problem is that the immigration judge did not review the facts that would go to show legal separation well we have to decide what legal separation meet all right and you're putting forth that legal separation is  a situation where the parties will prevent by the facts and the other argument would be that the worst legal separation mean something then that you were just living apart that it has to be judicially created correct and so we have to we have to interpret the language and it seems to me that the position that you're putting forth if i would then make every legal separation would be a decision for the i j not for a court and we're essentially would be asking i chase to said as family law judges in terms of otherwise  realize it's texas or whatever and texas doesn't have something called they don't have legal second separation or something like that but it just seems to me what you're asking would create a slippery slope and then everyone could come in court and say well my parents were late that fall under this area my parents were legally separated b and then they just testify you know we weren't living together we were legally separated and me i j has to decide whether they believe them whereas there are what you're trying to say but where do you get your definition that you know and so that anyone can come in and say well we didn't plan to get back together well the fact that that's action does not have this legal mechanism to  officially create separation and the fact that the mother states that she's religious meaning that she would actually not even divorce petition our father the only mechanism for them is to reside separately if you were if this were to be referred to the district court what kind of evidence do you contemplate presenting to the district court do you have some document  that would show that some judicial entity somewhere or some governmental and as he considers these people the board separated do you have like tax his father and mother separated she filed and six hundred somewhat seven thousand years later and even though the application states that the mother and father lived at the time together and married people  people for a lot of the relationships and they come back together so their petition was filed somewhat seventeen years later so he doesn't go to show that when the petition was seventeen the fact that the parents petitioner was seventeen years of age when he says his parents were separated he filed and six hundred when he was about thirty four ok but that is not answering the question can the court look at that document kind of court consider that i don't think so your honor why just you just get to consider the ones that you want the court to consider and not the ones that go against your position that's not really how we do court you don't get to pick and choose you know it's seventeen years later people go that's the argument you make why you believe one or the other but it's not but that what we're asking is can you kind of court consider all of that you don't i think the court should strictly look at the facts that were in evidence when the petitioner was seventeen years of age and that goes to show his citizenship at that time he can file for citizenship fifty years later so are you arguing it's an undisputed fact not that it's a disputable fact that should be sent to the district court you're arguing it's an undisputed fact that he was a had derivative brief as well now they say they see the other thing they say it's not disputed that they they believe it's an undisputed fact that they were not legally separated that's what they think you think it's an undisputed fact that they were legally separated and as i understand it i guess they'll tell us what they think you want to reserve you have two minutes ok thank you derived citizenship through his father's naturalization because he hasn't carried his burden to show that his parents were legally separated prior to his eighteenth birthday as required under former u s c fourteen thirty two i understand you think there's no legal separation because there's no traditional document so i mean that's the question and i was trying to figure out where that came from that idea that there has to be you do just a judicial document even if state law recognizes legal separation starting from some point before it judicial document so i couldn't find anything behind the bear statement  case and i guess in ins interpretation that it required to do document i was wondering how this came about and well and what's what's the reasoning and meaning and where do i find it behind that well your honor you're actually not arguing that you know you not know the brief our brief mentions there are three as opposing counsel mentioned three ways under california law that you can demonstrate legal separation as a legal conclusion and those are the order of divorce the order of legal separation and then this third option and we recognize that we're arguing that the evidence in this case does not support that this would be considered a legal separation under the law of the state of california what we have here is essentially two affidavits as you are aware executed in twenty fourteen and they're attempting to use those twenty fourteen affidavits to prove that the parties or party had a subjective intent back in two thousand never to reconcile the marriage under california law in order for its to be a legal separation under this prong the parties would have to show a complete and final breakdown in the marital relationship or that they had parted ways with no intent to reconcile or reunite so it's the petitioner's burden to show that in two thousand they had a subjective intent of parting ways never again to reunite or never to reconcile and that the evidence shows that subjective intense and also you can also look to the objective evidence subsequent to show whether or not the parties did have that subjective intent so if they had taken steps after two thousand and two to finalize their intent to to to dissolve the marriage or relationship what we have is your as you're aware are the two affidavits that well the mother's affidavit states nowhere that they intended to legally separate or divorce it merely states that she's been residing in houston texas since two thousand and that she's she's were just cited to reside there because her and her husband are quote experiencing personal issues and she phrases them the present tense again this is twenty fourteen she says nothing about in two thousand we had a complete marital breakdown or in two thousand we decided to part ways forever or we decided our marriage wasn't working there's nothing of that nature at all it just says that in two thousand i moved to texas because i was traveling as a missionary and it cause it's causing personal issues the fathe r doesn't state anything about the intent in two thousand except he does say that they intend or he intends to divorce when they have the opportunity and they have come to the mutual agreement to live separately again it doesn't say what their intent was in two thousand and that is his burden to show that the legal separation that the facts support a legal separation that occurred in two thousand and not in twenty fourteen and again as the panel pointed out he does list his mother and father is married and living at the same address in california on his twenty fourteen application that supports the mother's affidavit that says that she visits her children quote unquote very often and when she does she stays at the residence with her husband the same california address we just simply don't know and the evidence presented really basically shows marital discord and as my opposing counsel said couples can go up and down and reconcile decide to break up and we need something some evidence to show that they intended to part ways back in two thousand with no reconciliation and we just don't have that in this case now about the so what is the profession under california law the family code or otherwise that grants legal recognition of marital separation without a court order that i don't know your honor i can look that up and get that's what it is if it's california law you just said if you said yes i recognized under california and i was i was actually referring to a string of a long succession of case law as for statutory provision i don't know off the top of my head that but if we apply california law and there's no recognition under california law of what you're talking about then at that a legal separation only happens by judicial recognition wouldn't that solve the problem too that would but there's court has presidential decision manasse and begins all is from two thousand and five which recognizes the state of california having the three different  methods for showing legal separation there was and didn't but in that case wasn't there an actual court order of legal separation no well no there was not a court order of separation there was an order that referred back that they separated gave a date of legal separation it was otherwise a court order was a court order but it was a one proton but right right not a quarter of separation it was a document that established that it was a legal document it was really as opposed to people testifying that yes there was a legal document there is a non published case romo jimin is out of this court from two thousand and thirteen that found a legal separation without any court order whatsoever so if we have a published case in a non published place what are you telling me to follow his lead the published case i'm just drawing your course it's the course attention so they are published decision which looked at the subject of intent of the parties at the time that they intended to well that they claim they b five eight gives this court the authority to decide naturalization issues citizenship issues in the first instance so you know no party in this case has has disputed any facts nobody is asking for it to go to the district court for any evidentiary issues as best i can tell the only documentation evidence that petitioner has are these affidavits which are contradicted by his own and six hundred application filed contemporaneously with petitioner seems to say we can't look at the end six hundred well i would strongly disagree it's part of the administrative record it's part of the evidence submitted on behalf of petitioner to the u s c i s in support his claim to citizenship and because we have such a lack of documentation there's only a few things to look at here we have the affidavits and we have the the end six hundred i don't see why this court would not be able to consider the evidence in that document specially because it was sworn to when it was submitted to the immigration service as for texas law we argue that it's irrelevant because there's no legal support for the claim that texas would would exercise jurisdiction over this marriage we don't know that the mother was domiciled in taxes she hasn't claimed that she was and even if it was relevant taxes doesn't  have a mode to we don't have a formal legal separation process so these parents would have to be divorced in order to be considered legally separated under texas law and we know they're not divorced and just to the point of opposing counsel's comment regarding his mother being religious that is an assertion put forth by counsel petitioner's mother never said she was against divorce or religious that's outside the record yes i mean clearly she was traveling as a missionary so that would indicate some level of commitment to religious or religious but we don't know what and there are plenty of religions that allow divorce denied in february of two thousand and fifteen february fourth of twenty fifteen it was denied so after the filing of this petition for vo ok so they considered his derivatives citizenship in that case yes they  that this is the child citizenship act does not control in this case it would be the former statute which is fourteen thirty two a u s c fourteen thirty two a or three twenty one under the i and in reading th e immigration judges opinion i couldn't page true to the record page forty six couldn't quite understand the immigration judge indicating that he couldn't qualify because he turned  eighteen a day too early yes the child citizenship act has been accepted as not it's not a political retroactively it's that's pretty much it's stablished it's not retroactive so he turned eighteen prior to the effective date of the child citizenship act of two thousand that day was february twenty seventh of two thousand and one and he turned eighteen on february seventeenth what's that have to the former statute that mr strada must establish he has to show that there was a legal separation because his mother never naturalized so you have a child born to alien parents and only one parent naturalized so he had to show that his parents were legally separated and that he was in the legal custody of the naturalized parent and that is to protect the non citizen parents legal rights the new thing is that a factual matter or document well that the court can consider the court and the agency can consider any evidence to determine whether there's there was legal custody that was never go that's not an issue in this case no because the agency didn't get to that because they found that there was no legal separation if this court found there to be a legal separation we would ask that you re man to the agency for a determination of lea arm sorry not to be agency excuse me immigration judge for factual determination and perhaps the petitioner can present more evidence that was not presented when he was i thought that in the romo case the procedure was descended to the district court if there was a disputed issue of fact as to whether or not he was a citizen because if he was a citizen he didn't have to exhaust his remedies before the  i got that wrong you know i'm not sure in which order these things go but i thought the roma court sent it to the district court going another decision of the court ok i got this maybe i got this wrong he certainly didn't present any evidence to the b i a that he was a citizen that's correct i have presented himself per se and so either there is some reason he doesn't have to exhaust or even loses on failure to exhaust right so there has to be a thing up reason he failed to exhaust that he is excused from failing to exhaust his stays at hughes and i get kate is and he's a labor so it's ok so again you  the owners will respect that this court takes proceedings in a way that this matter is properly followed back to a proper agency or court for factual determination of whether petitioners parents were in fact illegal a separated before he was eighteen years of age thank you thank you this matter will stand submitted