Peter Gabriel John McMullen v. Immigration and Naturalization Service

788 F.2d 591, 1986 U.S. App. LEXIS 24628
CourtCourt of Appeals for the Ninth Circuit
DecidedApril 25, 1986
Docket84-7468
StatusPublished
Cited by51 cases

This text of 788 F.2d 591 (Peter Gabriel John McMullen v. Immigration and Naturalization Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Peter Gabriel John McMullen v. Immigration and Naturalization Service, 788 F.2d 591, 1986 U.S. App. LEXIS 24628 (9th Cir. 1986).

Opinions

WALLACE, Circuit Judge:

McMullen petitions for review of the Board of Immigration Appeals’ (BIA) order finding him ineligible for asylum or withholding of deportation under 8 U.S.C. §§ 1101(a)(42)(A), 1253(h)(1), and 1253(h)(2)(C). We have jurisdiction under 8 U.S.C. § 1105a, and we deny the petition.

I

The underlying facts of this dispute were related in McMullen v. INS, 658 F.2d 1312, 1314-15 (9th Cir.1981) (McMullen I). We will discuss only the particular facts relevant to this appeal.

In January 1972, McMullen deserted the British Army and joined the Provisional Irish Republican Army (the PIRA), an offshoot of the paramilitary Irish Republican Army. He participated in a bombing by [593]*593the PIRA of the Palace Barracks, where he had been stationed. The object of the bombing was to prevent a planned British Army confrontation with Catholic demonstrators, which ultimately took place on what became known as Bloody Sunday. McMullen participated actively in the PIRA from 1972 to 1974, including involvement with another bombing at Claro Barracks, Ripon, North Yorkshire, in 1974. In September 1974, he formally resigned from the PIRA because he, as he stated, felt that the group had become extremist, employed too much terrorist violence and did not represent the Irish populace. On November 23, 1974, the Republic of Ireland police (Garda) arrested McMullen. The government charged him with membership in the PIRA, sedition (incitement to riot), and possession of a gun. After conviction on these charges, he was imprisoned for three years at Portalaise Prison. McMullen was held in the “maverick wing” of the prison, which housed “nonaligned” prisoners, who were segregated from PIRA-member prisoners.

In March 1977, the government released McMullen from Portalaise. He was approached by a PIRA member, who requested him to assist the PIRA, and McMullen refused. After several instances of PIRA intimidation, McMullen again began to participate in PIRA activities. He housed PIRA members in his home on occasion, trained PIRA members, and coordinated illegal arms shipments from the United States to Northern Ireland for use by PIRA terrorists. In 1978, the PIRA ordered McMullen to plan and execute the kidnapping for ransom of a New York bar owner, Daniel Flannigan. He refused to obey this order. Shortly thereafter, a PIRA “court of inquiry” reviewed this refusal. A friend of McMullen’s, who he described as a prominent member of the PIRA, visited him ten days later and warned him that “there was a hit squad being set up” to murder him and “that the safest thing was to get away.”

Early in 1978, McMullen procured a false visa using the name of Kevin O’Shaughnes-sy, and fled to the United States. He contacted the Bureau of Alcohol, Tobacco and Firearms, hoping to obtain asylum in exchange for knowledge about PIRA activities. He cooperated with the Bureau and with Scotland Yard investigators in the United States.

In July of 1978, the United Kingdom sought McMullen’s extradition to face criminal charges stemming from the 1974 Claro Barracks bombing in England. His deportation was held in abeyance during the extradition proceedings. On May 11, 1979, a United States magistrate in San Francisco ruled that McMullen could not be extradited to England because of the provisions of the Extradition Treaty then in force between the United States and the United Kingdom.

At his subsequent deportation hearing, McMullen testified that the PIRA was aware of his cooperation with the authorities in the United States and that he was considered a traitor who should be killed. In support of his position, he submitted over 100 pages of exhibits documenting PIRA terrorist activities.

The Immigration Judge (IJ) found that McMullen was not deportable because “the Government of the Republic of Irelánd is unable to control the activities of the PIRA and if [he] were to be returned to that country he would suffer persecution within the meaning of the [United Nations] Convention Protocol and Section 243(h) of 8 U.S.C. § 1253(h).” The IJ also held that McMullen was not a security risk to the United States and that deportation should be withheld.

On October 1,1980, the BIA reversed the IJ, finding that McMullen had not shown a sufficient likelihood that he would suffer persecution upon deportation. On appeal, we reversed, finding that McMullen had demonstrated an adequate showing of probable persecution to avoid deportation. See McMullen I, 658 F.2d at 1317-19. We did not decide whether McMullen’s break from the PIRA constituted a political belief within the meaning of section 243(h) of the Immigration and Naturalization Act, 8 [594]*594U.S.C. § 1253(h) (the Aet), whether McMullen represented a danger to the United States, or whether McMullen would be persecuted by the Garda. Id. at 1319 & n. 6.

In light of the outcome of the appeal to this court, the parties agreed to the BIA’s reconsideration of its October 1, 1980, decision. See 8 C.F.R. § 3.2 (1985). The BIA again sustained its reversal of the IJ’s determination that McMullen should not be deported. The BIA found that McMullen’s claimed persecution was not based on political opinion or on any other enumerated ground for relief in 8 U.S.C. § 1253(h)(1).1

The BIA also found that McMullen was statutorily ineligible for asylum as a refugee under section 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A), which excludes from refugee status “any person who 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.” See also 8 U.S.C. § 1253(h)(2)(A) (withholding of deportation unavailable to any alien who fits these categories). This decision was based upon McMullen’s active membership and leadership, including his training of terrorists and gun-running, by which he knowingly furthered PIRA’s campaign of terrorist atrocities. The BIA also found McMullen statutorily ineligible for withholding of deportation under 8 U.S.C. § 1253(h)(2)(C) based on the same activities. Finally, the BIA determined it would deny asylum as a matter of its discretion.

II

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Bluebook (online)
788 F.2d 591, 1986 U.S. App. LEXIS 24628, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peter-gabriel-john-mcmullen-v-immigration-and-naturalization-service-ca9-1986.