Case: 18-60577     Document: 00515565796         Page: 1     Date Filed: 09/15/2020




              United States Court of Appeals
                   for the Fifth Circuit                                United States Court of Appeals
                                                                                 Fifth Circuit
                            __________________
                                                                               FILED
                                                                       September 15, 2020
                                 No. 18-60577
                               Summary Calendar                           Lyle W. Cayce
                            __________________                                 Clerk

   consolidated with 19-60366

   Maria Maldonado De Calleja,

                                                                      Petitioner,

                                       versus

   William P. Barr, U.S. Attorney General,

                                                                     Respondent.


                      Petition for Review of an Order of the
                          Board of Immigration Appeals
                              BIA No. A095 813 789


   Before Davis, Stewart, and Dennis, Circuit Judges.
   Per Curiam:*
          Maria Maldonado De Calleja, a native and citizen of Mexico, has filed
   a petition for review of the Board of Immigration Appeals (BIA) decision
   dismissing her appeal from the Immigration Judge’s (IJ) denial of her motion


          *
            Pursuant to 5th Circuit Rule 47.5, the court has determined that this
   opinion should not be published and is not precedent except under the limited
   circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 18-60577      Document: 00515565796          Page: 2   Date Filed: 09/15/2020




                                         No. 18-60577
                                       c/w No. 19-60366

   to reopen removal proceedings and, in a separate case, a petition for review
   of the BIA decision’s denying her motion to reconsider based on Pereira v.
   Sessions, 

(2018). We review the denial of motions for
   reconsideration and motions to reopen under a highly deferential abuse-of-
   discretion standard. Le v. Lynch, 

, 104 (5th Cir. 2016); Ojeda-
   Calderon v. Holder, 

, 672 (5th Cir. 2013).
          Maldonado De Calleja contends that this case should be remanded to
   the BIA in light of Pereira because she did not receive proper notice of her
   removal hearing. She raises a similar argument in her petition for review of
   the BIA’s denial of her motion for reconsideration, contending that the
   immigration court lacked subject matter jurisdiction over her case because
   her Notice to Appear (NTA) was invalid. Even though she first raised the
   Pereira issue in her motion for reconsideration, the issue is nevertheless
   deemed exhausted because BIA chose to address it on the merits, and we
   therefore have jurisdiction to consider it. See Lopez-Dubon v. Holder, 

, 644-45 (5th Cir. 2010).
          Pierre-Paul v. Barr, 

(5th Cir. 2019), cert. denied, 

(U.S. Apr. 7, 2020) (No. 19-779), forecloses Maldonado De
   Calleja’s claim. Her NTA specified the nature of the proceedings, the legal
   authority for the proceedings, and the possibility of in absentia removal, and
   thus, it was not defective. See 

. Additionally,
   even if the NTA was defective, a subsequent notice included the date and
   place of the removal proceedings. Therefore, any defect was cured. See

Even if the NTA’s defect were considered incurable, there would
   not be a jurisdictional problem but merely the potential violation of a claims-
   processing rule.

Therefore, the BIA did not abuse its discretion
   by denying the motion for reconsideration. See 

.




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Case: 18-60577      Document: 00515565796          Page: 3     Date Filed: 09/15/2020




                                         No. 18-60577
                                       c/w No. 19-60366

          Further, Maldonado De Calleja challenges the BIA’s decision not to
   apply equitable tolling to her untimely statutory motion to reopen. We have
   jurisdiction to address this claim. See Mata v. Lynch, 

, 147-48
   (2015). Equitable tolling is warranted only if the litigant establishes “(1) that
   he has been pursuing his rights diligently, and (2) that some extraordinary
   circumstance stood in his way and prevented timely filing.” Lugo-Resendez
   v. Lynch, 

, 344 (5th Cir. 2016) (internal quotation marks and
   citation omitted).
          With respect to the due diligence prong of the equitable tolling
   analysis, Maldonado De Calleja contends in her petition for review that she
   relied on her original attorney’s false counsel; that she had no reason to
   believe, based on counsel’s representations, that her subsequent removal
   order was anything but final and binding; and that she filed her January 2017
   motion to reopen within 90 days after learning of her ability to do so.
   Maldonado De Calleja’s argument that she was unaware of her ability to file
   a motion to reopen until 2016 appears to be premised on her discovery of her
   counsel’s allegedly ineffective assistance. However, she provides nothing to
   indicate that she acted with due diligence between her receipt of the in
   absentia removal order in February 2004 and her filing of her second motion
   to reopen in January 2017. She fails entirely to explain how or when her
   knowledge of counsel’s alleged ineffectiveness transpired. Cf. Gonzalez-
   Cantu v. Sessions, 

, 305 (5th Cir.), cert. denied, 

   (2018). Thus, Maldonado De Calleja has not met her burden to demonstrate
   that equitable tolling applies, and the BIA’s conclusion that her motion to
   reopen was untimely was not an abuse of discretion. See 

, 344.
          Given the foregoing, IT IS ORDERED that the petitions for review
   are DENIED.




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