have invested or who are actively in the process of investing capital in a new commercial enterprise this is about whether a person can use a loan secured by someone else or not secured by all o by the petitioners own assets in order to qualify as paul by capital for purposes of the five program the agency's definition that it is probably added to define capital sets indications in the emcees regulation we've identified a number of these in our review i would highlight just a few for the court but the st is the requirement can we just before we get to context can we talk about tax the loan proceeds that's i think sort of going to the ultimate question in this case your honor certainly that the way that investments are often made in these cases are through a wire transfer to the new commercial enterprise  transactions here from the perspective of the investor again because this is an integration program it's about providing the service to the investors and so it makes sense to take a look at the transition of the transaction in order to win vest in this a difference in terms of from the perspective of the investor whether that capital is truly at risk for that investor we're talking about it wire transfer that is not the proceeds  loan versus loan proceedings that when the investor gets the loan right on the investor's balance sheet the cash will be an asset and the obligation of the bank will be a liability he takes the cap takes the asset and transfers it to us and if so that's at risk he said it's his cash if the u s enterprise fails secured by rd parties assets or not secured at all then the investor is not on the hook for repaying that loan in the way that the investor would be if it was just free and clear and so this goes to that at risk amount of that investment and so one problem with an unsecured loans is so yes the investor that is this is going to be you know have an obligation a legal obligation to repay but the full amount of the required investment isn't necessarily going to be at risk because you know it's going to pend on how many assets the investor has today have five hundred thousand or a one million dollars worth of assets that are subject to seize your idea for nationals and so  which just uses the word cap so that regulation sets forth various categories and so the question here is are these properly treated as cash or are they properly treated as a or the word indebtedness is ambiguous or both or neither so we believe that the best reading of the regulation is to treat them as indebted dentistry loan proceeds as and i did i mean i'm so that's your interpretation before you get it so so i take it from that that you're saying that the word indebtedness is ambiguous in is so we do believe that this is the proper and the best interpretation of the regulation certainly this court of ordering your new you have to be interpreted in indebtedness to sweepin things that would otherwise on ambiguously be cash along procedure cash so your theory has to be that some some idea that the specific qualifies the general and if cash is also indebted cash so in the final rule the agency savvy vet speaking of the n p r in the definition of capital was limited in the pros ruled by stealing all types of intangible property  something in whether it's cash equipment inventory or listen indebtedness on the sill a promissory note would be or you know for the form of accounts receivable in the hands of the new company would be giving them a form of in ordinary parlance capital it would be a thing of little value with the say i have i'm entitle to this income stream from judgment lack she's going to pay me ten thousand dollars a month for her for many years and that's a valuable thing that has meant you would sell it to someone else or take out loans against it that's collateral that's something the company would hold if i'm then you put those together then it would be indebtedness means an investment that is based on a financing arrangement where the investor has an obligation to pay other party it's just but it just doesn't make any sense because the point of the visa program is you get the visa by making a substantial investment in a u s center process which can take the form of any number of assets like cash tangible property cash equivalence right you don't get the visa by transferring a liability to a u s company right the indebtedness in the sense that the investor owes something to his or her bank you get the visa by transferring an asset which would be a judgment let's promissary no and then everything makes sense so the program awards he says are worse these are individuals who invest their assets in a new commercial enterprise here when we're talking about a loan that is secured by a rd party not the u s senate across the u s enterprise has the cash but the individual it's not really their money but they've invested money and they've gone from somebody else and they're not even really on the hopeful you have situations where you ha even more problematic for the fact that the agency has included the word indebtedness as part of capital i mean international haslam proceeds to me seemed like more of an investment made by the you know is so the question being your honor i'm why isn't deadness even even where do you where does the agency have the statutory authority to include indebtedness in its regulation always things for amazon to use somewhere or something like that all right i mean the dollar amount i'm donating all that equipment do you ask whether i had to take any loans to get that equipment or do you just value the equipment so the anymore but it was purchased with a loan so the agency has told me that they always investigate the source of the funds and for the lawfulness they have to do that have they i guess what i'm trying to ask is when they in the one or two cases throughout the history of this statute when someone donated equipment inventory or other tangible property do they look behind it was all lawful clean nothing to worry about here did they look behind to see how it was fin that the agency investigates the source of the funds and so on in the scenario that you can possibly showing that it's my own as opposed to i'm a funnel for somebody else is not the same thing as saying if i own even if i have a loan it's my house funds to make sure you're representing that in however many few cases where someone has donated equipment inventory or other tangible property you're representing and affirmatively they check not just for the legality of the lawfulness on that they actually check to see whether the inherently risky because the at risk the contrast is where you put it at risk evidence of a mere intent to invents investor perspective investment is not going to satisfy the at risk requirement that's very different than saying it's not at risk just because i also have an unsecured loan it's that risk as soon as i take whatever that asset is and let go of it and really succumb to this company for the company's purposes in the hopes that it will generate johns and be a successful business that that is a form of risk is it not so you would not give those friends back your honor but this goes back to that question of what happens in the event and there are sets that the new commercial enterprise goes under and the investor defaults on the loan that's the type of risk you're talking about in the regulation well that i'm not going to get with the capital of the the i mean i suppose it's perhaps go goes to show you to make this in a statute but the purpose of the program is to work he says individuals integration program and the idea is that if folks invest their capital they get a visa the idea is not for somebody go get capital from somebody else and invest that and then you know work their use of somebody else's capital i suspect that's those to my question  bucket rather than the cash and you you talked about want to talk about the past practice of the agency in the pressures put in declarations of two hundred vigils and talk about literally hundreds and hundreds of making these decisions out on the ground i get you have to have people probably all over the country doing this was there again i was just surprised to see a manual that tells them here's what you do if you need to look behind not just for lawfulness of course and to make sure they're not simply a strawman but you also if it is in the fabric you know they've given cash you need to know whether or not that's the product of a loan this there must be you various look that would that have been sent out to all these people that are administrating this very how do you train the people that are making the decision on the ground about eighty five dollars i mean i guess they have a big volume to do there must be some guidance given to them she will more question and just to make sure i understand how this works if i have a bank account and i have five hundred thousand dollars in there of my hard earned cash and five hundred thousand dollars and they are interest free loan from my parents and it's all mixed in one bank account and i invest five hundred thousand dollars cash  that amount double that amount in my account half of which is an unsecured loan from parents and half of which is my own hard earned money and it's of course all mingled together in a bank account what happens so so if really makes no sense why i got a loan from a bad thing she put up two hundred and fifty thousand dollars as collateral she had a property and it was obvious that the property was given to her by her father her father had another property which was worth two hundred and fifty thousand dollars and they used both of those properties as collateral for the for the five hundred thousand all along the government said that that was not sufficient because her father's loan was his money and therefore she had made a five hundred thousand dollars cash investment even though obviously she got the cash and invested it into what we dollars that would be ok if the father put up the collateral for the five hundred thousand dollars it's not ok under the government's reading and the reason why none of this makes sense is that i they say i just say up front if you're doing this is about what documentation you have to have your petition evidence of any loan a mortgage agreement promissory no security agreement or other evidence i'm borrowing then you have to which is secure you have to show the secured assets why isn't that down on what they're arguing here ok well because the way the regulation both regulations written two to a four dollars in the definitional section and then to all four dollars j to v the section you're talking about is basically saying to provide proof of cash or all the other things listed including imbedded as you can provide one of these things and under  the regulation just said cash and said other things and then they expanded it for people who may not have had the full five hundred thousand in cash to give them an opportunity to still buy into a new commercial enterprise with alone means i think we're talking about what interpretation they give you i think this is what it means if you go to your furniture store and you buy furniture and they say will give it to you as a loan that is you get the furniture right away and you have to pay us along the same thing with the new commercial enterprise sad it is we're giving you the equity interest or whatever that interest is in the new commercial enterprise the stock the property whatever it is in the new commercial enterprise and in exchange you have to pay off this won't to us so in that way it's like a promissory note and the same thing is  they're saying with a promissory note you have to have your own assets to back that up in case you can't pay the promissory note alone is the same thing we're giving you d in the end see the new commercial enterprise it's just another promissory note he's getting a loan from the new company and he's backing it up with his own assets he's getting a loan always getting a loan from the company and that's me in the company because he has the security allowing people who didn't have the five hundred thousand in cash to still be able to to get involved in these projects by expanding the range of people who could be involved so brief says just that that is they say capital is cash and we need to broadly define it and then they go on and say but there are other promises to pay they use that very language they say promises to pay for the just a promissory note they don't tell me what they mean by all those other words if you're talking about page three of that memo yes right it just  separated by commas which promissory note is one of the middle i agree with you i don't i don't think it was particularly artfully written i think what it meant to say is here are just different examples of promissory of promises to pay a mortgage a loan of promissory no so i think what they were saying about three indebtedness was these are examples of it but it has to be secured with your own money now the point is that that is totally different than cash i mean every rule of statutory construction here there's no ambiguity about cash every dictionary defines capital as cash the regulation says cash it doesn't say cash with some kind of form of indebtedness which is what the government seems to be your argument it just says cash and cash means what it means whatever the responsibility is of the individual who got the cash that's his responsibility but he's actually put cash in the investment and the government has a whole series of hypotheticals you know visa mails and so forth that's all taken care of by the other provision on the tool four point six in he says and the fining capital it cannot be capital that's unlawfully tain't directly or indirectly so i think it could be just could be talk for a minute about class certification so gosh i see a lot of problems with this class and it seems to me it's not ascertain it's open ended and the relief is not indivisible saw on it see how satisfied to so why shouldn't we rule in your favor on the substantive point which seems pretty strong for you but just let this go forward in the normal way of people who are denied visas seek review case by case i think st of all it's a red herring in this case you're going for the following reason as part of our agreement with the government to stay the effect of the decision the government agreed to look back at its own files and make a determination as to who is covered so this argument that somehow it's open ended and they have to go back thirty years they've already done that it is only one hundred and thirty four dollars people who are part of this class secondly i'm sorry what's the agreement you're talking about and usually there is no status so the government had to in effect really you know go back and look at all these cases and make new decisions and we have agreed with the government that they don't have to do that until this court makes a decision but as to the extent it sweeps and time board claims the same that that argument in their brief is in violation i think it was removed i'm not saying the government tried to do anything improper i just think it's it's moot at this point  well up with respect to that the government had the opportunity to object to the class initially and that part of the class was still the same another they said well the drug broaden class but the drugs didn't broaden the class going back thirty years in fact the judges broaden the class from two thousand and fifteen forward and in other respects the judge narrowed the class use you as to the with time burke claims you have a forfeiture argument based on their failure that they really didn't but that's different from what i'm hearing for the st time which is a separate argument that not objection may be barred by an agreement well for let's just put your future as a right i understand so i think we would say that they did waiver they forfeit it they had the opportunity to raise that before and they failed to raise it i really think it's kind of i mean the court may want to rule on it but i really think it's kind of been significant because the reality is if somebody had an investment thirty years ago and they were denied thirty years ago they're not here i mean these are all very current investments so i don't see any of the as a conceptual matter the proposition that when individuals who were denied relief in agency judy cations can have a class certified with regard to the cross cutting legal issue seems to me very problematic and someone denied a social security benefit can bring a b two class of five million people whose benefits are done i don't sing ground i guess but we don't do know i understand i understand your i guess what i would say is in this case on these facts we believe they waived it or forfeited it by not raising it originally and the truth is it really doesn't have consequences so that  republican about the agencies and our prior practice and whether they could ever come in the past approved an investment that was based on equipment or inventory without looking back to determine what the source that we would try to come up with a process for ascertaining the class as we start for so before ascertaining the class as the declaration granted jane indicates this is a very this would be very difficult is so that is based on some investigation and i believe that the plaintiffs have done on this issue that's not based on you know going back through thirty years of agency what the class is but that probably going wasn't that with the state during you do you understand that agreement as giving up what i think would otherwise be a pretty good argument for the government that applicant it seems like this is a seems like there's a lot more work to be done here to figure out who's in the class than your normal class of  students in the segregated schools or people injured in the mass accident that's rhetoric which is why it's altogether flabbergasting if you didn't raise the statute of limitations objection to the motion her argument about the statute of limitations government's a very sophisticated litigating entity so my assumption is that when it doesn't raise something that doesn't raise a reason why what possible grounds should we jump into your shoes is advocate and raise an argument for the st time here on appeal if you had every opportunity to thank you even doesn't make sense to me it wasn't an issue because you didn't raise it the formulation the plaintiffs raised it had about the class right this is how it works when it's going for and they say you're going to find class and then the other side in addition to saying you're all wrong on the merits and we should have a classes and back class is too broad for whatever a wrong for whatever reasons which could certainly include you're going back thirty years in a long way let you go back six and you didn't do then the district court reformulated it going forward so you had a nd shot and it's not great because you didn't raise it they're not going to raise it on their own and then you when you figure out how much work it's going to take to go back without a statue of limitations limitation and you told us how much work it would be of that would be unworkable but again you never said you should have a statute of limitations in the class so i doesn't work for me is to say it wasn't brief that's exactly my point so why are we supposed to play a lawyer now and raise the claim before you understand your own the the complaint what they say here is that the agency abruptly adopted this what they characterize as a new policy they say long after plaintiffs made their investments and filed their p