Amicus Curiae Brief — INS v. Doherty
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IN THE
Supreme Court of the United Be THE
OCTOBER TERM, 1990
<——
IMMIGRATION AND NATURALIZATION SERVICE,
aia Petitioner,
: JOSEPH PATRICK DOHERTY,
¢ Respondent.
f
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT
. BRIEF OF AMICI CURIAE AMERICAN CIVIL
J LIBERTIES UNION AND AMERICAN
3 IMMIGRATION LAWYERS ASSOCIATION
IN SUPPORT OF RESPONDENT
Lucas Guttentag DAVID W. RIVKIN
Steven R. Shapiro Counsel of Record
American Civil Liberties Union
Michael W. Galligan
Foundation
132 West 43rd Street mae cone
> New York, NY 10036 Mallika Dutt
Christine M. Bell
Of Counsel: DEBEVOISE & PLIMPTON
875 Third Avenue
Deborah Anker
1563 Massachusetts Avenue ro esate 10022
Cambridge, MA 02138 (212)
Carolyn Patty Blum
Boalt Hall School of Law
University of California .
at Berkeley
Berkeley, CA 94720 Attorneys for Amici Curiae
FST AVAILABLE COPY
Pe ee ee ee ae ‘
TABLE OF CONTENTS
INTEREST OF AMICI CURIAE...................
SUMMARY OF ARGUMENT .....................
ae
I. DOHERTY SATISFIES THE THRESHOLD
REQUIREMENTS UNDER JNS V. ABUDU
GOVERNING MOTIONS TO REOPEN TO
APPLY FOR WITHHOLDING OF DEPOR-
CE a
A. Doherty Established a Prima Facie Case
for Both Asylum and Withholding of
EE ee ae ae
B. Doherty Presented ‘Previously Unavail-
able, Material Evidence’’ and a ‘‘Reason-
able Explanation’’ in Support of His
Motion to Reopen...........ccccccccees
1. Implementation of the Irish Extradition
Act of 1987 on December 1, 1987
Constitutes New Evidence and a Rea-
sonable Explanation Warranting Re-
Sh adndnwedetadacidccdedécécesc.
a. The Extradition Act of 1987 Meets
the Regulation’s Requirements for
CE
b. The Extradition Act of 1987
Changed Irish Law and Made
Doherty’s Extradition to the United
Kingdom from Ireland a Certainty.
10
2. Attorney General Meese’s Refusal to
Accept Doherty’s Designation of
Deportation to Ireland Also Consti-
tutes New Evidence and a Reasonable
Explanation Warranting Reopening ...
C. There is No Basis for Requiring that New
Evidence Supporting Reopening Must Be
~ SOC.” . oc cccecsncssunae
1. A Foreseeability Requirement Would
Lead to Absurd Results in the Asylum
a PO a
2. Even if Foreseeability Were Relevant,
Implementation of the Extradition Act
of 1987 Was Not Foreseeable ........
II. ASSUMING THE THRESHOLD REQUIRE-
MENTS OF ABUDU ARE MET, DOHERTY
IS ENTITLED TO A HEARING TO DETER-
MINE HIS ELIGIBILITY FOR WITHHOLD-
ING OF DEPORTATION UNDER SECTION
HOG) «00 ccccc%ecndewussnaananeneee
A. Under Abudu, the Attorney General Does
Not Have the Power to *‘Leap Ahead’’
and Deny Doherty’s Motion io Reopen on
the Ground that He is Disqualified from
Withholding of Deportation .............
B. An Individualized Factual Record Must Be
Developed to Determine Whether Doherty
is Disqualified from Withholding Under
Sestiem DIGGS. .osccdecceassunane.
PAGE
1]
13
13
14
17
17
19
Il]. UNITED STATES FOREIGN POLICY CON-
SIDERATIONS ARE NOT LEGITIMATE
CONCERNS IN DETERMINING DOHER-
TY’S ULTIMATE ELIGIBILITY FOR ASY-
CCCP GSCCSESsseeccesececescecccc:
PAGE
iv
2 TABLE OF AUTHORITIES
Cases: PAGE
American Baptist Churches v. Thornburgh, 760 F.
Supp. 796 (N.D. Cal. 1991) ............. cece 3, 27, 28
Ananeh-Firempong v. INS, 766 F.2d 621 (ist Cir.
Sebbehnadanddddadsennntbednedededetidudicducs 24
Caravajal-Munoz v. INS, 743 F.2d 562 (7th Cir. 1984) 6
Matter of Doherty, 599 F. Supp. 270 (S.D.N.Y.
Se sidednénbenntcebecsvenns bedeude mode 11, 21, 22, 23
Matter of Doherty, BIA File No. A261852 (BIA Nov.
14, 1988), rev’d, In re Doherty, Att’y Gen. Dec.
(June 30, 1989), rev’d, Doherty v. INS, 908 F.2d
1108 (2d Cir. 1990), cert. granted, 111 S. Ct. 950
ESE dutbdnneddangnnesnemmoddebeddumbidensets 6, 7, 13
In re Doherty, Att’y Gen. Dec. (June 30, 1989), rev’d,
Doherty v. INS, 908 F.2d 1108 (2d Cir. 1990), cert.
granted, 111 S. Ct. 950 (1991) ...............055. passim
Doherty v. INS, 908 F.2d 1108 (2d Cir. 1990), cert.
granted, 111 S. Ct. 950 (1991) ...............005. passim
Garcia-Ramos v. INS, 775 F.2d 1370 (9th Cir. 1985). 24
INS v. Abudu, 485 U.S. 94 (1988) ................. passim
INS v. Cardoza-Fonseca, 480 U.S. 421 (1981)..3, 17, 18, 20
INS v. Jong Ha Wang, 450 U.S. 139 (1987)......... 5
INS v. Rios-Pineda, 471 U.S. 444 (1985)............ 14
INS v. Stevic, 467 U.S. 407 (1984) ............ 3, 4, 18, 20
Ipina v. INS, 868 F.2d 511 (ist Cir. 1989)
Jen Hung Ng v. INS, 804 F.2d 534 (9th Cir. 1986) .. 6
Mattis v. INS, 774 F.2d 965 (9th Cir. 1985)......... 6
McMullen v. INS, 788 F.2d 591 (9th Cir. 1986)...... 23
Montana v. United States, 440 U.S. 147 (1979) ...... 23
Pierre v. Rivkind, 825 F.2d 1501 (11th Cir. 1987).... 6
Matter of Rodriguez-Majano, Int. Dec. No. 3088 (BIA
BR, Bis BEE Cecccccccccccesecncesccocecoecees 24
United States v. Peterson, 524 F.2d 167 (4th Cir.
1975), cert. denied, 423 U.S. 1088 (1976).......... 23
Statutes and Regulations
Immigration and Nationality Act of 1952, Pub. L. No.
414, 66 Stat. 163 (codified as amended at 8 U.S.C.
Pe Be Gl GED occevcsocacetceceoesesececesceces 4
INA § 243(a), 8 U.S.C. § 1253(a) (Supp. 1990)..... 7, 8, 12
INA § 243(h), 8 U.S.C. § 1253(h) (Supp. 1990)...... passim
INA § 244(a), 8 U.S.C. § 1254(a)..........202e0eees 14
INA § 245(e), 8 U.S.C. § 1255(€) ........222eceeeees 14
i ivinicsces cocncwsvicnts 26
oss keneenuapennes passim
DO CIID ioc cc cccsccvnccccccnneses passim
8 C.F.R. § 208.1(b) (1991) 0.2... ... cece cece cece ees 27
i nvcccnccccscsesccsncnceses 27
vi
PAGE
es I octueccocicctcoceeceuccscs 27
ery NT I vn ccccvcctiidcceckcwscadac 27
eee 27
8 C.F.R. § 208.17 (1991)................ pevccecesves 27
Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 25
International Cases, Treaties & Legal Materials
Carron v. McMahon, [1990] 1.L.R.M. 802........... 7
McGimpsey v. Ireland, [1990] 1.L.R.M. 441 ......... 16
Anglo-Irish Agreement, Nov. 15, 1985, lreland-United
Kingdom, 24 I.L.M. 1597........... ignndetuseeees 15, 16
Complete Text of Anglo-Irish Communique on Ulster,
The Times (London), Nov. 16, 1985, at 4, col. 3 ..15, 16
Extradition Act of 1965, No. 17 i tresdeoestee 1]
Extradition (European Convention on the Suppression
of Terrorism) Act, No. 1 (1987) ................. passim
United Nations Convention Relating to the Status of
Refugees, 189 U.N.T.S. 150 (July 28, 1951) ....... 18, 19
UNHCR Handbook on Procedures and Criteria for
Determining Refugee Status (1979)...... labeeuenninaa 20, 21
United Nations Protocol Relating to the Status of Ref-
ugees, Jan. 31, 1967, [1968] 19 U.S.T. 6223,
Ee SE i iittdudacoudbdetiesdohiesiedsiu: 18
Other Authorities
ABC v. Thornburgh, Third Amended Compl., Civ.
ee gdanaaund saad 28
Vii
PAGE
A Way Forward for Ireland, Manchester Guardian
Weskiy, Mav. 26, 1965, GB 1 occcccccccccccccccces
Carrillo, The Application of Refugee Laws to Central
Americans in the United States, 1X B.C. Third
Qe ey SE acccndasewoseocevescaceeseces
Connelly, Extradition (European Convention on the
Suppression of Terrorism) Act, 1987, General Note,
Connelly, Non-Extradition for Political Offences: A
Matter of Legal Obligation Or Simply A Policy
Choice, 1982 Irish Jurist 59 ...........20eeceeeees
Hadfield, The Anglo-Irish Agreement—Blue Print or
Green Print?, 37 N. Ireland Legal Q. 1 (1986).....
H.R. Conf. Rep. No. 781, 96th Cong., 2d Sess. 20,
reprinted in 1989 U.S. Code Cong. & Admin. News
EP socnccadeccosncncsnceuadbesssonepobtaseceses
Inzunza, The Refugee Act of 1980: Ten Years After—
Still the Way to Go, 2 Int’! J. of Ref. L. 413 (1990)
Kennedy, How the South Was Won, 257 Fortnight 13
(Dec. 1987)....... scicideen neice aaieiniindiaminiagida ait dh dretis
Lawyers Committee for Human Rights, The Jmplemen-
tation of the Refugee Act of 1980: A Decade of
28
17
15
16
26
16
Experience, (March 1990). ........060eeseeeee 25, 26, 28
Note, INS v. Cardoza-Fonseca: Establishment of a
More Liberal Asylum Standard, 37 Am. U.L. Rev.
GBS GERD c cccccctccccesecescesosveccscoscseees
Transcript of Hearing (April 2, 1984) in In re
Requested Extradition of Doherty by the Govern-
ment of the United Kingdom..............6+++4+:
Unionists Threaten To Make Ulster ‘‘Ungovernable’’,
Manchester Guardian Weekly, Dec. 1, 1985, at3 ..
12
22
16
INTEREST OF AMICI CURIAE
Amicus curiae, the American Civil Liberties Union
(“ACLU”), is a nationwide non-partisan organization of
nearly 300,000 members dedicated to protecting civil rights
and civil liberties. Since its founding, the ACLU has sought
to ensure that the protection of the Constitution and laws
apply equally to all persons, including immigrants and refu-
gees. In particular, the ACLU, through its Immigrants’
Rights Project, has engaged in litigation and advocacy to
secure the rights of persons seeking political asylum in the
United States, to implement the Refugee Act of 1980, to
insure that asylum decisions are governed by neutral criteria
unaffected by United States foreign policy, and to enforce
the right to a meaningful hearing at which claims are pre-
sented and adjudicated.
Amicus curiae, the American Immigration Lawyers Associ-
ation (‘‘AILA”’), is a national association of lawyers and law
school professors who practice and teach in the fields of
immigration and nationality law. AILA has a serious interest
in the case now before this Court because the issues directly
involve the practice of immigration law. AILA wants to
ensure that any developments in immigration law facilitate
the administration of justice and maintain the integrity of the
basic structure of immigration law.’
SUMMARY OF ARGUMENT
At stake in this appeal is the fairness and adequacy of the
procedures available to an alien seeking to reopen his or her
deportation proceeding to apply for withholding of deporta-
tion or asylum. Joseph Doherty seeks only a ‘‘fair opportu-
nity to develop and present’ evidence in support of his
claims. INS v. Abudu, 485 U.S. 94, 107 (1988). The INS con-
tends that it may deny Doherty’s claims without providing
1 Amici have the consent of the parties to file this brief. Letters of
consent have been filed separately with this Court.
2
him with a hearing and the opportunity to prove his eligibil-
ity for both withholding of deportation and asylum.
The Attorney General’s erroneous interpretation of the
requirements for a motion to reopen led to the denial of
Doherty’s claims. It is well settled, under both INS regula-
tions and case law, that there are two threshold requirements
that must be satisfied before a motion to reopen will be
granted: (1) the movant must establish a prima facie case for
the underlying relief sought, and(2) the movant must present
‘previously unavailable, material evidence,’’ or a ‘‘reason-
able explanation”’ for his or her failure to initially request
asylum. INS v. Abudu, 485 U.S. at 104-05 (citations omit-
ted). Doherty has satisfied both of these threshold require-
ments.
In challenging Doherty’s compliance with the two threshold
requirements, the INS argues that new evidence submitted in
support of a motion to reopen must have been unforeseeable
at the time of the initial deportation hearing. This foresee-
ability requirement is unprecedented, not based in regulation
or case law, and will create an administrative nightmare for
asylum practitioners and adjudicators alike. Aliens will be
compelled to submit requests for asylum based on the possi-
bility that conditions may arise that might lead them to fear
persecution. A foreseeability requirement will needlessly bur-
den the asylum system.
In Abudu this Court stated a third ground for denying a
motion to reopen explicitly limited to ‘‘cases in which the
ultimate grant of relief is discretionary (asylum, suspension
of deportation, and adjustment of status, but not withhola-
ing of deportation). . . .”’ Abudu, 485 U.S. at 105 (empha-
sis added). When reopening is sought for a discretionary
claim, the Attorney General may determine that the movant
would not ultimately be entitled to a discretionary grant of
the relief sought. This third basis for denying a motion to
reopen under Abudu is inapplicable to an application for
non-discretionary withholding of deportation. Since Doherty
satisfied the two threshold requirements governing a motion
to reopen, he must be granted a hearing to determine his eli-
gibility for withholding under section 243(h).
3
Withholdinz of deportation is accorded a special place in
our immigration laws because it fulfills the United States’
obligations under international covenants which ensure that a
refugee is not returned to a country where he or she faces
persecution. JNS v. Cardoza-Fonseca, 480 U.S. 421, 429
(1987); INS v. Stevic, 467 U.S. 407, 416-17 (1984). Moreover,
a hearing is all the more essential because of the complex fac-
tual issues that must be explored in determining eligibility for
withholding, such as the extent of persecution faced by an
alien, the alien’s motives, the severity of any alleged crimes
committed and the context of his or her activities, and any
mitigating or aggravating circumstances.
Because withholding of deportation is such a fundamental
protection, this brief focuses on INS’ obligation to afford
Doherty a hearing on his withholding claim. Doherty, how-
ever, is also entitled to a hearing on his asylum claim. While
a motion to reopen for asylum may be denied by concluding
that the movant would not ultimately be granted asylum, the
INS does not have unfettered discretion to deny asylum. A
denial of asylum based on foreign policy considerations con-
travenes the purpose of the Refugee Act of 1980. Beeause the
elimination of foreign policy considerations from asylum
determinations under international law and by the intent of
Congress is fully discussed in other amici briefs, we will not
repeat those arguments here. See Brief of Amicus Curiae
United Nations High Commissioner for Refugees [hereinafter
UNHCR] and Brief of Amici Members of Congress. We will
demonstrate, however, that the INS itself recognizes the inap-
propriate nature of foreign policy concerns through the
promulgation of the 1990 INS asylum regulations and its
commitment to the recent settlement in American Baptist
Churches v. Thornburgh, 760 F.Supp. 796 (N.D. Cal. 1991)
{hereinafter ABC Settlement).
4
ARGUMENT
I. DOHERTY SATISFIES THE THRESHOLD REQUIRE-
MENTS UNDER INS V. ABUDU GOVERNING
MOTIONS TO REOPEN TO APPLY FOR WITHHOLD-
ING OF DEPORTATION.
The most fundamental safeguard available to an alien who
fears persecution is withholding of deportation under section
243(h) of the Immigration and Nationality Act of 1952, Pub.
L. No. 414, 66 Stat. 163 (codified as amended at 8 U.S.C.
$§ 1101, 1253(h) (Supp. 1990)) (PA at 165a)? [hereinafter
INA]. Section 243(h) provides that the “Attorney General
shall not deport or return any alien. . . to a country’”’ if the
alien demonstrates a clear probability of persecution in that
country. Jd. (emphasis added); JNS y. Stevic, 467 U.S. at
421-22. Unlike asylum, which contains an element of discre-
tion, withholding of deportation is mandatory if the alien sat-
isfies the statutory criteria. INS v. Stevic, 467 U.S. at 42]
n.15. Withholding of deportation may be sought when an
alien is initially subjected to deportation proceedings or, if
requested subsequent to the time for initial submission, pur-
suant to a motion to reopen under the governin re ions.
See 8 C.F.R. §§ 3.2, 208.11 (1987) PA at —
In INS v. Abudu this Court emphasized that there are two
“‘threshold’’ requirements for a motion to reopen: (1) the
movant must establish ‘‘a prima facie case for the underlying
substantive relief sought,’’ and (2) the movant must present
“previously unavailable, material evidence, 8 C.F.R. § 3.2,”
or, the movant must “reasonably explain his failure to apply
for asylum initially, 8 C.F.R. § 208.11.” Abudu, 485 U.S. at
2 Citations to the appendix that accompanied the Petition for Writ of
Certiorari are made to the page number therein as “(PA at ___).”” Cita-
uons to the joint appendix that accompanies the Petitioner’s Brief are made
to the page number therein as “‘(JA at Os
5
104-06. Doherty has met both of these threshold require-
ments.°
The first requirement, that the applicant establish a prima
facie case, is based on long-standing Board of Immigration
Appeals’ [hereinafter BIA] precedent. See INS v. Jong Ha
Wang, 450 U.S. 139, 141 (1981) (citing Matter of Lam, 14 1.
& N. Dec. 98 (BIA 1972); Matter of Sipus, 14 1. & N. Dec.
229 (BIA 1972)). The second requirement, that the applicant
present ‘‘previously unavailable, material evidence’’ or ‘‘rea-
sonably explain’’ the failure to apply initially, is drawn from
the language of sections 3.2 and 208.11 of the regulations.
See 8 C.F.R. §§ 3.2, 208.11 (1987) (PA at 165a-C6a).*
A. Doherty Established a Prima Facie Case for Both Asylum
and Withholding of Deportation.
The INS does not dispute that Doherty satisfies the ‘‘prima
facie case’’ requirement for reopening. The Attorney Gen-
eral’s decision expressly assumes that, if returned to the
United Kingdom, Doherty’s “‘ ‘life or freedom would be
threatened . . . on account of race, religion, nationality,
membership in a particular social group, or political
opinion. . .’’’ under the standard governing eligibility for
withholding of deportation. Jn re Doherty, Att’y Gen. Dec.
at 28 (June 30, 1989) (PA at 83a) [hereinafter Att’y Gen.
Dec.]. In reversing the BIA’s grant of Doherty’s motion to
reopen, the Attorney General explicitly stated that ‘‘[i]t is
unnecessary for me to address (and I do not) the question of
whether [Doherty] has established a prima facie case
3. Abudu also recognized a third ground for denying a motion to re-
open where the underlying relief being sought is discretionary. Abudu, 485
U.S. at 105-07. As discussed in Part II, infra, this Court specifically noted
that this third basis for denial does not apply when the applicant is seeking
the non-discretionary relief of withholding of deportation. Jd. at 105.
4 In Abudu this Court held that a motion to reopen a claim for with-
holding of deportation must meet the requirements of either sections 3.2 or
208.11. See Abudu, 485 U.S. at 99 n.3. (“‘the BIA’s application of [section
208.11], which on its face applies only to asylum requests on reopening, will
also usually be dispositive of its decision whether to reopen to permit a with-
holding of deportation request.’’).
6
for the substantive relief sought.’’ Id. at 15 n.21 (emphasis
added) (PA at 64a). Thus, Doherty is presumed to have met
his burden of demonstrating prima facie eligibility for with-
holding of deportation (as well as for asylum).° Doherty vy.
INS, 908 F.2d 1108, 1115 (2d Cir. 1990), cert. denied, 111
S. Ct. 950 (1991); see also Jen Hung Ng v. INS, 804 F.2d
$34, 538 (9th Cir. 1986); Mattis v. INS, 774 F.2d 965. 967
(9th Cir. 1985).
B. Doherty Presented “*Previously Unavailable, Material Evi-
dence’’ and a “‘Reasonable Explanation’’ in Support of
His Motion to Reopen.
The second threshold requirement for reopening is the pre-
sentation of “‘previously unavailable, material evidence,’’ or
a ‘reasonable explanation” for the alien’s failure initially to
apply for the relief sought. Abudu, 485 U.S. at 104-05 (citing
8 C.F.R. §§ 3.2 and 208.11 (1987)).° Doherty satisfied this
5 The INS’ argument that the evidence offered by Doherty in support
of his motion to reopen was held by the BIA to establish only a prima facie
case for asylum and that no finding was made whether that evidence estab-
lished a prima facie case under the higher standard for mandatory withhold-
ing of deportation (Brief for the Petitioner at 6-7 n.5, 35 n.20) [hereinafter
Pet. Br.}, is contradicted by the BIA’s decision below. The BIA explicitly
reopened Doherty’s case to apply for both “asylum and withholding of
deportation.’’ Matter of Doherty, BIA File No. A261852, at 6-7 (BIA Nov.
14, 1988) (PA at 99a-100a) [hereinafter BIA Dec. ]}.
Because the question of whether Doherty established a prima facie case is
not before this Court, there is also no reason to address the possible adoption
of a ‘unitary abuse-of-discretion standard of review.’’ Pet. Br. at 38-39. In
any event, a unitary standard is inappropriate because the first prong of
Abudu, whether an alien has presented sufficient evidence to make a prima
Jacie case, must be judged under a ‘‘substantial evidence’ standard since it
involves a review of factual findings. See Ipina v. INS, 868 F.2d $1 1, 513 (ist
Cir. 1989) (factual findings determining withholding of deportation governed
by substantial evidence standard of review); Pierre v. Rivkind, 825 F.2d
1501, 1505 (11th Cir. 1987) (same); Caravajal-Munoz v. INS, 743 F.2d 562
567 (7th Cir. 1984) (same).
6 Section 3.2 of the regulations requires that the new evidence offered
to support reopening must be ‘‘material’’ and ‘‘could not have been discov-
7
burden of presenting previously unavailable evidence on two
independent grounds. First, the Extradition Act of 1987’
between the United Kingdom and Ireland became effective on
December 1, 1987, fifteen months after the withdrawal of
Doherty’s initial application for withholding and asylum and
the Immigration Judge’s order that Doherty be deported to
Ireland. Implementation of the Extradition Act of 1987 was a
material change because it amended Irish extradition law in a
manner that would guarantee Doherty’s extradition to the
United Kingdom if he were deported to Ireland. Second,
Attorney General Meese rejected Doherty’s designation and
the Immigration Judge’s order that he be deported to Ireland
under INA section 243(a). INA § 243(a), 8 U.S.C. § 1253(a).
This unprecedented refusal by the Attorney General materi-
ally affected Doherty’s fear of being returned to persecution
in the United Kingdom.* Both of these material changes also
constitute a reasonable explanation for Doherty’s failure to
pursue his initial claim.
ered or presented at the former hearing.’’ 8 C.F.R. § 3.1 87) (PA at 165Sa-
66a). It further provides that relief must be ‘‘sought on ine basis of circum-
stances which have arisen subsequent to the hearing.’’ Jd. In addition,
section 208.11 requires that the movant must ‘“‘reasonably explain the failure
to request asylum prior to the completion of the exclusion or deportation
proceeding.’ 8 C.F.R. § 208.11 (1987) (PA at 166a). Both sections govern
reopening for withholding of deportation. See supra note 3.
7 Extradition (European Convention on the Suppression of Terrorism)
Act, No. 1 (1987) (JA at 96-108) [hereinafter Extradition Act of 1987]. The
Extradition Act of 1987 applies to offenses where the warrant is issued after
December 1, 1987. Carron v. McMahon, [1990] I.L.R.M. 802, 805-06.
8 In their brief on the merits, the INS chooses not to address the find-
ings of both the BIA and Court of Appeals that Attorney General Meese’s
unprecedented decision to prevent Doherty from being immediately deported
to Ireland satisfied the threshold requirement for ‘‘previously unavailable,
material evidence’ and a “‘reasonable explanation.’’ Pet. Br. at 46; Bul see
Doherty v. INS, 908 F.2d at 1115-16; BIA Dec. at 6-7 (PA at 99a).
8
1. Implementation of the Irish Extradition Act of 1987 on
December 1, 1987 Constitutes New Evidence and a Rea-
sonable Explanation Warranting Reopening.
a. The Extradition Act of 1987 Meets the Regulation’s
Requirements for Reopening.
New evidence of the implementation of the Extradition Act
of 1987 on December 1, 1987 unquestionably satisfies the
requirement that the movant present previously unavailable
material evidence or a reasonable explanation for failure to
apply initially.
When Doherty was first arrested in June 1983, he immedi-
ately applied for withholding of deportation and asylum. His
requests were stayed for the next three years while the United
Kingdom unsuccessfully sought his extradition, and the
United States appealed. In September 1986, when Doherty’s
deportation proceedings resumed, he designated Ireland as his
country of deportation pursuant to INA section 243(a), and
only then withdrew his requests for withholding and asylum.
The Immigration Judge ordered Doherty immediately deport-
able to Ireland, but the INS appealed the decision on the
ground that his return would be “‘prejudici[al] to the interests
of the United States.”” INA § 243(a), 8 U.S.C. § 1253(a); see
Doherty v. INS, 908 F.2d at 1111 (PA at 4a). During the
pendency of the INS’ appeals, the Extradition Act of 1987
went into effect. As a result, deportation to Ireland became
the functional equivalent of deportation to the United King-
dom. Accordingly, two days after the Irish Extradition Act
of 1987 came into force, Doherty filed his motion to reopen
to seek withholding of deportation and asylum.
Since the Extradition Act of 1987 did not go into effect
until over a year after the Immigration Judge ordered
Doherty deported to Ireland, the requirement of section 3.2
that the evidence ‘‘could not have been presented at the
former hearing’ is clearly met. 8 C.F.R. § 3.2 (1987). Like-
wise, implementation of the Extradition Act of 1987 satisfies
the requirement of section 3.2 that Doherty’s claims for asy-
lum and withholding must be sought ‘‘on the basis of circum-
9
nces which have arisen subsequent to the hearing.’’ Jd.
The entering into force of the Extradition Act of 1987 also
constitutes ‘‘material’’ evidence because it would result in
Doherty’s de facto deportation to the United Kingdom. Id.
At the time Doherty was ordered deported to Ireland, he did
not fear being returned to the United Kingdom under Irish
extradition law. As shown in part 1.b., infra, after the imple-
mentation of the Extradition Act of 1987, his return was a
virtual certainty. Evidence demonstrating that an applicant
will be delivered directly to the country where he fears perse-
cution is manifestly material.’ 7
The INS argues that the enactment of the Extradition Act
of 1987 cannot support Dolierty’s motion to reopen because
any change in Jrish law is unrelated to the merits of Doher-
ty’s underlying claims for asylum and withholding of depor-
tation from the United Kingdom. Pet. Br. at 48. The INS
ignores that this change in Irish law subjected Doherty to
immediate extradition to the United Kingdom if he were
returned to Ireland. Thus the change in law resulted in a new
and direct threat that Doherty would be subject to the perse-
cution he feared in the United Kingdom.
The INS’ argument is also based on a reading contrary to
the language of the regulations. Section 3.2 does not limit
‘‘material’’ evidence to that which relates solely to circum-
stances in the country where a movant fears the persecution
will occur. Such a limitation would be contrary to the plain
meaning of the regulations’ requirements that a movant
present evidence of changed ‘‘circumstances,’’ or a “‘reason-
able explanation.’’ See 8 C.F.R. §§ 3.2, 208.11 (1987) (PA at
165a-66a). These requirements necessarily include factors that
increase the likelihood of persecution feared by the movant,
9 Implementation of the 1987 Act also satisfies section 208. II's
requirement that Doherty offer a ‘‘reasonable eee for yoo
is initi icati -F.R. § 208.11 (PA at a-66a).
not to pursue his initial application. 8 C |
When Doherty withdrew his claims in September 1986, he believed (as =
Immigration Judge and the BIA) that he would be deported to Ireia an
Doherty did not fear his return to the United Kingdom prior to implementa-
tion of the 1987 Act on December 1, 1987.
10
including changes that will result in him or her being returned
to the persecutinxg country.
_ The INS’ narrow reading is especially inapplicable to the
circumstances of this case. The traditional reasons discussed
by this Court in Abudu as to why motions to reopen are dis-
favored simply do not apply to Doherty’s motion. See
Abudu, 485 U.S. at 107 (“‘the reasons why motions to reopen
are disfavored in deportation proceedings are comparable to
those that apply to petitions for rehearing, and tu motions
for new trials on the basis of newly discovered evidence.”’
(footnote omitted)). Unlike the case of an asylum applicant
who failed to prove his claim after a hearing and thereafter
offers new evidence, Doherty has never received a hearing in
the first instance. Thus, Doherty’s motion to reopen is not
analogous to a petition for rehearing or to a motion for a
new trial on the basis of newly discovered evidence.
. In Abudu, this court emphasized that the “strong public
interest in bringing litigation to a close’ must be balanced
and ‘‘consistent with giving the adversaries a fair opportunity
to develop and present their respective cases.”” Abudu, 485
U.S. at 107. The INS’ attempt to narrowly limit the new evi-
dence Doherty can introduce to Support reopening is contrary
to what this Court acknowledged in Abudu to be the public
interest in providing a ‘‘fair Opportunity’’ for aliens to
present their cases in the first instance.
b. The Extradition Act of 1987 Changed Irish Law and
Made Doherty’s Extradition to the United Kingdom
from Ireland a Certainty.
The Extradition Act of 1987 changed Irish extradition law
and rendered Doherty's extradition from Ireland to the
United Kingdom a virtual certainty. The Attorney General
abused his discretion by holding that ‘“‘the 1987 Extradition
Act did not constitute a material change in the law of extra-
dition in Ireland.’’ Pet. Br. at 47.
In September 1986, when Doherty designated Ireland as his
country of deportation, extradition from Ireland to the
United Kingdom was subject to the 1965 Extradition Act in
1]
the Republic of Ireland. Extradition Act of 1965, No. 17
(1965) [hereinafter 1965 Extradition Act]. The 1965 Extradi-
tion Act provided a clear exception from extradition where
the offense for which extradition was sought was a ‘‘political
offence or an offence connected with a political offence.”’
1965 Extradition Act § 50(2)(a)(i)."°
In contrast, the Extradition Act of 1987, which went into
effect on December 1, 1987, drastically limits the ‘‘political
offence’’ exception contained in the 1965 Extradition Act.
Section 3 of the Extradition Act of 1987 lists offenses that
can never be political offenses, withdrawing them from the
exception’s scope. It specifically prohibits offenses involving
the use of ‘‘an explosive, or automatic firearm’’ from classi-
fication as political. Extradition Act of 1987 (JA at 97-99).
The text of the Extradition Act of 1987 plainly creates a
material change in Irish extradition law and the new limita-
tion directly affects Doherty’s ability to resist extradition
from Ireland to the United Kingdom." As a result of this
material change in Irish Extradition Law, Doherty’s return to
Ireland became the functional equivalent of extradition to the
United Kingdom.
2. Attorney General Meese’s Refusal to Accept Doherty’s
Designation of Deportation to Ireland Also Constitutes
New Evidence and a Reasonable Explanation Warrant-
ing Reopening.
Attorney General Meese’s unprecedented decision to reject
Doherty’s designation of deportation to Ireland constitutes
independent ‘‘material evidence’’ and an additional ‘‘reason-
able explanation’’ for Doherty’s motion to reopen. See 8
10 The 1965 Extradition Act left the meaning of the term ‘“‘political
offence’ for courts to decide. See 1965 Extradition Act § 50. Notably, this
language parallels the language in the extradition treaty between the United
States and the United Kingdom pursuant to which Judge Sprizzo held that
Doherty could not be extradited since he had committed ‘‘political offenses’
in the United Kingdom. Matter of Doherty, $99 F. Supp. 270, 275-76
(S.D.N.Y. 1984).
11 See also Extradition Act of 1987 (JA at 96) (preamble defines Act's
purpose as to ‘‘amend and extend the Extradition Act, 1965"’).
12
C.F.R. §§ 3.2, 208.11 (1987) (PA at 165a-66a). Prior to
Doherty’s case, an alien’s designation of a country that
would accept him or her and an Immigration J udge’s order
enforcing the deportation had never been rejected by an
Attorney General on the basis of “‘prejudice to the interests
of the United States.’ INA § 243(a), 8 U.S.C. § 1253(a); see
Doherty v. INS, 908 F.2d at 1116 (PA at 14a). Accordingly
both the BIA and the Court of Appeals recognized that
Doherty had a ‘reasonable expectation’ of being returned to
the Republic of Ireland”’ at the time of his deportation hear-
ing. Doherty v. INS, 908 F.2d at 1116 (quoting BIA Deci-
sion) (PA at 14a). Nonetheless, the INS contends that these
unique and extraordinary circumstances do not entitle
Doherty to reopen his proceedings” The INS’ position is con-
= _ logic and leads to unworkable and counterproductive
. Whenever an alien fears persecution, his overridi
is to avoid being returned to the country where —
threat. Under these circumstances, an alien may well desig-
nate a third country for deportation pursuant to INA section
243(a), rather than endure the delays and risks of pursuing a
withholding and asylum claim that could result in denial and
a return to persecution.'* If the Attorney General rejects the
designation of a country that will accept the alien, that alien
must have the opportunity to pursue his or her withholding
and asylum claims. Otherwise, every alien who fears persecu-
tion and who designates an alternative ‘‘safe’’ country for
deportation, will nonetheless be compelled to pursue a with-
holding (and asylum) application to guard against the possi-
bility that the Attorney General will reject his or her
designation of a safe country. Alternatively, aliens wil] forego
designating a country altogether for fear that the Attorney
General’s intervention might foreclose their ability to initiate
Or reopen a claim for withholding of deportation or asylum.
Instead of encouraging aliens to choose to accept immediate
deportation to a designated country and thereby relieving the
12 See, e.g., Note, INS v. Cardoza-Fonsece: Establishment
. ° . : of a More
Liberal Asylum Standard, 37 Am. U.L. Rev. 915, 945 (1988) (noting back-
logs of up to two and one half years on asylum claims).
13
Immigration Service of the substantial administrative burden
of processing needless applications (including subsequent
appeals), the system will be burdened with countless unneces-
sary claims.
C. There is No Basis for Requiring that New Evidence Sup-
porting Reopening Must Be “‘Unforesecable.”’
1. A Foreseeability Requirement Would Lead to Absurd
Results in the Asylum Process.
The INS’ assertion that changed circumstances must be
‘‘unforeseeable’’ in order to support a motion to reopen is
contrary to law and leads to absurd results. The INS argues
that the Extradition Act of 1987 could not support reopening
because its implementation was ‘‘foreseeable.’’ Pet. Br. at 48;
Att’y Gen. Dec. at 17-21 (PA at 67a-73a). However, as the
Court of Appeals and the BIA below emphasized, ‘‘[nJeither
the regulations nor the applicable decisional law require
expressly or by implication that the new evidence be ‘unfore-
seeable’; indeed, such a rule would lead to absurd conse-
quences.”’ Doherty v. INS, 908 F.2d at 1115 (PA at 13a); see
also BIA Dec. at 6 (PA at 99a) (“‘If the respondent were
expected to foresee and guard against the unprecedented cir-
cumstances which arose two years later, no alien would ever
fail to apply for asylum [from] any country to which he
might be remotely deported, if he had a fear of returning
there.’’).
Requiring aliens to assert claims for asylum or withholding
of deportation based on both the facts and law as they exist
at the time of their hearing, and any foreseeable changes that
may occur in the future, will create an infinite number of
issues relevant at any hearing. Political instability is endemic
to many countries from which aliens seek asylum; under the
INS’ scenario, an applicant will be burdened with the impos-
sible task of predicting whether any possible future changes
in a country’s politics may result in a fear of persecution.
Withholding and asylum hearings will bog down with dis-
putes over whether events are foreseeable and will be marked
by speculative political predictions more suitable for televi-
14
sion political talk shows. For example, an Ethiopian nati
who feared persecution by the Tigrean rebels aa co
seized control of the Ethiopian capital of Addis Ababa
would be expected to have made a determination as to
whether that shift in power was foreseeable.
Aliens will also be compelled to submit requests for asylum
on the speculative Possibility that conditions might change
and lead them to fear persecution. An Afghan national who
fears persecution by one of the factions of the rebel resist-
ance will be expected to predict which of seven rival Mujahe-
din rebel groups (if any) will overthrow the current
Najibullah government. Precious resources wil] be expended
adjudicating peripheral and speculative issues based on appli-
cations fil i
4 ed out of precaution rather than a fear of persecu-
2. Even if Foreseeability Were Relevant, Im
. lementati
of the Extradition Act of 1987 Was Not ce
Even if unforeseeability were en i
grafted onto the -
ments for a motion to reopen, the change in law tenn by
the Extradition Act of 1987 was not foreseeable when
Doherty designated deportation to Ireland in September 1986.
, 13_ Requiring movants to file as soon as ac ¢e in cir i
foreseeable’’ would also be inconsistent with the sn A ices
must establish prima facie eligibility for relief in support of a motion to re-
open. If events are “‘foreseeable’’ but have not yet occurred, the facts neces-
sary for a prima facie case are unlikely to be present. For example, a change
in government might be ‘‘foreseeabie,’’ but a prima facie case for ‘withhold.
ing or asylum based on fear of that anticipated government could not be
§ 244(a), 8 U.S.C. § 1254(a)) Or to adjustment of status (which may be predi-
— On marriage to a citizen, INA § 245(e), 8 U.S.C. § 1255(e)) would be
similarly confused. While seven years residence or marriage to a citizen might
be foreseeable Prior to their occurrence, a prima Jacie case will not be
Ty - anticipated events transpire. INS v. Pios-Pineda, 471
S. seven year continuous residency requirement to establish
= Sacie — In short, the INS effort to require both a prima facie ea
an ‘‘unforeseeability’’ standard would create a vi i
barrier to motions to reopen. eaten
15
The INS makes much of the fact that the European Conven-
tion on the Suppression of Terrorism [hereinafter European
Convention] was signed by Ireland in February 1986—before
Doherty designated Ireland. Pet. Br. at 48; Att’y Gen. Dec.
at 17 (PA 67a-68a). However, the European Convention had
no impact on Irish law until domestic legislation was enacted
by the Irish Parliament. Such enactment remained subject to
numerous uncertainties and contingencies until the day the
Extradition Act actually went into effect in December 1987.
These uncertainties included doubts about the survival of the
major Anglo-Irish cooperation agreement that had caused
Ireland to sign the European Convention in the first place,
continuing domestic turmoil in both countries that threatened
to dismantle the cooperation agreement, and serious legal and
political concerns regarding domestic implementation of the
European Convention.
Ireland signed the European Convention pursuant to the
Anglo-Irish Agreement with Britain,‘ see Complete Text of
Anglo-Irish Communique on Ulster para. 7, The Times (Lon-
don), Nov. 16, 1985, at 4, col. 3 [hereinafter Anglo-Irish
Communique]; Att’y Gen. Dec. at 17 (PA at 67a-68a), and
its signing was a major and controversial concession” by the
Irish government in response to concessions by the British
government. See A Way Forward for Ireland, Manchester
Guardian Weekly, Nov. 24, 1985, at 1. As a result, with-
drawal or invalidation of the Anglo-irish Agreement would
have led to Ireland’s withdrawal from the European Conven-
tion. See Anglo-Irish Communique, supra, para. 7 (promise
by Irish government to accede to the European Convention
given upon the express condition that progress is reached by
an intergovernmental committee on matters of justice and
security in Northern Ireland).
14 Anglo-Irish Agreement, Nov. 15, 1985, Ireland-United Kingdom, 24
1.L.M,. 1597.
1S The Irish Government had previously resisted signing the European
Convention precisely because it was unwilling to abrogate the ‘‘political
offence’’ exception to extradition and because it believed it unconstitutional
to do so. See Connelly, Non-Extradition for Political Offences: A Matter of
Legal Obligation Or Simply A Policy Choice, 1982 Irish Jurist 59.
16
The Anglo-Irish Agreement established a framework for
addressing political, legal and security matters in Northern
Ireland, including the administration of justice and the pro-
motion of cross-border cooperation. From the time it was
entered into in November 1985, the Anglo-Irish Agreement’s
continued existence was in constant doubt because it was
attacked on many fronts in both the United Kingdom and
Ireland. In Northern Ireland there was a concerted effort by
Unionists and Loyalists, through rioting and protests, to dis-
mantle the Anglo-Irish Agreement. See Unionists Threaten
To Make Ulster ‘‘Ungovernable’’, Manchester Guardian
Weekly, Dec. 1, 1985, at 3. These efforts stood a strong
chance of succeeding in that similar protests had successfully
dismantled a comparable agreement in 1974. Jd.
in addition, the legality of the Anglo-Irish Agreement was
challenged in the courts of Northern Ireland, see Hadfield,
The Anglo-Irish Agreement—Blue Print or Green Print ?, 37
N. Ireland Legal Q. 1, 21-26 (1986), and was the subject of
serious dispute in the Republic of Ireland. See McGimpsey v.
Ireland, [1990] 1.L.R.M. 441. Equally significant, the leader
of the political opposition in Ireland, who was expected to
gain office during the life of the Anglo-Irish Agreement,
strongly opposed the Agreement and threatened to renegoti-
ate it. See Kennedy, How the South Was Won, 257 Fortnight
13 (Dec. 1987). If any of these events had occurred and the
Anglo-Irish Agreement had dissolved, Ireland’s withdrawal
from the Convention would undoubtedly have followed and
the Extradition Act of 1987 would never have been intro-
duced, much less come into force.
Indeed, despite the survival of the Anglo-Irish Agreement,
Irish enactment of domestic legislation to implement the
European Convention remained in doubt. Enactment of
implementing legislation was contingent on changes in the
legal system of Northern Ireland, see Anglo-Irish Communi-
que, supra p. 15, para. 7, and the Irish government remained
reluctant to introduce such legislation until these reforms
were realized. See Kennedy, supra, at 13. Moreover, even
when the Extradition Act of 1987 was enacted in January
1987, whether and when it would come into force as domestic
17
law remained uncertain because the effective date of the Act
was subject to numerous contingencies.” Until December
1987, the majority party in Ireland opposed allowing the
Extradition Act of 1987 to come into force. Jd. It was not
until December 1, 1987 that implementation of the act as law
became certain. The complexity of events effecting implemen-
tation of the Convention through the Extradition Act of 1987
reveals that such implementation was uncertain and unforsee-
able in September 1986.
ll. ASSUMING THE THRESHOLD REQUIREMENTS OF
ABUDU ARE MET, DOHERTY IS ENTITLED TO A
HEARING TO DETERMINE HIS ELIGIBILITY FOR
WITHHOLDING OF DEPORTATION UNDER SEC-
TION 243(h).
A. Under Abudu, the Attorney General Does Not Have the
Power to ‘‘Leap Ahead’’ and Deny Doherty’s Motion to
Reopen on the Ground that He is Disqualified from
Withholding of Deportation.
Once Doherty has met the threshold requirements govern-
ing a motion to reopen, he must be granted a hearing to
determine his eligibility for withholding of deportation under
section 243(h). The relief provided by section 243(h) is criti-
cally important because it establishes the most basic safe-
guards against returning aliens to countries where they are
likely to be persecuted, and satisfies the United States’ obli-
gations under international covenants governing the tecatment
of refugees. See INS v. Cardoza-Fonseca, 480 U.S. at 430;
16 Section 13(2) of the Extradition Act of 1987 specified a flexible =
mencement date because ‘‘ratification . . . was set against the —
of progress in relation to three matters under the ae ees ang =
public confidence in the administration of justice in Northern re o , =
tions between the security forces and the minority community . a .
Ireland, and security cooperation between the British and the Iris ge
ments.’’ Connelly, Extradition (European Convention on the woe tng
Terrorism) Act, 1987, General Note, 1-2 (citing 370 Dail Debates Cols.
83).
18
INS v. Stevic, 467 U.S. at 416-18.'” Specifically, withholding
of deportation fulfills the “‘non-refoulement”’ (no return)
requirements of Article 33 of the Convention, which imposes
a ‘‘mandatory duty on contracting states not to return an
alien to a country where his ‘life or freedom would be threat-
ened’ on account of one of the enumerated reasons.’’ JNS y.
Cardoza-Fonseca, 480 U.S. at 429.'* Upon a showing of a
“clear probability”’ of persecution, JNS v. Stevic, 467 U.S. at
430, withholding of deportation is mandated to protect the
alien from persecution. Unlike the ‘broader benefits’’
afforded by asylum, such as permanent residence status, JNS
v. Cardoza-Fonseca, 480 U.S. at 428 n.6, withholding does
not preclude deportation to non-hostile third countries, but
does provide the crucial protection of temporary refuge. Jd.
Recognizing the exceptional importance of the protections
conferred by withholding of deportation, this Court in
Abudu expressly limited the INS’ authority to “‘leap ahead,”’
and deny reopening to ‘‘cases in which the ultimate grant of
relief is discretionary... .”” Abudu, 485 U.S. at 105. Cases
involving the ‘‘mandatory”’ relief of withholding of deporta-
tion under section 243(h) were explicitly excluded from those
that can be summarily disposed of on the merits in the con-
text of a motion to reopen. Jd. In direct conflict with Abudu,
the Attorney General chose to “leap ahead’’ and deny
17 In 1968 the United States acceded to the United Nations Protocol
Relating to the Status of Refugees, Jan. 31, 1967, [1968] 19 U.S.T. 6223,
T.LA.S. No. 6577 [hereinafter Protocol]. The Protocol bound Parties to
comply with the substantive provisions of the United Nations Convention
Relating to the Status of Refugees, 189 U.N.T.S. 150 (July 28, 1951) [herein-
after Convention]. The INS acknowledges in its brief to this Court that it is
legally bound to apply the substantive provisions of the Convention, as a
result of our country’s accession to the Protocol. Pet. Br. at 24.
18 = Article 33.1 of the Convention provides:
““No Contracting State shall expel or return [‘refouler’] a refugee in
any manner whatsoever to the frontiers of territories where his life or
freedom would be threatened on account of his race, religion, nation-
ality, membership of a particular social group or political opinion.”’
Convention, supra note 17, at 176, reprinted in Protocol, supra n.17,
at 6278.
19
i hat he is ineligi-
Doherty’s motion to reopen on the ground t
ble for withholding of deportation under two disqualification
clauses that limit the reach of section 243(h). See 8 U.S.C.
§ 1253(h)(2)(A), (C) (PA at 165a).
B. An Individualized Factual Record Must Be Developed to
Determine Whether Doherty is Disqualified from With-
holding Under Section 243(h).
A full hearing that leads to the creation of an individual-
ized, factual record is indispensable to determining whether
Doherty falls within the limited exceptions for denying oo
holding of deportation under section 243(h). In fin oo
Doherty disqualified for withholding of deportation, a
Attorney General does not contest Doherty’s claim that e
would suffer persecution if returned to the United Kingdom.
Instead he relies on two disqualification clauses that deny sec-
tion 243(h) relief to otherwise eligible aliens who have
engaged in persecution or committed non-political crimes.
19 These clauses provide that the protection afforded by section
243(h)(1): .
shall not apply to any alien if the Attorney General determines an—
(A) the alien ordered, incited, assisted, or otherwise participated in
the persecution of any person on account of race, religion, nationality,
membership in a particular social group, or political opinion for]...
(C) there are serious reasons for considering that the alien has com-
mitted a serious nonpolitical crime. . .”
8 U.S.C. § 1253(h)(2)(A), (C) (PA at 165a).
i i imi i i i lauses, but they are not
The Convention contains similar disqualification c 7
worded in exactly the same way. Article 1.F of the Convention states that its
provisions, .
shall not apply to any person with respect to whom there are serious
reasons for considering that: ee
: ‘ , _
a) he has committed a crime against peace, a war crime,
B..+ humanity, as defined in the international instruments drawn up
ake provision in respect of such crimes; .
i ®) he oa committed a serious non-political crime outside the coun-
try of refuge prior to his admission to that country as a refugee; -
(c) he has been guilty of acts contrary to the purposes and principles
of the United Nations.
Convention, art. 1.F., supra note 17, at 156.
20 ’
These disqualification provisions must be interpreted consist
ently with the requirements of the Convention.” While the
Attorney General’s decision cites both provisions (Att’y a.
Dec. at 29-35 (PA 83a-9la)), a finding of disqualification
under either ground depends upon the Attorney General's
ee of the IRA, upon his imposition of vicarious lia-
ility on Doherty for the alleged acts of the IRA. and u n
his characterization of Doherty’s conduct as sl he a
Necessarily, such conclusions require a hearing at which all
— ng is presented and considered.
or example, the determination of w “9 i
Ous reasons for considering’’ that a Asse xy iagendn showy
serious non-political crime’’ (INA § 243(h)(2)(C)), which per-
meates the Attorney General’s analysis (Att’y Gen aga
29-35 (PA 83a-91a)), requires a detailed factual hearing See
UNHCR Handbook on Procedures and Criteria for Deter-
mining Refugee Status (1979) [hereinafter Handbook.’ A
careful balancing of motive and means is required to deter
mine whether an offense is non-political.” A further baiene-
20 Congress’ intention that secti i
‘ on 243(h) be interpreted ji
min with the Convention is abundantly clear. cabins eee
ying section 243(h) states that it is ‘‘based direct!
guage of the Protocol and it is intended tha isi cos he nor oma
t the provision be construed
sistent with the Protocol.’’ H.R. Conf. Rep. N "2d Bons.
‘ ‘ R. ‘ . No. 781, 96th C 2
20, reprinted in 1980 U.S. Code C Y v ppg
i S. ong. & Admin. News 160, 161:
Brief of Amici Members of Co i , oon, te
. ngress. In implementing section 24
INS is therefore bound to accord Doher : ee
ty at least that amount of protecti
we deportation as is contemplated by the Protocol and, rsa it a
sudstantive provisions of the Convention. INS v. Stevic, 467 U.S. at 416
21 ~=This Court has recognized that
stale ¢ the Handbook provides “‘signifi
guidance in interpreting the obligations under section 243(h) and the i.
vention. INS v. Cardoza-Fonseca, 480 U.S. at 439 n.22.
22 The Handbook advises that:
regard should be given, in the first iti
. place to [a political off P
= and purpose, i.e., whether it has been committed out of sr
: oe motives and not merely for personal reasons or gain. There
should also be a close and direct causal link between the crime commit-
21
ing is required to assess the nature of the crime and the
degree of persecution feared before deciding whether ade-
quate grounds exist for disqualifying an individual from with-
holding of deportation. Handbook, supra p. 20, at q 156.
Finally, consideration of any mitigating or aggravating cir-
cumstances is required. Jd. at 4 157. Only then can the merits
of the applicant’s entitlement to withholding be properly
determined. None of these required factors can be assessed
without a fully developed factual record.
The need for a hearing to determine whether Doherty has
committed ‘‘non-political crimes’’ is dramatically underscored
by the conclusions reached by Judge Sprizzo at Doherty’s
extradition hearing after considering virtually identical fac-
tors. In determining whether any violent act attributed to
Doherty fell within the political offense exception, Judge
Sprizzo considered ‘‘the nature of the act, the context in
which it is committed, the status of the party committing the
act, the nature of the organization on whose behalf it is com-
mitted, and the particularized circumstances of the place
where the act takes place.’ Matter of Doherty, 599 F. Supp.
at 275. In the one circumstance where Doherty was permitted
to present his case, the district court reached conclusions
directly contrary to those the Attorney General used to deny
Doherty a hearing.
The Attorney General principally relied on portions of the
paper record of Doherty’s extradition hearing to support his
finding that no hearing is required to disqualify Doherty
from withholding of deportation for having committed ‘‘non-
political crimes.’’ Att’y Gen. Dec. at 29-35 (PA at 83a-9la).
Judge Sprizzo reached the opposite conclusion after reviewing
the entire evidence live and observing the credibility and
demeanor of all the witnesses, including a full day of testi-
ted and its alleged political purpose and object. The political element
of the offense should also outweigh its common law character. This
would not be the case if the acts committed are grossly out of propor-
tion to the alleged objective. The political nature of the offense is also
more difficult to accept if it involves acts of an atrocious nature.
Handbook, supra p. 20, at 4 152.
22
mony by Doherty. Rejecting any Suggestion that Doherty’s
activities were non-political or that ‘‘violence was directed
against civilian{s],’’ Judge Sprizzo held that the facts of
Doherty’s case ‘‘present the assertion of the political offense
exception in its most classic form.’’ Matter of Doherty, 599
F. Supp. at 275-76.”
Moreover, Judge Sprizzo specifically rejected some of the
very arguments that the Attorney General now relies on to
declare Doherty’s activities as non-political. For example, the
Attorney General held that ‘‘record evidence that [Doherty]
. . took over a family-occupied house in a civilian, residen-
tial neighborhood . . .’’ supported his finding that Doherty’s
activities were directed at civilians, and therefore non-
political. Att’y Gen. Dec. at 33 (PA at 88a). However, after
considering all testimony and observing Doherty’s live testi-
mony on this subject,” Judge Sprizzo bluntly rejected the
government’s same argument as a basis for finding Doherty’s
actions as non-political. Indeed, Judge Sprizzo emphasized
that Doherty’s actions were never ‘‘directed against civil-
ian[s],”’ stating that ‘‘[w]e are not faced here with a situation
in which a bomb was detonated in a department store, public
tavern, Or a resort hotel, causing indiscriminate personal
23 In assessing whether Doherty’s acts were political, Judge Sprizzo
also determined that Doherty’s conduct was not *‘violative of international
law, [nor] inconsistent with international standards of civilized conduct.’
Matter of Doherty, $99 F. Supp. at 274. Because the Convention is one of
the most important international covenants defining international standards
for what constitutes protected political conduct, Judge Sprizzo’s holding
implicitly suggests that he would not have disqualified Doherty from with-
holding of deportation under section 243(h).
24 Doherty consistently testified that civilians are *“*not the targets of
the Irish Republican Army. . . the Irish Republican Army has a policy and
general regulation not [to] go for civilian targets in the war zone.’’ Transcript
of Hearing (April 2, 1984) in Jn re Requested Extradition of Doherty by the
Government of the United Kingdom (JA at 142-43). In addition, he testified
that when he and fellow IRA members came to the house at 371 Antrim
Road, they ‘‘guaranteed the lady . . . that she was not the purpose of the
Operation, that [Doherty and others] needed to get to the second and third
floor.’’ Id. (JA at 118). Doherty further testified that an unarmed IRA mem-
ber watched over the family to make sure that they ‘‘didn’t wander onto the
street or up the stairs.’’ Jd. (JA at 175).
23
inj eath and property damage.’’ Matter of Doherty, 599
ng at 275.8 Judge Sprizzo’s decision demonstrates that
the Attorney General’s simplistic reliance on excerpts from a
paper record does not justify a determination of disqualifica-
tion for withholding of deportation under section 243(h).
A hearing is particularly essential where, as here, the
Attorney General infers Doherty’s exclusion largely on the
basis of bus membership in the IRA, which is alleged to have
committed disqualifying acts, rather than on acts the appli-
cant committed personally.” Even if the Attorney General’s
unsupported proposition that conspiracy law is relevant - a
withholding claim were accepted, a hearing 1s nonetheless
required. See United States v. Peterson, 524 F.2d 167, 174
(4th Cir. 1975), cert. denied, 423 U.S. 1088 (1976) (conspir-
acy involves preconcert and connivance, not just aiding and
abetting the commission of a crime).
ini -tri ief in the extradition proceeding,
25 The Government, in its post-trial brief in t m
unsuccessfully argued that Doherty and three other IRA mcs ee ne cond
ibly taken over a building and held its inhabitants hostage. Post-Trial Mem
orandum of the Government at 34.
26 The Attorney General's reliance on McMullen v. INS, 788 F.2d 591 ;
593 (%h Cir. 1986), for this purpose is the equivalent of erroneously oo
collateral estoppel effect to an action to which Doherty was not a — “-
in which his interests were not represented. See Montana v. United a m
440 U.S. 117, 153-55 (1979) (collateral estoppel only applies to sone te)
have had a full and fair opportunity to litigate). McMullen was an IRA —
tor seeking asylum from possible persecution by the IRA, not = ~ _
Security forces or Loyalist/Unionist paramilitaries. Consequently, - ;
was seeking withholding of deportation from Ireland, not the Uni z —_
dom. McMullen v. INS, 788 F.2d at 593. Rather than presenti esenting S ao
that the IRA is a paramilitary organization whose activities are —
against military targets, not civilians (precisely the kind of evidence — 4
presented at his extradition hearing and would present ata hearing we wa
gibility for withholding of deportation to the United Kingdom), gee
presented evidence documenting what he alleged to be the oe
ties’’ of the IRA. Jd. The Attorney General’s reliance on McMullen to y
Doherty a hearing was clearly erroneous.
27 The Attorney General's linkage of membership in an organization -
alleged participation in an unlawful ‘““conspiracy”’ is contrary to rulings 0
24
The degree of proof necessa i
. ry to disqualify a
ae also demonstrates the fallacy of the a cnmen
= t at a premature determination of Doherty’s ultimate
7 sr sarge for withholding is analogous to Doherty’
o ligation to present a prima facie case. Pet. Br. at 36 The
ne ge ~y — pares facie case is to decide whether an
int will get a aring. In contrast, i i i
asap A turns on the results of that a
0 establish a prima facie case an appli
i i pplicant
nay specific facts, which ‘would, if proved, an bw
hy by relief].’ "" Ananeh-Firempong v. INS, 766 F od
a 4 A,- Cir. 1985) (quoting Wang v. INS, 622 F.2d
a 4 - — Cir. 1980) (en banc), rev’d on other grounds
2 J.S. 9 (1981). In contrast the issues related to disqual-
ae from withholding of deportation require much more
: r. dent presentation of a mere basis for denial. They involve
balancing of the nature of any alle iti
ged non-
a ne of the applicant, and the degree of —
= — = hg oe _ = doy tg resolved by a hear-
" rwe or the Attorney General
contend that he can deny Doherty’s ri ie Ge
; y’s right to a hearing on t
basis of a conclusion that can be reached only after a ~
has been conducted. -
The crucial role that a hearin i rmin
g plays in determini
pons cond = applicant is to be disqualified from withholding
this Court’s admonition that the Attorney General
_—- a and pe come this issue. Refugees who have been members or
pr or to meee movements which use violence to overthrow a
ion oc, eee y — asylum and withholding of deportation.
asadiiamamaaeee 4 » 775 F.2d 1370 (Mh Cir. 1985) (member of
Dec. No. 3088 (BIA Sept 7. on camteut + gta a ag
. . . : , be ovi
eal gh cg moe including covering them with his nies lie A
a od we no 7 be disqualified from withholding of deportation);
pecan geen epee (PA at 110a-1 1a) (referring to Board
seam 2 on ving nationals from India, Sri Lanka, Guatemala,
pa a a dhgh wane oe was granted to individuals fearing
in guerrilla or terrorist activities). sie oars
25
may not ‘“‘leap ahead’’ when the request for the underlying
relief is withholding of deportation. Abudu, 485 U.S. at 105.
In response, the INS offers only the cryptic language from
this Court’s decision in Abudu that there are ‘‘at least’’ three
independent reasons for denying reopening. Whatever addi-
tional grounds may have been contemplated by this ‘‘at
least’’ language, it does not encompass ‘leaping ahead’’
when the motion to reopen is for the purpose of applying for
withholding since this Court expressly rejected that possibil-
ity. Id.
Indeed such ‘‘predetermining’’ of the merits of a withhold-
ing claim would eviscerate the fundamental protection that
section 243(h) is designed to afford. As shown above, the
grounds for denying withholding require an assessment of
specific factors and a balancing of specified criteria. Neither
is possible without a hearing. When a movant establishes a
prima facie case, and demonstrates changed circumstances Or
a reasonable explanation for a delay, he or she is entitled to a
full hearing on withholding of deportation. If the INS’ posi-
tion prevails, an alien who demonstrates a clear probability
of persecution will be deported without ever being afforded a
hearing and the opportunity to demonstrate his or her eligi-
bility for the most fundamental protection against persecu-
tion.
Ill. UNITED STATES FOREIGN POLICY CONSIDER-
ATIONS ARE NOT LEGITIMATE CONCERNS IN
DETERMINING DOHERTY’S ULTIMATE ELIGIBIL-
ITY FOR ASYLUM.
A central purpose behind enactment of the Refugee Act of
1980 was the establishment of a fair and humanitarian frame-
work for refugee protection which includes the removal of
foreign policy considerations from decision-making and
brings the United States into full compliance with its obliga-
tions under international law. Refugee Act of 1980, Pub. L.
No. 96-212, 94 Stat. 102; see Brief of Amicus Curiae
UNHCR and Brief of Amici Members of Congress; see also
Lawyers Committee for Human Rights, The Implementation
26
of the Refugee Act of 1980: A Decade of Experience, (March
1990) [hereinafter LCHR Report]. The Refugee Act reformed
asylum and withholding of deportation by removing ideologi-
cal, political and geographical considerations. See Inzunza,
The Refugee Act of 1980: Ten Years After—Still the Way to
Go, 2 Int’l J. of Ref. L. 413, 417 (1990); LCHR Report,
at 6. We strongly endorse the arguments presented by amici
UNHCR and Members of Congress that demonstrate that
both the Refugee Act and the Convention were intended to
remove foreign policy considerations from asylum decision-
making. Moreover, since passage of the Refugee Act, both
the INS and the courts have taken significant measures to
halt discriminatory treatment of refugees on the basis of for-
eign policy. These additional measures further demonstrate
that foreign policy considerations cannot provide a legitimate
basis for a denial of asylum.
Final regulations recently were enacted in 1990 establishing
procedures for obtaining asylum, based on ‘‘[a] fundamental
belief that the granting of asylum is inherently a humanitar-
ian act distinct from the normal operation and administration
of the immigration process ....’’ 55 Fed. Reg. 30,675
(1990). The new regulations establish a range of measures
that enhance the integrity of the asylum adjudication process,
and indicate in a number of ways that United States’ foreign
policy considerations have no place in asylum determinations.
The new regulations remove the adjudication of asylum
claims from the jurisdiction of INS District Directors and
place them under the purview of Asylum Officers who are
28 The Deputy Commissioner of the INS has acknowledged that the
most important change of the 1980 Refugee Act was the adoption of the
international definition of ‘‘refugee’’ which removed the geographic and
ideological restrictions of the previous definition. Inzunza, supra, at 417. As
he pointed out:
Implementation of the neutral refugee definition contained in the Ref-
ugee Act assumed adoption by the Immigration and Naturalization
Service (INS) of an adjudication standard which was uniform world-
wide, equally applicable to all refugee and asylum applicants .. .
regardless of provenance or ideology. . . . The worldwide standard is
currently an integral part of all INS refugee and asylum training.
Id. at 417-19 (emphasis added).
27
members of the INS Office of Refugees, Asylum and Parole.
Pursuant to 8 C.F.R. § 208.1(b) (1991), these asylum officers
are to be independently trained in international law and inter-
national affairs. Under 8 C.F.R. §§ 208.12-.13 (1991), they
are authorized to rely on evidence about the conditions in
countries of alleged persecution provided not just by the
Department of State and the INS, but from a wide range of
sources including international organizations and academic
institutions. An asylum officer is expected to make an
informed and independent decision regarding each applica-
tion, based on all the relevant evidence. In addition, each
asylum officer is now required to issue written decisions,
detailing the basis for denials of relief and assessing the
applicant’s credibility in adverse decisions. See 8 C.F.R.
§ 208.17 (1991).
The new regulations also lay out explicit guidelines for the
exercise of discretion on asylum applications. 8 C.F.R.
§§ 208.14-.15 (1991). An Immigration Judge or Asylum Offi-
cer shall deny asylum in the exercise of discretion on one of
three grounds: (1) the applicant has been convicted of a par-
ticularly serious crime in the United States, (2) the applicant
has been firmly resettled within the meaning of 8 C.F.R.
§ 208.15, or (3) there are reasonable grounds for regarding
the applicant as a danger to the security of the United States.
See 8 C.F.R. § 208.14 (1991). However, if an asylum appli-
cant’s claim is denied on one of these three grounds, the
applicant still must be given the opportunity to demonstrate,
by a preponderance of the evidence, that such grounds do
not apply. 8 C.F.R. § 208.14(b). There is no mention of for-
eign policy considerations as being one of the grounds for
mandatory denial.
The INS also acted to sever the processing of asylum
claims from foreign policy concerns by its resolution of long-
standing complaints about the unfair denial of asylum to Sal-
vadorans and Guatemalans. In the ABC Settlement, supra
28
p. 3, at 799,” the INS explicitly stipulated that ‘‘foreign pol-
icy and border enforcement considerations are not relevant to
the determination of whether an applicant for asylum has a
well-founded fear of persecution.’’ Jd.”
The INS’ contention that the ABC Settlement is irrelevant
to this case because, by its terms, it only precludes foreign
policy considerations in the determination of whether an indi-
vidual has a well-founded fear of persecution, misses the
point. See Reply Brief for the Petitioner On Application for
a Writ of Certiorari at 3-4. Foreign policy considerations
have been removed from determinations of eligibility for asy-
lum in order to make the remedy of asylum available on a
humanitarian rather than a political basis. Were the INS able
to reintroduce foreign policy considerations through the exer-
cise of discretion, the reason for removing such consider-
ations from determinations of eligibility would be defeated
and the purposes of the asylum remedy would be frustrated.
The Attorney General’s zeal to return Doherty to the United
Kingdom cannot be permitted to unravel the non-political
framework of refugee protection which is the essence of the
Refugee Act.
29 This settlement was the culmination o: litigation alleging long-
standing patterns of discrimination against Salvedoran and Guatemalan ref-
ugees seeking asylum in the United States. These refugees, who clearly met
the requirements for obtaining asylum, were systematically denied protection
because, for foreign policy reasons, the government was reluctant to be per-
ceived as critical of the Salvadoran and Guatemalan governments. See ABC
v. Thornburgh, Third Amended Compl., Civ. No. C-85-3255 (RFP); see also
Carrillo, The Application of Refugee Laws to Central Americans in the
United States, 1X B.C. Third World L.J. 1 (1989); LCHR Report, supra
p. 26, at 67-70. |
30 The INS further stipulated that ‘‘whether or not the United States
Government agrees with the political or ideological beliefs of the individual’’
is not relevant to the determination of whether an applicant for asylum has a
well-founded fear of persecution. See ABC v. Thornburgh, Third Amended
Compl., Cir. No. C-85-3255 (RFP).
-
29
CONCLUSION
For all of the foregoing reasons, amici respectfully urge
this Court to affirm the decision of the Court of Appeals
below.
Dated: June 5, 1991
Respectfully Submitted,
Lucas Guttentag David W. Rivkin
Steven R. Shapiro Counsel of Record
American Civil Liberties Union
Michael W. Galligan
Geoffrey H. Coll
Philip L. Harvey
Foundation
132 West 43rd Street
New York, NY 10036
Mallika Dutt
Christine M. Bell
Of Counsel: DEBEVOISE & PLIMPTON
Deborah Anker 875 Third Avenue
1563 Massachusetts Avenue New York, NY 10022
Cambridge, MA 02138
Carolyn Patty Blum
Boalt Hall School of Law
University of California
at Berkeley
Berkeley, CA 94720 Attorneys for Amici Curiae
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