07-2131 DAMION ANTHONY DERRICK WILKS a/k/a Damion Rivers v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 06-4653 & 07-2131
DAMION ANTHONY DERRICK WILKS
a/k/a Damion Rivers,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petitions for Review of the Orders of the
Board of Immigration Appeals
BIA No. A76-575-118
(U.S. Immigration Judge: Honorable Walter Durling)
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 2, 2008
Before: SCIRICA, Chief Judge, CHAGARES and ALDISERT, Circuit Judges
(Filed April 15, 2008 )
OPINION OF THE COURT
PER CURIAM.

-- 1 of 8 --

It is not clear whether Wilks challenged or the IJ made any findings regarding the1
firearm conviction.
2
Damion Anthony Derrick Wilks petitions for review of two orders of the Board of
Immigration Appeals (“BIA”). For the reasons below, we will deny the petition for
review in No. 06-4653, grant the petition for review in No. 07-2131, and remand the
matter to the BIA.
Wilks, a citizen of Jamaica, entered the United States as a visitor in 1993 and
adjusted his status to that of a lawful permanent resident in 1997. In March 2005, he
pleaded guilty to carrying a firearm without a license. In August 2005, Wilks pleaded
guilty to aggravated assault and was sentenced to, inter alia, six to twelve months of
house arrest. On May 3, 2006, he was charged as removable as an aggravated felon and
for the firearm offense.
Wilks argued that his aggravated assault conviction was not an aggravated felony
because it was not a crime of violence and he was not imprisoned for at least a year on the
charge. The Immigration Judge (“IJ”) disagreed and sustained the ground for removal.1
The IJ concluded that Wilks was ineligible for any discretionary relief based on the
aggravated felony and ordered Wilks removed to Jamaica. Wilks appealed. The BIA
agreed with the IJ that the conviction was an aggravated felony and dismissed the appeal.
Wilks filed a timely petition for review which was docketed at No. 06-4653.

-- 2 of 8 --

In his amended PCRA petition, Wilks requested that his conviction and sentence be2
vacated, his guilty plea withdrawn, and he be given a new trial. He alleged that his
counsel had not informed him of the immigration consequences of his guilty plea.
According to the state court’s electronic docket, a notice of intent to dismiss under Rule
907 of the Pennsylvania Rules of Criminal Procedure was sent on December 19, 2006.
There is no indication on the docket that either the Commonwealth or Wilks’s trial
attorney was asked to respond to the allegations of counsel’s ineffectiveness. On
February 2, 2007, the PCRA court entered a brief order granting the petition and
modifying the sentence to be no more than 364 days. It is not clear whether Wilks was
still serving the house arrest portion of the sentence at the time it was reduced.
3
Wilks then filed a petition pursuant to Pennsylvania’s Post-Conviction Relief Act
(“PCRA”) challenging the aggravated assault conviction. While it was pending, he filed2
a motion to reopen which the BIA denied. After the state court granted the petition and
modified his sentence to be no more than 364 days, Wilks filed another motion to reopen
with the BIA. He argued that the sentence for the aggravated assault charge was now
below the one-year time period needed for the conviction to constitute an aggravated
felony. The BIA denied the motion as untimely and number-barred. The BIA also
refused to reopen the proceedings sua sponte. Wilks filed a timely petition for review,
which was docketed at No. 07-2131 and consolidated with the petition at No. 06-4653.
Whether Wilks’s conviction constitutes an aggravated felony
We first review the BIA’s determination that the aggravated assault conviction is
an aggravated felony. We have jurisdiction to consider this question of law and exercise
plenary review over the BIA’s conclusion. Garcia v. Attorney General, 462 F.3d 287,
291 (3d Cir. 2006). The term aggravated felony includes a crime of violence, as defined

-- 3 of 8 --

While Wilks’s charge was originally designated “F1,” indicating a felony in the first-3
degree, it was changed to “F2,” a felony in the second degree.
4
in 18 U.S.C. § 16, for which the term of imprisonment is at least one year. 8 U.S.C. §
1101(a)(43)(F). A crime of violence is defined under §16 as
(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.
To determine whether a conviction is a crime of violence, we use a categorical approach
and examine the elements of the offense rather than the specific facts of the crime.
Leocal v. Ashcroft, 543 U.S. 1, 7 (2004). We have held that a mens rea of recklessness is
not sufficient to satisfy § 16. Popal v. Gonzales, 416 F.3d 249, 254 (3d Cir. 2005); Tran
v. Gonzales, 414 F.3d 464 (3d Cir. 2005).
Wilks argues that some subsections of Pennsylvania’s aggravated assault statute,
18 Pa.C.S. §2702, only require the mens rea of recklessness. The BIA observed that
Wilks was charged with violating one of the first four subsections and that he pleaded
guilty to a felony in the second degree. Because the first two subsections of § 2702 are3
graded first-degree felonies, the BIA determined that Wilks’s conviction fell within either
the third or fourth subsections of § 2702. Because both subsections require attempting to
or intentionally or knowingly causing bodily injury, the BIA concluded that Wilks’s
conviction was a crime of violence under 18 U.S.C. § 16.

-- 4 of 8 --

While the details are not relevant to our analysis, we note that the record does not4
contain many details of Wilks’s crime. On the back of the judgment and sentencing
order, a victim is listed as “Sgt. Frysinger.” C.A.R. at 299. Thus, it appears that Wilks’s
aggravated assault conviction involved § 2702(a)(3) which includes attempting to cause
or intentionally or knowingly causing bodily injury to an officer in the performance of
duty. Moreover, in her affidavit in support of Wilks’s PCRA petition, his fiancee noted
that “I was very aware of Damion’s position that he did not commit any crime against the
officer.” C.A.R. at 49.
5
While Wilks does not specifically challenge any of the BIA’s findings regarding
his conviction, he argues that its examination of the records of his conviction went
beyond that which we allowed in Popal. However, where a statute is phrased
disjunctively, we are not barred from looking at the record of conviction to determine
which subsection was violated. Garcia, 462 F.3d at 292. Here, in any event, the BIA did
not look at the specific facts of Wilks’s crime, it looked at the judgment and sentencing4
order to determine the specific subsection of § 2702 under which the conviction fell. We
agree with the BIA that the aggravated assault conviction was a crime of violence, as the
provisions of § 2702 under which Wilks must have been convicted require a mens rea
greater than recklessness. Thus, on the record before it, the BIA correctly determined that
Wilks’s conviction constituted an aggravated felony, and we will deny the petition for
review in No. 06-4653.
Whether we have jurisdiction over the BIA’s denial of Wilks’s second motion to reopen
We now turn to the petition for review of the BIA’s order denying Wilks’s second
motion to reopen. Pursuant to 8 C.F.R. § 1003.2(a), the BIA may sua sponte reopen a

-- 5 of 8 --

Wilks does not argue the applicability of any of the regulatory exceptions to the time5
and numerical limitations on motions to reopen. See 8 C.F.R. § 1003.2(c)(3).
In Pickering, the BIA set forth guidelines for determining whether an alien was still6
convicted for immigration purposes after a court had vacated the alien’s conviction.
Thus, if a court with jurisdiction vacates a conviction based on a defect in the
underlying criminal proceedings, the respondent no longer has a “conviction”
within the meaning of section 101(a)(48)(A). If, however, a court vacates a
conviction for reasons unrelated to the merits of the underlying criminal
proceedings, the respondent remains “convicted” for immigration purposes.
Pickering, 23 I. & N. Dec. at 624. In Pinho v. Gonzales, 432 F.3d 193 (3d Cir. 2005), we
(continued...)
6
case at any time. A petitioner must show an exceptional situation to make a prima facie
case for sua sponte reopening. Cruz v. Gonzales, 452 F.3d 240, 249 (3d Cir. 2006).
However, the BIA has the discretion to deny a motion to reopen even if a prima facie case
is made. Id. Wilks argues that the BIA should have used its authority to sua sponte
reopen the proceedings after his sentence was modified. He contends that his aggravated5
assault conviction can not be an aggravated felony because the sentence was reduced to
less than a year of imprisonment. The government argues that because the BIA’s
discretion to sua sponte reopen proceedings is unfettered, we lack jurisdiction to review
the decision. Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003).
In Cruz, the petitioner filed a motion to reopen after his qualifying conviction had
been vacated. The BIA denied the motion to reopen as untimely and found that sua
sponte reopening was not warranted for any reason. We noted that the BIA had not done
an analysis pursuant to In re Pickering, 23 I. & N. Dec. 621, 624 (BIA 2003), to
determine whether Cruz was still “convicted” for immigration purposes. We observed6

-- 6 of 8 --

(...continued)6
determined that this distinction was reasonable.
7
that the BIA often overlooked the timeliness of a motion to reopen when a conviction had
been vacated and was argued to be invalid under Pickering. Cruz, 452 F.3d at 246.
Because it was unclear whether the BIA’s decision not to sua sponte reopen the
proceedings involved its unfettered discretion, we remanded the matter to the BIA for
explanation. We stated that
[W]e cannot tell from its opinion whether the BIA concluded that Cruz made out a
prima facie case for sua sponte relief based on his vacated conviction, but
nevertheless exercised its unreviewable discretion under 8 C.F.R. § 1003.2(a) to
decline to reopen, or whether it believed that Cruz had not shown an “exceptional
situation,” and was therefore ineligible because he failed to establish a prima facie
case for sua sponte relief. In the latter instance, we would have jurisdiction to
review the BIA’s decision.
Cruz, 452 F.3d at 249.
Here, the BIA noted that Wilks requested sua sponte reopening. It stated that sua
sponte reopening was allowed in exceptional situations not present in Wilks’s case. Thus,
we have jurisdiction to review the BIA’s decision because the BIA did not exercise its
unfettered discretion in refusing to sua sponte reopen but rather concluded that Wilks had
not shown a prima facie case of an exceptional situation. See id.
The government argues that the BIA recognized that Wilks was prima facie
eligible for relief but denied the motion in its discretion. While the BIA cited its own
precedent that a sentence modification should be recognized as valid, it explicitly stated

-- 7 of 8 --

8
that an exceptional situation was not present in Wilks’s case. The government also
attempts to distinguish Cruz and Pickering by arguing that those cases involved a vacated
conviction as opposed to the vacated sentence here. However, while that distinction may
impact whether Wilks is still an aggravated felon, it is not relevant to the issue of whether
the BIA refused to sua sponte reopen based on its unfettered discretion.
If Wilks is still an aggravated felon, our jurisdiction to review the BIA’s denial of
his motion to reopen would be limited to constitutional claims or questions of law. 8
U.S.C. § 1252(a)(2)(C). However, we do not have the benefit of the BIA’s analysis on
this issue. While the BIA noted that the sentence had been reduced, it did not determine
whether Wilks is still convicted of an aggravated felony. In Cruz, we concluded that the
BIA should not have ignored this question. Cruz, 452 F.3d at 242. We noted that the
BIA has routinely considered a vacated conviction to be an exceptional situation
supporting sua sponte reopening. Id. at 242. It is for the BIA to determine in the first
instance whether the modification of Wilks’s sentence impacts his status as an aggravated
felon.
For the above reasons, we will grant the petition in No. 07-2131 and remand the
matter for the BIA to determine in the first instance whether Wilks’s aggravated assault
conviction still constitutes an aggravated felony.

-- 8 of 8 --