government's argument here is that they should be able to break the law and that you the court should look the other way i'm asking you not to do this i think i bet they wouldn't state what they're asking us exactly the way you just fill out an application and following the instructions on the form you brought that application with all of the supporting documents to win ai and his harvest in san jose in december of ninety eight he encountered an i who took the application looked at it and told mr ms donitz that he didn't know what to do with the application and sent him to another office my client's father went to the other office and encountered another agent who told him she didn't know what to do with it and she wasn't going to process that back to a woman gave him a phone number to call when he called the number he didn't receive any messages he called the number several times nobody ever returned his phone call but it in effect counselor you're asking that  establish citizenship by a stop are you not no i'm not asking the court to determine that my client is a united states citizen nor am i asking you to adjudicate our citizenship application i am asking the  asking the court to educate my clients citizenship application i find it easy united states citizen i'm asking you to order the department of homeland security to that application is having been constructively filed it's also distinguishable from what authority do you have for that the well first there's at least sixty eight filipino war veterans case where the what's the citation on that and did not have an issue with the fact that the central district of california in that case the centrally ordered the department of homeland well the ins at the time to treat the applications of the filipino war veterans who said in the what they deemed isn't that the requirement it is your honor and i think there is sufficient evidence on this record for the court to find that the government did in gaijin that's an affirmative misconduct how would you define that so the misconduct  to be affirmative misconduct i think i think the court could find that the agent's refusal to adjudicate the application when it was her duty to do just that is affirmative misconduct but in a motion to remain on that i filed with the what's your city have done she said i don't know what to do with it but here's some telephone numbers you call if you didn't know what to do with it she should have accepted the application for filing and but i could if i could possibly see how we'd stretch to your position if the deadline was close to other words if must be filed and she came in on the the day and but it wasn't it so it was as you well know as an experienced lawyer that if you haven't raised it at the biennale level you haven't raised it in your opening brief it's waived how can you bring it up now we have the issue  my client's immigration attorney it was used by the immigration judge has ordered decision now was the first time that the issue of equitable stoppel and affirmative misconduct ever came out and at that point my client's father had already testified the immigration attorney never brought out the evidence about what really occurred at the office in san jose so this evidence wasn't properly brought before the court and the complied with and this court does not have the equitable authority to waive any defects in the naturalization application in this case position i saw naturalization for soon sign a section three twenty two as a prerequisite for attaining naturalization the inspection three twenty two petition i had to affirmatively file an application for naturalization with the department or i'm sorry with the predecessor to the department of homeland security the immigration and naturalization service  another requirement was that at the time of adjudication the petitioner had to be under the age of eighteen years in this case however your honour's an application for naturalization was not filed a petition is not a united states citizen he cannot be in her opening brief but district court cases and prior cases of historic record the main the main part of those cases was that an application was either actually filed an affirmative misconduct post filing  made this court totally of clickable statute or the ins affirmatively undertook some sort of misconduct in this case there is not affirmative misconduct of petitioners counsel cites to the filipino case you cite to several other district court cases where in those cases on this court would have the power to confer that kind of relieve there simply has not been affirmative misconduct at best the ins agents in this case one is helpful as they could have been perhaps it could be characterized as negligence even but the circumstances and the actions of the agents in this case do not rise to the requisite level of affirmative misconduct that this court has traditionally required for a demonstration that i could well established should actually be given to the petitioners so your honour's succinctly stated i think first the dischord does not have the authority to confer citizenship but i do believe that is a central issue and alternatively even if this court did them they determine that exact role of powers could be applied in this case there hasn't been a demonstration of a from and of misconduct that would justify actually granting equitable stoffel your honors i'd also like to address the two outstanding motions before this court if there are no further questions on the other points first petitioner has filed a motion to transfer this case to the district court i think the main focus of this motion should be directed to the language of the statute that u s c section twelve fifty two b five being transferred to a district court can be had in certain circumstances mainly when the genuine issue of materials that there is in this case your honour's however no genuine issues of material fact the facts have been agreed upon i think at all stages of this litigation and during the appeal process and respond is opening brief before this i would note at the outset that this claim has never been presented to the agency and further petition did not raise it in our opening brief before this court however importantly the claim she raises in that motion i think on a cursory examination of the record is not colorful attempting to file the application for naturalization and there's simply no need to garner any further facts at the through the administrative process to ensure the record before this court i think provides an ample opportunity to decide the case on the merits so that by allowing the applications the untimely applications to be untimely filed the court would be frustrating the policy of congress in this case congress amended the trial naturalization law to make it easier and we'll hear first from jennifer kuhn from the federal public defender's office in san diego