not we're not arguing the motion to walk how do you get here without up without the vehicle or or tolling so its argument that i quibble tolling does apply in these cases because these are claims process it seems to me that's your only that's the agency treated the thirty day deadline like the jurisdictional bar and it should not have done so now what's the remedy you see before you get back to your argument but this is a preliminary question i have sure it's reversing remand with no that would be it whereas if you instruct us to grant relief with your for you would be we would be for closing what i what it seems to me is appropriate agency process yes i understand that and other court  at the ninth circuit had instructed in this in a similar type of case adjust status they found a property that well if it was clear the agency had considered everything certainly right here but here the cryptic the mile referenced the petitioners failure to provide the necessary documentation which in this appeal is presumed to be the i six ninety three missing i six could it that that's not an illogical interpretation but i don't think it's mandated by the literal language use but in any event go on i just want to pursue that for a briefly i'm the ex on the exceptional circumstances which i think is where you are going you know one of the one of the considerations because it's an equitable doctrine is how long you waited past the deadline saul if it was thirty one days or forty five days or sixty days that that's one thing but you get five years or whatever and that's that's kind of a different thing so it seems to me that the exceptional circumstance you come up with have to be pretty compelling for equitable tolling to apply look at the particular circumstances as well as due diligence course but due diligence it's couched in reasonable diligence terms not maximum feasible diligence and when you're looking at diligence in this case it's a case by case basis  e initially you have to look at the steps that he took to apply for the relief this is a person who is applying post a he's a farm worker has no education and he went in a made this physical application to the tampa office he then went to the interview he moved and found an office where he went and got the interview notice he went at the interview he was not told that anything else was needed at that point he had no reason to suspect that anything else is needed or order it would not be approved and we provided a manual on to you and our reply at pages seven eight of the manual pages and in the appendix talking about how the legalization officer at the when we do regional medical center when those people were actually aware of some potential deadline existing in the future it was just a triggering event that they were not aware of and this case the respondent wasn't told they could send you something you are asking  compared to these other little toy cases and many cases where people have lost it's been a three hundred data line or three year deadline and this is a thirty day deadline and they say never we don't have proof that it was sent the agency in this case points to it being sent by certified mail but there's no proof of that in the file and they don't have any reason to say that it's about and yes and when he when he did go to the service to actually check in on his appearing on the record about the record attention presume i mean well the government asks you to presume regularity and but that certified mail wasn't required i and i'm not saying certified mail was wired well i would also think if there is that the government a think the government is saying that  you would expect a reasonable agency that always does it in a particular way like adding a sending a document like the ice excited or for right they don't have to put a blank for talking about proving the case are pretty well forget forget the presumption if there's no presumption of still have to prove the case correct your honor and so what we would argue is that and what we argue is that the appeal notice filed by though is it is the response of the petitioner saying that he never received a denial i mean it's it's clear from that notice of appeal what he wrote in there and that's a page eleven that i went to the office and i asked i asked them what to do for it and they told me to file this appeal so clearly prior to that moment he had no idea that the that his case it then denied and he had no motive to not to not respond to any sort of a quest information or any sort of requests or any sort of notification that he needed to appeal these cases they were it was there was no ability to put these people in the proceedings of there was no suspicion there was no risk have this right you didn't tell me you have this right that in telling really what was going on is there any any evidence about what what usually required or what the government usually doesn't situations like this do they usually tell bookends or do they usually not tell applicants i mean what is the record show to the extent we we know so what the record shows i mean we have the legalization manual and they're talking about what they're supposed to do yeah at that interview to tell them whether there's any missing the patient and i think place as your client then presumably it's not exceptional just by definition and so i'm trying to figure out what makes this different from every other case certainly so what what makes this different i mean i don't think there are a lot of cases in this  same sure sure so i mean i only have anecdotal that this is a thirty year old case i have anecdotal evidence from other attorneys who said yes they reopened play other question is do you have a federal appellate decision imposing  what prompted the question is if the agency not being arbitrary and capricious precludes motions to reopen them reconsider these decisions it's not surprising they don't apply a bit of color and you and if if the if the regs precluding motions to reopen are are consistent with the statute the second circuit included that's pretty heroic for for for this court to impose equitable tolling on that on an agency that refused to do it but i do you know if you got to tell me the supreme court case on behalf of the attorney general your honour's the issue here is whether the a those denial of mr confuses five years late appeal was an abuse of discretion or was directly contrary to clear and convincing facts contained in the record considered as a whole it isn't the regulations give a thirty day appeal period mr compiz didn't file his appeal until five years later and his appeal was clearly untimely as the a o found it didn't abuse discretion by denying the appeal on the ground mr keyes argues that there were various issues with his case that warrant special consideration but none of those arguments were presented to the agency in the first instance tolling argument was never presented to the agency so it never had the benefit of all of these arguments about whether equitable tolling should be applied it had the it didn't even know is arguments about him not receiving notice or is that he believed he was diligent in pursuing appeal once he found out none of those were before the agency in fact in his original written letter the plane just counter petitioner's counsel alluded to it doesn't even say i didn't know it was denied he just says i'm doing what i was told to do by the detroit ins office and then in his later letter from his attorney with the motion to accept the late filing in two thousand and three so thirteen years after the denial no no and this is an attorney prepared motion there's no  it just says we know we're late please accept this there's no indication that mr capece did not receive any notice there's no indication that there would be an equitable tolling argument and it's one of the things we concerns me about this case is the the history of the case where obviously things got lost on both sides including on the government's part and the administrative appeal  apparently got lost in some sort of administrative snafu and we didn't even get a decision how many years later and so what effect does that have on the equitable tolling issue and on whether or not we should grant m i don't i don't believe it has any bearing on it because that argument wasn't made mr t s had counsel by two thousand and three none of these arguments were made we don't he didn't say why it was late in that letter when he had the opportunity to do so and so the question when it comes to equitable to fling or you know this being a put claims processing rule for there being some flexibility first the question is can you get through the gate can you show this is why it was late and he never gave any sort of indication why he was so late in filing the appeal and so the agency can't have abused its discretion it's not the agency's burden or requirement or duty to marshal arguments for the applicant that's the applicant's duty and particularly when the applicant is represented by counsel this case comes back to the standard of review which is abuse of discretion the question is whether the a o abused its discretion when it denied mr key pieces appeal and there's no none of these arguments again were made to the agency all the agency knew was this appeal w five years late and it did not abuse its discretion by denying the appeal for being five years what are you conceding is the government conceding that equitable tooling applies to  m no your honor we also don't believe this is the correct vehicle for such a determination because none of these arguments were made before the agency so it did not have the benefit of any of these arguments this would be something that the agency would need to determine in the first instance and particularly here where again none of these arguments were before the agency it didn't have the benefit of determining whether equitable tolling even applied and it doesn't matter because all of the error because the agency did not abuse its discretion when it denied it based on we appreciate your your participating it's not as it's not as good as environment as if you were here but but it worked thank you for clearly when they made their decision but it was raised it wasn't raised in the way a lawyer phrased it but it was raised and the letter from the attorney later on was just to provide additional materials but it wasn't making any additional