Gloria Lucia Lotero-Diaz v. U.S. Attorney General

USCA11 Case: 22-10696 Document: 31-1 Date Filed: 05/25/2023 Page: 1 of 14 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 22-10696 Non-Argument Calendar ____________________ GLORIA LUCIA LOTERO-DIAZ, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ____________________ Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A079-740-728 ____________________ USCA11 Case: 22-10696 Document: 31-1 Date Filed: 05/25/2023 Page: 2 of 14 2 Opinion of the Court 22-10696 Before WILSON, ROSENBAUM, and BLACK, Circuit Judges. PER CURIAM: Gloria Lucia Lotero-Diaz, a native and citizen of Colombia, seeks review of an order by the Board of Immigration Appeals (BIA) denying her second motion to reopen her immigration pro- ceedings. After review, 1 we dismiss the petition in part and deny it in part. I. BACKGROUND Lotero-Diaz entered the United States in 2001. Shortly thereafter, the Immigration and Naturalization Service (INS) is- sued her a notice to appear (NTA), charging her as removable un- der 8 U.S.C. § 1182(a)(7)(A)(i)(I). Lotero-Diaz conceded removabil- ity as charged and applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT) based on her religion, political opinion, and membership in a social group. An immigration judge (IJ) first held a merits hearing on Lotero-Diaz’s application in 2003, and denied her application for asylum, withholding of removal, and CAT relief. Lotero-Diaz 1 We review de novo our subject matter jurisdiction over a petition for review. Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1297 (11th Cir. 2015). We also re- view any constitutional claim or question of law de novo. Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1252 (11th Cir. 2008). We review the BIA’s denial of a motion to reopen for an abuse of discretion, although we “review any under- lying legal conclusions de novo.” Dacostagomez-Aguilar v. U.S. Att’y Gen., 40 F.4th 1312, 1315 (11th Cir. 2022). USCA11 Case: 22-10696 Document: 31-1 Date Filed: 05/25/2023 Page: 3 of 14 22-10696 Opinion of the Court 3 administratively appealed the IJ’s decision to the BIA, and the BIA concluded one of the transcripts of her merits hearing was missing, and remanded to the IJ for further proceedings, “including a new hearing, if necessary.” At a second merits hearing in 2006, the IJ held a new hearing, but once again denied Lotero-Diaz’s application for asylum, with- holding of removal, and CAT relief. She administratively appealed the decision to the BIA, and the BIA affirmed the IJ’s second deci- sion in February 2008. Lotero-Diaz did not seek review of the BIA’s decision in this Court. Instead, Lotero-Diaz later sought to reopen the proceedings, presenting additional evidence related to her asylum claim. The BIA denied Lotero-Diaz’s first motion to reopen in September 2008. Lotero-Diaz again did not seek review in this Court. In July 2020, Lotero-Diaz filed a second motion to reopen— the present one—to “reopen and remand.” In this second motion to reopen, she argued the 2001 NTA had been invalid because she was never an arriving alien, …

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