FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

February 13, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-14353

Non-Argument Calendar

________________________

BIA Nos. A95-221-888 & A95-221-889

SARA MARIA VASQUEZ,

LINA XIOMARA HERNANDEZ, 

INGRID JOHANNA HERNANDEZ, 

Petitioners, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of an Order of the

Board of Immigration Appeals

_________________________

(February 13, 2006)

Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
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Sara Maria Vasquez petitions this Court to review her second motion to

reopen the April 28, 2004, final order of removal by the Board of Immigration

Appeals and to review the final order of removal itself. Because Vasquez’s second

motion to reopen was filed more than 90 days after the final order of removal was

entered by the BIA, the regulations allow only one motion to reopen, and Vasquez

did not satisfy the requirements for a petition to reopen based on ineffective

assistance of counsel, we deny Vasquez’s petition to review the denial of her

second motion to reopen. Because we already denied a petition to review the final

order of removal on March 17, 2005, we lack jurisdiction to entertain a second

petition to review filed more than a year after that order of removal. We dismiss

Vasquez’s latest petition to review the final order of the BIA. 

BACKGROUND

Vasquez, a citizen of Columbia, entered the United States with her two

daughters on August 4, 2001, on a non-immigrant visa that expired on February 3,

2002. On December 11, 2001, Vasquez filed an application for asylum and

withholding of removal on behalf of herself and her family with the Immigration

and Naturalization Service, alleging persecution for political opinion. Vasquez

overstayed her visa and the INS initiated removal proceedings against her on

February 6, 2002.
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On October 10, 2002, the immigration judge denied her asylum petition. 

The IJ found that, although her story was credible, Vasquez did not establish past

persecution or a well-founded fear of future persecution. Vasquez appealed this

decision to the BIA, which affirmed without opinion on April 28, 2004. Vasquez

petitioned this Court to review the decisions of the IJ and BIA, and we denied her

petition on March 17, 2005.

Vasquez moved the BIA to reopen her removal proceedings on January 18,

2005. The BIA denied this motion as untimely on March 31, 2005. Vasquez did

not petition this Court to review this decision. On April 26, 2005, Vasquez filed a

second motion to reopen, which the BIA denied on July 19, 2005, as both untimely

and successively barred. Vasquez petitioned this court for review on August 10,

2005.

STANDARD OF REVIEW

We review the denial of a motion to reopen removal proceedings by the BIA

for abuse of discretion. Gbaya v. U. S. Att’y Gen., 342 F.3d 1219, 1220 (11th Cir.

2003).

DISCUSSION

Vasquez seeks review of both the denial by the BIA of her second motion to

reopen and the final order of the BIA entered on April 28, 2004. The government

opposes the motion on the grounds that review of the order of the BIA of April 28,
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2004 is time-barred and the second motion to reopen was both time-barred and

impermissibly successive. 8 U.S.C. §§ 1229a(c)(7)(A), (C); 8 C.F.R. §

1003.2(c)(2). Vasquez also argues that she should be permitted a second motion to

reopen because she was denied effective assistance of counsel in her first motion to

reopen. We address each order of the BIA in turn.

A. The BIA Did Not Abuse Its Discretion by Denying Vasquez’s Second Motion to

Reopen.

Vasquez’s argument regarding the denial of her second motion to reopen

fails. The BIA denied Vasquez’s motion to reopen because it was both untimely

and successively barred. The BIA did not abuse its discretion on either ground.

First, Vasquez’s motion was untimely. A motion to reopen must be filed

within 90 days “after the date on which the final administrative decision was

rendered in the proceeding sought to be reopened . . . .” 8 C.F.R. § 1003.2(c)(2);

see also 8 U.S.C. §1229a(c)(7)(A)(i). Vasquez did not file the motion to reopen

until April 26, 2005, nearly a year after the final order had been rendered on April

28, 2004.

Second, Vasquez’s motion was successive. Regulations allowed Vasquez a

single motion to reopen. 8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(2). 

Vasquez filed a motion to reopen on January 18, 2005, and that motion was denied

by the BIA. Vasquez did not petition for review of the denial of her motion but
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filed a second motion to reopen on April 26, 2005. Although section 1003.2(c)(3)

lists four conditions that, if met, will relieve a party of the time and successive

limits of section 1003.2(c)(2), Vasquez does not argue that she satisfied any of

these conditions. 

Vasquez erroneously argues that the BIA abused its discretion when it

refused to reopen her motion on the ground that she had been denied effective

assistance of counsel when she filed her first motion. Vasquez’s argument fails

because she did not substantially comply with the requirements of Matter of

Lozada, 19 I. & N. Dec. 637 (BIA 1988), aff’d, 857 F.2d 10 (1st Cir. 1988). 

Lozada set out three factors for the BIA to consider when examining a motion to

reopen based on ineffective assistance of counsel: (1) the motion should be

supported by an affidavit setting forth the petitioner’s agreement with counsel in

detail and the representations counsel did or did not make to the petitioner

regarding the alleged claim; (2) petitioner must inform counsel of the allegations

against him and allow him an opportunity to respond; and (3) the motion must

reflect whether a complaint has been filed with the appropriate disciplinary

authorities with respect to any ethical or legal violations by counsel, and if not,

why not. Id. at 639. Although we have not ruled whether a petitioner must satisfy

all three factors of Lozada, we have held that a petitioner must substantially

comply with the Lozada factors. Gbaya, 342 F.3d at 1222-23. Vasquez failed to
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comply with any of the requirements of Lozada. 

Vasquez argues that the ineffectiveness of her counsel is obvious from the

record and the Lozada factors should be suspended for her, but we rejected a

similar argument in Gbaya. The purpose of the Lozada factors is to “prevent the

BIA from having to examine the record in each and every ineffective assistance of

counsel claim it receives.” Id. at 1222. The BIA did not abuse its discretion by

denying Vasquez’s second motion to reopen.

B. We Are Without Jurisdiction to Review the Final Order of Removal of April 28,

2004.

Vasquez’s petition to review the final order of removal of April 28, 2004, is

not properly before us. On May 27, 2004, Vasquez petitioned this court to review

that order, and her petition was denied. See Vasquez v. U. S. Att’y Gen., No. 04-

12685 (11th Cir. March 17, 2005). Vasquez did not petition this Court for

rehearing, and we are without jurisdiction to review the final order of removal

again.

CONCLUSION

Vasquez’s petition to review the decision of the BIA denying her second

motion to reopen is DENIED, and her petition to review the final order of removal

of April 28, 2004 is DISMISSED.

PETITION DENIED in part and DISMISSED in part.