Deportation Proceedings for Joseph Patrick Thomas Doherty

• Decision Date: 30 June 1989
• Docket Number: 89-1
• Citation: 13 Op. O.L.C. 1
• Parties: Deportation Proceedings for Joseph Patrick Thomas Doherty
• Court: Opinions of the Office of Legal Counsel of the Department of Justice

13 Op. O.L.C. 1

Deportation Proceedings for Joseph Patrick Thomas Doherty

No. 89-1

United States Department of Justice

June 30, 1989

Deportation Proceedings for Joseph Patrick Thomas Doherty

The Attorney General disapproved the decision of the Board of Immigration Appeals to permit the respondent to reopen his deportation proceedings in order to apply for relief from deportation and to redesignate his country of deportation.

IN DEPORTATION PROCEEDINGS

This matter has been certified to me by the Commissioner of the Immigration and Naturalization Service ("INS") from the decision of the Board of Immigration Appeals ("BIA"). 8 C.F.R. § 3.1(h)(1)(iii). On November 14 1988, the BIA granted the respondent's motion to reopen these proceedings in order to allow him to apply for asylum and for withholding of deportation and to permit him to redesignate his country of deportation. Matter of Doherty, No. A26 185 231 (BIA 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 of Northern Ireland and a citizen of both the United Kingdom ("U.K.") and the Republic of Ireland. He has been an active volunteer in the Provisional Irish Republic Army ("PIRA") since 1972. The BIA summarized his criminal record as follows:

He has an extensive criminal record in Ireland beginning with convictions as a juvenile for burglary and larceny. He was sentenced to probation, fines, and 1 month in a training school. At 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 PIRA as a volunteer. In 1973, he was arrested, and later convicted, for possession of a firearm. He was sentenced to 1 year in prison and he served 9 months. In 1974, he was arrested for possession of 80 pounds of explosives. He was convicted and sentenced [ 2] to 10 years imprisonment. He served 5 years and 9 months of that sentence. During that term of imprisonment, the respondent attempted to escape, but he was unsuccessful. He was convicted of prison breaking with intent to escape and received a sentence of an additional 18 months [of] imprisonment. After his release from prison in December of 1979, he returned to the PIRA. On May 2, 1980, while on a mission for the PIRA, he was involved in a gun battle in which a British army Captain was killed. He was tried and found guilty of murder, attempted murder, possession of firearms and ammunition, and belonging to a proscribed organization.

In re Doherty, No. A26 185 231, slip op. at 1-2 (BIA Mar. 4, 1985).

Throughout the course of these proceedings, respondent has never disputed the underlying facts relating to the last set of crimes. On May 2, 1980, he and several other PIRA 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 Army captain, was shot and killed. Respondent was arrested and charged with murder, attempted murder, illegal possession of 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, of murder and the other offenses with which he had been charged and was sentenced to life imprisonment.

After his escape, respondent made his way to the United States, where he was arrested on June 18, 1983. A formal request for extradition was filed in the Southern District of New York on August 16, 1983. At about the same time, a deportation warrant was also filed against him. On June 28, 1983, respondent filed for asylum and withholding of deportation.

2. The extradition proceeding was brought pursuant to 18 U.S.C. § 3184 and Article VII of the then-existing Treaty of 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 offenses" were an exception to extradition. A hearing was held in the United States District Court for the Southern District of New York in March and April of 1984. In December 1984, the court ruled that respondent could not be extradited because the murder he had committed was "of a political character" within the meaning of the Extradition Treaty. The court thus denied the request for extradition. Matter of Doherty by Gov't of 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: [ 3] [B]oth Unionists and Republicans who commit offenses of a political character can and do receive fair and impartial justice and...the courts of Northern Ireland will continue to scrupulously and courageously discharge their responsibilities in that regard.

Matter of Doherty by Gov't of U.K., 599 F.Supp. at 276.^[1]

3. Immediately upon the conclusion of the extradition proceeding, the deportation proceeding went forward. It was delayed, however, for almost 18 months, from March 18, 1985, until September 3, 1986, as a result of 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 for withholding of 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 for asylum and [was] ... waiving 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 we would request would, of course, be the opportunity to desingnate [sic] a country." See Transcript of Sept. 12 Hearing, supra note 2, at 38. The colloquy between the immigration judge and respondent's counsel continued as follows:

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

A. That is correct.

Q. No application for voluntary departure?

A. That is correct.

Q. In other words, there is no application for relief from deportation that you will be making? [ 4] A. That is correct.

Id. at 38-39. Respondent designated the Republic of Ireland as his country of 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 of the United States to send respondent to Ireland. The INS explained to the court that the deportation of respondent to the United Kingdom was a matter of great interest at the highest levels of the federal government. Transcript of Sept. 12 Hearing, supra note 2, at 41-43, 47-48; Transcript of Hearing at 57, Matter of Doherty, No. A26 185 231 (BIA Sept. 19, 1986). The court denied the INS' request for permission to submit evidence of additional grounds for deportation, because respondent had conceded deportability and waived his claims to asylum and withholding of deportation. See Transcript of Sept. 12 Hearing, supra note 2, at 39-40

One week later, on September 19, 1986, the immigration judge found respondent deportable on his own admission for 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] Over the INS' strenuous objection, the immigration judge ordered respondent deported to the country of his designation, the Republic of Ireland.

At the time of the immigration judge's decision, respondent faced a ten-year sentence of imprisonment in Ireland under a "dual prosecution agreement" between Ireland and the United Kingdom. Doherty v. Meese, 808 F.2d at 940.^[4] Respondent's consent to deportation and his withdrawal of his applications for relief from deportation were apparently prompted by the imminent ratification and implementation of the Supplementary Extradition Treaty with the United Kingdom, S. Exec. Rep. No. 99-17 (1985) (effective 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, where, as noted, he faced a life sentence for murder. "[Respondent] thus urgently want[ed] to leave the United States for Ireland, where he face[d] only a ten-year sentence, before the British [ 5] House of 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 for a writ of habeas corpus, which was denied on September 25, 1986. Id. at 941. Respondent appealed to the Second Circuit.

On December 23, 1986, the Second Circuit affirmed the district court's denial of 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 for the purpose of assuring his continued availability for extradition to the United Kingdom upon final ratification of 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)...