943 F.2d 204 (2nd Cir. 1991), 1402, Doherty v. Thornburgh

Docket Nº:1402, Docket 91-2044.
Citation:943 F.2d 204
Party Name:Joseph Patrick Thomas DOHERTY, Petitioner-Appellant, v. Richard L. THORNBURGH, Attorney General of the United States; Gene McNary, Commissioner of the Immigration and Naturalization Service; and, Scott Blackman, District Director of the Immigration and Naturalization Service, New York District, Respondents-Appellees.
Case Date:August 27, 1991
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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943 F.2d 204 (2nd Cir. 1991)

Joseph Patrick Thomas DOHERTY, Petitioner-Appellant,

v.

Richard L. THORNBURGH, Attorney General of the United

States; Gene McNary, Commissioner of the Immigration and

Naturalization Service; and, Scott Blackman, District

Director of the Immigration and Naturalization Service, New

York District, Respondents-Appellees.

No. 1402, Docket 91-2044.

United States Court of Appeals, Second Circuit

August 27, 1991

Argued May 6, 1991.

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Stephen A. Somerstein, New York City (Somerstein & Pike, Arthur C. Helton, Lawyers Committee for Human Rights, of counsel), for petitioner-appellant.

Stacey J. Moritz, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty., Claude M. Millman, Edward T. Ferguson, III, Asst. U.S. Attys., of counsel), for respondents-appellees.

Before PRATT, MINER and ALTIMARI, Circuit Judges.

MINER, Circuit Judge:

Petitioner-appellant Joseph Patrick Thomas Doherty appeals from a judgment entered on November 13, 1990 in the United States District Court for the Southern District of New York (Cedarbaum, J.) denying his petition for a writ of habeas corpus. The petition is grounded on Doherty's prolonged detention without bond pending deportation as an illegal alien. Doherty has been held in detention since June, 1983 while extradition and deportation proceedings to return him to the United Kingdom, where he was convicted of murder, have been pending. An appeal in a separate action in which Doherty seeks political asylum in this country will be heard by the Supreme Court of the United States during its October, 1991 term. On appeal in this case, Doherty argues that his prolonged detention without bail violates the substantive due process clause of the fifth amendment. We hold that, under the circumstances revealed here, the eight-year detention of Doherty does not violate the fifth amendment, and we affirm the denial of the petition.

BACKGROUND

Doherty is a native of Northern Ireland and citizen of the United Kingdom. On June 12, 1981, he was convicted in absentia by a court in Great Britain for the murder on May 2, 1980 of a British army captain, which occurred during a confrontation in Northern Ireland between members of the Provisional Irish Republican Army ("PIRA") and British soldiers. Two days before his conviction, Doherty escaped from a British prison. After a period of hiding in the Republic of Ireland ("Ireland"), Doherty entered the United States in February, 1982, using a false passport. With the help of American PIRA sympathizers, Doherty obtained false identification, joined a union, and began employment at a bar in Manhattan.

On June 18, 1983, federal agents apprehended Doherty at his place of employment pursuant to a warrant and order to show cause why he should not be deported, issued by the Immigration and Naturalization Service ("INS"). Doherty was detained at the Metropolitan Correctional Center ("MCC") in New York City without bail, where he has remained since without significant interruption. During a hearing held on June 27, 1983 to reconsider the denial of bail pending deportation, a United States Marshal for the Southern District of New York took custody of Doherty pursuant to a warrant of provisional arrest for

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extradition to Britain issued under a treaty between the United States and that country. At Doherty's request, the INS held in abeyance the deportation proceedings, including the bail application, pending a decision in the extradition proceeding.

At a hearing before Judge John E. Sprizzo on October 12, 1983 in the Southern District of New York, Doherty's application for bail in connection with the extradition proceeding was denied. Judge Sprizzo found that Doherty presented a bail flight risk: "I would be greatly surprised, if Mr. Doherty were bailed, if he did not exercise what I would think would be a very rational judgment perhaps to disappear." At the extradition hearing on December 12, 1984, Judge Sprizzo found that Doherty had been fairly convicted in Britain. Matter of Doherty by Gov't of United Kingdom, 599 F.Supp. 270, 276-77 (S.D.N.Y.1984). However, Judge Sprizzo denied the British request for extradition, finding that Doherty qualified under the exception for "political offenses" under the extradition treaty as it then existed. Id. Accordingly, the extradition warrant was vacated. Because the denial under 18 U.S.C. § 3184 of a request for extradition is not appealable, the government filed an action for declaratory relief on February 4, 1985 in the Southern District, seeking collateral review of the district court's decision.

Formal custody of Doherty was returned to the INS pursuant to the original deportation warrant and order to show cause, although the actual place of his detention--the MCC--remained the same. Doherty renewed his bail request. On December 21, 1984, an immigration judge granted the request, setting bond at $200,000. The INS appealed the decision to the Board of Immigration Appeals ("BIA"), and received an emergency stay. On March 4, 1985, the BIA ordered that Doherty be held without bail on the ground that he presented "such a poor bail risk that no amount of bond will reasonably assure his presence for future proceedings." Doherty did not appeal the BIA decision.

On February 25, 1985, deportation hearings began before Immigration Judge Howard Cohen. At that time, the INS added six charges of deportability, supported by twelve additional factual allegations. Originally, the INS had asserted one charge supported by four allegations. In order to respond to the amendments, Doherty requested and received an adjournment of the deportation hearing until March 25, 1985.

On March 18, 1985, Doherty moved for a stay of the deportation proceedings pending resolution of the government's action for collateral review of the order denying extradition, and of two separate actions he had brought under the Freedom of Information Act in the Southern District against the INS and the Federal Bureau of Investigation. The deportation hearing was adjourned until April 15, 1985 to allow the INS to respond to the motion. The hearing was resumed on May 20 on the consent of the parties, at which time Judge Cohen stayed the deportation proceedings pending resolution of the extradition matter.

On June 25, 1985, Judge Haight dismissed the government's action for collateral review of the extradition decision because it failed to plead a claim under which relief could be granted. United States v. Doherty, 615 F.Supp. 755 (S.D.N.Y.1985). On March 13, 1986, we affirmed the judgment, noting that "[t]he Government has not cited, and we have not been able to find, a single case in which a declaratory judgment was used in a manner resembling that which the Government proposes here." United States v. Doherty, 786 F.2d 491, 500 (2d Cir.1986) (Doherty I).

On September 3, 1986, Doherty asked for a resumption of the deportation proceedings and, at a conference before Judge Cohen on September 5, conceded his deportability, designating the Republic of Ireland as his chosen destination. The INS opposed Ireland as the designated destination, claiming that Doherty's deportation there would be prejudicial to the interests of the United States and arguing that he should be deported to the United Kingdom. The INS also asked for and received a continuance so that it could consult with senior government officials.

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When the deportation hearing resumed on September 12, 1986, the INS argued that Doherty's deportation to Ireland would harm United States efforts to cooperate with other nations in combating terrorism. On September 19, the immigration judge rendered his decision, rejecting the government's argument and ordering that Doherty be deported to Ireland. In addition, Judge Cohen ordered that, in the event Ireland was unwilling to accept Doherty, he was to be deported to the United Kingdom. The INS appealed the order to the BIA.

On September 23, 1986, Doherty filed a habeas petition, seeking immediate deportation to Ireland. Doherty contended that the INS's appeal was frivolous and intended to delay deportation until the approval of a new extradition treaty between the United States and Great Britain, under which the political offense exception was eliminated. Two days later, Judge Leisure denied the petition. This Court affirmed, holding that the "sole cause" of the eighteen-month delay from March 18, 1985 to September 3, 1986, was Doherty's request for a stay during the pendency of the declaratory judgment action. Doherty v. Meese, 808 F.2d 938, 941 (2d Cir.1986) (Doherty II). The Court noted that Doherty's recent acquiescence in deportation was due to impending approval of the new treaty. Id. at 940.

On March 11, 1987, the BIA affirmed Judge Cohen's order deporting Doherty to Ireland. After reopening the proceedings briefly because of an administrative error, the BIA reaffirmed the order in a decision dated May 22, 1987. The INS then requested that the BIA refer its decision for review by the Attorney General and, on October 28, 1987, then-Attorney General Edwin Meese, III, agreed to review the decision. At Doherty's request, Attorney General Meese extended from December 1, 1987 to January 8, 1988 the date by which Doherty was required to file a brief pertaining to the review.

On December 1, 1987, a new extradition treaty between Great Britain and Ireland became effective. On December 3, 1987, Doherty sought before the BIA to reopen the deportation proceedings in order to apply for political asylum in the United States and to withdraw his designation of Ireland as the country of deportation. Doherty contended that he should be permitted to revoke his concession to deportation because the new treaty...

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