Lotero-Diaz v. U.S. Attorney Gen.
| Docket Number | 22-10696 |
| Decision Date | 25 May 2023 |
| Parties | GLORIA LUCIA LOTERO-DIAZ, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
DO NOT PUBLISH
Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A079-740-728 Before WILSON, ROSENBAUM, and BLACK, Circuit Judges.
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 proceedings. After review,[1] we dismiss the petition in part and deny it in part.
Lotero-Diaz entered the United States in 2001. Shortly thereafter, the Immigration and Naturalization Service (INS) issued her a notice to appear (NTA), charging her as removable under 8 U.S.C. § 1182(a)(7)(A)(i)(I). Lotero-Diaz conceded removability 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 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, withholding of removal, and CAT relief. She administratively appealed the decision to the BIA, and the BIA affirmed the IJ's second decision 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, but in fact had been admitted to the United States. She contended this error had prejudiced her, since she had applied for adjustment of status based on her marriage to her lawful permanent resident husband.[2] She contended the Department of Homeland Security (DHS) had wrongfully withheld the relevant necessary evidence showing she had been admitted. She asserted the evidence was new to her and had "solely been in [DHS's] possession since her admission and last entry to the United States in 2001." She explained she had sued DHS under the Freedom of Information Act (FOIA) in 2020 and had obtained the relevant evidence supporting her motion to reopen.
Lotero-Diaz contended the Government had admitted her in 2001, but it had then withheld evidence that she had been admitted, in violation of 8 U.S.C. § 1361. She also asserted that, by charging her as inadmissible rather than removable, the Government had lowered its own evidentiary burden. She asserted she was thus eligible for adjustment of status and voluntary departure. She argued she might ultimately be removable, but not under 8 U.S.C. § 1182(a)(7), as was charged. Lotero-Diaz contended the changed circumstances justified reopening and a "de novo review of her adjustment of status application before an [IJ.]" She argued the Government's "affirmative misconduct" justified tolling the time and number bars on her motion to reopen.
In support, Lotero-Diaz attached several documents. One document showed that an official had stamped her passport "ADMITTED Jun 29 2001." Other documents, including a "Consular Notification" dated June 29, 2001, explained that Lotero-Diaz had sought admission as a visitor for pleasure, but she had been stopped "[a]t secondary inspection" when it was determined that she had remained over her visa. Another document dated the same day showed an Immigration officer provided her a "determination of inadmissibility," asserting she was "an immigrant not in possession of a valid unexpired immigrant visa or any other valid entry document in lieu of an immigrant visa."
Lotero-Diaz also attached a written statement explaining the events of June 29, 2001. She recalled being given her stamped passport and walking toward "a large place where people were picking up luggage." After she got her luggage, she was stopped by "Customs Police," who told her that she had drugs and she should follow him. Although she denied having drugs, she was ultimately handed over to immigration officials. They detained her for several hours and forced her to sign various papers she did not understand. In addition, immigration authorities kept her passport with the admission stamps after she was released on parole.
A single judge of the BIA denied Lotero-Diaz's second motion to reopen in 2022. First, the BIA noted her second motion to reopen was "both number-barred and untimely." And, while it noted she had accused the DHS of fraud, it found no basis "upon which either bar should be tolled." The BIA concluded her arguments were "premised on a mistaken view of the legal significance of a stamp." It explained an applicant for admission whose passport is stamped but who is prevented from entering the main terminal of an airport by an immigration officer does not enter the United States or become admitted "unless and until the official restraint ceases and the noncitizen is permitted to physically enter the United States without official restraint." And while the BIA agreed an immigration officer's admission stamp in a passport "[w]as generally strong evidence of admission," it noted that such evidence could be overcome where evidence showed the requirements for admission were not met.
The BIA noted Lotero-Diaz's second motion to reopen included evidence showing "she was referred to secondary inspection at the San Juan airport on June 28, 2001, without her having first been permitted to enter the United States free of official restraint." At a secondary inspection, she was detained and found to be inadmissible, which led to a "withdrawal of application for admission" and the cancellation of her visa. Thus, the BIA concluded she was never admitted to the United States, and she was, thus, properly charged with inadmissibility under 8 U.S.C. § 1182(a)(7)(A)(i)(I). Accordingly, the BIA denied her second motion to reopen because it was "both time-and number-barred and the factual basis upon which [she] s[ought] to avoid these limitations [wa]s not supported by the record."
Lotero-Diaz timely filed a petition for review of the order denying the second motion to reopen.
Lotero-Diaz asserts several issues in her petition, which we address in turn. The Government contends we lack jurisdiction over portions of Lotero-Diaz's petition, and asserts we should deny the remainder of her petition.
Lotero-Diaz contends the BIA erred in refusing to exercise its sua sponte authority to reopen. The BIA may reopen a case pursuant to its sua sponte authority at any time, though it requires a showing of exceptional circumstances to do so. Butka v. U.S. Att'y Gen., 827 F.3d 1278, 1283 (11th Cir. 2016) (citing 8 C.F.R. § 1003.2(a)); Lenis v. U.S. Att'y Gen., 525 F.3d 1291, 1293-94 (11th Cir. 2008). We lack jurisdiction to review a BIA decision denying a motion for sua sponte reopening. Butka, 827 F.3d at 1283-84. But we have left open the question of whether we may exercise jurisdiction over constitutional claims related to an underlying request for sua sponte reopening. Id. at 1285 n.6 (citing Lenis, 525 F.3d at 1294 n.7). To assert a constitutional claim over which we might have jurisdiction, a petitioner must allege at least a colorable constitutional violation, in other words, the claim must have "some possible validity." Arias v. U.S. Att'y Gen., 482 F.3d 1281, 1284 & n.2 (11th Cir. 2007).
We lack jurisdiction to review the BIA's decision not to reopen under its sua sponte authority. Lenis, 525 F.3d at 1293-94; Butka, 827 F.3d at 1283-84. While Lotero-Diaz attempts to raise a constitutional due process claim, Butka, 827 F.3d 1285 n.6, the denial of purely discretionary sua sponte reopening cannot present a viable due process claim. See Scheerer v. U.S. Att'y Gen., 513 F.3d 1244, 1253 (11th Cir. 2008) ( a failure to receive relief that is purely discretionary does not amount to a deprivation of a liberty interest and thus cannot constitute a due process violation). Thus, Lotero-Diaz has not presented a colorable constitutional claim in this respect over which this Court might have jurisdiction. Arias, 482 F.2d at 1284 & n.2.
Lotero-Diaz asserts her 2008 removal order was obtained unlawfully under 8 U.S.C. § 1361. We lack jurisdiction to review (or estop the government from enforcing) Lotero-Diaz's 2008 removal order, as she did not timely file a petition for review of that order. See Bing Quan Lin v. U.S. Att'y Gen., 881 F.3d 860, 870 (11th Cir. 2018) (). "[T]o seek judicial review of [the BIA's 2008] order, [Lotero-Diaz] must have filed a petition with [this] Court within 30 days of the issuance of that order," but she did not do so. See Gaksakuman v. U.S. Att'y Gen., 767 F.3d 1164, 1168 (11th Cir. 2014) (citing 8 U.S.C. § 1252(b)(1)).
Lotero-Diaz asserts the BIA's failure to provide her a hearing violated her Due Process rights and constituted a lack of...
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