UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 00-60472
___________________________
VICTOR PACHECO-SEGURA,
Petitioner,
VERSUS
JOHN ASHCROFT, United States Attorney General,
Respondent.
___________________________________________________
Petition for Review of an Order
of the Board of Immigration Appeals
(A73 091 421)
___________________________________________________
August 13, 2001
Before DAVIS and JONES, Circuit Judges, and PRADO*, District Judge.
PER CURIAM:**
Pacheco-Segura petitions for review from a final order of
removal issued by the Board of Immigration Appeals (“Board”). For
the reasons that follow, we affirm the judgment of the Board.
I.
Petitioner Pacheco-Segura is a native and citizen of Mexico
who entered the United States without inspection in 1990. Mr.
Pacheco’s application for adjustment of status to that of a lawful
*
District Judge of the District Court for the Western District
of Texas, sitting by designation.
**
Pursuant to 5th Cir. R. 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this opinion should not be published and is not precedent except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 Cir. R. 47.5.4.
permanent resident was granted in 1995. Before that adjustment of
status, in 1993, Petitioner was convicted of assault in the fourth
degree for striking his step-son in the face with a soda can from
which Mr. Pacheco had been sniffing paint. Six years later, in
1999, Petitioner was again convicted of a criminal offense for
violation of a protective order placed on him by his wife.
In late 1999, the INS served Petitioner with a notice to
appear charging that Petitioner was removable under INA Sections
237(a)(2)(A)(i), 237(a)(2)(A)(ii), 237(a)(2)(E)(i), and
237(a)(2)(E)(ii) for the criminal offenses described above.
Pacheco appeared before an immigration judge on January 18, 2000.
He elected to proceed pro se at that and subsequent hearings, as he
does today. The immigration judge questioned Petitioner about the
two convictions alleged in the notice to appear. Although Mr.
Pacheco admitted the occurrence of the incident giving rise to the
assault charges, he denied the allegation in the notice to appear
that he was convicted of the violation of an emergency protective
order on November 22, 1999. In light of Petitioner’s denial of
this allegation, the immigration judge adjourned the hearing and
set the case for a merits hearing.
A merits hearing was held on February 1, 2000. That day, the
INS amended the allegations of the notice to appear and served the
amended document on Mr. Pacheco. The amendment reflected a date of
June 24, 1999 for Petitioner’s conviction for the violation of an
emergency protective order. The immigration judge again questioned
Mr. Pacheco about both of the alleged offenses, and this time,
2
Pacheco admitted the allegations. Although Petitioner did not ask
to be relieved from removal, the immigration judge questioned the
INS as to the availability of any relief for which Mr. Pacheco was
eligible. The INS responded that it was not aware of any such
relief, and the immigration judge therefore ordered Petitioner to
“be removed from the United States to Mexico on the charges
contained in the [notice to appear] as amended.” A.R. 21-22.
At the conclusion of this hearing, the immigration judge asked
Mr. Pacheco if he wished to accept the decision or reserve appeal.
After the judge explained what this question meant, Petitioner
indicated that he wished to appeal. The immigration judge
announced that he was giving a copy of the decision to the parties,
and adjourned the hearing. However, after adjourning the hearing,
the immigration judge went back on record, and the following
colloquy occurred:
Immigration judge: Mr. Pacheco, you told me off the
record that you no longer wish to appeal. Is that
correct?
Mr. Pacheco: Yes, sir. That’s correct.
Immigration judge: You wish -- you wish to accept the
decision of the Court?
Mr. Pacheco: Yes.
Immigration judge: Very well. The decision of the Court
is final. I shall now give copies of my decision to the
parties and...this hearing today is adjourned.
A.R. 17
Petitioner then appealed to the Board of Immigration Appeals,
3
stating in his notice to appeal1 that “since he had moral terpitude
[he] was clearly eligible for cancel[l]ation of removal,
withholding of removal and to[rture] convention Article 3.” He
asserted that the immigration judge “never offered [him] any relief
that [he] was eligible for.”
Citing the summary of the immigration judge’s oral decision,
and the lines of the Certified Administrative Record quoted above
in which Petitioner apparently waived his right to appeal, the
Board concluded that Mr. Pacheco waived appeal. As such, the Board
held that it lacked jurisdiction over the appeal because, upon
waiver, the immigration judge’s decision became administratively
final. Accordingly, the Board dismissed Petitioner’s appeal.
In July of 2000, Pacheco filed a “Motion for an Emergency Stay
of Deportation” with this court, alleging that his due process
rights were violated by the Board’s summary dismissal of his case.
In support of his claim, Petitioner attached a summary of the
immigration judge’s oral decision. The bottom of that document
contains the following type-written language: “Appeal:
Waived/Reserved Appeal Due By: March 2, 2000.” On the form Mr.
Pacheco submitted to this court, the word “Reserved” was circled.
Appellate counsel for the INS requested a copy of this summary from
the INS, and also received a form with only the word “Reserved”
circled. Respondent therefore filed a motion stating that it did
1
Although Petitioner indicated in his notice to appeal that he
would file a motion detailing his arguments, he failed to submit a
brief or any other document to the Board.
4
not oppose Petitioner’s motion for stay of removal, but also asked
for a thirty-day extension of time to request and file with the
court a copy of the summary contained in the Certified
Administrative Record. We granted both the stay and the extension
of time. Counsel for the INS then received and filed with us the
summary of the immigration judge’s oral decision contained in the
summary contained in the Certified Administrative Record. Unlike
the summary described above (presented by Mr. Pacheco), in the
Certified Administrative Record, the words “Waived” and “Reserved”
are both circled, but a squiggly line is placed through the word
“Reserved.”2 The INS therefore argues that we should reject
Petitioner’s appeal.
II.
We need not determine whether Petitioner actually reserved his
right to appeal. Assuming without deciding that the Board erred in
summarily dismissing Pacheco’s due process claim, he cannot
prevail. The party raising a due process claim has the burden to
make “an initial showing of substantial prejudice.” Anwar v. INS,
116 F.3d 140, 143 (5th Cir. 1997). To show substantial prejudice,
the party must establish “a prima facie showing that he was
eligible for [relief from removal] and that he could have made a
2
The obvious conclusion that the form submitted by Mr. Pacheco
was prepared before the subsequent dialogue in which Mr. Pacheco
waived his right to appeal is weakened somewhat by the fact that
the immigration judge also issued a written “Decision and Order”
which indicated that Petitioner reserved his right to appeal. That
order is dated February 1, 2000, though it is unclear at what point
in the day it was prepared.
5
strong showing in support of his” eligibility had the Board not
summarily dismissed his case. Id. Mr. Pacheco does not challenge
his removal, but only makes due process arguments based on the
Board’s summary dismissal of his claim. Petitioner does not
attempt to explain how he is eligible for relief from removal, nor
has he made an attempt to demonstrate that had his case not been
summarily dismissed, he would have demonstrated that the
immigration judge erred in finding him removable. Because
Petitioner fails to satisfy his burden under Anwar to show
substantial prejudice, his appeal cannot succeed.
III.
For the foregoing reasons, the judgment of the Board of
Immigration Appeals is AFFIRMED.
6