[00:00:03] Speaker 02:
Good morning, ladies and gentlemen. Judges Bumate and Paez and I welcome you to the Ninth Circuit. I'm going to just go over a few things before we start, just so that you have a sense of how we proceed.

[00:00:17] Speaker 02:
Basically, I'm going to handle one matter first that's a submitted matter, but otherwise I'll call the cases in the order that they're on the calendar. By each of your cases, you have a time designation. And if you are the appellant, that time includes all your time, including any time that you wish to reserve for rebuttal. Now, it's your responsibility to keep track of your time. However, if when you come to the podium, you tell me aspirationally how much time you would like to save for rebuttal, I'll try to remind you when you get there, because I'm looking at a clock.

[00:00:51] Speaker 02:
The clock counts down, then it goes up. That doesn't mean I gave you extra time. It means that you've gone into overtime.

[00:00:59] Speaker 02:
So expect to be kept to your time. However, I know you came here to say certain things, but we also have to decide your case. And so it's really important that we have our questions answered as well in order to decide your case. So if a judge is asking you questions and your time has run out, you don't need to ask for permission to continue. continue answering questions as long as I or any of my colleagues have any questions.

[00:01:31] Speaker 02:
And you don't even get to, if it's a really hard question, you don't get to say, well, Your Honor, my time's up. I'd like to sit down. So that's basically, if we take up all your time, I do have the authority that I can give you a little time for rebuttal if we feel that that is necessary at that particular time. So the first submitted matter is Evanston Insurance Company v. Roman Catholic Bishop of Orange 25-3165.

[00:02:02] Speaker 02:
That matter has been submitted on the briefs, and we are going to submit it as of this date. However, we are waiting for another case. And if for some reason that case is delayed, we understand that we can withdraw submission if that becomes necessary, but we'll submit it as of this date. All right, the first matter on for oral argument is Jose Alberto Vasquez Macias versus Todd Blanch, 24-5766. I do realize that this is a pro bono case, and I just want to say in advance, We appreciate everyone that comes to court, and obviously we particularly appreciate people when they're very well prepared and can answer all of our questions.

[00:02:46] Speaker 02:
But I do want to, because I don't want to forget, that we realize that when people do pro bono cases as part of our program, we guarantee argument, and we appreciate that you devote the services to do that. And it does facilitate our decisions in a case. So thank you for doing, thank you everyone for being here, but thank you for doing pro bono work. And it's my understanding that you're not splitting any time. Is that correct?

[00:03:14] Speaker 04:
Correct, Your Honor.

[00:03:15] Speaker 02:
All right. So we're ready to proceed. So good morning and please state your appearance.

[00:03:21] Speaker 04:
Good morning, Your Honor. Becca Steinberg for Petitioner Jose Vasquez. With the court's permission, I'd like to reserve three minutes for rebuttal.

[00:03:29] Speaker 02:
Three? Three, yes. All right. Go ahead. Thank you. Thank you. You have 15 minutes each slide.

[00:03:35] Speaker 04:
Mr. Vasquez is a U.S. citizen. He moved here when he was five, and his mom became a citizen when he was 14.

[00:03:43] Speaker 04:
His mom had sole custody, so as long as there had been a legal separation between his parents, Mr. Vasquez became a citizen too.

[00:03:53] Speaker 04:
Under the INA, there are two components of a legal separation. First, a court must have recognized that a separation has occurred. The Tijuana order did that when it recognized that Mr. Vasquez's father had abandoned his mom.

[00:04:08] Speaker 04:
Second, the law must attach consequences to that kind of separation. That condition is also satisfied. That's clear from the Mexican and Baja California civil codes. But even more tangibly, it's clear from the Tijuana order itself. That order allowed Mr. Vasquez's mom to make immigration and passport decisions on his behalf because it recognized that her husband had abandoned her.

[00:04:36] Speaker 02:
So we have...

[00:04:39] Speaker 02:
I know that the government is taking a different position on it, that the order that we're talking about had to say more. And so the order we're talking about was in Baja, I guess, and basically the mother was wanting to take the child, get a passport, and travel with the child, right?

[00:05:03] Speaker 04:
Your Honor, it was to get him to be a lawful permanent resident of the United States.

[00:05:07] Speaker 02:
To get what?

[00:05:08] Speaker 04:
Lawful permanent resident status of the United States.

[00:05:11] Speaker 02:
Okay. And so as a part of that, there was discussion about abandonment. And so the question is, you have to have a separation in order to get what you want here. And so your argument is that in order to get this custody order, to be able to do what she was doing, they had to find abandonment and therefore abandonment. you should be entitled. So then he gets the derivative citizenship, right?

[00:05:40] Speaker 04:
John, they did find abandonment. The order is at AR 146, and it recognized Mr. Jose Alberto Vasquez Perez, that's the father, abandoned the plaintiff, that's the mother, and her youngest son for approximately nine years.

[00:05:54] Speaker 02:
So we know they weren't divorced, and it doesn't say it's a legal separation. So there is a question here as to whether the Tijuana court order used abandonment, quote-unquote, colloquially or as a legal term of art. What is your best argument that the court order used abandonment as a term of art, and what evidence in the record supports your argument?

[00:06:19] Speaker 04:
Your Honor, I have three responses to that. The first response is that it actually did impose legal consequences as a result of the abandonment. That is, before the Tijuana order, Mr. Vasquez's mom was not able to make these decisions without the father's input. After it, she was. So there were consequences directly imposed as a result of this order. Second of all is that abandonment comes into play throughout the Mexican civil codes repeatedly. We've cited a number of instances in our brief.

[00:06:50] Speaker 04:
But third, Your Honor, if you would like to find out more about how this term is used, this court could certify to the district court under 1252B5B.

[00:07:01] Speaker 04:
If there's a factual question about how the term was used, then that would be the appropriate method of recourse.

[00:07:05] Speaker 02:
The government points to a statement made by Vasquez's mother as evidence that there was no legal separation. After being asked if there was a legal separation before her divorce, she responded, no. What are we to do with that statement, and how, if at all, does it factor into our analysis?

[00:07:25] Speaker 04:
So it doesn't factor into the analysis at all, Your Honor. This is from Giha, is that a person's subjective understanding of what had happened has no bearing on the legal question of what the order actually means.

[00:07:37] Speaker 04:
But if you are wondering about her subjective view of it, she's consistently maintained that she was separated from Mr. Vasquez's father, and the government doesn't contest that. Whether or not she understood that separation to be legal is not relevant to the question of whether it was.

[00:07:52] Speaker 02:
How do I know it allowed her to have control of her child? How do I know that it means she was necessarily legally separated?

[00:08:03] Speaker 04:
For two reasons. The first is that it said, so when a court recognizes the functional separation, that functional separation turns into a legal separation. Per Manassian, the legal separation under the INA is not limited to the formal legal separation process that that jurisdiction's regime allows for. So if there are consequences in that jurisdiction of a functional separation and the court recognizes the functional separation, that recognition turns the functional separation into a legal one.

[00:08:38] Speaker 04:
Let's take Manassian as an example.

[00:08:41] Speaker 02:
Well, so what impact of any does the 2003 divorce decree have on our analysis here? Does it matter for purposes of our review that the divorce decree does not mention prior separation?

[00:08:53] Speaker 04:
No, Your Honor, it doesn't. So first is that divorce decree doesn't change the prior separation. There can be multiple points of separation in a marriage. That was true in Manassian, where the divorce decree itself could have been a point of separation, but it nonetheless recognized an earlier point of separation. But second of all, that doesn't matter because she didn't know about the divorce decree at all, so there would have been no way for her to put in any evidence. The parties had been so separated at that point that she wasn't even aware that the divorce decree was being filed.

[00:09:25] Speaker 02:
So your client basically had temporary residence, but then he basically committed crimes for like 20 years, right?

[00:09:32] Speaker 04:
So he was a lawful permanent resident, and it's our position that he was a U.S. citizen.

[00:09:37] Speaker 02:
But then he's committed crimes, and he currently has what he said, sex resistant.

[00:09:43] Speaker 04:
Yes, Your Honor. But the question in this case is whether he became a citizen when he was 14 years old. What happened afterwards doesn't change that. Our country has a way of dealing with that.

[00:09:52] Speaker 02:
Well, right, because otherwise he would not be able to. He can't get citizenship. He can't. he's blown all of the ways to get it on his own. So he has to get it derivative from his mother.

[00:10:02] Speaker 04:
So it's our position that he had gotten it derivative from his mother when he was 14 before anything. It's an automatic process. There's no paperwork that needs to happen. Nothing else needs to happen. except for that the conditions under 1432 need to be met. As to his criminal record, our country has a way of dealing with people who commit crimes through the criminal justice system. But if they're a citizen, then they are a citizen, and that's not dependent on the criminal record.

[00:10:24] Speaker 02:
So I think the BIA faulted you for not citing any Mexican law. Are we talking about—we have to look at what Mexican law— looks at on this?

[00:10:34] Speaker 04:
There are two alternative ways that this court can reach the outcome. One is just by looking at the Tijuana order, which imposed legal consequences as a result of the recognition of abandonment. Because there are those immediate consequences in this case, You don't have to look further towards Mexican law. That said, you can look further towards Mexican law. And we've cited a range of Mexican law in our brief, including Mexican law that alters the availability of divorce, alters property based on abandonment.

[00:11:05] Speaker 04:
So that is an alternative path that this court could take as well.

[00:11:07] Speaker 00:
So the one question I have, under Mexican law to be legally separated, it has to be unjustified abandonment, correct? Correct.

[00:11:14] Speaker 04:
Correct, Your Honor. And under Article 163 of the Mexican Civil Code and 160 of the Baja California Civil Code, abandonment is presumed to be unjustified. There is a separate provision of the Mexican Civil Code that's 267 subpart 18, where it doesn't have to be unjustified, but most of them do say unjustified abandonment.

[00:11:33] Speaker 00:
So your argument is because the order uses the word abandoned, it doesn't have to make any further findings of unjustification for it to be a legal separation?

[00:11:43] Speaker 04:
Yes, we have two arguments on that. The first is that the lack of justification is presumed under Articles 163 and 160, but the second is that under Article 267, Part 18, it doesn't even have to be unjustified at all.

[00:11:56] Speaker 02:
But doesn't the...

[00:12:01] Speaker 02:
Court under Mexican law does a court have to make an express finding of abandonment was without good cause or justification Are you saying that doesn't you're writing that completely out or it's abandonment under Mexican law? presumptively unjustified absent a court finding to the contrary and So what's your best authority supporting your position here?

[00:12:23] Speaker 04:
Our best authority is Article 163 of the Mexican Civil Code and Article 160 of the Baja California Civil Code, which states a presumption that spouses shall live together unless a court exempts them from doing so.

[00:12:36] Speaker 02:
So there's a couple of cases, I think, that both of you were throwing around. I think Manassian's one, and then there's another case. Yes, Your Honor, Guija. And...

[00:12:47] Speaker 02:
I'm just not convinced that either of them, you know, give us an exact answer.

[00:12:54] Speaker 04:
So I think there are two ways to approach this case. One is through Manassian. Everything that Manassian had that satisfied legal separation exists here too. But if this court wants to look to Giha instead, there are three things that the court in Giha said was lacking, and those are the exact same three things that distinguish this case from Giha. So first in Giha, the court said that there was no discussion of the absent parent at all. That's different here, where the court order expressly mentions that the absent parent, the father, had abandoned the mother.

[00:13:27] Speaker 04:
Second, in Guia, the court said that there was no additional evidence about Peruvian law.

[00:13:32] Speaker 04:
And here we have that. We have the Mexican Civil Code provisions that provide evidence about the state of the law. And the third thing in Guia is that the court said that there was no proper evidence about whether that order signified that it amounted to the mom having abandoned the marriage. Here we have... the court order expressly saying that the dad had abandoned the marriage when it said that the dad abandoned the mom.

[00:13:57] Speaker 02:
So I always, OK, one of the things that I always like to think about, and I'm going to ask your friend on the other side this too, is when you ask for a rule, I think that there's a little, as I've said, and I'm not speaking for my colleagues, but I'm sort of struggling with the two cases.

[00:14:16] Speaker 02:
How many people does this, I'd like to know what the consequences of a rule are. Are you asking for a rule that's just gonna open up an avenue for lots of people that would not otherwise be able to be citizens?

[00:14:33] Speaker 04:
No, Your Honor, and that's true for two reasons. The first is that legal separation is just one of many requirements, including they have to be a lawful permanent resident, the parent has to have sole custody, and they have to be a minor at the time. But second is that this provision of the INA was actually amended in the year 2000.

[00:14:50] Speaker 04:
So since that amendment, the legal separation requirement hasn't existed at all. Congress chose to get rid of it. So this isn't the operative provision anymore. It's not something that's going to have far-reaching effects.

[00:15:01] Speaker 00:
What's the standard now?

[00:15:02] Speaker 04:
The standard now, it's at 8 U.S.C. 1431, so three things have to be true. First, at least one parent has to be a citizen. Second, the kid has to be under the age of 18. And third, the kid has to be residing in the U.S. in the legal and physical custody of the citizen parent. So the legal separation requirement no longer exists.

[00:15:22] Speaker 00:
So if one parent's in Mexico and one's in the United States, that's enough to get derivative citizenship, even if they're not legally separated?

[00:15:28] Speaker 02:
Yes, Your Honor. Okay, thank you.

[00:15:31] Speaker 01:
So we're looking at 1432 at the time as a statute that was in existence at the time of the abandonment.

[00:15:39] Speaker 04:
Yes, Your Honor.

[00:15:40] Speaker 01:
That's right.

[00:15:40] Speaker 04:
Or it was at the time that the mom became a naturalized citizen.

[00:15:42] Speaker 01:
At the time the mom became a naturalized citizen.

[00:15:44] Speaker 04:
Yes, Your Honor.

[00:15:46] Speaker 04:
If there are no further questions, I preserve the remainder from the battle. Yes, thank you. Thank you.

[00:15:58] Speaker 03:
Good morning.

[00:15:59] Speaker 03:
Good morning, Your Honors. My name is Anna Edwards, and I represent the Attorney General of the United States. Your Honors, this court should deny the petition because the 1996 Tijuana order does not establish by preponderance of the evidence that the petitioner's parents were separated prior to the point in time where he turned 18 years old. As mentioned by my friend on the other side, this is a pure legal question that's pretty narrow for the court to decide here today. To get derivative citizenship under Section 1432, they had to prove at some point in time that it didn't have to be simultaneous.

[00:16:33] Speaker 03:
Four things had to be true before he reached 18 years old. One was his mother was naturalized, that he was lawfully within the United States, that the mother had sole custody.

[00:16:44] Speaker 02:
She got naturalized. He was under 18. It's just the separation thing. We're looking at that court order. What does that court order stand for?

[00:16:51] Speaker 03:
The court order at best recognizes factual separation.

[00:16:54] Speaker 02:
Do we interpret it under Mexican law, or do we agree on that?

[00:16:59] Speaker 03:
Yes, Your Honor. We are looking at Mexico law because that's the state where the union came to be, and so we're defining Mexico law for the purposes of figuring out whether there's a legal separation.

[00:17:08] Speaker 02:
Well, tell me how it could have happened.

[00:17:12] Speaker 02:
I mean, basically she's saying that she wouldn't have gotten to the custody and being able to move the child the way she was if, in fact, the child had not been abandoned and that, therefore, she's in abandonment. We talked about good cause or justification. So tell me how it could have happened without finding...

[00:17:41] Speaker 02:
satisfying the separation part of it.

[00:17:47] Speaker 03:
Sure, Your Honor. So to address your question specifically, if there was a finding with respect to defining the marital relationship between the two parents and then finding there was a termination or a separation or an abandonment of that, then we would have a closer question of whether there was under Mexico law that determination of abandonment would be understood to be a legal separation under Mexico law.

[00:18:08] Speaker 02:
Well, so what would you have to see here in order to grant the petitioner what he's asking?

[00:18:16] Speaker 03:
Or so some bright, reliant considerations. One would be even recognition of the marital relationship. And then two would be a legal determination as to the status of that relationship if it terminated. And if that termination or separation, functional separation, would be understood by Mexico law to be a legal separation as recognized by law, similar to Manassian where you had the California law recognized as a legal status, that factual and functional separation. But here, the court order does not even go that far.

[00:18:45] Speaker 01:
Did you say that the Mexican order, the Baja California order, that it has to recognize the marital relationship?

[00:18:54] Speaker 03:
To find that there's some separation or breakdown, as this court recognized in Manassiani.

[00:18:59] Speaker 01:
Well, it does recognize that there was a relationship, doesn't it?

[00:19:02] Speaker 03:
Respectfully, no, Your Honor.

[00:19:03] Speaker 01:
No, it doesn't. In your view, what does this order say then?

[00:19:09] Speaker 03:
It says that the father had abandoned the familial unit.

[00:19:12] Speaker 01:
So the father means what?

[00:19:14] Speaker 03:
The father of the child.

[00:19:15] Speaker 01:
Right.

[00:19:15] Speaker 03:
But there's no recognition on the face of the order that the father is also the spouse of the mother. And so therefore, because there's no textual evidence of a marital relationship between the two parents of the child, we cannot understand the simple colloquial term of abandonment to reach to a dissolution or a breakdown in the marital unit as opposed to the familial unit. which is exactly what this court looked at in Ghia, it said that even crediting the father's testimony that there had been an abandonment of the father and the child, the court did not understand that to be a finding about a breakdown or an abandonment of the marital relationship.

[00:19:54] Speaker 03:
Here you have the Tijuana court order is from a family judge that's looking at whether he can give authorization for the mother to proceed with immigration and passport proceedings.

[00:20:03] Speaker 00:
And so looking at the- Wait, are you suggesting that the abandonment of his mother is not a recognition that they were married?

[00:20:12] Speaker 00:
No. How else would you abandon someone else? If they're not married, you're not abandoning anyone.

[00:20:20] Speaker 03:
Based on this court's reasoning in GIHA, it's best understood to be an abandonment of the familial unit, but not recognition of the spousal relationship.

[00:20:26] Speaker 00:
But who talks about that that way?

[00:20:30] Speaker 00:
You abandon a legal family. You don't abandon a girlfriend, right?

[00:20:35] Speaker 03:
Correct. But there's no recognition that the two individuals were married, and so this court's order— That's what I'm saying.

[00:20:41] Speaker 00:
By using the word abandon, doesn't that add recognition that they were married? Have you ever heard the term you've abandoned your girlfriend?

[00:20:46] Speaker 03:
I mean, no, not in the legal sense, Your Honor.

[00:20:50] Speaker 00:
Or colloquial sense, either. When you use the term abandonment, that means you're abandoning a legal family.

[00:20:56] Speaker 03:
Correct.

[00:20:56] Speaker 00:
Colloquial and legally.

[00:20:58] Speaker 03:
Colloquial and legally.

[00:21:18] Speaker 03:
for regaining relief under Article Force 18 for those passport procedures, we were left guessing and left speculating whether that's a determination about the abandonment of the marital relationship.

[00:21:29] Speaker 02:
If it said that it was an abandonment without good cause or justification, would the petitioner be in a better position?

[00:21:38] Speaker 03:
A better position for sure, because then there's recognition of the legal framework about that marital relationship by citing abandonment with respect to language that would show divorce, relating back to the divorce.

[00:21:50] Speaker 01:
So in your view, it should have said husband and wife or something.

[00:21:54] Speaker 03:
That would give this court better evidence of the understanding, and we would not be speculating about what that meant.

[00:22:01] Speaker 01:
So you're saying that by looking at this order, I have to speculate. I would just be speculating that they were married.

[00:22:07] Speaker 03:
We would be speculating about the legal determination.

[00:22:09] Speaker 01:
Well, legal or not, legal. I mean, in some jurisdictions, and I don't know if this is the case in Mexico, but you don't have to actually be under some law. You don't have to actually go through a formal ceremony to be married.

[00:22:25] Speaker 03:
That's correct.

[00:22:26] Speaker 01:
Right.

[00:22:27] Speaker 03:
Which is why we have to look at the evidence of the Mexico law here.

[00:22:30] Speaker 00:
Right. And the Mexican law talks about abandonment in many different ways. And so when it uses the word abandonment, it's clearly referencing that term. It's a term of art under Mexican law.

[00:22:40] Speaker 03:
Yes, but I would respectfully submit to the court that lacking from the face of the order beyond the use of the term.

[00:22:45] Speaker 00:
Lacking what? The use of the word abandon, which is a term of art under Mexican law.

[00:22:51] Speaker 03:
Correct, but there's no citation to that Mexican law demonstrating that it was used in that way.

[00:22:55] Speaker 00:
Do you have any evidence to say that every Mexican law order references the statute that you're referring to? No, Your Honor. Then you're asking us to speculate that they're not using abandon as a legal term when there's a whole body of Mexican law that uses abandon in that way.

[00:23:12] Speaker 03:
Correct, Your Honor. But I think taking a step back, when we look at the scope of the relief that was granted in that order, under Article 418, it's asking for procedures to remove the child from the jurisdiction without both parents' consent.

[00:23:24] Speaker 00:
Right, but isn't that irrelevant? Because the statute only requires recognition of the legal separation, not that the document itself confers that.

[00:23:32] Speaker 03:
Correct. But when we're looking at that Tijuana court order itself, you're assessing whether to get the relief the mother was requesting, which was to remove the child from the jurisdiction without both parents' consent, which requires... Well, it sort of seems, but you have evidence in the record that they got divorced later, right?

[00:23:50] Speaker 02:
Correct. So I think that we can fairly safely say they were married. Now, whether they were separated, that might be a different situation. But just like I asked your friend on the other side, If we were to find merit in the petitioner's position here, what sort of Pandora's box are we opening?

[00:24:15] Speaker 03:
Well, because this statute is now rescinded, I'm not sure how many claims come up a year with respect to people seeking derivatives under 1432.

[00:24:21] Speaker 02:
I've never seen one before, and I've been doing this for a very long time.

[00:24:27] Speaker 03:
Immigration litigation certainly has few a year, but that's not common anymore. But the consequences of that, it would be reading the term legal out of the statutory phrase legal separation. And because the Constitution vests Article I with the judgment to set forth a uniform rule of naturalization, this court should get full effect to each word in the statute as it interprets every statute. So the United States does not dispute that there is a functional and a factual separation of the parents in this case and of the spouses in this case. But the question is whether we should understand that factual separation as a legal separation as required by the statute.

[00:25:02] Speaker 03:
And this court's precedent has been very clear that separation is not mere factual separation or functional separation.

[00:25:09] Speaker 02:
If he wasn't a sex offender, would we be here?

[00:25:13] Speaker 03:
No, Your Honor, because the grounds for his removal, given that he has an LPR status, would not be revoked justifying the removal here.

[00:25:20] Speaker 00:
So if the T1 order just said unjustified abandonment, then would you say that he's a citizen?

[00:25:27] Speaker 03:
I think it would be a closer call because there we're talking about it would be a legal term of art.

[00:25:32] Speaker 03:
And then the question at that point, why I'm hesitating on that question, would be whether Mexico law recognizes abandonment itself as a legal separation or rather just a factual predicate to justify divorce down the road.

[00:25:45] Speaker 00:
I mean, there is all these laws that talk about unjustified abandonment, right?

[00:25:49] Speaker 03:
Correct.

[00:25:49] Speaker 00:
So you're not challenging how they've interpreted or translated the Mexican laws, right?

[00:25:53] Speaker 03:
No, I think the only open question on that point as a matter of law is whether the status of abandonment itself would be understood as a legal separation or whether that's just a grounds to justify divorce.

[00:26:02] Speaker 00:
I thought your argument was that you agree that it's abandonment, but because they didn't find it unjustified abandonment, that it doesn't quite equal legal separation under Mexican law.

[00:26:13] Speaker 03:
Correct, because I think that goes to the fact of it being a factual determination.

[00:26:17] Speaker 00:
So the fact that the order says that he abandoned his wife for nine years or abandoned his mother for nine years, doesn't that show that it's unjustified because under Mexican law, abandonment for more than six months is considered unjustified?

[00:26:33] Speaker 03:
No, Your Honor, because that law also talks about that living separate for six years would also have potential justifications, such as one person living outside the country. And so because we hear on the face of the order, we don't know whether merely living apart with or without just cause would be sufficient to find that it was just or unjust.

[00:26:50] Speaker 00:
I mean, your argument would be better if you presented Mexican cases that show that this type of detail is included in all these orders. Do you have anything to show that?

[00:26:59] Speaker 03:
No, and respectfully, it's not the United States' burden to prove what Mexico law means here. It's the petitioner's burden to demonstrate.

[00:27:04] Speaker 01:
Well, it would help your case, wouldn't it?

[00:27:05] Speaker 03:
Certainly. It would help our case.

[00:27:07] Speaker 01:
I recognize that it's their burden. They're seeking to use Mexican law, and they have to inform us what Mexican law is. Correct. You know, if you're taking a particular position with respect to what Some case in Mexico would help if you presented it to us.

[00:27:22] Speaker 03:
Correct. And it's not the United States' understanding, based on its review of Mexico law, that there is a similar legal status of legal separation that exists like California law, which the court looked at in Manasian.

[00:27:35] Speaker 03:
Because there are certainly grounds for divorce. The United States' understanding is that there's two legal statuses within Mexico, marriage and divorce. And although abandonment is grounds to result in the legal consequence of divorce itself, there's not some separate status that's parallel to to the California law for legal separation.

[00:27:53] Speaker 01:
Let me ask you this. Under Mexican law, if you want to get a divorce, do you have to sort of point to something, some reason for the divorce?

[00:28:02] Speaker 03:
I believe the petitioner actually sets forth several grounds or justifications for divorce.

[00:28:06] Speaker 02:
So if you can't get a legal separation under Mexican law, your argument is, It sounds like would be the only way that you get you have to have a dissolution, a divorce. You can get a divorce, but you can't get a legal separation. So how could they have gotten the document that you want them to get, even though they weren't living together? But Mexico doesn't recognize legal separation like we do.

[00:28:36] Speaker 03:
Correct. So we have to look at whether there's a legal separation under the law at the time. And respectfully, it doesn't have to be just a dissolution order or a divorce order. It has to be a court-issued recognition of the legal breakdown of the marriage.

[00:28:50] Speaker 03:
as set forth by this court in Manassian. And so respectfully, when we take a step back and we look at the determination here, in the Tijuana order, it's talking about the parent having custody to make determinations about whether the child can leave the country. But there's no legal consequence with respect to the marital relationship that stems from that order. It's just focused on the parent-child relationship. We don't see it extend beyond to the spouse-spouse relationship. And so although the petitioner looks at there being legal consequences that stem from that Tijuana order, it's legal consequences with respect to the father's rights to his child.

[00:29:26] Speaker 02:
Well, it seems, though, like as we know the facts now, it seems like they would have met that standard if they had asked the court to say that.

[00:29:38] Speaker 03:
Perhaps so. But here we're looking for court-issued recognition of a legal separation. And respectfully, it's the United States' position that that 1996 Tijuana order certainly recognizes factual separation of the family, the factual aspect of the father no longer being with the child and with Ms. Macias. But it is a jump to conclude that that relationship or that order also extended with respect to the marital relationship. And so the GIHA order is on all fours here. Although it mentions the mother, this order does, contrary to the GIHA order, it does not mention the spousal relationship or much less.

[00:30:14] Speaker 02:
Where is the petitioner right now? Is he like in his 40s and has committed crimes for about 20 years? Where is he right now?

[00:30:22] Speaker 03:
Minority, he's not in custody, and he's in California following his sentence for his lewd activity with a minor under the age of 14.

[00:30:29] Speaker 03:
He's not in custody. This court has stayed removal, and so therefore the only way his removal is predetermined from this country is if he proves his citizenship. And respectfully, the United States' position is that the Tijuana order at best recognizes functional and factional separation, which is not equivalent to separation by virtue of law as required under this court's precedence in both Gija and Minasian. Because this court must give full effect to every word in the statute penned by Congress, it cannot read the term legal out of the phrase legal separation, and we ask that you deny the petition.

[00:31:01] Speaker 03:
Thank you.

[00:31:01] Speaker 02:
Thank you.

[00:31:11] Speaker 04:
Thank you, Your Honor. Three quick points. The first is the difference between factual and legal separation. My friend on the other side said this was a factual separation, but respectfully, there was a court order recognizing that the separation occurred. That's what turns the factual separation into a legal one. Second, my friend on the other side raised a bunch of assertions about the state of Mexican law. There are no authorities that support any of those assertions that were made. And the last point is what does the order here recognize? I'll read it to you right now. It says that Jose Alberto Vasquez Perez, that's the dad or husband, abandoned the plaintiff, Mrs. Yolanda Macias Mendiola, that's the mom or wife, and her youngest son named Jose Alberto Vasquez Macias for approximately nine years.

[00:31:56] Speaker 04:
It recognized that he abandoned her, not just that he abandoned the kid, not just that he abandoned the home, but that he abandoned her My friend on the other side talked about how it doesn't recognize the marriage. Judge Bumate, as you pointed out, it points out this abandonment, but further, under the INA, it just requires a legal separation. Nothing in the INA says that the same order that recognizes the legal separation has to also recognize the marriage. That's not a requirement.

[00:32:27] Speaker 04:
I'm happy to answer any other questions that this court has.

[00:32:31] Speaker 02:
We don't appear to have any additional questions. This matter will stand submitted then. Thank you both for your very helpful argument. I think you both very clearly articulated your positions, and we appreciate that kind of preparedness and understanding of the record. Thank you.