2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-5-2011

Marlon Palmer v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-3290

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NOT PRECEDENTIAL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 
2

(“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 
3

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.
4

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,2Palmer 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)). 
5

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).