please the court my name is everett and i represent petitioner frederico to maurice i would like to reserve three minutes of my time for a bottle that's grant the board of immigration appeals removal order should be terminated because frederico to virus is a us citizen derived his citizenship upon his mother's naturalization in one nine hundred ninety judge garth can you hear i can hear the relevant immigration and nationality act provisions allowed mr to virus to obtain his citizenship through his mother's naturalization because he was born out of wedlock under the statute the only way mr to virus could not have attained obtained his us citizenship is if his paternity had not been established by legitimation prior to his mother's naturalization affidavit was submitted after the naturalization of his mother which was in one nine hundred ninety can we consider that affidavit yes we can consider that affidavit is a piece of evidence that he was not  law should apply but you just indicated under the law of either jurisdiction what is your position as to what law applies and do we have to reach that issue we believe that came very a lot plies but we don't believe you need to reach that issue  court were to agree with the law selected by the be a that massachusetts law applies and the specific provision of massachusetts law that the be either a selective applies mr to viruses paternity was not established under the principles of chevron we don't believe this court needs to adopt a vi analysis the ninth circuit and the eleventh circuit have had cases where they say in claims of us nationality the courts of appeal are can determine  these issues to know without deference to the b i a in addition chevron is granted in cases where they be i interpret an ambiguous statute and that was not done here there's no interpretation or a has published decisions that state in cases where you're looking for established by legitimation under this provision will they have decisions where they use the law of the birth country but some of the facts are different that's true deference applies because even if you decide to defer to be ice decision we believe mr to virus is not legitimated under the massachusetts does he decide to defer to their decision really saying defer to their view that we would apply the law of massachusetts yes defer to their choice of massachusetts law in which specific provision as they responded conceded there is no deference to the ultimate question of which admission here now th said there is no dispute that the response father had at all relevant times acknowledged his attorney responded could you comment on what evidence you believe there is in the record as to acknowledgement in that context we believe to be referring to a looser more informal type of acknowledgement of his identity of the father that hasn't been in dispute what is in dispute is whether there's a more formal words relative to the sun we believe the record is silent on any acts of acknowledgment the only there's only a few pieces of evidence and we believe a way towards our clients position for example the affidavit from the father here no your honor we believe for a knowledge that there needs to be an affirmative act lack of conflict or acquiescence alone isn't enough for these purposes there's no indication for the birth certificate that men will tomorrow see the new his name was put on it there's no facts in the record that support how that person became came to be and it's important we can think of in these situations where you need an affirmative act this is a family where the child was born out of wedlock the father is married to another woman at the time of birth at the time of frederica's birth meanwhile tamar's lived apart from his son for over a decade you can imagine in situations like these the  family situation a very complicated and you need some sort of affirmative act to show that the father has acknowledged his son would be different if we knew that he knew that his name was on the birth certificate that's a closer question we have to see the circumstances where he knew that his name was on the birth certificate or he knew how it was created i mean i that alone isn't an act again that goes to a lack of lack of conflict or acquiescence and we don't believe that's enough is it your burden of proof show lack of legitimation it is frederica's to parsons burden to show he derived derivative citizenship and we think that was accomplished through the i relied upon the inheritance statutes which are out one ninety section c or excuse me one ninety six and section seven we believe a more appropriate section would have been two o nine c which i've been  paternity and parentage statutes indeed the into her statutes actually reference to zero nine c and two and i can see the purpose is to go to provide all rights to children born out of wedlock that those who are born in wedlock have it provides for means for a voluntary acknowledgement and we think that's a better standard to have used would it make a difference here no it would make a difference because i under either regime within either the clerk or the court of the child's birth or you could are filed at the register of vitals here the birth certificate at best is what they have and that's not an executed writing  s now his father passed away there been any determination of randy in connection with the inheritance aspect i that's not in the record your honor  it please the court kristina parascandola for the attorney general the most important point in this case is that legitimation is a status one is either born a legitimate or acquires it later in life here the legitimating act was the inner marriage of mr two bars his mother and father and that's what distinguishes this case from the prior board decisions which says that legitimation are massachusetts the border looked at the facts of this case and then looked to legitimation and under the the statute as it defines the word child and the it is to a child is legitimated the you look to the law of the child or his parents doma siler residence so that's what the board did here so there's nothing t bars legitimated and what ok great and so we have to look at well there's no federal family law on what is legitimated so then you know there are two logical places we could look to the law of cape there or the law of massachusetts where the petition his parents had been living for the past several years then the board look to the statute which says that legitimate is determined by the law of the child or parents don't know sol or residence is getting to the issue of whether the court should apply chevron deference this is an issue that implicates the agency's expertise legitimation is an important issue not just in this case but usually you had been legitimated so there's a long body of case law and secondly the immigration and nationality act delegates to the attorney general the authority to naturalize people and it also states that however there is a statutory provision in the immigration and nationality act defining the word child and it was reasonable for the board to look at that given that it's implementing the immigration and nationality act well that is your position is it not judge garth it is not our position actually and i hope that didn't come across in our branch of position was that the position you stated to the court that by the fact of into marriage back to the father married the mother that was sufficient it these cases when an individual is born outside of the united states it is his burden to establish that he is a citizen and he's never raised any argument like this in his proceedings before the immigration courts or before the board he even submitted to affidavits from his father and his father never raise the argument that well i was named incorrectly on the birth certificate i am not mr to viruses father there's  there has to be something of record that would point to the fact that that does constitute an acknowledgment for him to then have to undermine that and say it wasn't but it does not appear that if someone types a person's name on a birth when i see so if i understand correctly you're saying that the mere listing of the father's name on the birth certificate is not an acknowledgment of pretended it was not we should not have your honor i don't know but his name is listed and he at that time he was married to someone else yes it had been up at the time to various was yes that's correct he was and that the fact is we've been through several years of proceedings in this case and the father is never that's correct i have some question as to whether or not his day is avid david in two thousand and he never acknowledged that paternity as in one nine hundred ninety has much relevance here for us but under massachusetts law there needs to be some acknowledgement will you agree with that at least yes and will you agree as to chevron deference that we do not have to defer to the b i a s findings on that on that point so we have to determine based on this record whether there was any acknowledgment yes you're on one nine hundred ninety yes what would you point to well we just as a basic basis is there in the record or that i mean we may have substantial evidence standard here but we need to see whether the reasonable fact finder could use that what what are they referring to here educate us what was in the record of that show that at all relevant times he acknowledged is that your honor is a great question and i think it would been more precise for the board to state that at all times mr to bars father didn't not acknowledge she didn't bring any legal action to repudiate his paternity he didn't see a provision in massachusetts law or legal where but your position is whether or not they said it precisely it's the birth certificate it is the birth certificate plus the lack of any statement and in addition it under the substantial evidence standard it's whether reasonable finder would be compelled to find on the contrary of the board let's suppose we disagreed with you that there was substantial evidence in this record to conclude that the father knowledge to hear us as of ninety nine let's  case normally that is what we argue because the immigration cases usually involve fact finding here it's an issue of law and it's an issue of law that the board has decided on i think they've had two bites at the apple on this one and so we would argue here that the case should not be remained did and that you know we would have to accept the court's decision ok thank you are there any bars his name appeared on the birth certificate and his marriage to mr to bars his mother which were not at issue and those were the legitimating acts thank you thank you there is a substantial standard in this differential but it's still conditioned on the idea that there is actually support in the record for the facts their stated and we don't believe that's here as i stated earlier  which we believe that a choice of law is actually more properly before this court than the b i a but again we don't believe you need to reach that issue here  a government argument that mr de virus had not argued below that the birth certificate was not an act of acknowledgement but just like to point the court to a few pages in the record mr virus actually raised the sergeant before the b i in two thousand and eight that could be found a joint appendix page sixty six raise that before the immigration judge in two thousand and eight that can be found in page three fifty six of the joint appendix he raised it before the immigration judge in two thousand that could be found on page two hundred seventy nine in addition before a court proceedings before the immigration judge in two thousand he also said that the birth certificate was not an act of acknowledgment kate verda either and that can be found on page  statute legitimacy may be a status but legitimation is an act and originally that this status was immutable as we know you were born out of wedlock and you had the status but since then several jurisdictions including massachusetts have enacted statutes that allow children born out of wedlock to receive the same rights and for them to receive the same rights as a child born in wedlock the parent needs to take affirmative steps