was grandfathered under immigration and nationality act section two forty five by the district court erroneous leap included that u s c i s utilized the correct legal standard and finding that mr shah was not grandfathered because the two prior i want forty petitions that he attempted to use for grandfathering were denied on the merits mr chow contends that u s c s improperly relied solely on the denial of his two on forty petitions on the merits without considering additional evidence in the rocker at the time of his current adjustment of status applications showing that he qualified for the benefit at the time he filed the i won for it prior i won forty petitions why why do you get a do over i mean why why isn't the agency allowed to say look you had a chance before didn't succeed you haven't shown that the denial was based on some not relevant proceeding in the district court's order quoted from something i forgot want to was but said this isn't really intended to do over why is it you why should we treat it that way well i have a couple of responses to that the first is the language of the regulation itself the regulation states that you are to look at the circumstances that existed at the time of filing and in order to be grandfathered at the petition has to be meritorious in fact it doesn't have to be approved it doesn't have to show a legal success as the fourth circuit state in an organ deep it has to be it has to be something that merits a legal victory or had legal worth rather than actually have legal success but by the concept you know collateral estoppel or a shooting caught a claim preclusion and so forth courts usually don't go back to revisit the question again just because somebody would like to have somebody different look at it i'm not sure why the agency should be expected to do that if there's a compelling argument that says look this was just wrong maybe but why revisit the same question over and over and over again well th this approach is then endorsed by the board of immigration appeals in the case of which we've cited in our briefs so the board interpreted in this particular regulation found that it was proper for an immigration judge to take testimony and that case i'm not saying they can't my question is what compels them to do so because your argument depends upon that being a requirement corrected in that case that was found and also in the other david case the same thing in the case that they looked in read the regulation that was it issue and looked at the term meritorious in fact which is not to find it anywhere and states by using that rather than a proof petition or something similar that they were to look at the evidence and the rocker at the time they were making the grandfathering decision we're not going back to try to seek approval of the prior petition what we're seeking to do is show that it was grandfathered per for purposes of two forty five i think you just said they want to do that you want them to look at the information in the record at the time of the decision say so you get what record you think they should be looking at because the time that you're adjudicating that current's adjustment of status application be so including the additional information added after the initial decision which is what they did in  they endorsed and the board indorsed that procedure in rio the board also examined that and matter of biden cited favorably the ogun d p standard from the fourth circuit which specifically said you can look at all the information that's in  rocker at the time you're making the grandfathering decision to see if the person qualified for the benefit at the time now you're looking at the first circuit disagrees an extra vario right but can you reconcile much of area with the cases you're trying to rely on or do you think there's just a split of authority distinguishing characteristic and letting the board isn't so we have u s c i s as the agency we're reviewing right correct and board decisions are binding on us us and vice versa is that true or is it only in one direction or u s c i s decisions can be a challenge to the board of immigration appeals they're there memoranda or not reviewable or not binding on the board of immigration appeals but you can challenge us c i s decision say up to the board of immigration appeals for an i the circumstances that existed at the time of the prior filing and not merely evidence that's possessed or submitted in the adjudication process itself i'm sorry can i back you up to these agencies you may just need to help because i point three that they follow the decisions of the board of immigration appeals and they always do is that sorry can you just give i believe so i believe that that's the regulation it's one of three point three that those particular decisions are binding and they address the changed circumstances subsequent to the filing of the petition that you're trying to grandfather then that's one thing but here you're relying on evidence from outside the record but and foot no one in rio they state that that rio did not meet the changed circumstances portion of the regulation however found that this individual could still show that he was grandfathered based on the submission of additional evidence and i think being in the regulation with respect to grandfathering clearly shows that they contemplate going back and looking at this petition even if regulation talks about a different situation where there was a withdrawal or something else i mean here there was actually an adjudication at the time and i don't read that the regulation is speaking to that directly to you it does not but that  doesn't but what we're arguing is that's not the only circumstance where denied petition can be used and that's what we're all talks about of but no one because we're oh did not meet the changed circumstances there were no changed circumstances in rio that the petition was denied on the merits that the marriage was found not to have been bona fide and it was denied on the merits and ogun deep the petitions are submitted either dense in response to requests for other events much like in this case however that evidence was found not to be some sufficient in order to meet the standard for approval of the i three sixty petition and the fourth circuit in that case you can go back and look at evidence that submitted subsequently that was not in the rocker to make a determination as to whether that particular visa petition mean there wasn't a decision so we don't have this tension with the idea of just a few ing things over and over again here where there was a determination we got into the problem how many times did you get to try i mean did this go on forever that you keep bringing more evidence and try ten times to get  the court should look at where the adjudicating branch should look at whether the circumstances that existed at the time of filing warranted approval that petition and that can include evidence that was in the record at the time or evidence of subsequently submitted if we just think those decisions don't make sense are we bound by them no you're not not bound by those decisions but i think when the board speaks on a regulation and especially the regulation it issues here with respect to the grandfathering i think deference because they look at this specific regulation that we're talking about and found that the appropriate procedure is to allow the admission of additional evidence which they did in that case but why should  o or the board of immigration appeals were merely dealing with a u s c i s decision that was completed in the course of adjudication of this case and they just merely said the denial on the merits is alone insufficient when he did that the agency did request additional evidence in both of those instances so we did have an opportunity to provide additional evidence to try and satisfy the regulatory statutory requirements for the eligibility sought in both those instances he did submit that the agency considered that additional evidence and the petitions were denied on the merits after that after that time the additional evidence that can be provided under the grandfather provision it is evidence was a time so the marriage that took place forgive me i'm not sure when we are was but before several years prior to what was happening when they were requested a relief under grandfather what petitioner is indicating it here here in approval he was three years out of school after his master's degree so his credentials or his resume or his achievements were only three years of school versus the approval which occurred in two thousand and twelve he had fifteen years of of time to make those accomplishments but anything that happened after nine hundred ninety eight or two thousand which in which is two parties were previously denied that evidence i got in classification in two thousand and twelve cannot be used to make a demonstration of eligibility for approval so i may have misunderstood but i thought that part of what he was trying to submit now was additional information about things that existed in one thousand nine hundred and two thousand like additional information about what their wards meant and things indicated that the record was unclear but mr jalil did have the opportunity to do that and he did that after five more information about nine hundred ninety eight and two thousand correct your honor but the agency didn't look at that did it it did you a form i to ninety b a motion to reopen a motion to reconsider which is an administrative appeal of the decision he did submit that and the agency did indicate that there were grounds for the most for the case to be reopened meaning there were new facts to be considered and however even with consideration of those new facts they affirm the denial of i forty five meaning he did not qualify for the grandfathered provision so the aged might be so where it's clear that the agency looked at the additional information from ninety eight and two thousand the the i four the appeal decision on a motion to reopen i have here accept the record page fifty seven fifty eight and that indicates that there were grounds to reopen the case based on the submission  additional information from him in two thousand and thirteen indicating why you believe you qualify for two forty five or twenty five eligibility and mr gelb did scimitar response at that time indicating that he believed that he had additional evidence that would qualify both in ninety eight two thousand and he did it he also submitted evidence that he took took and passed those years into his current credentials i go is the agency's position that you're articulating now that the agency does have an obligation to look at new information that's about the time that already has existed at the time of the education but does not have an obligation to look at anything later is that the position that you're protecting the second failure to respond to requests for evidence so there is evidence that could possibly put you over the top that you never submitted at that point i would think that the agency would consider that evidence when you have the opportunity to submit that or if there was a   gated and so it's discretionary but is that just exercise of discretion reviewable suppose somebody comes in and offers some pretty powerful evidence that it had been introduced after the first denial and it's relevant to that time period then you would anticipate a different result is the agency in that context expected to look at it i mean could we as a court or could the district court say well you're not obligated as a matter of course but the exercise of discretion is reviewable and this evidence is so powerful that the agency should properly have considered it again i think you're i think with the pen on the facts because i would i would think it would depend on exactly  what would be the reason for the initial denial if it was again i suppose it was the night on the merits but there's this enormous piece of evidence for whatever reason that wasn't submitted this is hypothetical but i'm giving you a  we don't get into the details of what the evidence might be just take my word for it that the evidence that was not submitted at the time that should have been and was timely than existed then was so powerful that you would expect the agency to do receive a demeaning to god won the nobel prize only nobody bothered to tell the agency about that so that's what i'm trying to get to is that reviewable i'm trying to see if your position is that it's entirely discretionary not review well maybe there's something that the agency is obligated to look at but it's not inherent and it's not something the agency always has to go back and and open reopen i think it's more along the lines of the second  agency's discretion and it has to be so powerful as to this lead the court to say this is something the agency would have used discretion in not considering but you're also saying there's no not no obligation of the agency to consider just whatever is put forward i mean this record here noted that your the agency's main position before the district court was that it had reviewed the additional submission and decided it didn't warrant a change but then the district court moved to what it described as the underlying position and you're prepared to go back to the first position of necessary that the agency and the letter you point is to suggest the agency did look at it and you're willing to draw the line there i think that's right your honor i think also walking the it is this letter but what in the letter i think you must be time at page fifty eight what in the letter leads you to think that they did consider the earlier information but not the later information i don't see any distinction based on y a clear statement about what they considered didn't i don't think they'd made that distinction but what they did was they indicated that there were grounds for a motion to reopen and the grounds for motion to reopen are there you have to be new facts that were not presented at the time of your filing and after a decision is made on your on your application but your position here today is those new facts have to be from the ninety eight and two thousand time period that's all right to allow reopening but that's not what the letter says it doesn't make that clarification but it's a denial of a motion to reopen a denied i forty five application on a request for relief under the grandfather provision so it's kind of it's the end of the line of and under and i think there is there is case law that evidence secondly i don't understand there are you saying that the evidence you're talking talk to the district court and talk to us about justifying the different decision wasn't part of what was put in front of the agency it was put in front of the agency but i don't believe it was a part of the motion to reopen it was part of the prior filings with the agency and we cited to what evidence that we wait which prior filing well there was the five forty five filing the current forty five filing then there was the notice of intent to deny so there was a response filed to the notice of intent to deny and then when it was denied then the motion to reopen slash reconsider was filed and that's the document that government counsel's referring to showing that they considered the new evidence and in fact i think in reading it there they did not state that the service maintains sense or par i won forty petitions were denied for cause they were not approvable when filed there's nothing in there that states that they consider any of the evidence that we're referring to on the evidence that we're referring to is on pages twenty nine and thirty of our briefs and we outline five different documents that show that my client was qualified for the petition at the time of filing or not relying on documentation showing he later was qualified for the for the petition because we know that he was granted we're not making that argument we're simply making the argument that this evidence shows at the time of filing he was qualified for  what he submitted was sufficient so to respond to the request for evidence i'm not sure but i think that the cases that we've cited to show that and this and circumstances where you're trying to prove grandfather additional evidence can be submitted and must be considered by the agency or by the immigration judge in making the determination as to whether that petition was meritorious in fact thank you thank you thank you both sides