my name is kim van amberg of spelling well mark representing the petitioner emanuel because of my uncertainty about the pronunciation i'm going to refer to him as petitioner given that this case grew out of a that the immigration judge in one thousand nine hundred seven gave petitioner this information repeatedly about what was required of him to establish his title to adjust my status in particular that the immigration judge did not explained what the immigration judge could do to correct the situation in terms of allowing a full and fair hearing and he was given a new hearing he was given a new hearing and at that point the government stated that he was no longer entitled to a new hearing  go to years after she died to file a with her was british and he hadn't done that is it your position that the government did some affirmative action to stop mr argument from learning that his wife and i know are on the record does show that he learned that his wife had passed away in january two thousand and three approximately four years after she passed away and what facts are there in the record which indicate that the government did anything arjun month from learning from one nine hundred ninety nine to two thousand and three and his wife who died the government it does not appear from the record did anything to keep him from learning is are there any facts measurement was using due diligence to find out whether his wife was alive or dead and and did everything he could to find out whether she was alive and still couldn't find out to two thousand and three that he had attempted to make contact with her that he had sent her letters that had not been responded to but at various times he was in seclusion and could you give me those numerous attempts to reach her that are reflected on the record at page thirty five sixty six and seventy nine there are references that he had with this is for the two year period between ninety nine and two thousand and one which is one of the  evaluated those arguments that he made in response to government's motion preaching that there might be a developed record on what steps he had taken in that interim to remain in contact with his wife whether he was in contact with her family and could have learned of happen i don't think i was very clear my point in two thousand and three when the government filed its motion to preacher meant the case had been remade ended and so there hadn't been hearings held between ninety nine and late two thousand to start there is no record declined to hear arguments and evidence on those issues so his granting of the government's motion to pre term minutes resulted in there being no evidence taken taken from the on these very issues in the two thousand to two thousand three hearings in addition on the issue of equitable it's awful a panel of this court and that this year after the briefing i'm trying to follow your reasoning let's say that the and in zero three the i j at pages forty three fifty three to fifty five thirty five sixty six seventy nine he discusses his efforts to contact her or her hospitalizations and he explains that her illness would sometimes result in her staying with family members or being hospitalized as it relates to the estoppel argument decision of the panel of this court this year after the briefing on this case closed is instructive i provided a copy of that to counsel for the department this morning  country he reentered the country illegally and that's his removal proceedings were started from the beginning the government took the position that the will legal  and independent basis for removing him the panel of the circuit held by the government was a stop to rely upon circumstances that were made more favorable to the government due to an earlier due process  be appropriate are you claiming that because he was an able to present the evidence about his inability to contact his wife that would be a humanitar situation and the fact that the petitioner would not have been stuck in the system in two thousand and two arguably had he not been denied his due process rights in one thousand nine hundred seven and had the opportunity to present whatever level of evidence he could garner from his wife at the time that she was living but it doesn't say that it has the discretion so my question here is is this a case where it should be managed by the attorney general to exercise his discretion based of my humanitarian reasons based upon the fact that the evidence for the attorney general's exercise of his discretion would be appropriate i also think that the case which is which is arising under that particular federal regulation provide some support for support for not allowing a wo application of that particular regulation and particularly under these circumstances where the man struck in the system several years of years later to live with the attorney general have to exercise discretion the attorney general i mean regulation doesn't was not it was why would the attorney general be expected to respond in a way that was not requested petitioner was proceeding president during the proceedings and he raised in artfully the issues to stop all equitable tolling and the fact that he was in kind of an awkward position being that he was in the in the system five years later faced with this new argument that wasn't available in one thousand nine hundred seven had he been afforded his due process rights i in may of one nine hundred ninety nine no self petition no way to worsen our petition was filed within two years but what about the parent that he was not able to introduce evidence into his possibility of equitable sample here raise equitable stoppel he would have had to have shown some sort of affirmative misconduct by the immigration judge and the this this court has defined affirmative continence conduct to include such as a deliberate lie there was no such no such common that arable tolling equitable tolling would not be available in the instant case because there is no due diligence the and basically sat on his rights he dissent and i demand one that indicated he actually was able to get his wife to come to phoenix but because he was segregated from the rest of the police prison population due to a dispute that he had had with some of the prison guards she wasn't able to get in contact with her to bring her hearing but in any event he was able to contact her if one is to credit the testimony that that he gave and although she was according to his testimony in and out of mental institutions there is no evidence in the record that he perhaps tried to contact her family members or his own family members in an attempt to get information about whether his spouse the woman he claimed he planned to establish a life together with the woman who was the basis for all of his immigration relief whether she was still alive this question was the issue of recordable tolling raised before held that in order for equitable tolling to be applied there has to be due diligence on the part of the party seeking equity and there just is virtually no evidence in the record that that due diligence took place in the in and the answer was that he had not is this required yes or no i would say that it is required and to the extent that to the extent that there there is any issue of discretionary relief there certainly were no humanitarian decide it would be up to the attorney general to decide i think we're straying a little bit far from the point about the due process claim and whether or not there's a protected liberty interest that he can even assert here because the adjustment of status is subject to the unfettered discretion of the attorney general meaning that the attorney general can decide as a matter of pure discretion that he does not wish to grant  minutes data and won numerous cases from this court in fall being voluntary departure and numerous cases from other circuits and involve even asylum because there's that discretionary component there's no protected liberty interest one cannot claim an find out for you but i my understanding is that the immigration judge would have the authority to so it's your and i'm not sure about this right matthews yes your representation that even when the in conclusion your honor is for all the reasons that i discussed the petition for if you should be denied admission was not eligible for the relief that he sought an additional hearing would not have changed that and in a case where an individual in addition to the fact that it's not a part of the record this court has held that a a dissolution of a marriage that occurs some time after the american the marriage with established is not a basis for denying him just enough status and as this court held we all agree that the i j a was wrong and and the first time around and did not grant proceed to due process and that's why we were reversed in two thousand and two why does the refusal to allow evidence other than with the judge as an initial matter told him that he probably wouldn't be able to have anyone testify by telephone and i don't try to connect his inability to make contact with his wife with an attempt to stop the government from asserting this position but what i am attempting to do is to take the principle from cases like this all got o g s case from earlier this year  record of the pages you cited but i didn't find anything on page forty three fifty three fifty five