Maria Maldonado De Calleja v. William Barr, U. S. ( 2020 )

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opinion should not be published and is not precedent except under the limited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.
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No. 18-60577
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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-of-
discretion standard. Le v. Lynch, 819 F.3d 98, 104 (5th Cir. 2016); Ojeda-
Calderon 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 claims-
processing 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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No. 18-60577
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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. Gonzalez-
Cantu 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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