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 FloresLeon 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 threeyears 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 FloresLeon’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 FloresLeon’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. FloresLeon 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. FloresLeon 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 explanation 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 constitutes a "crime of violence" under the INA. See 8

U.S.C. sec. 1101(a)(43)(F).