hundred six hearing the petitioner through his counsel as well as his mother and his brother stated their intent to proceed with the asylum application that was on time was for the application for adjustment of status so if it were so obvious there would have been some discussion about it and moreover the fact of the matter is the  mischaracterization all they're talking about is when the application should have been filed if you look at the discussion between the counsel of the townsfolk if you know when the application should have been filed it appears from the transcript and i think in th i understood him what i understood him to be saying scoff if you argue against something else at least one of the three judges will take it as an argument with strong but he was saying many things and i don't know if i can respond why don't you just say your fellows to week or month or some reasonable period of time to file their independent i will your your honor his mistress allegation the immigration judge was required to set a schedule for asylum applications before denying it continue which is simply the gentleman meaning the two sons be applying for as we indicated off the record we came here with the belief that they could file out of the us on their own and go forward at a later time on their silence request that's a continuance they're  asking and let me say that there's no indication in the record that they have the application is ready at that point but that's neither here nor there so he was asking for a continuance there's no question about it he wished additional time i don't understand that i mean if the word hearing which was set to determine the claims of all these individuals was set for a date certain at which time they were testimony was to be presented and all of the applications for relief  were to be resolved that hearing is the deadline that's the deadline and the master calendar hearing the immigration judge determines what kind of relief the aliens might get it seems to me the only thing that the children had pending as they approached that hearing was a derivative application for asylum based on the mother's act well that's right that's that's where they were ready to go on that and they didn't need a continuance then at that hearing the got to stay in the us by a different route which moved out the sons application so now with the son's need to do is file a new application as far as i can tell the one year deadline doesn't apply because it's is an opportunity for the alien for the judge and the alien to understand what the case is about and what issues are going to be resolved at the merits hearing and once the immigration judge knows all has all that information it determines how long a period of time the aliens will be given to do whatever they need to do to get ready for the hearing to file asylum applications the file ask for adjustment of status and then he sets the hearing and in this case he said that hearing for ten months later at that again at the matter calendar hearing the immigration judge was told that  the mother wished to file for adjustment of status and let me point out at no time did any of the sons either of the sons indicate that they had a well founded fear of persecution or a fear  background to then protect themselves by filing by indicating of a wish to file applications for asylum as well in their own right which they can do they did not and the immigration judge sets the hearing ten months later for number one adjudication of the mother's asylum application number two adjudication of the mother's a potential application for adjustment of status which i might point out the record indicates that the immigration and naturalization service indicated from the judge that the immigration naturalization service would be looking favorably upon the visa application and the application for adjustment of status so they knew they should have known that they should have protected themselves by filing an operation for a sign just main if we accept your argument that annie annie but he who is it doesn't make sense if you have a non thermal as a basis for asylum not to apply for asylum whether you're derivative of your derivative or not it makes sense to you got to pay the lawyer another substantial chunk of money probably don't have well it seems to me that if you've got a family unit they all come from the same country the same circumstances the one way it is going to do it all as the one lawyer did it all here i don't think though i don't think that's much of a burden there's certainly no evidence that that was a burden in this case your honor so the immigration judge set the hearing for ten months later the adjustment of status application was filed the visa was granted i think in october of ninety six  several months before the hearing they just want a status application was filed it was essentially fairly the parties could have been reasonably sure that this application was going to be granted did the petitioners indicate that they had a well founded fear of persecution and they had been persecuted no they didn't file applications at that point either so you get to the hearing ten months later in the few months few months after the adjustment of status application is filed and all of a sudden they say well what we want to file an application for asylum and we're going to need more time well the judge said you had all this time you had ten months you should file your own application it was perfectly reasonable for him to protect his the court there to protect the interest in avoiding him to protect the system against aliens delaying the system as the supreme court recognized they do and it was in the interest of the court to protect other aliens is not an abuse of discretion your honour's that is an immigration judge protecting his calendar protecting the immigration system from unjustifiable delay the immigration judge did not have uses discretion in denying this continu us they did not phrase it as a continuous but that was what it was the immigration hearing was was but deadlines that's when they should have been ready to present their case and  didn't i might add that the the the petitioner in this case has never alleged that he has a well founded fear persecution or that he was persecuted in the past he did not raise that issue you brought this up r d but i the difficulties i believe both practitioners and judges have with harmonizing these provisions of dealing with derivative citizenship what i'd like to start out with which is where i started my argument which is that three zero one a c and that's my contention that the petitioner is a citizen at birth based on a very plain reading of the statute again we have to then reference what i call for lack of a better term the definitional section of the act which is one on so from starting from there we then go to who are national who are citizens of birth and in this case the parents are native born united states citizens and the petitioner is a child under that definition he is they don't cite that talked about adopted children but it also doesn't cover this particular situation three twenty two deals with people who live in foreign born and ultimately became citizens or there's only one parent that doesn't deal with our situation what we have here at the end of the day is we rather anomalous situation where native born adoptive parents not transmit the same rights as alien parents do  united states a birth out what strikes me there is two things first of all it doesn't say a child of parents who are u s citizens is a u s citizen at birth it says a person rather than a child section the parents don't have to be native born you can have a whole constellation of other scenarios here we have when i think you correctly identify a very compelling case and i think that's where we have to and maybe i'll be brought into the equal protection argument you sure do have a compelling case  before us the equal protection that's always wrong we can immigration cases i help me deal with the born of problem that i have a very simple if i could  in terms of harmonizing the salt that you again were by definition we're talking about children i either did or that birth so i think by necessary statutory construction we're talking about children and parents we are representing the term parent the definitional section deals with herrick i see the problem born but we're still dealing with parent and child so we have again i think we have to then go back to the definition congress was trying to harmonize all those three twenty two deals with you know they could have been foreign born ultimately came citizens the child also has to be a lawful permanent resident here that doesn't have to be the case so that i think if you try to harmonize them all you you know statutes shouldn't be construed to pretty absurd and i think wildly unfair results and i think in order to harmonize that i think we i like to start with that he so i think we also have to repay usually these immigration statutes are not models of clarity so i think we are required to harmonize them and i think if you take the government's position we end up with appropriate to err on the side of the united states citizen parents native born again starting with three a one if my interpretation is right we need not get to the more difficult legal protection argument and we end up with a scenario where again native born citizens are going to be not surprisingly treated somewhat better than one and one citizen obviously there's deeper times when you're native born so having other is that in miller english from the way the supreme court said this congress has had good reasons for growing distinctions between children of american citizen fathers and children  american citizen mothers and i wonder if it couldn't have equally good reasons for drawing the distinctions the first year between macro adopted adopted by age sixteen and so for sure i think it could do things as i mean basically dealt with the i mean the argument was that it relied on outmoded gender stereotypes but the argument was they had a very good reason in terms of identifying legitimate personal images of the children here there's no such difficulty the question is were simply leaving out the adoptive children of native born citizens i mean there's no you know i mean the argument the government is that somehow the reason it's better to treat the adopted child of a lot of residents because they go through the pomp and ceremony of the naturalization ceremony and that one still greater fealty to united states i don't think that's the best argument that they've made and again this court hasn't hesitated you know there granted they won't go through this specific experience i don't think that's a strong argument i think if you're talking about minimal scrutiny again what you have is the native born citizens not can't teen automatic citizenship under fourteen zero one or any other provision his parents would have had to have stopped at naturalization and he would have had to take an oath that raises more questions conferring citizenship upon him as easily as can an alien adoptive parent pursuant to section three twenty of the immigration national nationality act if so then what is the standard if you can raise a constitutional infirmity what's the standard that the court looks to and then whether or not the congress actually satisfies that standard and if it does not satisfy the standard what is mr crowder's remedy well there are two reasons off parent not it was i mean i don't know if it was or not but that was an operative was operative to congress was in what situation may parents confer citizenship citizenship this is the parent's right to confer citizenship it's not the aliens right there you are ignoring as they have told us to push against other where you can you can raise other people's equal protection arguments i'm sorry you are not following i'm sure is the explanation i think you gave for or the government giving for the difference we've got a situation where a parent is being naturalized  switch a situation where the statutes provide for citizenship to be conferred on an adopted child when the when the parent when one parent citizen the other one just being naturalized i think it is naturalization context the political those interests are as least as strong in naturalization as they are in  to determine who can come into the country so as i say in for ya well the court held that the that the courts simply cannot  review the two two of the line drawing that the congress makes and that's applied to naturalization because as this court held in price naturalization and exclusion are both matters which are uniquely political and i think just justice scalia in the military says all right there's a there's a wonderful job of explaining why that is and i certainly don't want i wouldn't try to improve on that  say that adapted children who are black can't become citizens but that the children who are not black can become since we can't review that so again the answer to the the question is whether or not he has a sort of constitutional for me is no however if the court concludes that he can assert a court in certain decisions has equated facially legitimate and bona fide bona fide with rational basis but i don't think the supreme court i don't think this court can trump the well i mean number one the case doesn't exist anymore because the supreme court vacated it i believe in and sent it back and then you wrote another descends on a different and a wholly different issue so i guess i think you're right so the so that's simply that the citizen parents of an adopted foreign born child have to go through a one extra step or actually not it's not really that they have to go through an extra step it's that there are certain circumstances where citizens where a united states citizen parents who without a foreign bo cannot naturalized have their children naturalized in situations where an alien who becomes a naturalized citizen can there is no could you go ahead and gave a reason why congress would say if both the parents are american citizens they have to get the kit naturalized but if one of them is an alien it becomes naturalized himself or herself they don't have to get the kid naturalized well i can give me some kind of sensible reason why a sensible congressman would say that right well number one we take and i understand you understand this but i just want to say it again number one we take  i know all the other positions on two justices in miller say no standing to justices in miller say courts can't naturalize people so if there's a violation of equal protection all it means is that more people or cut out nothing more people  and justices say anyway there was a rational basis and me asking you from the point of view of the two justices who said we get past all that but there's a rational basis and say give me a rational  and it with respect to enter exclusion matters in this court crisis and naturalization matters are just as immune should or should be just as important politically or just as involved political questions as much as you already know that i  go through the same naturalization process essentially as apparently alien parents do when the alien parent does it and the child obviously is of age and i guess congress made the the made  the determination the many many many i don't know if the majority i don't know if the overwhelming majority i don't know of some but that the children that would be obtain automatic citizens would be old enough to appreciate observe the alien parent preparing for the naturalization exam going down to the district court to get to take the oath and they wanted an alien child brought to the united states and adopted by united states parents to have the same benefit in other words to recognize that citizenship in the united states does not come cheap that one mu required by congress to to naturalize its naturalized a child to go through the process of submitting an application for naturalization and to have the child undergo the of so i think congress wanted to even it out number two congress felt that the united states citizen parents should take an affirmative step that all parents should take an affirmative steps to ensure that parents truly want citizenship to be conferred obviously the alien who becomes a naturalized citizen is taking that affirmative step the alien who naturalized us with a child understands that her child will get automatic citizenship by the same token congress wanted united states citizen parents to take that affirmative step the alien parents to become naturalized in part because they want their children to be citizens mastic political issues i suppose the third reason implicates the international political implications i think congress wanted foreign countries losing citizens children through adoptions to know that the united states citizens would simply not take that we would make it easy for the child to give up the citizenship so it one of the parents to make the step not only to decide to make this child of a foreign country a citizen but to demonstrate how much they wanted this child to become a citizen by by having them do extra it gets to that question in the first place and i think the child citizenship act which now allows united states citizen parents of adopted foreign born  children the foreign born children are subject to a lot of conditions which i won't get into are essentially citizens when they when they're brought into the united states and congress again made a political decision with respect to that they decided to drop the  utilizing their political determination there for thirty to term and political issues they made a political choice to ease the burden of adoptive parents who already had difficulty united states citizen adoptive parents who had already had argument is that proceeding should be terminated because we're not in the business of supporting citizen soldiers profound injury again in terms of non review ability i think the government goes a little too far some members may  disagree there is to review again any argument that would end up by saying you can distinguish between you know half are going versus the chinese versus the blue eyed versus a green light if that is on reviewable something's wrong at root with the argument mean arguably one of the most disfavored bit of legislation in our history has been subsequent law that says now that we the difference between exclusion and deportation the idea that right that a person has entry to the united states intervene and i think we i respectfully don't find the use you know if there was a rational basis to get around the problem in miller two justices said there is no standing of the child if i'm remembering correctly the child doesn't even have standing to make an equal protection claim because it says parents in that case the father who have whatever claim there is that's who the discrimination was against and then two justice at even if it's a denial of equal protection all we can do then is strike a law that lex some people get citizenship we can back the more i well no it leaves them don't have five out of nine who would even consider the equal protection argument on the merits well like i said we kind of i think there's only two states on reviewable in that case so i may think the notion that it's not altogether clear so i may have to judge it said we can get there i mean ultimately the decision was it was rational so i mean i'm not sure that the state of laws is too generous to say there's literally no review and  because they were saying in order to do there's a question of paternity and the idea was that it's easier with the mother than the father i'm not sure i ever agreed with their reasoning but they said there was sort of an evidentiary reading to make that distinction i mean and that