*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this opinion should not be published and is not precedent except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.

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
2

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,
3

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,
1Although 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

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
2The 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

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
6

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.