right so we are privileged now to call the last case of this session case number seventeen dash five zero three seven nine cando rios versus sessions and we'll hear from mr cammy first in admitting the prime evidence against mr candela which was a really a hearsay record and not a birth certificate as alleged by the government i'd like to spend  oh first part here discussing the burden with you all the burden should have remained on the government in this twelve fifty two b five b transfer because the statute required a new hearing on the nationality claim and as this court rightly recognized in lopez case in the mark as marcus case that requires i don't know is in alien to begin with we know from the supreme court's precedent in would be that is eight issue on which the government must carry the burden and it must carry the are citations made by the government that you therefore haven't given us insight into and i'm thinking particularly the devorah gets opinion from our court and then your principal brief discussion of metron ik which seems to me to be essential is in a foot there it is factually very similar you know it looks very similar the difference is that in divorce is the alleged deportees brought the claim under two and i think that that is one reason why it's different the second reason is that divided as was decided before would be and so when that's a substantial question offering to us now if you argument at the podium is that we should construed to vargas to have been abrogated by would be and or medtronic is that your principle argument because the statutory language seems to be the same what i would say  and the government's brief kind of cites a whole host of those cases in the passport cases for example these also or you know so many different mr marbury's asking so many different whenever benefit so burden follows benefit you're not you're not what you're not seeing this is abrogated you're saying it's distinguishable yes your honor i think it is distinguishable on the basis of statutory procedure and that this  new statute was enacted after would be congress knew what a new nationality hearing at the district court would have mitt and i  think that we have to assume that they wrote that statute which would be in mind that where the national the genuine issue of fact on nationality is is alien age that the district court if we're free it puts the ultimate question the ultimate burden on the government as opposed to the petitioner i think that you know that a circuit could come up with you know different kind of procedural steps if they wanted to but ultimately the question is if there is substantial credible evidence that the person is a united states citizen by birth will that the government must carry didn't even acknowledge it i would have thought it would be very significant here and i think it is very significant there are because that's what medtronic stands in the proposition it stands for is that the declaratory judgment act is procedural and it does not change the substantive rights of the parties with respect to burden burden is a substantive it belongs to the substantive aspect of the claim and so for the government to say well candela should have had the burden as if he had brought this case under fifteen zero three a or a declaratory judgment you know for the court to declare his citizenship misses the think the suggestion that you know the ninth circuit is on its own on this is is incorrect but i think that the burden issue  whether it's initially on the petitioner or on the petitioner after substantial credible evidence is met in both both ways in this case because obviously the court viewed the petitioners birth certificate a substantial credible evidence when it said in its amended judgment that mr kendall had made a prim regardless of whether berger is white isn't that in the story if he told mexican authorities he was born there then when he comes into the u s this is as more mexico when he's being removed from us he says are going to mexico when he's asking for asylum he says he's from mexico i would have thought that he sort other said he was born in the upstairs bedroom and his mother said no he was born in the ladies league and sir winston laughed it off and said you know bill i was there for the occasion i do not remember the circumstances leading up to it and so therefore he said i don't know here this guy to get every single legal advantage throughout his life has said one thing and so will matter to him and to that point your honor i think as judge rosenthal pointed out in an opinion garcia v carey knesset passport case she said the sincere belief that one is an american citizen does not make one an american citizen i would argue that the same must be true about a sincere belief that one is not in american senses especially a one time sincere belief and so well ok let's get to the often in the room so to speak this one time sincere believe is backed up with a birth certificate that predates the wine in the an american so that would seem to be a little bit different from just which room in the house is on morning i disagree your honor that is in the record that is that is the evidence in this case as the government stipulated on the record citation is sixty one that they don't that they be have no such documents they do not have a one nine hundred sixty seven birth certificate nor do they have a copy point they have some record from mexico saying that this man was born in november one nine hundred sixty seven in mexico but as the government's witness conceded on cross examination this could not have been created in the sixty's it would have been created some time after the ninety's and so i think that but all of these questions i believe the testimony of my client this purported birth record from mexico all of those are evidentiary questions that should be addressed under the proper burden of proof  judgment must be reversed because the errors on the bird if the court wants to address as well the evidentiary challenges we raised i think it is free to do so so that you know if on reaming you know remained that the judge would have some some guidance as to what to do with these evidentiary problems but i think that the elephant in the room as you called it judge james is still yet to be resolved now well i just don't know you're on because in the reason why this is important because one of these records is a fraud and so it was incumbent upon the government to at least bring the original certified copy of the record that they are relying on so should have brought the original or certified copy otherwise our best evidence objections should have been sustained or hearsay when the hearsay objection shipments estate but as to the question of if it was indeed their burden there is no question that the texas birth certificate is a nine hundred sixty seven record their governments and big trial courts assertions that it is somehow a delayed record  is really without any legal citation it is a nine hundred sixty seven birth certificate it is the closest document in time to this man's birth and so once that substantial credible evidence was admitted into the record at least very then the government should have assumed the burden of persuasion to overcome thank you your honor and it please the court benjamin mark moss for the respondent believe he turned general after a full and fair hearing the district court found mr candelario us not a united states citizen and that funding should be upheld for three reasons first the district court did not abuse its discretion in knitting into evidence the contemporaneous mexican birth certificate under of variety of hearsay exceptions most of which are not even addressed by those in council second the district court did not clearly err in weighing the evidence in weighing more heavily the contemporaneous mexican birth registration recorded just three days after the birth by his father more strong than the delayed texas registration offered twelve days after the birth of purported to record not by his parents not by his mother's father thinks it's a little weird as well maybe it's not i guess i'm nothing is impossible but that would seem unlikely and that leaves the third reason which i suspect the most interesting question to the court the issue of the burden of my citizenship i'd go find that improper that but i don't have any control of that i don't have any personal knowledge of that all i can testify to is my parents told me i was born in you know x y z in this hospital in florida and here's a birth certificate that says that but if somebody popped up with a birth certificate from some other country with my name on it i don't know how could i refute that your honor i would hate to imagine that your hon we placed into removal proceedings yes i went to in a scenario where a person is confronted with an allegation that this person is not a united states citizen and there's evidence that they have a full opportunity to be heard  the government bears the burden proceedings ministry contacts to be sure of showing us slightly different from citizenship there are overlapping but not identical showings but the government has that burden of coming forward to show you are not a united states citizen and at that point the government makes that showing in the proceedings again not where we are here in the district court but the removal proceedings if the government makes that showing then the person who is alleg to be u s citizen can come back with whatever evidence the person wants so to answer your question most directly or you could bring in relatives photographs records of your birth that's what i was going to say is interesting in this case would seem like one of the best ways to prove that i was born in florida is that my father was working in florida they had a place of residence in florida and their records of that kind of thing again certainly they could have been on a cruise somewhere else i mean i'm not saying that that's dispositive but one would expect something surrounding that and we have none of that here exactly your honor this is why this case is not appropriate vehicle to address the burden of proof issue certainly would support the issuance of a decision clarifying it we believe in the government's favor but if you look at the record there's just not a sufficient basis i mean they said they were working in america it wasn't just they came over for the day and happened to deliver a honor right and that's what i'm saying so you would expect like my father was working in florida there's records of that and so again all the surrounding circumstances if you will support all of the support that birth certificate support that story etc whereas here i now realize again that the work they were doing may likely different from the work my father was doing but that's fine you still would have something that even persons here without benefit of proper paperwork create things have utility bills they have rental agreements i mean there are still papers that are created from living in a country whether or not you're here with proper paperwork that's correct your honor and the government's discovery request and all sorts of documents like these and none were produced no vaccination records for the child when he was a child he had his education in mexico which  was baptized in mexico at a young age we just don't have the circumstantial evidence that your honor is referring to that makes this case even anything like the closed case and let me also address a related point about why the burden of proof is actually not even necessary to reach in this issue in this case the district court amended the judgment at the petitioners request and in that and then did judge made a couple of additional legal findings legal conclusions  by the remaining evidence in the record so we have an over the burden of proof wasn't sponsored here as it might have been in something other case exactly but if the court is interested in discussing burden of proof we we do think that that is a fully controlled issue by this court's case law and the court's case law is kind of in several categories there isn't a case squarely addressing which party in the circuit bears the burden of proof of the five case but we do have t concept quite different because they're the petitioners seeking the benefit your honor but the bird the bertha cases as well which i meant to mention devour ghosts and other cases where you say other but that gets really important because you're trying to say we could do this if we were to do this i think we'd be creating at least one split is that right you're just under the split such as it is already exists ok what court or what court has said the burden is on the give me the question again your phrase it this way the argument that a person who claims that they have a birth right to citizenship still also has the burden to prove that seems very problematic so my instinct would be we need to reach this issue to be very clear that that isn't correct and so so therefore i would have said that there is no circuit that's made the proposition that you're urging us to would rely and that's that's a footnote in isolation but and i apologize we should have we should have addressed it more fully your honor of course but the principle is divided guess was a declaratory judgment action under fifteen zero three ok but we're right away then you don't reasons that but we have case law saying that end of our guest in the the burden in that situation of birth citizenship claimant having that burden and that is very similar situation to but we didn't have would be it would be your honor addresses the burns in removal proceedings no but the very twelve fifty two just says this is judicial review of a removal orders so i don't see why the burden would be on the government at the root order and then into novo review it would somehow have to flip to the petition if the flip provision is purely procedural it doesn't change burdens there are there actually are a couple response yeah let me let me lead into the area we haven't talked about yet  which is the difference between citizenship and alien it before the in the removal proceedings as we talked about a little bit earnest on the government to show aliens which is which is slightly different from showing citizenship because an alien showing all the governments show is you are not from here on the other hand the b five statute congress said the question's citizenship which is a slightly different thing s so even though there are would be for instance does talk about delia age we don't have a case saying that the government has to prove citizenship but what we do have is to fergus which which is which says the citizenship claimant has the burden of proof and so we believe that that precedent applies with people for the ninth circuit you say is incorrect statutorily we disagree with yes your honor we disagree with the ninth circuit's transplantation into ok but let me understand your position is that even assuming argue window we adopted the ninth circuit's approach which is a burden shifting one yesterday judge did that in the amended judgment by saying you did meet your prim did it in flip but nonetheless did it and said now the government have the burden to come back with evidence and having and and did it so in other words although not framing it in the same way as the ninth circuit the district court did consider the burden to be on the government and found the government met that burden so we're looking at the harmless error issue of whether or not the improper placement of the burden even assuming that the burden was improperly pace whether that made a difference we would have to say it did not and sometimes it does or sometimes you can't tell because the question is when there's a time time i proponents of the evidence it's a very close standard anyway so i like free beyond reasonable doubt but where there's a t who ever has the burden of proof loses and sometimes you don't know if the char fact found a topic but here we know the judge did not find a tie because the judge said i'm putting the burden on the government to come back and i think the mexican birth certificate coupled with all these other affirmations of mexican citizenship does rebut the evidence and therefore and meets that bird so even if it was a convoluted way the judge got there the judge did put the burden is that your point so you're saying it's harmless error even if we were to now let me ask this if we were to conclude that of our guest does not govern here it's just persuasive or whatever the right term is what is your argument for us adopting a standard that the burden is on the party claiming citizenship in this context the declaratory judgment establishment context as opposed to the removal context well your honor one argument so we already know from this court that there is no burden shifting and we have other cases from other court i can cite just off the top and i guess i'm in appreciative cases are obviously important we're bound by them we're bound by them i guess i'm trying to say we're riding on a clean slate at least as far as that this circus concerned what what is the policy arguments because i think the concern is getting back to my ping and the winston churchill point or whatever i don't really kno know where i was born because i don't remember it and so i'm going off of a lot of very strong evidence that supports you know florida and i'm sticking with that but if i had to prove that would i turn to birth certificates you know bob we've been down that path so then you have the government saying well just for fun we've decided we don't like katherine against rulings we're going to try to get rid of or we're not going to deport or that would be too easy we're going to just come in and take away your passport and all of these and she's going to have to come in and file for citizenship then one that seems like a i don't know it just seems like it has the potential for abuse that's i think perhaps underscoring what chicken since point is  this i think your honor this comes back to the difference being a citizenship question versus an elitist question and that's what congress cho i could understand if we didn't know i would agree the general rule might be that but here we know the judge said even if the burdens on the government in essence the government has met it so then why would we send it back i disagree judge haynes and and the reason i disagree is because if we read the original judgment together with the amended judgement we just cannot reach that result in particular i'd asked the court to look at paragraphs two in three of the original judgment and that's on record site page forty and then look to the courts amended judgment i think is paragraph six it's on page forty six of the record and what i would note about those who are friends of the judgment is this it was not only mr cook the trial court did not only impose a preponderance burden on mr  never amended that portion of the judgment and so when he immense the judgment later on record in a site forty six the most plain way to read this is that he said oh yes i recognize admit you were texas birth certificate as making a prime a facia case but it is rebutted by this other evidence but if the standard he is using if the standard he's looking that question it is that i'm going to resolve all doubts in favor of the united states against you it the court there probably rightly recognized that there is no burden shifting when it comes to a passport the interest in a passport case is very different than the interest in  removal context and so of course it would make sense in the fifteen of those three eight cases to say there is no burden shifting this is just you present your evidence you have a preponderance burden you need to meet and we don't go back and forth and that that bahraini decision i think the supreme court made the dividing line in the line is that you know whether the shoe is on the other foot and what the supreme court said about th burden that it was endorsing in bahrain that when you have a congressionally granted citizenship when the congress says this is the way that you can become a citizen there is great deference to it discretion there and so the court requires the claimant to prove their eligibility for that statutory citizenship and is going to resolve all doubts against it that's just not the case with a constitutional birth birth right ok thank you hearing your