Doherty v. Meese, 415

• Citation: 808 F.2d 938
• Decision Date: 23 December 1986
• Docket Number: No. 415,D,415
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Parties: Joseph Patrick Thomas DOHERTY, Petitioner-Appellant, v. Edwin MEESE, Attorney General of the United States, Alan C. Nelson, Commissioner of the Immigration and Naturalization Service, and Charles Sava, District Director of the Immigration and Naturalization Service, New York District, Respondents-Appellees. ocket 86-2335.

Page 938

808 F.2d 938

Joseph Patrick Thomas DOHERTY, Petitioner-Appellant, v. Edwin MEESE, Attorney General of the United States, Alan C Nelson, Commissioner of the Immigration and Naturalization Service, and Charles Sava, District Director of the Immigration and Naturalization Service, New York District Respondents-Appellees.

No. 415, Docket 86-2335.

United States Court of Appeals Second Circuit.

Argued Oct. 17, 1986.

Decided Dec. 23, 1986.

Stephen A. Somerstein, New York City (Somerstein & Pike, New York City, of counsel), for petitioner-appellant.

Lawrence W. Chamblee, Sp. Asst. U.S. Atty. (Rudolph W. Giuliani, U.S. Atty., Steven E. Obus, Asst. U.S. Atty., S.D.N.Y., of counsel), for respondents-appellees.

Before FEINBERG, Chief Judge, and WINTER and MAHONEY, Circuit Judges.

WINTER, Circuit Judge:

Joseph Patrick Thomas Doherty, a citizen of the United Kingdom and the Republic of Ireland, appeals from Judge Leisure's denial of his petition for writ of habeas corpus. Doherty seeks relief from his incarceration pursuant to a warrant of the Immigration and Naturalization Service ("INS"). He claims that the Attorney General and the INS have improperly delayed deportation to the country of his choice in order to ensure his continued availability for extradition under a new treaty between the United States and the United Kingdom. We affirm.

BACKGROUND

Doherty was convicted in the United Kingdom of murdering a British Army captain and was sentenced to life imprisonment. On June 10, 1981, Doherty escaped from prison and fled to the United States, where he was arrested pursuant to a deportation warrant on June 18, 1983. Ten days later, a warrant was issued for his arrest for extradition. On December 12, 1984, Judge Sprizzo denied the government's request for extradition on the ground that Doherty's offense was within the "political offense exception" of the existing extradition treaty between the United States and the United Kingdom of Great Britain and Northern Ireland, Treaty of Extradition, October 21, 1976, United States-United Kingdom, art. V, para. 1(c)(i), 28 U.S.T. 227, T.I.A.S. No. 8468. See Matter of Doherty, 599 F.Supp. 270 (S.D.N.Y.1984). Because Judge Sprizzo's denial of extradition was unappealable, see United States v. Doherty, 786 F.2d 491, 495 (2d Cir.1986), and vacated the extradition warrant, Doherty was returned to the custody of the INS pursuant to the deportation warrant.

After the denial of extradition, Doherty sought release from INS custody. At a hearing on December 21, 1984, an immigration In early 1985, the government filed a declaratory judgment action in the Southern District seeking collateral review of Judge Sprizzo's order denying extradition. Doherty then moved for a stay of his deportation proceedings pending the outcome of the declaratory judgment action. On May 6, 1985, an immigration judge granted that motion over the objection of the INS. On June 25, 1985, Judge Haight dismissed the government's declaratory judgment action for failure to state a claim for relief. United States v. Doherty, 615 F.Supp. 755 (S.D.N.Y.1985). We affirmed that dismissal on March 13, 1986, 786 F.2d 491 (2d Cir.1986), and denied a petition for rehearing on June 2, 1986.

judge granted Doherty a bond in the amount of $200,000. On appeal, the Board of Immigration Appeals ("BIA") overturned that determination on the ground that no amount of bond would reasonably assure Doherty's presence at future proceedings. As a result, Doherty has been detained continuously since his arrest in 1983.

After the government failed to file a petition for writ of certiorari within the prescribed ninety days, 28 U.S.C. Sec. 2101(c) (1982), Doherty advised Immigration Judge Cohen that he wished to consent to deportation and to withdraw his application[s] for discretionary relief from deportation. Doherty designated the Republic of Ireland as the country of deportation under 8 U.S.C. Sec. 1253(a) (1982). Doherty faces a ten-year sentence of imprisonment in that country based on a dual prosecution agreement between the Republic of Ireland and the United Kingdom.

Doherty's demand for immediate deportation to Ireland was a consequence of the Supplementary Extradition Treaty between the United States and the United Kingdom, Treaty Doc. 99-8, that was signed on June 25, 1985. The United States Senate has since ratified the treaty; the British House of Commons had not yet acted upon it at the time of oral argument. Under the treaty, the "political offense exception" relied upon by Judge Sprizzo to prevent extradition would be eliminated retroactively, allowing Doherty's extradition to the United Kingdom, where he faces a life sentence. Doherty thus urgently wants to leave the United States for Ireland, where he faces only a ten-year sentence, before the British House of Commons acts upon the treaty.

The INS opposed Doherty's designation on the ground that deportation to Ireland would be prejudicial to the interests of the United States, and designated the United Kingdom as the country of deportation. At a hearing on September 12, 1986, Doherty admitted that he was deportable because he had entered the United States without valid immigration documents. 8 U.S.C. Secs. 1251(a)(1), 1182(a)(20) (1982). However, Doherty neither conceded that he was deportable on various grounds relating to his murder conviction in the United Kingdom and to his participation in the Provisional Irish Republican Army ("PIRA") ¹ nor admitted the facts relating to those charges. Judge Cohen, concluding that Doherty's limited admissions were sufficient to require his deportation, would not allow the INS to introduce evidence relevant to these additional charges.

At a reconvened hearing on September 19, 1986, the INS argued that Doherty's deportation to the Republic of Ireland would be prejudicial to the interests of the United States in its relations with other nations concerning the fight against international Meanwhile, on September 23, 1986, Doherty petitioned in the Southern District for a writ of habeas corpus releasing him and allowing immediate deportation to Ireland. Judge Leisure denied Doherty's petition on September 25, and Doherty now appeals that decision.

terrorism. Judge Cohen rejected this argument and ordered Doherty's deportation to the Republic of Ireland, which had indicated that it would accept him. On September 26, 1986, the INS appealed Judge Cohen's decision to the BIA, claiming, inter alia, that the conclusion that Doherty's deportation to Ireland would not adversely affect the interests of the United States was reached on an incomplete record.

DISCUSSION

Doherty claims that the INS and the Attorney General have resisted his deportation to Ireland solely for the purpose of assuring his continued availability for extradition to the United Kingdom under the Supplementary Treaty. Doherty asks us to order the respondents to execute the order of deportation entered by Immigration Judge Cohen. We find no merit in his claim and affirm.

We note at the outset that until September 3, 1986, the delay in Doherty's deportation proceedings was solely the result of his own tactical decision. For the almost eighteen months from March 18, 1985 to September 3, 1986, his deportation proceedings were held in abeyance because of a stay entered on his motion and opposed by the INS. Even if a delay of this length might justify relief, therefore, it is of no aid to Doherty because he was its sole cause.

Our analysis of Doherty's claim begins with the power of the Attorney General and his agents to reject Doherty's designation of Ireland as the country of deportation. Doherty concedes, as he must, that the Attorney General can reject an alien's designation of a country of deportation on the ground that deportation to that country would be prejudicial to the interests of the United States. Section 243 of the Immigration and Nationality Act, 8 U.S.C. Sec. 1253(a), explicitly provides:

[t]he deportation of an alien in the United States provided for in this chapter ... shall be directed by the Attorney General to a country promptly designated 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 prejudicial to the interests of the United States. No alien shall be permitted to make more than one such designation....

(emphasis added). The implied corollary to the Attorney General's power to reject a designated country is the power to name the country to which the alien shall be deported, ² subject of course to that country's willingness to accept the alien.

Doherty asks us not only to declare invalid the Attorney General's rejection of his designation but also to interrupt the ongoing administrative process concerning that rejection. ³ Judge Cohen agreed with Doherty on the legal merits, or lack thereof, of the Attorney General's actions, but the INS appeal from Judge Cohen to the BIA is pending. In considering this appeal, the BIA is empowered to "exercise such discretion and authority conferred upon the Attorney General by law as is appropriate and necessary for the disposition of the case." 8 C.F.R. Sec. 3.1(d)(1) (1986). After the BIA determination, the case might ultimately be referred to the Attorney General at his request, at the request of the Chairman or a majority of the BIA, or at the request of the Commissioner of the INS. 8 C.F.R. Sec. 3.1(h) (1986). By his petition for writ of habeas corpus, Doherty seeks to interrupt this process on the ground that the appeal to the BIA is frivolous.

Our power to intervene in the administrative process prior to a final order of deportation is extremely limited. Under the Immigration and Nationality Act, we can review determinations of the Attorney General "concerning detention" only "upon a conclusive showing ... that the Attorney General is not proceeding with such...