# O’CEALLEAGH

> Board of Immigration Appeals · July 1, 2006 · 23 I. & N. Dec. 976

URL: https://www.frixlaw.com/law-library/cases/6074440

## Case

- **Court:** Board of Immigration Appeals
- **Decided:** July 1, 2006
- **Citations:** 23 I. & N. Dec. 976
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6074440. Public record. Not legal advice.