have the required certification prior to the issuance of the two thousand and two i one forty so that was a requirement and at least my reading of it is that there is no place where the government affirmatively say you don't need that certification or we're waiving that certification requirement or anything like that  so i mean i guess i'm not sure if if it had been revoked in two thousand and two your client would have been gone a long time ago so why why yes why is it unfair  like relying on equitable stoppel that it's not fair for the government now after this many years that's part of the argument i don't know seems like that's your primary argument at this point but let me ask you what's the standard of review for us at this point in time regarding the trying i'm just trying to understand your argument because what you answer to judgement is that the affirmative act is the initial approval and if and that that can't be undone and if that's true then even  mistake and even if it was caught within a week if we accept your initial argument there could never be undone even if it was a mistake but i don't i don't know while the passage of a long period of time might be a grounds for equitable stoppel in some cases yes this is against the government yes or no and have you found any case that says in the absence of an affirmative act the passage of time can operate as equitable a stop against the government in about it looks like two thousand and six seven application for permanent residency which says that she failed to submit the required document and so she was being done on so why is that an affirmative  blessing of the propriety of i mean it seems like you know maybe even the opposite but certainly not an affirmative act to say that that the original all of the qualifications for that visa when did she achieved the qualifications well there are two sets of qualifications your honor and she met them at different dates but all rich occurred after the nursing she did not achieve obtain a such a degree until twenty twelve your honor of i'm sorry yes twenty possibly twenty times when she got the american degree and there's no evidence showing to her for an education was the equivalent there is a second set of requirements that she met a little earlier but still after the priority date that is the requirement for a schedule and a designation and for that she needed to meet past the n c l e x r n exam which she did in october two thousand and two and that's several months after the priority date and so was choose to file a petition when she had not met the qualifications and in doing so she jumped in line because the priority gate is what the stabs is your place in line for the entire went to a green card what she's trying to do in court today is improperly invoke the disfavored doctrine of equitable stop the district court properly found there was immigration context no your honor there's a saying that it can be applied but it is disfavored because it violates or it touches on separation of powers and it allows a  party like the plaintiff here to bind the government based on a wayward official in a way that congress never intended and so what did congress intend here we know we know that in eight u s c alum fifty five who's done something that maybe should had been denied at the time and explained to her what she needed to do that she had done you know show why her foreign education was good enough and go ahead and pass this test which she did fairly shortly thereafter and it you know from her perspective it really is the well drink i would say because even in the absence of an affirmative act there certainly nothing happens to disabuse her of the illusion that she's properly got this document for some you know ten years and i guess i'm wondering what effect if any it has that by two thousand and twelve even by your concession she does meet all the requirements where it is there are some mechanism by which she can receive a new date as of the time that she was in fact eligible she was informed that she had not met the requirements and so there's no doubt it was with respect to the other five i won forty but it's still maybe would have given her the same level of information would you answer my other question though because it's somewhat disturbing to me that that as if you know as of today and as of two thousand and twelve she did meet the requirements so what do we make of that well you are two things one she  in fact she has reapplied with a new i one forty know if that's true is this whole thing moot no your honor because of the issue of priority whether an individual is whether a green card is ready for an individual depends on their priority date and their priority date is dependent on whether and i want time they satisfy their requirements so the entire the entire result of this case is whether she gets twenty this case it seems like at a certain point shouldn't those who interact with the government be intitled to rely on the government's assurance here even if it was implicit there's two questions roger why did the government take so long to realize it's or it's not clear from the record and i don't want to speculate about anything that's outside the record because this is after all a record review case what i can say is that she had continuing applications over the years and that in continuing to review those the agency had occasion to realize it's the meeting in two thousand and two and as to your second law from this circuit is that affirmative misconduct is required for equitable stoppel to lie against the government there was no affirmative misconduct there was at most as perhaps correct that there were alternative ways to satisfy the qualifications either having the schedule a designation passing that test or having proof of the  equivalent of a degree that would have been issued in the united states which was the two thousand and twelve degree by october of two thousand and two when she passed the test would she have been entitled to the i one forty no let me clarify and stand my answer earlier may have been unclear there are two sets of qualifications she must meet both within each set of qualifications there are yes alternative ways to satisfy them so one set of qualifications relates to her schedule eight application and that requires that his back and be met in one of three ways she did not meet any of those until at the earliest october three two thousand and two when she passed the n c l b acts are an exam again that's after priority the second set of requirements that she also had to meet had to do with her education she could have proven that either with an american degree or with the equivalent of an american degree she there's no evidence on the record and this goes to the matter of the motion to reopen which is also an appeal there's no evidence no record that she met those educational requirements through indian education and she didn't receive an american degree in two thousand and twelve clearly after the priority so that's that goes to the qualifications for not long after the priority date not long after your honor so she only jumped in line a little bit but the that's the principle at issue here is that she jumped in line by winning for herself improperly and i don't want to impute any you know evil motives to her but that's in fact what she did is jump in line because she secure for herself iran is the a priority date before she had all her qualifications in line and i just got confused again by she jumped in line just a little bit ok was she qualified before two thousand and twelve she was purposes the i won forty that's irrelevant the only relevant issue having do with the facts of this case is that there was a priority when i'm now i'm confused if if we were just looking at everything that happened what would have been her correct earliest priority date that would be available is it o thousand and twelve i believe it's twenty twelve that's when she would have had both v and c l e x r n to meet the schedule a requirements and has she applied for that that's what you were saying earlier that she the supreme court case and it seems like in that case there was a lot of reference to affirmative misconduct but they ultimately the court reach affirmative misconduct because they were just looking at the  promptly process the application so why why are we just focusing on whether the processing of the application was prompt here when it took it's much more difficult for an agency to apprehend an error it has made than to simply process an application for the first time they're different a minute straighter priorities and principles apply the second thing i would say honor is that in miranda there was not a countervailing statute that militates against the application of equitable stoppel what i'm talking about is let alone fifty five eight u s c eleven fifty five the statute that says u s c i s may revoke and i want a visa application that's improperly granted at any time once it apprehends its error that statute is the congressional will that equitable stop will would wrongly contravene my last question for you is you know it sounds like we have this prior application and we have subsequent application as priority date she fell short of the requirements  by i think a relatively short period of time it was a matter of a few months seems like she has a subsequent application which sounds like she's met all the requirements just from what we know and this case would this case be suitable for mediation no your honor it's not suitable for mediation because as a matter of law miss dorrit is not entitled to that earlier but might be entitled if if by grace of the government to a priority date in two thousand and twelve when you can see that she met all of the required us again year and this is equitable i mean considering one of the things we are considering is equitable stoppel seems like the government should be able to factor that in as well i do stand the court's desire to do a good to hear your honor equitable stoppel specifically that remedy is not what we're not talking about that mediation allows people to come to a conclusion that isn't related to the specific arguments being made that's really the whole point of it so yes there are some bar procedur legally to agreeing on a priority date that meets the legal requirements but is earlier of them pending application or on or at eight the regulation eight c a four one of three point two b one which has been expounded upon in presidential b i e board of immigration appeals decisions like tying foods and matter when and what is that saying what is the rule that says that if you do not have so is there a legal bar to that there is no applicable mechanism for a mediator to compel us c i s i'm not asking about compelling that's the whole point of me the haitian well there's no there's no mechanism for us yes to grant an earlier priority date than the filing of an i want forty in which the i want forty satisfies all the requirements just going on what we have here but it looks like you're really focused on that first one to the two thousand to one guess you're at but there's been subsequent and from what i can tell just from reading the record that we have here knowing that she complied within months you know and if she had just held on to her application for a few months she would have not she would been in compliance and without any problem from what i can see in going forward so there's subsequent ones here the you know maybe we can pick up from there in light of the fact that even though we understand government can make a mistake there was a ten to twelve year time period for it to recognize it mistake and it took twelve summer years to recognize that the two thousand and two petition she chose to file that before she had on qualifications in order for two thousand and six after cation was denied that denial was affirmed by the district  honor so that's the problem yes is that the later priority date would still not at this time permit her to stay in the united states not at this time around we should not at this time why do you say that the way the priority dates work is that they send up a flag and they say this person has met all her qualifications for a visa giver vs give her the opportunity to adjust status when the backlog of adjustment of status up occasions if you're out of time while you're i do try to strive to a better camera here in this instance but what we have here is a case where mr george filed a petition that  she was not qualified to file the government yes took some time to realize its air but recognize its care and it did so under the auspices of the congressional scheme at eleven fifty five  that ability that discretion for the government to revoke a petition at any time sadly does not permit the remedy that mr george seeks of an earlier priority date than