[00:00:01] Speaker 04:
Good morning, judges.

[00:00:02] Speaker 03:
Good morning.

[00:00:03] Speaker 04:
I mean, please, of course, I would like to reserve five minutes for any rebuttal.

[00:00:07] Speaker 03:
All right.

[00:00:08] Speaker 04:
So, Your Honors, in this case, it's an issue of whether or not, as we know, Mr. Munkata, who was born in New York and had several passports issued to him over the years, and in the excess of five to six different passports were issued to Mr. Munkata.

[00:00:29] Speaker 04:
Although, in this case, his father who was an attache.

[00:00:45] Speaker 03:
Hold on just a second.

[00:00:46] Speaker 03:
She's going to try to clear that hallway.

[00:00:48] Speaker 03:
Could you please clear them from the hallway so we can hear?

[00:00:54] Speaker 03:
Oh, they're walking from the other courtroom.

[00:00:56] Speaker 03:
I see.

[00:00:57] Speaker 03:
We'll hold on for just a second.

[00:01:17] Speaker 03:
They're congregating right there.

[00:01:22] Speaker 03:
We'll just wait for a few minutes.

[00:01:24] Speaker 04:
Yes, Your Honor.

[00:01:27] Speaker 03:
If you'd like to go back to council table, that'll be fine, Council.

[00:01:30] Speaker 04:
There's about hundreds of people, yes.

[00:02:18] Speaker 03:
Let us know when you think it's okay for us to proceed.

[00:02:20] Speaker 03:
Thank you.

[00:03:00] Speaker 03:
Oh, yes.

[00:03:02] Speaker 03:
Yeah, it's really.

[00:03:12] Speaker 03:
The parking lot is full.

[00:03:14] Speaker 03:
Oh, gee, my pearly was like the parking lot was full when I came in this morning.

[00:03:52] Speaker 03:
That's helpful.

[00:04:22] Speaker 03:
You didn't get very far the first time.

[00:04:24] Speaker 04:
That's okay.

[00:04:27] Speaker 04:
Can we please the court?

[00:04:29] Speaker 04:
Thank you.

[00:04:30] Speaker 04:
So, as I was saying earlier, Your Honors, Mr. Moncada had in excess of six U.S.

[00:04:37] Speaker 04:
passports.

[00:04:39] Speaker 04:
Every time that he filed for those six U.S.

[00:04:41] Speaker 04:
passports, at the beginning of—in 1978 and 1980, there was questions in Managua whether or not Mr. Mercado was subject to the jurisdiction of the United States, and unequivocally, the State Department answered yes.

[00:04:55] Speaker 02:
There was no indication whatsoever that he— The fact pattern is so compelling, because it seems like this—if it was a mistake, that it was repeated for decades.

[00:05:05] Speaker 04:
Yes.

[00:05:05] Speaker 02:
But I don't think you're relying on a stop all.

[00:05:09] Speaker 02:
And it's it again is a very compelling situation.

[00:05:13] Speaker 02:
I'm trying to figure out where is the legal error.

[00:05:17] Speaker 04:
The error is from the district court's analysis of reliance only on Donovan.

[00:05:23] Speaker 00:
Donovan looked at- I didn't take the district court to be relying on Donovan as conclusive.

[00:05:30] Speaker 00:
There were other evidence, other records provided that supported this.

[00:05:36] Speaker 00:
Did you ... What's the best evidence that you got in the record that would support your claim?

[00:05:43] Speaker 00:
Because it seemed like most of the evidence was from the government.

[00:05:46] Speaker 04:
Some of the evidence is that there's no A1 visa.

[00:05:49] Speaker 04:
The diplomatic visa was not even issued to Dr. Moncada at the time.

[00:05:54] Speaker 04:
In fact, Dr. Moncada entered the United States, then at that point, later on, got a post to work in New York.

[00:06:02] Speaker 04:
The other point is that we can I just why is it meaningful that there wasn't a diplomatic visa I don't what's what's the legal significance of this because of the diplomatic visa then would have allowed the State Department to issue a issue him the

[00:06:18] Speaker 02:
So I think what you're saying is that typically one would expect that if someone were coming over as part of a diplomatic mission, they would have a diplomatic visa.

[00:06:27] Speaker 02:
Is that what you're telling me?

[00:06:28] Speaker 02:
Yes.

[00:06:28] Speaker 02:
Is there evidence in the record indicating that that was the routine practice at the time?

[00:06:33] Speaker 04:
Your Honor, the routine practice, that's not in the record.

[00:06:36] Speaker 04:
But what is not in the record is that there was no visa issue.

[00:06:40] Speaker 04:
Also in the record, there's no evidence.

[00:06:42] Speaker 04:
A request was made to ask whether or not Dr. Mankata was in fact having the immunities, and there was no record found.

[00:06:51] Speaker 04:
Even Donovan testified that there was no record found whatsoever regarding that.

[00:06:56] Speaker 00:
And that is at the root of the government's repeated mistakes over decades of identifying Mr. Moncada as a citizen.

[00:07:05] Speaker 00:
But you agree that we're bound by the Mundaka Vega shifting burden, so the government, after

[00:07:13] Speaker 00:
as your client produced a passport, the government has to establish by clear and convincing evidence.

[00:07:19] Speaker 00:
Yes.

[00:07:20] Speaker 00:
There is what they argue is a conclusive certification.

[00:07:24] Speaker 00:
But beyond that, they provide circumstantial evidence in terms of many different documents that are all consistent with him being in joint diplomatic immunity at the time.

[00:07:36] Speaker 04:
Yes, sir.

[00:07:36] Speaker 04:
There's another issue.

[00:07:38] Speaker 04:
In the, Mr. Dr. Munkata was a delegate.

[00:07:43] Speaker 04:
He's attached, as I've argued in my motion.

[00:07:46] Speaker 04:
And he's attached to the ambassador.

[00:07:48] Speaker 04:
The ambassador, Mr. Sakasa, Dr. Sakasa, was actually in Washington, DC.

[00:07:53] Speaker 04:
There was no permanent mission for two countries.

[00:07:56] Speaker 04:
One of them was Nicaragua, and the other was Liberia in 1950.

[00:08:00] Speaker 04:
So the problem was there's a mistake made.

[00:08:02] Speaker 04:
There's an error of fact that the New York delegation

[00:08:08] Speaker 04:
was attached, was an attache.

[00:08:11] Speaker 04:
And therefore, the problem is that the State Department and the USUN mistakenly thought that that was the permanent mission.

[00:08:18] Speaker 04:
But it was not.

[00:08:19] Speaker 04:
The permanent mission was in Washington, DC, 234 miles away.

[00:08:23] Speaker 02:
So this is the evidence Judge Donston's calling your attention to the burden shifting.

[00:08:28] Speaker 02:
And your contention is that the evidence that defeats the government's case is what, exactly?

[00:08:34] Speaker 04:
is the fact that the Dr. Munkata was not, there's no principal named.

[00:08:41] Speaker 04:
In the blue list that the government put together, there needs to be a name of the principal.

[00:08:47] Speaker 04:
And the principal would have been the ambassador.

[00:08:50] Speaker 02:
Is there testimony up to this point?

[00:08:55] Speaker 04:
There's no testimony, but there is an argument being made regarding that point.

[00:09:01] Speaker 04:
And the father was not in the US-UN blue list.

[00:09:09] Speaker 04:
This person upon US mission to the United Nations conferred pros and munities.

[00:09:13] Speaker 04:
Their title and name with a principal diplomat appears on this page 12 document 143.1.

[00:09:21] Speaker 04:
was filed and see exhibits three to five.

[00:09:25] Speaker 04:
Exhibit three to five is in the record.

[00:09:28] Speaker 04:
And that's where it does state in there that the principal diplomat needs to be appearing on the list.

[00:09:33] Speaker 02:
Exhibit three to five is what?

[00:09:36] Speaker 02:
Is that somebody's declaration?

[00:09:38] Speaker 02:
What is that?

[00:09:40] Speaker 02:
We really need to know.

[00:09:41] Speaker 04:
That was actually from the district court.

[00:09:43] Speaker 04:
The district court's findings are fact.

[00:09:48] Speaker 04:
And in particular, I'm looking at page 12.

[00:09:52] Speaker 04:
Uh, paragraph 55.

[00:09:55] Speaker 02:
Okay.

[00:09:55] Speaker 02:
Hang on.

[00:10:02] Speaker 02:
Okay.

[00:10:03] Speaker 02:
So I'm there.

[00:10:05] Speaker 02:
Well, I'm on page 12.

[00:10:06] Speaker 02:
It's not, oh, page 12.

[00:10:08] Speaker 02:
You don't mean ER.

[00:10:09] Speaker 02:
You mean.

[00:10:10] Speaker 02:
Okay.

[00:10:12] Speaker 02:
Well, page 12 doesn't have a paragraph 55.

[00:10:17] Speaker 02:
You mean ER, ER 12 or page 12?

[00:10:22] Speaker 02:
or you might mean paragraph 55.

[00:10:25] Speaker 02:
Paragraph 55 says the document does not list Dr. Moncada's wife but appears to list the spouses of other individuals.

[00:10:35] Speaker 02:
I think I'm in the wrong place and I want to make sure that I understand your position.

[00:10:39] Speaker 04:
When I come back on rebuttal, I'll find the exact nation on that site.

[00:10:43] Speaker 00:
So just to zoom back a little bit here, would you agree that the president's recognition power, if we had direct evidence of the president's recognition of Mr. Mercado's father as being a diplomat with standard immunity status, that that would be conclusive?

[00:11:08] Speaker 00:
It would not be conclusive.

[00:11:10] Speaker 00:
How can we question the president's?

[00:11:12] Speaker 00:
So again, and there's an executor at 182, and I'll be interested from the government in terms of the legal effect of that, but what authority do we have to question the president's, if the fact that was established, and I agree with, it wasn't established here, we're trying to establish it through circumstantial evidence,

[00:11:33] Speaker 00:
But if the fact that was established and found was that President Truman, in fact, received Mr. Moncada's father as an ambassador under Article II of the Constitution, if that fact were established,

[00:11:52] Speaker 00:
Why wouldn't that be conclusive and binding on us under the Constitution?

[00:11:56] Speaker 04:
Well, number one, he was not an ambassador.

[00:11:58] Speaker 04:
He was an attache.

[00:12:00] Speaker 00:
I'm asking you a hypothetical.

[00:12:03] Speaker 00:
I'll have other questions that deal with the record here.

[00:12:05] Speaker 04:
Hypothetically, yes, Your Honor.

[00:12:07] Speaker 04:
Hypothetically, he was received as an ambassador.

[00:12:09] Speaker 00:
Okay, and then the problem here is, and your contention is the executor that's at ER 182 does not accomplish that.

[00:12:19] Speaker 00:
Correct.

[00:12:20] Speaker 04:
Why is that?

[00:12:21] Speaker 04:
Because he's not, because number one, again, the offices are the big problem.

[00:12:28] Speaker 04:
The office in New York was not the permanent

[00:12:32] Speaker 04:
It was only a delegation.

[00:12:34] Speaker 04:
And the mistake was that the USUN made a mistake in assuming that that was the permanent mission.

[00:12:45] Speaker 00:
Was it a mistake made by the president or people acting on their behalf, or was it a mistake by the people with authority, or was it a mistake about what the people in authority actually did?

[00:12:57] Speaker 04:
It was a mistake by the people in authority assuming that because every other country at that time, excluding Liberia, was having their permanent mission in New York.

[00:13:09] Speaker 04:
And my client's father was only a delegate.

[00:13:13] Speaker 02:
What evidence shows that these two countries, and you only care about one of them, the mission wasn't permanently in New York?

[00:13:21] Speaker 04:
Your Honor, I have seen that, and I've read that on the record, and I'd have to, I can focus.

[00:13:25] Speaker 02:
But your answer, not to use all your time, is that we have evidence of that.

[00:13:29] Speaker 04:
I've seen that, yes.

[00:13:31] Speaker 04:
That it was attached in there, the countries that were, Nicaragua was one of the countries, and in fact, one of the documents in the blue list, the blue list that the government relies upon, in that blue list, you'll see countries listed, you'll see Nicaragua in there, you will see Moncada's name in one of the blue lists, but he's not attached, in there, the address is New York.

[00:13:51] Speaker 04:
but it does not show who he's attached to, which is required, which I've shown before the court, and moreover, that he is not a person, part of the permanent mission, just the delegation in New York, which the permanent, which was, again, within, the UN rules would have been within 50 miles of New York City, and Washington, D.C., which- But according to, I guess, so, you can see that

[00:14:17] Speaker 00:
However, the president wants to determine the terms of who is and who isn't want to be received as that, as a sufficiently diplomatic officer.

[00:14:32] Speaker 00:
Disruption.

[00:14:33] Speaker 04:
I'm sorry.

[00:14:34] Speaker 04:
That's my client.

[00:14:35] Speaker 04:
Your Honor, I think my time has expired.

[00:14:38] Speaker 04:
May I reserve that rebuttal?

[00:14:39] Speaker 04:
But I understand that's the president's.

[00:14:41] Speaker 03:
Your time has not expired.

[00:14:42] Speaker 03:
You have 4.5 points.

[00:14:44] Speaker 00:
But if you could just say, yeah.

[00:14:45] Speaker 00:
So I guess we're just trying to figure out.

[00:14:47] Speaker 00:
So the president can decide.

[00:14:48] Speaker 00:
And that's why I think it matters.

[00:14:49] Speaker 00:
What we're trying to establish, as a matter of fact, is.

[00:14:54] Speaker 03:
Sir.

[00:14:55] Speaker 00:
OK, one second.

[00:14:57] Speaker 03:
I'm sorry.

[00:14:59] Speaker 03:
You don't have the right to speak up, sir.

[00:15:03] Speaker 00:
Sorry.

[00:15:05] Speaker 00:
The president—so you say that there's a mistake or confusion over who is being recognized and what the status is.

[00:15:14] Speaker 00:
I'm trying to understand whether your claim is—the mistake is that whether the president and people acting on his behalf did

[00:15:25] Speaker 00:
receive Mr. Mankato's father in the mistaken authority or they receive it something else and the records since then have gotten lost and that we're getting it wrong.

[00:15:35] Speaker 00:
The president actually received him in a nonimmune status.

[00:15:41] Speaker 00:
And subsequent mistakes of fact have led us to believe that he was received in an immune status.

[00:15:48] Speaker 04:
The latter argument.

[00:15:49] Speaker 04:
The counsel, he was a counsel.

[00:15:52] Speaker 04:
He was not an ambassador ever.

[00:15:55] Speaker 00:
Right, I'm referring to that.

[00:15:56] Speaker 03:
You're going to have to be removed if you continue to disrupt the proceedings.

[00:16:00] Speaker 03:
If there is something you want to give counsel, you can do it when he goes back to his seat.

[00:16:04] Speaker 03:
But you cannot disrupt the proceedings, please.

[00:16:09] Speaker 04:
He was a counsel, but not having the diplomatic immunities, because that was a mistake made upwards by including up to the President of the United States, who erred in getting the wrong information.

[00:16:24] Speaker 04:
wrong information provided that there's an assumption that Dr. Munkata was in fact a council and he was just an attaché at the time.

[00:16:35] Speaker 04:
But anyway, if I can move on to another argument.

[00:16:37] Speaker 04:
The other thing is the

[00:16:39] Speaker 04:
Dr. Mr. Mukata's wife, I'm sorry, mother, his father's wife, was in LPR, admitted as an LPR at the time.

[00:16:50] Speaker 02:
Your brief mentions this and I can't figure out what you mean when you say at the time.

[00:16:54] Speaker 02:
She was an LPR when?

[00:16:56] Speaker 04:
When she entered the United States in the 1940s.

[00:17:00] Speaker 02:
Did she enter married to him?

[00:17:02] Speaker 04:
No.

[00:17:02] Speaker 02:
That's what I thought.

[00:17:03] Speaker 02:
They married here?

[00:17:05] Speaker 04:
Correct.

[00:17:05] Speaker 02:
Okay.

[00:17:06] Speaker 02:
And then, so what was her status as of the time of the date of his birth?

[00:17:09] Speaker 04:
a green card holder, an LPR, lawful permanent resident.

[00:17:13] Speaker 02:
But she would have also had whatever status his family had, right?

[00:17:16] Speaker 04:
I understand.

[00:17:17] Speaker 04:
But we have cited rules that because she's either a U.S.

[00:17:22] Speaker 04:
citizen or a national, and in this case we argue that the U.S.

[00:17:27] Speaker 04:
citizen or a national

[00:17:29] Speaker 04:
owing permanent allegiances to the United States at the time, would subject Mr. Munkata to having the United States' jurisdiction over him at his birth in New York, because she was a permanent resident at the time, and at all times.

[00:17:47] Speaker 02:
When you say at all times?

[00:17:49] Speaker 04:
At all times during his birth, before he was born and when he was born.

[00:17:53] Speaker 04:
She was still a permanent resident.

[00:17:56] Speaker 02:
But wouldn't she also have had whatever status your client's father's family had?

[00:18:03] Speaker 02:
The immediate family got the status that he was given, right?

[00:18:06] Speaker 02:
So the question still comes back to what status was he given?

[00:18:09] Speaker 04:
Well, there's two problems with that.

[00:18:11] Speaker 04:
The first argument, obviously, it goes back to our first argument that he was not even a dip.

[00:18:16] Speaker 02:
I understand that, but you have a minute and a half left.

[00:18:20] Speaker 02:
So let me get to this, if I could, because I am troubled by this.

[00:18:24] Speaker 02:
If she had been unmarried but had LPR status, and as I understand it, she had LPR status on the day of his birth.

[00:18:34] Speaker 04:
Yes.

[00:18:34] Speaker 02:
All right.

[00:18:35] Speaker 02:
So the government will speak to this.

[00:18:37] Speaker 02:
I'll ask the same question, but it seems to be the government's position is that his mother then actually had both statuses.

[00:18:43] Speaker 04:
She couldn't have both statuses because she couldn't get a visa.

[00:18:46] Speaker 04:
She could not get a diplomatic visa.

[00:18:48] Speaker 04:
Secondly, because she's an lawful permanent residence, cannot get visas because they're already permanent.

[00:18:53] Speaker 02:
So, sir, if you'd let me ask my question?

[00:18:54] Speaker 02:
Yes, Your Honor.

[00:18:55] Speaker 02:
My question is, would he be entitled to citizenship as a result of birth by his mother, who was an LPR, notwithstanding his father's status?

[00:19:05] Speaker 04:
Yes, he would.

[00:19:05] Speaker 02:
He would be able to- Would you make that argument?

[00:19:07] Speaker 04:
And we made that argument in my reply brief, Your Honor.

[00:19:13] Speaker 02:
Well, maybe the government can speak to that, because it's one of the things that's bothering me.

[00:19:17] Speaker 04:
OK, Your Honor.

[00:19:17] Speaker 03:
All right, Counsel, if you could get whatever information is being sought to give you, you can frame that back on your rebuttal.

[00:19:24] Speaker 03:
Thank you, Counsel.

[00:19:25] Speaker 03:
Thank you, Your Honor.

[00:19:39] Speaker 01:
Council morning your honors Ruth Ann Mueller on behalf of the United States

[00:19:45] Speaker 01:
Your Honors, there are two ways to obtain citizenship under the 14th Amendment.

[00:19:50] Speaker 01:
The first, being born subject to the jurisdiction of the United States.

[00:19:54] Speaker 01:
The second, applying for naturalization.

[00:19:56] Speaker 02:
Can I ask about the first?

[00:19:58] Speaker 02:
My problem is, it seems to me there's places in his briefing where he says that his mother was an LPR status.

[00:20:03] Speaker 02:
If she hadn't been married, just setting his dad aside, why isn't he entitled to citizenship vis-a-vis his mother?

[00:20:08] Speaker 02:
He was born in New York, right?

[00:20:10] Speaker 01:
Yes, Your Honor, he was born in New York.

[00:20:12] Speaker 01:
The issue of Mrs. Morales's status at the time of Mr. Munkata's birth is a red herring in this case, Your Honor.

[00:20:19] Speaker 01:
This issue, the relevance of Mrs. Morales's status had not come up in the district court proceedings at all, and for three other reasons.

[00:20:27] Speaker 01:
First, we know when Mrs. Morales applied for legal permanent residence status.

[00:20:31] Speaker 01:
It was in the 1970s, and that is in the government supplemental excerpts of record.

[00:20:35] Speaker 01:
That was attached to the government's motion for summary judgment.

[00:20:38] Speaker 01:
He didn't have it earlier?

[00:20:40] Speaker 01:
We don't know that, Your Honor.

[00:20:41] Speaker 02:
Well, he's asserted that she did.

[00:20:42] Speaker 02:
So that's a, OK.

[00:20:44] Speaker 02:
I've got a bullet point for that.

[00:20:46] Speaker 02:
What's your two other points, please?

[00:20:47] Speaker 01:
Your Honor, second, Mrs. Morales appears on the USUN blue list.

[00:20:52] Speaker 01:
And we know that Dr. McConnell and Mrs. Morales then both were afforded full diplomatic agent level.

[00:20:57] Speaker 01:
Right.

[00:20:57] Speaker 02:
So as a matter of law, if that's the case, let's just take a hypothetical, because I don't understand how this works, of course.

[00:21:03] Speaker 02:
and we don't see these cases very often but if she but if he if if she had lpr status i don't know if that's right that is certainly alleged if she had that status on the date of his birth would her would with the fact that she was married to his father who and and dad's immediate family would have had diplomatic status does that somehow negate his entitlement to citizenship that he would have had vis-a-vis his mother yes your honor because one the privileges and immunities

[00:21:29] Speaker 01:
were derived from Dr. Munkata, not Mrs. Morales.

[00:21:32] Speaker 02:
But it's not like his mom didn't exist.

[00:21:34] Speaker 02:
I understand the privileges and immunities flowing from, but if he had both, right, if he had that, I'm trying to figure out how his father's diplomatic status was sort of how negate his right to citizenship that he, if he would have otherwise had it vis-a-vis his mother's presence in the lawful presence in the country on the date of his birth.

[00:21:52] Speaker 01:
If Mrs. Morales was a legal permanent resident at the time

[00:21:56] Speaker 01:
of Mr. Moncada's birth, Mr. Moncada would still have been born not subject to the jurisdiction of the United States because Mrs. Morales was an LPR, not a national under the VCDR.

[00:22:09] Speaker 02:
The answer to my question is yes.

[00:22:11] Speaker 02:
In other words, having a father who had diplomatic status would disentitle him to citizenship as a matter of law?

[00:22:18] Speaker 02:
Yes, Your Honor.

[00:22:19] Speaker 02:
Okay, so that's helpful.

[00:22:20] Speaker 02:
Can you tell me where do I look for the legal authority supporting that proposition?

[00:22:23] Speaker 01:
The proposition of that would be in the government's briefing, Your Honor, the answering brief.

[00:22:28] Speaker 02:
OK.

[00:22:30] Speaker 01:
Our argument starts on page one, court's indulgence.

[00:22:35] Speaker 01:
Sure.

[00:22:36] Speaker 01:
Thank you for digging it out.

[00:22:40] Speaker 02:
I think you did brief this, but I'm not sure it really put this question to bed for me.

[00:22:44] Speaker 02:
So OK.

[00:22:45] Speaker 02:
Page 42, Your Honor, of the government's brief.

[00:22:47] Speaker 02:
42.

[00:22:48] Speaker 02:
OK.

[00:22:49] Speaker 02:
So unfortunately, that's the table.

[00:22:51] Speaker 02:
page that I have tabbed.

[00:22:52] Speaker 02:
So the other premise, the initial premise that his mother had LPR status when she came to this country is quite different than what you just represented, because your records show that she obtained or applied for it in the 70s, you said.

[00:23:08] Speaker 02:
Yes, Your Honor.

[00:23:08] Speaker 02:
Was that tracked to ground?

[00:23:11] Speaker 02:
Excuse me, Your Honor.

[00:23:12] Speaker 02:
Did the district court make any findings about that?

[00:23:14] Speaker 01:
No, Your Honor.

[00:23:15] Speaker 01:
So again, the fact that Mrs. Morales was an LPR at that time, it was attached to the government's motion for summary judgment reply.

[00:23:24] Speaker 01:
But the relevance of that status was not before the district court during the trial.

[00:23:28] Speaker 02:
Well, so page 42 of your brief, the relevance wasn't, because the argument wasn't presented to you?

[00:23:35] Speaker 02:
Yes, Your Honor.

[00:23:36] Speaker 02:
Okay.

[00:23:36] Speaker 01:
And there was no evidence, separate evidence, submitted at trial regarding Mrs. Morales' status, because it's not relevant to the inquiry that's before the court today.

[00:23:47] Speaker 01:
Was Dr. Moncada

[00:23:49] Speaker 02:
That's a conclusion.

[00:23:51] Speaker 02:
You're saying it's not relevant to our inquiry today, and I don't know if that means you're taking the position that this argument was not exhausted.

[00:23:57] Speaker 02:
That would be one reason.

[00:23:58] Speaker 02:
Or if you're taking the position that as a matter of law, even if she had LPR status, it wouldn't entitle him to citizenship.

[00:24:04] Speaker 02:
As a matter of law, Your Honor.

[00:24:05] Speaker 02:
Okay.

[00:24:06] Speaker 02:
Thank you for your patience with my questions.

[00:24:08] Speaker 00:
Well, so as a matter of law, which law?

[00:24:11] Speaker 00:
The Vienna Convention had not been ratified at the time of Mr. Moncato's birth.

[00:24:15] Speaker 01:
Yes, Your Honor.

[00:24:16] Speaker 01:
So even though that this case occurred, facts of this case occurred before the VCDR, the parties are in agreement that the VCDR

[00:24:24] Speaker 01:
which codified long-standing diplomatic immunity laws would apply in this case.

[00:24:30] Speaker 00:
So the question of what- Not the VCDR, but the international law principles that it codified.

[00:24:36] Speaker 00:
Yes.

[00:24:36] Speaker 02:
Yes, Your Honor.

[00:24:36] Speaker 02:
OK.

[00:24:36] Speaker 02:
So on page 42, your position is just the relevance of Mr. Morales's immigration status at the time of Moncada's birth was not raised at trial.

[00:24:47] Speaker 02:
And then it says C-2ER92.

[00:24:49] Speaker 02:
And I had trouble getting to C-2ER92.

[00:24:55] Speaker 02:
But it sounds like your position was not, it was limited to the fact that it's unexhausted.

[00:25:00] Speaker 02:
Do I misunderstand this part of the brief?

[00:25:02] Speaker 01:
It's not a matter of law.

[00:25:03] Speaker 01:
So on page 42 is where our position begins.

[00:25:05] Speaker 01:
On page 43, I go through the, in 44, I go through, it goes through those three examples that I gave as to why the LPR status of Mrs. Morales.

[00:25:15] Speaker 01:
One, she didn't, based off the briefing, or based off our evidence, we know when Mrs. Morales

[00:25:20] Speaker 01:
applying for LPR status, and even if she was an LPR at the time of Mr. McAuliffe's birth, he still would have not been born subject to jurisdiction.

[00:25:29] Speaker 02:
But that only— Well, this argument on page 43 really—and these authorities—I'm happy to retrace these steps.

[00:25:35] Speaker 02:
I'm not an expert in this area by a long shot.

[00:25:37] Speaker 02:
As I said, we rarely see these cases, but I understood these authorities to stand for the proposition that—and I think this is your argument—that somehow—well,

[00:25:46] Speaker 02:
I understood these authority system for the proposition that not withstanding his mother's status, he would have been subject to his dad's immunity.

[00:25:54] Speaker 02:
He would have been entitled to that diplomatic status.

[00:25:56] Speaker 02:
That's quite different than saying that the diplomatic status somehow wipes out his right to citizenship vis-a-vis his mother.

[00:26:04] Speaker 01:
Yes, your honor.

[00:26:04] Speaker 01:
So if you go to the bottom of page 44, this is Artiga versus Mukazi, which is a case in front of this court that determines whether or not an LPR is a national.

[00:26:18] Speaker 01:
And the language of the VCDR says that individuals who are nationals of the country would not have diplomatic immunity.

[00:26:25] Speaker 01:
But Mrs. Morales was not a national.

[00:26:27] Speaker 01:
At that time, even if she had legal permanent residence status, she had not applied for citizenship, which was the facts in that case and whether or not she had owed an allegiance to the United States at that time.

[00:26:38] Speaker 01:
So even if she was an LPR.

[00:26:40] Speaker 01:
that would not change the analysis here.

[00:26:44] Speaker 02:
Well, I think it doesn't change the analysis because you keep telling me that regardless, I think you're saying, that regardless of her status, because she was married to her husband, she was going to have diplomatic status.

[00:26:55] Speaker 02:
Yes, Your Honor.

[00:26:56] Speaker 02:
If Mrs. Morales was- So is it, counsel?

[00:26:58] Speaker 02:
So is it, that's what I'm trying to get.

[00:26:59] Speaker 02:
I'm not fighting that.

[00:27:01] Speaker 02:
I'm trying to figure out if she also had LPR status, if she had a green card during this period of time, is it she would not hold both

[00:27:09] Speaker 02:
statuses at the same time?

[00:27:11] Speaker 01:
It's possible, Your Honor.

[00:27:12] Speaker 01:
I don't know the exact answer to your question, but I do know that if she was a citizen, then she would not have diplomatic immunity.

[00:27:20] Speaker 02:
Okay, but nobody suggests she was a citizen, so that's off the table, or I've really misperceived the status here.

[00:27:27] Speaker 02:
I'm trying to figure out whether or not

[00:27:28] Speaker 02:
If it was, it sounds like your position is it wasn't shown that his mother was an LPR status at the time.

[00:27:36] Speaker 02:
I don't know if he could prove that.

[00:27:37] Speaker 02:
But I am quite interested in figuring out that if he could, whether that would make a difference.

[00:27:42] Speaker 02:
And it sounds like your first argument is he didn't raise it, so you consider that argument to be unexhausted.

[00:27:48] Speaker 02:
And it sounds like the second argument is that... Well, we know when she applied for LPR status in the 1970s.

[00:27:54] Speaker 01:
And third, even if she was an LPR at the time that he was born, that does not change the fact that he was born not subject to the jurisdiction of the United States because... But that's because his father.

[00:28:05] Speaker 01:
Because of his father, yes.

[00:28:06] Speaker 02:
Yeah, but I'm trying to figure out why his father's status wipes out his mother's status.

[00:28:10] Speaker 02:
Because otherwise he would be entitled to citizenship.

[00:28:12] Speaker 01:
Because the privileges and immunities were derived from Dr. Moncada because he was the one that was afforded full diplomatic.

[00:28:19] Speaker 00:
We're probably right next to each other.

[00:28:21] Speaker 00:
I think we're going in circles a little bit in terms of the argument.

[00:28:26] Speaker 00:
Mr. Moncada's situation, which is a grave mistake by our government, he's bringing a claim under the 14th Amendment.

[00:28:35] Speaker 00:
And his entitlement that he's claiming

[00:28:39] Speaker 00:
is under the 14th Amendment.

[00:28:40] Speaker 00:
Now there are statutes and conventions and other things coming down.

[00:28:44] Speaker 00:
But I guess to pick up on your discussion with Judge Kristen,

[00:28:51] Speaker 00:
Why doesn't that inquiry come first?

[00:28:55] Speaker 00:
Why are we looking to all of these mistake of fact, mistake of law?

[00:29:00] Speaker 00:
Why are we looking to questions of the niceties of how this works in the ordinary course with respect to the immunity of people in cases when the Constitution has to come first?

[00:29:17] Speaker 00:
In other words, why would his birthright citizenship, as alleged, not overcome whatever international law, which is subordinate to the Constitution, that would be the source of the immunities?

[00:29:33] Speaker 01:
Yes, Your Honor.

[00:29:34] Speaker 01:
And it does go back to the Constitution.

[00:29:35] Speaker 01:
It goes back to the reception clause, where the executive is able to determine who will be

[00:29:42] Speaker 01:
be a diplomat in the United States.

[00:29:45] Speaker 01:
And from there, the executive, the Department of State.

[00:29:48] Speaker 02:
Why is that the starting point?

[00:29:49] Speaker 02:
Judge Johnson is asking a different question.

[00:29:52] Speaker 02:
He's asking a different question.

[00:29:54] Speaker 00:
Yeah, I understand that the jurisdiction is a product of that.

[00:29:56] Speaker 00:
Of course, that just takes us back into the fact that we, I don't think the government suggests even that there is, that we have direct proof of the president's recognition of Mr. Mankata's father for purposes of immunity, right?

[00:30:14] Speaker 00:
There isn't, there's an executor, but you don't rely on that.

[00:30:17] Speaker 00:
You rely on a certification.

[00:30:19] Speaker 01:
Yes, your honor.

[00:30:21] Speaker 00:
six, seven presidential administrations later.

[00:30:24] Speaker 00:
I understand that we may be bound by President Truman's recognition if that were the case.

[00:30:33] Speaker 00:
But the government doesn't seem to be relying on that.

[00:30:36] Speaker 00:
It's relying on MC Donovan's

[00:30:38] Speaker 00:
certification so that's that's one piece I mean I guess I should say what would you suggest is what is the best not in the technical term although we'll raise that too what is the best piece of evidence we would look at to see that the president in fact conferred status that from which this immunity flowed under the 14th amendment you would look at the certification

[00:31:08] Speaker 00:
The certification is not from the president.

[00:31:11] Speaker 01:
But it's from the executive, your honor.

[00:31:13] Speaker 00:
It's from a different executive.

[00:31:15] Speaker 00:
And my concern when we're dealing with the 14th Amendment and all of our rights to be birthright citizens in this country is that a post hoc certification that itself doesn't seem to rely on anything else than the evidence that was presented at trial

[00:31:33] Speaker 00:
should not overcome a punitive citizen's constitutional right to be a citizen of this country because he was born here subject to the jurisdiction of our laws.

[00:31:44] Speaker 01:
Understood, Your Honor.

[00:31:45] Speaker 01:
And again, the decision that was made to afford the diplomatic privileges and immunity to Dr. Munkato was not post-Hawkins.

[00:31:52] Speaker 01:
It occurred in 1950.

[00:31:53] Speaker 01:
We have that documentation.

[00:31:55] Speaker 01:
And if the court does not want to accept the certification as conclusive, it can do what the district court judge did and find it as highly persuasive in looking at the certification.

[00:32:03] Speaker 01:
The US UN blue list, which Minister Counselor Donovan testified, is the key piece of evidence in determining if someone has been afforded full diplomatic privileges and immunities as a member of a permanent mission to the United Nations.

[00:32:15] Speaker 00:
Okay, so the certification the certification you're talking about is not the Donovan certification now

[00:32:25] Speaker 00:
What's the, is there evidence here that, is there a document from the, so let's start with the executor.

[00:32:33] Speaker 00:
It seems like that doesn't govern here.

[00:32:36] Speaker 00:
The executor is from the president and seems like the sort of document by which a president would exercise their reception power.

[00:32:46] Speaker 00:
But the government's not relying on that exclusively.

[00:32:49] Speaker 00:
Why is that not conclusive evidence?

[00:32:52] Speaker 01:
Yes, Your Honor.

[00:32:53] Speaker 01:
I'm looking at the executor and this is on ER 182.

[00:32:56] Speaker 01:
This predated the time that Dr. Moncada received full diplomatic privileges and immunities.

[00:33:01] Speaker 00:
Would there have been a similar document that would have been issued that is now lost to establish his status at the time of Mr. Moncada's birth?

[00:33:13] Speaker 01:
In 1950, contemporaneously.

[00:33:15] Speaker 01:
Not that I'm aware of, Your Honor.

[00:33:17] Speaker 00:
Not that you're aware of that one doesn't exist or that the President would have never received the credentials or done some formal act of recognition.

[00:33:27] Speaker 01:
Well, the credentials were received at the host country affairs office at the U.S.

[00:33:33] Speaker 01:
Mission to the United Nations.

[00:33:34] Speaker 00:
Okay.

[00:33:35] Speaker 01:
So as the agency, then the executive who's in charge of the one office that's in charge of affording

[00:33:40] Speaker 01:
diplomatic privileges and immunities to individuals, they would have had that information.

[00:33:44] Speaker 01:
And we have the assignment sheet where the sending state here in Nicaragua contacted the UN Office of Protocol to register Dr. Munkad as an attache.

[00:33:53] Speaker 01:
But we don't.

[00:33:53] Speaker 00:
But unlike the prior executor, the government does not then, and whether it does now, the president never has eyes on that particular thing.

[00:34:04] Speaker 00:
That's not a direct exercise of Article II power.

[00:34:06] Speaker 00:
That's a matter of record keeping that didn't go too well in this case.

[00:34:09] Speaker 01:
Yes, Your Honor, because not every individual will have a certification put together.

[00:34:14] Speaker 01:
It's not a standard course of putting together a certification.

[00:34:18] Speaker 01:
What is standard course is being on the US UN blue list if you have full diplomatic privileges and immunities.

[00:34:23] Speaker 01:
You will have a CARDEX created.

[00:34:25] Speaker 01:
You would have this UN Office of Protocol.

[00:34:26] Speaker 01:
Sorry, you have a what created?

[00:34:27] Speaker 01:
Sorry, I'm trying to... A CARDEX, Your Honor, and this is in the record... Okay, I just hear your word.

[00:34:31] Speaker 01:
Okay.

[00:34:32] Speaker 01:
Yeah, 263.

[00:34:32] Speaker 01:
Yep, yep, yep.

[00:34:33] Speaker 01:
You would have the U.N.

[00:34:35] Speaker 01:
Office of Protocol Registration List.

[00:34:37] Speaker 01:
You would also have, and the government was unable to find this, and the district court credited the fact that it would have been an ordered document and was not able to find it.

[00:34:46] Speaker 01:
the government, the individual would also have a request for privileges and immunities made from the UN Office of Protocol.

[00:34:52] Speaker 01:
That document, we were not able to find, but that district court found that even though that omission is present in the record, that has not changed the totality of the evidence before the court and the district court that Mr. Mancada was not born subject to the jurisdiction of the United States.

[00:35:08] Speaker 00:
But that would be about as, that would be the gold standard from the government standpoint.

[00:35:11] Speaker 00:
It's just, we don't have it.

[00:35:14] Speaker 00:
So we're looking at evidence through the blue book and other things that are circumstantial evidence that that in fact was conveyed.

[00:35:24] Speaker 01:
Yes, Your Honor.

[00:35:26] Speaker 01:
And I would say that the gold standard here would be the certification.

[00:35:30] Speaker 01:
But if the court, as the court in Luthorna and the DC Circuit found, however, if the court is not inclined to find the certification conclusive, it can still affirm for the district, affirm for the government in favor of the government what the district court found, which was that Mr. Moncada was not born subject to the jurisdiction of the United States.

[00:35:48] Speaker 01:
Aye.

[00:35:48] Speaker 01:
Thank you, Counsel.

[00:35:49] Speaker 01:
Thank you.

[00:35:50] Speaker 01:
Rebuttal.

[00:36:03] Speaker 04:
On ER 28, I have found the document that was before the district court, which is, in fact, the permanent evidence that Mrs. Moncada Blanca Bertha Morales, age 21, arrived in the United States as a permanent resident.

[00:36:28] Speaker 02:
What's the date?

[00:36:29] Speaker 02:
She arrived when?

[00:36:30] Speaker 04:
May 21st, 1947.

[00:36:37] Speaker 04:
And if we look at this document, in particular line 13, it says length of intended state says permanently.

[00:36:56] Speaker 02:
Council, was that, you say it's ER-28.

[00:36:59] Speaker 02:
This was, it sounds like from opposing counsel, this issue was not litigated?

[00:37:07] Speaker 04:
This was brought forward.

[00:37:10] Speaker 02:
ER-28 was before the district court?

[00:37:12] Speaker 04:
It was attached to the complaint for injunctive and declaratory relief.

[00:37:17] Speaker 02:
OK.

[00:37:17] Speaker 02:
And so did you argue in the district court that your client was a citizen by birth as a result of his mother's status?

[00:37:24] Speaker 04:
This argument was brought forward, yes.

[00:37:26] Speaker 04:
In fact, it was part of the argument brought forward by counsel at the district court level.

[00:37:33] Speaker 03:
So the district court just didn't rule on it?

[00:37:36] Speaker 04:
The district court did not take this into account, I believe, to make a finding that he was, in fact, subject to the jurisdiction of the United States.

[00:37:48] Speaker 03:
Did not make an appropriate... Generally, the district court will at least address the argument, though, if it's made.

[00:37:55] Speaker 04:
Right?

[00:37:56] Speaker 04:
But I think the order that the district court, I believe, went with the government's argument.

[00:38:01] Speaker 04:
But I believe that was an error because, in fact, he was subject to the laws of the United States because she is a permanent resident, not the 1976 permanent residency, which she got subsequently as well because Mr. Moncada did apply for her.

[00:38:15] Speaker 02:
We understand the argument.

[00:38:16] Speaker 02:
We're trying to make sure you made it.

[00:38:18] Speaker 04:
Yes.

[00:38:19] Speaker 04:
The argument was made.

[00:38:20] Speaker 04:
Yes, Your Honor.

[00:38:21] Speaker 03:
Is it your position that if one has a child,

[00:38:25] Speaker 03:
when they're an LPR that the child becomes a citizen of the United States?

[00:38:29] Speaker 03:
Is that your argument?

[00:38:30] Speaker 04:
Yes, because that person who's a permanent resident is considered a national of the United States, or is either a citizen or national.

[00:38:39] Speaker 04:
Those individuals, A, cannot get visas, and B, they're not able to get diplomatic immunity because of the fact that they're still permanent residents.

[00:38:47] Speaker 04:
Their permanent residents would have had to have been withdrawn because they're permanent allegiance to the United States.

[00:38:53] Speaker 03:
Do we have a case that says someone who is an LPR that has a citizen, that child becomes a citizen?

[00:39:04] Speaker 04:
One second.

[00:39:11] Speaker 04:
There was argument made on that.

[00:39:20] Speaker 04:
Let me get you that argument.

[00:39:21] Speaker 03:
That's okay.

[00:39:22] Speaker 03:
We'll figure it out.

[00:39:24] Speaker 03:
Do you have any closing remarks?

[00:39:26] Speaker 04:
Other than to say that Dr. Mkhada just finally state that his father was not attached to the list that should have been on the blue list that was relied upon by the government and Mr. Donovan was incorrect.

[00:39:40] Speaker 04:
and the district court had erred.

[00:39:42] Speaker 04:
And also, he didn't have an APA hearing as a US citizen, as a US national.

[00:39:50] Speaker 04:
And that, in fact, the government did, in fact, write on his passport, an ER-47, that his United States birth certificate.

[00:39:58] Speaker 04:
I'm sorry, not ER-47.

[00:39:59] Speaker 04:
On one of his birth certificates, there was a stamp sent back to him

[00:40:04] Speaker 04:
where it was said not to be used for U.S.

[00:40:07] Speaker 04:
citizenship purposes.

[00:40:08] Speaker 04:
So now he's like the person in the terminal.

[00:40:11] Speaker 04:
He's not a citizen of any country at the moment.

[00:40:13] Speaker 03:
That's unfortunate.

[00:40:15] Speaker 03:
Very unfortunate.

[00:40:16] Speaker 04:
Yes.

[00:40:17] Speaker 03:
All right.

[00:40:17] Speaker 03:
Thank you, counsel.

[00:40:17] Speaker 03:
Thank you, Judge.

[00:40:18] Speaker 03:
Thank you both, counsel.

[00:40:19] Speaker 03:
The case is argued is submitted for decision by the court.

[00:40:21] Speaker 03:
We'll be in recess until 1130.

[00:40:23] Speaker 03:
Thank you, Judge.

[00:40:25] Speaker 01:
All rise.

[00:40:31] Speaker 02:
This court is in recess until 1130.