Appendix — INS v. Doherty
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12 ; OcToBeR TERM, 1990 .
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UNITED STATES DEPARTMENT OF JUSTICE,
s IMMIGRATION AND NATURALIZATION SERVICE, PETITIONER
th : ; v.
JOSEPH PATRICK DOHERTY
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
4 APPENDIX
3 KENNETH W. STARR
¥ Solicitor General
ci STUART M. GERSON
Ps Assistant Attorney General
JOHN G. ROBERTS, JR.
* Deputy Solicitor General
EDWIN S. KNEEDLER
Assistant to the Solicitor General
BARBARA L. HERWIG
JOHN C. HOYLE
Fa Attorneys
Department of Justice
Washington, D.C. 20530
(202) 514-2217
Se
TABLE OF CONTENTS
Appendix A (Opinion of the court of appeals dated 6/29/90) . .
Appendix B (Opinion of the Attorney General dated 6/30/89) .
Appendix C (Decision of the Board of Immigration Appeals
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Appendix D (Opinion of the Attorney General dated 6/9/88). .
Appendix E (Decision of the Board of Immigration Appeals
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Appendix F (Decision of the Board of Immigration Appeals
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Appendix G (Order of the Board of Immigration Appeals
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Appendix H (Oral decision of the immigration judge dated
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Appendix I (Judgment of the court of appeals dated 6/29/90) .
Appendix J (Order of the court of appeals denying rehearing,
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Appendix K (Statutory and regulatory provisions involved) . . .
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APPENDIX A
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
Nos. 662, 880, Dockets 88-4084, 89-4092
JOSEPH PATRICK DOHERTY, PETITIONER
v.
U.S. DEPARTMENT OF JUSTICE, IMMIGRATION AND
NATURALIZATION SERVICE, RESPONDENT
Argued Jan. 19, 1990
Decided June 29, 1990
Before LUMBARD, FEINBERG, and PRATT, Circuit Judges.
GEORGE C., PRATT, Circuit Judge:
Joseph Patrick Doherty, a member of the Provisional
Irish Republican Army (“PIRA”) who has been impris-
oned in this country since 1983, petitions this court to
review: (1) an order of former Attorney General Edwin
Meese III, dated June 9, 1988, that rejected Doherty’s
designation of the Republic of Ireland as his country
of deportation; and (2) an order of Attorney General
Richard Thornburgh, dated June 30, 1989, that denied
Doherty’s motion to reopen his deportation proceedings
for the purposes of applying for asylum and for with-
holding of deportation. For the reasons that follow, we af-
firm the order of Attorney General Meese, reverse the
2a
order of Attorney General Thornburgh, and remand for
further proceedings.
BACKGROUND
Doherty’s status in this country has been the subject of
sustained litigation since 1983, and so far has given rise
to four published court opinions, Doherty v. Meese, 808
F.2d 938 (2d Cir. 1986); United States v. Doherty, 786 F.2d
491 (2d Cir.1986); United States v. Doherty, 615 F.Supp.
755 (S.D.N.Y.1985); Matter of Doherty, 599 F.Supp. 270
(S.D.N:Y.1984), familiarity with which is assumed.
Throughout all these proceedings, Doherty has been
detained in the Metropolitan Correctional Center in Man-
hattan. |
The events leading to Doherty’s arrest in the United
States stem from his involvement in the shooting death of
a British army captain in Belfast, Northern Ireland. On
May 2, 1980, Doherty and three other members of the
PIRA set up an ambush in a private home in North Belfast
as part of a plan to surprise and attack a convoy of British
soldiers. After the men had waited three or four hours, a
car pulled up in front of the house and five members of the
British Army’s Special Air Services emerged. In an ensuing
gun battle, one of the British soldiers, Captain Herbert
Westmacott, was shot and killed. Doherty was arrested,
charged with murder, and put on trial in Belfast, Northern
Ireland; but before the court had announced a decision,
Doherty and seven others escaped from the maximum se-
curity Crumlin Road prison where they were being held.
Two days later the court convinced Doherty in absentia of
murder and a number of lesser crimes, and sentenced him
to life imprisonment.
Doherty successfully eluded the British authorities. Aid-
ed by the PIRA, he fled to the Republic of Ireland
3a
and, using an assumed identity, eventually made his way
to New York City where he escaped detection for another
sixteen months, until June 18, 1983, when he was arrested
by agents of the Immigration and Naturalization Service
(“INS”) while working in a bar on the Upper East Side of
Manhattan.
Immediately after Doherty’s arrest in New York, the
United States Attorney for the Southern District of New
York, on behalf of the United Kingdom, filed a formal pe-
tition for his extradition. The case was referred to District
Judge John E. Sprizzo, who elected to hear the matter as
an “extradition magistrate” pursuant to 1% 'J.S.C. § 3184.
At about the same time, the United Ses’ initiation of
deportation proceedings against Dohert; prompted him to
apply for asylum. At Doherty’s request, the deporiation
proceeding and request for asylum were held in abeyance
pending the outcome of the extradition action.
On December 12, 1984, Judge Sprizzo ruled that Doher-
ty’s crimes in Northern Ireland were “political offenses”
within the meaning of the extradition treaty between the
United States and the United Kingdom, and that Doherty’s
extradition was therefore barred. 599 F.Supp. 270; see
Treaty of Extradition Between the United States and the
United Kingdom of Great Britain and Northern Ireland,
Art. V(i)(c){i), 28 U.S.T. 227, T.1.A.S. No. 8468 (effec-
tive Jan. 21, 1977) (extradition shall not be granted for of-
fenses “of a political character”). Based on the highly or-
ganized, quasi-military nature of the PIRA, its mode of
discipline and internal command structure, as well as the
historical context of Irish-British conflict and the fact that
Doherty’s acts of violence were directed at soldiers rather
than civilians, Judge Sprizzo concluded that Doherty’s in-
volvement in the ambush and his subsequent escape from
prison were of a political character. According to Judge
Sprizzo, “the facts of this case present the assertion of the
4a
political offense exception in its most classic form.” 599
F.Supp. at 276.
Unable to appeal Judge Sprizzo’s extradition decision
directly, see Matter of Mackin, 668 F.2d 122 (2d Cir.1981)
(denial of extradition not appealable), the United States
sought collateral review of the order by way of a separate
action for declaratory judgment. The district court dis-
missed that action for legal insufficiency, however, 615
F.Supp. 755, and we affirmed the dismissal. 786 F.2d 491.
With the extradition matter completed, the deportation
proceeding against Doherty resumed in September 1986.
At this point, Doherty decided to take advantage of a pro-
vision in the immigration statute that allows a deportable
alien to select the country to which he will be deported. See
Immigration and Nationality Act of 1952 (“INA” or “act”)
§ 243(a), 8 U.S.C. § 1253(a). Doherty wanted to be sent to
the Republic of Ireland, where he faced only a 10-year sen-
tence of imprisonment rather than the life sentence await-
ing him in Northern Ireland, and the Republic of Ireland
had indicated its willingness to accept him. Therefore, at
a hearing before Immigration Judge (“IJ”) Howard I.
Cohen, Doherty withdrew his application for asylum, con-
ceded deportability, and designated the Republic of Ire-
land as his country of deportation.
The INS opposed Doherty’s attempt to arrange deporta-
tion to the Republic of Ireland, claiming that it would
be prejudicial to American interests not to return him to
British authorities. Counsel for the INS stated that the
case was Of great concern “at the highest levels” of govern-
ment. Despite the INS’s objections, 1J Cohen ordered
Doherty deported to the Republic of Ireland, as Doherty
had requested, and the INS appealed immediately.
Four days after 1J Cohen’s decision, Doherty petitioned
for a writ of habeas corpus seeking immediate deportation
Sa
to the Republic of Ireland. Doherty claimed that the gov-
ernment was improperly detaining him during the admin-
istrative appeal of [J Cohen’s order solely to ensure that
Doherty would be available for extradition under a newly
signed treaty between the United States and the United
Kingdom. The new treaty, which retroactively eliminated
the political offense bar to extradition, had been ratified
by the United States Senate but had not yet been acted
upon by the British House of Commons. See 808 F.2d at
940.
The district court rejected Doherty’s attempt to short-
circuit the administrative process, however, and denied the
petition. This court affirmed the decision of the district
court, holding that the attorney general’s appeal of IJ
Cohen’s order was reasonably grounded in his authority
under § 243(a) of the act to deny deportation to an alien’s
designated country if, in the judgment of the attorney gen-
eral, the deportation “would be prejudicial to the interests
of the United States”. 808 F.2d 938.
On March 11, 1987, the Board of Immigration Appeals
(“BIA” or “board”) decided the government’s appeal but
rejected its arguments and unanimously upheld IJ Cohen’s
order. The board stated that “we are unwilling to find that
deportation to the Republic of Ireland would be prejudi-
cial to the interests of the United States in-the absence of
clear evidence to support that conclusion.” In a later deci-
sion, the board reopened the case to consider a motion by
the government to introduce additional evidence concern-
ing the prejudicial impact of deporting Doherty to the Re-
public of Ireland, but denied the motion after reopening,
principally because it found that the additional evidence
could have been presented at the hearing before IJ Cohen.
At the request of the INS, the board then certified the case
to Attorney General Meese pursuant to 8 C.F.R. § 3.1(h),
a regulation that permits the attorney general to review
6a
decisions of the board. Attorney General Meese accepted
the case for review in October 1987.
On December 3, 1987, while the case was still pending
before Attorney General Meese, Doherty moved before
the board to reopen his deportation proceedings for the
purposes of withdrawing his designation of the Republic
of Ireland, redesignating the country of deportation, and
submitting a new application for asylum and withholding
of deportation. According to Doherty, this switch in his
strategy was compelled by the implementation two days
earlier of a new extradition treaty between the Republic of
Ireland and the United Kingdom. Doherty feared that the
new treaty, which altered the applicability of the “political
offense” exception to extradition, would result in his cer-
tain extradition to the United Kingdom if he were de-
ported to the Republic of Ireland, as he had originally re-
quested. Withouc passing on its merits, the board referred
Doherty’s motion to reopen directly to Attorney General
Meese.
In a decision dated June 9, 1988, Attorney General
Meese rejected Doherty’s designation of the Republic of
Ireland as his country of deportation, holding under
§ 243(a) of the act that deportation there rather than to the
United Kingdom would be prejudicial to United States’ in-
terests. He not only rejected Doherty’s designation but
also ordered him deported directly to the United King-
dom. The attorney general did not address the merits of
Doherty’s motion to reopen, however, but remanded that
motion for consideration by the board.
The board granted Doherty’s motion to reopen on No-
vember 14, 1988, in a 3-2 decision, holding that Doherty
should be given the opportunity to apply for asylum and
withholding of deportation. The board held:
At the time of the hearing the reasonable expecta-
tion of the respondent was that he would be deported
7a
to Eire. The likelihood of his being deported to the
United Kingdom appeared remote. * * * Given the
state of the law at that time, the respondent could not
have been expected to anticipate that he would not be
deported to his country of choice. The respondent’s
failure to file for asylum under these circumstances is
excusable.
The board further held that, like the change in Irish ex-
tradition law, the decision of Attorney General Meese rep-
resented a “changed circumstance{] which ha[s] arisen
since the hearing”. In addition, the board determined that
Doherty had established a prima facie case for relief based
on a well-founded fear of persecution in Northern Ireland.
The board permitted reopening only for the purposes of
applying for asylum and withholding and not for with-
drawing his designation and redesignating the country of
deportation.
At this point, the case was once again certified to the at-
torney general for review, again at the request of the INS.
By order dated June 30, 1989, Attorney General Thorn-
burgh “disapproved” the board’s decision and denied
Doherty’s motion to reopen.
Doherty petitioned this court for review of both orders
of the attorneys general. The petitions were consolidated
for review, and we decide both here today.
DISCUSSION
A. Order of Attorney General Meese
Attorney General Meese determined that deporting
Doherty to the Republic of Ireland would be prejudicial to
United States’ interests for two reasons: (1) “it is the policy
of the United States that those who commit acis of vio-
lence against a democratic state should receive swift and
lawful punishment, and it is thus in the interests of the
8a
United States that respondent serve his sentence in the
United Kingdom”; and (2) “a decision to deport respondent
to Ireland rather than the United Kingdom would be in-
jurious to our relations with the United Kingdom.” Doherty
contends that Attorney General Meese abused his discre-
tion in rejecting his deportation to the Republic of Ireland,
an argument we find somewhat curious at this point since
Doherty now, too, seeks to avoid deportation to that coun-
try. We find no merit to Doherty’s claim in any event, and
we affirm the order of Attorney General Meese.
Section 243(a) of the act grants a deportee the one-time
right to select the country to which he will be deported, but
it also gives the attorney general the authority to reject the
selection if he determines that the deportation would be
prejudicial to the interests of the United States:
The deportation of an alien in the United States
provided for in this chapter, or any other Act or trea-
ty, shall be directed by the Attorney General to a
country promptly designated by the alien if that coun-
try is willing to accept him into its territory, unless the
Attorney General, in his discretion, concludes that
deportation to such country would be prejudicial to
the interests of the United States.
INA § 243(a), 8 U.S.C. § 1253(a) (emphasis added).
As is apparent from the language of this provision, con-
gress left the attorney general broad discretion to deter-
mine what constitutes prejudice to national interests. At
an earlier stage of this case we noted that the statute pro-
vides no guidelines for determining what type of “preju-
dice” enables the attorney general to act; “[t}he requisite
judgment requires an essentially political determination#
808 F.2d at 943. Thus the attorney general’s finding of
prejudice under § 243(a) “is essentially unreviewable” by a
court. Id. at 944. We also stated that “[t}he implied cor-
ollary to the Attorney General’s power to reject a desig-
9a
nated country is the power to name the country to which
the alien shall be deported.” Jd. at 941 (footnote omitted).
Attorney General Meese found that deporting Doherty
to the Republic of Ireland, indeed to anywhere but the
United Kingdom, would harm our relationship with the
United Kingdom and would contradict our policy of pun-
ishing violence against democratic nations. Judgments of
this nature are surely within the scope of the attorney
general’s discretion under § 243(a), and we are not permit-
ted to second-guess them.
Doherty contends that the decision should nevertheless
be overturned because of procedural error. He argues that
the attorney general improperly relied on certain informa-
tion, particularly an opinion letter from the Department
of State, that was not in the record before the board.
Although it might have been preferable if the attorney
general had given Doherty an opportunity to commeni on
the letter, the letter itself did not reveal any new evidence
against Doherty. It merely confirmed the attorney
general’s own conclusions about the foreign policy impli-
cations of the case. Moreover, the attorney general made it
clear that his decision was based “on the facts established
in the extradition proceedings” rather than on any evi-
dence gleaned from extra-record sources. Therefore, this
procedural error, if it was an error, was of no consequence
to the outcome of the decision.
B. Order of Attorney General Thornburgh
Doherty moved to reopen his case in order to apply for
asylum and for withholding of deportation, two separate
forms of relief under the act. He also moved to reopen in
order to withdraw his designation and redesignate the
country of deportation, but the board did not permit, and
Doherty does not here seek, reopening for these purposes.
The right of asylum is established by § 208(a) of the act,
10a
which authorizes the attorney general to grant asylum to
an alien who demonstrates “a well-founded fear of perse-
cution on account of race, religion, nationality, member-
ship in a particular social group, or political opinion.” 8
U.S.C. § 1158(a); see J.N.S. v. Cardoza-Fonseca, 480 U.S.
421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). Asylum under
§ 208(a) is a broad form of relief, allowing the alien to re-
main in the United States where he can eventually apply
for a lawful permanent residence. See 1 C. Gordon & S.
Mailman, /mmigration Law & Procedure §§ 1.03(6)(d)-(e)
(1989).
Withholding of deportation is governed by § 243(h) of
the act. Unlike asylum, which is discretionary, withhold-
ing of deportation is a mandatory remedy that prohibits
the attorney general from deporting an alien to a country
where there is a clear probability that his “life or freedom
would be threatened” on account of race, religion, nation-
ality, membership in a particular social group, or political
opinion. 8 U.S.C. § 1253(h); 1.N.S. v. Stevic, 467 U.S.
407, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). Withholding
of deportation under § 243(h) provides a more limited
form of relief than asylum, however, barring deportation.
only to the nation where the alien faces persecution, but
not to nonthreatening third countries.
If Doherty had pursued these claims at his original
deportation hearing, there is litthe doubt that he would
have been entitled to the evidentiary hearing he now seeks,
because the right to apply for asylum or withholding of
deportation carries with it the right to a hearing “where the
likelihood of persecution can be fairly evaluated.” Auw-
gustin v. Sava, 735 F.2d 32, 37 (2d Cir.1984); see also
Maldonado-Perez v. I.N.S., 865 F.2d 328, 332
(D.C.Cir.1989) (applicant for asylum “must be afforded
an evidentiary hearing”). But, because Doherty had with-
drawn his application for asylum in September 1986 as
lla
part of his effort to arrange deportation to the Republic of
Ireland, he can now have these claims heard only upon a
reopening of his case. As the Supreme Court recently held,
a motion to reopen for the purpose of applying for asylum
and withholding of deportation may be denied for three
independent reasons:
First, [the BIA] may hold that the movant has not
established a prima facie case for the underlying sub-
Stantive relief sought. * * * Second, the BIA may
hold that the movant has not introduced previously
unavailable, material evidence, or, in an asylum ap-
plication case, that the movant has not reasonably ex-
plained his failure to apply for asylum initially. * * *
Third, in cases in which the ultimate grant of relief is
discretionary (asylum, suspension of deportation,
and adjustment of status, but not withholding of de-
portation), the BIA may leap ahead, as it were, over
the two threshold concerns (prima facie case and new
evidence/reasonable explanation), and simply deter-
_ mine that even if they were met, the movant would
not be entitled to the discretionary grant of relief.
I.N.S. v. Abudu, 485 U.S. 94, 104-105, 108 S.Ct. 904,
911-912, 99 L.Ed.2d 90 (1988) (citations omitted)
In rejecting Doherty’s motion to reopen, Attorney Gen-
eral Thornburgh did not address the first ground for
denial under Abudu, the sufficiency of the applicant’s
prima facie showing of persecution. Instead, applying the
second ground for denial, the attorney general held that
neither the change in Irish law nor the decision of Attor-
ney General Meese represented a change in circumstances
sufficient to justify the reopening. The attorney general
relied on the third ground for denial as well, holding that
Doherty “would not ultimately be entitled either to the
discretionary relief of asylum or to withholding of depor-
tation.” Finally, as an alternative basis for rejecting the
12a
motion, the attorney general held that Doherty’s
withdrawal in September 1986 of his initial application for
asylum constituted a “waiver” of his right to apply at a
later time.
Reviewing Attorney General Thornburgh’s decision
within the Abudu framework, we conclude that in the sin-
gular circumstances of this case he abused his discretion in
denying Doherty’s motion to reopen.
1. Prima Facie Case.
Because he based his decision on other grounds, At-
torney General Thornburgh held that “[ijt is unnecessary
for me to address (and I do not) the question whether
respondent has established a prima facie case for the
substantive relief sought.” Therefore, since the denial of a
motion to reopen can be upheld only on the grounds set
forth in the decision, see Jen Hung Ng v. I.N.S., 804 F.2d
534, 538 (9th Cir.1986); Mattis v. I.N.S., 774 F.2d 965,
967 (9th Cir.1985), we must assume for the purpose of this
appeal that Doherty did meet his burden of demonstrating
prima facie eligibility for relief, as the BIA found.
2. New Evidence/Reasonable Explanation.
The attorney general ruled that Doherty had failed to
demonstrate a change in circumstances since his hearing
that would justify reopening the case, because neither the
change in Irish extradition law nor the decision of At-
torney General Meese should have come as any surprise to
Doherty. The attorney general emphasized that the diplo-
matic and parliamentary events that culminated in the new
extradition treaty between the United Kingdom and the
Republic of Ireland had been in progress for at least two
years before actual implementation of the treaty on De-
cember 1, 1987. Rejection of Doherty’s designation of the
l3a
Republic of Ireland was also foreseeable, according to At-
torney General Thornburgh, because § 243(a) expressly
authorizes such rejection, and because the INS had op-
posed Doherty’s designation at the hearing. Thus, the
attorney general concluded, the “new” circumstances of-
fered in support of Doherty’s motion to reopen were in
fact entirely foreseeable at the time of the original hearing,
and therefore did not provide a sufficient basis for grant-
ing the motion.
The flaw in the attorney general’s approach to this issue
is that it relies on a mistaken view of the law. Doherty was
required to support his motion to reopen with “previously
unavailable, material evidence”, and a “reasonabl[e] cx-
pla{nation of] his failure to apply for asylum initially”.
Abudu, 485 U.S. at 104-05, 108 S.Ct. at 911. Neither the
regulations nor the applicable decisional law require ex-
pressly or by implication that the new evidence be “unfore-
seeable”; indeed, such a rule would lead to absurd conse-
quences. If a deportee were required to make his case not
just on the state of facts and the law that existed at the
time of the hearing, but instead on all “foreseeable” even-
tualities, there would be no end to the facts and issues
potentially relevant to the case. Or, as the board in this
case warned, “[i]f the respondent were expected to foresee
and guard against the unprecedented circumstances which
arose two years later, no alien would ever fail to apply for
asylum to [sic] any country to which he might remotely be
deported, if he had a fear of returning there.” Matter of
Doherty, BIA File No. A26185231, at 6 (BIA Nov. 14,
1988).
We also have reason to doubt that the intervening cir-
cumstances, especially the decision of Attorney General
Meese, were as “foreseeable” as the government suggests.
Until this case, it appears that an alien’s designation of
a country of deportation had never been rejected by the
l4a
attorney general on the basis of prejudice to national in-
terests after the designation had been approved by the
board. His power to make such a decision is expressly con-
ferred by the statute to be sure, but one could hardly say
that its exercise in this case was “foreseeable” when it had
never once, in over 30 years, been invoked.
The board was on target when it found that Doherty
had a “reasonable expectation” of being returned to the
Republic of Ireland at the time of his original deportation
hearing. What possible reason could Doherty have had for
withdrawing his application for asylum and conceding
deportability if his prospects of returning to his chosen
country were nonexistent? He certainly could not have
been motivated by a desire to delay the proceedings, as is a
tactic in some cases, because delay at that time was work-
ing decidedly against him. See Doherty, 808 F.2d at 940.
The board gave careful consideration to the new devel-
opments supporting Doherty’s motion to reopen, and it
was Satisfied that he had met the “heavy burden” of pre-
senting previously unavailable, material evidence, and of
reasonably explaining his decision to withdraw the initial
application for relief. The board repeatedly deals with mo-
tions to reopen, and has, no doubt, developed a body of
informed experience that helps it distinguish meritorious
motions from those lacking in merit. Indeed, it is precisely
the knowledge gained through such experience that gives
us reason to defer to the board’s decisions in most im-
migration matters.
In sum, not only did the attorney general overturn the
board’s findings because of a different view of facts, but
he did so under a “foreseeability” standard that has no
legal foundation. This we believe constituted an abuse of
his discretion. Carcamo-Flores v. I.N.S.,805 F.2d 60, 68
(2d Cir.1986) (denial of asylum reversed where decision
“leaves at least room for significant doubt as to whether
a a ere
15a
the-appropriate standard was applied”); Gonzales
v. ILN.S., 791 F.2d 681, 686 (9th Cir. 1986) hg ma
tion to reopen is abuse of discretion where board “misap-
plied the principles upon which it purported to act”) .
. Doherty supported his motion to reopen with other
jr or » not _gnentioned above, including the
port 0 a human rights group discussing political
persecution in Northern Ireland, and an affidavit from his
mother describing the history of mistreatment that Doher-
ty and his family have suffered at the hands of British
authorities. However, because we find that the change in
Irish extradition law and the decision of Attorney General
Meese were alone sufficient to satisfy Doherty’s burden of
producing “new, material evidence” and a “reasonable ex-
planation” of his decision to withdraw his Original applica-
tion, we need not resolve the question of whether this ad-
ditional “new evidence” would al
rip dna also have been adequate for
3. Ultimate Entitlement to Withholding of Deportation.
As another ground for denying the motion to
torney General Thornburgh held that Doherty “would “
ultimately be entitled either to the discretionary relief of
asylum or to withholding of deportation.” We first address
Doherty S$ ultimate entitlement to withholding of deporta-
tion. According to the attorney general, Doherty was ineli-
gible for that remedy because, under the Statutory excep-
tions to withholding of deportation, “there are serious
reasons for considering that [Doherty] has committed a
<a nonpolitical crime outside of the United States”, see
.N.A. s 243(h)(2)(C), 8 U.S.C. § 1253(h\(2C), and
Doherty assisted, or otherwise participated in the persecu-
tion of * * * person{s] on account of * * * political opin-
ion”. See I.N.A. § 243(h)(2)(A), 8 U.S.C. § 1253(h)(2)(A).
16a
To begin with, the mandatory nature of the withholding
remedy suggests that a determination of the applicant’s
ultimate entitlement to relief would be improper in the
context of a motion to reopen. Unlike asylum, which is
discretionary with the attorney general, withholding of
deportation is mandatory upon a showing of “statutory
eligibility. If a person seeking to reopen his case estab-
lishes a prima facie case for withholding of deportation
and introduces previously unavailable, material evidence,
as Doherty has done, the attorney general simply has no
discretion to decide that ultimately he would be “ineligible”
for withholding of deportation, as that determination
necessarily goes to the merits of the claim. As the Supreme
Court stressed in Abudu, the attorney general’s power to
deny a motion to reopen based on factors other than the
movant’s failure to establish a prima facie case or the lack
of new evidence is limited to “cases in which the ultimate
grant of relief is discretionary * * * not withholding of
deportation”. 485 U.S. at 105, 108 S.Ct. at 912 (emphasis
added); see also Aviles-Torres v. I1.N.S., 790 F.2d 1433,
1436 (9th Cir. 1986) (abuse of discretion to deny motion to
reopen where applicant established prima facie case for
withholding of deportation); Hernandez-Ortiz v. 1.N.S.,
777 F.2d 509, 518 (9th Cir.1985) (same); cf. Motamedi v.
1.N.S., 713 F.2d 575, 576 (10th Cir. 1983) (abuse of discre-
ticn to deny motion to reopen where board “prejudg{ed]
the merits of the case”). —
Considering the types of issues raised by Doherty’s
claim for withholding of deportation, the need for an evi-
dentiary hearing should be obvious. His ultimate success
or failure will depend on, among other factors, whether
his crimes in Northern Ireland are judged “political” or
“nonpolitical”, and whether he “persecuted” others on ac-
count of their political views or was himself the victim of
such persecution. Needless to say, these issues all raise
at a ats Hl lt PT A ly ae
17a
formidable questions of fact that cannot be adequately re-
solved in the absence of an evidentiary record. Examina-
tion of a fully developed record is a necessary precursor to
the fair resolution of Doherty's claim, by an immigration
judge, by the board, and, if it comes to it, by this court in
another appeal. Cf. Ananeh-Firempong v. I.N.S., 766
F.2d 621, 628-29 (ist Cir.1985) (questions as to whether
mistreatment of applicant was “politically” motivated “are
of a sort that are best considered at a hearing”). Thus, it
was improper for the attorney general to prejudge the
merits of Doherty’s claim for withholding of deportation
without the benefit of a record, and that claim must now
proceed to a hearing.
4. Ultimate Entitlement to Asylum.
Whether Doherty’s claim for asylum should also pro-
ceed to a hearing presents a more difficult question, be-
cause asylum, unlike withholding of deportation, is a dis-
cretionary remedy. As the Supreme Court held in Abudu,
when an applicant seeks to reopen his case to file a claim
for discretionary relief, such as a claim for asylum, the
board (or, by implication, the attorney general) “may leap
ahead, as it were, * * * and simply determine that * * *
the movant would not be entitled to the discretionary
grant of relief.” 485 U.S. at 105, 108 S.Ct. at 912; see also
Cardoza-Fonseca, 480 U.S. at 428 n. 5, 107 S.Ct. at 1211
n. 5 (“It is important to note that the Attorney General is
not required to grant asylum to everyone who meets the
definition of refugee. Instead, a finding that an alien is a
refugee does no more than establish that ‘the alien may be
granted asylum in the discretion of the Attorney
General.’”) (emphasis in original) (quoting Stevic, 467
U.S. at 423, 104S.Ct. at 2497); 1.N.S. v. Rios-Pineda, 471
U.S. 444, 449, 105 S.Ct. 2098, 2101-02, 85 L.Ed.2d 452
18a
(1985) (“if the Attorney General decides that relief should
be denied as a matter of discretion, he need not consider
whether the threshold statutory eligibility requirements are
met”).
Nonetheless, it is a fundamental principle of our immi-
gration law that the attorney general must base his discre-
tionary decisions only on the “legitimate concerns” of the
relevant statutory provision. See Rios-Pineda, 471 U.S. at
451-52, 105 S.Ct. at 2103; A viles- Torres, 790 F.2d at 1437;
Maittis, 774 F.2d at 968. Thus, the attorney general may
abuse his discretion by acting arbitrarily, departing inex-
plicably from established policies, or discriminating in-
vidiously against a particular group, Rios-Pineda, 471
U.S. at 451, 105 S.Ct. at 2103; Bertrand v. Sava, 684 F.2d
204, 212 (2d Cir. 1982), or by giving effect to “ ‘considera-
tions that Congress could not have intended to make rele-
vant.’ ” Wong Wing Hang v. I.N.S., 360 F.2d 715, 719 (2d
Cir.1966) (quoting United States ex rel. Kaloudis v.
Shaughnessey, 180 F.2d 489, 491 (2d Cir.1950) (L. Hand,
J.)); see also Jen Hung Ng, 804 F.2d at 538 (“reliance by
the BIA on improper factors in reaching a decision is an
abuse of discretion that we are required to reverse”).
The issue, then, is whether the attorney general based
his discretionary decision on “legitimate concerns” of
asylum. Despite the attorney general’s broad discretion to
base other types of immigration decisions on factors such
as the government’s political and foreign policy interests,
our examination of the asylum statute convinces us that
congress intended to prevent such factors from influencing
asylum cases. In exercising his discretion in this case, At-
torney General Thorburgh relied on just such improper
factors. We therefore must reverse his order as to the
asylum claim as well.
19a
Examination of the history and purpose of the relevant
legislation shows that congress intended to insulate the
asylum process from the influences of politics and foreign
policy, factors that had long dominated the refugee ad-
missions process. Before World War II, the immigration
law provided no right of asylum for aliens subject to
persecution in their home countries. See, e.g., United
States ex rel. Giletti v. Commissioner of Immigration, 35
F.2d 687 (2d Cir.1929) (deportation of Italian claiming
persecution by fascist regime). With the passage of the Im-
migration and Nationality Act of 1952, Pub.L. No.
82-414, 66 Stat. 163, congress authorized the attorney
general to “withhold” deportation of aliens from countries
where, in his opinion, they would be subjected to physical
persecution. 8 U.S.C. § 1253({h) (amended 1965, 1980).
Unlike the current law, this older form of “withholding of
deportation” was entirely discretionary, and it appears to
have been rarely granted. See Note, Judicial Review of
Administrative Stays of Deportation: Section 243(h) of the
Immigration and Nationality Act of 1952, 1976 Wash.
U.L.Q. 59, 100 (1976) (no published decisions in which
relief had been granted under § 243(h)). The 1952 legisla-
tion also permitted the attorney general to admit persons
“temporarily under such conditions as he may prescribe
for emergent reasons or for reasons deemed strictly in the
public interest”. 8 U.S.C. § 1182(d)(S)(A). This provision,
known as “parole”, was the primary vehicle for the admis-
sion of refugees before the 1980s, and it, too, was wholly
discretionary with the attorney general.
In 1968, the United States became a party to the United
Nations Protocol Relating to the Status of Refugees, 19
U.S.T. 6257, 606 U.N.T.S. 268 (“protocol”). The protocol
adopted the definition of “refugee” used in the 1951 Con-
vention Relating to the Status of Refugees, 189 U.N.T.S.
150 (“convention”), to which the United States had not ac-
20a
ceded. Under the protocol and the convention, a person’s
Status as a “refugee” was determined without regard to
political considerations or the country from which the per-
son fled. Instead, a “refugee” as defined as one who
owing to a well-founded fear of being persecuted for
reasons of race, religion, nationality, membership of
a particular social group or political opinion, is out-
side the country of his nationality * * *.
Article 33 of the protocol prohibited the return of such a
refugee to territories “where his life or freedom would be
threatened on account of his race, religion, nationality,
membership of a particular social group, or political
opinion.”
Congress initially believed that the protocol was basical-
ly consistent with existing law, and that any inconsist-
encies could be reconciled by the attorney general in the
exercise Of his discretion. See Stevic, 467 U.S. at 417-18,
104 S.Ct. at 2494-95. In the 1970s, however, there was a
growing perception that discretionary relief from deporta-
tion was being granted in a manner that conflicted with the
protocol. In particular, many observers believed that
asylum determinations were still being affected by ideo-
logical and geographical considerations that tended to
favor individuals fleeing from communist nations over
those seeking refugee from countries having favorable
political ties with the United States. See, e.g., Hansen,
Behind the Paper Curtain: Asylum Policy Versus Asylum
Practice, 7 N.Y.U. Rev.L. & Soc. Change 107 (1978).
Amid growing dissatisfaction with the existing law, con-
gress in 1980 comprehensively revised the standards and
procedures governing asylum. See The Refugee Act of
1980, Pub.L. No. 96-212, 94 Stat. 102. This legislation
replaced the attorney general’s ad hoc parole authority
with a systematic procedure for adjudicating asylum
hme
2la
claims that was intended to eliminate geographical and
ideological factors from consideration. See Stevic, 467
U.S. at 425-27, 104S.Ct. at 2498-500; S.Rep. No. 96-256,
96th Cong., 2nd Sess. 1 (1979), reprinted in 1980 U.S.
Code Cong. & Admin. News 141; Anker & Posner, The
Forty Year Crisis: A Legislative History of the Refugee
Act of 1980, 19 San Diego L.Rev. 9,36 (1981). The statute
accomplished this goal by linking eligibility for asylum to
the politically neutral definition of “refugee” set forth in
the protocol. See Cardoza-Fonseca, 480 U.S. at 436, 107
S.Ct. at 1216.
Thus, in passing the Refugee Act of 1980, congress re-
sponded to the problems created by the attorney general’s
theretofore unlimited discretion over the admission of
refugees. By defining eligibility in politically neutral
terms, congress made it clear that factors such as the
government’s geopolitical and foreign policy interests were
not legitimate concerns of asylum. To use Judge Learned
Hand’s terminology, these were “considerations that Con-
gress could not have intended to make relevant” to
asylum. Shaughnessey, 180 F.2d at 491.
The more limited nature of the attorney general’s dis-
cretion in asylum cases can be illustrated by comparing it
with his authority to grant suspension of deportation, INA
§ 244, 8 U.S.C. § 1254, and adjustment of status, INA
§ 245, 8 U.S.C. § 1255, the two major forms of “discre-
tionary” relief from deportation other than asylum. With
the adoption of immigration quotas and the elimination of
the statute of limitations on deportation in the 1920s,
deportation im some cases was seen to create unnecessary
hardships, “[{fjor there were may aliens whose residence in
the United States was irregular but who had become wor-
thy members of their communities and had established
strong ties here.” 3 C. Gordon & S. Mailman, supra,
§ 7. Ma).
22a
To help mitigate the harshness of mandatory deporta-
tion, the attorney general was given the authority to sus-
pend the deportation of aliens who had resided in the
United States for at least seven years and could demon-
strate “extreme hardship” if returned to their own country,
INA § 244(a), 8 U.S.C. § 1254(a), especially where the
hardship was the result of separation from family
members legitimately living in the United States. E.g.,
Carrete-Michel v. I.N.S., 749 F.2d 490, 494 (8th
Cir.1984). For similar reasons, the attorney general was
given the power to grant an “adjustment of status” to eligi-
ble aliens, and here, too, factors such as family ties and
length of residence were critical. E.g., Patel v. I.N.S., 738
F.2d 239, 243 (7th Cir.1984); Jain v. I.N.S., 612 F.2d 683,
687-88 (2d Cir.1979), cert. denied, 446 U.S. 937, 100 S.Ct.
2155, 64 L.Ed.2d 789 (1980).
The statute itself does not set forth the factors to be
weighed by the attorney general in suspending deportation
Or adjusting an alien’s status. Both remedies “leave sub-
stantial room for the Attorney General to define the sub-
Stantive grounds for relief.” LeBlanc v 1.N.S., 715 F.2d
685, 690 (Ist Cir.1983); see also Hernandez-Patino vy.
I.N.S., 831 F.2d 750, 753 (7th Cir.1987) (“Congress, in
refusing to define “extreme’ hardship fully, avoided the
substantive policy decision and has deferred to agency ex-
pertise.”).
In asylum cases, by significant contrast, the substantive
grounds for discretionary relief were not left to be deter-
mined by the attorney general. Indeed, one of the motivat-
ing forces behind passage of the Refugee Act was the “felt
need to structure and control executive decisionmaking” in
refugee matters. Anker & Posner, supra, at 36. Unlike the
provisions for suspension of deportation and adjustment
of status, the Refugee Act defines with specificity the cate-
gory of aliens who should ordinarily be granted asylum,
2.
er ee
23a
and it provides concrete guidance as to those who should
not. Moreover, while the presence of family members in
the United States may work in favor of a potential asylee,
see Helton, The Proper Role of Discretion in Political
Asylum Determinations, 22 San Diego L.Rev. 999,
1015-18 (1985), keeping family members together is not an
essential concern of asylum. In many cases, an applicant
may be leaving family behind to escape persecution.
Consequently, the attorney general’s broad “discretion”
to grant suspension of deportation or adjustment of status
does not necessarily provide a useful guide to the scope of
his “discretion” to grant asylum. Even the attorney general
himself acknowledged the unique characteristics of asylum
in saying “that the decision to grant asylum to an alien is
inherently a humanitarian act by the United States that is
distinct from the normal operation and administration of
the immigration laws.” United States Department of
Justice, Press Release (April 7, 1987) (announcing forma-
tion of Asylum Policy and Review Unit within the Depart-
ment of Justice), quoted in Schmidt, Refuge in the United
States: The Sanctuary Movement Should Use the Legal
System, 15 Hofstra L.Rev. 79, 85 (1986).
Why, then, if congress intended to curtail the attorney
general’s authority over the asylum process, did it make
asylum a discretionary remedy rather than a mandatory
form of relief? The answer to this question becomes evi-
dent when we consider the drafting of the Refugee Act and
the adminstrative practice since its enactment. The senate
bill, as reported out of the Senate Judiciary Committee,
Originally made the grant of asylum mandatory upon an
appropriate showing of persecution. S.Rep. No. 96-256,
96th Cong., 2nd Sess. 8-9 (1979). The house version of the
provision, the one ultimately adopted in the conference
report, vested the attorney general with the discretionary
24a
authority he now possesses. The house report emphasized,
however, that “[t}he Committee wishes to insure a fair and
workable asylum policy which is consistent with this coun-
try’s tradition of welcoming ihe oppressed of other nations
and with our obligations under international iaw. * * *
The Committee intends to monitor closely the Attorney
General’s implementation of the section so as to insure the
rights of those it seeks to protect”. H.R.Rep. No. 96-608,
96th Cong., 2nd Sess. 17-18 (1979); see generally Anker &
Posner, supra, at 43-64.
Although there is some ambiguity here, it is apparent
that congress did not intend to give the attorney general
boundless “discretion” to make asylum decisions, for that
would surely have frustrated the primary goals of the
Refugee Act. Instead, as the house report suggests, con-
gress merely desired to preserve some degree of flexibility
in the administration of the asylum process in the context
of ja larger refugee program that involves, among other
things, procedures for the admission of applicants at
American offices overseas. In view of the inherent prob-
lems of running such a large and complex program, it *s
conceivable that a person who might otherwise qualify for
asylum should be denied relief because, for example, he
had a previous offer to setile in a nonthreatening third
county, or had intentionally circumvented the admissions
process available in his home country in order to achieve
more immediate entry into the United States.
A decade of praetiee confirms that the board’s dis-
cretionary denials of asylum to otherwise eligible candi-
dates have been primarily for reasons of administrative
fairness and efficiency, not to preserve our political rela-
tionship with the allegedly persecuting nation. Two types
of cases have been the primary subjects of such denials.
The first involves situations in which applicants have
abused the asylum process by fraudulently circumventing
25a
the overseas admissions process without sufficient cause.
See Sarkis v. Sava, 599 F.Supp. 724, 755 (E.D.N.Y.1984);
Matter af Gharadaghi, Interim Dec. No. 3001 (BIA Nov.
1, 1985}; Matter of Shirdel, Interim Dec. No. 2958 (BIA
Feb. 21, 1984); Matter of Salim, 181. & N. Dec. 311 (BIA
1982). Even here, however, the board has emphasized that
abusing the admissions process “is only one of a number
of factors which should be balanced in exercising discre-
tion, and the weight accorded to this factor may vary de-
pending on the facts of a particuiar case. * * * [T]he
danger of persecution should generally outweigh all but
the most egregious of adverse factors.” Matter of Pula, \n-
terim Dec. No. 3033 (BIA Sept. 22, 1987). The second type
of discretionary denial involves refugees who have found a
safe haven in another country before entering the United
States. See Helton, supra, at 1007 & n. 49 (citing unpub-
lished BIA decisions).
In summary, the history of the Refugee Act, its pur-
pose, and the context within which it was enacted, all show
that congress intended the attorney general to exercise a
more limited role in asylum cases as compared with his
role in other types of discretionary immigration matters.
As demonstrated by the administrative practice before the
board, this limited discretion has not been used to imple-
ment the government’s foreign policy objectives, some-
thing that would clearly violate the spirit, if not the letter,
of the Refugee Act, but rather to deter abuses of the
refugee system, and to deny relief to aliens who have
found safety elsewhere.
Reviewing Attorney General Thornburgh’s decision in
light of the above, we conclude that he based his decision
in large part on the types of geopolitical concerns that con-
gress intended to eliminate from asylum cases. The at-
torney general held that he would deny asylum for the
following reasons:
26a
First, it is “the policy of the United States that those
who commit acts of violence against a democratic
state should receive prompt and lawful punishment.”
* * * Deporting respondent to the United Kingdom
would unquestionably advance this important policy.
* * * Second, the United States Government, through
the State Department, has specifically determined
that it is in the foreign policy interests of this country
that respondent be deported to the United Kingdom.
* * * Third, respondent knowingly and intentionally
waived his claim to asylum, and for the reasons ex-
plained in Part IV, supra, | would not permit with-
drawal of that waiver. Fourth, I believe that respond-
ent’s membership in and assistance of the PIRA in its
acts of persecution, and the nature and number of his
criminal acts in general * * * suggest that he is not de-
serving of equitable relief.
Decision of Attorney General Thornburgh at 28 (June 30,
1989) (citations omitted).
The first two reasons given by Attorney General Thorn-
burgh simply restate the foreign policy concerns identified
by Attorney General Meese when he barred Doherty’s
return to the Republic of Ireland. While such considera-
tions were clearly relevant in that context, as indicated by
the statutory standard of “prejudicial to the interests of
the United States”, INA § 243(a), 8 U.S.C. § 1253(a), con-
gress did not intend the same factors to influence asylum
decisions. In giving effect to these considerations, the at-
torney general seriously exceeded his discretion. The at-
torney general’s third rationale, that Doherty “waived” his
claim to asylum, is also improper, for the reasons ex-
plained below in part B.5 of this opinion. As for the attor-
ney general’s final reason, it not only assumes facts that
would be more properly determined at a hearing, it also
SR 5 a te ame tet
27a
depends in large measure on Doherty’s “membership” in
the PRIA, one of the very bases for which he claims perse-
cution. In short, Attorney General Thornburgh exercised
his discretion in denying Doherty’s application for reasons
that congress sought to eliminate from asylum cases, and,
in doing so, he abused his discretion.
5. Waiver.
Finally, as an independent ground for denying the mo-
tion to reopen, Attorney General Thornburgh ruled that
Doherty had “waived” his right to apply for relief. Accord-
ing to the attorney general, when Doherty conceded
deportability to the Republic of Ireland and withdrew his
initial application for asylum in September 1986, he “as-
sumed the risk” that the Republic of Ireland might change
its extradition law and that his designation of the Republic
of Ireland might be rejected by Attorney Generali Meese.
As Atturney General Thornburgh put it,
[T]he integrity of the administrative process dictates
that a deportee who, with the advice and assistance of
counsel, makes such deliberate tactical decisions, not
be permitted to disown those decisions merely be-
cause they ultimately result in action adverse to his in-
terests. This is especially the case where the possibility
of that action was not only foreseeable but foreseen.
The attorney general’s reasoning is incompatible with
any motion to reopen, however. If parties to a deportation
hearing were held to “assume the risk” that subsequent
developments might change the basis for the board’s deci-
sion, no case would ever be reopened. For example, an
alien could not reopen a case to introduce new evidence
that after a change in leadership he would be persecuted in
a country that had previously appeared nonthreatening.
He would have “assumed the risk” that such events might
transpire.
28a
Moreover, we find the government’s professed concern
for the “integrity of the administrative process” uncon-
vincing in light of its own actions in this case. The govern-
ment’s use Of administrative and judicial processes has
been exhaustive, to say the least. Its efforts have included,
in Judge Friendly’s words, an extended attempt “to escape
from the longheld principle that when an extradition magi-
strate * * * refuses to certify a person sought to be extra-
dited under an extradition treaty, the Government’s sole
recourse is to submit a request to another extradition
magistrate.” United States v. Doherty, 786 F.2d at 492-93.
In addition, the government itself moved to reopen the
case al an earlier stage of the administrative proceedings,
even though its substantive motion was denied upon re-
opening. Finally, the certification procedure itself, a rarely
used procedural device that is removed from normal ad-
ministrative channels, has twice been invoked by the at-
torney general with respect to Doherty.
In short, it would be unfair to deny a motion to reopen
for what amounts to a dubious procedural argument
where the alien has otherwise satisfied the standards for
reopening and where the government’s own conduct in the
case has demonstrated less-than-perfect adherence to pro-
cedural formalities. The “sporting theory of justice” has
no place in deportation proceedings. Matter of Martinez-
Solis, 14 1. & N. Dec. 93, 95 (BIA 1972).
CONCLUSION
The order of former Attorney General Meese is at-
firmed insofar as it rejected Doherty’s designation of the
Republic of Ireland as the country to which he would be
deported and ordered him deported directly to the United
Kingdom. The order of Attorney General Thornburgh
denying Doherty’s motion to reopen is reversed and the
29a
case is remanded to the board for further proceedings con-
sistent with this opinion.
LUMBARD, Circuit Judge, concurring in part and dis-
senting in part:
After seven years of proceedings before the immigration
authorities, the Attorney General has decided that Doher-
ty, who has admitted his deportability after illegal entry
into the United States, may not reopen the matter and be
heard on his claims for asylum as a political refugee and
for withholding of deportation. The record supports the
Attorney General’s exercise of his discretion in denying
further hearing. !t also supports his decision that “[i]}t is in
the [United States’] interest that [Doherty] be sent directly
to the United Kingdom,” which he left as a fugitive from
justice, and not to the Republic of Ireland. Consequently,
I would affirm both orders of the Attorneys General.
On June 10, 1981, Doherty escaped from the Crumlin
Road prison in Northern Ireland where he was being held
during his trial for the killing of Captain Herbert West-
macott of the British Army on May 2, 1980. Two days
after his escape, he was convicted for the murder and
sentenced to life imprisonment. A fugitive from justice, he
entered the United States illegally on or about February 1,
1982 and was arrested in New York City on June 18, 1983.
At about the same time that a deportation warrant was
filed against him, Doherty filed for asylum and withhold-
ing of deportation on June 28, 1983.
Having been thwarted in returning Doherty to the
United Kingdom under the extradition treaty then in
force, by a ruling of the District Court for the Southern
District in December 1984 which under longstanding case-
law was not appealable, the Government sought to expel
him as an illegal immigrant and return him to the country
from which he had fled.
30a
In a strategic maneuver undertaken with advice of
counsel, Doherty conceded deportability on September 5,
1986 and withdrew his applications for asylum and with-
holding of deportation. On September 12, 1986, the Immi-
gration and Naturalization Service, which executes the im-
migration laws under the supervision of the Attorney
General, requested the Immigration Judge (“IJ”) to deport
Doherty to the United Kingdom. Nonetheless, the IJ
decided that Doherty should be returned to the Republic
of Ireland. After the Board of Immigration Appeals
(“Board” or “BIA”) upheld the IJ, Attorney General
Meese on June 9, 1988 decided in the best interests of the
foreign relations of the United States that Doherty should
be returned to the United Kingdom rather than to the
Republic of Ireland.
Meanwhile, on December 3, 1987, Doherty moved for
leave to reopen the deportation proceedings to reapply for
asylum and withholding of deportation in view of what he
claimed were changed circumstances. The Board, on
November 14, 1988, voting 3-2, granted leave to reopen.
Attorney General Thornburgh on June 30, 1989 over-
ruled the Board and denied leave to reopen. In a carefully
reasoned opinion, he held that even if Doherty were per-
mitted to reopen the deportation proceedings, he would be
denied asylum—a form of discretionary relief —because
his violent acts rendered him ineligible for a favorable ex-
ercise of discretion. This opinion demonstrates conclusive-
ly that Doherty has shown no new facts which are relevant
to the Attorney General’s decision to return him to the
United Kingdom.
Doherty has enjoyed in full measure any right he has to
a full and extended consideration of his claims. The At-
torney General is the final authority on the return of illegal
aliens. We should sustain his authority especially in mat-
ters which so intimately affect the foreign relations of the
3la
United States. The Attorney General’s opinion shows that,
whatever else may be done, the inevitable result is that
Doherty will be sent back to the United Kingdom.
In Doherty v. Meese, 808 F.2d 938, 943-44 (2d Cir.
1986),' we held that, in immigration cases with weighty
foreign policy implications, a decision of the Attorney
General is “essentially unreviewable” when Congress has
committed that decision to the unguided discretion of the
Attorney General. Judicial inquiry in such cases is effec-
tively limited to claims of unconstitutionality, fraud, or
lack of jurisdiction, id. at 944 (citations omitted), and this
case presents no colorable claims of that nature. Thus, we
held then that the decision whether to reject an alien’s
designation of the country to which he will be deported
(“designation”) under § 243(a) of the Immigration and Na-
tionality Act (“Act” or “INA”) is “essentially unreview-
able” because the statute provides that such a decision is
simply in the Attorney General’s “discretion.” 8 U.S.C.
§ 1253(a).
We now review a decision denying a motion to reopen
deportation proceedings. Like the matter of designation,
motions to reopen are committed to the discretion of the
Attorney Generaf. In numerous cases, the Supreme Court
' There, Doherty petitioned for habeas corpus relief from his deten-
tion pending the Government's administrative appeal of the 1J’s deci-
sion granting Doherty's request to be deported to the Republic of
ireland rather than to the United Kingdom. Doherty contended that
the Government's appeal was frivolous and was intended solely to
keep him in the United States os the effective date of the Sup-
plementary Extradition Treaty ween the United States and the
United Kingdom. See Doherty v. Meese, 808 F.2d at 940. We affirmed
the district court's demial of habeas rele! because the Government
clearly had a reasonable basis for pursuing ¢he administrative appeal.
32a
has held that such motions are discretionary in the Board.
See, e.g., INS v. Rios-Pineda, 471 U.S. 444, 449, 105
S.Ct. 2098, 2101-02, 85 L.Ed.2d 452 (1985); INS v. Phin-
pathya, 464 U.S. 183, 188 n. 6, 104 S.Ct. 584, 588 n. 6, 78
L.Ed.2d 401 (1984); INS v. Jong Ha Wang, 450 U.S. 139,
144 n. 5, 101 S.Ct. 1027, 1031 n. 5, 67 L.Ed.2d 123 (1981).
Because the Board “is not a statutory body, but is wholly a
creature of regulations issued by the Attorney General,”
Greene v. INS, 313 F.2d 148, 151 (9th Cir.) (citing 8
C.F.R. §§ 3.1 et seq.), cert. denied, 374U.S. 828, 83 S.Ct.
1869, 10 L.Ed.2d 1051 (1963), the only source of the
Board’s discretion is the Attorney General. Furthermore,
the Attorney General always has authority to review a
decision of the Board, see 8 C.F.R. § 3.1(h)(1). Thus, be-
cause the Board has discretion in this area, the Attorney
Genera! a fortiori has discretion at least as broad.?
Since we affirm Attorney General Meese’s discretionary
rejection of Doherty’s designation because it is “essentially
unreviewable,” and since Attorney General Thornburgh’s
discretionary decision not to reopen proceedings is like-
wise “essentially unreviewable,” we should also affirm the
Thornburgh order. We had no basis for reversing the At-
torney General in Doherty v. Meese, and we have none
now.
Motions to reopen “are disfavored in deportation pro-
ceedings” for the same reason that petitions for rehearing
and motions for new trials based on newly discovered evi-
? The Attorney General’s discretionary authority to decide or even
to countenance motions to reopen derives from those portions of the
Act providing that “[(t}he Attorney General shall be charged with the
administration and enforcement of” the Act and “shall... perform
such other acts as he deems necessary for Carrying Out his authority
under the provisions of” the Act. INA § 103(a), 8 U.S.C. § 1103(a).
This language places no constraints on the decisionmaking authority
that it confers upon the Attorney General.
33a
dence are disfavored: “There is a strong public interest in
bringing litigation to a close as promptly as is consistent
with the interest in giving the adversaries a fair oppor-
tunity to develop and present their respective cases.” INS
v. Abudu, 485 U.S. 94, 107, 108 S.Ct. 904, 913, 99
L.Ed.2d 90 (1988). Doherty has had seven years to develop
and present his case yet he has failed to convince the At-
torney General. When the Attorney General decides, after
a careful review of the voluminous record, that a drawn-
Out case such as this no longer merits attention, we are in
no position to contradict that judgment.
There is a special reason for judicial restraint in cases
such as this. As compared with officials of other admini-
Strative agencies, “INS officials must exercise especiaily
sensitive political functions that implicate questions of
foreign relations, and therefore the reasons for giving
deference to agency decisions on petitions fer reopening or
reconsideration in other administrative contexts apply
with even greater force in the INS context.” Abudu, 485
U.S. at 110, 108 S.Ct. at 914-15 (footnote omitted). There
can be no doubt that political judgments are at the heart of
the decision not to reopen this case. As we stated in-Doher-
ty v. Meese, the Doherty matter “affects not only the rela-
tions of the United States with the United Kingdom and
the Republic of Ireland, but also the complicated mutli-
lateral negotiations concerning efforts to halt interna-
tional terrorism.” 808 F.2d at 943. To prolong these pro-
ceedings after the Attorney General has drawn the line is
to upset a policy decision that affects international rela-
tions and that accordingly should be “ ‘largely immune
from judicial inquiry or interference,’ ” id. (quoting Har-
isiades v. Shaughnessy, 342 U.S. 580, 589, 72 S.Ct. 512,
519, 96 L.Ed. 586 (1952)).
The denial of Doherty’s motion to reopen was made not
by an inferior INS official but by the Attorney General
34a
himself in a thorough and reasoned signed opinion. The
Attorney General, as a member of the Cabinet who
reports to the President and is conversant with the views of
the administration, expresses the views of the Govern-
ment. When the Attorney General makes a judgment on
an essentially political question, we usurp the executive’s
authority when we review that decision for infirmities less
grave than the most serious violations of law. See Doherty
v. Meese, 808 F.2d at 944.
The majority states that the Board has “developed a well
of informed experience” concerning motions to reopen
and that “it is precisely the knowledge gained through such
experience that gives us reason to defer to the Board’s deci-
sions in most immigration matters.” Thus, the majority
implicitly concludes, the Board’s decision here deserves
more deference than Attorney General Thornburgh’s deci-
sion disapproving it. | cannot accept this conclusion. Mat-
ters which concern asylum and deportation are primarily
matters of foreign policy and political judgment. The At-
torney General has the ultimate authority in such matters,
not the members of an inferior Board. Congress has
placed the Attorney General at the top of the hierarchy of
immigration officials; his word is the last word.
INS v. Abudu, 485 U.S. 94, 108 S.Ct. 904, 99 L.Ed.2d 90
(1988), should not be the sole focus of our inquiry because
it addresses few of the foregoing concerns. In large part,
Abudu simply summarized prior holdings regarding some
of the grounds upon which the Board may deny a motion to
reopen and held that the Board’s denial of a motion to
reopen under 8 C.F.R. § 3.2 or 208.11 should be reviewed
under an abuse-of-discretion standard. Simce Abudw in-
volved a decision of the Board and not of the Attorney
General himself, it provides little guidamee for our rewiew
of the extraordinary case where, as here, the Anomrney
General has deemed certain principles and policies — for
: SO eo SO el eS OR ee
35a
example, that those who use violence to advance parochial
ends are not to benefit from the privileges offered by our
immigration law —so important that he has used his rarely
exercised authority under 8 C.F.R. § 3.1(h)(1) to articulate
and apply them. By dwelling on the reasons set forth in
Abudu for denying a motion to reopen, the majority gives
insufficient attention to the unusual posture of this case.
Moreover, Abudu is not the last word on motions to
reopen because the Abudu lisi of reasons for denying a
motion to reopen was clearly not meant to be exhaustive.
See 485 U.S. at 104, 108 S.Ct. at 911 (“There are at least
three independent grounds on which the BIA may deny a
motion to reopen.”) (emphasis added).
Even under Abudu, the motion to reopen was properly
denied for three reasons.
First, to the extent that the motion to reopen was for the
purpose of applying for asylum, it was properly denied
under the third Abwdu factor, which provides that where a
party moves to reopen to apply for discretionary relief,
such as asylum, .
the BIA may leap ahead, as it were, over the two
threshold concerns (prima facie case and new evi-
dence/reasonable explanation), and simply determine
that even if they were met, the movant would not be
entitled to the discretionary grant of relief.
Abudu, 485 U.S. at 105, 108 S.Ct. at 912.
if the BIA may simply deny the motion because it be-
lieves the mowant is undeserving of asylum, then surely the
Attorney General may do the same. Here, Attorney
General Thornburgh did just that with the following state-
ment:
In my discretion, | would not grant [Doherty] asylum.
[I}t is the “policy of the United States that those who
36a
commit acts of violence against a democratic state
should receive prompt and lawful punishment.” Mat-
ter of Doherty, Mem. Att’y Gen. at 7 (June 9, 1988).
Deporting [Doherty] to the United Kingdom would
unquestionably advance this important policy. See id.
at 6-7. [In addition,] the United States Government,
through the State Department, has specifically deter-
mined that it is in the foreign policy interests of this
country that respondent be deported to the United
Kingdom. /d. at 7-8.
In so ruling, the Attorney General did not abuse his dis-
cretion. ~
The majority, disregarding the delicacy of this deter-
mination, notes that Attorney General Thornburgh, in
ruling that Doherty ultimately would not be granted
asylum, referred to the nation’s political and foreign
policy interests. According to the majority, such a refer-
ence was an abuse of discretion because the legislative
history of the asylum provision supposedly indicates that
Congress intended such interests to be ignored in the deter-
mination of whether to grant an asylum application. My
reading of the legislative history, even accepting the ma-
jority’s historiography, leads me to a different conclusion.
Even if the asylum provision does define eligibility for
asylum, it explicitly commits the asylum determination to
the discretion of the Attorney General. Congress spe-
cifically rejected making asylum mandatory upon the ap-
propriate showing. If Congress had wanted to limit the At-
torney General’s discretion to deny an asylum application,
it knew how to do so. That the statute places no restric-
tions on his discretion tells us that Congress intended that
there be none.
Moreover, a comparison of the two provisions indicates
that the Attorney General has no less discretion in decid-
37a
ing asylum cases then he does in deciding where to deport
an alien. The deportation provision states:
“The deportation of an alien . . . shall be directed by
the Attorney General to a country promptly desig-
nated by thealien. . . unless the Attorney General, in
his discretion, concludes that deportation to such
country would be prejudicial to the interests of the
United States.”
INA § 243(a), 8 U.S.C. § 1253(a) (emphasis added).
Similarly, the asylum provision states:
[T]he alien may be granted asylum in the discretion of
the Attorney General if the Attorney General deter-
mines that such alien is a refugee within the meaning
of section 1101(a)(42)(A) of this title.
INA § 208(a), 8 U.S.C. § 1158(a) (emphasis added). To
judge from these two subsections, the Attorney General
nas wider latitude to reject an asylum application than a
deportation designation because the asylum applicant may
not even be considered for discretionary approval unless
the Attorney General also determines that the applicant is
a refugee. Thus, as I have shown with respect to the At-
torney General’s discretion to deny a motion to reopen, if
a discretionary decision under the deportation provision is
essentially unreviewable, then a discretionary decision
under the asylum provision should also be essentially un-
reviewable.
There is no basis in the statute for concluding that, once
an alien is determined to be eligible for asylum, the At-
torney General’s discretion to deny asylum is limited to a
narrow class of cases involving administrative irregularity.?
> Doherty even fits into this category. The majority concedes that
an asylum application may be denied when the applicant “intentional-
ly circumvents the admissions process” in his home country to secure
more speedy entry into the United States. This is essentially to say that
38a
While Congress has established rules for determining who
is eligible for asylum, it has created no rules for determin-
ing who among those eligible for asylum should receive that
relief. The statute, in providing that “{t}he alien may be
granted asylum in the discretion of the Attorney General,”
INA § 208(a), 8 U.S.C. § 1158(a) (emphasis added), uses
the broadest language possible to describe the authority of
the Attorney General to make the ultimate asylum decision.
Moreover, if, as the majority states, those eligible for
asylum “should ordinarily be granted asylum,” then the
statute’s provision that the ultimate asylum decision is “in
the discretion of the Attorney General” would be sur-
plusage; such a view would render meaningless this most
significant portion of the statute when a much more plausi-
ble interpretation —that Congress declined to guide the At-
torney General’s decision as to who among those eligible
should receive asylum — is available.
Second, again to the extent that the motion to reopen
was for the purpose of applying for asylum, it was prop-
erly denied under that part of the second Abudu factor
which permits denial of a motion to reopen “in an asylum
application case [if] the movant has not reasonably ex-
plained his failure to apply for asylum initially.” 485 U.S.
at 105, 108 S.Ct. at 911. In deciding, properly, that
Doherty waived his claim to asylum as a result of a tactical
choice, Attorney General Thornburgh effectively ruled
an applicant’s manipulation of the process for personal benefit is
grounds for rejection. Here, Attorney General Thornburgh implicitly
decided that by withdrawing his application for asylum, conceding
deportability, and then renewing the application when his plan back-
fired, Doherty was seeking to manipulate the process in a way that
made him undeserving of asylum. Certainly the Attorney General may
decide, first, that Doherty’s rejection of asylum in a tactical maneuver
and his subsequent renewal of his asylum application represent an at-
tempt to have it both ways and, second, that the Government need not
grant asylum to one who plays fast and loose with so great a privilege
as asylum in the United States.
SN GE ae ee ne ey eee ey ee
39a
that Doherty failed this prong of Abudu.* Doherty’s deci-
sion to withdraw his asylum application, which is the
equivalent of a “failure to apply for asylum initially,” was
made with advice of counsel and with full knowledge that
the Government was going to contest his designation and
that the statute authorized Attorney General Meese to re-
ject it.* It was a calculated risk on his part to admit de-
portability and not to pursue relief: his strategy was to be
deported before the effective date of the Supplementary
Treaty. Doherty asked to tbe deported knowing full well
that such a procedural ploy might work to his disadvant-
age. Now that it has in fact worked to his disadvantage, he
asks this court for a second bite at the apple for the ob-
vious reason that he does not like the way his first plan
worked out. Surely his miscalculation is not sufficient ex-
planation of his failure to apply for asylum initially.
Attorney General Thornburgh points out that Doherty,
having conceded deportability and failed to pursue an ap-
plication for asylum or withholding, is in a position
analogous to that of a defendant seeking to withdraw a
guilty plea. One in such a position bears an extremely
heavy burden of proof on a narrow issue: “{W]hen the
judgment of conviction upon a guilty plea has become
final and the offender seeks to reopen the proceeding, the
inquiry is ordinarily confined to whether the underlying
* Although Attorney General Thornburgh termed this waiver argu-
ment an “independent” ground for decision, it is the equivalent of a
challenge, under the second Abudu factor, to the reasonableness of
Doherty’s explanation of his failure to apply for asylum initially.
> He must be charged with knowing that there was a substantial risk
Attorney General Meese would reject his designation. The same
sentence of the INA that gives the alien the right to designate gives the
Attorney General the right to reject the designation. In addition, the
Government’s position stated in open court on September 12, 1986,
when Doherty conceded deportability and designated the Republic of
Ireland, and maintained ever since is that it would contest Doherty’s
designation.
40a
plea was both counseled and voluntary.” United States v.
Broce, 488 U.S. 563, 109 S.Ct. 757, 762, 102 L.Ed.2d 927
(1989). Doherty makes no claim that his decision not to
pursue asylum was either uncounseled or involuntary.
Moreover, “[a] defendant is not entitled to withdraw his
plea [of guilt) merely because he discovers long after the
plea has been accepted that his calculus misapprehended
the quality of the State’s case or the likely penalties at-
tached to alternative courses of action.” Brady v. United
States, 397 U.S. 742, 757, 90 S.Ct. 1463, 1473, 25 L.Ed.2d
747 (1970). That Doherty misapprehended the relative
merits of the various options open to him, which is what
his claims boil down to, is simply a statement that he failed
to apply for asylum and not a reasonable explanation for
that failure.
The majority miscasts Attorney General Thornburgh’s
waiver argument as a claim that a party to a deportation
proceeding assumes the risk “that subsequent develop-
ments might change the basis for the Board’s decision.”
Attorney General Thornburgh did not make so nebulous
and sweeping a claim. He spoke only of those subsequent
developments — Attorney General Meese’s rejection of his
designation and his potential extradition from the Repub-
lic of Ireland to the United Kingdom — which Doherty
knew or should have known had a strong likelihood of
coming to pass and for which Doherty’s mere distate is in-
sufficient reason to excuse his unsuccessful Strategem.
Third, the entire motion to reopen was properly denied
under that part of the second Abudu factor which permits
denial of a motion to reopen if “the movant has not intro-
duced previously unavailable, material evidence.” 485
U.S. at 104, 108 S.Ct. at 911 (citation omitted). The rec-
ord fully supports Attorney General Thornburgh’s deci-
sion that Doherty did not offer any previously
unavailable, material evidence. The decision of Attorney
General Meese to reject Doherty’s designation and to
deport Doherty to the United Kingdom was simply not
4la
evidence. it was a legal consequence. Doherty’s argument
here is akin to that of one who moves to withdraw a guilty
plea because the sentence, or even prison itself, has proved
harsher than expected. Such withdrawal is impermissible.
See United States v. Prince, 533 F.2d 205 (Sth Cir. 1976)
(defendant may not withdraw plea of nolo contendere,
made after consulting counsel, when sentence proved har-
Sher than expected). As Attorney General Thornburgh
stated, “The ultimate decision in an administrative process
cannot itself constitute ‘new’ evidence to justify reopening.
If an adverse decision were sufficient, there could never be
finality in the process.”
Nor did implementation of the Extradition Act on De-
cember 1, 1987 constitute new evidence. Attorney General
Thornburgh found that Doherty was extraditable from the
Republic of Ireland to the United Kingdom even prior to
December |, 1987 on the basis of long-standing provisions
of Irish law, and I see no reason to disturb this finding.
The Extradition Act is simply cumulative evidence — if it is
evidence at all—of his extraditability to the United King-
dom. As Attorney General Thornburgh noted, one of
Doherty’s arguments in su zt of the immigration judge’s
decision to deport him to the Republic of Ireland was that
Irish law prior to the Extradition Act also provided for his
extradition to the United Kingdom. Thus, the fact of his
extraditability from the Republic of Ireland to the United
Kingdom did not newly arise on December 1, 1987 but
rather existed long before that date.
1 also agree with the Attorney General that the addi-
tional documents, books, and affidavit in support of his
motion to reopen were either cumulative, previously avail-
able, or immaterial. As the Attorney General stated,
“None of the evidence supports the existence of a threat of
persecution of which respondent was unaware or a
material change in the character of a threat previously
recognized.”
42a
To the extent the motion to reopen was for the purpose
of applying for withholding of deportation, it was proper-
ly denied for two additional reasons.
In ruling that Doherty waived any claim he may have
had to asylum, Attorney General Thornburgh also ruled
that Doherty waived whatever claim he had to withholding
of deportation. For the reasons stated above in Part Il,
this was a sufficient independent ground for his denial of
the motion to reopen.
The motion to reopen was also properly denied under
INA § 243(h)(2(C), 8 U.S.C. § 1253(h)(2)(C), which pro-
vides that an alien “shall not” be granted withholding
if the Attorney General determines that —
* . * * *
(C) there are serious reasons for considering
that the alien has commited a serious nonpoliti-
cal crime outside the United States prior to the
arrival of the alien in the United States... .
As is evident from the face of the statute, the majority’s
statement that “withholding of deportation is mandatory
upon a showing of statutory eligibility” tells only half the
story. In fact, it is mandatory for the Attorney General to
deny withholding if he determines that the alien fails any
of the tests in § 243(h)(2)(A)-(D). Although the Attorney
General’s determination is not discretionary, § 243(h)(2)
states numerous reasons to deny withholding, and subsec-
tion (C) has a low burden of proof, see McMullen vy. INS,
788 F.2d 591, 599 (9th Cir. 1986) (only “probable cause”
required). Thus, I believe that as long as the record is ade-
quate and the Attorney General makes reasoned findings
based on that record, his determination that the alien has
failed any of the tests of § 243(h)(2), particularly that in
subsection (C), should be a sufficient ground to deny a
motion to reopen for the purpose of applying for w'th-
holding. Since the record is replete with Doherty’s admis-
nines nina te
43a
sions of actions constituting violations of § 243(h)(2), and
since the Attorney General’s determination that Doherty
failed the test in subsection (C) is a model of a reasoned
decision based on the record, I think he properly denied the
motion to reopen to the extent it was for the purpose of ap-
plying for withholding.*®
Doherty admitted to all of the following at his 1984 ex-
tradition hearing. He was an officer in the Provisional Irish
Republican Army (“PIRA”) and committed acts dangerous
to others on behalf of the PIRA,’ which the United States
Department of State has classified as a terrorist organiza-
tion, see n. 6, supra. For example, in 1973, Doherty was
convicted of and imprisoned for a firearms violation. In
1974, he was convicted of and imprisoned for smuggling 80
* Although Attorney General Thornburgh found that Doherty failed
the test in subsection (A) as well, | focus on his decision under (C), as
the facts relevant to that subsection are particularly compelling. How-
ever, I find his conclusion under (A) perfectly acceptable as well. Sub-
section (A) prohibits the Attorney General from granting withholding
to any alien he determines to have “ordered, incited, assisted, or other-
wise participated in the persecution of any person on account of .
political opinion.” § 243(h)(2)A), 8 U.S.C. § 1253¢h)(2)A) (emphasis
added). Doherty does not dispute that the official position of the United
States is that the PIRA is a terrorist organization, see U.S. Department
of State, Patterns of Global Terrorism: 1988, 33-34, 74-75 (1989);
McMullen, 788 F.2d at 597, and the Board itself has found that the
PIRA aims its violence at, among others, civilians who oppose the
PIRA’s objectives and methods. See id. at 600 (“The BIA found that the
PIRA killed or attempted to kill those who publicly opposed their ac-
tivities,” and an active role in the PIRA “amounts to the assistance of
this persecution on account of political opinion”) (Goodwin, J., special-
ly concurring). Becayse Doherty has admitted an active role in the
PIRA and has embraced the PIRA without reservation, the Attorney
General properly concluded that Doherty “otherwise participated” in
persecution on account of political opinion.
’ The PIRA, a radical offshoot of the IRA, “formed in protest to the
perceived inefficacy of the IRA,” McMullen v. INS, 658 F.2d 1312,
1315 (9th Cir.1981), which itself used violence to achieve its ends, id.
Apparently, the founding members of the PIRA believed that the IRA
was not violent enough.
44a
pounds of explosives in a car hijacked by the PIRA. In
1980, in a van hijacked by the PIRA, he drove several of his
PIRA confederates to a private Belfast house, while the van
driver was held captive; took over the house and held
hostage the family inside; and engaged in a firefight that re-
sulted in the death of Captain Westmacott of the British
Army.
As noted in the opinion dissenting from the Board’s deci-
sion, “it is fortuitous that the civilian hostages [taken by
Doherty and his associates] were uninjured in view of the
fact that they were exposed to a gun battle.” Matter of
Doherty, No. A26 185 231, slip op. at 4 (BIA Nov. 14,
1988) (Morris, B.M., dissenting). Even if violence against a
democratic government or against such a government’s
military personnel were a “political” rather than a
“criminal” matter, which it surely is not, Doherty’s par-
ticipation in attacks against civilians has given Attorney
General Thornburgh a substantial basis for concluding that
Doherty has committed serious nonpolitical crimes outside
the United States prior to his illegal entry.*
Given Doherty’s admission of PIRA membership, of in-
volvement in the Westmacott killing, and of offenses
against innocent civilians; the low standard of proof under
subsection (C); and the statutory imperative of denying
* The decision denying Doherty’s extradition on the ground that his
murder of Captain Westmacott was a “political” offense, Matter of
Doherty by Gov. of United Kingdom, 599 F.Supp. 270 (S.D.N.Y.
1984), has no precedential value either for the Attorney General or for
us. Offenses considered “political” for the purposes of extradition
treaties may be considered “nonpolitical” for the purposes of the INA in
general and of § 243(h\(2\(C), 8 U.S.C. § 1253(h\(2)(C), in particular.
See McMullen v. INS, 788 F.2d at 596. In addition, “extradition deter-
minations have no res judicata effect in subsequent judicial pro-
ceedings.” Jd. at 597 (citations omitted). Finally, that decision was not
appealable under longstanding caselaw, see United States v. Doherty,
786 F.2d 491, 495 (2d Cir.1986); Matter of Mackin, 668 F.2d 122,
125-30 (2d Cir.1981), and we have therefore had no occasion for direct
review of it on the merits.
4Sa
withholding to one considered undesirable under § 243(h)
(2), | believe that Attorney General Thornburgh’s decision
is unassailable. I fail to see what proper purpose will be
served by granting a hearing on Doherty’s withholding
claim.
The majority, citing Abudu, states that “the attorney
general’s power to deny a motion to reopen based on fac-
tors other than the movant’s failure to establish a prima
facie case or the lack of new evidence is limited to ‘cases in
which the ultimate grant of relief is discretionary * * * not
withholding of deportation’. [485 U.S. at 105, 108 S.Ct. al
912]” (emphasis added by majority). Thus, the majority im-
plies, Attorney General Thornburgh erred by resolving this
question as if withholding were a discretionary matter. |
disagree.
Attorney General Thornburgh resolved Doherty’s entitle-
ment to withholding not as a discretionary matter but
rather as a legal question governed by the rules set out in
§ 243(h)(2). Even if Abudu were the sole guide for our re-
view, his decision regarding withholding would not be re-
viewable under the third Abudu factor. The real issue is the
adequacy of the record and the rationality of the Attorney
General’s conclusion based on the record. Since the record
and reasoning here were more than adequate, a further
hearing would be a waste of time and would serve only to
delay the final resolution of proceedings which have lasted
seven years since Doherty’s arrest in 1983.
IV
For the foregoing reasons, | would dismiss both petitions
for review and affirm the orders of the Attorneys General.
46a
APPENDIX B
OFFICE OF THE ATTORNEY GENERAL
WASHINGTON, D.C. 20530
In re: Joseph Patrick Thomas Doherty (A26-185-231)
IN DEPORTATION PROCEEDINGS
This matter has been certified to me by the Commis-
sioner of the Immigration and Naturalization Service
(INS) from the decision of the Board of Immigration Ap-
peals (BNA). 8 C.F.R. § 3.1(h)(1)(iii). On November 14,
1988, the BIA granted the respondent’s motion to reopen
these proceedings in order to allow him to apply for
asylum and for withholding of deportation and to permit
him to redesignate his country of deportation. Matter of
Doherty, No. A26 185 231 (BIA Nov. 14, 1988). For the
reasons set forth below, I disapprove the BIA’s decision,
and deny respondent’s motion to reopen his deportation
proceedings.
1. Respondent is a 34-year-old native of Northern
Ireland and a citizen of both the United Kingdom (U.K.)
and the Republic of Ireland. He has been an active
volunteer in the Provisional Irish Republic Army (PIRA)
since 1972. The BIA summarized his criminal record as
follows:
He has an extensive criminal record in Ireland begin-
ning with convictions as a juvenile for burglary and
larceny. He was sentenced to probation, fines, and |
month in a training school. At approximately age 15,
the respondent joined Na Fianna Eireann, a youth or-
47a
ganization in Ireland that is considered to be a step-
ping stone into the PIRA. When he turned 17, in
1972, he joined the PIRA as a volunteer. In 1973, he
was arrested, and later convicted, for possession of a
firearm. He was sentenced to | year in prison and he
served 9 months. In 1974, he was arrested for posses-
sion of 80 pounds of explosives. He was convicted
and sentenced to 10 years imprisonment. He served 5
years and 9 months of that sentence. During that term
of imprisonment, the respondent attempted to
escape, but he was ygsuccessful. He was convicted of
prison breaking with intent to escape and received a
sentence of an additional 18 months of imprison-
ment. After his release from prison in December of
1979, he returned to the PIRA. On May 2, 1980,
while on a mission for the PIRA, he was involved in a
gun battle in which a British Army Captain was
killed. He was tried and found guilty of murder, at-
tempted murder, possession of firearms and ammuni-
tion, and belonging to a proscribed organization.
In +. Doherty, No. A26 185 231, slip op. at 1-2 (BIA Mar.
4, 1985).
Throughout the course of these proceedings, respondent
has never disputed the underlying facts relating to the last
set of crimes. On May 2, 1980, he and several other PIRA
members seized and occupied a private home, from which
they planned to ambush British troops. In the ensuing
gunfight with the troops, Captain Herbert Richard
Westmacott, a British Army captain, was shot and killed.
Respondent was arrested and charged with murder, at-
tempted murder, illegal possession of firearms, and other
offenses. On June 10, 1981, after trial, but before a deci-
sion was reached, respondent escaped from prison. On
July 12, 1981, he was convicted, in absentia, of murder
i
48a
and the other offenses with which he had been charged,
and was sentenced to life imprisonment.
After his escape, respondent made his way to the United
States, where he was arrested on June 18, 1983. A formal
request for extradition was filed in the Southern District of
New York on August 16, 1983. At about the same time, a
deportation warrant was also filed against him. On June
28, 1983, respondent filed for asylum and withholding of
deportation.
2. The extradition proceeding was brought pursuant
to 18 U.S.C. § 3184 and Article VII of the then-existing
Treaty of Extradition between the United States and the
United Kingdom, Extradition Treaty, Oct. 21, 1976,
United States-United Kingdom, 28 U.S.T. 227, T.1.A.S.
No. 8468 (effective Jan. 21, 1977) [hereinafter “Extradi-
tion Treaty”}, under which “political offenses” were an ex-
ception to extradition. A hearing was held in the United
States District Court for the Southern District of New
York in March and April of 1984. In December 1984, the
court ruled that respondent could not be extradited
because the murder he had committed was “of a political
character” within the meaning of the Extradition Treaty.
The court thus denied the request for extradition. Matter
of Doherty by Gov't of United Kingdom, 599 F. Supp. 270
(S.D.N.-¥~ 984).
Although the court determined that respondent was not
extraditable, it rejected the contention that the pro-
ceedings against him in Northern Ireland had failed to
provide due process. The court concluded:
[Bjoth Unionists and Republicans who commit of-
fenses of a political character can and do receive fair
and impartial justice and . . . the courts of Northern
49a
Ireland will continue to scrupulously and courageous-
ly discharge their responsibilities in that regard.
Matter of Doherty by Gov't of United Kingdom, 599 F.
Supp. at 276.'
3. Immediately upon the conclusion of the extradition
proceeding, the deportation proceeding went forward. It
was delayed, however, for almost 18 months, from March
18, 1985, until September 3, 1986, as a result of a stay
which was entered on respondent’s motion, and which the
INS opposed. See Doherty v. Meese, 808 F.2d 938, 941 (2d
Cir. 1986).
On September 12, 1986, at a hearing before an immigra-
tion judge, respondent, through his counsel, withdrew the
applications for asylum and for withholding of deporta-
tion that he had filed in June 1983, and conceded deport-
ability.? Asked by the immigration judge whether he was
saying that he “no longer wish{ed] to apply for asylum and
[was] ... waiving his right to asylum?”, respondent’s
counsel replied, “[t}hat is correct, Your Honor.” Respond-
ent’s counsel continued: “We would, at this time,
' The United States challenged the denial of extradition by bringing
an action under the Declaratory Judgment Act, 28 U.S.C. § 2201, in
the Southern District of New York. The district court and the United
States Court of Appeals for the Second Circuit both held, however,
that bringing the extradition request before another judge was the
only proper means of challenging the decision denying extradition.
United States v. Doherty, 615 F. Supp. 755 (S.D.N.Y. 1985), affd,
786 F.2d 491 (2d Cir. 1986).
? See Transcript of Hearing at 36, 38-40, Matter of Doherty, No.
A26 185 231 (BIA Sept. 12, 1986) [hereinafter “Transcript of Sept. 12
Hearing”); see also Petition of Joseph Patrick Thomas Doherty for an
Order to Show Cause for a Writ of Habeas Corpus at para. 43,
Doherty v. Meese, 808 F.2d 938 (2d Cir. 1986) (No. 415, Docket
86-2335) [hereinafter “Doherty Petition”); Affidavit of Mary Boresz
Pike (Counsel for Respondent), sworn to Dec. 2, 1987, at paras. 10-14
{hereinafter “Pike Affidavit”].
50a
withdraw the application for political asylum. The only
thing that we would request would, of couse, be the op-
portunity to desingnate [sic] a country.” See Transcript of
Sept. 12 Hearing, supra note 2, at 38. The colloquy be-
tween the immigration judge and respondent’s counsel
continued as follows:
Q. ... 1 just want to be sure there won't be any ap-
plication for political asylum and/or withholding of
deportation, correct?
A. That is correct.
Q. No application for voluntary departure?
A. That is correct.
Q. In other words, there is no application for relief
from deportation that you will be making?
A. That is correct.
Id. at 38-39. Respondent designated the Republic of
Ireland as his country of deportation, pursuant to 8
U.S.C. § 1253(a). The INS strongly opposed this designa-
tion on the ground that it would be prejudical to the in-
terests of the United States to send respondent to Ireland.
The INS explained to the court that the deportation of
respondent to the United Kingdom was a matter of great
interest at the highest levels of the federal government.
Transcript of Sept. 12 Hearing, supra note 2, at 41-43,
47-48; Transcript of Hearing at 57, Matter of Doherty,
No. A26 185 231 (BIA Sept. 19, 1986). The court denied
the INS’s request for permission to submit evidence of ad-
ditional grounds for deportation, because respondent had
conceded deportability and waived his claims to asylum
and withholding of deportation. See Transcript of Sept. 12
Hearing, supra note 2, at 39-40.
One week later, on September 19, 1986, the immigration
judge found respondent deportable on his own admissions
for having entered this country in February 1982 by fraud
Sla
and without a valid immigrant visa. 8 U.S.C.
§§ 1182(a)(19)-(20), 1251(a)(1).2 Over the INS’s strenuous
objection, the immigration judge ordered respondent
deported to the country of his designation, the Republic of
Ireland.
At the time of the immigration judge’s decision, re-
spondent faced a ten-year sentence of imprisonment in
Ireland under a “dual prosecution agreement” between
Ireland and the United Kingdom. Doherty v. Meese, 808
F.2d at 940.4 Respondent’s consent to deportation and his
withdrawal of his applications for relief from deportation
were apparently prompted by the imminent ratification
and implementation of the Supplementary Extradition
Treaty between the United States and the United
Kingdom, Supplementary Extradition Treaty, June 25,
1985, United States-United Kingdom, Exec. Report 99-17
(effective Dec. 23, 1986) [hereinafter “Supplementary
Treaty”].° Under the Supplementary Treaty, respondent
could have been extradited directly to the United
* See of Matter of Doherty, No. A26 185 231 (BIA Sept. 19, 1986).
* It was also likely that respondent would be tried in the Republic of
Ireland for his escape from prison in Belfast, Northern Ireland. See
Doherty Petition, supra note 2, at para. 55.
* The Supplementary Treaty amended the Extradition Treaty. The
Supplementary Treaty had been ratified by the United States Senate
on July 17, 1986, and, at the time of the immigration judge’s
September 19, 1986 decision, was pending before the British House of
Commons. Respondent apparently expected the House of Commons
to ratify the treaty sometime in October 1986. See Doherty Petition,
supra note 2, at para. 33. The Supplementary Treaty became operative
on December 23, 1986.
Under Article 4 of the Supplementary Treaty, the “political offense”
exception to extradition in the Extradition Treaty was eliminated with
retroactive effect. Thus, ratification and implementation of the Sup-
plementary Treaty might have rendered respondent subject to extradi-
tion, despite the prior district court decision denying such a request.
52a
Kingdom, where, as noted, he faced a life sentence for
murder. “[Respondent] thus urgently want{ed] to leave the
United States for Ireland, where he face[d] only a ten-year
sentence, before the British House of Commons act[ed]
upon the treaty.” Doherty v. Meese, 808 F.2d at 940.
4. The INS appealed the immigration judge’s decision
to the BIA. Respondent, however, in an attempt to pre-
vent the INS from continuing to contest respondent’s
deportation to Ireland, petitioned the district court for a
writ of habeas corpus, which was denied on September 25,
1986. Jd. at 941. Respondent appealed to the Second Cir-
cuit.
On December 23, 1986, the Second Circuit affirmed the
district court’s denial of respondent’s habeas corpus peti-
tion. In so doing, the court rejected respondent’s conten-
tion that the government was resisting respondent’s depar-
ture to Ireland solely for the purpose of assuring his con-
tinued availability for extradition to the United Kingdom
upon final ratification of the Supplementary Treaty. The
court stated that it had jurisdiction to intervene in the
pending deportation proceeding “only if the Attorney
General is clearly outside the discretion granted to him by
Section 1253(a) in rejecting the Republic of Ireland and
designating the United Kingdom and is clearly unreason-
able in pressing his position through the administrative
process.” Doherty v. Meese, 808 F.2d at 942.
The court determined that the INS’s appeal of the im-
migration judge’s order to the BIA was not unjustified
because it was reasonable for the Attorney General to con-
clude and to argue that the interests of the United States
would be prejudiced by deporting respondent to Ireland.
Id. at 943. The court stated that the judgment as to
whether the interests of the United States would be pre}-
udiced was “an essentially political determination.” /d.
The court also noted that “[t}he lack of precedent hardly
53a
renders the government’s position frivolous.” Jd. at 941
n.3. Further, the court pointed out that, in a case such as
this, apart from claims such as fraud, lack of jurisdiction,
or unconstitutionality, “the determination of the Attorney
General is essentially unreviewable.” Jd. at 944 (footnote
omitted).
5. Thereafter, on March 11, 1987, the BIA dismissed
the INS’s appeal of the immigration judge’s September 19,
1986, order, and denied an INS motion to supplement the
record. The Commissioner of the INS sought review by
Attorney General Meese pursuant to 8 C.F.R.
§ 3.1(h)(1)(iii). The Attorney General granted the INS’s re-
quest for review and allowed respondent and the INS to
submit additional evidence and memoranda.
On December 3, 1987, while the issue of respondent’s
deportation to Ireland was pending before Attorney
General Meese, respondent moved to reopen his deporta-
tion proceedings pursuant to 8 C.F.R. §§ 3.2, 3.8, and
242.22, to apply for asylum and withholding of deporta-
tion, and to change his designated country of deportation.
Motion of Respondent to Reopen or to Reconsider, at 1,
Matter of Doherty, No. A26 185 231 (BIA Dec. 3, 1987).
Respondent claimed that his motion was prompted by a
change in Irish law. In the opinion of respondent’s
counsel, the Extradition (European Convention on the
Suppression of Terrorism) Act [hereinafter “Extradition
Act”], which went into effect in Ireland on December 1,
1987, would allow respondent’s extradition from Ireland
to the United Kingdom.®
6. On June 9, 1988, Attorney General Meese disap-
proved the BIA’s decision, ruled that the INS had shown
* See Pike Affidavit, supra note 2, at paras. 25-28; see also Euro-
pean Convention on the Suppression of Terrorism, 1977, Europ. T.S.
No. 90.
54a
that respondent’s deportation to Ireland would be preju-
dicial to the interests of the United States, and ordered
respondent deported to the United Kingdom. Matter of
Doherty, Mem. Att’y Gen. (June 9, 1988). The Attorney
General rested his decision on two separate considera-
tions: first, that respondent’s deportation to the United
Kingdom would serve the policy of the United States that
those who commit violent acts against a democratic state
should be promptly and lawfully punished and, second,
that the Department of State had shown that respondent’s
deportation to Ireland rather than to the United Kingdom
would be detrimental to the United States’ foreign policy
interests.’ Respondent’s motion to reopen also was con-
sidered in the Attorney General’s June 9, 1988, ruling; the
motion was remanded to the BIA. Matter of Doherty,
Mem. Att’y Gen. (June 9, 1988).
7. On November 14, 1988, five months after Attorney
General Meese’s order, the BIA granted respondent’s mo-
tion to reopen by a 3-2 vote. Matter of Doherty, No. A26
185 231 (BIA Nov. 14, 1988). The BIA majority
acknowledged that there is “no absolute right to withdraw
a prior designation of a country of deportation.” /d., slip
op. at 5. However, the BIA found that at the time of his
hearing before the immigration judge, respondent had
“the reasonable expectation . . . that he would be deported
to Eire” and that “the likelihood of his being deported to
the United Kingdom appeared remote.” /d. at 6. “Given
the state of the law at that time, the respondent could not
have been expected to anticipate that he would not be
deported to his country of choice. The respondent’s failure
to file for asylum under these circumstances is excusable.”
Id.
? Respondent has appealed the Attorney General’s June 9, 1988,
ruling to the Second Circuit. Doherty v. United States Dep't of
Justice, C.A. 88-4084 (2d Cir. filed June 21, 1988). The parties have
agreed to suspend any action on that appeal pending the outcome of
this appeal by the INS.
5Sa
The BIA also held that “the Attorney General’s decision
of June 1988 disallowing the respondent’s choice of a
country of deportation constitutes changed circumstances
which have arisen since the hearing.” Jd. Additionally,
respondent had “submitted recently published background
evidence which we find to be material to the respondent’s
case.” Jd. The BIA majority provided no analysis of this
evidence to support its conclusion.
Finally, the BIA majority held that respondent’s
evidence established a prima facie claim of a well-founded
fear of persecution. It noted that the INS would have the
opportunity to prove that respondent had engaged in con-
duct which rendered him either ineligible for withholding
of deportation or unfit for asylum, and concluded that the
motion to reopen should be granted. /d.
8. The INS appealed the decision of the BIA to me on
December 5, 1988.
The Attorney General has retained the authority to
review final decisions of the BIA, 8 C.F.R. § 3.1(h), and he
may do so either on his own initiative or upon request. /d.
§ 3.1(h)1(i)-(iii). The relief sought by respondent — reopen-
ing of proceedings —is wholly discretionary. The BIA has
promulgated regulations governing its consideration of
motions to reopen proceedings. See 8 C.F.R. §§ 3.2, 3.8,
and infra note 17. These regulations, however, apply only
to the BIA, not to the Attorney General, although of
course the Attorney General may refer to these regulations
when considering a motion to reopen. The Attorney
General’s decision is de novo; he is not confined to review-
ing for error. His decision is final, see Matter of Doherty,
Mem. Att’y Gen. at 4 (June 9, 1988), subject only to
judicial review for “abuse of discretion.”* This is the
* See INS v. Rios-Pineda, 471 U.S. 444, 449 (1985); INS v. Jong Ha
Wang, 450 U.S. 139, 144 (1981); Bahramnia v. INS, 782 F.2d 1243,
56a
backdrop against which I consider respondent’s motion to
reopen.
Respondent relies upon three separate grounds in argu-
ing for reopening of his deportation proceedings.? First, in
1246 & n.15 (Sth Cir.), cert. denied, 107 S. Ct. 398 (1986); Garcia-Mir
v. Smith, 766 F.2d 1478, 1490 & n.16 (Sth Cir. 1985); Muigai v. INS,
682 F.2d 334, 337 (2d Cir. 1982); Scheiber v. INS, 461 F.2d 1078, 1079
(2d Cir. 1972); Wong Wing Hang v. INS, 360 F.2d 715, 718-719 (2d
Cir. 1966).
* Respondent seeks reopening so that he can request asylum and
withholding of deportation. Asylum is discretionary with the Attorney
General. INS v. Stevic, 467 U.S. 407, 423 n.18, 426 (1984); INS v.
Cardoza-Fonseca, 107 S. Ct. 1207, 1219-20 (1987). To be eligible for
asylum, the alien must demonstrate that he is a “refugee.” 8 U.S.C.
§ 1101(a)(42)(A). He must show that he is unable or unwilling to
return to his country because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, group member-
ship, or political opinion—a standard that is lower than the “clear
probability” standard in withholding of deportation cases, and that
does not require a showing that persecution is more likely than not.
INS v. Cardoza-Fonseca, 107 S. Ct. at 1213, 1222 & n.31; [pina v.
INS, 868 F.2d 511, 513-14 & n.6 (Ist Cir. 1989). The BIA has held that
“an applicant for asylum establishes a well-founded fear if he shows
that a reasonable person in his circumstances would fear persecution.”
Matter of Barrera, Interim Dec. 3093, slip op. at 12 (BIA Jan. 5,
1989).
Asylum requests made after the institution of deportation pro-
ceedings shall also be considered as requests for withholding of exclu-
sion or deportation. 8 C.F.R. § 208.3(b); Matter of Martinez-
Romero, 181. & N. Dec. 75, 77 n.6 (1981), aff'd, Martinez-Romero vy.
INS, 692 F.2d 595 (9th Cir. 1982).
An alien seeking withholding of deportation from any country must
show that his “life or freedom would be threatened in such country on
account of race, religion, nationality, membership in a particular
social group, or political opinion.” 8 U.S.C. § 1253(h)(1).
Withholding of deportation is nondiscretionary. It must be granted if
the Attorney General finds that the alien would be threatened for any
of the five reasons listed in the statute. INS v. Stevic, 467 U.S. at 421
n.15, 426; INS v. Cardoza-Fonseca, 107 S. Ct. at 1212. The burden is
—
So AR A as ee a
57a
relying upon the BIA opinion, he claims that Attorney
General Meese’s order that he be deported to the United
Kingdom because deportation to Ireland would be prej-
udicial to the interests of the United States, see id. at 7-9,
was an unforeseen, adverse administrative decision, con-
Stituting a “new fact.”'® Second, he claims that, after he
admitted deportability and withdrew his claims for asylum
and withholding of deportation, there was a change in
Irish law as a consequence of the December 1, 1987 im-
plementation of the Extradition Act in Ireland. Specifical-
ly, he contends that, if deported to Ireland, the provisions
of the Extradition Act would result in his “certain” ex-
tradition to the United Kingdom.'' He argues that had he
known of this subsequent development he might have
made different decisions at his deportation proceedings.
As a third ground for reopening, respondent claims that
there is new and material evidence bearing on his deport-
ability that should now be considered. The asserted new
evidence consists of (1) a 1988 report by Amnesty Interna-
tional on the British security forces’ treatment of suspected
IRA members, and other supporting documents; (2) an af-
fidavit from his mother, relating chiefly to the experiences
of her family and other republican sympathizers with the
on the alien to establish a “clear probability” of persecution on any
one of the statutory grounds. /NS v. Stevic, 467 U.S. at 430; Ipina v.
INS, 868 F.2d at 515.
'© Respondent does not make this argument in terms. However, the
BIA specifically granted the motion to reopen on the ground that At-
torney General Meese’s order was, in effect, new evidence. For this
reason, | address the argument here.
'' See Brief for Respondent-Appellee to the Attorney General at 14
(April 26, 1989) [hereinafter “Respondent's Brief”).
as
58a
British security forces;'? and (3) affidavits from respond-
ent’s counsel.'?
1 do not believe that any of these three arguments
justifies reopening respondent’s deportation proceedings
and, accordingly, I deny the motion.
As to the arguments relied upon by respondent in sup-
port of the motion, first, throughout these proceedings,
respondent knew that the Attorney General might deny his
designation of Ireland as the country to which he would be
deported. This authority is expressly reserved to the At-
torney General by statute, 8 U.S.C. § 1253(a), and the INS
consistently took the position that it would oppose re-
spondent’s deportation to any country other than the
United Kingdom. It also informed respondent that his
deportation to the United Kingdom was a matter of in-
terest at the highest levels of the federal government. It is
clear from the record that respondent made the conscious
decision that he would rather be exposed to the risk that
the Attorney General would deny his deportation to
Ireland than to the risk of extradition directly to the
United Kingdom by the United States under the Sup-
plementary Treaty, then in the final stages of ratification.
lt is unlikely that the Attorney General’s decision to
avail himself of his recognized authority to reject a
deportee’s designation can ever constitute new evidence. It
certainly cannot properly be considered new evidence
where, as here, deportation to the country designated by
the alien has been vigorously contested throughout the
proceedings by the federal Government; it has been
represented that there is interest at the highest levels of
'2 See Affidavit of Mary (Maureen) Doherty, sworn to Dec. 2, 1987
{hereinafter “M. Doherty Affidavit”}. |
') See Pike Affidavit, supra note 2; Supplemental Affidavit of
Mary Boresz Pike, sworn to Aug. 9, 1988 [hereinafter “Pike Sup-
plemental Affidavit”.
59a
the Government that the alien not be deported to the coun-
try designated; and the Attorney General ultimately con-
cludes that the national interests should prevail. Appeal to
the Attorney General and decision consistent with the in-
terests of the United States under such circumstances
should reasonably be expected. See discussion infra at
[65a-67a.]
Second, on the assumption that the implementation of
the Extradition Act represented a change in law, it did not
change the rules of decision applied by the immigration of-
ficials or Attorney General Meese. If the implementation
of the Extradition Act represents a change in fact, it is an
immaterial change. The Extradition Act gave effect in
Irish law to the provisions of the European Convention on
the Suppression of Terrorism [hereinafter “European
Convention”], to which the United Kingdom is also a
party. The Irish Government expressed its intention to
sign the European Convention in November 1985, and did
in fact sign it in February 1986. Accordingly, respondent
knew or should have known well before December 1, 1987
that Ireland had endorsed the provisions of the European
Convention. Furthermore, respondent was subject to ex-
tradition to the United Kingdom from Ireland even before
Ireland became a party to the European Convention.
Thus, Ireland’s subsequent adoption and implementation
of the Extradition Act did not in itself create a risk of ex-
tradition; nor did it materially increase the risk that
respondent would be extradited to the United Kingdom.
See discussion infra at [67a-73a.]
Third, much of the “new” factual evidence proffered by
respondent is not new at all; it was available at the time of
the earlier proceedings, and respondent offers no reason
for his failure to present it at that time. The evidence that
was not available is not material; for the most part, it is
cumulative of evidence presented in the earlier pro-
60a
ceedings. It does not support existence of a threat different
in character from that known at the time of the deporta-
tion proceedings. See discussion infra at [74a-78a.]. .
Thus, none of the grounds offered for reopening
respondent’s deportation proceedings is sufficient to war-
rant reopening. .
In addition to finding the arguments advanced in sup-
port of reopening insufficient, | would, in the exercise of
my discretion and as an independent basis for decision,
deny the motion to reopen on the ground that respondent
explicitly waived his claims to asylum and withholding of
deportation as part of a calculated plan to ensure im-
mediate deportation to Ireland before the United
Kingdom ratified its treaty with the United States, which
would have allowed respondent to be extradited directly to
the United Kingdom. See discussion infra Part IV.'* The
integrity of the administrative process dictates that a
deportee who, with the advice and assistance of counsel,
makes such deliberate tactical decisions, not be permitted
to disown those decisions merely because they ultimately
result in action adverse to his interests. This is especially
the case where the possibility of that action was not only
foreseeable but foreseen. .
Finally, | also deny respondent’s motion to reopen on
the unrelated ground that respondent would not ultimately
be entitled to either asylum, the discretionary relief he
'4 See, e.g., Communication Workers of America, Local 5008 v.
NLRB, 784 F.2d 847, 851 (7th Cir. 1986) (court must sustain ad-
ministrative decision if any of the independent grounds that support
the decision is correct).
6la
seeks, or withholding of deportation, the nondiscretionary
relief he seeks. See discussion infra Part V.'*
Respondent simply has not carried the heavy burden of
showing either that he is entitled to reopen his deportation
proceedings or that, as a matter of discretion, he should be
allowed to do so. The record reveals clearly that respond-
ent made deliberate, well-informed, tactical decisions
throughout the proceedings to ensure deportation, if at
all, to the country of his choice; that he recognized and
knowingly assumed the risks that attended each decision;
and that all that has happened is that the risks he recog-
nized have in fact materialized. That which the Supreme
Court said in the context of a similar attempt to rescind a
litigating decision in an immigration proceeding is ap-
plicable to respondent:
[hjis choice was a risk, but calculated and deliberate
and such as follows a free choice. [Respondent] can-
not be relieved of such a choice because hindsight
seems to indicate to him that his decision . . . was
probably wrong. . . . There must be an end to litiga-
tion someday, and free, calculated, deliberate choices
are not to be relieved from.
Ackermann v. United States, 340 U.S. 193, 198 (1960).'¢
'S See supra note 14.
'* See also Ballenilla~-Gonzalez v. INS, 546 F.2d 515, 520 (2d Cir.
1976) (alien’s waiver of claimed right to counsel was binding, despite
her mistaken impression of the law; denial of motion to rehear
upheld), cert. denied, 434 U.S. 819 (1977); Small v. INS, 438 F.2d
1125, 1128 (2d Cir. 1971) (alien’s waiver through counsel of right to
present further evidence at new hearing was binding; deportation
order affirmed); La Franca v. INS, 413 F.2d 686, 690 (2d Cir. 1969)
(no reason to reopen proceeding to permit alien to try to establish
eligibility for voluntary deportation where alien’s counsel had
previously waived request for hearing on voluntary departure); Matter
62a
I turn first to the claims that respondent should be per-
mitted to reopen his deportation proceedings because of
(1) the unexpected, adverse decision of Attorney General
Meese ordering him deported to the United Kingdom, (2)
the supervening implementation in Ireland of the Extradi-
tion Act, see Respondent’s Brief, supra note 11, at 14;
Pike Affidavit, supra note 2, at paras. 24-28, and (3) the
affidavits, book and report submitted by respondent.
These events are portrayed as “new facts” warranting a
reopening of proceedings. The BIA held that Attorney
General Meese’s order justified reopening and permitting
respondent to withdraw his prior waivers of claims to
asylum and withholding of deportation. See Respondent’s
Brief, supra note 11, at 9 & n.5. Respondent raised, but
the BIA was not required to decide, the question of the ef-
fect of the Extradition Act because of its holding that At-
torney General Meese’s order was alone sufficient grounds
upon which to reopen. See Matter of Doherty, No. A26
185 231, slip op. at 5-6 (BIA Nov. 14, 1988). The BIA sug-
gested, but did not explicitly hold, that the affidavits and
books would be sufficient to justify reopening. /d. at 6.
Deportation proceedings may be reopened by the BIA
on the basis of new evidence if the evidence “is material
and was not available and could not have been discovered
or presented at the former hearing.” 8 C.F.R. §3.2.."" A
of M-, 51. & N. Dec. 472, 474 (1953) (counsel’s decision not to file ap-
plication for suspension of deportation during pendency of deporta-
tion hearing was analogous to error of judgment in conduct of
defense, since filing became untimely; denial of motion to reopen
would not violate due process; motion was granted “purely as a matter
of grace”).
‘7 “Motions to reopen shall state the new facts to be proved at the
reopened hearing and shall be supported by af fidavits or other eviden-
tiary material.” 8 C.F.R. § 3.8. “Motions to reopen in deportation
proceedings shall not be granted unless it appears to the Board that
63a
motion to the BIA to reopen a deportation proceeding on
the basis of previously unavailable evidence is “ap-
propriate(ly] analog{ized}” to “a motion for a new trial ina
criminal case on the basis of newly discovered evidence, as
to which courts have uniformly held that the moving party
bears a heavy burden.” INS v. Abudu, 108 S. Ct. 904, 914
(1988). Motions to reopen deportation proceedings on this
ground are plainly “disfavored,” id. at 913,'* for reasons
“comparable to those that apply to petitions for rehearing,
and to motions for new trials on the basis of newly
discovered evidence.” Jd. (footnotes omitted).'* General-
ly, a motion to reopen on the grounds of new evidence will
evidence sought to be offered is material and was not available and
aaee have been discovered or presented - the former hearing.”
Similarly, a motion to the immigration judge for reopenin .
suant to 8 C.F.R. § 242.22 “will not be granted Ane the reel
judge is satisfied that evidence sought to be offered is material and
was not available and could not have been discovered or presented at
the hearing.” Except as otherwise provided, a motion to reopen under
8 C.F.R. § 242.22 “shall be subject to the requirements of section
103.5,” which states in part that “{a] motion to reopen shall state the
new facts to be proved at the reopened proceeding and shall be sup-
ported by affidavits or other evidentiary material.” 8 C.F.R
§ 103. 5(a). A motion to reopen pursuant to 8 C.F.R. § 208.11 on the
a of ° asylum request “must reasonably explain the failure to re-
quest asylum prior to the completion of the . . . deportation -
ceeding.” See also Ghosh v. Attorney General, 629 F '24 987, 989 aah
Cir. 1980); Matter of Haim, Interim Dec. 3060, slip op. at 3 (BIA
April 11, 1988); Matter of Lam, 141. & N. Dec. 98, 99 (1972).
'* See also INS v. Jong Ha Wang, 450 U.S. 139, 143 n.5 (1981)
(regulatory language disfavors reopening).
'* Failure to introduce previously available, material evidence, 8
Cc -F.R. § 3.2 (or, in an asylum application case, failure to reasonably
pose the failure to apply for asylum initially, id. 208.11), is an in-
ependent ground on which the BIA may deny a motion to
INS v. Abudu, 108 S. Ct. at 911. as
za
64a
not prevail unless the profferred evidence is such that it
probably would change the outcome of the prior pro-
ceeding.?°
While the BIA standards apply only to the BIA, not to
the Attorney General, I refer to them in my consideration
of the arguments made for reopening in this part because I
believe they embody neutral inquiries that go directly to
the issue of the applicant’s justification for asking for, and
the administrative system’s justification for allowing, the
reopening of proceedings previously closed.
Under these standards, I do not believe that either At-
torney General Meese’s decision or the implementation of
the Extradition Act warrants reopening of respondent’s
deportation proceedings. Neither constitutes previously
unobtainable material evidence as required by the regula-
tions, see 8 C.F.R. §§ 3.2, 3.8, 242.22, nor a reasonable
justification for permitting respondent to withdraw his
waiver of his claim for asylum. Jd. at 208.11.?!
2° See United States v. Agurs, 427 U.S. 97, 111 & n.19 (1976)
(standard is generally applied on motions for new criminal trials);
Philip v. Mayer, Rothkopf Industries, Inc., 635 F.2d 1056, 1063 (2d
Cir. 1980) (no new trial in civil case where movant’s post-trial evidence
would not “change our result here”); United States v. Slutsky, 514
F.2d 1222, 1225 (2d Cir. 1975) (post-trial evidence must be “so
material that it would probably produce a different verdict”); United
States v. On Lee, 201 F.2d 722, 724 (2d Cir.) (same), cert. denied, 345
U.S. 936 (1963).
?' It is unnecessary for me to address (and | do not) the question
whether respondent has established a prima facie case for the substan-
tive relief sought. The Attorney General may decide not to reopen a
deportation proceedings, even if the movant establishes a prima facie
case for granting asylum or withholding of deportation. See INS v.
Abudu, 108 S. Ct. at 912-13 (holding that motion to reopen may be
denied in an asylum case if alien fails reasonably to explain failure to
file asylum claim initially, and stating that “the BIA has discretion to
deny a motion to reopen even if the alien has made out a prima facie
65a
1. Attorney General Meese’s June 9 order cannot
properly be considered a “new fact.” While the actual fact
of the order is in some sense “new,” the possibility that the
Attorney General would refuse to accept respondent’s
designation of Ireland as the country to which he wanted
to be deported was known, or should have been known,
throughout the proceedings. ;
The authority of the Attorney General, in his discretion,
to deny deportation to the country designated by an alien
is plain on the face of the same statute that gives the alien
the right to designate the country to which he wishes to be
deported:
The deportation of an alien in the United States pro-
vided for in this chapter, or any other Act or treaty,
shall be directed by the Attorney General to a country
promptly designated by the alien if that country is
willing to accept him into its territory, unless the At-
torney General, in his discretion, concludes that
deportation to such country would be prejudicial to
the interests of the United States.
8 U.S.C. § 1253(a) (emphasis added). Given this explicit
reservation of authority and its appearance in the very
case for relief” and that “in a given case, the BIA may determine. . .
as a sufficient ground for denying relief . . . whether the alien has pro-
duced previously unavailable, material evidence (§ 3.2)”); see also INS
v. Rios-Pineda, 471 U.S. at 449 (“even assuming that respondents’
motion to reopen made out a prima facie case of eligibility for suspen-
sion of deportation, the Attorney General had discretion to deny the
motion to reopen”); INS v. Jong Ha Wang, 450 U.S. at 139, 144 n.5 (8
C.F.R. § 3.8 “does not affirmatively require the Board to reopen the
proceedings under any particular condition”); Bahramnia v. INS, 782
F.2d at 1249; Yousif v. INS, 794 F.2d 236, 241 (6th Cir. 1986);
Ahwazi v. INS, 751 F.2d 1120, 1122 (9th Cir. 1985); Matter of A- G-,
Interim Dec. 3040, slip op. at 3 (BIA Dec. 28, 1987); Matter of
Barocio, Interim Dec. 2992 (BIA Aug. 8, 1985).
idl
66a
same sentence that accorded respondent the right to
designate Ireland his country of deportation, it is in-
conceivable that anyone represented by counsel could not
know that there always existed a risk that the Attorney
General would deny respondent’s deportation to Ireland to
protect the interests of the United States.
Even if the possibility of denial by the Attorney General
were not so clear from the face of the statute alone, it
should have been evident from the position taken by the
Government from the outset of the proceedings. At the
September 12, 1986, hearing at which respondent
designated !reland as his country of deportation, counsel
for the INS objected to that designation, and stated that
the INS would take the position that deportation to any
country other than the United Kingdom would be preju-
dicial to the interests of the United States. Transcript of
Sept. 12 Hearing, supra note 2, at 41-43, 47-48. The INS
even represented that there was interest at the highest
levels of the federal government in having respondent
deported to the United Kingdom. /d. at 47 (“this matter is
of some concern at the highest levels of government and
. was under consideration by the legal advisor to the
State Department and will be under the personal review of
Attorney General Meiss [sic] this coming week.”).
Given these representations by the INS, respondent
clearly should have understood, if he did not, that “[a]fter
the BIA determination, the case might ultimately be re-
ferred to the Attorney General at his request, at the re-
quest of the Chairman or a majority of the BIA, or at the
request of the Commissioner of the INS.” Doherty v.
Meese, 808 F.2d at 942. Contrary to the conclusion of the
BIA, Matter of Doherty, No. A26 185 231, slip op. at 6
(BIA Nov. 14, 1988), once this possibility was
acknowledged, respondent reasonably should have known
67a
(again, if he did not) that the Attorney General ultimately
might forbid deportation to Ireland. The ultimate decision
in an administrative process cannot itself constitute “new”
evidence to justify reopening. If an adverse decision were
sufficient, there could never be finality in the process.
2. Respondent also characterizes Ireland’s implemen-
tation of the Extradition Act, and specifically the provi-
sions permitting extradition to the United Kingdom, as a
supervening change requiring reopening of the pro-
ceedings. He terms this asserted change “the watershed
event,” Respondent’s Brief, supra note 11, at 11-12, “the
gravamen of [his] motion to reopen,” id. at 14, and “{t}he
event warranting the motion,” Pike Affidavit, supra note
2, at para. 5.2? For the reasons below, I do not believe that
implementation of the Extradition Act was a “new fact.”
Moreover, even assuming that it was new and did repre-
sent a change in Irish law, it is irrelevant, given that At-
torney General Meese ordered respondent deported to the
United Kingdom not Ireland.
It is plain that implementation of the Extradition Act
was not a “new” fact. In the Anglo-Irish Agreement
entered into at Hillsborough, Northern Ireland on
November 15, 1985, the Irish Government expressed its in-
tention “to accede as soon as possible to the European
Convention on the suppression of terrorism.” Anglo-Irish
Agreement, Nov. 15, 1985, Ireland — United Kingdom, 24
I.L.M. 1579, 1581 (1985). Ireland signed the European
22 Al one time, respondent suggested that the change in Irish law
was the sole cause of his motion. See Reply Brief of Respondent-
Appellee to Opposition to Respondent’s Motion to Reopen or To
Reconsider at 6 (April 22, 1988) (“The cause of [respondent’s
motion’s} December 3, 1987, filing was the implementation on
December 1, 1987, of the Extradition Act. No grounds for its filing ex-
isted until December |, 1987; respondent can hardly be faulted for not
having filed it prior to that date.”) (footnote omitted).
68a
Convention on February 24, 1986, see, e.g., Ireland Signs
Terrorism Convention, Fin. Times, Feb. 25, 1986, § 1, at
4, col. 4, more than six months before respondent
withdrew his applications for asylum and for withholding
of deportation and conceded deportability. See discussion
supra at [49a-S0a.] Both the November 1985 Anglo-Irish
Agreement and Ireland’s February 1986 signing of the
European Convention were widely publicized. See, e.g.,
Fitzgerald Discusses Anglo-Irish Pact, U.S. Aid, \r. Echo,
March 22, 1986, at 6, col. 1; Holland, Ireland to Sign
Anti-Terrorist Convention, Ir. Echo, March 1, 1986, at 2,
col. 1; Complete Text of Anglo-Irish Agreement on
Ulster, The Times (London), Nov. 16, 1985, at 4, col. 1.
Respondent, having expressly based his designation on a
counseled understanding of Irish extradition laws, is prop-
erly chargeable with knowledge of Ireland’s signing of the
European Convention.
The Extradition Act, which gave effect in Irish law to
the European Convention and amended the Extradition
Act of 1965, was passed on January 21, 1987. Extradition
(European Convention on the Suppression of Terrorism)
Act, No. 1 (1987). Section 13 of the Extradition Act pro-
vided that its implementation was suspended until
December |, 1987, subject to the condition that resolu-
tions of both Houses of the Irish Parliament could bring it
into force at an earlier date or provide for further
postponement. /d. § 13.73 In sum, “the watershed event”
upon which respondent relies was neither sudden nor un-
foreseeable. Instead, it was the logical culmination of a
?? Pursuant to Section 13, the Extradition Act was automatically
implemented on December 1, 1987. Acceleration or postponement of
the implementation date, however, would not have affected the Ex-
tradition Act’s applicability to respondent. By its terms, the Extradi-
tion Act applies to offenses committed or alleged to have been com-
mitted “before or after” the date of passage, January 21, 1987. /d.
§ 1(4).
69a
lawmaking process that had been set in motion more than
two years prior to December 1, 1987.
Even were the fact of the Extradition Act “new,” it
would not justify reopening of the deportation pro-
ceedings. A supervening change in the law does not
generally constitute a reason for granting a new trial or for
amending a judgment, even if the litigant has abandoned a
claim or defense that might be meritorious in light of the
change.?4 And, as noted, a change in law that would not
constitute grounds for a new trial ordinarily does not
justify reopening deportation proceedings. JNS v. Abudu,
108 S. Ct. at 913-14. Some courts have held that an excep-
tion to this general rule against new trial exists where the
change in law would affect the rule pursuant to which the
prior decision was made. See, e.g., United States v. Bank
of America National Trust & Savings Association, 51 F.
Supp. 751, 751 (N.D. Cal. 1943). But see McMann v.
Richardson, 397 U.S. 759, 774 (1970). Here, however, the
Extradition Act did not alter the rules of decision applied
by the immigration judge or the Attorney General in either
the Section 1253 proceedings or the asylum and
withholding of deportation proceedings. As to the former,
the immigration judge and Attorney General Meese
ordered respondent deported to Ireland and the United
Kingdom, respectively, based upon their assessments of
the foreign policy interests of the United States. The in-
terests of the United States, and the compatibility of
deporting respondent to either country with those in-
terests, are the same now as they were prior to the im-
plementation of the Extradition Act. As to the latter, the
Extradition Act could not have and did not change the
24 See Fed. R. Civ. P. 59a); Del Rio Distributing, Inc.v. Adolph
Coors Co., 589 F.2d 176, 178-79 (Sth Cir.), cert. denied, 444 U.S. 840
(1979).
70a
standards that apply to respondent’s asylum and
withholding of deportation claims under the statutes of
the United States. Accordingly, any change in law
wrought by the Extradition Act does not call into question
the legal correctness of the decisions that were made by
either the immigration officials or Attorney General
Meese.
Respondent presumably would argue that, if not a
change in law, the implementation of the Extradition Act
must represent a change in fact justifying reopening of the
proceedings because the Extradition Act expressly pro-
vides for extradition by Ireland to the United Kingdom.
This argument, too, is unpersuasive.
I do not believe that the Extradition Act’s provisions, as
they relate to respondent, represent a change in fact that
would warrant reopening these deportation proceedings.
Respondent was extraditable by Ireland to the United
Kingdom before the Extradition Act was implemented; he
would be extraditable under the Extradition Act. Indeed,
respondent himself repeatedly emphasized the serious risk
of extradition by Ireland before passage of the Extradition
Act in arguing for affirmance of the immigration judge’s
order that he be deported to Ireland.? For example, in his
Brief for Respondent-Appellee Joseph Patrick Thomas
Doherty at 16 (Dec. 19, 1986), he states, “the Service fails
to note that decisions of the Irish Supreme Court are
viewed as having vitiated the political offense exception,
thereby removing any obstacle to respondent’s extradition
from Ireland to Northern Ireland. See, e.g, McGlinchev
> See Doherty Petition, supra note 2, at paras. 53-54; Brief for
Respondent-Appellee Joseph Patrick Thomas Doherty at 16 (Dec. 19,
1986); Reply of Respondent to Opposition of the INS to Respondent's
Motion for Summary Dismissal at 7 n.5 (Oct. 27, 1986); Brief for Ap-
pellant John Patrick Thomas Doherty at 14 (Oct. 2, 1986).
|
Tila
v. Wren, 3 Ir. L. Rep. Monthly 169 (1982).” In the
Doherty Petition, supra note 2, at paras. 53-54, respond-
ent’s attorney, Stephen Somerstein, stated:
The Republic of Ireland ... has extradition ar-
rangements with the United Kingdom and has recent-
ly extradited to Northern Ireland individuals who had
raised the political offense exception as a defense to
their extradition, but were found by the Irish courts
to be non-political offenders. Upon his deportation to
Ireland, Mr. Doherty is subject to extradition from
Ireland to Northern Ireland pursuant to a request
therefor by the English government. His case will be
considered by the courts of the Republic of Ireland
pursuant to the well established law of that country in
an historical context but best understood by the Irish
and British themselves.
The only difference since implementation of the Extradi-
tion Act appears to be that extradition is now expressly
provided for by statute, whereas previously extradition
was simply ordered on the basis of less formal “extradition
arrangements” between the United Kingdom and Ireland.
See Doherty Petition, supra note 2, at para. 53. Given that
respondent faced a serious risk of extradition by the
United Kingdom before implementation of the Extradi-
tion Act, it cannot be said that the mere express provision
for extradition in the statute constitutes new evidence.
Respondent claims that the Extradition Act trans-
formed “the possibility of [his}) removal from Ireland to
the Unites’ Kingdom . . . into a certainty.” See Respond-
ent’s Brief, supra note 11, at 14. Respondent’s effort to
minimize the risk of deportation by Ireland before im-
plementation of the Extradition Act contradicts the
statements that he made before the BIA in defense of the
immigration judge’s order deporting him to Ireland. See
discussion supra note 25.
72a
Furthermore, it is unsupported by the provisions of the
Extradition Act itself which, incorporating the terms of
tive European Convention, provide for denial of extradi-
tion where
there are substantial grounds for believing that —
(ii) the warrant was in fact issued for the purpose
of prosecuting or punishing [the person named] on
account of his race, religion, nationality or political
opinion or that his position would be prejudiced for
any of these reasons.
Extradition (European Convention on the Suppression of
Terrorism) Act, No. 1, § 8 (1987); see also id. § 9. Thus,
existing Irish law explicitly preserves for respondent the
right to raise essentially those claims that he would have
relied upon under pre-existing Irish law. Accordingly, if
respondent has a meritorious claim that extradition to the
United Kingdom by Ireland would result in persecution,
he could raise that claim today before Irish officials who,
as respondent has previously suggested, see discussion
supra at [70a-7la}], would view his claim with greater
understanding.*® The reasonable inference therefore is
2© Indeed, there is reason to believe that the Extradition Act has ac-
tually enhanced the defenses available to an individual seeking to
resist extradition from Ireland to the United Kingdom. Under the Ex-
tradition (Amendment) Act, No. 25 (1987), the Attorney General of
Ireland is prohibited from endorsing for execution an arrest warrant
under the Extradition Act unless he is of the opinion that “there is a
clear intention to prosecute or . . . continue the prosecution of, the
person named or described in the warrant concerned for the offence
specified therein” in the country seeking extradition, and “such inten-
tion is founded on the existence of sufficient evidence.” Jd. § 2(1)(a).
Furthermore, extradition may also be refused on the grounds that, “by
reason of the lapse of time since the commission of the offence . . . or
the conviction of the person named . . . and other exceptional cir-
cumstances, it would be unjust, oppressive or invidious to deliver him
ee
73a
that respondent cannot credibly maintain now that the
change in Irish law has made his return to the United
Kingdom inevitable, and that, as a consequence, he should
be permitted to reopen and redesignate a country other
than Ireland.?’
Respondent’s argument on the Extradition Act comes
down to the fact that he believes that he will be given a
more sympathetic hearing on an asylum or withholding of
deportation claim in this country than he would receive on
a denial of extradition claim in his own country. Absent
reason to think that respondent will not receive a fair hear-
ing in his home courts of Ireland, this is simply not a basis
for reopening his deportation proceedings.
up... .” dd. § 2(1)(b). At least one recent study indicates that the Ex-
tradition Act does not go as far as the Irish Supreme Court has gone in
circumscribing the political offense exception. G. Hogan & C.
Walker, Political Violence and the Law in Ireland 292-93 (1989).
The actual administration of Irish extradition law after the im-
plementation of the Extradition Act also suggests that it is less than
certain that respondent would be extradited to the United Kingdom
were he deported to Ireland. On December 13, 1988, the Attorney
General of Ireland issued a statement rejecting a request by the
government of the United Kingdom to extradite the suspected PIRA
terrorist Patrick Ryan, whom the British authorities wished to try for
alleged terrorist activities, including conspiracy to murder, possession
of explosives, and conspiracy to cause explosions. See, e.g., Rule,
Irish Deny British Bid to Extradite Priest Suspected of Aiding 1.R.A..,
N.Y. Times, Dec. 14, 1988, § A, at 3, col. 1. In view of the Irish At-
torney General’s decision not to comply with that extradition request,
it seems entirely possible that a request to extradite respondent from
Ireland might also be rejected.
27 Even were | to assume that implementation of the Extradition
Act increased the risk that respondent would be extradited to the
United Kingdom from Ireland, | would not grant the motion to
reopen.respondent’s proceedings. Any change in the risk of extradi-
tion would necessarily be immaterial, given that the risk was “serious”
before the implementation of the Extradition Act and is no more than
serious (i.e., not certain) today.
74a
I would reject respondent’s claim based upon implemen-
tation of the Extradition Act on a separate and independ-
ent ground: even if I agreed that the Extradition Act was a
new fact and constituted a change in Irish law, I believe
that any change in Irish law is irrelevant. Attorney General
Meese determined that it would be against the interests of
the United States to deport respondent to Ireland, and in
furtherance of our national interests to deport him to the
United Kingdom where he could be promptly punished for
the crimes he has committed. Mem. Att’y Gen. at 7-9
(June 9, 1988). Unless I overturn Attorney General
Meese’s order, which I have no reason to do, a change in
Irish law has no effect upon respondent. Respondent can-
not be deported to Ireland because of the extant deter-
mination that that would be contrary to the interests of the
United States, and he cannot claim asylum against depor-
tation to the United Kingdom because he assumed the risk
of deportation to the United Kingdom when he designated
Ireland. See discussion supra at [6Sa-67a.} This is unlike
the situation where an alien designates a particular country
and there is a subsequent change in the country that in-
creases the likelihood of his persecution in that country. In
that circumstance, the alien may be harmed by the change
because he is being deported to the country in which the
change occurred. Here, in contrast, assuming arguendo
that there was a change in Irish law, that change cannot af-
fect respondent because he is not going to be deported to
Ireland.
3. Respondent also urges reopening on the ground
that he is profferring new evidence in the form of af-
fidavits and documents. This evidence is not both material
and previously unobtainable. See 8 C.F.R. §§ 3.2,
242.22.?* “When an alien has already had one full deporta-
2* The BIA provided no analysis to support its conclusory assertion
that “respondent has submitted recently published background evi-
75a
tion hearing, with all the procedural rights accompanying
it, . . . he or she may have it reopened only upon a show-
ing of significant new evidence.” Acevedo v. INS, 538
F.2d 918, 920 (2d Cir. 1976) (per curiam). Substantially all
of the evidence submitted by respondent is either cumula-
tive of that which he has previously presented, discover-
able long ago, or not material in light of the evidence that
was presented. None of the evidence supports existence of
a threat of persecution of which respondent was unaware
or a material change in the character of a threat previously
recognized.
(a) Respondent proffers certain documents, including
a report by Amnesty International, United Kingdom/
Northern Ireland: Killings by Security Forces and
“Supergrass” Trials (1988) [hereinafter “Amnesty
Report”], and a book relied on by Amnesty International
in its report, The Stalker Affair: The Shocking True Story
of Six Deaths and e Noivrious Cover-Up (1988), by John
Stalker, former Deputy Chief Constable of the Greater
Manchester (U.K.) Police Force, which he maintains con-
tain new evidence of the threat he faces by deportation.?°
Both the Amnesty Report and the Stalker book focus on
allegations that British security forces have killed or
wounded unarmed individuals suspected of membership in
republican armed opposition groups, as part of a govern-
ment policy of eliminating rather than arresting such in-
dividuals. The incidents of “particular concern” to Amnes-
ty International were “the killings of six unarmed persons
in late 1982.” Amnesty Report at 7; see id. at 17-25
dence which we find to be material to the respondent’s case.” Matter
of Doherty, No. A26 185 231, slip op. at 6 (BIA Nov. 14, 1988). Nor
did Board Member Heilman provide any analysis of these materials in
his concurring Opinion. '
2% The contents of these documents are summarized by respondent's
counsel in the Pike Supplemental Affidavit, supra note 13.
76a
(discussing the 1982 events). Information concerning these
events was available to respondent well before he brought
his motion to reopen, and indeed even before he withdraw
his claims for asylum and withholding of deportation in
September 1986. See Matter of Lam, 12 1. & N. Dec. 696
(1968).°° Thus, although the Amnesty Report itself first
appeared in 1988, respondent could, with due diligence,
have presented significant amounts of the information
contained in it at a much earlier stage of these pro-
ceedings.*' He offers no reasonable explanation for his
failure to do so.
(b) Respondent also proffers an affidavit from his
mother, describing her family’s dealings with the British
security forces, and with Ulster “unionist” elements out-
side the government.*? Even accepting as true the recitals
»® Lam is closely analogous to this case. In Lam, the BIA denied a
concedely deportable alien’s motion to reopen in order to withdraw his
designation of Hong Kong as his country of deportation, and to per-
mit him to apply for temporary withholding of his deportation
thereto. The alien claimed that he should have been given the oppor-
tunity to withdraw his designation because of Communist riots that
broke out in Hong Kong in May 1967. He contended that he had fled
from mainland China as a refugee from Communism, and that the
riots gave rise to a fear that he would be persecuted by the Com-
munists if he were sent to Hong Kong. The BIA denied his motion, in
part because his evidence was not previously unobtainable: the mo-
vant could have advanced his claim for asylum in a July 1967 hearing,
e.g., two months after the riots, but had not done so.
5! Amnesty International’s concerns over the causes of the incidents
against Irish republic groups do not bear on the treatment of in-
dividuals held in prison for criminal activities. Assuming for the pur-
poses of this motion that British security forces have on occasion
sought to kill suspected republican opposition members who were out-
side their custody, it does not follow that an individual actually in the
keeping of British forces would also be exposed to such a threat.
*2 The affidavit’s references to the conduct of nongovernmental
“unionist” elements relate generally to the unstable conditions in
77a
set forth, the affidavit merely presents evidence that was
discoverable earlier. Again, he offers no explanation as to
why he did not proffer the evidence during any of the
earlier proceedings.*?
Moreover, the evidence is essentially cumulative of that
offered previously. The theme of the affidavit is that a
longstanding pattern of conduct by British military and
police forces in Northern Ireland, coupled with the violent
activities of pro-unionist elements among the Protestant
population, indicates the presence of danger to suspected
republican sympathizers generally, and particularly to the
respondent and his family.** This claim, and indeed much
of the evidence cited to support it, is substantially the same
as that presented by respondent when he first claimed for
relief in June 1983; it does not suggest existence of either a
new source of persecution or a heightened danger of
persecution from an existing source which respondent did
not previously apprehend.** In fact, substantial portions
Northern Ireland, but do not substantiate a claim that he would be
threatened by persecution at the hands of British governmental
authorities. Cf. Matter of A- G-, Interim Dec. 3040, slip op. at 5-6.
3} The affidavits of respondent’s counsel, supra notes 2 and 13, also
fail to provide previously unobtainable material evidence. The perti-
nent facts recited therein are found elsewhere in respondent’s submis-
sions or are otherwise matters of record.
34 The danger indicated, it should be noted, need not be understood
as a danger of persecution. The lawful use of force by authorized of-
ficials which is reasonably aimed at detecting, preventing, or
punishing criminal activity does not support a claim of persecution.
The affiant’s statement does not attempt to distinguish such activity
on the part of the British military and police from the other types of
conduct she describes.
38 See Ganjour v. INS, 796 F.2d 832, 838 (Sth Cir. 1986) (applica-
tion for reopening untimely where based on information from
telephone call by alien’s sister in Iran predating immigration hearing
and appeal); Young v. INS, 759 F.2d 450, 456-57 (Sth Cir.) (affidavit
78a
of Mrs. Doherty’s affidavit relate to matters which oc-
curred even before respondent withdrew his claims for
asylum and withholding of deportation.** Other events of
more recent occurrence, although they may comprise in-
formation not previously available to respondent, are not
sufficiently material to warrant reopening.>’
Stating that alien’s daughter had recently been arrested and inter-
rogated about him by Guatemalan police was cumulative of prior
evidence), cert. denied, 474 U.S. 996 (1985); contrast Bernal Garcia v.
INS, 852 F.2d 144, 146-47 (Sth Cir. 1988) (new evidence consisted of
letter received after conclusion of deportation proceedings relating
previously unknown death threat made two weeks earlier); Ananeh-
Firempong v. INS, 766 F.2d 621, 626 (ist Cir. 1985) (supporting af-
fidavits described political events “that, in relevant part, had not oc-
curred until after [movant’s] earlier deportation proceedings had con-
cluded”).
36 See M. Doherty Affidavit, supra note 12, at paras. 1-20, 22-23,
25-27, 36-38 (relating information, substantially all of which was
available prior to respondent’s withdrawal of his claims for asylum
and withholding of deportation on September 12, 1986). Thus, for in-
stance, the affiant’s accounts of arrest, trial, and acquittal of respond-
ent’s sister on a charge of murder in 1983, see id. at para. 20, or of
subsequent events in 1985 and 1986 involving her da ghter and of the
man with whom her daughter lives, see id. at paras. 23-28, would ap-
pear to have been available to respondent well before his waiver of his
asylum claim. Indeed, in his 1983 application for asylum, respondent
referred to arrests of his mother, father, and three sisters at various
times in the prior twelve years, and to the bombing of his family’s
house in 1974 by what he described as a “quasi-official Protestant
group.” See Respondent’s Application for Political Asylum, signed
June 27, 1983. Much of respondent’s mother’s affidavit simply
elaborates on or adds detail to such allegations.
>’ For example, the affiant states that her son-in-law had been ar-
rested about five weeks before she made out her affidavit, and that
while he was detained, the police “made abusive remarks to him”
about respondent. M. Doherty Affidavit, supra note 12, at para. 35.
Again, for example, the affiant states that on two unidentifeid occa-
sions On which her daughter was detained by the police, “the inter-
79a
IV.
I am also exercising my discretion to deny respondent’s
motion to reopen on the independent ground that he
knowingly and intelligently waived any claim that he
might have had to asylum and withholding of deportation.
In my judgment, at least in this particular case, the in-
terests in the integrity of the administrative process and
finality of decision should prevail over whatever interest
respondent has in withdrawal of his calculated waivers
because of an unfavorable decision, which was clearly
foreseeable at the time.?*
Respondent expressly conceded deportability and with-
drew his claims to asylum and withholding of deportation
on September 12, 1986. He did so on the record, through
counsel, in response to a direct question from the im-
migration judge as to whether he intended to waive these
rogators talked about [respondent] and what would be done to him
upon his return.” /d. at para. 24. Such evidence is not different in
tenor from the allegations respondeni made when originally claiming
asylum in 1983. Furthermore, the statements attributed to the security
personnel are ambiguous. Bearing in mind that respondent has been
convicted of a murder, “abusive” statements about him by the police,
or statements about “what would be done to him” if he were returned,
do not have to be understood as implied threats of persecution on for-
bidden grounds.
Other submissions by the affiant concern, for example, the ex-
posure of an alleged conspiracy in September 1987 by nongovernm:n-
tal “unionist” elements to murder Anthony Hughes, the man with
whom affiant’s daughter lives. Jd. at paras. 31-32. Such evidence is
not relevant to establishing that the respondent would have a well-
founded fear of persecution at the hands of governmental authorities,
or that they would threaten him with loss of life or freedom for pro-
scribed reasons. ,
Finally, other parts of affiant’s statements, e.g., id. at para. 40, are
cumulative of evidence submitted elsewhere in this motion.
38 Again, here, as in Part III supra, | need not and do not decide
whether respondent can make out a prima facie case for the substan-
tive relief sought. See supra note 21.
{
80a
claims. See discussion supra at [49a-50a]. By any stand-
ard, respondent’s decision was an intentional relinquish-
ment of any right to claim asylum relief from deportation.
Johnson v. Zerbst, 304 U.S. 458, 464 (1938). Further, it
was a knowing waiver. It was calculated in an attempt to
avoid extradition directly to the United Kingdom under a
treaty between the United States and the United Kingdom
soon to be ratified. See Doherty v. Meese, 808 F.2d at 940.
It appeared likely at the time that the United Kingdom
would ratify its treaty with the United States, which could
have provided for respondent’s direct extradition to the
United Kingdom, before any decision could be made on
asylum or withholding of deportation. Facing imminent
ratification of this treaty, respondent chose to leave the
United States as quickly as possible, rather than risk direct
extradition to the United Kingdom in the event the treaty
were ratified. See id. (respondent “urgently want[ed]” to
escape the effects of the then-pending Supplementary
Treaty). When he chose to waive any claims to asylum and
withholding of deportation to avoid the possibility of
direct extradition to the United Kingdom, he assumed the
risk that Attorney General Meese might deny deportation
to Ireland; whatever risks to him that existed at the hands
of the Irish; and the risk that the move then underway to
obtain ratification of Ireland’s treaty with the United
Kingdom would prove successful.
This tactical decision by respondent was fully within his
rights. However, when he made this decision, he assumed
the risk that he would be denied his request to be deported
to Ireland, and required to go elsewhere. See discussion
supra at [65a-67a]. The fact that respondent’s attempt to
work the regulatory process to his advantage failed,
should not, absent exceptional circumstances, relieve him
‘of the consequences of the decisions made in the attempt
a +6 OEP t ime,
8la
to work the process to his advantage.** The Supreme
Court has observed that courts “cannot permit an accused
to elect to pursue One course at the trial and then, when
that has proved to be unprofitable, to insist on appeal that
the course which he rejected at the trial be reopened to
him. However unwise the first choice may have been, the
range of waiver is wide.” Johnson v. United States, 318
U.S. 189, 201 (1943).*° So here, respondent’s tactical deci-
sions should not be revocable merely because later events
did not unfold as he wished. If we were not to give near-
preclusive effect to an express waiver under circumstances
such as exist here, the regulatory process could be
manipulated at will by litigants making and withdrawing
waivers ad libitum, at the expense of the fair and ex-
peditious administration of meritorious deportation
claims.
Vv.
I also deny the motion on the separate grounds that re-
spondent would not ultimately be entitled either to the
discretionary relief of asylum or to withholding of depor-
tation.
3* Respondent’s concession of deportability and withdrawal of any
claim to relief is analogous to a guilty plea. “[W]hen the judgment of
conviction upon a guilty plea has become final and the offender seeks
to reopen the proceeding, the inquiry is ordinarily confined to
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