brothers over seventeen years after our united states government granted my client the precious right of citizenship that same government came in and file proceedings to revoke and you naturalized my client  correll to bring proceedings against him so it sounds to me mr everhart is though you're actually trying to make a selective prosecution argument but those are really tough ones to make especially if the person who is being i'll say prosecuted seems like a good enough word for this hasn't fact you know has proven to have done the things that accused of doing i don't see anything here that it's just people from mexico or it's just i don't know what you know people of a certain age or something only men the the evidence showed  that he gave a deceptive answer to a question about his criminal history and then that carries forward as of the time he takes the oath so why is it helpful to him even if it  is the situation the government's not prosecuting everybody but your honor i disagree with you that the evidence showed that he gave a deceptive answer the deceptive answer was relevant the counts to him five the judge can only did not make a ruling th that there's no evidence that mr crow was even asked that so but i mean for the ground the judge can only use his what why is that wrong because the case is all about a constitutional issue the criminal the naturalization proceedings apparently the civil to naturalization perceive there's a ten year statue of limitations on the criminal we all know that states and early one nine hundred fifty s and turns out they were participants in the the nazi war camps or otherwise and all of a sudden be two thousand and five and you're jean actualiz them there's never in the d naturalization context to my knowledge then a notion of a of an outer period of time that's too long but what the difference is your honor and then just going through the history of the day naturalization procedures first of all it was the bootleggers and it seemed like all the bootleggers were doing the actual list and it was the nazis and it seemed like all the nazis were doing naturalized we had to and then that went to the mccarthy era in the communist were all d naturalized now we have with the set of the individuals similar to mr correll who crossed the border continuously since two thousand and four the government knew at least since two thousand and four  ice if you're trying to say that the government is stopped somehow from bringing this kind of claim because again i you would have to cite me a case i think i can never supreme court cases that say the government isn't not need to do that in this case and i'm particularly reluctant with an equitable doctrine such as latches to stand up on a pedestal and now it's now and for all time there will never be latches against the government i can't imagine the circumstances that would come along but i certainly don't see anything in in this case that would disqualify the government from bringing this kind of action there the facts are the facts mr caroll did what he did that the timing is what it is and i don't it seems to fit all the criteria what i brought of them to this motion the judge can only characterize that i forget his exact terminology but he recognized that the latches the shooting the equal protection issue were brought up and if the court is tending toward waiver and say i don't think there's that should be honored because the government comes in here and says we would like a ruling also as well as act just my last comment that there chooses again when you look at tell your statue limitations on the criminal side civil statute parents the criminal and there's no statute of limitations so once you get beyond and i submit that ten year period then you have to look at the equities is being brought in and should know that no one's ever held that though right correct and what prejudice to chip clients suffer from the seventeen year wait but it missed that it didn't matter if you would argue below that you couldn't find or you didn't hear the testimony of the agent who interviewed him but that didn't matter to the court's ruling so what prejudice is there from the seventeen years seventeen years of building a business building a family and building a life in the united states are all on and on in the sand so to speak based on the commission of a crime of moral turpitude during the statutory period had they known that one assumes he would have been naturalized correct so i will move on and say i understand the court's position i understand and i would submit to the court the equal protection argument which judge can only you know going to castoff is actually better argument sen denaturalized i look at the crypt the criminal statutes and it says a heinous murder is going to go to jail and maybe get the death penalty or go to life but an unconstitutional arrest search and seizure lets that individual walk out because  naturalization with us unlawfully procured and the district court was correct to revoke it and indeed had to revoke it under eight u s c fourteen fifty one day mr pro finds three things wrong with this result first he argues in his brief that sexual abuse of a minor family member under ninth circuit law does not involve moral turpitude he makes this point and was almost as an aside in this brief and didn't really discuss it here today and i think that's for good reason his brief essentially concedes that the district court's holding comports with the precedent of this circuit but let these let me just push back a little bit i think it depends a little bit on what we mean by family member certainly for a family member is a par option step kid all the rest of these things that part of the statute certainly seems on remarkable there's also though where the victim is a child under eighteen or somebody and the accused has resided in the household continuously for a year which caused me to think well suppose if there's a foreign exchange student who is living in the household for a year suppose somebody decides to let their next door neighbor live in the house for a year there are all sorts of situations i can think of that are less intuitively like a family member so the question is how broad is violated in a way that is not morally to opportunists and so this issue was not argued by mr kroll either in the district court or in his briefing here and judge he did not take up the issue but i would argue that that is not in most circumstances going to be how this statute is violated so your position would be the reasonable probability test would exclude the more unusual variance correct your honor i would argue that in most circumstances how the statute is most often violated would be with someone that is perhaps within one degree of separation someone is a blood relative or a relative by marriage or adoption of that sort of thing so the second point that mr crow brings up is that he thinks this lawsuit is precluded by the affirmative defenses of wasn't in the answer that's correct your honor and we did bring that up and the district court did actually look at these defenses then and did consider them so we don't object to this court looking at naturalization proceedings so and so i have to complain about that view only because the word never makes me very concerned heard when it comes to putting defense such as such as this and i and i actually was startled to see your brief complaint that it's nettlesome your word i have to father three fifth's made me think well maybe you shouldn't work for the government then i mean i have sometimes you have to brief things and there are facts specific defenses i'm sure people who regularly represent employment discrimination defendants also feel that they're being a bit repetitive but  know that's life and i just really can't afford i don't have enough trust in my own ability to foresee circumstances where latches might in fact play a role this strikes me is not likely a case given that ground but facts can change criminalization standards can change mores can change maybe there was a time that somebody  this behavior if a man and a woman lived with each other outside of wedlock and now more than half the united states lives that way we don't really blink an eye at it and so it was i don't know i think it's best to stay away from the never i'm sure your honor if i just offer a brief response to that is when i have wrote in the brief that it's nettlesome to have to address in these cases i meant that as an argument to go toward why this case should take it up as opposed to the government has to push back against then that's the way it is that so that's that's certainly something that we do in other contexts also just conelly didn't take that particular issue up as to whether or not latches should ever apply and  reluctant to take on something that hasn't been that is through the district court first that's that's fair your honor i would point out that the we think that this court could take the six circuits approach the six thought so again that's that's a pretty weak read that's very or all move on and on the facts of this case we think that judge conelly had it right when he dismissed that defense first of all that the district court assumed that there was a lack of diligence on behalf of the government we disagree with that assertion but i think that's important to keep in mind here that there is no issue here on appeal as to whether the government  on i don't have the statistics here but i can say anecdotally i know that our office alone and within the department just a civil division we filed in the double digits i would guess closer to thirty this year  we showed in our brief that on the issue of naturalized individuals who were convicted of cross sex crimes specific sex crimes against minors at least in the last fifteen years there's been ten maybe we had cited in there and so the problem is we need denominator because a lot of people are naturalized each year and i think the thing that made this you know a little unseemly is political attention that it received as a result of you know perhaps current policies you know you would like to think that were and you know inside the courthouse it's the rule of law that's govern and it's not somebody making a political point illinois but all over the nation and that's been through the past three four five administrations but also this is an affirmative defense and like all the from the defense's it is the defendant's burden to plead facts sufficient to survive a motion for judgment on the pleadings and so while that's an interesting argument judge would that's not what was in mr corrals answer or motion to dismiss any specific allegation more than just well there's a new administration now as you suggested there's nothing saying oh the government is discriminate against me or on a class of individuals on the basis of race or any other constitutionally a class that is constitutional constitutionally improper to discriminate against there's also no allegation in there as to discriminatory purpose and jumping back really quickly to the issue of flash's diligence is assumed but also mr kroll failed to show any prejudice there was no evidentiary prejudice that he showed there's no specific facts relevant to count one i mean the facts here clear we know what crime he committed we know what he committed we know what the statutory period was so that we're not worried about faded memories in this case correct your honor there's the conviction documents which were sufficient for judge conelly to make a collateral stop of finding speak for feisty judge saves question counsel from the government's anecdotally with regard to how many prosecutions have been brought in the last year and a totally and it's not before this court this is the kind of evidence that i was trying to get before the court with my request for discovery on the equal protection plan all you have to do nowadays is google all these things and we've learned about the new task force for these types of cases the prosecution's as of something ten thousand and eighteen  constitution or the statute or the constitutional procedures i submit to the court have to be addressed first judge conelly with all due respect did not do that on the equal protection claim and the constitution