2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-13-2015

Jermaine Gilkes v. Attorney General United States

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PS2-154 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 14-3743

___________

JERMAINE GILKES,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A043-870-524)

Immigration Judge: Honorable Margaret R. Reichenberg

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

July 6, 2015

Before: AMBRO, VANASKIE and SLOVITER, Circuit Judges

(Opinion filed: July 13, 2015)

___________

OPINION*

___________

PER CURIAM

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

Pro se petitioner Jermaine Gilkes petitions for review of the Board of Immigration 

Appeals’ (“BIA”) final order of removal. We will deny the petition.

I.

Gilkes is a native and citizen of Guyana who entered the United States in 1993, 

when he was 11 years old. He has resided in the United States as a legal permanent 

resident (“LPR”) since 1995. In 2007, the Department of Homeland Security (“DHS”) 

issued a Notice to Appear (“NTA”), stating that Gilkes was in the United States without 

legal status and was inadmissible because he had been convicted of robbery. It appears 

that Gilkes did not appear before an immigration judge (“IJ”) until January 2013, when 

he was in DHS detention. Gilkes contested removability, and the IJ terminated the 

proceedings without prejudice because the NTA had been improvidently issued due to the 

error regarding Gilkes’ immigration status. 

A second NTA was issued on January 25, 2013. The new NTA acknowledged 

Gilkes’ status as an LPR, but charged him as removable for being convicted of an 

aggravated felony, see 8 U.S.C. § 1227(a)(2)(A)(iii), and a firearms offense, see 8 U.S.C. 

§ 1227(a)(2)(C). These charges were based on Gilkes’ alleged 2007 convictions in New 

Jersey state court for robbery and conspiracy (NTA Factual Allegation 5), his alleged 10-

year sentence of imprisonment (NTA Factual Allegation 6), and his conviction for 

possession of a weapon for an unlawful purpose (NTA Factual Allegation 7). The IJ 

denied Gilkes’ motion to terminate the proceedings based on the doctrines of res judicata 
3

and collateral estoppel.

During a May 2013 hearing, Gilkes denied Factual Allegations 5 and 6, but he 

seemed to admit Factual Allegation 7. The IJ declined to sustain the charges of 

removability based on Factual Allegations 5 and 6 because DHS did not authenticate the 

record of conviction or the indictment as required by 8 C.F.R. § 1003.41. Then, after 

some dispute, the IJ determined that Gilkes did not intend to admit Factual Allegation 7

and allowed him to re-plead. In October 2013, Gilkes stated that he would neither admit 

nor deny Factual Allegation 7, so the IJ denied it on his behalf. 

To establish Factual Allegation 7, DHS again submitted the record of conviction 

and the indictment, along with a declaration from an Enforcement Removal Assistant 

(“ERA”). The IJ rejected Gilkes’ objections based on res judicata and collateral estoppel 

to the admission of these documents. The IJ also rejected Gilkes’ objection concerning 

the documents’ authentication, determining that the ERA’s declaration set forth the chain 

of custody by which DHS obtained the documents, which laid an adequate foundation for 

their admission. The IJ then determined that Gilkes had pleaded guilty to possession of a 

weapon (a handgun) for an unlawful purpose, in violation of N.J. Stat. Ann. § 2C:39-4a, 

and had been sentenced to 10 years in prison for this offense. However, the IJ declined to 

sustain the charge of removability under § 1227(a)(2)(C), concluding that § 2C:39-4a’s 

definition of “handgun” is “much broader” than the definition of “firearm” used for 

immigration purposes. (IJ Op. 10.) 
4

The Government immediately submitted a Form I-261, which contained an 

additional charge of removability based on Gilkes’ conviction under N.J. Stat. Ann. § 

2C:39-4a. The Form I-261 charged Gilkes as removable for having been convicted of an 

aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(F). Under that section, a 

conviction constitutes an aggravated felony if it is a “crime of violence” as defined in 18 

U.S.C. § 16, for which the term of imprisonment is at least one year. After rejecting 

Gilkes’ objection to the lodging of the new charge, the IJ determined that this conviction 

did constitute a “crime of violence” under § 16. Accordingly, and because Gilkes’ term 

of imprisonment for that conviction exceeded one year, the IJ determined that Gilkes was 

removable on this charge. Because the IJ also determined that the crime was 

“particularly serious,” Gilkes was rendered ineligible for all relief except for deferral of 

removal under the Convention Against Torture (“CAT”). 

Gilkes’ application for CAT relief asserted that he was likely to be tortured or 

killed in Guyana because he believed that the government of Guyana had authorized a 

vigilante group to crack down on crime. Gilkes introduced evidence that in 2004 his 

cousin was executed by the vigilante death squad for being an informant. Another of 

Gilkes’ cousins, who had been a police officer in Guyana, immigrated to the United 

States in 2005 because he refused to be part of the death squad. Gilkes believes that he 

will be killed by the death squad if he returns to Guyana. He also believes that he will be 

targeted as a criminal deportee and that, upon arrival, he will be indefinitely detained and 
5

tortured. Gilkes’ mother, testifying on his behalf, said that although Gilkes’ cousin’s 

killers have not been caught, she does not believe that the death squad still exists. She 

does believe, however, that criminal deportees are blamed for the increase in crime in 

Guyana, and that if no one picks up Gilkes from the airport, he will be detained. 

The IJ denied Gilkes’ application for CAT relief, determining that he had not 

established that it was more likely than not that he would be tortured. The IJ noted that, 

although conditions are poor and criminal deportees often have a difficult time 

readjusting to life in Guyana, there was no evidence that criminal deportees were tortured 

or routinely detained. Additionally, even assuming that Gilkes’ cousin had been 

murdered by the vigilante group, it was not relevant to Gilkes’ claim, as he had testified 

that the murder occurred because his cousin was an informant, not a criminal deportee. 

The evidence also suggested that the vigilante group no longer existed, and even if it did, 

the group targeted only gang members. 

On August 7, 2014, the BIA adopted and affirmed the IJ’s decision, specifically 

addressing the many arguments that Gilkes had raised on appeal, most of which involved 

procedural matters. The BIA rejected Gilkes’ arguments that collateral estoppel and res 

judicata prevented DHS from issuing a second NTA or from adding a new charge of 

removability. The BIA then agreed that the IJ had properly determined that the records 

of Gilkes’ conviction under N.J. Stat. Ann. § 2C:39-4a were properly authenticated 

within the meaning of 8 C.F.R. § 1003.41. The BIA also agreed that Gilkes’ conviction 
6

constituted a crime of violence and was thus an aggravated felony. The BIA rejected 

Gilkes’ remaining arguments, and affirmed the IJ’s determination that Gilkes did not 

establish his eligibility for protection under the CAT.

Gilkes has now filed a petition for review, which the Government opposes and 

seeks to dismiss for lack of jurisdiction. 

II. 

A. Jurisdiction

We have jurisdiction to review final orders of the BIA pursuant to 8 U.S.C. § 

1252. The Government correctly contends that, with the exception of constitutional 

claims and questions of law, we lack jurisdiction over Gilkes’ petition for review because 

he was found to be removable as an aggravated felon. See 8 U.S.C. § 1252(a)(2)(C), (D). 

However, the Government incorrectly contends that Gilkes has not raised any questions 

of law or constitutional issues. 

Gilkes challenges, among other things, the determination that his conviction 

constitutes an aggravated felony, as well as the application of res judicata and collateral 

estoppel to his case. These issues are questions of law over which the Court has 

jurisdiction. See Restrepo v. Att’y Gen., 617 F.3d 787, 790 (3d Cir. 2010) (aggravated 

felony); Jean Alexander Cosmetics, Inc. v. L’Oreal USA, Inc., 458 F.3d 244, 248 (3d Cir. 

2006) (res judicata); Cospito v. Att’y Gen., 539 F.3d 166, 171 (3d Cir. 2008) (per curiam) 
7

(collateral estoppel).1 Accordingly, the Government’s motion to dismiss is denied.

B. Res Judicata and Collateral Estoppel

Many of Gilkes’ claims concern the BIA’s rejection of his arguments as to the 

applicability of res judicata and collateral estoppel. Res judicata, or claim preclusion, 

applies where the party invoking it establishes: “(1) a final judgment on the merits in a 

prior suit involving (2) the same parties . . . and (3) a subsequent suit based on the same 

cause of action.” Duhaney v. Att’y Gen., 621 F.3d 340, 347 (3d Cir. 2010) (quotation 

marks omitted). Res judicata “bars not only claims that were brought . . . , but also 

claims that could have been brought.” Id. Collateral estoppel, or issue preclusion, 

applies where “(1) the identical issue was previously adjudicated; (2) the issue was 

actually litigated; (3) the previous determination was necessary to the decision; and (4) 

the party being precluded from relitigating the issue was fully represented in the prior 

action.” Cospito, 539 F.3d at 171 (quotation marks omitted). Although Gilkes correctly 

states that those doctrines do apply to agency decisions, see Mayorga v. Att’y Gen., 757 

F.3d 126, 131 n.10 (3d Cir. 2014), they do not apply in his case. 

Gilkes asserts that res judicata and collateral estoppel precluded DHS from issuing 

the second NTA. The first NTA was dismissed without prejudice by the IJ after it was 

determined to be “improvidently issued” because it incorrectly identified Gilkes as being 

 

1 A constitutional or legal claim must be “colorable” to trigger this Court’s jurisdiction. 

See Pareja v. Att’y Gen., 615 F.3d 180, 186 (3d Cir. 2010). Although Gilkes’ claims 

ultimately lack sufficient merit, they meet this threshold. 
8

in the United States without legal status. See 8 C.F.R. § 1239.2(c) (providing for 

dismissal of NTA as improvidently issued, and stating that such a dismissal is without 

prejudice to the alien or DHS). Dismissal of the first NTA without prejudice did not 

constitute a “final adjudication on the merits” as required to trigger res judicata. Cf.

Venuto v. Witco Corp., 117 F.3d 754, 759-61 (3d Cir. 1997) (holding that newly filed 

claims were not barred by res judicata where the dismissal of the previous action without 

prejudice was not “inadvertent”); see also Aguilar-Aguilar v. Napolitano, 700 F.3d 1238, 

1243 (10th Cir. 2012) (explaining that the IJ’s grant of DHS’s motion to terminate 

removal proceedings did not constitute a final order of removal). Further, collateral 

estoppel did not preclude the issuance of the second NTA, as the only issue that was 

decided in the first proceeding was whether Gilkes was in the United States without legal 

status. 

Gilkes also asserts that res judicata and collateral estoppel prohibited DHS from 

using his judgment of conviction and the indictment to prove his conviction under N.J. 

Stat. Ann. § 2C:39-4a (Factual Allegation 7) because that evidence had already been 

presented in an attempt to prove Factual Allegations 5 and 6. The IJ correctly explained 

that the argument was meritless because she “did not re-adjudicate an issue it had already 

decided but rather adjudicated the new issue of whether DHS could meet its burden to

prove the truthfulness of factual allegation 7 based on the new evidence at Exhibit 5.”
9

(IJ Op. 8.)2

Gilkes’ argument that res judicata prohibited DHS from lodging an additional 

charge of removability in the Form I-261 also fails. The regulations permit DHS to lodge 

additional charges at any time during the removal proceedings, see 8 C.F.R. § 1240.10(e), 

as “there is no requirement that the DHS advance every conceivable basis for 

removability in the [NTA].” Park v. Att’y Gen., 472 F.3d 66, 73 (3d Cir. 2006) 

(quotation marks omitted).

C. Aggravated Felony

Gilkes asserts that his conviction under N.J. Stat. Ann. § 2C:39-4a is not an 

aggravated felony because it is not a crime of violence. The BIA determined that, under 

18 U.S.C. § 16(b), a “crime of violence” is an offense 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.” (BIA Op. 5 (quoting 18 U.S.C. § 16(b).) It also 

explained that, to sustain a conviction under N.J. Stat. Ann. § 2C:39-4a,

the defendant must possess a firearm and intend to use it 

unlawfully against the person or property of another. As 

such, [Gilkes’] conviction necessarily involved an intent to 

use the firearm in his possession. We conclude that in the 

ordinary course of committing the offense, there is a 

substantial risk that violent physical force will be used, where 

an individual intends to use a firearm in his possession for an 

 

2 Gilkes also asserts that the judgment of conviction and the indictment were not properly 

authenticated the second time they were submitted by DHS. However, for the reasons 

explained by the IJ and BIA, this claim lacks merit. (See IJ Op. 7-9; BIA Op. 3-4.) 
10

unlawful purpose. 

(Id. (citation omitted).)

The statute under which Gilkes was convicted provides that “[a]ny person who has 

in his possession any firearm with a purpose to use it unlawfully against the person or 

property of another is guilty of a crime of the second degree.” N.J. Stat. Ann. § 2C:39-

4a. It clearly does not cover non-intentional conduct, see State v. Villar, 696 A.2d 674, 

677 (N.J. 1997), and the BIA properly concluded that, “where an individual intends to 

use a firearm in his possession for an unlawful purpose,” “there is a substantial risk that 

violent physical force will be used.” (BIA Op. 5.) See Henry v. Bureau of Immig. & 

Customs Enforcement, 493 F.3d 303, 307 (3d Cir. 2007) (holding that the New York 

crime of possessing a weapon “with intent to use the same unlawfully against another” 

constitutes a § 16(b) “crime of violence” because it involves “a substantial risk that the 

actor will intentionally use physical force in committing his crime”). Accordingly, the 

BIA did not err by determining that Gilkes’ conviction constituted an aggravated felony. 

D. Due Process

Gilkes claims that his proceedings violated due process for several reasons. To 

succeed on his claims, Gilkes must show “(1) that he was prevented from reasonably 

presenting his case and (2) that substantial prejudice resulted.” Fadiga v. Att’y Gen., 488 

F.3d 142, 155 (3d Cir. 2007) (internal quotation marks omitted). Further, due process 

guarantees “factfinding based on a record produced before the decisionmaker and 
11

disclosed to [the alien],” the right to “make arguments on [the alien’s] own behalf,” and 

the “right to an individualized determination of [the alien’s] interests.” Kamara v. Att’y 

Gen., 420 F.3d 202, 211 (3d Cir. 2005) (quotation marks omitted). 

The IJ provided Gilkes every opportunity to litigate his claims and objections, 

granting several of his motions. And despite Gilkes’ arguments, there is nothing in the 

record that reflects bias or improper conduct so as to support the conclusion that the IJ 

abandoned her role as a neutral fact-finder. See Wang v. Att’y Gen., 423 F.3d 260, 267-

70 (3d Cir. 2005). Further, that Gilkes disagreed with the BIA’s and IJ’s decisions does 

not equate to a due process violation. 

Neither does Gilkes succeed on his argument that that the BIA’s review violated 

his due process rights. The BIA engaged in an in-depth analysis of Gilkes’ arguments. It 

applied the proper standards of review and repeatedly cited to specific evidence and the 

IJ’s analysis. See 8 C.F.R. § 1003.1(d)(3) (setting forth BIA’s standards of review); 

Abdulai v. Ashcroft, 239 F.3d 542, 549-50 (3d Cir. 2001) (setting forth due process 

requirements). 

E. Application for CAT Relief

Finally, Gilkes asserts that the IJ erred by determining that his evidence was 

insufficient to establish his claim for CAT relief. As noted above, because Gilkes was 

found to be removable as an aggravated felon, we review only constitutional claims and 

questions of law, including “issues of application of law to fact, where the facts are 
12

undisputed and not the subject of challenge.” Kamara, 420 F.3d at 211 (quotation marks 

omitted). Here, while Gilkes alleges that the IJ failed to properly consider the evidence 

he submitted, most of his arguments challenge the determination that he is not likely to be 

tortured upon his return to Guyana—a factual finding over which we lack jurisdiction, as 

it does not implicate the legal issue of whether the potential mistreatment rises to the 

level of torture. See Kaplun v. Att’y Gen., 603 F.3d 260, 271-72 (3d Cir. 2010). 

However, to the extent that Gilkes does present a legal question, the IJ and BIA did not 

err in denying his application for relief, as there is no indication that the BIA or IJ 

improperly applied the law to the facts in the record. See Kamara, 420 F.3d at 211.

We therefore deny the petition for review.