases they were all removal proceedings that were transferred to disappoint in the exact that's a citizenship determination and this report you found that there is a genuine issue in fact of whether he's assisted you transferred it for that that's a citizenship determination that came back saying he's not a citizen so now you you have the evidence that we're talking about and to the question here you have the fact that he's not a citizen and you know that you have the fact that he didn't challenge his aggravated felony charge he's got the removal so the question is is that enough combined with the fact that he previously said under oath s citizen will be deported sorry you're not imposing a lower standard proof the overall standard of proof at the end of the day is clear convincing evidence we have to prove by clear convincing evidence that he's removable but when the presumption of foreign bir you do so let me ask you the same question i asked him is true we now have the district courts determination whatever it means would the best course of action be for us to remain and this matter to the board and perhaps let it remain at it to the i j a to reopen it is there any additional evidence that the government would then want to introduce in light of what the district court has the term ok so our position is that on the record before this court need not we manned that it could make a decision that the government has proven by clear and convincing evidence by virtue of all the factors that i mentioned should the court not reach that standard or find that the government has not reached that standard better said men may be appropriate for additional fact finding to see if the government can now prove by clear convincing evidence to the immigration judge based on a just a court's opinion that they found he was not a citizen that in fact he's he's removable from the united states what's the what's the i j a going to do there's a trial in district court federal trial that's why i don't think it's necessary to remand it because in fact you're right there was a dyno vote today i mean no one's arguing that the district court proceeding was deficient in any way that death here but what i heard you saying response to judge parker's question since you had a full trial you really don't have any additional evidence that you would do so if we send it back to the age states and employed the correct standard in doing so and therefore that is his only defense to removal that he's a citizen he had a two day bench trial to prove to the united states court in arizona that he was a citizen he failed to do so that's all that this court needs to know you know but look it's that's true now or if you let's just say hypothetically that the drug component of this was out of the  that you are then offering urging on os would be won in which where this is hyper district court proceeding yes there's a substantial carve out from the government's responsibility which is ordinarily to prove by clear and convincing evidence that this person is not a us citizen and when we have a rematch and under your regime wall then it all of a sudden lowers to preponderance of the evidence which goes it seems to me against a lot of both circuit and supreme court  on your last point that's where we disagree yeah well it's the burden of people who are show me where i'm wrong twelve fifty two b five says that it's exactly contemplated by congress in this particular situation where his citizenship is in question it comes to this court and you guys said you're right or a suicide thing i said that this is an issue of fact is he is in the united states you said to back a transfer of no twelve fifty two b five the standard under preponderance of evidence as is the standard you said that in several other ninth circuit opinions you also said the bank panel i pod i saw back panel also said that there are only three standards of proof so that approach is you know that ordinarily if i'm in removal proceedings all along i have a i'm in a regimen where the government has to prove since the consequences or the u s citizen may be sent back to wherever clear and convincing evidence then just by the happenstance that there is a some unresolved issue of fact and it gets turned back to the district court that important elevated burden of proof is out of the window and u s citizen gets exiled on a preponderance dander however your honor yes there's the overall happenstance a petition or responded finds him or herself in this district court proceeding  on my scored card to second guess the finding of fact made by the trial court where she said he moved the ball back to the fifty yard line however she found out that's what she found and that rebut the the according to your posing counsel that response is that this is precisely what is contemplated by congress in these type of proceedings that the this court found there's an issue of fact with this is in ship that is only defense to removal it gave him the two day ben point then i'm going to let ms true get up for a couple minutes or my last point is that no other court as looked at these proceedings has indicated when they focused on this exact issue whether the the standard is substantial evidence as true i've only got a couple of points to make the first says i would just want to reiterate and would be the supreme court said and i'm quoting this this would be would be would be yes you know deportation order may be entered unless it is found by clear unequivocal grounds for deportation are true well that's true with regard to board proceedings but what's your response to the statutory twelve fifty two five invocation of the declaratory judgment  i do agree that if he is trying to affirmatively seek nationality or naturalization in the united states he has a program by a preponderance of the evidence but the fact still remains that when this case returned to the ninth circuit it returned to being and removal proceeding and in those cases the government bears the burden and that includes proving alien edge so you're saying that the  district court judge applied the correct burden of proof but once it got back here once you found your notice of appeal that shifted and got lower it it was just a different proceeding i think that's what i find it i mean this is not the district court i will agree with you on that but you're saying that once you fall into notice of appeal your case trying to back into a removal here once so a few months ago before the district court the standard was proposed endurance of the evidence now up here it's substantial evidence is that your position yes because there are different proceedings and so hol then are we possibly in a position to review the district court's proceedings if the district court correctly applaud a burden of proof ultimately the case was remanded to the district court to decide the citizenship issue and reach a conclusion about the disputed facts relating to that issue which goes to both the question of whether he's a citizen affirmatively and it goes to the question of whether the government has not its burden to remove and deport ten but i think it's why shouldn't we treat that as a piece of evidence or one of the elements in the removal proceeding that has been decided adversely to the alien so that when clear and convincing evidence that he's deported i just don't think the government has met that burden because he's only the government is only proven that there's a fifty percent chance that he's not a citizen and that burden well the government has on the other than that it has won a judgment after a two day trial assuming the declaratory judgment x standard applies that declares that he is not a citizen and he has now stopped before us to argue any differently  derivative citizenship arises automatically so if mr rose were able to find evidence tomorrow that mr rose never met harry rose was not his father he's a citizen and he could actually actually if that were to happen he would have been a citizen is that we will look at the findings of fact entered by the district court is sort of a the good news is i don't think we're going to hold have a lot of twelve fifty twos that end up exactly on the fifty yard line but this one did and so what's your best argument in response to judge thomas question might the point i was trying to make is because it's automatic it can't give it can't be given a stoppel effect because if michael become comes up with evidence tomorrow he's a citizen and he can prove it and he can apply with all this government lawyer what additional evidence do you now possess that you would introduce tomorrow if we reopened if we do not have any additional evidence what i know but if you go back to jamaica you may be able to locate family members of harry rosen definitively prove that he has a relationship th i think we understand the two sides respective positions mr i do want to thank you for accepting the court's pro bono appointment we very much appreciate it we really value your help on this thank you for an afternoon very very good job y