Irish Aires News

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Any room for this man?

Malachy McAllister resumes his family's battle for an American life

By Ray O'Hanlon
rohanlon@irishecho.com

A few months ago, quietly and without fanfare, Malachy McAllister reached another milestone in his battle to make a new life for himself and his family in the United States.

He likely paid the moment no heed. Might not have even noticed it.

In March of this year, McAllister marked nine years of a quasi-American life.

In so doing he put clear daylight between himself and the almost nine years that fellow Belfast man Joe Doherty notched up between 1983 and 1992.

McAllister didn't really need the extra marker. His battle for an American life is littered with them.

And if at the end of his legal sage he is forced to board a plane and leave America, even that ultimate moment will pale against the biggest marker of them all, the death of his beloved wife Bernadette in May, 2004.

Much used be made of the passing of time in the Doherty case.

This was not surprising. The IRA man was behind bars for the entirety of his legal epic, first in the Metropolitan Correctional Center in Manhattan and later, for his final few months, at a federal facility in Pennsylvania.

McAllister, by contrast, has been a free man, though not as free as he would like to be.

The most striking contrast between Doherty's and McAllister's daily lot is for the simplest of reasons.

Doherty was on the run after escaping from a prison in Belfast, hence his imprisonment.

McAllister has been on the run from the streets of Belfast, hence his desire to start over on the streets of New Jersey.

The final lap in the onetime Irish National Liberation Army man's legal marathon unfolds today when oral arguments in his appeal against deportation are scheduled for a federal court in Newark.

Malachy McAllister has been called many things in his life.

The familiar terrorist/freedom fighter combination is well set by now.

At one point he was labeled British by a federal immigration judge, an appellation that caused loud guffaws but carried serious weight in that the designation, if left unchallenged, effectively denied McAllister a chance of pleading for political asylum.

"We had to leave in a hurry. It was an emergency situation and the British passports were more readily available," was McAllister's explanation for the nature of his travel document.

Later, in America, he would apply and secure and Irish passport. Someday, he hopes, there will be an American one to go with it.

The McAllister family's Belfast story took a sharp downward turn in October, 1988 when loyalists fired 26 shots into the family home on the Lower Ormeau Road. Malachy and Bernadette were away. Bernadette's mother was looking after the children. Nobody was injured, but shortly afterward, and having been informed by police that Malachy was on a loyalist death list, the family fled Belfast for Canada.

Their subsequent application for asylum and refugee status in Canada was eventually turned down.

In March, 1996 The McAllisters entered the U.S. through the border checkpoint at Niagara Falls. They were admitted as "nonimmigrant visitors for pleasure." They overstayed their visas.

There was little time for pleasure. After settling in Wallington, N.J., the family applied for political asylum in March, 1997 and began a process of interviews at a nearby INS office.

In October, 1998, Malachy's name was, incredibly, drawn in the annual Schumer diversity visa lottery. But his teenage years INLA past, and its related convictions -- including one for conspiracy to murder reached by a Diplock court -- precluded him from securing a green card.

McAllister had served four years after being convicted in the non-jury court, where he was charged with taking part in what turned out to be a non-fatal INLA attack on an RUC patrol. McAllister was charged with acting as a lookout.

The evidence against McAllister was provided by a so-called "supergrass" witness who later retracted his testimony.

The following year, 1999, the McAllisters learned that their asylum plea had been rejected. They immediately appealed to a federal immigration court.

In October, 2000 Federal immigration judge Henry Dogin ordered that Malachy McAllister be deported, but in a separate ruling decreed that his wife, Bernadette, and the couple's four children be allowed asylum in the U.S.

Malachy McAllister appealed the decision against asylum to the Board of Immigration Appeals, while the U.S. Justice Department, in turn, appealed the decision to grant asylum to his wife and family.

In granting asylum to Bernadette and the children, Dogin ruled that Bernadette McAllister and her children had suffered "severe persecution" at the hands of loyalist paramilitaries, the Royal Ulster Constabulary and British army.

Judge Dogin further stated that the McAllisters had suffered "extreme past persecution" and discrimination as a result of being Catholics. He pointed to a "constant campaign of harassment" by loyalists who the British government were unable or unwilling to control.

Dogin also cited incidents of public humiliation, physical abuse and the loyalist gun attack on the family home.

By the end of 2000, meanwhile, the McAllisters were hopeful that the Clinton administration would move to suspend deportation proceedings against the family before President Clinton left office. This did not happen.

The case dragged on into the new century and right through the shock of September 11.

In November, 2003, the Board of Immigration Appeals rejected Malachy McAllister's appeal and turned aside the decision granting asylum to the rest of the family.

As a result, all five McAllisters faced deportation. Attorneys for the family filed a plea for stay of deportation with the U.S. 3rd Circuit Court of Appeals in Philadelphia.

The following month, Malachy McAllister surrendered at the office of the Bureau of Immigration and Customs Enforcement in Newark. Amid a mounting political furor, he was released pending the decision by the appeals court in Philadelphia.

That court granted motions for stays of removal filed on behalf of Malachy McAllister, his wife, Bernadette, and three of the couple's four children within a matter of weeks. It gave the family a little space and time.

The one question mark was Malachy and Bernadette's son Mark, better known as "Jamie," who had a conviction for passing a controlled substance.

Though he has been on probation and was not required to serve prison time, Jamie McAllister's conviction led to the appeals court denying the motion for a stay of removal filed on his behalf.

The court stated that it did not have jurisdiction as a result of the conviction. Still, the news had been mostly good.

"We now have the needed breathing space," the family's attorney, Eamonn Dornan, said at the time.

"We're dumbfounded. There have been so many high and lows. We're so relieved. It's unbelievable," said Malachy McAllister.

What was clear after the decision was that the McAllisters had been helped enormously by broad based community support and bipartisan political appeals on their behalf.

Another factor that might have played its part was a renewed threat to Malachy McAllister's life from the Red Hand Commandos, the loyalist group that had attacked the family home back in 1988.

The family's joy at their legal reprieve had barely settled when Bernadette was diagnosed with cancer. She died in May of last year leaving her husband and children to carry on the battle for the family's American life.

That battle resumes today with oral hearings, 10:30 a.m. Courtroom 32, 3rd Floor, Frank Lautenberg Courthouse, Newark, New Jersey.

This story appeared in the issue of June 29 - July 5, 2005