Giovanni Ortiz v. Loretta Lynch ( 2016 )

Case: 14-60861 Document: 00513401607 Page: 1 Date Filed: 03/01/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 14-60861
Fifth Circuit
FILED
Summary Calendar March 1, 2016
Lyle W. Cayce
GIOVANNI JESUS AGUAYO ORTIZ, Clerk
Petitioner
v.
LORETTA LYNCH, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A206 705 961
Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
Giovanni Jesus Aguayo Ortiz (Aguayo), a native and citizen of Mexico,
petitions this court for review of a final administrative order of removal issued
by the Department of Homeland Security (DHS) pursuant to the expedited
removal proceedings set forth in 8 U.S.C. § 1228(b). Aguayo was ordered
removed based on his 2014 conviction in Texas state court of forgery of a
document issued by the United States government, which the DHS determined
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 14-60861
qualified as an aggravated felony conviction for purposes of 8 U.S.C.
§ 1227(a)(2)(A)(iii). See TEX. PENAL CODE ANN. § 32.21(e).
We lack “jurisdiction to review any final order of removal against an
alien who is removable by reason of having committed” certain criminal
offenses, including aggravated felonies. 8 U.S.C. § 1252(a)(2)(C). However, we
retain jurisdiction to consider “constitutional claims or questions of law raised
upon a petition for review.” § 1252(a)(2)(D). In his petition for review, Aguayo
argues that the DHS violated his due process rights. Accordingly, we have
jurisdiction to review his claims. We will not consider the documents that
Aguayo has included in his appendix to his appellate brief. We must “decide
the petition [for review] only on the administrative record on which the order
of removal is based.” § 1252(b)(4)(A).
Aliens in removal proceedings are entitled to the protection of the Fifth
Amendment’s Due Process Clause. Manzano-Garcia v. Gonzales, 413 F.3d 462,
470 (5th Cir. 2005). However, an alien cannot prevail on a due process claim
unless he establishes the denial of a right protected by the Due Process Clause
and makes an initial showing that the denial resulted in substantial prejudice.
Anwar v. INS, 116 F.3d 140, 144 (5th Cir. 1997); Patel v. INS, 803 F.2d 804,
807 (5th Cir. 1986).
Aguayo argues that the DHS violated his due process rights by issuing a
final order of removal even though he did not knowingly and voluntarily waive
his procedural rights or his right to the assistance of counsel. The record does
not conclusively show that Aguayo knowingly and voluntarily waived his
rights in the context of his expedited removal proceeding. However, Aguayo
has not established that he would have been able to rebut the charges
contained in his notice of removal or that he might have obtained some form of
relief from removal absent the due process violations. Because Aguayo has not
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shown that the alleged violations resulted in substantial prejudice, his due
process claim fails. See Anwar, 116 F.3d at 144-45; Ogunfuye v. Holder, 610
F.3d 303, 306-07 (5th Cir. 2010).
Aguayo also argues that the DHS violated his due process rights by
removing him to Mexico without first advising his attorney. However, the
record does not support Aguayo’s assertion that he was represented by counsel
at the time the DHS issued his removal order and had him removed from the
United States. Absent a showing that the DHS violated a right protected by
the Due Process Clause, Aguayo’s claim fails.
Aguayo’s petition for review is DENIED.
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