United States Court of Appeals

for the Fifth Circuit

No. 19-60874

Summary Calendar

Olujoke Ayoka Jackson, 

Petitioner,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A078 990 336

Before Davis, Stewart, and Ho, Circuit Judges.

Per Curiam:*

Olujoke Ayoka Jackson, a native and citizen of Nigeria, petitions for 

review of an order of the Board of Immigration Appeals (BIA) denying her 

motion to reopen her removal proceedings. The BIA determined that 

Jackson’s statutory motion to reopen was untimely, her claims that the

* 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opinion should not be published and is not precedent except under the limited 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.

United States Court of Appeals

Fifth Circuit

FILED

March 12, 2021

Lyle W. Cayce

Clerk

Case: 19-60874 Document: 00515778995 Page: 1 Date Filed: 03/12/2021
No. 19-60874

2

removal hearing was held without proper notice and jurisdiction were 

meritless, she was statutorily ineligible for cancellation of removal, and an 

exercise of its regulatory authority to reopen sua sponte was not warranted. 

Citing Pereira v. Sessions, 138 S. Ct. 2105, 2110, 2113-14 (2018), Jackson

challenges the BIA’s determinations and adds that the BIA failed to properly 

address whether her due process rights were violated by her receipt of 

defective notice and the immigration court’s resulting lack of jurisdiction.

While Jackson acknowledges that her 2018 statutory motion to reopen 

was filed after the 90-day deadline, see 8 U.S.C. § 1229a(c)(7)(C)(i), she

argues that the BIA erroneously failed to analyze her equitable tolling 

argument. Even if it is assumed that the BIA so erred, the equitable tolling 

issue need not be resolved because, as discussed below, the BIA did not abuse 

its discretion in denying the motion to reopen on the alternative ground that 

it lacked substantive merit. See Barrios-Cantarero v. Holder, 772 F.3d 1019, 

1021 (5th Cir. 2014). 

Jackson was initially served with a notice to appear (NTA) that 

omitted the date and time of her removal hearing, but she subsequently

received a notice of hearing (NOH) supplying the missing information. 

Thus, any defect in the NTA was cured, and the purported defect was not 

jurisdictional. See Pierre-Paul v. Barr, 930 F.3d 684, 693 (5th Cir. 2019), cert. 

denied, 140 S. Ct. 2718 (2020). Additionally, while cancellation of removal is 

available to certain nonpermanent residents who have accrued ten years of 

continuous physical presence in the United States, the counting of that time

stopped when Jackson received the NOH only six-and-a-half years after her 

admitted entry without inspection in September 2000. See Yanez-Pena v. 

Barr, 952 F.3d 239, 241 (5th Cir. 2020), petition for cert. filed (U.S. Apr. 6, 

2020) (No. 19-1208). Jackson’s arguments to the contrary are foreclosed. 

See id.; Pierre-Paul, 930 F.3d at 693;see also Munoz-Granados v. Barr, 958 F.3d 

402, 408 (5th Cir. 2020) (reasoning that Yanez-Pena foreclosed a claim that 

Case: 19-60874 Document: 00515778995 Page: 2 Date Filed: 03/12/2021
No. 19-60874

3

the BIA erred by deciding that an NTA was perfected by a subsequent NOH 

that triggered the stop-time rule). Jackson’s due process claim likewise lacks 

merit because it relies on these foreclosed defective-notice and jurisdictional 

arguments. 

Finally, the regulatory provision of 8 C.F.R. § 1003.2(a) gives the BIA 

complete discretion to deny a motion to sua sponte reopen removal 

proceedings. See Gonzalez-Cantu v. Sessions, 866 F.3d 302, 306 (5th Cir. 

2017). We thus lack jurisdiction to review the BIA’s denial of Jackson’s 

request for sua sponte reopening. Id.

Accordingly, Jackson’s petition for review is DENIED in part and 

DISMISSED in part. 

Case: 19-60874 Document: 00515778995 Page: 3 Date Filed: 03/12/2021