Judge Nicholas Garaufis
Admitted into the country as a lawful permanent resident in 1985, Aziz was convicted of a firearms offense in 1996. A 1998 removal order was affirmed by the Board of Immigration Appeals on June 27, 2002. In 2004 the court granted Aziz's petition challenging the deportation order under 28 USC §2441. However, his subsequent petition for cancellation of removal under 8 USC §1229(b) was denied and he was found removable. The BIA upheld that decision May 28, 2008. Under the Equal Access to Justice Act (EAJA), Aziz sought attorney fees and costs associated for his successful 2004 challenge to his initial removal order. Despite permitting Aziz to proceed in forma pauperis, district court dismissed his complaint, as untimely, without prejudice to re-filing within 45 days. Aziz's May 20, 2013, application was nearly nine years beyond the Aug. 4, 2004, deadline set under 28 USC §2412(d)(1)(B). In an abundance of caution given his pro se status, the court permitted Aziz to amend his complaint to provide a basis for the invocation of equitable tolling. In addition to explaining why equitable tolling is justified Aziz's amended complaint must allege facts supporting his eligibility for an award of fees and costs.
