by the previous lawyer not just malpractise and the second is what's the fraud here usual you need a lawyer to live at the petitioner and say something's been filed or hasn't been filed or something like that i night equitable tolling just because their client their previous counsels made a mistake but that would be just simply unfair the law is very clear in this circuit and fair but i think that's what the law was and i thought that those other argued error or fraud in fact if you look at the board's decision board also argue that you need for a deception an error however in the second paragraph of the second page of the one decision it misses the record page number realize i believe that she submitted the motion way beyond ninety days now instead of just confronting the petitioner saying that this is the problem we made a mistake or whatever it was you need to find an attorney or a filing a lot of other motions the same way against on that's right that's correct i couldn't understand what harris said in her affidavit the chief filed i can understand that either if in fact most of the affidavits there trying to cover themselves up the problem with error there is leading that error will justify the equitable tolling the board said you argue the only error you did not argue fraud therefore we're not going to toll that deadline but both positions are in the rico time a alley and yes the prejudice doesn't really cut it for me because that means oh you've got a ninety day deadline file in three years because your lawyer didn't do his job no problem long as you have a good case if you don't have a good case believe that he should be told was there were no other case that says in so many words there were by the lawyer will do don't need fraud or error by the lawyer won't do you do need fraud i don't know of one except for the facts except for the fact that the case in this case and the court says we remain for further evidence and findings on the issue of whether gallstones former attorneys engaged in fraud john or deceptive conduct that would trigger equitable tolling see if you're a baria i would suggest that decision and it was made to avoid an order of deportation i think your member looking at last night night i was unable to find it but if it is there i would be happy to address it but i didn't see anything from her which which is one of the problems in this case to the extent everything he was supposed to hear it is i found it i couldn't understand it she gets the bar letter saying your cues have been effective assistance because he didn't do something on time and i don't understand what she sa fraud on because our equitable of stoppel based on fraud cases have used the category much more broadly than it's common law since well i don't but i don't believe that this support guarding when the second the first motion to reopen to the board was filed in two thousand and two also says here is that she wasn't notified of the allegations before they were presented to the board well he has evaded my question of where were you wednesday night at nine pm so he's probably trying to pull the wool over my eyes petitioner has the burden of showing the chink there's nothing in the motion to reopen alleging there are a few sort of vague sentences that are pure speculation regarding when she filed the motion to reopen and why she might not have filed it but there's still no evidence to support any sort of finding that she engaged in fragile in conduct i would point out i believe the record also indicates she was only retained in april two thousand and two i mean there's been no factual findings as to based on a finding that it was filed you know five years after the original board denial and final order of removal then she went to the ninth circuit and she got the ninth circuit to remain and for further factual findings concerning when the petitioner became aware of the edge allegedly fraudulent activity of his former attorneys not paula harris attorneys before that the board then issued an order saying or worse filed the case in the light one yes she did so everything that happened before the ninth circuit remit and could have been addressed her error apparently came after we manned when the board issued an order saying within thirty days to make further evidence regarding these alleged claims luck with the tourney's and it just it just it just seems to compound itself and pretty soon it's kafkaesque situation which we've got layer on top of layer of procedural problems and like the guy can never sort of get to the merits of guy can sort of never get there well court's i mean the correct procedure to follow is for this case to be remanded back to the board house with further instructions i think you have just done what the guy in my hypothetical did you were asked where were you wednesday night at nine o'clock and you say i don't want to answer that question soft talk about something else you were asked to we were part of this for mediation and you didn't say whether we should or shouldn't you understand what that means it means he wants to maybe make some  is there a possibility that it would be useful or is that a waste of time should we just decide the case why this court has said that in order to behind the filing deadlines in order to get equitable tolling that's why this court has said there has to be fraudulent or deceptive conduct alleged because otherwise petitioners keep coming back in any number of errors on the part of their counsel and keep getting their cases reopened and there's an interest in finality that is we often see these kinds of laws a lot of motions that frequently occur after there's been at some kind of a hearing on the merits that's never happened in this case and he's alleged that even from the beginning that he had that he got bad legal advice and there's some suggestion that maybe he was before a hanging i j a who was who perspective looks silly at this point but the when you look at this record i have to say it's very very frustrating for us to look at this record and realize that it looks like there's just been lost all series of of miss and misjudgments by a whole host of different of different counsel this fellow did wrong legal error on the part of a lot of the green berets the persons told once allies to or submitted a bunch of phony documents and the question is whether that really shouldn't control the case because of this or that but i didn't see attorneys one after another and when i read it i was very surprised to see how many attorneys let him down this type of these type of actions bring bad names to the attorneys and it's simply not equitable not to allow him to is submitted and we'll hear pions versus our mark