Deportation Proceedings for Joseph Patrick Thomas Doherty

• Court: Department of Justice Office of Legal Counsel
• Decided: June 30, 1989
• Status: Published

Opinion

Deportation Proceedings for Joseph Patrick Thomas Doherty

T he Attorney G en eral d isap p roved the decision o f the B o ard o f Im m igration A p p e a ls to p er­ mit the resp on d en t to reop en his deportation p roceedin gs in o rd e r to app ly for relief from deportation and to redesignate his country o f deportation.

June 30, 1989

In D e p o r t a t io n P r o c e e d in g s

This matter has been certified to me by the Commissioner o f the Immigration and Naturalization Service ( “IN S”) from the decision o f the Board o f Immigration Appeals ( “B IA”). 8 C.F.R. § 3 .1 (h )(l)(iii). On Novem ber 14, 1988, the BIA granted the respondent’s motion to reopen these proceedings in order to allow him to apply for asylum and for with­ holding o f deportation and to permit him to redesignate his country o f deportation. Matter of Doherty, No. A26 185 231 (B IA 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.

I.

1. Respondent is a 34-year-old native o f Northern Ireland and a citizen o f both the United Kingdom ( “U.K.”) and the Republic o f Ireland. He has been an active volunteer in the Provisional Irish Republic Army ( “PIR A ”) since 1972. The B IA summarized his criminal record as follows:

He has an extensive criminal record in Ireland beginning with convictions as a juvenile fo r burglary and larceny. He was sentenced to probation, fines, and 1 month in a train­ ing school. A t approximately age 15, the respondent joined Na Fianna Eireann, a youth organization in Ireland that is considered to be a stepping stone into the PIRA. When he turned 17, in 1972, he joined the PIR A as a volunteer. In 1973, he was arrested, and later convicted, fo r possession o f a firearm. He was sentenced to 1 year in prison and he served 9 months. In 1974, he was arrested fo r possession o f 80 pounds o f explosives. He was convicted and sentenced

1 to 10 years imprisonment. He served 5 years and 9 months o f that sentence. During that term o f imprisonment, the respondent attempted to escape, but he was unsuccessful. He was convicted o f prison breaking with intent to escape and received a sentence o f an additional 18 months [of] imprisonment. After his release from prison in December o f 1979, he returned to the PIRA. On May 2, 1980, w hile on a mission fo r the PIRA, he was involved in a gun battle in which a British army Captain was killed. He was tried and found guilty o f murder, attempted murder, possession o f firearm s and ammunition, and belonging to a proscribed organization.

In re Doherty, No. A26 185 231, slip op. at 1-2 (B IA Mar. 4, 1985). Throughout the course o f these proceedings, respondent has never dis­ puted the underlying facts relating to the last set o f crimes. On May 2, 1980, he and several other P IR A 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 A rm y captain, was shot and killed. Respondent was arrested and charged w ith murder, attempted murder, illegal possession o f firearms, and other offenses. On June 10, 1981, after trial, but before a decision was reached, respondent escaped from prison. On June 12, 1981, he was convicted, in absentia, o f murder and the other offenses with which he had been charged, and was sentenced to life imprisonment. A fte r his escape, respondent made his way to the United States, where he was arrested on June 18, 1983. A form al request fo r extradition was filed in the Southern District o f N ew York on August 16, 1983. A t about the same time, a deportation warrant was also filed against him. On June 28, 1983, respondent filed fo r asylum and withholding o f deportation. 2. Th e extradition proceeding was brought pursuant to 18 U.S.C. § 3184 and A rticle V II o f the then-existing Treaty o f Extradition between the United States and the United Kingdom, Extradition Treaty, Oct. 21, 1976, U.S.-U.K., 28 U.S.T. 227, (effective Jan. 21, 1977) ( “Extradition Treaty”), under which “political offen ses” w ere an exception to extradi­ tion. A hearing was held in the United States District Court fo r the Southern District o f New York in March and A pril o f 1984. In Decem ber 1984, the court ruled that respondent could not be extradited because the murder he had comm itted was “o f a political character” within the m eaning o f the Extradition Treaty. The court thus denied the request fo r extradition. Matter of Doherty by G ov’t o f U.K., 599 F. Supp. 270 (S.D.N.Y. 1984). Although the court determined that respondent was not extraditable, it rejected the contention that the proceedings against him in Northern Ireland had failed to provide due process. The court concluded:

2 [B]oth Unionists and Republicans who commit offenses o f a political character can and do receive fair and impartial justice and.. .the courts o f Northern Ireland w ill continue to scrupulously and courageously discharge their responsibil­ ities in that regard.

Matter of Doherty by Gov’t o f U.K., 599 F. Supp. at 276.' 3. Immediately upon the conclusion o f the extradition proceeding, the deportation proceeding went forward. It was delayed, however, fo r almost 18 months, from March 18, 1985, until September 3, 1986, as a result o f 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 immigration judge, respondent, through his counsel, withdrew the applications for asylum and fo r withholding o f deportation that he had filed in June 1983, and conceded deportability.2 Asked by the immigration judge whether he was saying that he “no longer wish[ed] to apply fo r asylum and [was] ... w aiv­ ing his right to asylum”, respondent’s counsel replied, “ [t]hat is correct, Your Honor.” Respondent’s counsel continued: “We would, at this time, withdraw the application for political asylum. The only thing that w e would request would, o f course, be the opportunity to desingnate [sic] a country.” See Transcript o f Sept. 12 Hearing, supra note 2, at 38. The co l­ loquy between the immigration judge and respondent’s counsel contin­ ued as follows:

Q. ... I just want to be sure there won’t be any application for political asylum and/or withholding o f deportation, correct?

A. That is correct.

Q. No application for voluntary departure?

Q. In other words, there is no application fo r relief from deportation that you will be making?

1The United States challenged the denial o f extradition by bringing an action under the Declaratory Judgment Act, 28 U S.C. § 2201, in the Southern District o f N ew York The district court and the United States Court o f Appeals for the Second Circuit both held, however, that bringing the extradition request before anolher judge was the only proper means o f challenging the decision denying extradition. U n ited States v Doherty, 615 F. Supp 755 (S.D N Y 1985), a ff’d, 786 F.2d 491 (2d Cir. 1986). 2 See Transcript o f Hearing at 36, 38-40, M attel* o f Doherty, N o A26 185 231 (B IA Sept 12, 1986) ( “Transcript o f Sept. 12 Hearing”); see also Petition o f Joseph Patrick Thomas Doherty fo r an Order to Show Cause for a Writ o f Habeas Corpus at para. 43, Doherty u. Meese, 808 F.2d 938 (2d Cir. 1986) ( “Doherty Petition”), Affidavit o f Mary Boresz Pike (Counsel fo r Respondent), sworn to Dec 2, 1987, at paras. 10-14 ( “ Pike Affidavit").

3 A. That is correct.

Id. at 38-39. Respondent designated the Republic o f Ireland as his coun­ try o f deportation, pursuant to 8 U.S.C. § 1253(a). The INS strongly opposed this designation on the ground that it would be prejudicial to the interests o f the United States to send respondent to Ireland. The INS explained to the court that the deportation o f respondent to the United Kingdom was a m atter o f great interest at the highest levels o f the feder­ al government. Transcript o f Sept. 12 Hearing, supra note 2, at 41-43, 47- 48; Transcript o f Hearing at 57, Matter o f Doherty, No. A26 185 231 (B IA Sept. 19, 1986). The court denied the IN S’ request fo r permission to sub­ m it evidence o f additional grounds fo r deportation, because respondent had conceded deportability and waived his claims to asylum and with­ holding o f deportation. See Transcript o f Sept. 12 Hearing, supra note 2, at 39^0. One w eek later, on September 19, 1986, the immigration judge found respondent deportable on his own admission fo r having entered this country in February 1982 by fraud and without a valid immigrant visa. See 8 U.S.C. §§ 1182(a)(19)-(20), 1251(a)(1).3 O ver the IN S’ strenuous objec­ tion, the immigration judge ordered respondent deported to the country o f his designation, the Republic o f Ireland. A t the tim e o f the immigration judge’s decision, respondent faced a ten- year sentence o f imprisonment in Ireland under a “dual prosecution agreem ent” betw een Ireland and the United Kingdom. Doherty v. Meese, 808 F.2d at 940.4 Respondent’s consent to deportation and his with­ drawal o f his applications fo r relief from deportation w ere apparently prom pted by the imminent ratification and implementation o f the Supple­ mentary Extradition Treaty w ith the United Kingdom, S. Exec. Rep. No. 99-17 (1985) (effe ctiv e Dec. 23, 1986) between the United States and the United Kingdom ( “Supplementary Treaty”).5 Under the Supplementary Treaty, respondent could have been extradited directly to the United Kingdom , w here, as noted, he faced a life sentence fo r murder. “ [Respondent] thus urgently want[ed] to leave the United States for Ireland, where he face[d] on ly a ten-year sentence, before the British

3M a tte r o f D oherty, N o A26 185 231 (B IA Sept 19, 1986) 4It w as also likely that respondent would be tried in the Republic o f Ireland for his escape from prison in Belfast, Northern Ireland. See Doherty Petition, s upra note 2, at para 55. 5The Supplementary Treaty amended th e Extradition Treaty. The Supplementary Treaty had been rat­ ified by the United States Senate on July 17, 1986, and, at the time o f the immigration judge’s September 19, 1986 decision, was pending before the Bntish House o f Commons. Respondent apparently expected the House o f Com m ons to ratify the treaty sometime in October 1986. See Doherty Petition, s up ra note 2, at para. 33. The Supplementary TVeaty becam e operative on December 23, 1986 U nder A rticle 4 o f the Supplementary Treaty, the “political offense” exception to extradition in the Extradition Treaty w as eliminated with retroactive effect. Thus, ratification and implementation o f the Supplementary Treaty might have rendered respondent subject to extradition, despite the pnor district court decision denying such a request

4 House o f 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 prevent the INS from continuing to contest respondent’s deportation to Ireland, petitioned the district court fo r a w rit o f habeas corpus, which was denied on September 25, 1986. Id. at 941. Respondent appealed to the Second Circuit. On Decem ber 23, 1986, the Second Circuit affirmed the district court’s denial o f respondent’s habeas corpus petition. In so doing, the court rejected respondent’s contention that the government was resisting respondent’s departure to Ireland solely fo r the purpose o f assuring his continued availability for extradition to the United Kingdom upon final ratification o f 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 o f Ireland and designating the United Kingdom and is clearly unreasonable in pressing his position through the administrative process.” Id. at 942. The court determined that the IN S’ appeal o f the immigration ju d ge’s order to the B IA was not unjustified because it was reasonable fo r the Attorney General to conclude and to argue that the interests o f the United States w ould be prejudiced by deporting respondent to Ireland. Id. at 943. The court stated that the judgment as to whether the interests o f the United States would be prejudiced was “an essentially political determ i­ nation.” Id. The court also noted that “ [t]he lack o f precedent hardly ren­ ders the governm ent’s position frivolous.” Id. at 941 n.3. Further, the court pointed out that, in a case such as this, apart from claims such as fraud, lack o f jurisdiction, or unconstitutionality, “the determination o f the Attorney General is essentially unreviewable.” Id. at 944 (footn ote omitted). 5. Thereafter, on March 11, 1987, the BIA dismissed the IN S’ appeal o f the immigration ju dge’s September 19, 1986 order, and denied an INS motion to supplement the record. The Commissioner o f the INS sought review by Attorney General Meese pursuant to 8 C.F.R. § 3 .1 (h )(l)(iii). The Attorney General granted the INS’ request fo r review and allow ed respondent and the INS to submit additional evidence and memoranda. On Decem ber 3, 1987, while the issue o f respondent’s deportation to Ireland was pending before Attorney General Meese, respondent m oved to reopen his deportation proceedings pursuant to 8 C.F.R. §§ 3.2, 3.8, and 242.22, to apply fo r asylum and withholding o f deportation, and to change his designated country o f deportation. Motion o f Respondent to Reopen or to Reconsider at 1, Matter of Doherty, No. A26 185 231 (B IA Dec. 3, 1987). Respondent claimed that his motion was prompted by a change in Irish law. In the opinion o f respondent’s counsel, the Extradition (European Convention on the Suppression o f Terrorism ) A ct ( “Extra­

5 dition A c t”), which went into e ffe c t in Ireland on Decem ber 1, 1987, w ould a llo w respondent’s extradition from Ireland to the United Kingdom.6 6. On June 9, 1988, Attorney General Meese disapproved the BIA’s deci­ sion, ruled that the INS had shown that respondent’s deportation to Ireland would be prejudicial to the interests o f the United States, and ordered respondent deported to the United Kingdom. Deportation Proceedings of Joseph Patrick Thomas Doherty, 12 Op. O.L.C. 1 (1988) ( “Deportation Proceedings”). The Attorney General rested his decision on tw o separate considerations: first, that respondent’s deportation to the United Kingdom w ould serve the policy o f the United States that those who commit violent acts against a democratic state should be promptly and lawfully punished and second, that the Department o f State had shown that respondent’s deportation to Ireland rather than to the United Kingdom would be detri­ mental to the United States’ foreign policy interests.7 Respondent’s motion to reopen also was considered in the Attorney General’s June 9, 1988 rul­ ing; the motion was remanded to the BIA. Id. 7. On N ovem ber 14, 1988, fiv e months after Attorney General Meese’s order, the B IA granted respondent’s m otion to reopen by a 3-2 vote. Matter o f Doherty, No. A26 185 231 (B IA Nov. 14, 1988). The B IA majori­ ty acknow ledged that there is “n o absolute right to withdraw a prior des­ ignation o f a country o f deportation.” Id. slip op. at 5. However, the BIA found that at the tim e of his hearing before the immigration judge, respondent had “the reasonable expectation ... that he would be deport­ ed to E ire” and that “ [t]he likelihood o f his being deported to the United Kingdom appeared remote.” Id. at 6. “Given the state o f the law at that time, the respondent could not have been expected to anticipate that he w ould not be deported to his country o f choice. The respondent’s failure to file fo r asylum under these circumstances is excusable.” Id. The B IA also held that “the Attorney General’s decision o f June 1988 dis­ allowing the respondent’s choice o f a country o f deportation constitutes changed circum stances which have arisen since the hearing.” Id. Additionally, respondent had “submitted recently published background evidence which w e find to be material to the respondent’s case.” Id. The BIA majority provided no analysis o f this evidence to support its conclusion. Finally, the B IA majority held that respondent’s evidence established a prim a fa cie claim o f a well-founded fear o f persecution. It noted that the IN S w ould have the opportunity to prove that respondent had engaged in conduct which rendered him either ineligible for withholding o f deporta­

6See Pike Affidavit, supra note 2, at paras. 25-28; see also European Convention on the Suppression o f Terrorism, 1977, Europ T.S. No. 90 7Respondent has appealed the Attorney General’s June 9, 1988 ruling to the Second Circuit. D oherty v. U n ited States D ep't o f Justice, N o 88-4084 (2d Cir filed June 21, 1988) Th e parties have agreed to sus­ pend any action on that appeal pending the outcom e o f this appeal by the INS.

6 tion or unfit for asylum, and concluded that the motion to reopen should be granted. Id. 8. The INS appealed the decision o f the BIA to me on December 5, 1988.

II.

The Attorney General has retained the authority to review final deci­ sions o f the BIA, 8 C.F.R. § 3.1(h), and he may do so either on his ow n ini­ tiative or upon request. Id. § 3 .1 (h )l(i)-(iii). The relief sought by respon­ dent — reopening o f proceedings — is w holly discretionary. The B IA has promulgated regulations governing its consideration o f motions to reopen proceedings. See 8 C.F.R. §§ 3.2, 3.8, and infra note 17. These reg­ ulations, however, apply only to the BIA, not to the Attorney General, although o f 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 reviewing fo r error. His decision is final, see Deportation Proceedings, 12 Op. O.L.C. at 4, subject only to judicial review fo r “abuse o f discretion.”8 This is the backdrop against which I consider respondent’s motion to reopen. Respondent relies upon three separate grounds in arguing for reopen­ ing o f his deportation proceedings.9 First, in relying upon the BIA opin­ ion, he claims that Attorney General M eese’s order that he be deported to the United Kingdom because deportation to Ireland would be prejudicial to the interests o f the United States, see id. at 6-7, was an unforeseen,

8 See IN S v Rios-Pincda, 471 U S. 444, 449 (1985); IN S v Jong H a Wang, 450 U.S. 139, 144 (1981); Bakram nia v. INS, 782 F.2d 1243, 1246 & n.15 (5th C ir), cert, denied, 479 U.S 930 (1986); G a rc ia -M irv . S m ith. 766 F2d 1478, 1490& n.16(l 1th Cir. 1985), cert denied, 475 U.S. 1022 (1986); M m g m v IN S , 682 F.2d 334, 337 (2d Cir 1982), Schieber v. INS, 461 F2d 1078, 1079 (2d Cir. 1972); Wong W ing H ang v INS, 360 F2d 715, 718-19 (2d Cir 1966). 9 Respondent seeks reopening so that he can request asylum and withholding o f deportation. Asylum is discretionary with the Attorney General. IN S v. Stevie, 467 U.S. 407, 423 n.18, 426 (1984), IN S v. Cardoza-Fonseca, 480 U S. 421,444-45 (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 o f persecution or a well-founded fear o f persecution on account o f race, religion, nation­ ality, group membership, or political opinion — a standard that is low er than the “clear probability” stan­ dard in withholding o f deportation cases, and that does not require a showing that persecution is more likely than not Caixloza-Fonseca, 480 U S. at 432, 449 & n 31 Ip in a v INS, 868 F2d 511, 513-14 & n. 6 (1st Cir. 1989). The BIA has held that “an applicant for asylum established! a well-founded fear if he shows that a reasonable person in his circumstances would fear persecution." M a tter o f Bayrei'a, 19 I & N Dec 837, 845 (1989). Asylum requests made after the institution o f deportation proceedings shall also be considered as requests for withholding o f exclusion or deportation. 8 C.F.R. § 208.3(b), M a tter o f M a rtinez-R om ero, 18 I & N Dec 75, 77 n 6 (1981), a f f d , M a rtm ez-R om eiv v. IN S, 692 F.2d 595 (9th Cir. 1982) An alien seeking withholding o f deportation from any country must show that his “life or freedom would be threatened in such country on account o f race, religion, nationality, membership in a particu­ lar social group, o r political opinion.” 8 U.S C § 1253(h)(1) Withholding o f deportation is nondiscre- tionary It must be granted if the Attorney General finds that the alien would be threatened for any o f the five reasons listed in the statute. IN S v Stemc, 467 U S. at 421 n 15, 426; Cardoza,-Fonseca, 480 U S at 430 The burden is on the alien to establish a “clear probability” o f persecution on any one o f the statu­ tory grounds. IN S v Stevie, 467 U.S. at 430; Ipvna o IN S, 868 F.2d at 515.

7 adverse administrative decision, constituting a “new fact.”10 Second, he claims that, after he admitted deportability and withdrew his claims for asylum and withholding o f deportation, there was a change in Irish law as a consequence o f the December 1, 1987 implementation o f the Extra­ dition A ct in Ireland. Specifically, he contends that, i f deported to Ireland, the provisions o f the Extradition A ct w ould result in his “certain” extra­ dition to the United Kingdom.11 H e argues that, had he known o f this sub­ sequent developm ent, he might have made different decisions at his deportation proceedings. A s a third ground fo r reopening, respondent claims that there is new and material evidence bearing on his deportability that should now be considered. Th e asserted new evidence consists o f (1 ) a 1988 report by Am nesty International on the British security forces’ treatment o f sus­ pected IR A members, and other supporting documents; (2 ) an affidavit from his mother, relating chiefly to the experiences o f her family and other republican sympathizers w ith the British security forces;12 and (3 ) affidavits from respondent’s counsel.13 I do not believe that any o f these three arguments justifies reopening respondent’s deportation proceedings and, accordingly, I deny the motion. A s to the arguments relied upon by respondent in support o f the motion, first, throughout these proceedings, respondent knew that the A ttorney General might deny his designation o f Ireland as the country to which he w ould be deported. This authority is expressly reserved to the Attorney General by statute, 8 U.S.C. § 1253(a), and the INS consistently took the position that it would oppose respondent’s deportation to any country other than the United Kingdom. It also informed respondent that his deportation to the United Kingdom w as a matter o f interest at the highest levels o f the federal Government. It is clear from the record that respondent m ade the conscious decision that he w ould rather be exposed to the risk that the Attorney General w ould deny his deportation to Ireland than to the risk o f extradition directly to the United Kingdom by the United States under the Supplementary Treaty, then in the final stages o f ratification. It is unlikely that the Attorney General’s decision to avail him self o f his recognized authority to reject a deportee’s designation can ever consti­ tute new evidence. It certainly cannot properly be considered new evi­ dence w here, as here, deportation to the country designated by the alien

10Respondent does not make this argument in terms. However, the BIA specifically granted the motion to reopen on the ground that Attorney General Meese’s order was, in effect, new evidence. For this rea­ son, I address the argument here. 11 See B rief fo r Respondent-Appellee to the Attorney General at 14 (A p n l 26, 1989) ( “Respondent’s Brier). 12See A ffidavit o f Mary (M aureen) Doherty, sworn to Dec. 2, 1987 ( “M. Doherty Affidavit"). 13See P ik e Affidavit, supra note 2, Supplemental Affidavit o f Mary Boresz Pike, sworn to Aug. 9, 1988 ( “P ik e Supplemental A ffid avit”) has been vigorously contested throughout the proceedings by the federal Government; it has been represented that there is interest at the highest levels o f the Government that the alien not be deported to the country designated; and the Attorney General ultimately concludes that the national interests should prevail. Appeal to the Attorney General and decision consistent with the interests o f the United States under such cir­ cumstances should reasonably be expected. See discussion infra pp. 12-13. Second, on the assumption that the implementation o f the Extradition A ct represented a change in law, it did not change the rules o f decision applied by the immigration officials or Attorney General Meese. I f the implementation o f the Extradition A ct represents a change in fact, it is an immaterial change. The Extradition A ct gave effect in Irish law to the pro­ visions o f the European Convention on the Suppression o f Terrorism ( “European Convention”), to which the United Kingdom is also a party. The Irish Government expressed its intention to sign the European Convention in Novem ber 1985, and did in fact sign it in February 1986. Accordingly, respondent knew or should have known w ell before Decem ber 1, 1987, that Ireland had endorsed the provisions o f the European Convention. Furthermore, respondent was subject to extradi­ tion to the United Kingdom from Ireland even before Ireland became a party to the European Convention. Thus, Ireland’s subsequent adoption and implementation o f the Extradition A ct did not in itself create a risk o f extradition; nor did it materially increase the risk that respondent would be extradited to the United Kingdom. See discussion infra pp. 13-18. Third, much o f the “new” factual evidence proffered by respondent is not new at all; it was available at the time o f 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 m ost part, it is cumulative o f evidence presented in the earlier proceedings. It does not support the existence o f a threat different in character from that known at the time o f the deportation proceedings. See discussion infra pp. 18-20. Thus, none o f the grounds offered fo r reopening respondent’s deporta­ tion proceedings is sufficient to warrant reopening. In addition to finding the arguments advanced in support o f reopening insufficient, I would, in the exercise o f my discretion and as an indepen­ dent basis for decision, deny the motion to reopen on the ground that respondent explicitly waived his claims to asylum and withholding o f deportation as part o f a calculated plan to ensure immediate 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.14 The integrity o f the administrative process dictates that a deportee who, with the advice and

14 C f C om m u nica tion Workers o f Am., Local 5008 v. NLRB, 784 F2d 847,851 (7th Cir. 1986) (court must sustain administrative decision if any o f the independent grounds that support the decision is correct).

9 assistance o f counsel, makes such deliberate tactical decisions, not be perm itted to disown those decisions m erely because they ultimately result in action adverse to his interests. This is especially the case where the possibility o f that action was not only foreseeable but foreseen. Finally, I also deny respondent’s motion to reopen on the unrelated ground that respondent would not ultimately be entitled to either asylum, the discretionary re lie f he seeks, or withholding o f deportation, the nondiscretionary relie f he seeks. See discussion infra Part V.15 Respondent simply has not carried the heavy burden o f showing either that he is entitled to reopen his deportation proceedings or that, as a mat­ ter o f discretion, he should be allow ed to do so. The record reveals clear­ ly that respondent made deliberate, well-informed, tactical decisions throughout the proceedings to ensure deportation, i f at all, to the country o f 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 recognized have in fact materialized. That which the Supreme Court said in the context o f a similar attempt to rescind a litigating decision in an im m igration proceeding is applicable to respondent:

His choice was a risk, but calculated and deliberate and such as fo llow s a free choice. [Respondent] cannot be relieved o f such a choice because hindsight seems to indi­ cate to him that his decision ... w as probably wrong.... There must be an end to litigation someday, and free, cal­ culated, deliberate choices are not to be relieved from.

Ackermann v. United States, 340 U.S. 193, 198 (1950).16

III.

I turn first to the claims that respondent should be permitted to reopen his deportation proceedings because o f (1 ) the unexpected, adverse deci­ sion o f A ttorney General M eese ordering him deported to the United Kingdom , (2 ) the supervening im plem entation in Ireland o f the Extradition Act, see Respondent’s Brief, supra note 11, at 14; Pike

15See s upra note 14. 16SV?e also B a llenilla-G onzalez v INS, 546 F.2d 515, 520 (2d Cir 1976) (alien’s waiver o f claimed right to counsel w as binding, despite her mistaken impression o f the law, denial o f motion to rehear upheld), cert, denied, 434 V S. 819 (1977), Small v. IN S , 438 F.2d 1125, 1128 (2d Cir 1971) (alien’s waiver through counsel o f right to present further evidence at new hearing was binding; deportation order affirmed); L a F ra n ca v. IN S , 413 F.2d 686, 690 (2d Cir 1969) (no reason to reopen proceeding to permit alien to try to establish eligibility fo r voluntary deportation where alien’s counsel had previously waived request for hearing on voluntary departure); M atter o f M -, 51 & N Dec. 472, 474 (1953) (counsel’s decision not to file application fo r suspension o f deportation dunng pendency o f deportation hearing was analogous to error o f judgm ent in conduct o f defense, since filing became untimely, denial o f motion to reopen would not violate due process; m otion was granted “ purely as a matter o f grace").

10 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 o f proceedings. The B IA held that Attorney General M eese’s order justified reopening and permitting respondent to withdraw his prior waivers o f claims to asylum and withholding o f depor­ tation. See Respondent’s Brief, supra note 11, at 9 & n.5. Respondent raised, but the B IA was not required to decide, the question o f the effect o f the Extradition A ct because o f its holding that Attorney 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 (B IA Nov. 14, 1988). The BIA suggested, but did not explicitly hold, that the affidavits and books would be sufficient to justify reopening. Id. at 6. Deportation proceedings may be reopened by the BIA on the basis o f new evidence if the evidence “is material and was not available and could not have been discovered or presented at the form er hearing.” 8 C.ER. § 3.2.17A motion to the BIA to reopen a deportation proceeding on the basis o f previously unavailable evidence is “appropriate[ly] an alogized ]” to “a motion for a new trial in a criminal case on the basis o f newly discovered evidence, as to which courts have uniformly held that the moving party bears a heavy burden.” INS v. Abudu, 485 U.S. 94, 110 (1988). Motions to reopen deportation proceedings on this ground are plainly “disfavored,” id. at 107,18 for reasons “comparable to those that apply to petitions for rehearing, and to motions fo r new trials on the basis o f newly discovered evidence.” Id. (footnotes om itted).19 Generally, a motion to reopen on the grounds o f new evidence w ill not prevail unless the proffered evidence is such that it probably would change the outcome o f the prior proceeding.20

17"Motions to reopen shall state the new facts to be proved at the reopened hearing and shall be sup­ ported by affidavits or other evidentiary material.” 8 C F.R § 3 8 “Motions to reopen in deportation pro­ ceedings shaJl not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing ” Id at § 3 2. Similarly, a motion to the immigration judge for reopening pursuant to 8 C.FR § 242.22 “will not be grant­ ed unless the immigration judge is satisfied that evidence sought to be offered is material and was not avail­ able 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 o f § 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 supported by affidavits or other evidentiary material.” 8 C FR. § 103 5(a). A motion to reopen pursuant to 8 C F.R. § 208.11 on the basis o f an asylum request “must reasonably explain the failure to request asylum prior to the completion o f the . deportation proceeding.” See also Ghosh v. Attorney General, 629 F2d 987, 989 (4th Cir 1980), M atter o f H a im , 19 I & N Dec 641 (1988), M atter o f L a m , 14 I & N Dec. 98, 99 (1972). 18See also IN S v Jong Ha Wang, 450 U.S. 139, 143 n.5 (1981) (regulatory language disfavors reopening). 19Failure to introduce previously available, material evidence, 8 C F R § 3.2 (or, in an asylum applica­ tion case, failure to reasonably explain the failure to apply fo r asylum initially, 8 C .F R § 208 11), is an independent ground upon which the BIA may deny a motion to reopen. IN S v. A budu, 485 U S at 104 20See United States v. Agurs, 427 U.S 97, 111 & n 19 (1976) (standard is generally applied on motions for new criminal tnals), P h ilip v Mayer, R othkopf Indus , In c , 635 F2d 1056, 1063 (2d Cir 1980) (no new trial in civil case where movant’s post-tnal evidence would not “change our result here”); United States v. Slutsky, 514 F2d 1222,1225 (2d Cir 1975) (post-tnal evidence must be “so material that it would probably produce a different verdict”), U nited States v On Lee, 201 F2d 722, 724 (2d Cir.) (sam e), cert, denied, 345 U.S. 936 (1953)

11 W hile the B IA standards apply only to the BIA, not to the Attorney General, I refer to them in my consideration o f the arguments made for reopening in this part because I believe they embody neutral inquiries that go directly to the issue o f the applicant’s justification fo r asking for, and the administrative system’s justification fo r allowing, the reopening o f proceedings previously closed. Under these standards, I do not believe that either Attorney General M eese’s decision or the implementation o f the Extradition Act warrants reopening o f respondent’s deportation proceedings. Neither constitutes previously unobtainable material evidence as required by the regulations, see 8 C.F.R. §§ 3.2, 3.8, 242.22, n or a reasonable justification fo r permitting respondent to withdraw his w aiver o f his claim for asylum. Id. § 208. I I . 21 1. Attorney General Meese’s June 9 order cannot properly be consid­ ered a “new fact.” While the actual fact o f the order is in some sense “new,” the possibility that the Attorney General w ould 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 o f the Attorney General, in his discretion, to deny depor­ tation to the country designated by an alien is plain on the face o f the same statute that gives the alien the right to designate the country to which he wishes to be deported:

The deportation o f an alien in the United States provided fo r in this chapter, or any other A ct or treaty, shall be direct­ ed by the Attorney General to a country promptly designat­ ed by the alien if that country is willing to accept him into its territory, unless the Attorney General, in his discretion, concludes that deportation to such country would be prej­ udicial to the interests o f the United States.

8 U.S.C. § 1253(a) (emphasis added). Given this explicit reservation o f authority and its appearance in the very same sentence that accorded

21 It is unnecessary fo r me to address (and I do not) the question whether respondent has established a prim a facie case for the substantive relief sought The Attorney General may decide not to reopen a deportation proceeding, even if the movant establishes a pnm a facie case fo r granting asylum or with­ holding o f deportation. See IN S v. Abudu, 485 U.S at 105-07 (holding that m otion 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 B IA has discretion to deny a motion to reopen even if the alien has made out a prima facie case for r e lie f’ and that “in a given case, the BIA may determine . . as a sufficient ground fo r denying relief . . whether the alien has produced previously unavailable, material evidence (§ 3 2 )”); see also IN S v. R ios- P ined a, 471 U.S at 449 ( “even assuming that respondents’ motion to reopen made out a pnma facie case o f eligibility for suspension o f deportation, the Attorney General had discretion to deny the motion to reopen”), IN S v. Jong Ha Wang, 450 U S at 144 n.5 (8 C F.R. § 3.8 “does not affirmatively require the Board to reopen the proceedings under any particular condition”); B a hra m n ia v. IN S , 782 F.2d at 1249, Y ou sifv. IN S , 794 F2d 236, 241 (6th Cir 1986); A hw azi v. INS, 751 F.2d 1120, 1122 (9th Cir 1985), M atter o f A - G-, 19 1 & N Dec. 502 (1987), Matter o f B a ro cio , 19 I & N Dec. 255 (1985).

12 respondent the right to designate Ireland his country o f deportation, it is inconceivable that anyone represented by counsel could not know that there always existed a risk that the Attorney General would deny respon­ dent’s deportation to Ireland to protect the interests o f the United States. Even if the possibility o f denial by the Attorney General w ere not so clear from the face o f the statute alone, it should have been evident from the position taken by the Government from the outset o f the proceedings. At the September 12, 1986, hearing at which respondent designated Ireland as his country o f deportation, counsel fo r the INS objected to that designation, and stated that the INS would take the position that depor­ tation to any country other than the United Kingdom would be prejudicial to the interests o f the United States. Transcript o f Sept. 12 Hearing, supra note 2, at 41-43, 47-48. The INS even represented that there was interest at the highest levels o f the federal government in having respondent deported to the United Kingdom. Id. at 47 ( “ [T]his matter is o f some con­ cern at the highest levels o f government and ... was under consideration by the legal advisor to the State Department and w ill be under the per­ sonal review o f Attorney General Meiss [sic] this coming w eek.”). Given these representations by the INS, respondent clearly should have understood, if he did not, that “ [a]fter the B IA determination, the case might ultimately be referred to the Attorney General at his request, at the request o f the Chairman or a majority o f the BIA, or at the request o f the Commissioner o f the INS.” Doherty v. Meese, 808 F.2d at 942. Contrary to the conclusion o f the BIA, Matter o f Doherty, No. A26 185 231, slip op. at 6 (B IA Nov. 14, 1988), once this possibility was acknowl­ edged, respondent reasonably should have known (again, if he did not) that the Attorney General ultimately might forbid deportation to Ireland. The ultimate decision in an administrative process cannot itself consti­ tute “new ” evidence to justify reopening. I f an adverse decision w ere suf­ ficient, there could never be finality in the process. 2. Respondent also characterizes Ireland’s implementation o f the Extradition Act, and specifically the provisions permitting extradition to the United Kingdom, as a supervening change requiring reopening o f the proceedings. He terms this asserted change “the watershed event,” Respondent’s Brief, supra note 11, at 11-12, “the gravamen o f [his] motion to reopen,” id. at 14, and “ [t]he event warranting the motion,” Pike Affidavit, supra note 2, at para. 5.22 For the reasons below, I do not believe that implementation o f the Extradition A ct was a “new fact.” Moreover, even assuming that it was new and did represent a change in

22 At one time, respondent suggested that the change in Insh law was the sole cause o f his motion See Reply B rief o f Respondent-Appellee to Opposition to Respondent’s Motion to Reopen or T o Reconsider at 6 (Apr. 22, 1988) ( “The cause o f [respondent’s motion’s] December 3, 1987, filing was the implemen­ tation on December 1, 1987, o f the Extradition Act. No grounds for its filing existed until December 1, 1987, respondent can hardly be faulted for not having filed it prior to that d a te " ) (footnote omitted)

13 Irish law, it is irrelevant, given that Attorney General Meese ordered respondent deported to the United Kingdom, not Ireland. It is plain that implementation o f the Extradition A ct was not a “new ” fact. In the Anglo-Irish Agreem ent entered into at Hillsborough, Northern Ireland on N ovem ber 15, 1985, the Irish Government expressed its inten­ tion “to accede as soon as possible to the European Convention on the suppression o f terrorism .” Ireland-United Kingdom: Agreem ent on Northern Ireland, Nov. 15, 1985, 24 I.L.M. 1579, 1581. Ireland signed the European Convention on February 24, 1986, see, e.g., Ireland Signs Terrorism, Convention, Fin. Times, Feb. 25, 1986, § 1, at 4, m ore than six months before respondent withdrew his applications for asylum and for withholding o f deportation and conceded deportability. See discussion supra pp. 3-4. Both the Novem ber 1985 Anglo-Irish Agreem ent and Ireland’s February 1986 signing o f the European Convention w ere widely publicized. See, e.g., Fitzgerald Discusses Anglo-Irish Pact, U.S. Aid, Ir. Echo, Mar. 22, 1986, at 6; Holland, Ireland to Sign Anti-Terrorist Convention, Ir. Echo, Mar. 1, 1986, at 2; Complete Text o f Anglo-Irish Agreement on Ulster, The Tim es (Lon d on ), Nov. 16, 1985, at 4. Respondent, having expressly based his designation on a counseled understanding o f Irish extradition laws, is properly chargeable with know ledge o f Ireland’s signing o f the European Convention. The Extradition Act, which gave effect in Irish law to the European C onvention and amended the Extradition Act o f 1965, was passed on January 21, 1987. Extradition (European Convention on the Suppression o f Terrorism ) Act, No. 1 (1987). Section 13 o f the Extradition A ct provid­ ed that its implementation w as suspended until Decem ber 1, 1987, sub­ je c t to the condition that resolutions o f both Houses o f the Irish Parliam ent could bring it into fo rce at an earlier date or provide fo r fur­ ther postponement. Id. § 13.23 In sum, “the watershed event” upon which respondent relies was neither sudden nor unforeseeable. Instead, it was the logical culmination o f a lawmaking process that had been set in m otion m ore than tw o years p rior to Decem ber 1, 1987. Even w ere the fact o f the Extradition A ct “new,” it would not justify reopening o f the deportation proceedings. A supervening change in the law does not generally constitute a reason for granting a new trial or for amending a judgment, even i f the litigant has abandoned a claim or defense that might be meritorious in light o f the change.24 And, as noted, a change in law that would n ot constitute grounds for a new trial ordi­

23 Pursuant to section 13, the Extradition Act was automatically implemented on December 1, 1987. Acceleration o r postponem ent o f the implementation date, however, would not have affected the Extradition A c t’s applicability to respondent. By its terms, the Extradition A ct applies to offenses com ­ mitted o r alleged to have been committed “before or after” the date o f passage, January 21, 1987. Extradition A ct at § 1(4) 24See Fed R. Civ P. 59(a), D el Rio D i s t n b , Inc. v A d olph Coors Co , 589 F2d 176, 178-79 (5th Cir.), cert denied, 444 U.S. 840 (1979)

14 narily does not justify reopening deportation proceedings. IN S v. Abudu, 485 U.S. at 913-14. Some courts have held that an exception to this gen­ eral rule against a 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 N at’l Trust & Sav. Ass’n, 51 F. Supp. 751, 751 (N.D. Cal. 1943). But see McMann v. Richardson, 397 U.S. 759, 774 (1970). Here, however, the Extradition A ct did not alter the rules o f deci­ sion applied by the immigration judge or the Attorney General in either the section 1253 proceedings or the asylum and withholding o f deporta­ tion proceedings. As to the former, the immigration judge and Attorney General Meese ordered respondent deported to Ireland arid the United Kingdom, respectively, based upon their assessments o f the foreign poli­ cy interests o f the United States. The interests o f the United States, and the compatibility o f deporting respondent to either country with those interests, are the same now as they w ere prior to the implementation o f the Extradition Act. As to the latter, the Extradition Act could not have and did not change the standards that apply to respondent’s asylum and withholding o f deportation claims under the statutes o f the United States. Accordingly, any change in law wrought by the Extradition A ct does not call into question the legal correctness o f 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 o f the Extradition A ct must represent a change in fact justifying reopening o f the proceedings because the Extradition A ct expressly provides fo r extradition by Ireland to the United Kingdom. This argument, too, is unpersuasive. I do not believe that the Extradition A c t’s provisions, as they relate to respondent, represent a change in fact that w ould warrant reopening these deportation proceedings. Respondent was extraditable by Ireland to the United Kingdom before the Extradition A ct was implemented; he would be extraditable under the Extradition Act. Indeed, respondent him self repeatedly emphasized the serious risk o f extradition by Ireland before passage o f the Extradition A ct in arguing fo r affirmance o f the immigration judge’s order that he be deported to Ireland.25 F or example, in his December 1986 brief, he states, “the Service fails to note that deci­ sions o f the Irish Supreme Court are view ed as having vitiated the p oliti­ cal offense exception, thereby removing any obstacle to respondent’s extradition from Ireland to Northern Ireland. See, e.g., McGlinchey v. Wren, 3 Ir. L. Rep. Monthly 169 (1982).” Brief fo r Respondent Appellee Joseph Patrick Thomas Doherty at 16 (Dec. 19, 1986). In the Doherty

25 See Doherty Petition, supra note 2, at paras 53-54, B rief for Respondent-Appellee Joseph Patrick Thomas Doherty at 16 (D ec 19, 1986), Reply o f Respondent to Opposition o f the IN S to Respondent’s Motion for Summary Dismissal at 7 n 5 (Oct. 27, 1986), B rief fo r Appellant John Patrick Thomas Doherty at 14 (O ct 2, 1986)

15 Petition, supra note 2, at paras. 53-54, respondent’s attorney, Stephen Somerstein, stated:

The Republic o f Ireland ... has extradition arrangements w ith the United Kingdom and has recently extradited to Northern Ireland individuals who had raised the political offen se exception as a defense to their extradition, but w ere 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 w ill be considered by the courts o f the Republic o f Ireland pur­ suant to the w ell established law o f that country in an his­ torical context but best understood by the Irish and British themselves.

The only difference since implementation o f the Extradition A ct appears to be that extradition is now expressly provided fo r by statute, whereas previously extradition was sim ply ordered on the basis o f less formal “extradition arrangements” betw een the United Kingdom and Ireland. See Doherty Petition, supra note 2, at para. 53. Given that respondent faced a serious risk o f extradition by the United Kingdom before implementa­ tion o f the Extradition Act, it cannot be said that the mere express provi­ sion fo r extradition in the statute constitutes new evidence. Respondent claims that the Extradition A ct transformed “the possibil­ ity o f [his] rem oval from Ireland to the United Kingdom ... into a certain­ ty.” See Respondent’s Brief, supra note 11, at 14. Respondent’s effort to m inim ize the risk o f deportation by Ireland before implementation o f the Extradition A ct contradicts the statements that he made before the BIA in defense o f the immigration ju d g e ’s order deporting him to Ireland. See discussion supra note 25. Furthermore, it is unsupported by the provisions o f the Extradition A ct itself which, incorporating the terms o f the European Convention, pro­ vide fo r denial o f extradition w here

there are substantial grounds for believing that —

(ii) the warrant was in fa ct issued fo r the purpose o f pros­ ecuting o r punishing (the person nam ed) on account o f his race, religion, nationality or political opinion or that his position w ould be prejudiced fo r any o f these reasons.

Extradition (European Convention on the Suppression o f Terrorism) Act, No. 1 § 8 (1987); see also id. § 9. Thus, existing Irish law explicitly pre­

16 serves fo r 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 p. 15, would view his claim with greater under­ standing.26 The reasonable inference therefore is 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.27 Respondent’s argument on the Extradition A ct comes dow n to the fact that he believes that he w ill be given a more sympathetic hearing on an asylum or withholding o f deportation claim in this country than he would receive on a denial o f extradition claim in his ow n country. Absent reason to think that respondent w ill not receive a fair hearing in his home courts o f Ireland, this is simply not a basis fo r reopening his deportation proceedings. I would reject respondent’s claim based upon implementation o f the Extradition A ct on a separate and independent ground: even if I agreed that the Extradition A ct 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 o f the United States to deport respondent to Ireland, and in furtherance o f our nation­ al interests to deport him to the United Kingdom where he could be

26 Indeed, there is reason to believe that the Extradition Act has actually enhanced the defenses avail- able to an individual seeking to resist extradition from Ireland to the United Kingdom. Under the Extradition (Amendment) Act, No 25 (1987), the Attorney General o f Ireland is prohibited from endors­ ing fo r execution an arrest warrant under the Extradition A ct unless he is o f the opinion that “there is a clear intention to prosecute or .. continue the prosecution of, the person named or described in the war­ rant concerned for the offence specified therein” in the country seeking extradition, and “such intention is founded on the existence o f sufficient evidence ” Id § 2 (l)(a ). Furthermore, extradition may also be refused on the grounds that, “by reason o f the lapse o f time since the commission o f the offence . o r the conviction o f the person named .. and other exceptional circumstances, it would ... be urgust, oppres­ sive or invidious to deliver him up ” Id § 2 (l)(b ). At least one recent study indicates that the Extradition A ct does not go as far as the Irish Supreme Court has gone in circumscribing the political offense excep­ tion. Gerard Hogan & Clive Walker, P o litic a l Violence and tfie Law in Ireland 292-93 (1989) The actual administration o f Irish extradition law after the implementation o f the Extradition A ct also suggests that it is less than certain that respondent would be extradited to the United Kingdom w ere he deported to Ireland. On December 13, 1988, the Attorney General o f Ireland issued a statement rejecting a request by the government o f the United Kingdom to extradite the suspected PIR A terrorist Patrick Ryan, whom the British authorities wished to try for alleged terrorist activities, including conspiracy to murder, possession o f explosives, and conspiracy to cause explosions. See, e g ., Sheila Rule, Irish, D eny B ritis h B id to E xtra d ite Priest Suspected o f A id in g I.R.A., N.Y. Times, Dec. 14, 1988, at A3 In v ie w o f the Insh Attorney General’s decision not to comply with that extradition request, it seems entirely pos­ sible that a request to extradite respondent from Ireland might also be rejected 27Even were I to assume that implementation o f the Extradition A ct increased the nsk that respondent would be extradited to the United Kingdom from Ireland, I would not grant the motion to reopen respon­ dent’s proceedings. Any change in the nsk o f extradition would necessarily be immaterial, given that the nsk w as “senous” before implementation o f the Extradition A ct and is no more than serious (i.e ., not certain) today

17 prom ptly punished fo r the crim es he has committed. Deporation Proceedings, 12 Op. O.L.C. at 6-7. Unless I overturn Attorney General M eese’s order, which I have no reason to do, a change in Irish law has no effe ct upon respondent. Respondent cannot be deported to Ireland because o f the extant determination that that would be contrary to the interests o f the United States, and he cannot claim asylum against depor­ tation to the United Kingdom because he assumed the risk o f deportation to the United Kingdom when he designated Ireland. See discussion supra pp. 12-13. This is unlike the situation where an alien designates a partic­ ular country and there is a subsequent change in the country that increas­ es the likelihood o f his persecution in that country. In that circumstance, the alien m ay 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 affect respondent because he is not going to be deported to Ireland. 3. Respondent also urges reopening on the ground that he is proffering new evidence in the form o f affidavits and documents. This evidence is not both material and previously unobtainable. See 8 C.F.R. §§ 3.2, 242.22.28 “When an alien has already had one full deportation hearing, with all the procedural rights accompanying it, ... he or she may have it reopened only upon a showing o f significant new evidence.” Acevedo v. INS, 538 F.2d 918, 920 (2d Cir. 1976) (per curiam). Substantially all o f the evidence submitted by respondent is either cumulative o f that which he has previously presented, discoverable long ago, o r not material in light o f the evidence that was presented. None o f the evidence supports exis­ tence o f a threat o f persecution o f which respondent was unaware or a m aterial change in the character o f a threat previously recognized. (a ) Respondent proffers certain documents, including a report by Am nesty International, United Kingdom/Northern Ireland: Killings by Security Forces and “Supergrass" Trials (1988) ( “Amnesty Report”), and a b o o k relied on by Amnesty International in its report, John Stalker, The Stalker Affair (1988); by the form er Deputy C hief Constable o f the Greater Manchester (U.K.) P o lice Force, which he maintains contain new evidence o f the threat he faces by deportation.29 Both the Amnesty R eport and the Stalker book focus on allegations that British security fo rces have killed or wounded unarmed individuals suspected o f mem­ bership in republican armed opposition groups, as part o f a government p o licy o f eliminating rather than arresting such individuals. The incidents o f “particular concern” to Am nesty International w ere “the killings o f six

28 The B IA provided no analysis to support its conclusory assertion that “respondent has submitted recently published background evidence which w e find to b e material to the respondent’s case.” M atter o f D o h e rty , No. A26 185 231, slip op. at 6 (B IA Nov. 14, 1988) Nor did Board Member Heilman provide any analysis o f these materials in his concurring opinion. 29The contents o f these documents are summarized by respondent’s counsel in the Pike Supplemental A ffidavit, supra note 13

18 unarmed persons in late 1982.” Amnesty Report at 7; see id. at 17-25 (dis­ cussing the 1982 events). Information concerning these events was avail­ able to respondent w ell before he brought his motion to reopen, and indeed even before he withdrew his claims fo r asylum and withholding o f deportation in September 1986. See Matter of Lam, 12 I & N Dec. 696 (1968).30 Thus, although the Amnesty Report itself first appeared in 1988, respondent could, with due diligence, have presented significant amounts o f the information contained in it at a much earlier stage o f these proceedings.31 He offers no reasonable explanation fo r his failure to do so. (b ) Respondent also proffers an affidavit from his mother, describing her fam ily’s dealings with the British security forces, and with Ulster “unionist” elements outside the government.32 Even accepting as true the recitals set forth, the affidavit merely presents evidence that was discov­ erable earlier. Again, he offers no explanation as to why he did not prof­ fer the evidence during any o f the earlier proceedings.33 Moreover, the evidence is essentially cumulative o f that offered previ­ ously. The theme o f the affidavit is that a longstanding pattern o f conduct by British military and police forces in Northern Ireland, coupled with the violent activities o f pro-unionist elements among the Protestant popula­ tion, indicates the presence o f danger to suspected republican sympa­ thizers generally, and particularly to the respondent and his family.34 This claim, and indeed much o f the evidence cited to support it, is substan­ tially the same as that presented by respondent when he first claimed relief in June 1983; it does not suggest existence o f either a new source

30L a m is closely analogous to this case In Lam , the BIA denied a concededly deportable alien’s motion to reopen in order to wilhdraw his designation o f Hong Kong as his country o f deportation, and to per­ mit him to apply for temporary withholding o f his deportation thereto The alien claimed that he should have been given the opportunity to withdraw his designation because o f Communist nots that broke out in Hong Kong in May 19G7 He contended that he had fled from mainland China as a refugee from Communism, and that the nots gave nse to a fear that he would be persecuted by the Communists if he w ere sent to Hong Kong. The BIA denied his motion, m part because his evidence was not previously unobtainable, the movant could have advanced his claim for asylum in a July 1967 heanng, i e., two months after the riots, but had not done so 31 Amnesty International’s concerns over the causes o f the incidents against Insh republic groups do not bear on the treatment o f individuals held in pnson for criminal activities Assuming fo r the purposes o f this motion that British secunty forces have on occasion sought to kill suspected republican opposi­ tion members who w ere outside their custody, it does not fo llow that an individual actually in the keep­ ing o f Bntish forces would also be exposed to such a threat. 32The affidavit’s references to the conduct o f nongovernmental “unionist” elements relate generally to the unstable conditions in Northern Ireland, but do not substantiate a claim that he would be threatened by per­ secution at the hands o f British governmental authonties C f M atter o f A - G-, 191& N Dec 502,506 (1987) 33The affidavits o f respondent’s counsel, supra notes 2-3, also fail to provide previously unobtainable matenal evidence. The pertinent facts recited therein are found elsewhere in respondent’s submissions or are otherwise matters o f record 34The danger indicated, it should be noted, need not be understood as a danger o f persecution The law­ ful use o f force by authorized officials which is reasonably aimed at detecting, preventing, or punishing cnm- inal activity does not support a claim o f persecution The affiant’s statement does not attempt to distinguish such activity on the part o f the Bntish military and police from the other types o f conduct she descnbes.

19 o f persecution or a heightened danger o f persecution from an existing source w hich respondent did not previously apprehend.35 In fact, sub­ stantial portions o f Mrs. Doherty’s affidavit relate to matters which occurred even before respondent w ithdrew his claims fo r asylum and w ithholding o f deportation.36 Other events o f m ore recent occurrence, although they may comprise information not previously available to respondent, are not sufficiently material to warrant reopening.37

IV.

I am also exercising my discretion to deny respondent’s motion to reopen on the independent ground that he knowingly and intelligently w aived any claim that he might have had to asylum and withholding o f deportation. In my judgment, at least in this particular case, the interests in the integrity o f the administrative process and finality o f decision should pre­

35 See G a n jo u r v. IN S , 796 F 2d 832,838 (5th Cir 1986) (application fo r reopening untimely where based on information from telephone call by alien’s sister in Iran predating immigration hearing and appeal); Young v IN S , 759 F2d 450, 456-57 (5th C ir.) (affidavit stating that alien’s daughter had recently been arrested and interrogated about him by Guatemalan police was cumulative o f prior evidence), cert d enied, 474 U.S. 996 (1985), cf. B em a l-G a rcia v. INS, 852 F.2d 144, 146^47 (5th Cir 1988) (new evidence consisted o f letter received after conclusion o f deportation proceedings relating previously unknown death threat made tw o w eek s earlier), A n a n eh -F irem pon g v. IN S, 766 F2d 621, 626 (1st Cir 1985) (sup­ porting affidavits described political events “that, in relevant part, had not occurred until [after (m ovant’s )] earlier deportation proceedings had concluded”). 30 See M. Doherty A ffidavit, supra note 12, at paras. 1-20, 22-23, 25-27, 36-38 (relating information, sub­ stantially all o f which was available pnor to respondent’s withdrawal o f his claims fo r asylum and with­ holding o f deportation on September 12, 1986) Thus, fo r instance, the affiant’s accounts o f arrest, trial, and acquittal o f respondent’s sister on a charge o f murder in 1983, see id at para 20, or o f subsequent events in 1985 and 1986 involving her daughter and o f the man with whom her daughter lives, see id. at paras. 23-28, would appear to have been available to respondent w ell before his w aiver o f his asylum claim. Indeed, in his 1983 application for asylum, respondent referred to arrests o f his mother, father, and three sisters at various tim es in the p n o r twelve years, and to the bombing o f his family’s house in 1974 by what he described as a “quasi-officiaJ Protestant group.” See Respondent’s Application fo r Political Asylum, signed June 27,1983. Much o f respondent’s m other’s affidavit simply elaborates on or adds detail to such allegations, 37 For exam ple, the affiant states that h er son-in-law had been arrested about five weeks before she m ade out her affidavit, and that while he w as detained, the police “made abusive remarks to him” about respondent. M. Doherty Affidavit, supra■note 12, at para. 35 Again, fo r example, the affiant states that on tw o unidentified occasions on which her daughter was detained by the police, “the interrogators talked about [respondent] and what would be done to him upon his return ” Id. at para. 24 Such evidence is not different in tenor from the allegations respondent made when originally claiming asylum in 1983. Furthermore, the statements attributed to the secunty personnel are ambiguous. Bearing in mind that respondent has been convicted o f a murder, “abusive” statements about him by the police, or statements about “w hat would be done to him” if he w ere returned, do not have to be understood as implied threats o f persecution on forbidden grounds. Other submissions by the affiant concern, for example, the exposure o f an alleged conspiracy in Septem ber 1987 by nongovernmental “unionist" elements to murder Anthony Hughes, the man with whom affiant’s daughter lives. Id. at paras. 31-32. Such evidence is not relevant to establishing that the respondent would have a well-founded fe a r o f persecution at the hands o f governm ental authorities, or that they would threaten him with loss o f life or freedom for proscribed reasons. Finally, other parts o f affiant’s statements, e.g., id. at para. 40, are cumulative o f evidence submitted elsew here in this m otion

20 vail over whatever interest respondent has in withdrawal o f his calculat­ ed waivers because o f an unfavorable decision, which was clearly fo re­ seeable at the time. 38 Respondent expressly conceded deportability and withdrew his claims to asylum and withholding o f deportation on September 12, 1986. He did so on the record, through counsel, in response to a direct question from the immigration judge as to whether he intended to waive these claims. See discussion supra pp. 3-4. By any standard, respondent’s decision was an intentional relinquishment o f any right to claim asylum relief from deportation. Johnson v. Zerbst, 304 U.S. 458, 464 (1938). Further, it w as 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 fo r respondent’s direct extradition to the United Kingdom, before any deci­ sion could be made on asylum or withholding o f deportation. Facing imminent ratification o f 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 w ere ratified. See id. (respondent “urgently w a n t[ed ]” to escape the effects o f the then-pending Supplementary Treaty). When he chose to waive any claims to asylum and withholding o f deportation to avoid the possibility o f direct extradi­ tion 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 o f the Irish, and the risk that the move then under­ way to obtain ratification o f 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 else­ where. See discussion supra pp. 12-13. The fact that respondent’s attempt to w ork the regulatory process to his advantage failed, should not, absent exceptional circumstances, relieve him o f the consequences o f the deci­ sions made in the attempt to w ork the process to his advantage.39 The Supreme Court has observed that courts “cannot permit an accused to

38Again, here, as in Part III supra, I need not and do not decide whether respondent can make out a pnma facie case fo r the substantive relief sought. See supra note 21 39 Respondent’s concession o f deportability and withdrawal o f any claim to relief is analogous to a guilty plea “ [W]hen the judgment o f 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 plea was both counseled and voluntary ’’ United States v. Broce, 488 U.S 563,569 (1989). See also Brady v U n tied States, 397 U.S 742, 757 (1970) ( “A defendant is not entitled to withdraw his plea [ o f guilt] m erely because he discovers long after [it] has been accepted that his calculus misapprehended the quality o f the State’s case or the likely penalties attached to alternative courses o f action.").

21 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. H ow ever unwise the first choice may have been, the range o f waiver is w id e.” Johnson v. United States, 318 U.S. 189, 201 (1943).40 So here, respondent’s tactical decisions should not be revocable m erely because later events did not unfold as he wished. I f we w ere not to give near-preclusive effect to an express w aiver under cir­ cumstances such as exist here, the regulatory process could be manipu­ lated at w ill by litigants making and withdrawing waivers ad libitum, at the expense o f the fair and expeditious administration o f meritorious deportation claims.

V.

I also deny the m otion on the separate ground that respondent would not ultimately be entitled either to the discretionary relief o f asylum or to withholding o f deportation. 1. I deny the m otion to reopen to perm it the claim o f asylum because, in my view, respondent would not ultimately be entitled to this discre­ tionary relief, IN S v. Abudu, 485 U.S. at 105, even i f he could now estab­ lish a prim a facie case for such relief.41 The grant o f asylum is discretionary with the Attorney General.42 In my discretion, I would not grant the respondent asylum. First, it is “the policy o f the United States that those who comm it acts o f violence against a dem ocratic state should re c e iv e prom pt and lawful punishment.” Deportation Proceedings 12 Op. O.L.C at 6. Deporting respondent to the United Kingdom w ould unquestionably advance this important policy. See id. at 5-6. Second, the United States Government, through the State Department, has specifically determined that it is in the foreign policy interests o f this country that respondent be deported to the United Kingdom. Id. at 6-7. Third, respondent knowingly and intentionally w aived his claim to asylum, and for the reasons explained in Part IV, supra, I w ould not perm it withdrawal o f that waiver. Fourth, I believe that respon­ dent’s membership in and assistance o f the PIR A in its acts o f persecution, and the nature and number o f his criminal acts in general, see discussion supra pp. 1-2, suggest that he is not deserving o f equitable relief. 2 . 1 also deny the motion fo r reopening to permit respondent to raise a

40See also U n ite d States v. P rin ce, 533 F.2d 205 (5th Cir. 1976) (antitrust defendants not permitted to withdraw n olo contendere pleas, made a fter consulting counsel, when sentences proved harsher than expected). 41 Insofar as respondent also requests reopening to enable him to seek the nondiscretionary relief o f w ithholding o f deportation, I conclude, fo r the reasons set forth in fra pp. 22-27, that respondent is statu­ torily ineligible fo r that relief. 42See IN S v S tev ie , 467 U.S. at 421 n 15, 426; IN S v Cardoza-Fonseca, 480 U S. at 443-45. The discre­ tionary authority o f the Attorney General is not restncted to the enumerated grounds which compel an INS district director to deny asylum 8 C.F.R. § 208 8 (f)(i)- (v i)

22 sustain an argument that, upon deportation, his “life or freedom would be threatened ... on account o f race, religion, nationality, membership in a particular social group, or political opinion” within the meaning o f 8 U.S.C. § 1253(h)(1), he would be ineligible, on tw o separate grounds, for nondiscretionary withholding o f deportation under 8 U.S.C. § 1253(h) (2 )(A ), (C ). (a ) Subsection 12 53 (h)(2)(C ) provides that the prohibition on depor­ tation in § 1253(h)(1) is inapplicable w here “there are serious reasons fo r considering that the alien has committed a serious nonpolitical crim e outside the United States prior to the arrival o f the alien in the United States.”43 By its terms, this subsection does not require the Attorney General to find that an alien has actually committed a serious nonpoliti­ cal crime, but merely to find that there are serious reasons fo r consider­ ing that an alien has comm itted such a crime. See McMullen v. INS, 788 F.2d 591, 596-99 (9th Cir. 1986). In conferring this latitude on the Attorney General, the statute recognizes that cases involving alleged political crimes arise in myriad circumstances, and that what constitutes a “serious nonpolitical crime” is not susceptible o f rigid definition. As one commentator has observed, “ [i]n practice, characterization o f an offence as ‘political’ is left to the authorities o f the state,” and “the func­ tion o f characterization itself is ... one in which political considerations will be involved.” Guy S. Goodwin-Gill, The Refugee in International Law 35 (1983). In McMullen v. INS, 788 F.2d 591 (9th Cir. 1986), the court set forth an analytical fram ework fo r determining whether an alien has comm itted a “serious nonpolitical crim e” within the meaning o f section 1253(h)(2)(C). There must be a ‘“ close and direct causal link between the crime com ­ mitted and its alleged political purpose and object.’” Id. at 597 (quoting Guy S. Goodwin-Gill, supra, at 61). Additionally, the crime “should be considered a serious nonpolitical crime if the act is disproportionate to the objective, or it is ‘o f an atrocious or barbarous character.’” Id. at 595 (quoting Guy S. Goodwin-Gill, supra, at 61). Both strands o f this sug­ gested analysis are satisfied here.44 It is the official position o f the United States Government that the PIR A is a terrorist organization. U.S. Dep’t o f State, Patterns o f Global Terrorism: 1986 at 33-34 (1988) & 1989 at 74-75 (1990) (identifying the

“^This subsection, which was added to the Immigration and Nationality A ct as part o f the Refugee A ct o f 1980, Pub L N o 96-212, § 203(e), 94 Stat. 102, 107, is based directly upon, and is intended to be co n ­ strued consistent with, the Protocol Relating to the Status o f Refugees, Jan. 31, 1967, 606 U.N T S 267, which incorporates by reference the United Nations Convention Relating to the Status o f Refugees, July 28, 1951, 189 U.N.T.S. 150 See M cM ullen u. INS, 788 F.2d at 594-95. 44 That respondent’s extradition was denied on the grounds that the crime fo r which extradition was sought was a political offense under the Extradition Treaty then in force, see M a tter o f D ohei'ty by G ov't o f United K ingdom , 599 F Supp. 270 (S.D N.Y 1984), has no bearing on the instant inquiry, which is a matter o f statutory interpretation o f 8 U.S.C. § 1253(h)(2)(C) See M cM ullen v INS, 788 F2d at 596-97.

23 Terrorism: 1986 at 33-34 (1988) & 1989 at 74-75 (1990) (identifying the P IR A as a terrorist organization);45 see also McMuUen v. INS, 788 F.2d at 597 ( “ [t]he PIR A is unquestionably a ‘terrorist’ organization”). The INS has introduced substantial evidence that PIRA is a terrorist organization which commits violent acts against innocent civilians, see Matter of McMullen, 19 I & N Dec. 90 (1984). And the B IA has specifically found that the PIRA has engaged in “indiscriminate bombing campaigns, ... murder, torture, and maiming o f innocent civilians w h o disagreed with the PIRA’s objectives and methods.” Id. at 99-100, quoted in McMullen v. INS, 788 F.2d at 597. In my view, there is substantial evidence that P IR A has committed ter­ rorist activities directed at innocent, civilian populations. See McMullen v. INS, 788 F.2d at 597 (substantial evidence exists that P IR A committed “terrorist activities directed at an unprotected civilian population”). These “random acts o f violence” against civilians constitute “serious non- political crim es” fo r purposes o f 8 U.S.C. § 1253(h)(2)(C). Id. at 598. A s the court held in McMullen, 788 F.2d at 599, I need not determine that respondent committed any o f these unprotected crimes against the civilian population. “We are unm oved by the pleas o f a terrorist that he should not in any w ay be held responsible fo r the acts o f his fellows; acts that, by his ow n admission, he aided ... and assisted ... and otherwise abetted and encouraged.” M .46 I need only find that there is “probable cause” to believe that respondent committed such crimes. Id. In McMullen, the court held that conduct remarkably similar to respon­

45See also I Pub Papers o f Ronald Regan 751 (1984) (P IR A “has all the attributes o f a terrorist organi­ zation”); 43 Cong Q. 1388, 1389 (1985) (address by President Reagan); 84 State Dep*t Bull. 12,13, 15 (Dec. 1984) (Sec Shultz) (U.S. joins U.K. and Irish government “ in opposing any action that lends .. support to the Provisional IR A ”), Staff o f House Comm on Foreign Relations, 101st C o n g , 1st Sess , Country Reports on Human Rights Practices fo r 1988 at 1236-37 (Comm Print 1989) (Reports submitted by Dep’t o f State) (P IR A admissions o f terrorist activities); A ffid avit o f Assoc Att’y Gen. Stephen S. TVott, sworn to Feb 19, 1987, at para 8 ( “It is the position o f the U nited States Government that the crimes committed by Doherty — hostage taking, murder, and assault with intent to comm it murder — are terrorist offenses.”). 40 Under general principles o f conspiracy law, a co-conspirator is chargeable with any criminal act com ­ mitted by another co-conspirator in furtherance o f the conspiracy. P in k e rton v. United. States, 328 U.S. 640,646-47 (1946) Respondent’s membership in the PIRA makes him a co-conspirator in the PIRA’s effort to overth row British rule in Northern Ireland by violent means, and hence responsible for any n on p oh t- ic a l crim es his co-conspirators commit in pursuit o f that objective. Th e “PIRA’s random acts o f violence against the ordinary citizens o f Northern Ireland and elsewhere” are “exhaustively documented in the record” o f the M cM u llen case. M cM ullen, 788 F.2d at 598 Moreover, the BIA has found that the PIR A is a clandestine, terrorist organization committed to the use o f violence to achieve its objectives . [and has engaged m ) attacks on both government civilian institutions and military installations, random violen ce against innocent civilian populations through indis­ crim inate bombing campaigns, the murder or maiming o f targeted individuals for political reasons based on their public opposition to the PIR A , and the use o f violence to maintain order and discipline within the PIRA’s membership. Its operations have been funded, in part, through the commission o f thousands o f armed robberies. M a tte r o f M cM u lle n , 19 I & N Dec 90, 92 (1984) (citations omitted), afJTd on othet' grounds, 788 F.2d 591 (9th Cir. 1986) Based on these judicial and administrative findings, I o f course have senous reasons to consider that PIR A members have comm itted serious nonpolitical crim es in the course o f their conspir­ acy, and thus to conclude that respondent, as a co-conspirator, can be held responsible for committing crim es o f such a character, even if he personally did not perform them.

24 dent’s was sufficient to establish probable cause to believe that the peti­ tioner had committed some o f PIRA’s unprotected nonpolitical crimes. The relevant passage bears quotation at some length:

McMullen admits that he was an active member in the PIRA, that he trained its members and participated in unlaw­ ful arms shipments as w ell as bombings o f military installa­ tions. With regard to the PIR A itself, there is no question that it has undertaken terrorist activities directed at civilian tar­ gets in a manner unprotected as a political offense. We con­ clude that the “totality o f the circumstances,” cf. Illinois v. Gates, 462 U.S. 213, 230, 103 S. Ct. 2317, 2328, 76 L. Ed. 2d 527, [543] (1983), which include McMullen’s willing and material involvement in a terrorist organization that carried out acts o f violence against civilians, his assistance in train­ ing members o f that organization and procuring arms ship­ ments, support the BIA’s conclusion that there are “serious reasons” to believe that McMullen committed some o f these unprotected, serious nonpolitical crimes.

788 F.2d at 599. Here, as with the petitioner in McMullen, there clearly is the requisite probable cause to believe respondent has committed unpro­ tected crimes. Respondent is a longstanding, active member o f the PIRA. See discussion supra pp. 1-2 and infra notes 47, 53. He has admittedly comm itted violent acts in furtherance o f the purposes o f the PIRA. Like the petitioner in McMullen, respondent has provided the PIR A with “the physical and logistical support” that enables this terrorist group to op er­ ate. 788 F.2d at 599.47 Respondent’s membership and participation in, aiding of, and assis­ tance to the PIR A is sufficient to constitute probable cause to believe that respondent has committed unprotected criminal acts, and therefore suf­ ficient basis upon which to conclude that there are “serious reasons” to believe that respondent has committed “serious nonpolitical crim es.”

47Respondent readily admits the facts that [he] was an “admitted member” of the Irish Republican Army, that he was con­ victed of the murder of a British Army officer and other violent offenses, that he and seven other IRA volunteers escaped from prison in Northern Ireland, and that he is currently the subject of outstanding warrants of arrest in the United Kingdom are, pursuant to the opinion [by Judge Sprizzo] in Matter o f Doherty, matters of public information and readily available to all, including immigration judges. Brief for Respondent-Appellee Joseph Patrick Thomas Doherty, supra note 25, at 3 (footnote omitted). 45 Attorney General Meese noted in his June 9, 1988 opinion that violence against military personnel in a democratic society is unjustified, as is violence against civilians. Deportation Proceedings, 12 Op. O.L.C. at 5. Nothing herein is intended to suggest otherwise. It is not necessary for me to decide here whether violence against military personnel is alone sufficient to satisfy section 1253(h)(2XC) because (1) respondent's other activities, together with his acts against British military personnel, are clearly suf­ ficient, and (2) respondent's participation in violent acts against civilians is also alone sufficient

25 McMullen, 788 F.2d at 59S.48 Indeed, this may even be a stronger case fo r application o f the exception than in McMullen, given the record evidence that respondent committed a murder; smuggled large quantities o f explo­ sives in a car hijacked by a P IR A unit; drove to an ambush site in a hijacked van, the driver o f which was held captive; and took over a fam- ily-occupied house in a civilian, residential neighborhood for the purpose o f ambushing a British army patrol. See Transcript o f Respondent’s Testimony at 773-74, 783-86 & 792-96, Matter o f Doherty by Gov’t of United Kingdom, 599 F. Supp. 270 (S.D.N.Y. 1984) ( “Doherty Transcript”).49 Compare McMullen v. INS, 788 F.2d at 592-93, 599.50 (b ) Respondent also has “assisted, or otherwise participated in the per­ secution o f ... person[s] on account o f ... political opinion,” rendering him in eligib le fo r w ithholding o f deportation under 8 U.S.C. § 1253 (h )(2)(A ). See McMullen v. INS, 788 F.2d at 600 (Goodwin, J., con­ curring). Respondent is a member o f the PIRA, an organization that the B IA found has killed o r attempted to kill those who politically oppose its activities.51 M oreover, as a P IR A officer, respondent was admittedly responsible fo r distributing arms and gathering ammunition, Doherty Transcript, at 726, and he engaged in training and drilling other PIR A members. Id. at 734. These facts establish by ample evidence that respon­ dent w ou ld be ineligible for withholding because o f his participation in the PIR A ’s persecution o f political opponents. Again, it is not necessary fo r me to find that respondent was directly and personally involved in any o f the PIR A’s attacks on political targets. See, e.g., McMullen v. INS, 788 F.2d at 600 (Goodwin, J., concurring).52 Respondent’s active roles in arming and training the PIRA, coupled with his w illing membership in that organization, the length o f his service in it,

49 As the dissenting opinion in the BIA decision below pointed out, “it is fortuitous that the civilian hostages [taken by respondent and his associates) w ere umryured in view o f the fact that they w ere ... exposed to a gun battle.” M a tte r o f Doherty, N o A26 185 231, slip op. at 4 (B IA Nov. 14, 1988) (Morris, B M., dissenting) 50 Apart from the M cM u llen analysis, I determine that there are “senous reasons fo r considering” the offen ses indisputably com m itted by respondent, see, e.g., discussion s up ra note 47, to be “serious non­ political crim es” within the meaning o f section 1253(h)(2)(C). These crim es standing alone involved dis­ proportionate threats to civilian life and property. 51See M a tter o f M cM ullen, 19 I & N Dec. 90 (1984) (PIR A engages in the murder or maiming o f target indi­ viduals fo r political reasons based on their public opposition to the PIRA, among these targeted individuals was Ross McWhirter, founder o f the Guinness Book o f Records, fo r whose death the PIR A claimed “credit”) 52 C f K u lle v. INS, 825 F.2d 1188, 1192-93 (7th Cir. 1987) (almost identical language to 8 U.S.C. § 12 53 (h )(2)(A ) held not to require proof o f individual participation); Schellong v. INS, 805 F.2d 655, 661 (7th Cir. 1986), cei't. denied, 481 U.S. 1004 (1987) See also U n ited States v. Osidach, 513 F Supp. 51, 72 (E D Pa 1981) ( “ [U ]nder § 13 o f the [Displaced Persons A ct o f 1948, Pub. L No. 80-774, 62 Stat. 1009], m ere willing membership — without p ro o f o f personal participation in acts o f persecution — in a m ove­ ment that persecu ted ] civilians is sufficient to warrant a finding o f ineligibility [for admission into the United States] as a displaced person ”), b ut cf. Laipenieks v. INS, 750 F.2d 1427, 1431 (9th Cir 1985). 63In his extradition trial, respondent testified. I held several [PIR A ] sta ff positions in Long Kesh [prison], from the section leader, company staff, o ffice r’s position. I was a company quartermaster, a company training officer, a com- Continued

26 and the rank he attained,53 more than suffice to show that he “assisted” the PIRA’s political persecutions under the statute. Even if membership in the PIRA, standing alone, w ould be insufficient to bar respondent from relief under section 1253(h)(2)(A), see Matter of Rodriguez-Majano, 19 I & N Dec. 811 (1988), respondent’s activities on behalf o f the PIR A fairly implicate him in those persecutions.54 Additionally, section 1253(h)(2)(A) reaches persons who have “other­ wise participated in” persecution, even if they have not “assisted” in the persecution. This broad language covers forms o f collaboration that are not otherwise captured by the Act, and undoubtedly extends to respon­ dent’s activities.56 On either o f the above bases, respondent is not entitled to withholding o f deportation.

Conclusion

F or the foregoing reasons, the decision o f the B IA is disapproved, and the respondent’s motion to reopen these proceedings is denied.

Respectfully, D ic k T h o r n b u r g h

“ (...continued) pany drill sergeant — well, w e call them a drill officer. You call them in the United States Army drill Sergeants. I was in charge of the men in the yard and military formation, etc. After that I was a company — my God, I was everything — a company finance officer; and the high­ est rank that I have ever held inside the company was the company adjutant I w as the sec­ ond in command of a company of 78 men. Doherty Transcript at 734. 54 Respondent reads Rodriguez to make the INS’s persecution argument “frivolous." Respondent’s Brief, supra note 11, at 27 n.19. But Rodriguez holds only that those who are members of opposing forces in a civil w ar are not ineligible for withholding of deportation or asylum as political persecutors if they inflict harms arising as the natural consequence of civil strife ( e . g burning automobiles). The instant case, however, involves a terrorist group’s particularized attempts to destroy targeted civilian political opponents. 65 General principles of conspiracy law again underscore this conclusion. See supra note 46. The statute’s broad reference to those who “otherwise participate’’ in political persecutions is fairly read to encompass those individuals whose co-conspirators engage in political persecutions in furtherance of the conspiracy.

27 OPINIONS

OF THE

OFFICE OF LEGAL COUNSEL