                                                   NOT PRECEDENTIAL
                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 09-3290
                                   _____________

                         MARLON GERARDO PALMER
                 a/k/a MARLON GERARDO PALMER-SAMPSON,

                                                Petitioner,
                                          v.

                ATTORNEY GENERAL OF THE UNITED STATES,

                                             Respondent.
                                  _______________

                      On Petition for Review of an Order of the
                        United States Department of Justice
                           Board of Immigration Appeals
                               (BIA 1:A017-556-268)
                   Immigration Judge: Honorable Walter A. Durling
                                 _______________

                     Submitted Under Third Circuit LAR 34.1(a)
                                 February 9, 2011

          Before: JORDAN, GREENAWAY, JR. and WEIS, Circuit Judges.

                                (Filed: April 5, 2011)
                                  _______________

                             OPINION OF THE COURT
                                 _______________

JORDAN, Circuit Judge.

      Marlon Palmer petitions this Court to review a decision by the Board of

Immigration Appeals (“BIA” or “Board”) affirming the decision of an Immigration Judge
(“IJ”) denying his applications for a waiver of deportation under Immigration and

Naturalization Act (“INA”) § 212(c). Palmer also asserts that the BIA erred by

dismissing his claim that his former counsel provided him ineffective assistance. For the

reasons discussed below, we will deny the petition for review.

I.     Background

       Palmer is a native of Costa Rica and was admitted to the United States as a lawful

permanent resident in December of 1967. On April 1, 1996, Palmer made a threatening

phone call to a Pennsylvania judge who had incarcerated Palmer for failing to pay certain

fines. Palmer was subsequently arrested, tried, and convicted for making terroristic

threats, harassment, and retaliation for past official action. On February 5, 1997, he was

sentenced to a period of probation for the threats and harassment convictions and a period

of incarceration for the retaliation conviction. On December 17, 2002, Palmer was

resentenced to a period of one to five years’ incarceration with a credit of sixty-nine days

served for violating the conditions of his probation related to his terroristic threats

conviction and to a period of sixty-nine days to one year for violating the conditions of

his probation related to his harassment conviction. Palmer was released from jail on

October 10, 2008, and subsequently charged with removability pursuant to INA

§ 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated

felony.

       On March 11, 2009, an IJ found Palmer to be removable after holding that his

terroristic threats conviction under Pennsylvania law constituted a conviction for an

aggravated felony. Applying the law in effect at the time of Palmer’s arrest, the IJ further

                                               2
held that Palmer was ineligible for a waiver of deportability under INA § 212(c) since he

was incarcerated for at least five years as a result of his terroristic threats conviction.

Palmer appealed the IJ’s decision to the BIA. He argued that he was prejudiced by

ineffective assistance of counsel and that he was eligible for § 212(c) relief because it

was error to count the time he spent in jail for violating probation as time he was

incarcerated for his terroristic threats conviction.1 The Board dismissed his appeal. It

held that Palmer failed to meet his burden on his claim of ineffective assistance of

counsel, and it agreed with the IJ that Palmer had served at least five years’ incarceration

as a result of his terroristic threats conviction due to his resentencing for violating his

probation.

           Palmer’s timely petition for review is now before us.

II.        Jurisdiction and Standard of Review

           We have jurisdiction to review the final decision of the BIA under 8 U.S.C.

§ 1252(a)(2)(D). We must sustain the BIA’s decision if it is supported by substantial

evidence. Jarbough v. Att’y Gen. of the U.S., 483 F.3d 184, 191-92 (3d Cir. 2007). We

look to the decision and reasoning of the IJ, to the extent the BIA deferred to or adopted

it; otherwise, we look to the decision of the BIA. See Chavarria v. Gonzalez, 446 F.3d

508, 515 (3d Cir. 2006); Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir. 2005). The BIA’s

decision “must be upheld unless the evidence not only supports a contrary conclusion, but

compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001).



      1
          Palmer did not challenge his removability on appeal.

                                                3
III.   Discussion

       The record does not compel us to overturn the BIA’s dismissal of Palmer’s appeal.

Palmer’s conviction for making terroristic threats constitutes a conviction for an

aggravated felony under the INA. See INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F)

(defining an aggravated felony to include “a crime of violence … for which the term of

imprisonment [is] at least one year”); Bovkun v. Ashcroft, 283 F.3d 166, 169-70 (3d Cir.

2002) (holding that, under Pennsylvania law, a terroristic threats violation is a crime of

violence for immigration purposes). Therefore, Palmer is removable unless he qualifies

for a waiver under former § 212(c). INA § 237(a)(2)(A)(iii), 8 U.S.C.

§ 1227(a)(2)(A)(iii). Under the version of § 212(c) that was in force on the day of

Palmer’s arrest,2 Palmer would not qualify for a waiver if he was convicted of an

aggravated felony and served a term of imprisonment of five years or greater. INA §

212(c), 8 U.S.C. § 1182(c) (effective until April 24, 1996) (subsequently amended)

(stating that waiver is unavailable “to an alien who has been convicted of one or more

aggravated felonies and has served for such felony or felonies a term of imprisonment of

at least 5 years”). Substantial evidence in the record before us supports the BIA’s

conclusion that Palmer served at least five years in jail for violating the terms of his



   2
     We reference the date of Palmer’s arrest only to demonstrate that even under the
more forgiving version of § 212(c) in effect on the date of Palmer’s first interaction with
the justice system with regard to his terroristic threats conviction, Palmer would not
qualify for a waiver of deportation. We do not reach or comment on whether changes to
§ 212(c) that occurred after Palmer’s arrest or conviction may apply to him. See Atkinson
v. Att’y Gen., 479 F.3d 222 (3d. Cir. 2007) (discussing retroactivity of amendments to
§ 212(c)).

                                              4
probation relating to his terroristic threats conviction.3 That five-year period of

incarceration properly relates back to Palmer’s original terroristic threats conviction. See

Johnson v. United States, 529 U.S. 694, 700-01 (2000) (holding that penalties associated

with revocation of parole are attributable to the original conviction). Therefore, Palmer

would not have qualified for a waiver under former § 212(c).4

IV.       Conclusion

          For the foregoing reasons, we will deny Palmer’s petition for review.




      3
     Palmer was incarcerated from the day he was resentenced for his probation
violation, December 17, 2002, until October 10, 2008. Before he was resentenced for his
probation violation, Palmer had served sixty-nine days in jail – a time which was credited
against his term of imprisonment for violating his probation for his terroristic threats
conviction. That time of pre-sentencing incarceration is properly counted towards the
term Palmer served for his aggravated felony. See Moreno-Cebrero v. Gonzales, 485
F.3d 395, 398-400 (7th Cir. 2007) (time spent in pre-trial detention counts toward the
five-year incarceration term under § 212(c)); Spina v. Dep’t of Homeland Sec., 470 F.3d
116, 127-29 (2d Cir. 2006) (same). Therefore, Palmer served a total of six years in jail
for violating the terms of his probation, five years of which is attributable to his violation
of the terms of his probation relating to his terroristic threats conviction.
      4
     Because our conclusion regarding Palmer’s failure to qualify for a waiver under
former § 212(c) is dispositive, we do not reach the other issues raised by Palmer on
appeal. See Georgine v. Amchem Products, Inc., 83 F.3d 610, 623 (3d Cir. 1996)
(holding it prudent not to decide issues unnecessary to the disposition of a case).

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