Doherty v. U.S. Dept. of Justice, I.N.S.

• Decision Date: 29 June 1990
• Docket Number: 880,Nos. 662,D,s. 662
• Citation: 908 F.2d 1108
• Parties: Joseph Patrick DOHERTY, Petitioner, v. U.S. DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, Respondent. ockets 88-4084, 89-4092.
• Court: U.S. Court of Appeals — Second Circuit

Page 1108

908 F.2d 1108

Joseph Patrick DOHERTY, Petitioner, v. U.S. DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Nos. 662, 880, Dockets 88-4084, 89-4092.

United States Court of Appeals Second Circuit.

Argued Jan. 19, 1990.

Decided June 29, 1990.

Mary Boresz Pike, New York City (Somerstein & Pike, Arthur C. Helton, Lawyers Committee for Human Rights, of counsel), for petitioner.

Noel Anne Ferris, New York City, Sp. Asst. U.S. Atty. (Otto G. Obermaier, U.S. Atty. S.D. New York, Edward T. Fergusson, III, Asst. U.S. Atty., of counsel), for respondent.

Carolyn Patty Blum, Berkeley, Cal. (Asylum Appeals Clinic, Boalt Hall Law School, Berkeley, Cal., Kevin R. Johnson, King Hall School of Law, Davis, Cal., Lynn Bregman, John K. Lapiana, Wilmer, Cutler & Pickering, Washington, D.C., of counsel, Lauren Cox-Pursley, Ann Lucas, Luis Moran, Barbara Schussman, Kathleen Soltero, Student Counsel, on the Brief), for Alphonse D'Amato, Christopher J. Dodd, John F. Kerry, Orrin G. Hatch, Members of the United States Senate, Gary L. Ackerman, Helen Delich Bentley, Robert A. Borski, Albert G. Bustamante, Thomas R. Carper, William J. Coyne, Ronald V. Dellums, Thomas J. Downey, Bernard J. Dwyer, Eliot L. Engel, Walter E. Fauntroy, Vic Fazio, Hamilton Fish, Jr., Sam Gejdenson, Benjamin A. Gilman, Charles A. Hayes, George J. Hochbrueckner, Frank Horton, Barbara Kennelly, Peter H. Kostmayer, Nita M. Lowey, Thomas A. Luken, Thomas J. Manton, Edward J. Markey, Michael R. McNulty, Nicholas Mavroules, Raymond J. McGrath, Bruce A. Morrison, Robert J. Mrazek, Richard Neal, Major R. Owens, Charles B. Rangel, Edward R. Roybal, Marty Russo, James H. Scheuer, Charles E. Schumer, Edolphus Towns, Curt Weldon, Members of the U.S. House of Representatives, amici curiae.

Donald L. Ungar, San Francisco, Cal. (Simmons, Ungar, Helbush, DiCostanzo & Steinberg, of counsel), for American Immigration Lawyers Ass'n, amicus curiae.

Before LUMBARD, FEINBERG, and PRATT, Circuit Judges.

GEORGE C. PRATT, Circuit Judge:

Joseph Patrick Doherty, a member of the Provisional Irish Republican Army ("PIRA") who has been imprisoned in this country since 1983, petitions this court to review: (1) an order of former Attorney General Edwin Meese III, dated June 9, 1988, that rejected Doherty's designation of the Republic of Ireland as his country of deportation; and (2) an order of Attorney General Richard Thornburgh, dated June 30, 1989, that denied Doherty's motion to reopen his deportation proceedings for the purposes of applying for asylum and for withholding of deportation. For the reasons that follow, we affirm the order of Attorney General Meese, reverse the order of Attorney General Thornburgh, and remand for further proceedings.

BACKGROUND

Doherty's status in this country has been the subject of sustained litigation since 1983, and so far has given rise to four published court opinions, Doherty v. Meese, 808 F.2d 938 (2d Cir.1986); United States v. Doherty, 786 F.2d 491 (2d Cir.1986); United States v. Doherty, 615 F.Supp. 755 (S.D.N.Y.1985); Matter of Doherty, 599 F.Supp. 270 (S.D.N.Y.1984), familiarity with which is assumed. Throughout all these proceedings, Doherty has been detained in the Metropolitan Correctional Center in Manhattan.

The events leading to Doherty's arrest in the United States stem from his involvement in the shooting death of a British army captain in Belfast, Northern Ireland. On May 2, 1980, Doherty and three other members of the PIRA set up an ambush in a private home in North Belfast as part of a plan to surprise and attack a convoy of British soldiers. After the men had waited three or four hours, a car pulled up in front of the house and five members of the British Army's Special Air Services emerged. In an ensuing gun battle, one of the British soldiers, Captain Herbert Westmacott, was shot and killed. Doherty was arrested, charged with murder, and put on trial in Belfast, Northern Ireland; but before the court had announced a decision, Doherty and seven others escaped from the maximum security Crumlin Road prison where they were being held. Two days later the court convicted Doherty in absentia of Doherty successfully eluded the British authorities. Aided by the PIRA, he fled to the Republic of Ireland and, using an assumed identity, eventually made his way to New York City where he escaped detection for another sixteen months, until June 18, 1983, when he was arrested by agents of the Immigration and Naturalization Service ("INS") while working in a bar on the Upper East Side of Manhattan.

murder and a number of lesser crimes, and sentenced him to life imprisonment.

Immediately after Doherty's arrest in New York, the United States Attorney for the Southern District of New York, on behalf of the United Kingdom, filed a formal petition for his extradition. The case was referred to District Judge John E. Sprizzo, who elected to hear the matter as an "extradition magistrate" pursuant to 18 U.S.C. Sec. 3184. At about the same time, the United States' initiation of deportation proceedings against Doherty prompted him to apply for asylum. At Doherty's request, the deportation proceeding and request for asylum were held in abeyance pending the outcome of the extradition action.

On December 12, 1984, Judge Sprizzo ruled that Doherty's crimes in Northern Ireland were "political offenses" within the meaning of the extradition treaty between the United States and the United Kingdom, and that Doherty's extradition was therefore barred. 599 F.Supp. 270; see Treaty of Extradition Between the United States and the United Kingdom of Great Britain and Northern Ireland, Art. V(1)(c)(i), 28 U.S.T. 227, T.I.A.S. No. 8468 (effective Jan. 21, 1977) (extradition shall not be granted for offenses "of a political character"). Based on the highly organized, quasi-military nature of the PIRA, its mode of discipline and internal command structure, as well as the historical context of Irish-British conflict and the fact that Doherty's acts of violence were directed at soldiers rather than civilians, Judge Sprizzo concluded that Doherty's involvement in the ambush and his subsequent escape from prison were of a political character. According to Judge Sprizzo, "the facts of this case present the assertion of the political offense exception in its most classic form." 599 F.Supp. at 276.

Unable to appeal Judge Sprizzo's extradition decision directly, see Matter of Mackin, 668 F.2d 122 (2d Cir.1981) (denial of extradition not appealable), the United States sought collateral review of the order by way of a separate action for declaratory judgment. The district court dismissed that action for legal insufficiency, however, 615 F.Supp. 755, and we affirmed the dismissal. 786 F.2d 491.

With the extradition matter completed, the deportation proceeding against Doherty resumed in September 1986. At this point, Doherty decided to take advantage of a provision in the immigration statute that allows a deportable alien to select the country to which he will be deported. See Immigration and Nationality Act of 1952 ("INA" or "act") Sec. 243(a), 8 U.S.C. Sec. 1253(a). Doherty wanted to be sent to the Republic of Ireland, where he faced only a 10-year sentence of imprisonment rather than the life sentence awaiting him in Northern Ireland, and the Republic of Ireland had indicated its willingness to accept him. Therefore, at a hearing before Immigration Judge ("IJ") Howard I. Cohen, Doherty withdrew his application for asylum, conceded deportability, and designated the Republic of Ireland as his country of deportation.

The INS opposed Doherty's attempt to arrange deportation to the Republic of Ireland, claiming that it would be prejudicial to American interests not to return him to British authorities. Counsel for the INS stated that the case was of great concern "at the highest levels" of government. Despite the INS's objections, IJ Cohen ordered Doherty deported to the Republic of Ireland, as Doherty had requested, and the INS appealed immediately.

Four days after IJ Cohen's decision, Doherty petitioned for a writ of habeas corpus seeking immediate deportation to the Republic of Ireland. Doherty claimed that the government was improperly detaining him during the administrative appeal of IJ Cohen's order solely to ensure that Doherty would be available for extradition under The district court rejected Doherty's attempt to short-circuit the administrative process, however, and denied the petition. This court affirmed the decision of the district court, holding that the attorney general's appeal of IJ Cohen's order was reasonably grounded in his authority under Sec. 243(a) of the act to deny deportation to an alien's designated country if, in the judgment of the attorney general, the deportation "would be prejudicial to the interests of the United States". 808 F.2d 938.

a newly signed treaty between the United States and the United Kingdom. The new treaty, which retroactively eliminated the political offense bar to extradition, had been ratified by the United States Senate but had not yet been acted upon by the British House of Commons. See 808 F.2d at 940.

On March 11, 1987, the Board of Immigration Appeals ("BIA" or "board") decided the government's appeal but rejected its arguments and unanimously upheld IJ Cohen's order. The board stated that "we are unwilling to find that deportation to the Republic of Ireland would be prejudicial to the interests of the United States in the absence of clear evidence to support that conclusion." In a later decision, the board reopened the case to consider a motion by the government to introduce additional evidence concerning the prejudicial impact of deporting Doherty to the Republic of Ireland, but denied the motion after reopening, principally because it found that the additional evidence could have been presented at the hearing before IJ Cohen. At the request of the INS, the board then...