please the court matthew george for the attorney general i'd like to reserve three minutes and i'll watch the clock for that right to the district court erred and it's an allocation of the burden and quantum of proof in this case it also clearly shifting scheme and help petitioner to a mere burden of production of substantial credible evidence if the district court intended to make findings regarding petitioner citizenship as opposed to his remove ability that it should have placed on him the burden of persuasion by a preponderance and consider all of the evidence on each elements so counts not a question for you right off the bat the way this case was briefed initially was the government argued that the district court clearly erred in certain factual findings and then part two then got into the whole burden of proof burden of production so forth if we start with the st issue in your brief the clear air and we hold that there was no clear error on those four findings of fact or maybe if i find the fact that the district court made about the grandma and where she was born and where she resided out of wedlock so forth how then does the burden sections in its decision one saying it's findings of fact where it does make a finding that the grandmother more likely than not was born in mexico however then the u s i'm sorry and the united states run and that's that's what the district court found  was not born in mexico it then examines all of the evidence however it looks at the evidence the government presented the seven different pieces of official government documents showing birth in mexico and says the government or this doesn't rebut that finding under the offical of eagle standard and so even in that statement regarding findings of fact the district court veals that it's applying these birds shifting scheme and still holding the government or assessing the evidence under a clear and convincing rebuttal standards and so that's that's why even if can you i mean i don't want to dominate the discussion but can you kind of walk me through that because i see i look at the district court's order on page four it says disputed factual issues and it has the four questions and then it just kind of marches through and explains why in its view the facts are in the favor of mr what is left in this case to decide if this is a court really believes that this this woman was born in the united states why does why does always burden shifting matters not what this case is ultimately about well it depends on how and what manner did the district court make that finding because st in its factual findings i can go and get the exact site where the the district court does say under the law the appropriate legal standard when it's evaluating that which shows that it is well let me help you out there on the next paragraph just below the one the judge owens is referring to the district court says the court finds it more likely than not the grandmother vargas was born in el paso now is that the wrong standard that is the right standard if it's not think qualified by what the district court says later i'm sorry i didn't follow that answer all that is i know there's a lot going on and a lot of mishmash of here but the district court does say when it gets to the government's evidence in that factual finding section that it's a valuating court pretty clearly followed that case but this court has clarified since then that at the nd step that's a burden of persuasion and the district court applied here a burden of production so it simply said basically have you made out a prime official case of citizenship not have you proven every element of citizenship by preponderance in considering all of the evidence that's that's what the government was modified or limited well district courts have been struggling with this issue in these types of cases and so we've asked that the court would click continue to clarify that standard and if you look at what courts require and what the supreme court requires in citizenship findings it's so so counsel if you have the more likely than not standard if the district if we thought that this court was looking at all of the evidence  then if we feel if you found that more likely than not that that gram of argus was born in el paso then the government has to come back with some kind of clear and convincing evidence as to why she should have citizenship and that's going to be very difficult if you've made a finding of fact based on a preponderance of the evidence that she was born in el paso if the district court is considering all the evidence yes your honor then we would agree so your contention is is not that is not that she that she didn't make that finding because it says that she made the fighting but  didn't do it correctly because she didn't consider the governments that evidence at that time yes or are ok that's a little different than saying that that seems to me not to be saying that there's a done amendment to the montauk a vegas standard saying that she didn't apply it correctly and that's that's kind of what reasons st of all the district court fail to provide any presumption regarding birth place with regard to the thank you twenty nine birth registration or certificate or whatever w talking about now we're talking about maria's grandma maria's nine hundred and twenty nine birth certificate or birth registration or it's including this one have said many times that contemporaneously filed birth certificate is entitled to almost conclusive wagers as an almost conclusive presumption of birth the district court did not apply that it simply rejected it because the birth city conflicted with birth certificates that according to the evidence grandmama riya herself obtained later in actually seventy years lady a later in one thousand nine hundred and seventy versus a nine hundred and twenty nine birth certificate made approximately one month after her birth there's also evidence also such as witness statements not made that issue which she said as she looked at all the evidence and she said the government's evidence is internally inconsistent and the that this the evidence that supports the birthplace being el paso is all consistent but that's another issue that we have that's a clear clear erroneous finding the evidence doesn't all say el paso the district court found that it evidence even as petitioner agrees was not consistently saying el paso some of it did sail past so some said texas generally and some sort of thing more than the united states this is really it's really interesting it's very interesting time even today i'll whatsoever you have to have a birth certificate in order to go to school you have to have a birth certificate from mexico so often people whose children are born here and they go back to mexico and that getting and and sometimes question is not the rhetorical question you're asking us the question is why did the district court clearly error in making a special terminations because it failed to apply the almost conclusive presumption or nature of a contempora filed birth certificate it also found consistent evidence that is not consistent regarding the family testimony and also found a relied on a foundationless for gas from that th proof then then then you did so undermine dr veiga the burden shifting works where st the government must establish evidence of foreign birth by clear and convincing evidence which we conceded because the question is whether you're willing to concede there is clear  you yeah ok so it's just acquired citizenship and so even though he's born in mexico he acquired citizenship through a grandmother and that mother and one dr veiga it affirmed the road map that was used by the district court and the district court in this did that exact thing where it considers the petitioners evidence under the preponderance stant preponderance standard separately and then finds that in the dock of a get the humint the preponderance standard shifts the burden to the government that the government's evidence is considered district court and the in this court found that the government demonstrated by clear and convincing evidence that he was not a citizen so that's a different case but it but it's very clear that that's the road map to be followed so what the government has argued is that that road map doesn't apply in cases where the person was not previously found to be a us citizen and they're relying on addict and a case called sanchez martinez which was also a transfer case where indictive the court says in cases where there's been a prior finding like the issuance of a passport this higher standard applies of clear and convincing evidence because it's a special factor we didn't have that prior finding in the strictest elam's case because he'd never been found yet to be a u s citizen where the person was never found to be a u s citizen so if the clear and convincing standard is limited only to those cases where they were previously found to be a citizen there would be a circuit split between mcconkey and the court and it doesn't really make sense anyway because ultimately the burden of removal is clear and convincing based on the government at every element along the way so this is supported by mondavi which repeatedly cites to the supreme court's decision and one thing would be has that clear and convincing standard it's also supported by the court's decision in chalo which says every element along the way the burden carries that burden of proof so there's no support here for the government's theory that the preponderance standard should apply only and that there should be a re standard for clear and convincing evidence as to the factual issues and obviously the clear error standard applies and it's an obviously very deferential standard do you want to know that the government has only challenge the issue of where maria de his use fargus the grandmother was born and does not challenge the other findings as far as marriage living in the u s in the ten years before petition is birth now obviously the ditches a very detailed decision from the from the co the evidence in the record and this is not a case where there is to see where the carrier standard would apply because ultimately the court can only over trying to there's a definite and from conviction that a mistake has been committed and presented a trial so a birth certificate and marriage certificate for petitions mother lena china's g d p discounted that evidence for various reasons when the government appealed and for the opening brief here it did not raise any challenges to judge these brief it says in spanish do a fate which is an at test action and then it's blank so we did challenge the admissibility of that document and ultimately just went to the weight of the evidence so this is relevant for purposes of this court's decision and murphy murphy looks at whether this presumption of image applies if there's evidence of foreign birth but says that the presumption only applies if it's uncontroverted and trustworthy evidence in this  the contradiction there is only if the city of birth is is important which it's not only the country of birth that's in question and that's consistent it right but that's like saying somebody was you know born in united states obviously in order to prove birth by understanding of where she was born but but her daughter in law also testifies that she thought that it was there was fraudulent it was that it was took two to obtain for purposes of training a mexican passport so we consider it if it we consider that fraudulent and there's very good evidence that it place of her birth right i might not all of it if it's if she obtained it fraudulent late she may have gone to the one to some place that was simply convenient for her well she was told and that's in the record that that's why she got right kelly lopez's deposition and testimony unconscious dicta birth record and again i want to reiterate that it was one sign and then there's a document from the department of state that addresses foreign evidence of birth and says specifically that basically people would just go say where they were born there was no verification and that birth registrations were issued so under a scenario where this is the christie era war the baby is born in el paso which is a block and a half from the border the parents had the full intention to raise the baby with the rest of the family and in mexico then it makes sense that the father would register them not the mexican birth certificate i also want to note that the record has no entry or showing of a manifest card before the november of one thousand and twenty nine so there's no record of a baby maria to his years coming in before the sacred heart baptism so it does appear from the record as it exists that the st entry was in november if that's what the manifest card was for i also just wanted to briefly get to the reinstatement of removal which the there's a case we found anderson in from the court guests and then the names right there ok and then if you go to the line above it says simple it looks like an app symbol and that's in the english translation at page fifty as well so normally and this was all raised in the motion there would be a clerk out to state our court signature there and there's just not one here citizenship and less than a month later ice goes to reinstate so he was acquitted it ok and this evidence yes so what happened was we actually tried to counsel the ice detainer in the case submitted all the evidence but less than a month after the acquittal ice went ahead and arrested him reinstated him and tried to whisk him off that day to mexico we filed a petition for review to stop the deportation when we got the record the record shows that the for my two hundred and thirteen dollars which is the background document has nothing about the acquittal even though it says petitioner says he fired u s citizenship nothing about the acquittal on there and in the record before the court the only evidence of any age they submitted for petitioners grandmother maria to his  fargus is in an translated spanish document that says the war which we translated to mean without value and so that based on all of that they tried to whisk him away that day so at a minimum if the court doesn't affirm the district court's finding we believe that court has any other questions i think i'm sorry when one more points the the criminal quit all by itself does not make any statement about citizenship as the supreme court has said  court has said you know the case we cited in the twenty a j the burdens are simply on different parties and so simply because one is acquitted doesn't mean that one has proven the opposite is not proven innocence for well no that's certainly true but having been a usa in san diego for a long time i can tell you it rarely happens you were really going to put on this case a cell a mad think i agree to different standard but it is unusual you would agree yes