Circuit Judge, dissenting:
I must respectfully dissent.
The majority recognizes that for the government to be estopped from denying petitioner the benefit of pre-certification in the consideration of his application for permanent residence, we must find “affirmative misconduct” on its part. I do not believe that an unexplained ten-month delay in processing constitutes the requisite showing under the test we recently approved in Santiago v. INS, 526 F.2d 488 (9th Cir. 1975) (en. banc).
The substance of the misconduct condemned by the majority consists of a period from March 23, 1970 to January 8, 1971 during which petitioner’s application was not acted upon.1 Despite the absence of facts on the record relative to this period, the majority concludes that it represents “an unreasonable delay” without “apparent justification.” While I too can only hypothesize on the reasons for the delay, I suggest it may not have been without justification.
Petitioner’s original application stated that he had been employed as a machinist in Seoul, Korea. The result of an INS investigation contradicted this statement. Petitioner then submitted evidence to rebut the investigative report. His letter was dated March 23, 1970 but our copy of it indicates that it was not received until June 22,1970. This accounts for three months of the delay.2 At this point, the Service was *1330faced with a factual dispute to be resolved before a decision could be made on petitioner’s application.
The majority, in fact, recognizes that the INS was entitled to “adequate time” to make a reasoned determination. Further investigation was undoubtedly warranted. The initial investigation of the alleged Korean employment required more than four months. After receiving contradictory reports on that matter, an investigation of equal or even longer duration would not have been unreasonable. While the record does not tell us whether, in fact, such an investigation was undertaken, I am reluctant to conclude, as does the majority, that the absence of evidence on this point requires or justifies an estoppel against the INS.
In conjunction with the possibility of a reasonable explanation for the time consumed in processing petitioner’s application, I note that there was no motivation for delay on the part of the Service. Any inference of bad faith by it is unwarranted.
The Schedule C under which petitioner’s application had been filed was withdrawn in February 1970 before any delay had occurred. Thus, the INS would have been justified in employing the reasoning which it finally adopted in September 1971 as early as February 1970. The INS need not have employed delay in processing petitioner’s application in order to avoid granting approval if that were its purpose.3
The majority holds that a ten-month delay in processing petitioner’s application constitutes “affirmative misconduct” so serious as to estop the government despite the availability of a plausible explanation for the delay and the absence of bad faith by the INS. I cannot reconcile such a holding with recent precedent.
In Santiago, supra, we said that for estoppel to operate, the acts or omissions of the INS had to be more blameworthy than those in INS v. Hibi, 414 U.S. 5, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973). The dissent of Justice Douglas in Hibi characterized the conduct of the government as a “deliberate — and successful — effort on the part of the agents of the Executive Branch to frustrate the congressional purpose and to deny substantive rights . . . .” Id. at 11, 94 S.Ct. at 23. In this court’s earlier opinion in that case, we too noted that the government’s conduct was “in derogation of [its] duty.” INS v. Hibi, 475 F.2d 7, 11 (9th Cir. 1973). Despite this type of conduct on the part of the government, the Supreme Court refused to apply an estoppel against the government.
Weighing the blameworthiness as we must pursuant to Santiago, supra, I cannot find that the conduct in this ease was of a more serious nature than in Hibi. Even if the reasons I have suggested for the delay are not accepted, the most that can be said is that petitioner’s application was negligently handled. No allegation was made, nor is there any evidence, that the delay was deliberate as was the case in Hibi.
Moreover, while the majority can distinguish the facts of Santiago on the basis that there the petitioners were not entitled to entry into the United States at the time they sought to do so, Hibi cannot be distinguished. The majority states petitioner had an “absolute right” to a labor certification when he applied. But the petitioner in Hibi was denied an analogous, “absolute right,” the opportunity to claim citizenship. Nor is the result of the government’s conduct in Hibi less serious than in the present case. The loss of the opportunity to claim citizenship is at least as important as the opportunity to gain a labor certificate.
This court’s recent en banc treatment of the applicability of estoppel in immigration cases cannot be ignored. Having recognized INS v. Hibi, supra, as a bench-mark against which all claims must be tested, we *1331must do so. In the absence of conduct more blameworthy than there described, we are foreclosed from granting the relief sought by this petitioner.
. The majority’s reference to a year’s delay includes the period from January 8, 1971 when the application was first rejected until March 19, 1971 when the INS agreed to reconsider its decision. I do not understand the majority to say that the time consumed in deciding to reconsider was unreasonable. Had the INS denied petitioner’s application at an earlier date within the reasonable time which the majority would have allowed, a two-month period prior to offering reconsideration would not have been unreasonable. I do not, therefore, include this period in computing the delay which constitutes the alleged misconduct in this case.
. I cannot explain this time lapse. Perhaps it was due to excessive workloads, perhaps to bureaucratic inefficiency. Clearly, it amounts to no more than the “simple negligence” which the majority found not to support estoppel in Santiago.
. The fact that the February 1970 suspension of the Schedule C was later found to be illegal and its effective date advanced by more than a year, Lewis-Mota v. Secretary of Labor, 469 F.2d 478 (2d Cir. 1972), does not alter this reasoning. That decision occurred after the delay in this case. It is unlikely that the INS anticipated the ruling of the Second Circuit and therefore delayed petitioner’s application until after the suspension could legally take effect.