castle morning thank you very much may please this court this case is an immigration case about a very old rule of family law one that is old enough to have been discussed by blackstone when two people are married and one of them gives birth to a child both of those people are the legal and legitimate parents of that child even when one of them may not have a biological relationship with that child it's a strong presumption it's a very strong presumption and in fact the supreme court in michael h the first is gerald d describes it almost as a substantive rule of law that is often described as a presumption but yes it's a change attained by the way he is detained in new jersey yes he is yes we saw him did not receive bond he did not read he had a hearing it didn't get he had a laura bond hearing and did not get a bond so he's detained right now in new jersey yes well ok yes so that was the rule both the common law and it is the rule that has been preserved in the state of new york where his father resided and where he resides the contrary rule that biological relationship is required when congress meant that when they meant to park in other words from the traditional rule they said so explicitly as they did in section three zero nine of the i n a which is about children who are born outside of wedlock there are a biological relationship is required and that's exactly what congress said when your point within a legal marriage yes you're presumed to be the child of that marriage brecht even if there is evidence to the contrary yes that under section three zero one because it doesn't contain that biological relationship rule we have this merrill presumption which is a very very old rule to overcome this strong presumption so there are various ways of verbal formulas of saying it but in substance what it means is that you need both to demonstrate not just  biological relationship doesn't exist because in many cases we know for example in same sex couples which the you know vermont supreme court and the new york court of appeals have said are entitled to the marital presumption that no biological relationship with one of the parents you also need to show essentially that reason and common sense would be offended by a contrary result and that is a very hard thing to do so the brief by the family law scholars has a great list of examples of cases where you know the courts did know that there was no biological relationship but because for example the father did not testify to non paternity or things like that that the presumption was not rebutted and most importantly it has to happen in new york before the child turns twenty one and it used to be before the child turned to for very good reasons you want people to be settled in their affairs and to know what their legal rights and obligations are so it's not impossible to rebut the common law had some exceptions but it's repeatedly described without contradiction by the government as one of the strongest presumptions known to the law and that's for a very good reason it protects the child's rights but it also protects the privacy of the marital family from interference remember this is a situation where jane was raised by jorge as his son he was you know he lived with his siblings in growing up growing up in panama he continue york he referred to him as dad you know all of this is a marital family and you know the lack of a biological relationship in that circumstance is exactly what the marital presumption is designed to sort of shield from disrupting this family's affairs the governments really only contrary authority for the existence of this biological relationship rule they don't say the statute requires that the statute doesn't require it they say that there are these two policy manuals of theirs that do require this rule i'll talk about i think kind of both of those and turn him into exactly right and i don't understand them to even contradict that they don't even ask for chevron deference they're not subject and we just heard a lot about notice and comment they don't go through the a p a there is no rule making they revise them whenever they want they say that on their website so that's important the u s c i s manual is not even binding on immigration judges or the b i a and this court has held for that reason in the case we cite in the brief but it's not entitled any kind of deference on this point whatsoever so the u s c i s manual we really think it is right out the foreign affairs manual first of all does not even prove this which is the state department manual does not even purport to be interpreted in this section section forty no one or section three one of the i and it's just sort of making general statements about what constitutes a parent without sort of restricting it to this so that's one problem but the other problem is that the state department does not administer the citizenship rules for people who are in the united states that's what the night  counsel counsel offers yes you know exactly right so it yes it's a set of rules that helps a you know if you have an american comes to the consulate office and says i've just given birth and i want you know one of the certificates that will indicate this to set of rules to guide that but it's not purporting to be the kind of thing that would resolve a case like this for persons in the united states and so that's why the ninth circuit and the government's been making this argument almost now for twenty years the ninth circuit said in two thousand in the scales case that for this reason it was not entitled to any kind of deference and his at any rate would be inconsistent with the statutory text even if it were but it's not and it's also as we know not the rationale but the b i adopted so for those reasons really a lot of the signs of meaning in this statute really all in the same direction the common law is the law of new york the sort of ordinary rules of statutory construction even the sort of larger principles of family unity kind of undergirding the i n a you know the courts have discussed many times all of this points in exactly the same direction and so for that reason we think we can be pretty confident that when congress and acted this rule in one thousand fifty two and that they you know have subsequently amended the immigration statute many times the immigration status have been amended many times since the ninth circuit's decisions on this matter has never been changed and so all of this is a case of first impression in the circuit we really do think that all the available evidence points in the same direction so if the court doesn't have any further questions i can reserve the balance of my time we'll hear from the may please the court rachel running for the respondent do you agree that there's a very strong presumption a child born within a marriage is legitimate i agree honor that as a common law concept and with respect to family law yes that is a strong presumption  simply challenging it's a political military in this particular case under these because it's the petitioners burden to establish by a preponderance of the evidence that the circumstances at the time of his birth that he was would have acquired citizenship at the time of his birth when he was born he was born in panama in one thousand nine hundred two his valid duly issued birth certificate at the time of his birth indicated that his biological parents or legal parents were both panamanian citizens neither of them were united states citizens the subsequent birth certificate was not issued until five years later in which he acknowledged mr borland as his united states citizen stepfather but even that certificate was issued simply for the limited purposes of scholastic purposes or something was not so that birth certificate should not outweigh the first contemporaneously issued birth certificate because the circumstances at birth are what control  admitted that there is a strong presumption that a child born within a legal marriage is the issue of that marriage in certain context your honor yes we agree with that i mean in certain contexts isn't that a basic rule in family law it's a rule that is not absolute it's a rule that can be overcome by clear and convincing evidence and i would say that to the extent that that rule exists in this case it would have been overcome by the issuance of a birth certificate acknowledging a different father who was a panamanian citizenship that's what has to control a mr borland didn't even come into the scenario until five years later petitioner did not move to the united states and become part of his custody until nine years after that when he was sixteen so i don't know how under those sets of circumstances mr borland would have been presumed acknowledge father at the time of his birth when you have all these countervailing factors so that's you know situation because paternity was not in dispute at the time of his birth right only and the statute does not define parent any more specifically  that's true and to the extent that this court would agree with the ninth circuit that it doesn't require a biological relationship that doesn't necessary that does it still doesn't establish that mr borland would have been the presumed father at the time of petitioners birth in panama that's you know so the court doesn't need to decide whether former section fourteen zero one a seven requires a biological relationship or it does not nor does it need to decide whether as a general rule new state's or any state's presumption of support turn and he has any application in immigration law because under the circumstances of this case his u s citizenship was not established at the time of his birth because the record demonstrates that he was born to t citizen parents in addition to assuming that he was the legitimate child the family law professors remind us that it takes a lot to re bought this presumption of legitimacy legitimacy by your argument is that he was illegitimate no that is not our argument in fact the the judge and board both said that they were they referred to panamanian law and the situation that under panamanian law he was not considered illegitimate because he had an acknowledged mother and father who were both on his panamanian issued birth certificate so the issue is not one of whether he's legitimate or not it's whether under the under the law that exists at the time of his birth and the domicile of his under new york law i suppose under new york law in certain contexts but again we're not talking about you are in new york for purposes of custody for purposes of child support certainly i mean i understand what the presumption of paternity means the government  years later and no custody until nine years after that so i would say again to the extent that new york state's presumption of paternity would apply it's been overcome by the circumstances of this case legitimise fathers know the our view is that the law of the state of new york like biology itself pretty makes no provision for dual fatherhood panama may regard him differently although there's no evidence that that's true but our argument is he has one father and that is the person was married to his mother the day he was born or he borland had to deal with the parent or maybe a birth certificate well so the panamanian birth certificate doesn't purport to represent anything other than a fact we've said doesn't matter under the law it says biologically this may be some evidence that he has a biological connection to someone else but our point is that that fact is not what matters for determining parenthood when there is a marriage so the certificate we care about is not the birth certificate but the marriage certificate and there are any cases of the family law professors discuss where for example you've got some certificate saying you know a divorce certificate saying that there are no issue of the marriage but there when there is a child who was born before that divorce nonetheless the presumption of the didn't see applies so in that circumstance the birth certificate doesn't purport to represent anything that has legal effect is our basic view and it is not correct that it was the basis for the board's decision the immigration judge did discuss it but that's not what the board relied on the only other thing to note just very briefly although it's true that mr jane did not move to the united states permanently until he was a teenager he shares that in common with all of his siblings were a bunch of his siblings who spent time growing up with their parents in panama three yeah back and forth somewhat regularly visited early as a child and that what they declarations from the family explain is while it was cheaper to raise children in panama so all of us spent time growing up with our grandparents our mother's parents so it's true that he didn't move the united states permanently but that's just