Free Motion to Amend/Correct - District Court of California - California

Case 3:O7—cv—O3122-CRB Document 15 Filed O4/10/2008 Page1 of4
INl|'I'HEi uN1·n2:o STATES oisrmicr mums p
THE NORTHERN DISTRICT OF CALIFORNIA - API?
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Noggigégjgzgo W 2006) g
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No. cov-3122 orb (PR) /‘°’%°}’§;c{'§é~Z~G I
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Motion to amend opggigiog _,

and Tolling and$7 Topgl

6/ Petitioner Herman Tiemens Jr.here by requests of the honorable
{\ courts To grant this motion to amend his oppition with this new information
that has been found on the computer, since he has now had the time to check
the computer, as he is not being restricted from the law library any more.
This motion comes along with farthure proof of the ability to toll his
case, and equitable es toppel..
Dated-7 2 4
Signed- Herman TIEMENS JR.

Case 3:O7—cv—O3122-CRB Document 15 Filed O4/10/2008 Page 2 of 4
U.S. COURT OF APPEALS=9th Circuit :272 15·3_ 1176
Sooop/ Gonzalez-Petitioners
Immigration and Naturalization Services- Respondent
no.98-70782,-Feb.2000, final filed Dec. 5,2001
Alien petioned for review of decision of board of Irrmigration appeals
(BIA), denying as untimely his motion to reopen deportation procedings. The
court of appeals>208 F3d. 838, reversed on rehearing EN BANC, the court
of appeals, pregreson, circuit Judge, held that(1) alien sufficiantly raised
before per issue whether 90-day period for filing motiom to reopen should be
equitable tolled, and thus exhausted administrative remedies; (2) 90-day for
filing motion to reopen is subject to equitable tolling (3) 90-day period
would be equitable tolled based on incorrect advice recieved from Inmigration
and Naturalization Services(INS) officer; and (4) for equitable tolling to
apply, court of appeal was not required to find that alien reasonably could
have filed motion to reopen within period remamaining after deduction of
period subject to equitable tolling
Petition Granted; REversed and remanded.
241K104.5 =SUSPENSION OR STAY IN GENERAL- EJQUITABLE TOLLING
While equitable tolling fouceses on the plaintiff, excusable ignorance
of the limitations period and lack of predice to the defendent, equitable ES
'IOPPEL focuses on the actions of the defendent. `
Alien was required to exhaust administrative remedies with respect to
equitable tolling in order for court of appeals to have jurisdiction under
Immigration and Nationality Act (INA), to have considered issue whether 90-
day period for filing motion to reopen deportation proceedings should be
equitably tolled. Immigration and Nationality Act g 240(C) (6) as amended,
>8U.S.C.A. S 1229a (Q) (5); S 106(C), as amended>8 U.S.C.A. S!!)%A(C);
8 c.F.R.s3.2 (C) (2)
241k104.5 Susension or stay in general equitable tolling both
both equitable tolling and equitable ES TOPPEL can be used to stop a
limitations period from continuing to run afyer it has already begun to run.
While equitable tollingfocuses on the plaintiffs excusable ignorance
of the limitations period and on lack of prejudice to the defendent, equitable
estoppel focuses on the actions of the defendent.

Case 3:O7—cv—O3122-CRB Document 15 Filed O4/10/2008 Page 3 of 4
' 1v56k62.2(4)Particular UNITED STATES OFFICERS, Agencies, or proceedings.
Incorrect advice recieved by alien from Inmigration and Naturalization
services (INS) officer could not serve as bases for equitable estoppel with
respect to 90- day period for filing motion to reopen deportation proceedings,
in as much as negligent provision of misinformation did not contitute affir-
mative misconduct, Imnigration and Natualization Act E 240 (C) (6) as amended.
Equitable tollingof a limitatous period does not require affimmative
misconduct on behalf pf the opposing party; rather, all oneneed show is that
by the exercise of reasonable diligence the propenent of tolling could not
have discovered essential infomation bearing on the claim[Federal courts >k915
24k54.(5) The court of appeals will apply equitable tolling in
situations where despute all diligence, the party invoking equitable tolling
is unable to obtain vital infomation bearing on the existance of the claim and
in situations where an alien was unaware, despite due diligence, that he misseed
the limitation period for filing a motion due to fraud by a third party, and
due to ineffectivetive assistence if counsel, got the doctrine is by no means
limited to these situations . Inmigrations and Natuarlization Act §240(C) as
amendgd, 8U_$_C_A_§ 1229a(C) (6) 8C.F.R. B 3.2(C) (2)
The inability to obtain vital infomation bearing on the existence of a
claim need not be caused by the wrongful conduct of a third party in order
for equitable tolling of a statue of limitations to apply; rather, the party
invoking tolling need only show that his or her ignorance of the limitations
period was caused by circumstanceses beyond the parties control, and that these
circtunstanceses go beyond a garden varity claim of excusable neglect.
ALIENS [>k54(5)

Case 3:O7—cv—O3122eCRB _ Document 15 Filed O4/10/2008 Page 40f4e _ _ _
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Case 3:07-cv-03122-CRB

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