United States Court of Appeals

for the Fifth Circuit __________________

No. 18-60577

Summary Calendar

__________________

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opinion should not be published and is not precedent except under the limited 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

United States Court of Appeals

Fifth Circuit

FILED

September 15, 2020

Lyle W. Cayce

Clerk

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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, 138 S. Ct. 2105 (2018). We review the denial of motions for 

reconsideration and motions to reopen under a highly deferential abuse-ofdiscretion standard. Le v. Lynch, 819 F.3d 98, 104 (5th Cir. 2016); OjedaCalderon v. Holder, 726 F.3d 669, 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, 609 

F.3d 642, 644-45 (5th Cir. 2010). 

Pierre-Paul v. Barr, 930 F.3d 684 (5th Cir. 2019), cert. denied, 2020 WL 

1978950 (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 Pierre-Paul, 930 F.3d at 689-90. 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 id.

at 690-91. Even if the NTA’s defect were considered incurable, there would 

not be a jurisdictional problem but merely the potential violation of a claimsprocessing rule. Id. at 691-93. Therefore, the BIA did not abuse its discretion 

by denying the motion for reconsideration. See Le, 819 F.3d at 104.

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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, 576 U.S. 143, 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, 831 F.3d 337, 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. GonzalezCantu v. Sessions, 866 F.3d 302, 305 (5th Cir.), cert. denied, 138 S. Ct. 677 

(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 Lugo-Resendez, 831 

F.3d at 340, 344.

Given the foregoing, IT IS ORDERED that the petitions for review 

are DENIED.

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