this court is reviewing ms parks nationalisation appeal to novo as your honour's are aware they appellant has filed a motion for judicial notice of the superior courts notice of recognition or not registering it is there any determination as to the legitimacy of the out of state or foreign divorce yes so the court in us ins receives a document which is a request and this was filed back in two thousand and fifteen by prior counsel it was never served by the clerk due to clerical error i don't know why but at some  point last year the court became aware of the fact that it was never served on the parties and then the card served it sometime in july th of two thousand and eighteen i believe is that is there a california statute or provision that would tell us what is the legal effect of this document i know that i know of your by this document as a recognition of the court extension international comedy and that's recognized and i mean that's a lot to read into a piece of paper that got filed it may be that the california courts would give comedy to the divorce but i'm not sure that this just means that they've accompanies the filing of the confirmation no i believe it's basically the request paperwork it's a family court and you file it with the court the clerk then serves both parties if neither party to the foreign ministry how does that happen that usually there's particularly in family law there's a particular california provision that permits  this your honour's there are forms that the family law court uses and then there are procedures that the cork money when the fact the matter is we don't know what this means legally it could be that some fact finding might be in order to figure that out but we don't know what this means other than it's a piece of paper that says what it says while your honor's in the notice itself that was served upon me and upon mr troy it said i don't have this in the record but it is that you know it's not in the record and it should have been filed as part of the request for judicial notice because we can't really argue about that now because the other council doesn't have it and we don't have it yes  if you want to ask for another request for judicial notice we would entertain and i don't know whether it be granted but we can't discuss it here ok wouldn't be fair to anyone sure your nation recognize and judgment of a court of a foreign nation when the foreign court had proper jurisdiction and foresman does not prejudiced the rise of united states citizens or violate domestic public policy but that that that argument collides it on with code provision to all ninety one that says fondled these foreign divorce decrees are not recognized so i don't understand how  policy then the court generally does recognize all of us here is that that's the case because it's inconsistent with to all normal your honor there have been instances of the california domicile in california well you could they would you know there are different aspects you could certainly recognize under full faith and credit that there was a divorce in korea or some other jurisdiction but not necessarily for purposes of saying that it was a legitimate divorce under california law there could be other reasons one might look at for full faith and credit and international law you might look at a and whether both parties were doma silent in california so i think it would be more productive to figure out what the case law says about doma sile with respect to your client and whether in for a moment that international comedy does not apply so we must look into her domicile at the time she seek her divorce i have set forth numerous case law from supreme court th circuit th circuit rd circuit as well as the california supreme to say that dick did not really address this particular issue but that we have later california supreme court and th circuit cases that talk about the status of undocumented or illegal aliens correct and those are the ones that you say really would supersede whatever dick might say read the supreme court decision actually predates marriage and death so the fact that  defining the term resident what it means to be a resident on to the dissolution of marriage in california that i'm fortunately the dick decision which was kind of mixes and matches residence and doma silent i know later cases say this is been a common problem with courts in terms of the residents requirement is that the only was it residence or doma cell that would determine whether there was in b in being in california therefore he was a resident twenty nine dollars you why we're talking about domicile domiciles a federally constructed term that must be a uniform throughout all state domicile does not necessarily have anything to do with intent or residence for that matter we see in mississippi band of choctaw indians the minute the supreme court there decided it rule ruled that the california there's or can would you concede that there was a intent component to doma so in california where the state adopts the intent component of the federal law definition of domicile such as education cohen code of regulations the statute always says somebody can be a resident unless the immigration and nationality act statute to ninety one and relied on in remarriage take to find that appellant was domiciled in two thousand and nine as a threshold matter it's undisputed that the california law not the law of the foreign jurisdiction where the divorce  occurred in this case south korea applies to determine whether the state will recognize the foreign divorce and contrary to what you may have just heard california clearly defines domicile for its purposes which is physical intent or some physical presence plus and intend to remain indefinitely now before us c i s it was appellants burden to show that she was eligible for naturalization in every respect that included showing she was not a california dumb ciliary in two thousand and nine when she com terms of her visa to tourist visa right require a form residence with no intent to abandon it however your honor and i take issue with the council's characterization of certain line of cases we're not here arguing that the line of cases that say ok if you're on a b two b says so the government is is is is here is is not holding her to those promises she made she was out of status at the time in two thousand and nine at the time she commenced to form divorced she had overstayed ok well doesn't that seems even worse how could she st she's on a temporary visa and what she can't have the intent or the legal capacity it to have a residence in the united states so she has to maintain her residence in korea then she is out of status so she still undocumented or illegal how is it she could all of a sudden then be permitted to have this and that doesn't somehow transform her prior lack of intent to somehow the ability to form intent so under federal law isn't she in a situation where she can't legally federal law purposes however it's important to remember that this is an interpretation and application of california law by u s c i s flash frozen in two thousand and nine no  just kind of keep going because let's let's assume she was here on a temporary visa and she was that's correct and that's how she arrived but since iran let's assume she hasn't gone out of that status she's just here on a temporary visa she then goes and gets her korean divorce stamp through the korean consulate at that point would it be your view that she is a domiciliary of california if she meets the presence plus  visa and your position is she cannot if she if she were on a temporary visa when she got the korean divorce or view of the consulate she would not be a domiciliary of california because she couldn't have the and she's here in an undocumented status and how is it under federal immigration laws she could now have an intent to be a dom of california when she's not here even permitted to be a resident of california because she needs official immigration status so somehow by overstaying her because you you violate the terms of your visa the requirements that you stipulated to to get it are somehow out of the wind bambery not to get it your honor but once th once the visa expires you're here in unlawful status correct if you're here you know you're still the you still made these representations and i'm i'm somewhat surprised to see that the government is now saying  to get a temporary visa three to stay in the united states for x period of time i think that the consequence of what you're saying would have huge implications for the government but it also huge implications for the government in terms of federal programs in terms of for states in terms of state programs because you would now be kind of contradicting the federal and the th circuit law that says well if you're in this undocumented stat are have to commit or say that i i r i am unable as a matter of law to meet the test out of status now in remarriage debt reflects this kind of fact specific analysis when it comes to determining whether an alien has done a ciliary intent for the purposes of the california dissolution statute but you're not really when one difference is i mean i recognize that and my deck involves someone who had been a us citizen but then he later becomes canadian and several other things but you're suggesting that somehow when you move from the status of overseas have a visa holder oh a legal visa holder to an overstay that all of a sudden these immigration laws somehow don't apply and what category what category are you in when you overstay your visa you want an unlawful status you want ok and you ran on  violated what she's violated is you're supposed to go back home you're only here temporarily so if what are you saying that she's violated the intent clause somehow  if she's remained in this particular case not only has the appellant admitted that she was domiciliary in two thousand and nine but the evidence shows that she entered in two thousand and three overstayed a visa did not leave california since then she has a family here with two children that her the statutory terms had been violated at the time in two thousand and nine she was a visa overstay and we are not applying the i n a there is no definition of e toler whichever that is and the california supreme court and the federal cases why don't those actually prevail because they deal with this specific issue and dick is the california court appeal case with respect to the california court of appeal you've got th circuit and you have state supreme court cases that are at odds with dick your honor that may be true as as far as in read dec's interpretation their visa why is that you know because they're here and unlawful status and they're subject to removal on that basis as a overstay ok and so the part that she violated would be that she stayed too long past the date on her the more you repeat the law at least for me the less convinced i am and it's a huge problem for the government if you are saying as we ask you before that it's the government's position that that the representations you the one makes to get these visas go out of the window if you assume as you're out of status and person is is perfectly free to if we were to determine that the agency did not appropriately interpret the application of twenty not nine and doma silent residence then that would mean that her divorce was not on the absence of contrary law your honor the agents we believe the agency correctly interpreted state law which they were required to do before you sit down just run me through it because that is as i was presence plus an intent to remain there's no california law that says that somebody here on lawfully cannot form i don't see larry intent balance admitted to that it wasn't that apply when you were in status when you're intent as long as they didn't but again if they evidence a clear decision to remain they would be they would have by all but under your under your theory the the driver is the definition of under california law were correct so on and stand why the the as soon as the if that's true i set foot in california you know i got my tourist visa last week i set foot in california are i don't see why the representations that i made to get the visa r r r r are worth anything because california law look as you said looks to you no residency good law it hasn't been overturned for the application of the dissolution statute in the state of california not for the interpretation of the immigration nationality act or any other federal law so let me ask you just one last question i make sure i understand your position the day after you overstay your visa aren't you in violation of two potential parts of that these at one time restriction because you didn't go back home and the visa didn't permit you to form an intent aren't you still bound by both of those the moment you overstay your visa you are now in an unlawful status that's the effect of overseas because you were overstayed your visa because you waited the provision subject to any and all provisions of the immigration announced now the act in regards to whether she wants to readjust whether she becomes removable for any reason that is not at issue not from our view and we did this case ever go to  we we don't know you know we don't know so and we haven't had any backup so i don't think we want to argue that today but why do you want to say we understand your position it doesn't have any legal effect on this case it does not ok thank you you have a minute for rebutt in the text of marriage of dick section two hundred and ninety one is about the interpretation of the word domicile which as your honor as have correctly noted is very much supported by federal law as well as california law if we're talking hundred case in california the last question leaders cust with him you know alternate avenues possible mediation and if your client open to those as well your honors that is a fairy tale fiction that is not fair to subject my client to to deny her knowledge lies ations she would be immediately subject to being present her having her lawful permanent resident status rescinded b immigration judge she has been resistant proceedings right now which are being stayed pending this proceeding if she has her status rescinded she will be placed in removal proceedings as in visa overstayers she can and she very likely will be placed in detention no there's no it's completely discretionary there's no appeal of a u s citizen as a denial of her adjustment of status and if her son were willing to petition for her there would be an application in file today only mediation is to drop this case and to do everything that the government wants us to do which is to remarry and redo everything what was he got least another five years extending ten years beyond the time when she could have become a