gent a us citizen who that same year as required and in compliance with the statute applied to naturalized him urges this court to grant him citizenship as a remedy for the equal protection and due process claims that he has alleged at a minimum dent is entitled to a remained for trial on the due process claim because the district court erred in granting summary judgment in favor of the government on that claim and finally dentist not an aggravated felony i'd like to turn first the due process claim and highlight four factors one procedural and three key documents that show why here unlike in the brown case it was clear and is clear on this record that was at risk it edging out the agency knew it and the agency ignored that risk with prejudice to my problem with your argument on this is that the agency  up more than once an interview time and schedule and he didn't show up and he didn't say why he didn't show up he didn't say i can't show up he just didn't show up so what's the agency's responsibility if any if someone is given that opportunity multiple times and simply doesn't go so i think you point out the first beginning fact which makes this case different from brown and those two interview notices the first ones show that the agency had his application knew his birthday and had it in hand was acting on it but what's important is i think the key to this case is that one thousand nine hundred four corresponds with his mother there's deposition testimony which shows that the agency never closed his case and would put these cases on in the file room if awaiting him well on time all the time and that's what she did at most that shows negligence it seems to me not as of nine hundred eighty four so by ninety four there had been two miss interviews and the mother ramadan is in contact with the jency and we have to acknowledge share as the government admits on the right in our record that there is correspondence that's missing right so we have her corresponding with the agency before nine hundred four in august one hundred four that's a pivotal moment because the file is open she has obviously and this isn't for an eighty seven  record she has obviously corresponded with the agency or reached out to make some kind of status inquiry and the agency response back to her thank you for contacting us we will do everything we can to get him his citizenship please provide the information she hand writes a note which says is sixteen will be seventeen november fifteenth and that that moment she has flagged his risk of aging out because there are only fifteen months left on the clock they have his application so he's always had this risk of aging out now it is getting to the point where it is emergent because the dense live in arkansas and we have deposition testimony from the government saying there are only two circuit rides  that point so it is now emergent there are two circuit rights left and we also have officer gallman on the record testifying that the agency and i quote should have scheduled the interview even later he still continues failing to show up when all he needs to do is take the oath of citizenship he keeps moving around he doesn't tell him where he's going to be  you know there's a lot of contributory negligence here i guess is what this record says to me so we maintain that there's what he show has shown on this record satisfies the tests that this court set forth  brown i'm suggesting to you that if you have competing negligence here that doesn't satisfy the test that he's got some aggravating factor that were not present in brown ok so i want to not call them failures to appear for want of a which an inference could be drawn that a substantial risk of serious harm existed and as i've noted in my twenty eight day we do believe that should be an objective standard but we also believe on this record that subjective standard can be set aside and that that nine hundred eighty four note conveys that right when i need to ask you because we're going to get caught up with your time time constraints i need to ask you the following once your client turned eighteen he was no longer eligible for the five whatever that form number is but he could naturalized as an adult and he started that process yes so why is any of that previous stuff even relevant because he had an avenue and he began that avenue he had his interview and once again he stopped showing up so i don't even understand what difference it makes what happened when he was under eighteen because when he was over eighteen the agency set up that interview and was going through the process and he kept missing again and so i don't even understand why it matters what happened when he was a minor it matters because the agency testified that had he shown up for the interview and i understand your concerns about the two earlier interviews right but after nine hundred four we have an emergent situation we have testimony on the record that in a number when he's getting close the agency would give these cases priority and pull the file and get it done with they didn't do that and the prejudice i want to but i don't i just don't wear the prejudices because he had a different albeit a different process he had efficacious avenue to pursue as an adult and he started down that road and the agency was fully cooperative with him in that alternative method and he dropped the ball so i don't understand why we even talk about what happened when he was a minor we talk about it because of brown this court's decision and grounds of the you had a protected interest missed the third appointment which was supposed to be for his interview then they accommodate him the next day they have him fill out the adult application they approve it and all he has to do is take the oath of citizenship and he disappears again so so how is there and the liberty and difference on this record so the deliberate indifference is that the agency had the information and the satisfies the brown test in one thousand nine hundred four that he was about to age out they felt that they think that the pivotal moment is he had an opportunity to become a citizen as an adult regardless of what happened when he was a minor it was right in front of him and it was his doing that he didn't take that opportunity so it just i have a causation issue yes with the whole discussion of what happened when he was a minor so i understand your concern but i think it goes back to the agency the agency mishandled his application and therefore he aged out and then as a result also in brown there was another option a right but he lost the benefit that congress provided to minors an us citizen parents to go through that project had you lost that and then he's on his own with his adult application as an eighteen year old and granted we understand that he made some mistakes during that process but we also have the government again not following its policy on notice and how these cases are and how the petitions are handled when they can't find the person and they did not comply with their own policy so that just is you know makes it snorts compounds the error that are you originally are our case law says and agencies failure to comply with its own policies is not evidence of deliberate indifference it may be evidence of negligence it may be evidence of gross negligence but there was not here's another reason why i don't think it's just negligence and the district court ignored the note from one thousand eight hundred five that there may have been an improper motive here and that he that i mean the improper motive was that the district court handling his application called the ins and is talking about deporting him and we don't know how exactly what transpired but the district court is the one that would apply would grant his application at the end of the day it's one of the roving considerations for granting the application whether or not the applicant is a good time i want to make two quick points one is on the equal protection claim there is i want to highlight three points which is there's no case challenging the requirement that was that issue here for children of us citizens in  case on that in none of the equal protection cases on of any kind that we found is including washoe involved a timely filed application by a citizen parent and none of those cases that are discussed on this record i mean in the briefs had the benefit of morality santana which says that we look at citizenship claims with greater scrutiny and less deference to congress so that really sort of hammers home the message from washoe and then finally the agents here is i mean the government is asking for email on the i graduated felony there are not entitled to remain on that issue if there's a remain and it's for his opportunity to apply for cancellation so i'll reserve the balance of my time of th good morning your honor is katherine clark appearing on behalf of respond there's our dent and his mother roma declined to appear for two interviews scheduled on his childhood application scheduled well before he aged out of eligibility on that and there is no prejudice following from any subsequent actions because after mr dent edged out the ins promptly helped him to file and recommended approval of on that very same day his adult application and then after mr dent failed to appear for interviews on that application and also failed to keep his address current with the eye on us or with any other governmental agency for purposes of mailing notice that application was denied in hundred nine mr dent concedes that he failed to keep his address as current he concedes his own extensive contribution to the denial in this case and therefore he has failed to show due process violation the district court's determination that he failed to make a prima facia case was correct and additionally the equal protection claims lack merit and if the court has no further questions the government would request the court to remand the proceedings to the board to address remove ability and eligibility for cancellation of removal relief is there any reason why we shouldn't decide the crime of violence issue rather than remained it to the agency the agencies decision on that issue was issued to so many so many years ago  extensive additional precedent on crime of violence there's no isn't that just a pure legal issue for that we're perfectly competent to resolve and wouldn't help move this case along if we decided that issue the court would be out there on control and make clear that sixteen a is not a possibility because there is no element of force in the escape statute of conviction that that issue here sixteen b as the government just conceded is controlled language is knowingly escapes from custody but it could be as minor as fiddling with your ankle bracelet for a juvenile so there's one case on that i thought that i thought i saw something in the briefs of the record indicating that he was actually fully considers a scheme and what arizona considers is a broad range of things including there's a case brittany that we talk about in the opening brief where is a juvenile who fiddled with her ankle and if there are several degrees correct so if there is and there's no the government really has not made any argument on the record that there is an element of violence and there case law both ninth circuit case law on low level escapes but particularly the arizona case law on low level  makes very clear that there is no required element of violence for that so my only way that i would ever get an answer to my question is if we could somehow apply for what it's called court is skeptical but i want to reinforce one one procedural point here on the due process claim which is that in brown and in this is not brown or my doc have a go we're here on the basis of factual findings reviewed for clear air we are here on summary judgment and the district court erred by crediting favorably to the government its witness's testimony in a way that was improper under the summary judgment standard but you have to show prejudice in order to establish the due process violation do you know that and then back to the questions that judge graber and i were asking you about what had actually asked and the prejudiced are two important things the district court didn't do right one is that due process is the totality of the circumstances analysis and prejudice analysis as well and we would pinpoint the prejudice the prejudice in this denial of his child petition a benefit that congress created for us citizens to pursue for their adopted children but if we did why he didn't get the benefit of that and gets route it isn't a question please yes i understand your argument but if we decide as a matter of law that what happened after the adult application was approved outweighs any prejudice he may have suffered as a result of the failure to naturalize under the juvenile application then the district court was correct in finding that there is a failure of a prime official case to establish that process violation so i see where you're going with that i do this is a very fact intensive analysis on a high stakes issue i don't think that this court should be weighing as a matter of law how he was her the question is i think it's too factual question is whether a reasonable fact finder could conclude that as a matter of law that there was prejudice here that's the issue we have to decide correct and i think it's unfair to take out of the picture something that really separates this case from brown which is that there was evidence with this which the discourse district court completely dismissed as irrelevant of improper motives that takes this case way far away from where we were in brown where we had a child who didn't even how it's questionable i mean that's also a question whether that e mail reasonably could be construed as showing what you were to opposite so well i think that this conversation about what it means shows that it's a fact and porton a factual issue and i understand you may come out differently on that but it's what i think it underlines is that no fact