case and in this case the law is clear and so are the facts and the evidence we respectfully believe that the district court decision is just simply wrong and we are asking this court to find that mr ali met his burden of proof by a preponderance of the evidence that he has satisfied all the requirements to be naturalized as a u s citizen we believe the court heard in many different ways and in particular in finding that mr ali had not testified or providing any evidence regarding the notification process or procedure is utilized by the syrian government one thousand nine hundred four mr ali testified in great detail about the procedures in terms of getting his initial non diplomatic position and his subsequent diplomatic position and his testimony was unrefuted unimpeached and unrebutted and in fact the evidence he provided is consistent with that testimony in addition testimony about whether or not or when he was afforded the diplomatic immunity is in privileges correct he testified as to why he left the united states on november sixteenth eighty four that was to apply to first take it a course which if he passed would allow him to apply for a diplomatic position on understanding rights what matters is what the department of state says and not what anyone else is including the government of serbia or why am i wrong about well it's it's not with the stated that the official records of the office of foreign missions in the k that here soon his duties as a diplomatic agent on november the sixth the nineteen eighty four that's correct mr such were the department of states also testified that he was looking at a computer screen that told him that he didn't know when that date was entered who entered it or how it was entered or what evidence was used to enter that date essentially he just read off a screen and i said i certify that my screen says x so he knew about as much about that date as his gardener or his housekeeper does he just reading off a screen and he testified that there are three so work your dental and that's what controls this not what the department of state know what controls the evidence in this case and here's what the evidence says because mr c gross said when a person is in the united states and they're changing from a non diplomatic to diplomatic status there are three separate things that can occur one is that the partner state receives eight official notification of appointment by the foreign government in this case syria notifying the department state hey mr ali's becoming a diplomat that document nonexistent council let me ask yes before you talk about the evidence let's step back a minute and let me ask you if you can point us to any case law that supports the conclusion that the state department's certify certification of at a community should be treated as anything less than conclusive because seagram's has given that so before we even look at the evidence what case law supports the conclusion that we should look at the evidence that we shouldn't simply accept the state department statement as conclusive your honor there's nosed case law on point specifically saying that but what the case law says in the absence of indignation that the information is unreliable it must be accepted as reliable and in this case mr lee has provided evidence that the information is not reliable and that evidence is the absence of through the three only documents that mr c wrote said should be in the record those three don't exist the government has conceded they don't state department there's three separate documents the of there's an official notification from the syrian government to the department state saying we're appointing this gentleman as a diplomat that's option one doesn't exist option two is a notification of change meaning this individual is now a non of the mere fact that a foreign sovereign says we declare jones to be one of our diplomats doesn't answer the question doesn't it well doesn't the state department have the power to say thank you very much to the government of syria we're not affording him diplomatic immunity correct the raga of the united states department of state isn't that right that's correct but they have the mere fact that the foreign government seeks a diplomatic immunity for someone doesn't establish that he has been given the immunity that's correct or looks what i'm asking is what does the state department normally say when it's afford a diplomatic immunity typically they will up a court diplomatic immunity unless there's evidence that a contrary they don't want to but how do the how do they do it they say here's a document he's got diplomatic immunity and they send it to the syrian government though it's not a way around in their file what do they do the other way around the syrian government sends a document to the state department saying we want to make this guy a diplomat and the state department receives a document and decide note neither of which exist in this case that's my point and under the vienna convention there's two separate ways diplomatic community to assuming you're right that that's is in the record it conceded just not the record there with me the district judge then said ok i'm denying summary judgment let's have a hearing you can put on your evidence including your client state department will put on what they want and i'll decide based on this evidence whether you've established your burden on the burden plainly rest with you having said that the district judge cites to at least three things in rendering her conclusion that he was afforded diplomatic immunity on november sixth before the daughter was born one the state bar bands tomas database which represents the official record with respect to diplomatic immunity maintained by the department of state and that says that ali had diplomatic immunity as of november sixth eighty four the second item was the hand written note haitian on november sixth of terminations which maybe is insufficient standing alone to qualify as proper notification but she cites to that as corroborative evidence if i have it right and third the state department has consistently determined that the daughter is not a u s citizen going as far back as one thousand nine hundred eighty five she references that and she concludes that he was afforded diplomatic community as of november sixth whether it's in your rebuttal presumption or not she says based on these facts that's my finding one is that reviewable only for clear era and if it is have you shown she wasn't free to reject your client's account and accept these data to reach that conclusion first of all it we believe you are it's a mixed question of fact whether the state department has afforded diplomatic immunity to a foreign diplomat that's not a question of fact it's a mixed question well it's a mixed question in the sense that did they follow the procedures that are required to do that and if so you know i think that's plainly a legal question but i'm asking a different question than what procedures they employ i'm asking whether or not a finding by a trial court judge after taking testimony at a bench trial that jones was afforded diplomatic immunity as of this date isn't that a finding of fact that is a finding of fact but if he make that finding of fact in this case yes premised on a conclusion of law it's premised on a conclusion of law and the conclusion of law was that despite the fact that he didn't follow any of the procedures that are required despite the fact that a value the regulations the spike the fact that the evidence doesn't exist she still found that i mean by your theory you are entitled to summary judgment as a matter of no i don't and there you have a tense would have been irrelevant that they put on i don't agree with that because i provided separate evidence which is when he got his a one visa power we got the a one visa both and how we enter with the a one of these all of which took place after the child's birth and which are consistent with the second prong of the vienna convention which talk about individuals who are abroad and in which diplomatic immunity attaches once they enter his story his version of the facts the evidence he presented is entirely consistent with the other prong of the vienna convention and their version of facts is entirely inconsistent because none of the evidence they should have and should be in the is there they have the evidence before they have the evidence after but the most important critical piece of evidence that's supposed to exist that would show a change in the united states doesn't exist how is that possible to the district judge accepted your pr promise she didn't consider the sort of education by the state department to be conclusive she accepted your your presence that there was indicia of unreliability and that she should take evidence and then she took evidence and then she made a factual finding about whether or not he had diplomatic immunity i don't see how i don't see where the question of law is is there i see that as a question of a finding of fact by the district judge and assuming your honor that it is a purely from a pure finding of fact we believe she committed clear error and making that finding a fact because it does it belies common sense as to what took place yes in naturalization application the doubts are is supposed to resolve in favor of the government but you can't put aside common sense and say well you know and have to break wire the plaintiff to rebut every single potential possibility that exists that that may be out there stunned partment made the exact same conclusion way back in one thousand nine hundred five correct isn't that strong evidence that that he did have that diplomatic immunity only a year earlier the conclusion in one nine hundred eighty five and i can refer you to the exhibit your honor it's  the government it would be  joint exhibit f which is the passport application from nineteen eighty five your honor and there was much discussion in court about that they denied her application because they said she was on the blue the blue list on the ember eighty four so if you look at the basis for this denial that he was on the blue list back then they've now can see that he wasn't on the blue list back then so this denial was wrong based upon when it was you start when you started your argument you said there is a missing document correct  at appendix ninety nine page thirty six lines ten through page thirty seven line four conceded that none of those three documents exist and one of the documents they have is the notification of terminations from his non diplomatic position and they're saying in that morning he was terminated and that afternoon he was appointed but the appointment document doesn't exist they're relying on this little handwritten note we don't know when it was written by who and why and they naturalization i think this is a clear factual question and it was whether the united states afforded mr early full diplomatic immunity and privileges zero in the official state department document that would resolve the matter conclusively that's not in the record in this case that's missing the this is there is a notification of change your honor if i could clarify what the appellate counsel was referring to and what mr seagrass was referring to in his testimony when ascending state notifies the receiving state and in this case these are the procedures then the united states as a receiving state uses at the time in hundred four it used a d s three ninety four which was a notification of appointment it d s three ninety four essay which was a notification of terminations or they would accept a diplomatic note which is essentially a written correspondence between the sending state in the receiving states that's how the department of state would receive information from a standing state and when an individual what their position was in the mission in their for based on their position would make a determination as to whether they are considered after that and then an official statement or an in the official state department record which is in the evidence in this case is the certification that is provided by the state department that certification is based off of the official us government record which is the thomas database and i thought mr c gross testified that i have ok and the department of state has its work that is is it possible that the date of the foreign country tells the state department that the person assumes his or her duties may not necessarily line up with the actual date that the person starts is that possible the state department when they accept it and they they basically and they start a fire somebody on that date that's the date that the individual is afforded privileges and immunities and so even if there are big even if they're in the state are going to say it is even if there is an error with that date that's the date that that state department has a cry to the individual i'm still confused about the procedures maybe you can help me and a foreign government says to the united states jones is going over to d c he's going to work in our embassy he's a diplomat afford him diplomatic immunity that doesn't afford him diplomatic immunity right the state department has to say on then we'll do it yes right what i want to know and i think it's essential question the judge wilson is asking is what documents or documents record that decision by the department of state the document that records that decision is the thomas database that is that secretary nothing else i thought that there was something else maybe i misunderstood this so you would look to the tom database as the singular guide to whether or not the department of state has certified he's got diplomatic immunity yes that is the official government record of when diplomatic immunity was afforded ok and if you look at the thom record here it says he had immunity as of november six yes your honor and what was the reason for hearing the is that eerie bottle normally courts i mean court should find that that certification that a certification based off of the thomas database should be accepted as binding on summary judgment because the government was a moving party the district court at that time determined that it was not binding and that she could look behind it i think that the government is considered a legal error the government has consistently said that that certification should be accepted as binding on the courts and we believe that that was an error by the district court judge so if the department of state puts in a tomos database we record that shows is afforded diplomatic immunity on january one two thousand and seventeen and in fact jones had been here for five years as the deputy ambassador from a foreign government the district court would not be able to go behind the statement in t and look to see whether that's right or wrong well i think that record has no power to review anything beyond asking a single question whether the toll most base records that date well i think that would depend on what type of evidence is produced that the sending state had notified i thought it was an eerie but a bowl if the tomas base constitutes the certification and the tome of space is unreviewable by a court of law notwithstanding whatever other evidence there is that's the end of it and the court has performed its function of judicial review simply to ask what is the total base reflect what's what is the what is in the certification and i think that is the certification that is only the toma base is the mechanism of recording yes and if the tomo bases i on this date that's the end of it the district court can do no more look no further regardless of what evidence is mounted that suggests maybe the toma base made a mistake i think that the certification should be binding on the court yes so they got the wrong date to put down january one seventeen when they should have put them january one two thousand and twelve see i thought what the trial judge was trying to say here is the record was murky it was unclear she was not required to accept it to see dixit the assertion by the state department when there was contrary evidence cut the other way therefore she said i will have a hearing put on what you statement in the database thomas system with the other cases that yes the department of state certification was binding on the court regardless of anything else that might be there though those cases say that's conclusive you can't look at anything else i think that those cases have held that that certification is binding on the court but does that mean that it should accept the certification on its face conclusive as conclusive that it even though the information may have been migrated to the data base the data clerk had a different time yes i mean in this case what we have is we have evidence of data migration but we have a database that clearly reflects november sixth we have the dates of that information was entered and there is no evidence presented that the migration anything occurred in the migration other than the data went from one database to another database and that a data clerk entering information that there is any evidence that that data clerk committed any errors in entering that and entering the information into me let me understand the procedure what role does the notification of change play in the recording of the determination by the state department that someone is afforded diplomatic community so if upon said the notification change it will normally come so it would be in washington so a sending state would send a notification of terminations and a notification of appointment on an individual who works at their mission to or they could also do it diplomatic no two informants between the notification the change in the notification of appointment or those two separate documents there there are three there are two there are three different forms of communication at the time and what happens how does this get recorded and so that in the home is database so in one thousand nine hundred four that information went from a sending state to the receiving state to the department of state and accreditation officer would receive that information verify the contents and then enter the information into the two almost out of information would be what appears on the notification of appointment that the s three ninety four as well as the terminations three ninety four a right it would it all for those things would go into the base what would go into the database would be the information that's contained in there in other words if a position was if an individual is being terminated from a mission it would indicate the date that the individual terminated if it was going to be a termination and then a subsequent appointment another where there had been a change in the individual's position it would record the terminations under that position and then record the new position the better evidence the three ninety four and the somebody imports it into the base who does that it at the time it was it was an accreditation officer at the time of the migration we have we don't know i mean it's in the normal course of business who from the department of state makes the entry into the thomas base that reflects the composite of the notification of appointment and terminations or the diplomatic note at that at the time it's an accreditation  keep saying at the time because now in the present all of this is done electronically and it's done via unless a it's done electronically unless a sending state decides that they want to do it via diplomatic know where a sending state nowadays goes into basically a public facing website that they have access to they will enter the information into that web page it so generally handwritten i mean there's a physical document depends on what that electronically it now that information is transmitted electronically in one nine hundred eighty four it was a hard copy document that was either typed written handwritten that was communicated to apartment that would be one in disha of affording diplomatic immunity right that would be not affording diplomatic immunity that would be a communication from a sending state to the united states and what reflects that you actually agreed to give diplomatic immunity to somebody the thomas database is the record of when the united states afforded someone diplomatic so what does it say we he position and has other information i mean the thomas database is respond exhibit three in the record and you can see what that information is but that is the record i think what you're looking for your honor is how does the united states then transmit to a standing state that in fact they have afforded diplomatic immunity but that's not the record that the no i understand that and so when the response to them is different from when you recorded yourself you recorded in the database suppose the coming back to what i was asking suppose the clerk makes a mistake this is a mistake in the entry they just get the date wrong and let's suppose the foreign sovereign didn't do it electronically but they did it with a handwritten note and the entry date is erroneous li recorded in the database is that reviewable by a court that's i'm not saying that's what happened here i just want to know as a matter of law whether the beginning in the end of the story is simply looking at the thomas place or whether a court before ming the function of judicial review can go behind that that in an appropriate case i think  the question is it's that when you say the thomas database what i'm saying should be binding on the court is the certification by the department of state as to those are the dates that the individual is afforded diplomatic immunity so not responded to exhibit three the thomas database but it's responded to exhibit two the d o f certification that the department of state has looked at the official government records that exist for the time and i've said this is the dates that the individual is afforded diplomatic immunity honour's the government is changing their story mr siegel said notification of change notification appointment diplomatic note now mr clearly saying that a notice of terminations is suddenly said that if i fifty six and fifty seven of his testimony he did say that but that's based upon a data clerk as testified by the department state i t guy that a data clerk entered into based upon a notification of change appointment or diplomatic note none of which exist in this case in other words you have the paper back then you had the paper going back and forth then they took what's on the paper and supposedly put it into a database so if what was on the paper and what we have today and if we can look at exhibit joint exhibit d which is when they first notified still remembers the first notified the state department that ali was becoming into a non diplomatic position you have that document from one thousand nine hundred one you have joint exhibit e which is the terminations from his non diplomatic position it just says on the right hand side promoted to it doesn't say when it doesn't say who wrote it so presumably a data clerk looked at that and entered nov six it doesn't mean it occurred on the ember six we don't know who wrote it and mr c gross can't even authenticate the contents of the database and years old of the time so all he's doing is authenticating what he sees on a computer screen and if the evidence doesn't make sense in light of what's on the computer screen of all the evidence mr ali has presented including when he got the visa and how he got the visa contradicts that and if if any of us truly promoted to attache on the ember six then right next to that joint exhibit would be a notice of change or north of appointment as a diplomat that document doesn't exist but is supposed to take place on the same exact day why would they send a notice of terminations and not at the same times and in order to appointment it's it belies common sense the judge found three things to sustain her decision that thomas database was reliable well we have evidence countervailing that that is not necessarily reliable because the facts in this case as testified by mr ali and when he got the visa come completely contradict consistent with the vienna convention they handwritten notation with the government has conceded isn't a diplomatic note and doesn't constitute diplomatic immunity or requests for diplomatic community and the denial of her passport application of  application eighty five based on mr ali being on the blue list and the vendor of eighty four and then the state department has conceded that he wasn't on the blue lesson of amber eighty four that was a mistake so if you look at all these things until talib and as mr curly said when you asked judge marcus is there any type of review a federal court can do to look behind the thomas database he says it depends on what type of evidence the sending state sent and in this case there is no evidence of what the sending states that it doesn't exist because it didn't happen the way they say it happened it happened the way mr ali said it happened and that's corroborate not by theory but by fact and the fact is he left for a month took a test passed it got his visa is a one diplomatic visa the first ever that he's ever gotten after the child was born and entered four days after that also after the child was born that's what happened and that's consistent with the vienna convention exactly what it says for someone who's outside the country as to when diplomatic immunity attaches to your own thank you counsel thank you both this court will be in recess until nine am tomorrow morning