# United States Court **of Appeals**  **f or 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 d etermin ed that Jackson’s statutory motion to reopen w as untimely, her claims that the

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED March 12, 20 21 Lyle W. Cayce Clerk Case: 19-60874 Document: 00515778995 Page: 1 Date Filed: 03/12/2021No. 19

- 60874

2 removal hearing was held without proper notice and jurisdiction were merit less , 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), J ackson chal lenges the BIA’s determinations and a dds that the BIA failed to properly address whether her due process rights were violated b y her receipt of defective not ice 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 er roneously failed to analyz e her equitable tolling argument. Even i f 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 grou nd 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 n otice of hearing (NOH) supplying the missing information. Thus, any defect in the NTA was cured , and the purported defect was not jurisdictional. S ee Pierre

- Paul v. Barr , 930 F.3d 684, 693 (5th Cir. 2019), cert. denied , 140 S. Ct. 2718 (2020). Additiona lly, while cancellation of removal is available to certain nonpermanent residents who have accrued ten years of continu ous physical presence in the United States, the counting of that time stopped when Jackson recei ved the NOH only six

- and

- a

- half years aft er 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; s ee 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: 03/12/2021No. 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 reli es 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 spo nte 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 **DENI ED**  in part and **DISMISSED** in part

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