McMullen v. Immigration and Naturalization Service

• Decision Date: 13 October 1981
• Docket Number: No. 80-7580,80-7580
• Parties: Peter Gabriel John McMULLEN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1312

658 F.2d 1312

Peter Gabriel John McMULLEN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 80-7580.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 13, 1981.

Decided Oct. 13, 1981.

Bill Ong Hing, Nancy Howard, Lynn Sonfield San Francisco, Cal., for petitioner.

Daniel E. Fromstein, Washington, D. C., for respondent.

Petition from the Board of Immigration Appeals.

Before CHOY, HUG and SCHROEDER, Circuit Judges.

CHOY, Circuit Judge:

I. Introduction

Peter Gabriel John McMullen, an alien, claimed that he should not be deported to the Republic of Ireland ¹ because he would be persecuted for his political beliefs if he returned there. The immigration judge agreed and granted McMullen's application for withholding of deportation. Upon appeal by the Immigration and Naturalization Service (INS), the Board of Immigration Appeals (the Board) reversed the decision of the immigration judge, concluding that McMullen had not shown sufficient likelihood of persecution. We grant McMullen's petition for review on the ground that the Board's decision was not supported by substantial evidence.

II. Factual Background

The following facts are substantially undisputed: McMullen was born in Northern Ireland and reared in Great Britain. He is a Catholic of Irish descent, but he was not politically or emotionally involved with the Irish independence movement during his youth in Great Britain. He joined the British Army and eventually entered a paratrooper unit. McMullen was sent to Northern Ireland in 1969 as part of British peace-keeping efforts.

During the 1960's, the Catholic minority in British-controlled Northern Ireland became increasingly vocal in its civil rights claims. The Irish republican movement called for independence from Great Britain and unification of Northern Ireland and the southern Republic of Ireland.

McMullen began to feel that the British Army was anti-Catholic. He claims that he became personally aware of army torture of prisoners and of army plans to use armed force against unarmed civilian demonstrators in order to provoke and draw out an underground group, the PIRA.

The PIRA, or the Provisional Irish Republican Army, is an off-shoot of the para-military Irish Republican Army (IRA). These groups arose out of the republican movement. They are not officially supported by any government. They purport to protect the Catholic population from the British Army, and to work, with violence if necessary, toward the unification and independence of Ireland. The PIRA, also referred to as the "provisionals," formed in protest to the perceived inefficacy of the IRA.

When McMullen learned of the Army's plan to confront civilian demonstrators, he deserted the British Army and joined the PIRA. He participated in a bombing of army barracks, and became well known for his attempts to forestall the attack against the demonstrators. The confrontation in fact took place, and 13 civilians were killed in what became known as Bloody Sunday.

McMullen participated actively in PIRA operations until the group became, in his view, extremist, terroristic and out of touch with the civilian populace. In September of 1974, he formally resigned from the PIRA. The following month, McMullen was arrested by the Garda, or Republic of Ireland police, in connection with his past PIRA activities. He was imprisoned for three years, during which time he was held in the maverick wing, segregated from PIRA-member prisoners.

Upon his release in 1977, McMullen was asked to help the PIRA, but he declined to assist them. After repeated PIRA intimidation, including an incident in which he claims he was kidnapped at his place of employment and driven to a remote area, McMullen agreed to help. He occasionally housed PIRA members in his home and made trips to the United States, apparently to obtain guns. But when the PIRA ordered McMullen to plan and execute the kidnapping of an American bar owner, he refused. A PIRA court of inquiry reviewed McMullen's conduct, and, McMullen testified, a friend warned him that he would be murdered for his disobedience. McMullen then fled to the United States, using an assumed name to obtain a visa. When he arrived, he contacted the Bureau of Alcohol, Tobacco & Firearms, hoping to obtain asylum in exchange for sharing his knowledge of PIRA activities. He cooperated with the Bureau and with Scotland Yard investigators in the United States.

The INS then brought deportation proceedings against McMullen. McMullen testified at the proceedings, explaining that the PIRA was aware of his cooperation with authorities, and that he was considered a traitor who should be executed. McMullen submitted over 100 pages of exhibits consisting of newspaper and magazine articles, scholarly reports, and other publications documenting PIRA terrorist activities. The immigration judge found that McMullen was not deportable because "the Government of the Republic of Ireland is unable to control the activities of the PIRA and that 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 immigration judge further found that McMullen was not a security risk to the United States and that therefore deportation should be withheld.

On October 1, 1980, the Board of Immigration Appeals reversed, finding that McMullen had not shown a sufficient likelihood that he would suffer persecution upon deportation to Ireland. This petition followed.

III. Issues

The questions this court must answer are:

1. What is the appropriate standard of review of a Board of Immigration Appeals finding of no likelihood of persecution under the Refugee Act of 1980?

2. Was the Board's finding that McMullen did not show a likelihood of persecution supported by the evidence viewed under the appropriate standard of review?

IV. Discussion

McMullen admits that he entered the United States illegally, and that but for the provisions of the Refugee Act of 1980, he would be deportable. The Government agreed to presume that the Act has retroactive effect. Thus the only issue below was whether or not McMullen was entitled to the protection of the Act, which reads in relevant part:

(h)(1) The Attorney General shall not deport or return any alien ... to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.

(2) Paragraph (1) shall not apply to any alien if the Attorney General determines that

(A) the alien 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;

(B) the alien, having been convicted by a final judgment of particularly serious crime, constitutes a danger to the community of the United States;

(C) there are serious reasons for considering that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States; or

(D) there are reasonable grounds for regarding the alien as a danger to the security of the United States.

Refugee Act of 1980, § 243(h), 8 U.S.C. § 1253(h) (Supp. 1 1981) (hereinafter " § 243(h)").

The elements necessary to withholding of deportation of McMullen are:

1. A likelihood of persecution; i. e., a threat to life or freedom.

2. Persecution by the government or by a group which the government is unable to control. ²

3. Persecution resulting from the petitioner's political beliefs.

4. The petitioner is not a danger or a security risk to the United States.

The immigration judge found here all four of these elements. The Board found that the first two elements were not proved and therefore it did not reach the remaining two. The instant petition calls upon us to review only the Board's findings that McMullen was not likely to suffer persecution by the government of the Republic of Ireland or by the PIRA.

A. Standard of Review

We must first determine the appropriate standard of review applicable to a Board finding that no likelihood of persecution exists under § 243(h). Because the statute was significantly amended in 1980, this question is one of first impression.

Prior to enactment of the present § 243(h), withholding of deportation was at the discretion of the Attorney General. The former section read:

The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to persecution on account of race, religion, or political opinion and for such period of time as he deems to be necessary for such reason. (Emphasis added.)

Immigration and Nationality Act, Pub.L. No. 82-414, § 243(h), 8 U.S.C. § 1253(h), 66 Stat. 212 (1952). Decisions under the former section were subject to very limited review. This court gave extreme deference to the Attorney General's decision, searching only for a lack of due process or an abuse of discretion, and refusing to apply substantial-evidence review to a Board finding of ineligibility for § 243(h) relief. See, e. g., Kasravi v. Immigration and Naturalization Service, 400 F.2d 675, 677 (9th Cir. 1968); Asghari v. Immigration and Naturalization Service, 396 F.2d 391, 392 (9th Cir. 1968); Namkung v. Boyd, 226 F.2d 385, 388-389 (9th Cir. 1955).

The INS argues that the abuse-of-discretion standard, which the Ninth Circuit previously applied in § 243(h) cases, remains applicable, and that therefore this court should defer to the Board's no-likelihood-of-persecution finding. McMullen, on the other hand, argues that the new, mandatory language of § 243(h) justifies replacing the abuse-of-discretion standard with the substantial-evidence standard.

We agree with...