IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-60861

Summary Calendar

GIOVANNI JESUS AGUAYO ORTIZ,

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.

United States Court of Appeals

Fifth Circuit

FILED

March 1, 2016

Lyle W. Cayce

Clerk

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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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