good morning may please the court assistant united states attorney brandon waterman on behalf of the government in this case the district court apply misapplied the child said its protection act to determine that the plaintiff was a child for purpose as of then the agency could place or either in rescission proceedings to revoke the grant of lawful permanent resident status or should be placed in removal proceedings also to take away that status the petition i was not left without remedy that i'm of the point of others are the plaint ff has the ability to still seek adjustment of status here in the united states pursuant to our parents base and i went thirty petition as a family based petition her parents are both lawful permanent residents and could petition on behalf of the plaintiffs in the plaintiffs would be an in the classification of unmarried son or daughter of the plaintiff would still have a remedy to seek to immigrate to the united states and remain in the united states there's some mean to make light of it it's hard for me to read this and think about how difficult it was for you to get up in an elevator today same kind of monk who's paying the price for all this and availability dates starting july st of two thousand and seven which ultimately concluded due to an oversubscription of numbers in august th of two thousand and seven so there's a very limited period of time in which pieces could have been available  one thing i think that this record overlooked and and perhaps also was overlooked in the briefing was that the visa petition that was filed by quick buy was not approved until two thousand and eight february two thousand and eight so it was it was over a year after it was filed that if these petitions actually proved services technically were not even available even in the limited visa window of his availability window because in i went forty petition had not yet been approved the district court pointed out i think that the country contrary to that be the basis for an equitable stop macqueen that the agency failed to follow its own procedures for these particular premature applications with respect that you are the the agency has made a declaration in a district court outlining its policy in practice for two thousand and seven high bar a high standard to meet here we have to have some affirmative misconduct by the government nothing here rises to the level of affirmative misconduct at most you have negligence and that is not sufficient to apply an equitable remedy here  negligence that's a policy right under the policy or practice of the agency they would have returned the prematurely filed applications and given the agency the benefit the presumption regularity the agency would have would have returned that up to think that our application was and was being considered right yes you are there was a blues a medical art of i mean it that the decision not to return these things is arguably a form of misconduct i mean if it why would you not tell people that there was a problem with the application but i understand your point but again we respectfully disagree that the agency did not return this based on its policy in practice the agency would have returned it the agency simply does not have reasoning for that why why would the government go back and try to undo this because a lot of the plaintiff was me even in light of all the circumstances whether it's affirmative misconduct or not or whether it's simply negligence why would the government try to undo this granting of the petition while you're on the if the government's decision whether to place plaintiff either in removal or rescission proceedings would be and received a matter of discretion by the agency but that they believe the facts of the matter the district court in this case got it right when it held that the government's position fines absolutely no support in the text or structure of the c s p the court also got it right when it found do with what the decision of the district court as a practical matter i know what i would do and you would be unhappy with that but the question is what should we do with the district court's opinion which would permit that to happen it seems to me is there's nothing wrong with the district court's opinion in that regard your honor in the here and the government's one of the government's arguments is that any petition could constitute a basis for to trigger the  a but that that is plainly incorrect that's not what the district court found and that's not what the plaintiff is arguing would be required and that what what it would be required is what the statute says is required and there are essentially four elements and each of those elements are satisfied here st and foremost there has to be a qualifying petition quote filed under section two hundred and four dollars of the act in accordance with the c s p a there is no dispute and the government does not contend that the initial visa court is extremely narrow and it's based on the particular circumstances that arose in this case which are somewhat unique i've been practicing exclusively in the area of immigration law for twenty four years i've never i've seen a lot i' visa petition can trigger ken ken as a threshold matter result in an immigrant visa becoming available which is the key triggering act into the c s v a and then the individual the child of the beneficiary of  a has to come forward has to seek to acquire status within one year of that date all of that happened in this case there's no reasonable dispute that that happened in this case the government conceded before the district court that that happened in this case one of the language in the a that that language merely operates to reduce the required age calculation which starts the date that an immigrant visa became available and it is only that languages cabined in subsection one b of the statute it doesn't require by it by any means there is no language in the statute that would indicate that that serves as the basis for a signal to the agency for when the required age calculation must begin there moreover there is absolutely no support not only in the texan structure the c s p a bit but the government cites no authority for that position the district court said it quite eloquently when it noted want to make a very careful distinction between the petition and the application so the petition was the original visa petition that was filed in approved by the agency ok that results in the beneficiaries ability to file an application for permanent residency our position is simply that the wrong eat is entitled to a decision on her application theoretically if she didn't file that application until she was forty years old yes the statute was triggered in this case and that is it was the government's misconduct in this case and mishandling of application one that resulted in this situation the statute was triggered it's effect forever it obligates the government to accept or reject that filing period what the government was claiming is not in effect at that time was a regulation that as an aside is ultra  has now been brought into compliance with the statute but at the time because the mother's employer went out of business that petition as a matter of regulatory interpretation was automatically revoked that is the reason why a nd petition was required in this case however to suggest that the plaintiff did not the point this mother did not benefit from that earlier filing is a fallacy she would not have been able to adjust status but for the filing and approval of that initial visa petition and that's a very important priority date is transferred correct your honor that's correct and your argument  is the child should get the benefit of that same treatment absolutely we are not arguing that that she would not that she's entitled to a benefit that the parent didn't get and that's a very critical point it a point that a rejected petition could support triggering the c s p a that's wrong because as i argued earlier and rejected petition could not form the basis for an immigrant visa becoming available which is the rd element that the statu requires and then the th element is this so require mandate there's no dispute that at that time that row needs satisfied the sought to acquire mandate and that that is that finding is compelled by the board here was over twenty one years old at the time the two thousand and twelve petition was filed that is the petition which the mother had adjusted status through and as a derivative beneficiary the derivative is only entitled to the same status that the mother or the suddenly the child gets cut off i understand it you're out of it even if the plaintiff here were entitled to maintain the same priority date that priority of the visas became available in september of two thousand and twelve at that plaintiff's mother that would have been in september of two thousand and twelve because again looking at the record you needed both the approved petition which was not approved until two thousand and eight and these are numbers to be available the visa window had closed