district court below this court was clear the important one doc of a good case which tells us a lot about this issue that the government has to fulfill this burden by clear and convincing and this court should reverse where there is a definite in firm conviction that a mistake has been committed the government relied upon and importantly when the department of state revoked leonardo citizenship in two thousand and twelve it was relying on the affidavit that this district court roll out properly determined it could not possibly rely upon and there are other cases that indicate that it isn't good enough when you need to prove something by clear and convincing to simply seek to discredit or question the credibility of certain opposing proofs gonzalez goma's versus science as were credibility is suspect this does not need the government the other witness need not prove the government's case as well the supreme court case  mitsubishi coa nor can the district judges disbelief of petitioners story fill in evidence or gaps literally all they have is the mexican birth certificate we have a witness to the live birth and under this circuit's line brennan which they don't even cite they basically grant that by silence under brennan where testimony is clear positive and unimpeached affirmative testimony that testimony is conclusive and it's just amazing in this record that agent wakefield are one forty nine said he never meant to interview the witness to the registration did then issue a registration card yes rather and but what happened here was that you had a city with a situation where there was positive unimpeached unquestioned testimony the government never interviewed these people the government didn't want to depose these people we put them on the stand and they said born in santa ana california they decided not even to cross examine these people it is circuit law that when there's positive testimony that's unimpeached that that testimony counts and is to be given credit and the best difficulty with that argument is that the district court made  literally nothing laid up against it and so here you know basically the idea i guess is that they get summary judgment based on the mexican birth certificate which would obviate the need to have a trial about anything and it would basically give the district court sort of no reason to look at all the different many pieces of evidence all of which went cleanly the other way by not even cross examining of alina tapia they basically treat the top because like nine people they came here to testify the government made that hard made him travel four hundred miles never interviewed them gave them no dignity in this case you know the government wants to rely on these records but in the records it indicates avellino toppy is a witness to the birth she shows up and says she doesn't they don't even care and the district court just says well it was kind of brief well it was really brief because the trial was going to end of five o'clock and we didn't get till four forty five because the witness they put up that took up three hours the district court didn't even rely on took up half the day so it really isn't fair to say well it's not that credible because they were up and down quickly when we got to them at four forty five because the government took up more than half the day that's that's kind of a very casual jibe credibility it wasn't like they said anything internally contradictory and that is brown there's nothing in their testimony that's implausible whatsoever a quarter of a million mexican families out of five hundred fifty thousand according to the mexican government the judge let that in  five that's admitted that's the predicate to the experts testimony almost half of these mexican families with children born in america do the dual registration thing it may seem distasteful the judge kind of called it out as fraud or something in his remarks during the  understand that it's also admitted testimony the government didn't have an expert they didn't rebut it all they basically have a saying that you don't you can't look into the heart of these people or know their motives forty years ago they were clearly ignores testimony you also made the point in your brief about the judge rejecting the stipulation of fact but as i heard of the stipulation of fact by the way when did he one of the judge do that was that after the when we got the order when we got the order in march after the trial so what's the effect of that how is that two so what does it tell us that well maybe we judge should have considered a stipulation that he was baptized six months after his born because because judge simon it's kind of an unconvincing logic game after the trial to say but i don't really like the documents that doesn't matter that the baptism under your theory took place six months after the birth it's not discrediting it means he was living in california in a time reasonably close to the birth which again just records week or the gasoline case judge wrote in two thousand and sixteen courts commonly rely on this because it's hard to look back forty years courts need anchors to hold onto in the district court and they say hey baptism family testimony that counts and again we have a baptism and we have a family there ignoring and brennan says you can't do that and that's not fair to this case so we think that in this case there's almost no evidence left if you imagine there affirmative case of a bear in the clear and convincing burden imagine it without agent wakefield imagine all the blank pages in their closing brief there's almost nothing left and the district court basically said ok we've eradicated agent wakefield i refused to rely on him i refused to rely on the affidavit except your client in immigration jail for three years i refused to allow all of that but i've got a revoked mexican birth certificate so it doesn't matter that the lady from mexico city who's an expert in this who's a macarthur fellow shows up and says half the families in this circumstance do this registration it tends to make it more likely i don't have to prove he was born in america they have to prove  see your honor i was with my associate courtney hands and she did most of the work i did a little bit of examination so in the district court proceeding we had all this evidence pointing this one way and again under brennan and contradicted positive test you argued this to the district misconstrued mischievously what the witness was for she was there to show the statistical prevalence and commonality of the practice and how it tends to make the important fact more likely true than it was before she testified which is the birth in america and again we don't have the burden they have the burden please the court good morning attorney sabatini wesley on behalf of united states attorney general there's a couple of issues in this case and i want to discuss them with you and have you respond to whether if in fact these were errors in the court analysis whether it's sufficient to remain one is the court's rejection of a factual stipulation not legal this is a stipulation of fact by the parties which normally would bind the court and not only did the court reject that factual scipio ation it never gave the parties a any signal that was going to do so and so therefore it deprived the petitioner scouts of any opportunity to baptism occurred in one nine hundred seventy two the problem is that the way the district court analyze it it's first of all said that the certificate was uncertain in both authenticity an evidentiary trustworthiness so therefore it rejected the factual stipulation and and then it says without the record of baptism there is no evidence in the record that shows feel it was present in the united states in one nine hundred seventy two and then it went on to say viewing the document three evidence there is no documentary evidence that the tracks from the petitioners a valid mexican birth certificate absent any credible documentary evidence issued in close proximity to t certificate on the other hand i've got a validly issued california birth certificate that is supported by a baptism that occurred close in time when want to throw out the the baptism despite the the stipulation and so therefore nothing shores up or corroborate the authenticity or the reliability of the california birth certificate so therefore i'm throwing that out so it's linked together in the way the court analyze it so i want to ask you first fall do you concede that the district court made an error in rejecting that factual stipulation no i don't think that specific question i don't think he did i don't think he did and rejecting that factual stipulation is the case law that says the court can reject a fact stipulation versus a legal stipulation all this will with regard to i don't have don't have a particular case on the door he said you open the door i'm going to reject your stipulation let in the testimony matheson there was a stipulation to a non jury trial and then based upon some pretrial evidence ruling the judge said well look in mind that will let you now ask for a jury trial and in basically you know after the first trial was remanded and the parties have stipulated to a trial on the record the judge said well there's still no evidence of a particular issue on medication of damages so let's have an evidentiary hearing that was standing your stipulation of trauma the actual facts of the baptism but not the actual baptismal certificate and i think what the judge logan does a really good job at with regard to his findings of facts is going forward in this thing wishing in saying that this is this stipulation of fact has never we can we can really sort of infer from that that he rejected the certificate itself but except that the fact that the stipulation but the court said nor is the government's stipulation to the fact of baptism by going on the findings of the rule that that says ordinarily courts are bound by factual stipulations so why doesn't that mistake warrant it remained for the district court to kind of redo its analysis i mean it may come out the same way you may not but it's hard to tell versus a hanna cardenas but they are it was the facts were quite different in the sample size there were i think five six people out of a group of fifty plus people here the sample size is five hundred  fifty thousand people and i think what's important to recognize and what the district court the judge logan here and i think what he did in effect the job of this really is distinguishing with regard to the factual just some factual dissimilarities in this particular case with regard to  citizenship and the registration of citizenship what you have here really is a situation in which individuals born in mexico who were charged the individual was born in mexico and subsequently was not registered in the united states so there was no  individual had any presence in the united states for fifteen plus years after his birth and only subsequent to that subsequent to him being brought to the attention of immigration officials do you how have you stand leverage do you have heard something interesting you said there's no indication that he was a show of actually registering or registering his birth in the united states for purposes of that dual citizenship application really what the what the expert does is come in talks about how culturally it's very common for these individuals to duly registering to to do register for dual citizenship for schooling for crossing the border from getting here in the or back and forth and we understand that particular position but here what we had was a situation in which you had f purposes of for specifically what's in the record for eighteen years and which this individual does not register of have any indication that his birth was in the united states which is actually dissimilar from all these examples that he's expert with regard his five hundred thousand i think what ties in very clearly to this particular case of the your factual timeline here is you have an in the future will that was born in mexico that birth was registered on the heels of that birthright or that that birth was registered in mexico on the heels of his birth thirty nine days later in july of one nine hundred seventy two he was subsequently transported arguably the united states with regard to the baptism and then for eighteen years no volitional acts are conducted on the part the petitioner petition his family with regard to that allegations or arguments with regard to dual citizenship that would or do already that would tie in to this expert's argument and i think what's important i know  that opposing counsel comes in and says imagine a case without special agent wakefield well that's clear because the dish record judge did in fact that he's hiding these specific facts that the government put forward with regard to with regard to reason counters with immigration officials in one thousand nine hundred eighty seven counsel don't want to go back to the stipulation for one more time before your time and and that is isn't it inherently unfair for a district judge to reject the party stipulation of fact after the trial is over and first announced an opinion without time given the parties an opportunity to say i'm rejecting your stipulation of fact if you want to present evidence to present evidence isn't that inherently unfair and maybe even a violation of due process your honor i think it could speak to that in one sense is it generally speaking is it inherently unfair with regard to sort of tying petitioners hands following the decision however in looking at the facts of this particular case i think what's important is the leave is to distinguish between the factual stipulation and what the district judge judge logan did in this particular case to differentiate that factual stipulation with regard to his assessment of the california delayed registry of birth which relied on in one thousand nine hundred eighty seven baptism and other documents that was never brought forward by petitioner petitioners counsel as well as situation with regard to two after that to an affidavit signed by two special agents not special agent wakefield regarded with regard to information that the route was derived from the united states department of state that specifically indicated this particular delayed registry of birth was birth was procured fraudulency fraudulent so yes in a vacuum doesn't sound inherently feodor sort of change the rules as you go yes you want to but in this particular and i have great respect for judge logan but when he when in his opinion during the proceedings because i don't have it with me did he give as one of his explanations for his  opinion not merely that he was rejecting these things but that he was relying on this absence of anything happening in this eighteen year period oh yes i mean i think that's really i think what if we judge logan  really good job at this really laying out the factual circumstances of this particular case you have a do you have a nine hundred ninety delayed registry of birth nine hundred ninety is a critical date as well because this individual does not come on the screen of immigration officials until the  eighty seven nine hundred ninety there's a conviction for methamphetamine in one nine hundred eighty seven there's an entry without inspection so all of a sudden you have all these remedial measures no not not not not in the insurance context but these remedial measures with your honors they had a twenty page multi year investigation report that didn't question the baptism they spent three years litigating while my guy was in jail basically on lawyer to find out about the baptism what happened with the baptism was a violation due process it was completely unfair california and the us government till the day of trial know a lot more about baptismal records then the record ends up determining in the district court's opinion that was patently unfair and there was no justification for it in the record once agent wakefield is gone it's difficult to get around having dueling birth certificates and that's why the courts focus on the bet to small records cannot aid the text that you're here reviewing today your honour's that text asks you to decide that because the district court didn't agree with the baptismal record themselves they can sort of surmount the fact of the baptism but california baptism mattered when it issued the delayed registration of birth which gives you two different registrations of birth and that's a very significant thing what do you say to the  this fifteen plus year gap of time before oh yeah it's almost like we're saying that the minor is stopped later to get a delayed registration of birth because dad didn't do it during that period i'm puzzled by that argument because if dad lives in mexico and you can see america tapia was born in america then you know you sound like a really bad actor he was abusive to the wife abusive to the kid sounds like he had to spend more of his time in mexico leonardo testified without contradiction he was back and forth between the states and mexico so i'm puzzled by the idea he was gone for eighteen years that's not this record but in any event the minor when he's five when he's ten when he's fifteen does it tend to make more or less likely that his fourteen year old mother earth in santa ana in one thousand nine hundred seventy two as to how parents five ten fifteen years later deal with lawyers i think that's completely irrelevant your honor i don't think it's it gives rise to any sort of inference and it certainly can't be laid against the minor in this case as the stipulation which we've been talking about i would ask the court respectfully to look at page you are one sixty four  reviewing this matter that's the page where in hastening along the examination of each wakefield the district court helpfully interposed oh you know you don't need to worry about that that's a stipulation it's in evidence exactly point it's a stipulation it's in evidence the government was right when stipulated to this fact california therefore was right and proper to rely on it and they can't get the clear and convincing pleas and looking at these issues please keep in mind your honour's they bear the burden straight through