Flores-Leon, S. v. INS ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1128
Silverio Flores-Leon,
Petitioner,
v.
Immigration and Naturalization Service,
and John Ashcroft, Attorney General
of the United States,
Respondents.
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A17-132-384
Argued February 28, 2001--Decided November 14, 2001
Before Harlington Wood, Jr., Kanne, and
Rovner, Circuit Judges.
Kanne, Circuit Judge. On August 24,
1994, petitioner, Silverio Flores-Leon,
was convicted of two counts of aggravated
criminal sexual abuse in violation of
Illinois criminal law stemming from his
undisputed act of sexually touching a
female child younger than 13 years of
age. On June 8, 1999, an immigration
judge held that Flores-Leon had been
convicted of a crime of violence and
sexual abuse of a minor and he was,
therefore, deportable. On December 20,
1999, the Board of Immigration Appeals
("BIA") agreed. Flores-Leon now appeals.
We find that Flores-Leon raises no valid
constitutional claims. Therefore, we
dismiss his appeal for lack of subject
matter jurisdiction.
I. History
The petitioner, Silverio Flores-Leon, is
a 52-year-old male and a native and
citizen of Mexico. On May 12, 1999, the
Immigration and Natural Service ("INS")
issued Flores-Leon a Notice to Appear
("NTA") charging him with removability
pursuant to the Immigration and
Nationality Act ("INA"), 8 U.S.C. sec.
1227(a)(2)(A)(iii), based on his
conviction for aggravated criminal sexual
abuse. The NTA alleged that Flores-Leon
was not a citizen or national of the
United States, that he was a native and
citizen of Mexico, and that he was
admitted to the United States at Eagle
Pass, Texas on or about March 5, 1966, as
a lawful permanent resident. The NTA
further alleged that on August 24, 1994,
Flores-Leon had been convicted of two
counts of aggravated criminal sexual
abuse in violation of Ch. 38, Section 12-
16-(C)-(1)(I) of the Illinois Revised
Statutes 1989 as amended, and sentenced
to three years imprisonment. The NTA
charged that Flores-Leon, therefore, was
subject to removal under the INA because
he had been convicted of an "aggravated
felony" as defined therein.
An immigration judge conducted a hearing
on May 25, 1999. At the start of the
hearing, Flores-Leon was not accompanied
by counsel and stated that his name was
"Silverio Flores-Leon." The immigration
judge identified the participants in the
hearing and their roles, the purpose of
the proceeding, and the factual
allegations supporting the charge of
removability. The immigration judge gave
Flores-Leon a copy of the Certified
Statement of Conviction ("Conviction
Record"), at which point Flores-Leon
informed the immigration judge that he
had retained a private attorney to
represent him. Thereupon, Flores-Leon’s
attorney arrived at the hearing and
requested a continuance and a bond
hearing. The immigration judge granted
the continuance.
On June 1, 1999, the immigration judge
denied Flores-Leon’s request for bond and
set the removal hearing for June 8, 1999.
The immigration judge began the removal
hearing by addressing Flores-Leon’s
motion to recuse on the grounds that the
same judge cannot hear both the bond and
the removal hearing. The motion was
denied as was Flores-Leon’s subsequent
motion for a continuance to take an
interlocutory appeal from that ruling.
The immigration judge next asked Flores-
Leon to plead to the factual allegations
and charge of the NTA. Flores-Leon’s
counsel responded that Flores-Leon would
neither admit nor deny any of the
allegations or charges and asked that
"the Service be put to its burden of
proof."
The INS began its case-in-chief by
calling Flores-Leon as a witness. After
again identifying himself as "Silverio
Flores-Leon," he testified that he was
born in Mexico. Thereafter, Flores-Leon
responded, "I don’t wish to respond,
because it’s against the rights of the
Constitution of the United States" to the
following questions from the INS: Are you
a permanent resident of the United
States? Were you convicted on August, 24,
1994, of aggravated criminal assault?
Were you sentenced to a term of three-
years imprisonment? Flores-Leon’s counsel
explained to the immigration judge that
his client’s refusal to answer was not
based on the Fifth Amendment right
against self-incrimination, but instead
on the First Amendment’s guarantee of
"freedom of speech and the right to
remain silent" and on "the Fifth
Amendment due process right."
The INS then presented Flores-Leon with
the Conviction Record and asked him
whether it was his name on the record.
Flores-Leon responded that he did not
"wish to respond because it’s against the
rights of the United States
Constitution." Flores-Leon’s counsel then
objected to admitting the Conviction
Record into evidence on the grounds that
it referred to "Silverio Flores" and thus
did not relate to the name on the NTA--
"Silverio Flores-Leon." The immigration
judge overruled the objection and
admitted the Conviction Record into
evidence./1
The INS then presented Flores-Leon with
his immigration visa and asked him to
identify it. Flores-Leon responded that
he did "not wish to respond because it’s
against the rights of the United States
Constitution." The immigration judge
admitted the visa into evidence over
counsel’s objection that it was not
properly certified and that there was
insufficient foundation. The INS then
rested.
Flores-Leon offered no evidence. During
closing arguments, Flores-Leon’s counsel
asserted that under the pre-1996
definition of "aggravated felony,"
Flores-Leon was not an aggravated felon
and, therefore, was not deportable. He
argued that the 1996 amended definition
of "aggravated felony" should not be
applied retroactively to a 1994
conviction.
The immigration judge found that even
though Flores-Leon refused to respond to
"almost all questions," he did admit to
his birth in Mexico. The immigration
judge found that that admission and the
immigration visa established Mexico as
Flores-Leon’s country of birth and
nationality. Because the evidence showed
Flores-Leon to be a Mexican national, the
immigration judge found that the INS had
established a prima facie case of
removability and that the burden shifted
to Flores-Leon to contest that finding.
The immigration judge also found that
the Conviction Record reflected Flores-
Leon’s last name and that he made no
attempt to rebut that it related to him.
The Conviction Record established that
Flores-Leon had been convicted of two
counts of aggravated criminal sexual
abuse of a minor and had received a
three-year sentence. Based on the
Conviction Record, the immigration judge
found that the INS had established that
Flores-Leon was an "aggravated felon" as
defined by the INA. Because Flores-Leon
had failed to rebut the evidence against
him, the immigration judge ordered that
Flores-Leon’s lawful permanent residence
status be terminated and that he be
removed to Mexico. Flores-Leon timely
appealed to the BIA, alleging that the
admission of the visa and Conviction
Record was improper, that the government
had failed to meet its burden, and that
the retroactive application of the
amended definition of "aggravated felony"
was unconstitutional. On December 20,
1999, the BIA rejected the appeal and
adopted the immigration judge’s
conclusions.
On February 20, 2000, Flores-Leon sought
review in this court. The INS opposed
Flores-Leon’s request with a motion to
dismiss, alleging that this court lacked
subject matter jurisdiction because the
INA bars review of a deportation order
for aliens convicted of an "aggravated
felony," as that term is defined by the
INA. On June 20, 2000, we ordered the
parties to brief and argue both the
jurisdictional issue and the substantive
issues in full and we ordered that the
motion to dismiss be taken with the case.
II. Analysis
The INS argues that this court lacks
subject matter jurisdiction over Flores-
Leon’s appeal. The INA provides in
relevant part that "no court shall have
jurisdiction to review any final order of
removal against an alien who is removable
by reason of having committed a criminal
offense covered" by the statutory
provision making aggravated felons
removable. See 8 U.S.C. sec.
1252(a)(2)(C). The INS argues that
Flores-Leon’s petition should be
dismissed because the immigration
judge/2 determined that Flores-Leon’s
aggravated criminal sexual abuse
conviction is an "aggravated felony"
under the INA, thereby invoking the
jurisdictional bar. However, as the
government concedes, this court does have
jurisdiction to determine whether
jurisdiction exists. See Xiong v. INS,
173 F.3d 601, 604 (7th Cir. 1999).
Further, we have previously held that an
alien may challenge his deportability on
constitutional grounds directly in the
court of appeals provided that he raises
a substantial constitutional claim. See
Lara-Ruiz v. INS, 241 F.3d 934, 939 (7th
Cir. 2001); LaGuerre v. Reno, 164 F.3d
1035, 1040 (7th Cir. 1998). Therefore, we
must first determine whether the
immigration judge correctly concluded
that Flores-Leon was "an alien deportable
by reason of having committed an
aggravated felony." If we answer that
question in the affirmative, we must then
consider whether Flores-Leon has
nevertheless raised substantial
constitutional claims, so that we may
assert jurisdiction over those claims.
See Lara-Ruiz, 241 F.3d at 939.
Under the INA, "[a]ny alien who is
convicted of an aggravated felony at any
time after admission is deportable." See
8 U.S.C. sec. 1227(a)(2)(A)(iii). In
1996, Congress adopted the Illegal
Immigration Reform and Immigrant
Responsibility Act of 1996 ("IIRIRA"),
Pub. L. No. 104-208, 110 Stat. 3009(1996), as part of a sweeping program of
immigration reform. IIRIRA amended the
INA to substantially expand the
definition of "aggravated felony" to
include crimes that had not been included
earlier. See IIRIRA sec. 321(a). The INA
now defines an "aggravated felony" to
include "murder, rape, or sexual abuse of
a minor," whereas previously only murder
constituted an "aggravated felony" under
the INA. See IIRIRA sec. 321(a)(1).
Further, IIRIRA expanded the definition
of "aggravated felony" to include "a
crime of violence . . . for which the
term of imprisonment imposed [is] at
least one year." See IIRIRA sec.sec.
321(a)(3), 322(a)(2)(A)./3
Flores-Leon attacks the immigration
judge’s determination that he was
convicted of an "aggravated felony" as
that term is now defined by the INA. See
8 U.S.C. sec.sec. 1101(a) (43)(A) and
(F). Flores-Leon does not dispute that
hisconviction for aggravated sexual abuse
where the victim was younger than 13
years constitutes "sexual abuse of a
minor" within the definition of
"aggravated felony." See 8 U.S.C. sec.
1101(a)(43)(A). Rather, Flores-Leon
contends that because his 1994 conviction
predates the 1996 amendments expanding
the definition of "aggravated felony,"
the retroactive application of the
amended definition would violate the Ex
Post Facto Clause. See U.S. Const. art. I,
sec. 9, cl. 3. Therefore, according to
Flores-Leon, Congress did not intend for
the amended definition to apply
retroactively. The government argues that
Congress provided a clear directive that
the amended definition was to be applied
regardless of when the conviction
occurred. After reviewing the statutes at
issue, we find that the immigration judge
correctly applied the amended definition
of aggravated felony to Flores-Leon’s
conviction.
Our starting point to determine the
intent of Congress is the language of the
statute itself. See United States v.
Hayward, 6 F.3d 1241, 1245 (7th Cir.
1993). When the intent of a statute is
clear, the court and the agency must give
effect to the unambiguously expressed
will of Congress. See Am. Fed’n of Gov’t
Employees v. Rumsfeld, 262 F.3d 649, 655-
56 (7th Cir. 2001). However, when the
statute is silent or ambiguous with
respect to a material issue, the court
should defer to the agency’s
interpretation so long as that
interpretation is based on a permissible
construction of the statute. See id. at
656 (citing Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc.,
467 U.S. 837, 843-44, 104 S. Ct. 2778, 81
L. Ed. 2d 694 (1984)).
In addressing retroactivity, the Supreme
Court has stated that "there is a
presumption against retroactive
legislation [that] is deeply rooted in
our jurisprudence. The principle that the
legal effect of conduct should ordinarily
be assessed under the law that existed
when the conduct took place has timeless
and universal appeal." Hughes Aircraft
Co. v. United States, 520 U.S. 939, 946,
117 S. Ct. 1871, 138 L. Ed. 2d 135 (1997)
(internal quotations and citations
omitted). However, this presumption only
applies if Congress has not "clearly
manifested its intent to the contrary."
Id.To determine the intent of Congress, we
begin by looking at the language of
Sections 321(a)(1) and (a)(3) of IIRIRA,
which significantly expanded the
definition of an "aggravated felony." See
8 U.S.C. sec. 1101(a)(43). Section 321 of
IIRIRA goes on to amend the INA to read:
"Notwithstanding any other provision of
law (including any effective date), [the
amended definition of aggravated felony]
applies regardless of whether the
conviction was entered before, on, or
after September 30, 1996." See IIRIRA
sec. 321(b) (emphasis added). Finally,
Section 321(c) of IIRIRA explains the
effective date of the entire provisions:
"The amendments made by this section
shall apply to actions taken on or after
the date of the enactment of this
Act,regardless of when the conviction
occurred." IIRIRA sec. 321(c).
We join the First and the Ninth Circuits
in concluding that Congress has clearly
manifested an intent to apply the amended
definition of "aggravated felony"
retroactively. See Sousa v. INS, 226 F.3d
28, 30-33 (1st Cir. 2000); Aragon-Ayon v.
INS, 206 F.3d 847, 851-52 (9th Cir.
2000); cf. Moosa v. INS, 171 F.3d 994,
1007 (5th Cir. 1999) (applying amended
definition of "conviction" retroactively
because congressional intent expressed in
IIRIRA is clear). Section 321 of IIRIRA
contains a clear and express directive
from Congress that the amended definition
of "aggravated felony" should be applied
to any and all criminal violations
committed by an alien after his or her
entry into the United States, regardless
of whether they were committed before or
after the amended definition went into
effect. Section 321(b) leaves Flores-Leon
no room to argue otherwise, as it clearly
states that the revised definition
applies to convictions entered before the
enactment date. See Aragon-Ayon, 206 F.3d
at 852. Since either the immigration
judge’s decision or the BIA’s affirmance
constitute an "action taken" under
Section 321(c), see Xiong, 173 F.3d at
607, both acts bring Flores-Leon’s
conviction within the expanded definition
of aggravated felony. Therefore, we agree
that Flores-Leon was convicted of an
"aggravated felony" under the INA and,
therefore this court does not have
jurisdiction to review the merits of the
immigration judge’s decision. See 8
U.S.C. sec. 1101(a)(43)(A)./4
Moreover, even if we had jurisdiction,
the constitutional defects asserted by
Flores-Leon are without merit. Flores-
Leon claims that applying the 1996
amended definition of "aggravated felony"
to his 1994 conviction violates the Ex
Post Facto Clause. See generally Weaver
v. Graham, 450 U.S. 24, 28-29, 101 S. Ct.
960, 67 L. Ed. 2d 17 (1981). The Ex Post
Facto Clause prohibits the retrospective
application of criminal laws that
materially disadvantage the defendant.
See U.S. Const. art. I, sec. 9, cl. 3.
However, the Ex Post Facto Clause only
applies to criminal laws. See Collins v.
Youngblood, 497 U.S. 37, 41, 110 S. Ct.
2715, 111 L. Ed. 2d 30 (1990). The fatal
flaw in Flores-Leon’s argument is that
removal under the immigration laws is a
civil proceeding, not criminal
punishment. See Harisiades v.
Shaughnessy, 342 U.S. 580, 594, 72 S. Ct.
512, 96 L. Ed. 586 (1952); Chavez-Raya v.
INS, 519 F.2d 397, 400 (7th Cir. 1975).
Therefore, because IIRIRA did not
increase Flores-Leon’s punishment but
only made available the civil penalty of
deportation, see IIRIRA sec. 321, the Ex
Post Facto Clause is inapplicable.
Moreover, the fact that deportation
proceedings are not criminal and do not
constitute punishment also disposes of
Flores-Leon’s contention that his
deportation would constitute "cruel and
unusual punishment" under the Eighth
Amendment. See United States ex rel.
Circella v. Sahli, 216 F.2d 33, 40 (7th
Cir. 1954).
Flores-Leon also asserts that he was
denied a fair hearing as required by due
process under the Fifth Amendment.
Initially, Flores-Leon contends that the
immigration judge’s failure to recuse
himself from Flores-Leon’s removal
proceeding after conducting the bond
hearing violated INS regulations. Flores-
Leon relies on 8 C.F.R. sec. 3.19(d),
which requires that a bond hearing be
"separate and apart from, and shall form
no part of, any deportation or removal
hearing." However, nothing in the
regulation requires the judge that
conducted the bond hearing to recuse
himself. See id. Flores-Leon contends
that by conducting the bond hearing, the
immigration judge had access to
information not admissible in the removal
proceeding. Flores-Leon’s claim fails
because he did not identify any
information that was provided at the bond
hearing that the immigration judge
incorrectly used to render a decision at
the removal proceeding. Rather, a review
of the immigration judge’s oral decision
reveals that he relied only on evidence
properly admitted at the removal
proceeding for his conclusion.
Flores-Leon then contends he was denied
due process because the immigration judge
asked the INS to pose certain questions
to him when he was a witness. However,
"the immigration judge has broad
discretion to control the manner of
interrogation in order to ascertain the
truth." See Iliev v. INS, 127 F.3d 638,
643 (7th Cir. 1997). Moreover, a judge is
permitted to ask questions in order to
clarify issues. See id. In this case, the
immigration judge’s questions attempted
to clarify both Flores-Leon’s criminal
status as well as his immigration status
and, therefore, were permissible.
Moreover, nothing in the record indicates
any bias or denial of a fair trial.
Flores-Leon further contends that it was
"fundamentally unfair" and violated due
process for the immigration judge to draw
adverse inferences from his silence.
Flores-Leon’s argument is baseless.
Flores-Leon explicitly disavows any
reliance on the Fifth Amendment privilege
against self-incrimination for his
silence. Moreover, an alien’s refusal to
answer non-incriminatory questions
regarding his immigration status may be
used as a basis for drawing adverse
inferences. See INS v. Lopez-Mendoza, 468
U.S. 1032, 1043, 104 S. Ct. 3479, 82 L.
Ed. 2d 778 (1984). Under Flores-Leon’s
logic, all an alien would have to do to
avoid deportation is remain silent.
Moreover, Flores-Leon’s silence is
irrelevant, as the immigration judge
found the case against Flores-Leon to be
overwhelming and that any negative
inferences "would simply be superfluous."
Finally, Flores-Leon contends that he
was denied due process under the Fifth
Amendment because the BIA simply adopted
the conclusion of the immigration judge
and thereby failed to consider and
adequately address the issues raised on
appeal. In the present case, we have
examined and rejected every claim that
Flores-Leon contends the BIA neglected.
Therefore, the combination of the
immigration judge’s oral decision and
this opinion satisfies any constitutional
concerns with respect to Flores-Leon’s
BIA appeal. See Guentchev, 77 F.3d at
1038 (rejecting nearly identical
argument).
III. Conclusion
The petition for review is DENIED insofar
as it challenges the order of removal on
the ground that Flores-Leon is not an
aggravated felon. Insofar as the petition
challenges the refusal to consider
Flores-Leon’s request for relief from
removal, the petition is DISMISSED for
lack of jurisdiction and the government’s
motion to dismiss is GRANTED.
FOOTNOTES
/1 We note that Flores-Leon has repeatedly signed
his name as "Silverio Flores" throughout the
record.
/2 Because the BIA summarily dismissed Flores-Leon’s
appeal, we "take the immigration judge’s explana-
tion as the Board’s." Guentchev v. INS, 77 F.3d
1036, 1038 (7th Cir. 1996).
/3 Prior to the amendment, an "aggravated felony"
under the INA included only "a crime of violence"
for which the sentence "imposed . . . is at least
5 years." See IIRIRA sec.sec. 321(a)(3), 322(a)
(2)(A). The term "crime of violence" means:
(a) an offense that has as an element the use,
attempted use, or threatened use of physical
force against the person or property of another,
or
(b) any other offense that is a felony and that,
by its nature, involves a substantial risk that
physical force against the person or property of
another may be used in the course of committing
the offense. 18 U.S.C. sec. 16.
/4 Flores-Leon concedes that his 1994 conviction
constitutes "sexual abuse of a minor" under the
amended definition of "aggravated felony." See 8
U.S.C. sec. 1101(a)(43)(A). Therefore, we need
not address whether his conviction also consti-
tutes a "crime of violence" under the INA. See 8
U.S.C. sec. 1101(a)(43)(F).