USCA11 Case: 20-11811 Date Filed: 03/01/2021 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 20-11811 Non-Argument Calendar ________________________ Agency No. A072-853-428 OMAR PRIETO-DIAZ, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (March 1, 2021) Before MARTIN, ROSENBAUM, and BRASHER, Circuit Judges. PER CURIAM: USCA11 Case: 20-11811 Date Filed: 03/01/2021 Page: 2 of 7 Omar Prieto-Diaz seeks review of the final order by the Board of Immigration Appeals (“BIA”) denying his motion to reopen removal proceedings. After careful review, we deny the petition. I. Prieto-Diaz, a native and citizen of Cuba, entered the United States in 1994. He adjusted his status to lawful permanent resident in 1995. In 1997, the Immigration and Nationality Service served Prieto-Diaz with a notice to appear, charging him with being removable because he was convicted of a crime involving moral turpitude, which was committed within five years of his admission to the United States and for which a sentence of one year or longer may be imposed. Prieto-Diaz applied for a waiver on grounds of excludability and for adjustment to permanent resident status pursuant to the Nicaraguan Adjustment and Central American Relief Act (“NACARA”). The immigration judge (“IJ”) found that Prieto-Diaz was ineligible for a waiver under the Immigration and Nationality Act (“INA”) § 212(h), 8 U.S.C. § 1182(h), and therefore denied his application for adjustment of status. The IJ determined, in relevant part, that Prieto-Diaz could not apply for adjustment under either the Cuban Adjustment Act (“CAA”) or NACARA without a waiver because he had been convicted of crimes involving moral turpitude. The IJ then determined that Prieto-Diaz was ineligible for a § 212(h) waiver because he had 2 USCA11 Case: 20-11811 Date Filed: 03/01/2021 Page: 3 of 7 not lawfully resided continuously in the United States for seven years before the initiation of his removal proceedings. Prieto-Diaz appealed to the BIA, arguing that the IJ erred in determining he was ineligible for relief under NACARA and ineligible for a waiver under § 212(h). In April 2004, the BIA summarily affirmed the IJ’s decision. In August 2019, Prieto-Diaz filed a motion to reopen his removal proceedings. He first argued that the IJ erred by pretermitting his application for a waiver under § 212(h) upon determining that he was admitted into the United States as a lawful permanent resident. Prieto-Diaz explained he had never been admitted into the United States as a lawful permanent resident. Rather, he was paroled in the United States and later adjusted status, all prior to his removable offense. Thus, he said, the IJ’s analysis was contrary to this Court’s decision in Lanier v. U.S. Attorney General, 631 F.3d 1363 (11th Cir. 2011), and the BIA’s decision in Matter of J-H-J-, 26 I & N Dec. 563 (BIA 2015).1 Prieto-Diaz then made two arguments to overcome the timing restrictions on his motion to reopen. 2 1 Lanier and …
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