Interim Decision #2831

Interim Decision #2831

MATTER OF MCMULLEN

In Deportation Proceedings

A-23054818

Decided by Board October 1, 1980

(1) Unlike asylum, which is discretionary under the Refugee Act of 1980, relief under

section 243(h), as amended by that Act, is mandatory for an eligible alien.

(2) Those cases which hold that applications for withholding of deportation and/or

asylum can be made where persecution by a nongovernmental individual or organization is feared, if a showing is made that the government in power is unwilling or

unable to protect the alien, are as applicable under the Refugee Act of 1980 as they

were under prior law.

(3) The legislative history of the Refugee Act of 1980 indicates that Congress' intent in

substituting "life or freedom would be threatened" for "persecution" in section 248(h)

of the Immigration and Nationality Aat, 8 U.S.C. 1253(h), Was simply to adopt the

United Nations 1951 Convention and 1967 Protocol Relating to the Status of Refugees,

not to broaden the scope of section 243(h).

(4) Newipaper and magazine articles submitted by the respondent regarding conditions

in Ireland and Great Britain, which are of a general nature and which do not relate to

the respondent specifically, will be accorded little evidentiary value, as this evidence is

not probative on the issue of this particular alien being subject to persecution if

deported to Ireland.

5) Evidence submitted by the respondent to establish persecution claim, while showing

the difficulty of controlling terrorism in Ireland, does not show, 1) that the Irish

government would he unable, if necessary, to protect the respondent, a defected

member, from the Provisional Irish Republican Army, or, 2) that the government of

Ireland would persecute him.

(6) Decisions resulting from extradition proceedings are not entitled to res indicate

effect in later proceedings, and Board is thus not bound by United States Magistrate's

determination, in extradition case, that respondent's crimes were political in nature.

CHARGE:

Order: Act of 1952—Sec. 241(a)(1) [8 U.S.C. 1251(a)(1))—Excludable at entry under

sec. 212(a)(19) [8 U.S.C. 1182(a)(19)]—obtained visa or other

documentation by fraud

Sec. 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at entry under

sec. 212(a)(26) [8 U.S.C. 1182(a)(26))—no valid nonimmigrant

visa

ON BEHALF OF SERVICE:

Gerald S. Hurwitz

Appellate Trial Attorney

ON BEHALF OF RESPONDENT:

Michael Maggio, Esquire

Goren & Maggio

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1801 Columbia Road, N.W.

Suite 100

Washington, D.C. 20009

Lynn Sonfield, Esquire

Nancy Howard, Esquire

San Francisco Neighborhood

Legal Assistance Foundation

250 Columbus Avenue, Suite 200

San Francisco, California 44133

By:

Brian H. Simpson

Trial Attorney

Milhollan, Chairman; Maniatis, Applentan, and Maguire, Board Members

In a decision dated January 10, 1980, an immigration judge found the

respondent deportable, but granted his applications for political

asylum and for withholding of deportation. The Immigration and

Naturalization Service appealed. Oral argument was heard before the

Board on June 19, 1980. The appeal will be sustained.

The respondent, 32 years old, was born in Northern Ireland, and

through this place of birth is a citizen of Great Britain. He also claims

Irish citizenship through his grandmother's birth in Northern Ireland

prior to 1921 (Tr. at 57). He last entered the United States on April 29,

1978, as a nonimmigrant visitor, using a passport bearing the name of

Kevin O'Shaughnessy. An Order to Show Cause was issued against

him on May 19, 1978, charging him with deportability under section

241(a)(1) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(1),

as an alien excludable at entry under section 212(a)(19), 8 U.S.C.

1182(a)(19), for having procured a visa by fraud or willful misrepresentation, and as an alien excludable at entry under section

212(a)(26), as a nonimmigrant not in possession of a valid nonimmigrant visa.

At a deportation hearing begun on May 22, 1978, and completed on

October 28, 1979, the respondent admitted the allegations in the Order

to Show Cause, and conceded deportability. He alleged, however, that

he was formerly a member of the Provisional Irish Republican Army

(hereinafter the PIRA), that in 1977 he refused to participate in a

PIRA scheme to kidnap an American for ransom, and that, due to this

refusal, he had been tried by the PIRA, and sentenced to death. He

claims that if he is forced to return to Ireland, he will be killed by the

PIRA, and the Irish government will be unable to prevent it. He also

claims that he would be subject to persecution by the Irish government. The immigration judge did not address the claim of persecution

by the government, but he accepted the claims of persecution by the

PIRA. After some discussion, he found the respondent eligible for

asylum and withholding, and, determining that he could not, under his

interpretation of Matter of Thenar, 14 I&N Dee_ 310 (BIA 1973), deny

Interim Decision #2831

the applications on discretionary grounds, asylum and withholding

were granted. We do not agree that the respondent has established

that the government in Ireland will be unable or unwilling to protect

the respondent from the PIRA. Nor do we believe that the respondent

will suffer harm at the hands of the Irish government itself. The

immigration judge's decision will accordingly be reversed.

An applicant for withholding of deportation under section 243(h) of

the Act, 8 U.S.C. 1253(h), must show that, if deported, he would be

subject to persecution based on his race, religion, nationality, membership in a particular social group, or political opinion. Section 243(h) of

the Act; as amended by section 203(e) of the Refugee Act of 1980. To

meet his burden of proof, an alien must demonstrate a clear

probability that he will be persecuted if returned to his country. Cheng

Kai Fu v. INS, 386 F.2d 750 (2 Cir. 1967, cert. denied 390 U.S. 1003

(1968). Under the Refugee Act, 243(h) relief is Mandatory, not discretionary, once eligibility has been shown, unless an alien comes within

one of the four exclusions now set forth in section 243(h). 1 Similarly, to

qualify for asylum, an alien must show that he would be persecuted for

one or more of the same five reasons mentioned above in describing

section 243(h). See also 8 C.F.R. 208.5 regarding the burden of proof in

asylum cases (effective June 1, 1980). A grant of asylum is discretionary under the Refugee Act, however. See section 101(a)(42) of the Act, 8

U.S.C. 1101(a)(42) (Section 201(a) of the Refugee Act of 1980); section

208 of the Refugee Act... 2

Although in general 243(h) relief and asylum contemplate persecution of an alien by the government in the country to which he is

returnable, the cases have held that a 243(h) claim can under certain

circumstances be made where an alien claims that he will be persecuted not by a foreign government, but by an individual or an

organization. In order to prevail with such a claim, there must be a

showing that the government in power is either unable or unwilling to

Subparagraph (2) of section 243(h) provides that relief under that section shall not

apply to any alien if the Attorney General determines that—

(A) the alien ordered, incited, assisted, or otherwise participated in the persecution

of any person on account of race, religion, nationality, membership in a particular

social group, or political opinion;

(B) the alien, having been convicted by a final judgment of a particularly serious

crime, constitutes a danger to the community of the United States;

(C) there are serious reasons for considering that the alien has committed a serious

nonpolitical crime outside the United States prior to the arrival of the alien in the

United States; or

(14 there are reasonable grounds for regarding the alien as a danger to the security

of the United States.

2 We note that under present regulations the exceptions to 243(h) apply also to

applicants for asylum. See 8 C.F.R. 208.7(f)(1)(iii), (iv), (v), (vi) (effective June 1, 1980).

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protect the alien. Rosa v. INS, 440 F.2d 100 (1 Cir. 1971); Matter of

Pierre, 15 I&N Dec. 461 (BIA 1975); Matter of Tan, 12 I&N Dec. 564

(BIA 1967). While these cases were decided prior to the enactment of

the Refugee Act of 1980, we believe they are applicable to an alien

seeking 243(h) relief, or asylum, under the new Act.

The current language of 243(h) is broader than it was previously, in

that it now speaks not specifically of "persecution," as did the old

243(h), but rather provides for withholding of deportation if the Attorney General determines that an "alien's life or freedom would be

threatened" in a country to which he may be sent. There is nothing in

the legislative history of the Refugee Act, however, to indicate that the

new, broader language of 243(h) was intended to change the application of the section so as to provide relief to those who fear harm from a

nongovernmental group or individual. Rather, the legislative history

reflects that Congress' intent in substituting "life or freedom would be

threatened" for "persecution," was simply to adopt, almost verbatim,

the United Nations 1951 Convention and 1967 Protocol Relating to the

Status of Refugees (United Nations Treaty Series, Vol. 189, p. 37 and

Vol. 606, p. 267. See Article 1, section A(2) and F, and Article 33 of the

Convention), and to insure that withholding under the Act be construed consistently with the Protocol. See S. Rep. No. 96 256, 96th

Cong., 2nd Sess. 17, reprinted in April 1980, U.S. Code Gong. & Ad.

News 531; House Conference Rep. 96-781, Joint Explanatory Statement of the Committee of Conference, 96th Cong., 2nd Bess. 20,

reprinted in April 1980, U.S. Code Ccmg. & Ad. News 535. We will

therefore require under the new Act, as we did under the old law, that

an alien must show either persecution by the government in the

country to which he is returnable, or persecution at the hands of an

organization or person from which the government cannot or will not

protect the alien.

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In the present case, the immigration judge stated that, "I am satisfied from the evidence presented that the Government of the Republic

of Ireland is unable to control the activities of the PIRA and that if the

respondent were to be returned to that country he would suffer persecution within the meaning of the Convention, Protocol and section

243(h)." In making this determination, the immigration judge did not

discuss the evidence in any meaningful manner; indeed he did not

specifically discuss any evidence at all, so we cannot tell on what basis

the immigration judge made his decision. Our own review of the

evidence, however, does not persuade us that the respondent is likely to

suffer persecution if returned to Ireland.

The respondent has submitted voluminous documents in support of

his persecution claim. Most of the documents are of a general nature,

describing such things as Irish history and the workings of the IRA

Interim Decision #2831

and PIRA. Descriptions of numerous killings and violent incidents

relating to the Irish conflict are given. There are also Amnesty International reports regarding allegations of brutality by the Irish

police, and other documents relating to this alleged brutality. The vast

majority of the documents relate either to conditions in Ireland and

Northern Ireland generally, or to persons other than the respondent.

Four documents, however, do relate specifically to the respondent. Two

of these are articles from newspapers (the Irish, Times on August 24,

1978, and the San Francisco Sunday Examiner & Chronicle on March

28, 1979) reporting on the respondent's extradition proceedings. Both

articles refer briefly to the respondent's belief that the PIRA has a

"contract" out on him to kill him. A third article, from the August 31,

1978, Hibernia Review, briefly describes the respondent's life, and

indicates that he may have something to fear from the IRA. The final

article, from the September 24, 1978, San Francisco Sunday Examiner

& Chronicle, discusses the respondent's involvement in the 1972 bombing of a British army 'barracks and his subsequent break with the

PIRA, but quotes several sources as saying that the IRA no longer has

any interest in the respondent (these latter two articles speak of the

respondent's involvement in the IRA, though in fact it was the PIRA in

which the respondent was involved).

We do not give much weight to those articles submitted by the

respondent which are of a general nature and do not in any way relate

to the respondent himself, Such evidence is not probative on the issue

of the likelihood of this alien being subject to persecution if deported to

Ireland. See generally Fleurinor v. INS, 585 F.2d 129 (5 Cir. 1978);

Matter of Chumpitazi, 16 I&N Dec. 629 (BIA 1978). Those articles

which do relate to the respondent, together with his own statement

and those of his mother, sister, and brother, indicate that the respondent may be wanted, or may at one time have been wanted, by the PIRA.

However, even accepting this possibility as fact, no adequate showing

has been made that the government in Ireland cannot control the

PIRA or protect the respondent from that organization. We recognize

that the PIRA and the IRA have engaged in numerous acts of violence

in recent years, and that the Irish government has not been able to

wholly control this terrorism- However, the evidence presented by the

respondent simply does not convince us that the respondent would be

in imminent peril for his life or limb if returned to Ireland, and that

the government there would be unable to protect him against harm

from the PIRA. While the evidence submitted reflects the difficulty of

controlling terrorism in Ireland, it does not show that the government

there, which is a stable one, would not be able, if necessary, to protect

the respondent.

We turn next to the respondent's claim of persecution by the Irish

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government itself. The immigration judge specifically limited his decision to anticipated persecution by the PIRA. However, as certain of the

documents submitted by the respondent relate to alleged mistreatment of detainees and prisoners, especially those suspected of terrorist

activity, by the Irish police (the "Garda"), and as the respondent has

alleged on appeal that he would be persecuted by the Garda due to his

former membership in the PIRA, it is appropriate to address this issue

here.

We note at the outset that none of the evidence presented which

relates to the actions of the Garda mentions the respondent specifically. Moreover, the evidence suggests that the Irish government has

attempted to curb the abuses of the Garda. The respondent himself

testified at his deportation hearing that when he was picked up and

held by the Garda in 1974, he was not mistreated (Tr. at 47). He admits

this again on appeal (respondent's brief at 15). However, the respondent argues that because he was a member of the PIRA and has

knowledge of that organization, he will be questioned by the Garda if

returned to Ireland. He further states that because of his fear of

retaliation by the PIRA, he will refuse to give information to the

Garda, as he did in 1974, and the Garda will therefore resort to

physical and psychological coercion to force him to talk (brief at 17 18).

These claims amount to no more than pure speculation. There is no

evidence in the record, other than the respondent's own statements, to

show that the Garda has any present interest in the respondent, or

that, even if he were to be questioned, he would be mistreated or

subject to undue coercion. The respondent has failed to meet his

burden of establishing that he would be persecuted by the government

of Ireland if deported to that country.

Much of the immigration judge's decision, as well as much of the

discussion on appeal (at oral argument and in the briefs presented),

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related to the issue of whether the crimes committed by the respond

ent in Ireland were "political" crimes, and therefore not a bar to

withholding of deportation or asylum.' Because we have determined

that the respondent has not established that he would be persecuted

within the meaning of the law, we need not reach the intriguing

question of whether his crimes were of such a nature that they would

not prevent him from obtaining the relief he now seeks. We will state

in this regard, however, that we do not consider ourselves bound by the

United States Magistrate's decision in extradition proceedings, in

which he found that the crimes committed by the respondent were

' The law has made provision for precluding those suspected or convicted of nonpolitical crimes from obtaining 245(h) relief or asylum.

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Interim Decision #2831

political, and that they therefore barred his extradition.'

Decisions resulting from extradition proceedings are not entitled to

res judicata effect in later proceedings. Hooker v. .Klein, 573 F.2d 1360

(9 Cir. 1978). See also Jitirad v. Fernandina, 526 F.2d 478 (2 Cit.. 1976).

To begin with, the parties to the respondent's extradition case are not

the same as the parties here, since the real party in interest in the

extradition proceeding was the Republic of Ireland, not the United

States, as it is in deportation proceedings. See Ornelas v. _Ruiz, 161 U.S.

502 (1896); Cleugh, v. Strakosch,109 F.2d 330 (9 Cir. 1940). In order for

res judicata to bar litigation of an issue in a subsequent proceeding,

the two actions must involve the same parties (or those in privity with

them). Hooker, supra; Commissiorter v. Summit, 333 U.S. 591 (1948);

Pena-Cabanillas v. U05, 394 F.2d 785 (9 Cir. 1968). Moreover, the res

judicata bar goes into effect only where a valid, final judgment has

been rendered on the merits (Hooker, supra), and it is well established

that decisions and orders regarding extraditability "embody no judgment on the guilt or innocence of the accused, but serve only to insure

that his culpability will be determined in another ... forum." Aired,

supra, at 482. While the function of a deportation proceeding also is not

to decide an alien's guilt or innocence of a crime, those cases holding

that extradition decisions do not bind judicial bodies in later criminal

proceedings are as applicable to subsequent deportation proceedings

as they are to subsequent court proceedings. The issues involved in a

deportation hearing differ from those involved in an extradition case,

and resolution of even a common issue in one proceeding is not binding

in the other. This Board has noted that extradition and deportation

proceedings are distinct and separate. See Matter of Perez-Jiminez, 10

I&N Dec. 309 (BIA 1963). For these reasons, we do not consider ourselves in any way bound by the magistrate's decision denying extradition, and by his findings regarding the nature of the respondent's

crimes.

The record reveals some confusion as to the country of deportation,

due in part, it appears, to the lengthy and drawn-out nature of the

respondent's deportation hearing. See Tr. at 5, 8, 21-22, 58-60, 91-93.

Despite some comments at the hearing to the contrary, the immigration judge in his decision stated that he had at the hearing designated

only the Republic of Ireland; no mention was made in the decision of

the possibility of deportation to Great Britain. On appeal, the respondent and the Service have gone to considerable trouble to support their

The immigratinn judge at the hearing monessed his concern over the possibility that

the magistrate's decision regarding the political nature of the respondent's crimes

might be binding on this issue (Tr. at 32). In his decision, at p. 7, he stated that he agreed

with the magistrate's conclusions on this issue, but did not say he considered himself

bound by them_

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respective arguments regarding the designation of countries of deportation. The Service argues that both the Republic of Ireland and

Great Britain had to be designated, and should have been designated

by the immigration judge. The respondent argues that it was proper

for the immigration judge to designate only Ireland. We need not

decide which of these positions is correct. However, as the respondent's

persecution claims at the hearing related only to Ireland, in the event

that deportation to that country cannot be effected, the Service may

file a motion to reopen these proceedings for further designation of the

place of deportation and related applications.

ORDER: The appeal is sustained, and the respondent shall be

deported to the Republic of Ireland.