O’CEALLEAGH

Cite as 23 I&N Dec. 976 (BIA 2006) Interim Decision #3538

In re Sean O’CEALLEAGH, Respondent

File A77 288 177 - San Pedro

Decided August 30, 2006

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) In order for an offense to qualify for the “purely political offense” exception to the

ground of inadmissibility under section 212(a)(2)(A)(i)(I) of the Immigration and

Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2000), based on an alien’s conviction for

a crime involving moral turpitude, the offense must be completely or totally “political.”

(2) The respondent is inadmissible where he properly conceded that his offense,

substantively regarded, was not “purely political,” and where there was substantial

evidence that the offense was not fabricated or trumped-up and therefore did not qualify

from a procedural perspective as a “purely political offense,” because the circumstances

surrounding his conviction in Northern Ireland for aiding and abetting the murder of two

British corporals reflected a sincere effort to prosecute real lawbreakers.

FOR RESPONDENT: James M. Byrne, Esquire, San Francisco, California

FOR THE DEPARTMENT OF HOMELAND SECURITY: Richard G. Vinet, Assistant

Chief Counsel

BEFORE: Board Panel: OSUNA, Acting Vice Chairman; FILPPU and PAULEY, Board

Members.

PAULEY, Board Member:

In a decision dated April 23, 2004, an Immigration Judge found that the

respondent was not inadmissible under section 212(a)(2)(A)(i)(I) of the

Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2000), for

having been convicted of a crime involving moral turpitude (“CIMT”), and

admitted him to the United States as a returning lawful permanent resident.

The Immigration Judge determined that the respondent was not inadmissible

based on her finding that his conviction was for a “purely political offense”

and was therefore expressly excepted from section 212(a)(2)(A)(i)(I) of the

Act. The Department of Homeland Security (“DHS”) has appealed from that

decision. The appeal will be sustained and the proceedings will be remanded.

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I. FACTUAL AND PROCEDURAL HISTORY

The respondent, a native of the United Kingdom and citizen of Ireland, was

convicted in 1990 in Northern Ireland of aiding and abetting the murders of

two British corporals in 1988, causing grievous bodily harm, and false

imprisonment.1 The conviction, rendered by a court that had been established

to try political-type crimes in Northern Ireland (the Diplock Courts, which

were conducted without a jury), arose out of the events of March 19, 1988,

when the two British corporals were killed in Belfast, Northern Ireland. The

incident occurred during the funeral of another murder victim, who had

himself been killed by a loyalist gunman at an Irish Republican Army (“IRA”)

funeral.

According to the trial court’s written decision,2 a car being driven by the

British corporals had approached the funeral cortege after a number of

marshals had tried to wave the driver down. The driver then attempted to pass

the procession by mounting a footpath at the side of the road. When blocked

by the cortege and its crowds, the vehicle attempted to escape by turning into

a service road but then reversed at a fairly fast speed. By then the car had

attracted the attention of some of those in the crowd, and several vehicles

blocked its exit. A group of youths attacked the car and, after breaking the

windows, pulled the occupants out of the vehicle. There was a brief respite

when the crowd saw that the occupants were armed, but the crowd soon

resumed its attack. Each soldier, surrounded by persons striking him, was

dragged into a nearby park, stripped of most of his clothing, and further

assaulted. After being savagely beaten, the corporals were forced into a taxi

and driven to an area where they were forced out of the car. After a final

struggle, a gunman shot each officer and fled.

When questioned more than 10 months later, the respondent (who was not

shown to be a member of the IRA) told the police that although he had been

present at the funeral and had seen the initial attack on the car, he had not

taken part. The trial court, however, found that the evidence showed that the

respondent had been “close to the car when the mob [was] breaking into it and

dragging out the soldiers and beating them.” The court also found that the

respondent was thereafter “an active participant in the onslaught,” was among

the group that violently led one of the soldiers to the park, “play[ed] at least

1

The DHS charged only the aiding and abetting offense as a CIMT ground of

inadmissibility.

2

Our recitation of facts as to the events of March 19, 1988, is drawn from the criminal

court’s written decision, which was made part of the record by the Immigration Judge.

Because this document is a publicly available source, we have determined that our

discussion of its contents would not be in conflict with the Immigration Judge’s protective

order dated April 22, 2004. See 8 C.F.R. § 1003.46 (2006).

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a supporting role in imprisoning and assaulting” the British soldiers,

“appear[ed] to take part in carrying” one of them, and was “present when the

taxi left with the soldiers and their captors on board.” The respondent was not

accused of accompanying the doomed officers during the final taxi ride or of

participating in the actual murders. He was convicted based on a theory of

“common purpose,” which his attorney failed to challenge.

For his role in the incident, the then 19-year-old respondent was sentenced

to life in prison. The respondent appealed his conviction, but his appeal was

dismissed on July 5, 1991. The respondent served more than 8 years in a

prison designated for political prisoners before his release pursuant to the

Good Friday Accord on April 10, 1998. The Good Friday Accord had

followed an agreement between the British Government and the IRA,

pursuant to which the British Government had agreed to the early release of

certain prisoners once the IRA called a cease-fire.

In 2001 the respondent secured lawful permanent resident status in the

United States after filing an application for adjustment of status that disclosed

his conviction for a CIMT. On February 25, 2004, the respondent applied for

admission to the United States as a returning resident alien. The DHS placed

the respondent in removal proceedings, charging him with inadmissibility

under section 212(a)(2)(A)(i)(I) of the Act. That section makes inadmissible

“any alien convicted of, or who admits having committed, or who admits

committing acts which constitute the essential elements of . . . a crime

involving moral turpitude (other than a purely political offense).” The

Immigration Judge’s finding that the respondent’s conviction was for a

“purely political offense” was based on her determination that he was

prosecuted, incarcerated, and eventually released as a political criminal. The

DHS challenges that finding on appeal.

II. LEGAL FRAMEWORK

This is a case of first impression, in that none of our published decisions has

considered the meaning of the term “purely political offense” under

section 212(a)(2)(A)(i)(I) of the Act.3 Before addressing the relatively narrow

issues in this case, we will begin by briefly setting the stage in terms of

3

Nor have we defined the term in the other context in which it appears in the Act:

section 101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F) (2000) (describing certain

crimes of violence as aggravated felonies). A somewhat similar term, “serious nonpolitical

crime,” though stated in the obverse and lacking the adverb “purely,” serves as a ground of

ineligibility for asylum and withholding of removal. See sections 208(b)(2)(A)(iii),

241(b)(3)(B)(iii) of the Act, 8 U.S.C. §§ 1158(b)(2)(A)(iii), 1231(b)(3)(B)(iii) (2000); see

also McMullen v. INS, 788 F.2d 591 (9th Cir. 1986), overruled on other grounds, Barapind

v. Enomoto, 400 F.3d 744 (9th Cir. 2000).

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exploring the legislative background and apparent origin of the “purely

political offense” provision, the types of “political offenses” that exist, and the

standard we will employ to determine whether the respondent’s crime

qualifies as a “purely political offense.”

A. Origin of the Provision

The current “purely political offense” provision first appeared in section

212(a)(9) of the Immigration and Nationality Act of 1952, Pub. L.

No. 82-414, 66 Stat. 163, 182. It appears to be the successor of virtually

identical language enacted as the second proviso to section 3 of the

Immigration Act of February 5, 1917, 39 Stat. 874 (relating to an “offense

purely political”). That language, which was repealed by the 1952 Act, was

considered by the Central Office of the former Immigration and Naturalization

Service in Matter of K-, 4 I&N Dec. 108 (C.O. 1950). However, although the

language appears to have been in effect in 1941, we did not allude to it in our

decision in Matter of B-, 1 I&N Dec. 47 (BIA, A.G. 1941). In that case, we

held, without regard to an exception for “offenses purely political,” that

section 3 of the Act of 1917, which authorized the exclusion of aliens found

guilty of committing a CIMT, would not be applied to a German Jew who had

been convicted under the Nazi regime based on trumped-up fraud charges,

because the “conviction occurred primarily because of political

considerations, to wit: the fact that the defendant was a Jew.”4 Id. at 50.

4

At the time of the passage of the Immigration and Nationality Act of 1952, the House of

Representatives Managers stated:

In order to remove any fear that under the provisions of the bill certain religious, racial,

or political persecutees would be arbitrarily excluded from admission to or deported

from the United States, the conferees desire to make a few clarifying statements.

Regarding the sections of the bill which provide for the exclusion of aliens convicted

of two or more offenses, other than purely political offenses, it is the opinion of the

conferees that those convictions which were obviously based on trumped-up charges or

predicated upon repressive measures against racial, religious or political minorities,

should be regarded as purely political in nature and should not result in the exclusion

of the alien.

Conf. Rep. No. 82-2096 (1952), reprinted in 1952 U.S.C.C.A.N. 1753, 1754, 1952 WL

3083. We read the statement as likely reflecting an awareness of Matter of B-, supra, and

Matter of K-, supra, and as an express reassurance that persons who are the subjects of

political prosecutions should be included in the protected category.

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B. Political Offenses

There appear to be essentially three types of “political” crimes that have

been identified, primarily in the extradition context. One sort, which the

respondent essentially contends is applicable to his conviction, involves

baseless, trumped-up, or fabricated charges. There is no dispute among the

parties that a fabricated or trumped-up charge may be a “purely political

offense,” as indeed we held in Matter of B-, supra.5 A second type of

“political” offense, not involved here, is one that consists of an act or acts

directed against the State, such as treason, sedition, or espionage, that contains

none of the elements of ordinary crimes. The third kind of “political” crime,

again not at issue here and denominated under extradition law as a “relative”

political offense, is one in which a common offense such as murder, assault,

or theft is so connected with a political act that the offense is regarded as

“political.” See 31A Am. Jur. 2d Extradition § 44 (2002); see also Quinn v.

Robinson, 783 F.2d 776, 793-94 (9th Cir. 1986). We have no occasion to

explore the extent of portability of extradition principles to the “purely

political offense” language we must apply, except to note the very different

purposes served by extradition and removal or exclusion proceedings.6

5

Department of State regulations also support this interpretation: “The term ‘purely

political offense’, as used in INA 212(a)(2)(A)(i)(I) of the Act, includes offenses that

resulted in convictions obviously based on fabricated charges or predicated upon repressive

measures against racial, religious, or political minorities.” 22 C.F.R. § 40.21(a)(6) (2006).

Our reading is confirmed by the Department of State’s Foreign Affairs Manual, which

provides:

Where there is any indication that the offense for which the alien was convicted was

of a political nature, or prosecution therefor was politically motivated, the consular

officer shall request CA/VO/L/A to make a determination. The imposition of a cruel

or unusual punishment, or of a punishment which is clearly disproportionate to the

offense, as well as cases falling within the provisions of 22 CFR 40.21(a)(6), raise the

question as to whether the conviction was for a purely political reason.

Vol. 9 Foreign Affairs Manual, Subpart C, 22 C.F.R. § 40.21(a), note 10(a) (TL: VISA-46;

Aug. 26, 1991) (Political Offenses).

6

The United States Court of Appeals for the Ninth Circuit, in which this case arises, has

indicated that in determining whether an offense is “political” in nature for immigration

purposes, extradition law may serve as a guide. McMullen v. INS, supra. The same was

found by the Central Office in Matter of K-, supra.

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C. Applicable Standard

As previously observed, the language at issue here has never been the

subject of interpretation by the Board or, to our knowledge, a Federal court.

The question whether an offense is merely “political,” as opposed to “purely

political,” for purposes of eligibility for asylum and withholding of removal

has, however, been considered. We note that in INS v. Aguirre-Aguirre, 526

U.S. 415 (1999), the Supreme Court endorsed the balancing test we set forth

in Matter of McMullen, 19 I&N Dec. 90, 97-99 (BIA 1984), for determining

whether an offense was a “serious nonpolitical crime,” that is, whether the

common-law or criminal character of the acts outweighed its political nature.

But we conclude that this test is not applicable here. The phrase that we

must interpret in this case is “purely political offense,” not “serious

nonpolitical crime.” Unless we are to disregard Congress’s choice to include

the adverb “purely,” we must give that word substantive meaning. See, e.g.,

United States v. Menasche, 348 U.S. 528, 538-39 (1955) (stating that every

clause and word should be given effect, if possible, in interpreting a statute).7

Among the dictionary meanings assigned to the term “pure” are “not

mixed,” “complete,” and “total.” See Webster’s II New College Dictionary

899 (1995). Taking these definitions into consideration, we find that an

offense must be found to be completely or totally “political” in order to

qualify for the CIMT exception. In sum, because of Congress’s use of the

word “purely” in section 212(a)(2)(A)(i)(I), we conclude that a balancing test

is not appropriate in this quite different context.

III. DISCUSSION

The respondent has conceded that his crime, judged from solely a

substantive perspective, was not “purely political,”8 and that the Immigration

Judge relied exclusively on the circumstances surrounding the prosecution and

punishment of the offense to reach her conclusion that the offense

nevertheless fit that description. This concession, if well founded, greatly

simplifies our task, for we need not then examine in depth whether the offense

7

We recognize, as the Supreme Court recently reaffirmed, that this canon of statutory

construction is not a mandate and may not be used to lead to a resulting interpretation that

is at odds with congressional intent. See Scheidler v. National Organization for Women,

Inc., 126 S. Ct. 1264 (2006). But, unlike in that case, we find nothing here to indicate that

the term “purely” should not be given effect, nor any reason not to accord the term its

natural meaning.

8

According to the respondent’s brief, he “is not claiming that the alleged acts for which he

was convicted were purely political, but the conviction was a purely political conviction.”

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would meet a “political offense” test viewed exclusively through a substantive

lens, much less qualify as a “purely political offense.”

We will briefly digress to find that there is good reason for the respondent’s

concession that his crime fails to meet the test enunciated above. The United

States Court of Appeals for the Ninth Circuit has held that “for a criminal act

to be ‘political,’ the individual must have been motivated by political

reasons.” INS v. McMullen, 788 F.2d 591, 597 (9th Cir. 1986), overruled on

other grounds, Barapind v. Enomoto, 400 F.3d 744 (9th Cir. 2000). This sine

qua non aspect of a “political” crime is not present here.

The respondent’s charged crime was aiding and abetting the murder of two

members of a military force that had been perceived by nationalist individuals

as an occupying power in Northern Ireland for the previous two decades. The

crowd of mourners into which the victims lucklessly drove likely viewed the

armed men as provocateurs, or perhaps even as physical threats—not

surprisingly in such a volatile atmosphere so recently after the murders of

several nationalist mourners by a loyalist at just such a funeral. But while the

respondent’s offense certainly took place in a political milieu and may have

been committed in some small part for political reasons, the principal, and

perhaps even sole, motivation appears to have been anger or revenge directed

at the unfortunate British corporals by the funeral attendees, of which the

respondent was one. We thus find that if viewed from the perspective of

assessing whether the crime was purely political as a substantive matter, the

ruling below clearly could not have withstood scrutiny, and that the

respondent’s concession to that effect is therefore well justified.9 Barapind

v. Enomoto, supra.

We come, therefore, to the nub of the case: whether the respondent’s offense

of aiding and abetting the murder of the two British corporals was a fabricated

charge or the equivalent. In this regard, the respondent contends that “it is

quite clear from the findings of facts by the [Immigration Judge] that the

9

Given this conclusion, we need not reach the DHS’s argument that the crime also fails to

meet the substantive “purely political offense” standard on another ground–namely the

Supreme Court’s and Ninth Circuit’s endorsement of our approach in Matter of McMullen,

supra, particularly our exclusion from the political offense category of any crime that “‘is

grossly out of proportion to the political objective or if it involves acts of an atrocious

nature.’” INS v. Aguirre-Aguirre, supra, at 429 (quoting Matter of McMullen, supra, at

97-98).

Likewise, we need not decide the DHS’s further contention that the terms of the current

extradition treaty between the United States and the United Kingdom exclude from the

political offense exception those types of offenses of which the respondent was convicted.

However, we observe that like the Ninth Circuit, we have held that the issues involved in

a deportation hearing differ from those involved in an extradition case, and that resolution

of even a common issue in one proceeding is not binding in the other, because extradition

and deportation proceedings are distinct and separate. See McMullen v. INS, supra, at 596.

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respondent was not involved in the murder,” a conclusion that he asserts is

echoed by many other groups and commentators. Among these he notes the

criticism in a House Concurrent Resolution of the 105th Congress of the

“controversial doctrine of common purpose convicting people such as Sean

Kelly . . . on the premise that they should have anticipated the actions of

others around them.” H.R. Con. Res. 152, 105th Cong., 143 Cong. Rec.

E2368 (1997), 1997 WL 712708. The respondent essentially argues that he

is innocent of aiding and abetting the killings of the two British corporals,

from which it would also follow that any punishment would be

disproportionate, and that his crime was therefore essentially trumped up or

fabricated. Consequently, he contends that if only the manner of prosecution

and punishment are considered, the crime was properly determined by the

Immigration Judge to be a “purely political offense.”

We conclude, however, that the offense was not fabricated. Nor were the

prosecution and conviction purely political, within the meaning of the “purely

political offense” concept. There is no question that the murders of the

victims occurred, and there was evidence that the respondent played a role in

violently leading the soldiers to the park and otherwise participating in their

assault. The degree of the respondent’s involvement in the ultimate crime of

murder may not have satisfied the concept of “aiding and abetting” under

United States law. See 18 U.S.C. § 2 (2000).10 However, such a correlation

is not required for a determination that the offense was not fabricated or

trumped up in the sense that (i) the charging and convicting authority–here the

British Government–lacked a good faith belief that the charges and conviction

were well founded and (ii) the respondent was prosecuted only for political

purposes.

Neither the United Kingdom nor any other country is required to adhere to

the elements of an aiding and abetting offense under our law. And while there

may be some limit to how far a foreign government may go in defining an

offense without rendering permissible a conclusion that the offense is “purely

political,” we find that that limit was not exceeded or even approached in this

case through the use of the concept of “common purpose.” The circumstances

surrounding the respondent’s conviction reflect a sincere effort to identify and

punish those persons genuinely responsible for the deaths of the soldiers. The

use of special provisions associated with the Diplock court system, the

location of the respondent’s confinement, and his release pursuant to the Good

10

See, e.g., Nye & Nissen v. United States, 336 U.S. 613, 619 (1949) (“In order to aid and

abet another to commit a crime it is necessary that a defendant ‘in some sort associate

himself with the venture, that he participate in it as in something that he wishes to bring

about, that he seek by his action to make it succeed.’” (quoting Learned Hand in United

States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938))).

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Friday Accord are, to be sure, relevant factors that favor his claim. Those

factors, however, do not overcome the substantial evidence of a bona fide

effort to prosecute real lawbreakers such that the respondent’s conviction falls

within the exception he invokes.11

IV. CONCLUSION

We conclude that the respondent’s crime was not fabricated and that it

cannot otherwise be considered a “purely political offense” when viewed in

the totality of all relevant circumstances. We will therefore vacate the

Immigration Judge’s decision that the respondent’s conviction falls within the

“purely political offense” exception to section 212(a)(2)(A)(i)(I) of the Act.

Consequently, we find that the respondent is removable as charged, and we

will remand the record for further proceedings.

ORDER: The appeal of the Department of Homeland Security is

sustained.

FURTHER ORDER: The decision of the Immigration Judge is vacated

and the record is remanded for further proceedings consistent with the

foregoing opinion and for the entry of a new decision.

11

We note also the DHS’s point that a number of individuals tried for crimes arising out

of the same episode were acquitted, and that the conviction/acquittal rate for the special

Diplock courts employed in his case was approximately the same as for ordinary criminal

courts functioning in Northern Ireland. Such facts are not consistent with a conclusion that

the British Government was bent on prosecuting and convicting the respondent for purely

political reasons.

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