case number seventeen four zero four six usa versus mohamed i met argument not to exceed fifteen minutes per side mr newhouse you may proceed with the appellate thank you very much thank you ron this is an appeal from an order from the united states district court for the southern district of ohio wherein the court revoked the citizenship and ordered the extensively to preach and teach as part of his religious duties he emigrated to the united states in one thousand nine hundred six he applied for citizenship in may of two thousand  two with english being his second language he employed the services of a translation service to help him complete the end four hundred application that application did not reflect mr ahmed foreign travel mr ahmed received a letter notifying him of the date of his interview by an adjudication officer for what was then the ins that letter instructed him in bold print and all capital letters that he must bring with him to the interview his passport mr ahmed complied with that directive appeared for his interview before  tion officer yvonne jarrett on february twenty seventh two thousand and three he testified that he provided he is passport which showed extensive travel to many places around the world but including arab countries and countries in africa there is no copy of the passport in his file the file maintained by the i ahmed was admitted to citizenship on march two of two thousand and three over nine years later in october of two thousand and twelve the government brought the current lawsuit which is the subject of this appeal the case was tried to the court below the standard of proof for the government to prove its case under eight u s c fourteen fifty one a is by clear unequivocal and convincing evidence the reason for this is state did his statement regarding travel had no bearing on the decision to ward citizenship i'm struggling with understanding  light of the statutory requirements to be eligible to naturalize i think your honor that that there isn't an argument that travel is not pertinent to the question  of eligibility for citizenship the statute quite clearly sets parameters around that but in this case your honor the adjudication officer ms jarrett testified in her deposition and then confirmed at court that at trial that she had so testified that at the naturalization interview the only reason she would not place a copy of the passport reflecting the foreign travel into the file maintained by the ins is because she made a determination that the travel reflected there in it was not material to the question of whether the person should be admitted that was her testimony in her deposition have her standard operating procedure yes your honor and her that's correct your honor she had no recollection of the actual interview so your honor in this instance we have the government's key witness the education officer testifying in deposition that the only reason and that's how she framed it that the only reason that that passport would not appear in the file for the applicant was because she had made a judgment a determination that the information reflected in the passport was not material to her decision because the travel in this case would have been relevant because of the volume of travel  she testified in the deposition that the only reason that that would not be in the file list that she had made a determination that it was not it was not relevant that was her testimony remember the reason that the passport was not in the file was because it was not shown to her now when we have those two conflicting versions of events from the government well that's the heart of being equivocal mystere equivocated on the one hand she said that it's not in the file because it wasn't material on the other hand she said in accordance with her standard practice it was not in the file because it was not shown to her so wasn't there even some testimony about the possibility that documents were lost or removed from the file certainly around her there was extensive  biographical disclosure statement that was a key element and what was interesting your honor was that the adjudication officer in reviewing the file had made notations in the file of her review of that biographical statement and then the biographical statement wasn't in the file so there were other documents that should have been in the file for example the letter notifying  ahmed that he should appear for the interview and must bring his passport the testimony was that that letter is put in the file it wasn't in the file there was testimony about really lax file handling practices where files were piled up sometimes they couldn't find the files when they were to conduct interviews they were under tremendous pressure because of the huge backlog of cases and they were doing twelve to twenty four of these interviews a day interviews where the applicants were told well this process will take about two hours if my math is right that means a forty eight hour day right so  the evidence was that the file handling and the materials that should be in that file that should reflect the disclosures that were may by mr ahmed those materials were not in the file they came up missing  unreliable they failed to reflect many years of the existence of that file and he had testified that you know these records show the entire history of this file wherever it was throughout its entire history oh but there were several years of the existence of the file that were not accounted for in those chain of custody records so  were misstatements in that application now the testimony of mr ahmed was that he appeared at the translation service he gave the man who was helping him on his passport the interview lasted ten or fifteen minutes the man filled out things turned the file application around and said sign here and our client signed there argument actually is what we're saying and that is when he was in the meeting with the translator he didn't read the form it wasn't presented to him to read he simply sign he probably should have done too and that is that was wrong he should not have done it and we can't argue against that of course but then he comes to the interview and he meets with the officer of the united states who's going to his passport that discloses the foreign travel and he hands it to her now she can't rebut that she doesn't remember where she said she subsequently says she didn't get it because of it was proven that she would put a cop person citizenship away based upon speculation and that is exactly what that is your honor that is exactly what yvonne jarrett did when she have not been shown the passport not withstanding the evidence to the contrary so your honour's we believe that there was a failure on the part of the government to present a clear convincing clear unequivocal and convincing evidence to support their claim under eight us c fourteen fifty one a and we respect lute requests that the court reverse the decision of the district court thank you thank good morning may please the court timothy belsen on behalf of the united states in addition to answering any questions the panel has this morning i'd like to focus on three points first the district's factual finding that mr ahmed himself was responsible for the misrepresentations in his application second to dish courts willfulness finding and third the district court's procurement analysis on the first point the district court correctly found that mr ahmed himself misrepresented foreign travel i'd like to point the court to page sixteen of the district court's decision in which it stated quote the court finds that the misrepresentations are defendant's now withstanding his claim that he did not review the completed application this finding is supported by clear clear evidence in the record and cannot constitute clear air on appeal most importantly but not exclusively i'd like to point the court to the two certifications that the defendant made on his naturalization application as the court is focused on there were two first one before he submitted his application that appears in part eleven on page ten of his naturalization application in which he stated under penalty of perjury that the application and evidence submitted with it was true and correct second and i think even more tellingly part thirteen which mr ahmed signed after his naturalization interview he again certified under penalty of perjury that his application and the contents were true and correct but there's some different language in part thirteen which i think is even more telling part thirteen includes the phrase i know the contents of this application mr ahmed when he signed part thirteen read that certification he testified at trial that he understood part thirteen and part eleven the two certifications to mean that he was certifying under penalty of perjury the accuracy of his application and use your position and that signature demonstrates that he knew that he was making misrepresentations in the application absolutely your honor that  certainly is our position that is not the exclusive evidence of the fact that mr ahmed knew what was in his application but we think that even taken alone that would be enough mr ahmed sort of if it's conclusive isn't that problematic because our case will all recognizes that an immigrant would have an opportunity to make a timely recantation and if the signature itself is absolute proof of misrepresentation then where does our case law go that recognizes that an immigrant has a right to explain an error or mistake or make a timely recantation well your honor i think here was not timely in the fact that he had submitted his application first material it seems to me that the district court irani of sleeplessness the burden on mr ahmed rather than where it should lie which is the government so  so how do you how did the government carry its burden to establish the materiality that travel yes your honor and i'd like to come back to the other evidence we believe supports the factual finding but to address your question of materiality and to be clear there are two separate elements here there's actually four under the country's standard materiality is the third procurement is a fourth separate independent element with regard to materiality as we understand the defendant appellant's argument here as he stated just moments ago it is not that travel is not does not raise a natural tendency to influence the outcome that's the test from congress he admits that trap foreign travel which goes to to at least two requirements for naturalization and as the testimony was at the trial and as the district found it goes to three different requirements for naturalization clearly it impacts and has a natural tendency to influence the determination by then ins now u s c i s whether to grant a naturalization application his argument is more of a factual one he argues that based on his own testimony he cured the misrepresentation and because he says he cured it it can't have been material because they ignored it back then but is now a legal argument and as come use establishes the question materiality is an objective question of law it is a matter of law that the court can decide under congress it is clearly met here for two reasons one it goes to continuous residence or requirement under fourteen twenty seven a one in which the applicant must show continuous residence for five years as a lawful permanent resident in its use doesn't justice brennan concurrence which governs here we require the government to show this is the disqualifying band and wouldn't that require you to have made some sort of assessment about the travel itself was it thirty months was it you know how how many travels away were within the five year period but you didn't pla controlling test as the parties agree the question is whether there is the evidence raises a fair inference of actual ineligibility that's the language from justice brennan here the government believes it met that burden and once it meets that burden even justice brennan agrees that the burden would then shift to the defendant in the case to show that he wasn't actually ineligible so the question is whether or not there was a fair inference based on the evidence in from the district court that mr ahmed was actually ineligible the district court went through that analysis it did not cite the language from justice brennan's concurrence it didn't use the phrase fair inference but if you look at the district court's analysis the district court looked at two different requirements pacifically the continuous residence requirement and then the physical presence require much a separate ind ependent naturalization requirements established by congress and it went through and it showed that based on mr ahmed own testimony there were thirteen trips in the five years prior to him naturalizing and those thirteen trips space in his own testimony was possibly longer than six i've read that testimony in that testimony so how long long were you at well mont maybe two maybe three maybe four there might have been one that was six months birthday it's the government's come throw in to come through and show with with specificity that it was sufficient and you had possession of the information from his passport i don't understand why the calculation was the specificity of that is not in this record when it was within your power to do it well your honor i'd like to push back a bit we don't believe that the specificity is required under justice brennan stressed i'd like to address why the specificity is not in the record as well but but first justice brennan's test was in a response to justice scalia's a position which was that there is an automatic presumption that arises whenever there is a material misrepresentation so once you determine that it has a natural tendency to influence which essentially the government believes a defendant has committed or it conceded here then automatically the burden which of justice brennan qualified that further and said w i do agree that there should be a presumption that arises and shifts the burden what we need to see is some something more than mere speculation and absence of evidence we need to see some evidence that raises a fair inference that the actual and eligible existed but notably the test is a fair inference it is not clear convincing evidence of actual in intelligibility is simply a fair inference he simply moving the test a little bit farther than the automatic presumption that justice scalia had proposed in his in his decision and suggesting that instead there should be something more there should be some evidence in the record that shows what would have turned up if the material misrepresentation had not occurred here that evidence was in the record mr ahmed himself testified he was on thirteen international trips these were not short one day trips to canada or to mexico we're talking about long trips by his own testimony to three four months one lasting six months and we submit that the district correctly determined there is a at least a fair inference which is the test justice brennan propose there is at least a fair inference from that evidence which was clear unequivocal convincing because it comes directly from the defendant himself that he was outside the country for more than thirty months and that one of those trips exceeded six months and because there is at least a fair inference then the burden shifts to the defendant so our position would be that we religious he was engaged in in his religious responsibilities and duties and i understand that there is a statutory probably exemption is not the correct way to study that there is a statutory provision authorizes one to pursue one's religious work yes your eval certainly we believe that would be his burden to then show that he qualified clearly on the facts i mean we don't believe that the court should get there that was never raised at the district court that was never raised in the opening brief it shows up for the first time in the reply brief and we believe that argument has been waived the court should not reach it nonetheless if the court were to reach it on its face mr ahmed would not even qualify for that exception two of the elements  requires or that he cites as being essential to that requirement show one that you have to have at least one year of continuous non broken physical presence as a disk or found he didn't have that he was travelling nearly constantly during the time he was a lawful permanent resident so he would meet that on a second he points out that you have to be travelling soley for religious purposes his own testimony the record establishes that while he was according to him tested for religious purposes he was also traveling to go see family who he had failed to disclose on his naturalization application so he would not meet that standard we don't think according to reach it but but he would not nonetheless the burden our position would be the burden is on him with regard to the specificity of the of records i just like to point out that here the government's records are  somewhat limited in the fact that we're talking about stuff from the ninety's in early two thousand the court as i'm sure well aware certain exit records were not maintained very well in terms of who's leaving the country what the government has and what the government submitted is largely entry records that was the testimony at trial that the tax and the a t s records simply show simply when someone's coming back so we we can use those to establish that he's been out of the country but we simply can't necessarily do the math for the court and the same thing with the passport the passport is somewhat illegible and includes lots of different you know stamps and as you understand as i'm sure the court may be aware you know travel doesn't always result in a stamp sometimes you go through a port and they don't stamp so it doesn't necessarily easily add up for the government moreover we would submit that the defendant has the burden to rebut it and i think it's extremely notable in telling that the defendant did not do so here the defendant is in the for the by far the best position to show how long he was out of the country he has the records he bought the tickets he has the calendar he could have come into court and said look i pulled all the records i can take this off the table as an issue because i can show definitively that i was only gone twenty nine months or that none of these trips lasted more than six months instead what he testified to a trial was that he had looked at the passport and was convinced of two things one no trip was more than one year that's telling because he did not change his testimony on the six month issue he said no trip was more than one year which i think is very telling second he also said that he had not been gone for more than two and a half years now the district court found that not correct all based on his other testimony which the court had seen was looking at him in the  could take that testimony and evaluate credibility that's a traditional district court judge role and the district determined he was simply not credible in his general a guess that he hadn't been gone for more than the thirty months the district courts analysis i think is very  reasonable here it's more than a fair inference it probably rises to the most reasonable inference but at least it's the fair inference that's necessary here it's said looking at this tat you know looking at these this testimony he himself is testifying that he was gone for six months more per perhaps more than six months for one that would break the continuous residence requirement because it's a break of more than six months raises a presumption that the individual is not does not satisfy the continuous residence requirement and they looked at the math on the thirteen total trips all of which it is your court found those thirteen were pre application and i will note that there's some distinct disagreement between the parties as to whether the trips are eleven or thirteen the district court i would appoint to the factual findings actually made to factual findings first found specific dates for some trips there were thirteen of those but then it separately made a factual finding in large part based on mr ahmed's own testimony that he also took thirteen trips at least thirteen trips prior to naturalizing so arguably there were  fifteen trips the two trips at the back end of the thirteen dates would be on top of the thirteen he testified he took prior to naturalize and we take those thirteen and we add them up he said two to two three four months even if they're each only three months that's thirty nine months even if they're you know if we're only eleven and there are three months it's still thirty three months the government cements that this was certainly adequate and any any error that the court may have engaged in by not further articulating the exact standard  was applying was harmless we know exactly what the outcome would be on remand the district court believes there's at least a fair inference that mr ahmed did not satisfy these two requirements and last i would just point to the record evidence as to the testimony  as to the fact that the interviewer the reviewer fire and most tellingly perhaps the preparer who was a disinterested went to witness all testified that if they had seen this application are this a passport and if they had been told that mr ahmed had traveled that would be reflected on his naturalization application it's not and the government submits that the district's finding on that is not clear air and let me ask you one to additional questions here the district c application process transpired and gives the version of events of the plaintiff i mean of the defendant and the version by the government govern the judge's decision your honor certainly the district court could have found more facts and determined which of the conflicting stories were what was the accurate story based on that and as you're as you're pointing out there is sort of just a recitation for some parts as to what the defendant said and then what the government witnesses said it would certainly arguably the government believes be helpful of the district court it would prove our case even is even stronger if the court had made those but we don't believe that that's a fatal flaw or reversible error here the district court clearly found several things that we think are our material and keep the court found that the naturalization application in accurately stated zero days outside the country is zero trips no countries no foreign countries visited the district court found that mr ahmed had traveled through the thirteen dates specifically listed and also found that mr ahmed's own testimony showed he had traveled thirteen times during that transition period this report found that testimony showed he had probably been outside the country for more than six months on at least one trip and that the other trips were two three or four months in length and finally we would note that the court also found specifically looking at footnote six on page nine and ten that mr ahmed signed part thirteen at his naturalization ceremony i'm sorry naturalization interview that he was the one who signed and said that he certified under penalty of perjury that his application and was accurate and that he knew the contents of the application mr ahmed should not now be allowed to completely change his story when it's convenient that would render such certifications largely toothless and unenforceable civilly or criminally and to do your honor so if as the myth you know i served for europe and we don't think you need to be worried about it all the as the government suggests the court can affirm on this current decision and if it does then the district court is correct that the additional arguments separate method of showing that someone was in accurately or in improperly granted naturalization the court would not need to reach any of those because they result for all of the government's arguments is the same outcome if the government prevails on any of the arguments the result would be denaturalized nation revocation of the or earlier naturalization order so as long as the court affirms the district court was correct if the court decides that there was some error that needs river to be reversed or for additional factual finding it could instruct the court to make additional holdings on the other arguments which are all preserved and ready for the court to rule on and certainly that would be the the appropriate remedy rather than just outright of reversing without any further instructions  the n four hundred form in part thirteen when the government's witness the translator who testified as to her standard practices testify that she signed it so that evidence that that was equivocal what about it part of eleven or eleven he signed your own part that claire and her penalty of perjury yes yes yes yes as for the time outside of the united states footnote three and four in his opinion to discussing the condition of the records presented by the government regarding the foreign travel and the lack of reliability and the internal inconsistency of those of the questions in his mind that arose from his review of those records also in respect to the amount of time outside of the united states the government utterly failed to present evidence as to what that was they relied on the gases that mr ahmed made years after the fact as to generally how much time he might have spent while traveling and that evidence was our client's own testimony regarding the amount of time out of the united states admittedly by his admission by his testimony was not conclusive or reliable it was his best guess as to generally how much time he usually smet when he would go on a trip and it was a complete range then might have been a month it might have been two months it might have been three months question of the district court's decision i'm sorry ron i have one question on the district court's decision what if any failure to resolve a factual make a factual finding court needed to make a determination regarding or make a series of determinations regarding the events leading up to the naturalization interview and then what transpired within the naturalization interview and the interview that's problematic or the notorious work on his behalf that there was a failure to make a factual find the most significant failure in terms of factual finding swore in respect to the events surrounding the interview itself by the adjudication officer your honor spank you oh i'm sorry just playing at a question ok very good