Flores-Leon v. Immigration and Naturalization Service, 00-1128

• Decision Date: 14 November 2001
• Docket Number: No. 00-1128,00-1128
• Citation: 272 F.3d 433
• Parties: (7th Cir. 2001) Silverio Flores-Leon, Petitioner, v. Immigration and Naturalization Service, and John Ashcroft, Attorney General of the United States, Respondents
• Court: U.S. Court of Appeals — Seventh Circuit

Page 433

272 F.3d 433 (7th Cir. 2001)

Silverio Flores-Leon, Petitioner, v. Immigration and Naturalization Service, and John Ashcroft, Attorney General of the United States, Respondents.

No. 00-1128

In the United States Court of Appeals For the Seventh Circuit

Argued February 28, 2001

Decided November 14, 2001

Petition for Review of an Order of the Board of Immigration Appeals. No. A17-132-384

[Copyrighted Material Omitted] Before 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 judge² 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...