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April 10, 2006

Full Text of Malachy McAllister Decision

(Not good news but read the conclustion in red. Jay)

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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
----

Nos. 03-4513/04-3695
----

MALACHY MCALLISTER; *MARK J. MCALLISTER;
SARAH B. MCALLISTER; PAUL GARY MCALLISTER;
NICOLA MCALLISTER; SEAN R. MCALLISTER,
Petitioners in 03-4513

v.

Attorney General of the United States,
Respondent.

*Dismissed Pursuant to Court's Order dated 1/13/04

NICOLA MCALLISTER
SEAN R. MCALLISTER,
Petitioners in 04-3649

v.

Attorney General of the United States
----

Petition for Review of an Order of the
Board of Immigration Appeals

(Agency Nos. A73-629-577; A73-551-831; A73-551-832;
A73-551-833; A73-551-834; A73-551-835)
----

Argued on June 29, 2005

BEFORE: ROTH, RENDELL and BARRY, Circuit Judges

( Filed: April 10, 2006 )

Eamonn S. Dornan, Esquire (ARGUED)
Smith, Dornan & Dehn, P.C.
110 East 42 Street, Suite 1303 nd
New York, NY 10017


Counsel for Petitioners

Peter D. Keisler, Esquire
Assistant Attorney General
Michael P. Lindemann, Esquire
Assistant Director
John M. McAdams, Jr., Esquire (ARGUED)
Douglas E. Ginsburg, Esquire
Office of Immigration Litigation
Civil Division
United States Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
Counsel for Respondent

----
OPINION OF THE COURT
----

ROTH, Circuit Judge:

We review here two decisions of the Board of Immigration
Appeals (BIA). In the first, the BIA found that Malachy
McAllister (Malachy) was removable because he had
engaged in terrorist activities. See 8 U.S.C. §
1227(a)(4)(B).

The BIA also denied all of Malachy’s requests for relief
from removal. In the second, the BIA found that
Malachy’s wife, Sarah McAllister (Sarah), and their four
children, Nicola, Sean, Mark and Paul Gary, were
removable because they had overstayed their visas. See 8
U.S.C. § 1227(a)(1)(B). The BIA 1 granted Sarah and the
children voluntary departure but denied all other relief
from removal.

I. Facts

The McAllisters are natives and citizens of Northern
Ireland in the United Kingdom. In the early 1980s,
Malachy became involved with the Irish National
Liberation Army (INLA). In 1981, as a member of the
INLA, Malachy participated in two incidents. First, he
acted as an armed lookout while other members of the
INLA used firearms to shoot a Royal Ulster Constabulary
(RUC) officer. Second, he acted as a member of a
conspiracy to shoot and kill a RUC officer. For these
actions, Malachy was ultimately convicted of “unlawful
and malicious wounding with intent to do grievous bodily
harm” and “conspiring to murder.” He was sentenced to
seven years incarceration for these offenses. On
September 30, 1985, Malachy received an early release
from prison for good behavior.

----
This appeal does not involve Mark. 1
----

On December 15, 1988, Malachy, Sarah and their children
left Northern Ireland for Canada. The family fled
Northern Ireland following vicious attacks by Loyalist
forces and the RUC. For example, Loyalist paramilitaries
raked the family home with gunfire and the RUC threw
Sarah out of a moving vehicle while she was pregnant.
Malachy applied for asylum in Canada but it was denied
and he was ordered deported. On March 6, 1996, Malachy
and his family entered the United States as nonimmigrant
visitors for pleasure. On March 5, 1999, the Immigration
and Naturalization Service (INS) instituted removal
proceedings against each member of the McAllister
family. Malachy filed an application requesting asylum,
withholding of removal, and withholding of removal under
the Convention Against Torture (CAT). Sarah filed a
similar application, with each of her children as a
derivative applicant.

II. Procedural History

On October 11, 2000, an Immigration Judge (IJ) found
that each member of the McAllister family was removable.
The IJ denied all of Malachy’s requested relief but
granted asylum to Sarah and the children. Malachy filed
a timely appeal. The Office of Immigration Litigation
(OIL) appealed the IJ decision 2 concerning Sarah and
the children. On Novembe r 17, 2003, the BIA issued two
final orders of removal. In the first order, the BIA
affirmed the IJ’s determination that Malachy was
removable on the grounds that he had engaged in
terrorist activities. See 8 U.S.C. § 1227(a)(4)(B). The
BIA also affirmed the IJ’s denial to him of relief from
removal. In the second order, the BIA affirmed the IJ’s
determination that Sarah and the children were removable
for overstaying their visas. The BIA, however, reversed
the IJ’s grant of asylum to Sarah and the children and
denied all their other requests for relief, except for
voluntary departure. The McAllisters appealed and their
appeals were consolidated.

----
On March 1, 2003, the INS was eliminated as an agency 2
under the Department of Justice. The functions for which
INS was responsible were transferred to the Department
of Homeland Security and, as regards the proceedings in
this case, to OIL. See Homeland Security Act of 2002,
Pub. L. No. 107- 296, 116 Stat. 2135 (2002).
----

On May 10, 2004, Sarah died of cancer. On July 1, 2004,
Nicola and Sean filed a Motion to Reopen the November
17, 2003, Order of the BIA so that they could
independently file applications for asylum and for
relief under CAT. On August 3, 2004, the BIA denied
their motion because it was not timely filed. See 8
U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(2). 3 On
September 16, 2004, Nicola and Sean filed a petition for
review of the BIA’s decision.

III. Jurisdiction

A. Malachy

We have jurisdiction to review final orders of removal.
See 8 U.S.C. § 1252(a)(1). There are, however, certain
situations in which our jurisdiction to review final
orders of removal is limited or eliminated. See 8 U.S.C.
§§ 1252(a)(2)(A)-(C), 1158(b)(2)(D). If the issues
presented in a petition for review of a final order
involve constitutional claims or questions of law, our
jurisdiction is never limited or eliminated. See 8
U.S.C. § 1252(a)(2)(D). On the other hand, 4 if an alien
is removable for having committed one of the offenses
enumerated in 8 U.S.C. § 1252(a)(2)(C), we lack 5
jurisdiction to review a final order of removal that
does not raise constitutional claims or questions of
law. See 8 U.S.C. § 1252(a)(2)(C)-(D).

----
The BIA’s decision also found that Nicola and Sean’s 3
motion did not meet any of the exceptions to the
timeliness requirement. See 8 U.S.C. § 1229a(c)(7)
(C)(ii); 8 C.F.R. §
1003.2(c)(3)(ii).
----

On May 11, 2005, the President signed into law the 4
REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231
(2005). The REAL ID Act amended the INA and provided
that the courts of appeals shall have jurisdiction to
review all final orders of removal that raise
constitutional claims and questions of law.

8 U.S.C. 1252(a)(2)(C) Orders against criminal aliens 5
Notwithstanding any other provision of law (statutory or
nonstatutory), including section 2241 of title 28,
United States Code [28 USCS § 2241], or any other habeas
corpus provision, and sections 1361 and 1651 of such
title [28 USCS §§ 1361 and 1651], and except as provided
in subparagraph (D), no court shall have jurisdiction to
review any final order of removal against an alien who
is removable by reason of having committed a criminal
offense covered in section 212(a)(2) or
237(a)(2)(A)(iii), (B), (C), or (D) [crimes of moral
turpitude, violation of laws relating to controlled
substances, conviction of 2 or more offenses with
aggregate sentences of confinement of 5 years of more,
involvement in drug trafficking, involvement in
prostitution and other unlawful commercialized vice,
immunization from prosecution for a crime committed in
the U.S., severe violations of religious freedom by
foreign government officials, significant trafficking in
persons, money laundering, and other enumerated
offenses.], or any offense covered by section
237(a)(2)(A)(ii) [multiple criminal convictions] for
which both predicate offenses are, without regard to
their date

In the present case, the BIA did not specifically find
that Malachy was removable for having committed one of
the offenses enumerated in subsection (C). Rather, the
BIA found Malachy removable based on his engagement in
terrorist activities. See 8 U.S.C. § 1227(a)(4)(B).
Thus, whether 6 subsection (C) limits our jurisdiction
depends on whether the jurisdictional bar of subsection
(C) requires the final order of removal to be based on
one of subsection (C)’s enumerated offenses. We address
this issue as one of first impression for our Court.

Our sister circuits have addressed the application of
the jurisdictional bar of subsection (C), and of similar
jurisdictional provisions, e.g., § 440(a) of the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), and
§ 309(c)(4)(G) of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L.
No. 104-208, 110 Stat. 3009 (1996), amended by the Act
of Oct. 11, 1996, Pub. L. No. 104-302, 110 Stat. 3656
(1996). Some courts have held that the final order of
removal does not need to be grounded in one of the
enumerated offenses for the jurisdictional bar to apply.
See Fernandez-Bernal v. Attorney General, 257 F.3d 1304,
1310 (11th Cir. 2001) (holding that

----
of commission, otherwise covered by section
237(a)(2)(A)(i) [moral turpitude].

8 U.S.C. § 1227(a)(4)(B) Terrorist activities 6
Any alien who is described in subparagraph (B) or (F) of
section 212(a)(3) [8 USCS § 1182(a)(3)] is deportable.
----

jurisdictional bar of subsection (C) is not dependent
upon the grounds of removal being based on one of the
enumerated offenses); Lopez-Elias v. Reno, 209 F.3d 788,
793 (5th Cir. 2000) (same); Abdel-Razek v. INS, 114 F.3d
831, 832 (9th Cir. 1997) (holding that jurisdictional
bar of AEDPA § 440(a) is not dependent upon the final
order of removal referring to one of the provision’s
enumerated offenses) Other courts, however, have
required the final order of removal to be based on one
of the enumerated offenses. See Yousefi v. INS, 260 F.3d
318, 325 (4th Cir. 2001) (requiring a deportation order
to be based on an offense enumerated in § 309(c)(4)(G)
for that provision’s jurisdictional bar to apply); Xiong
v. INS, 173 F.3d 601, 608 (7th Cir. 1999) (prohibiting
the INS from arguing that the alien committed an
enumerated offense on appeal in support of a
jurisdictional bar because the final order of removal
was based on an unenumerated offense); Choeum v. INS,
129 F.3d 29, 39 (1st Cir. 1997) (finding it doubtful
that Congress intended “deportable for reason of” in
AEDPA § 440(a) to be the equivalent of “potentially
susceptible to being deported by reason of”).

We conclude that Congress intended that the clear
language of the statute be utilized. Thus, we read the
jurisdictional bar of subsection (C) to apply when the
actual basis for the final order of removal was the
alien’s commission of one of the enumerated offenses.
See Yousefi, 260 F.3d at 325. See also Xiong, 173 F.3d
at 608; Choeum, 129 F.3d at 39. We are convinced that
the approach taken by the First, Fourth and Seventh
Circuits with regard to the jurisdictional bar for
review of final orders of removal is the proper
approach. We hold that for purposes of the
jurisdictional bar found in 8 U.S.C.

§ 1252(a)(2)(C), an alien is not “removable for reason
of having committed [an enumerated] criminal offense”
unless the final order of removal is grounded, at least
in part, on one of those enumerated offenses.

In this case, the BIA found Malachy removable because he
engaged in terrorist activities, which is not an offense
enumerated in subsection (C). Therefore, subsection (C)
does not limit our jurisdiction to review the BIA’s
final order of removal, and we will give full review to
his petition.

B. Sarah

When a case or controversy ceases to exist between two
parties, the case is rendered moot. See U.S. CONST. art.
III, § 2; Spencer v. Kemna, 523 U.S. 1 (1998). When an
alien dies with her case pending before the court of
appeals, the court of appeals can no longer grant the
relief that the alien seeks. The case or controversy
ceases to exist, rendering the alien’s claim moot. In
this case, Sarah died on May 10, 2004, while her case
was pending before us. Her death rendered her claims
moot and we will dismiss her petition. See Spencer v.
Kemna, 523 U.S. 1, 18 (1998).

C. Nicola and Sean

Nicola and Sean were derivative applicants on Sarah’s
applications for relief from removal. As derivative
applicants, they relied on Sarah’s application for
relief. See 8 U.S.C. § 1153(d). When Sarah’s claim
became moot, Nicola and Sean were left without the
principal alien upon whose application their own status
rested. On July 1, 2004, Nicola and Sean filed a motion
to reopen their case in order to file independent
applications for relief based on the events that were
the subject of Sarah’s original application as well as
on an assertion that a cousin in Northern Ireland had
been attacked and beaten by a gang of Loyalists. On
August 3, 2004, the BIA denied the motion to reopen on
the basis that it was filed more than 90 days after the
November 17, 2003, order of the BIA, denying them
asylum. The BIA further held that the motion to reopen
did not fall within any of the exceptions to the timely
filing of motions to reopen because Nicola and Sean had
not demonstrated prima facie eligibility for asylum. See
8 U.S.C. § 1229a(c)(7)(C)(ii).

On September 16, 2004, Nicola and Sean filed a petition
for review of the BIA’s denial. Because the petition for
review was filed more than thirty days after the BIA’s
August 4, 2004, final order, the petition was untimely.
Thus, we lack jurisdiction to review this decision by
the BIA, and we will dismiss Nicola and Sean’s appeals.
See 8 U.S.C. § 1252(b)(1). See also Navarro-Miranda v.
Ashcroft, 330 F.3d 672, 676 (5th Cir. 2003) (applying
the thirty-day deadline of § 1252(b)(1) to a petition
for review of a motion to reopen).

D. Paul Gary

On March 17, 2004, the BIA remanded Paul Gary’s case to
the Immigration Court so that he could apply for
adjustment of status. Pursuant to 8 U.S.C. § 1252(d)(1),
we no longer have jurisdiction to review his claims.
Therefore, we will dismiss Paul Gary’s claim for lack of
jurisdiction.

IV. Standard of Review

We now turn to the substance of Malachy’s petition. We
review the BIA’s findings of fact to determine whether
substantial evidence supports them. See Singh-Kaur v.
Ashcroft, 385 F.3d 293, 296 (3d Cir. 2004). We will only
reverse the BIA’s findings “if the evidence compels a
contrary conclusion.” Ahmed v. Ashcroft, 341 F.3d 214,
216 (3d Cir. 2003) (citing INS v. Elias-Zacarias, 502
U.S. 478, 481 n.1 (1992)). We give de novo review to
constitutional claims. See Chong v. District Director,
INS, 264 F.3d 378, 386 (3d Cir. 2001). We review the
BIA’s interpretation of the INA to determine whether it
is “arbitrary, capricious or manifestly contrary to the
statute.” See Ahmed, 341 F.3d at 217 (quoting Chevron,
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 844 (1984)).

With respect to the denial of a motion to reopen, we
apply the 7 abuse of discretion standard. See Borges v.
Gonzalez, 402 F.3d 398, 404 (3d Cir. 2005). The BIA’s
denial of a motion to reopen will not be disturbed
unless it is “arbitrary, irrational, or contrary to
law.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004)
(quoting Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994)).

V. Analysis

A. Removal

Malachy challenges the BIA’s determination that he is
removable, claiming that he did not engage in “terrorist
activities.” Malachy asserts four grounds to support his
contentions of error. First, he argues that the INA’s
definition of “terrorist activity” is unconstitutionally
overbroad because it encompasses common crimes that no
reasonable person would consider to be terrorist acts.
Second, he claims that the BIA failed to find that he
was a member of a terrorist organization. Third, he
asserts that he did not target non-combatants. Finally,
he contends that the situation in Northern Ireland had
risen to the level of an Article 3 conflict under the
Geneva Convention so that his conduct could not be
considered a terrorist activity. In the alternative,
Malachy claims that the INA’s “political offense”
exception applies in this case, and therefore the BIA’s
determination that he was removable is erroneous.

1. Engaging in Terrorist Activity

----
For purposes of jurisdiction and standard of review, 7
motions to remand and motions to reopen are treated the
same. See Korytnyuk v. Ashcroft, 396 F.3d 272, 282 &
n.15 (3d Cir. 2005).
----

a. “Terrorist Activity”

Malachy asserts that the definition of “terrorist
activity” in 8 U.S.C. § 1182(a)(3)(B)(iii)(V)(b) is
unconstitutionally overbroad. We note that Malachy’s
argument also raises issues of vagueness, which is
similar to the doctrine of overbreadth. Waterman v.
Farmer, 183 F.3d 208, 212 n.4 (3d Cir. 1999). As such,
we will examine both doctrines.

A statute is unconstitutionally vague if “men of common
intelligence must necessarily guess at its meaning and
differ as to its application.” Id. (quoting Connally v.
Gen. Constr. Co., 269 U.S. 385, 391 (1926)). A statute
is unconstitutionally overbroad if it “does not aim
specifically at the evils within the allowable area of
control [by the government] but . . . sweeps within its
ambit other [constitutionally protected] activities.”
Id. at 212 n.5 (quoting Thornhill v. Alabama, 310 U.S.
88, 97 (1940)).

Clause (iii) of 8 U.S.C. § 1182(a)(3)(B) states, in
relevant part, that “terrorist activity” is:

any activity which is unlawful . . . which involves . .
. [using an] explosive, firearm, or other weapon or
dangerous device (other than for mere personal monetary
gain), with intent to endanger, directly or indirectly,
the safety of one or more individuals or to cause
substantial damage to property.

8 U.S.C. § 1182(a)(3)(B)(iii)(V)(b). While this
definition is certainly broad, we conclude that it is
neither vague nor overbroad in that it does not infringe
on constitutionally protected behavior. The definition
includes a great deal of conduct, but all of this
conduct could reasonably constitute terrorist
activities.

First, the parenthetical phrase “other than for mere
personal monetary gain” removes common crimes from the
definition by requiring that the offending activity be
conducted for reasons other than money. For that reason,
offenses like robbery and burglary are not included in
the definition. Second, the mens rea element of the
provision requires the actor to have the specific intent
to endanger the safety of individuals or to cause
substantial damage to property. Thus, the definition of
terrorist activity does not include situations in which
an alien has acted in self-defense or in which the alien
lacks the capacity to 8 9 meet the requisite intent.
More importantly, none of the aforementioned activities
constitute a protected activity outside of the
permissible bounds of Congressional regulation.

In support of his position, Malachy provided three
hypothetical examples of conduct that he claims would
unconstitutionally fall under the statutory definition
of “terrorist activity.” The examples are “an 8-year-old
child who brings a baseball bat to school to protect
himself from bullies; an individual institutionalized
for a mental health disorder who attacks a doctor; [and]
a woman who protects herself, in the course of a
domestic violence attack, with standard kitchen cooking
utensils.” Our examination of the conduct involved in
these three hypotheticals convinces us, however, that
none of them would constitute “terrorist activity” under
the definition because none of them satisfies the
elements of the definition nor are the characters
engaging in protected activity. For example, both the
little boy and the battered wife have acted in
selfdefense, which negates the “unlawful” element. The
institutionalized individual in all likelihood does not
have the legal capacity to satisfy the intent
requirement under the common law. See 1 LAFAVE supra §
7.1. Although we concede that the INA’s definition of
“terrorist activity”certainly encompasses more conduct
than our society, and perhaps even Congress, has come to
associate with traditional acts of terrorism, e.g., car
bombs and assassinations, nevertheless, we conclude that
the INA’s definition of “terrorist activity” found in 8
U.S.C. § 1182(a)(3)(B)(iii)(V)(b), is neither
unconstitutionally overbroad nor vague.

----
See 2 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW 8 §
10.4(a) (2d ed. 2003 & Supp. 2005).

1 See 1 LAFAVE supra § 7.1. 9
----

b. Member of a “Terrorist Organization”

Malachy next contends that the BIA erred when it found
that he had engaged in terrorist activities because the
BIA did not at the same time find that he was a member
of a terrorist organization. To be engaged in a
terrorist activity, the INA requires an alien to act
either “in an individual capacity or as a member of an
organization.” 8 U.S.C. § 1182(a)(3)(B)(iv) (emphasis
added). The statute does not qualify the term
“organization.” Terms and provisions may not be added to
a statute where Congress has omitted them. See Sale v.
Haitian Centers Council, Inc., 509 U.S. 155, 168 n.16
(1993). Therefore, the BIA must find that an alien
acted on his own or as a member of an organization – not
just a terrorist organization – before it determines
that the alien engaged in “terrorist activity.”

In this case, it is undisputed that Malachy acted as a
member of the Irish National Liberation Army (INLA) and
not as an individual. The INLA is not a terrorist
organization as the INA defines that term. See 8 U.S.C.
§ 1182(a)(3)(B)(vi).

Because the INA does not expressly require the
organization, with which the alien was acting, to be a
terrorist organization, we accept as reasonable the
BIA’s construction of 8 U.S.C.§ 1182(a)(3)(B)(iv): an
alien must be acting either individually or as a member
of an organization – but not necessarily as a



c. Targeting Non-Combatants and Article 3 Conflict

Malachy claims that the BIA erred in finding that he
engaged in terrorist activities because, at the time he
engaged in the conduct, he did not target non-combatants
and the situation in Northern Ireland had risen to the
level of an Article 3 conflict under the Geneva
Convention. The issue we must now consider is whether
the BIA must weigh such factors in making the
determination that an alien has engaged in terrorist
activities.

The BIA did not consider whether Malachy had targeted
non-combatants and did not consider whether the
situation in Northern Ireland had risen to the level of
a Geneva Convention Article 3 conflict. The INA’s
definition of engaging in terrorist activity does not
address either the targeting of non-combatants or the
levels of conflict under the Geneva Convention.
Consequently, Malachy’s proffered distinctions between
combatant and non-combatant and Article 3 verses non-
Article 3 conflict are not sustainable, and the BIA did
not err.
----

We also note that even if 8 U.S.C. § 1182(a)(3)(B)(iv)
10 were not clear on its face, for us to interpret the
provision to mean that the offending conduct must have
been committed in one’s individual capacity or as a
member of a terrorist organization would leave a gaping
hole in the statute that Congress could not have
intended. The result of such an interpretation would be
that conduct identical to that which the statute calls
“engaging in terrorist activity” would not be such if
the alien chose to act as a member of an organization
that the INA does not define as a “terrorist
organization.” To interpret the statute in this manner
would be unreasonable.

2. “Political Offense” Exception

In the alternative, Malachy claims that, even if he has
engaged in terrorist activities, the BIA erred when it
found him removable because the “political offense”
exception to the INA applies to his conduct. “Political
offenses” is a “designation of a class of crimes usually
excepted from extradition treaties, this term denotes
crimes which are incidental to and form a part of
political disturbances.” Black’s Law Dictionary 1158
(6th ed. 1990). The “political offense” exception
appears three times in the text of the INA. See 8 U.S.C.
§§ 1101(a)(43)(F), 1182(a)(2)(A)(i)(I), and
1182(a)(2)(B). None of the provisions that contain the
“political offense” exception applies in this case.

Section 1101(a)(43) defines the term “aggravated
felony.” Section 1182(a)(2)(A)(i)(I) deals with aliens
who have been convicted of a crime involving moral
turpitude. Section 1182(a)(2)(B) deals with aliens who
have committed two or more offenses with an aggregate
time of incarceration that is five years or more. In
this case, the BIA found Malachy removable because he
engaged in terrorist activities. None of the provisions
containing the term “political offense” pertain to or
refer to provisions involving terrorist activities. The
BIA determined that the “political offense” exception
was a limited exception that applied only to the
specific subsections in which it was found and thus did
not apply to terrorist activities. We conclude that this
interpretation of the “political offense” exception was
reasonable. See Chevron, 467 U.S. at 843; Abdulai, 239
F.3d at 552.

B. Asylum
----

activity” is unreasonable or that it was necessary to
include these factors in its analysis. See Chevron USA,
Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 843 (1984); Abdulai v. Ashcroft, 239 F.3d 542,
552 (3d Cir. 2001) (quoting Chevron).


In addition to challenging his removal order, Malachy
contends that the BIA erred when it found that he was
ineligible for asylum. He asserts that to be found
ineligible for asylum, the BIA must find that he has
engaged in terrorist activities and that he is a danger
to the security of the United States. He claims that the
BIA found only the former. Whether the INA requires the
BIA to make both findings is a question of law.

According to Malachy, “[t]he statute imposes a two-part
analysis: (1) whether an alien engaged in a terrorist
activity and (2) whether there are reasonable grounds to
believe that the alien is a danger to the security of
the United States.” Cheema v. INS, 350 F.3d 1035, 1041
(9th Cir. 2003), superceded on other grounds by 383 F.3d
848 (9th Cir. 2004). We disagree with Malachy for two
reasons. First, under the clear language of the statute,
an alien is not eligible for asylum if the Attorney
General determines “there are reasonable grounds for
regarding the alien as a danger to the security of the
United States,” or that “the alien is described in . . .
section 1227(a)(4)(B) of [Title 8] (relating to
terrorist activity).” 8 U.S.C. § 1158(b)(2)(A)(iv)-(v).
In this case, the BIA affirmed the IJ’s determination
that Malachy was removable under 8 U.S.C. §
1227(a)(4)(B). For that reason, under the express
language of the statute, Malachy was not eligible for
asylum.

Second, Malachy inappropriately relies on Cheema. The
Ninth Circuit limited the Cheema ruling to cases in
which the application for asylum was filed prior to
April 1, 1997, because the Cheema decision was based on
a version of the asylum statute that preceded IIRIRA.
IIRIRA eliminated the application of the Cheema two-part
analysis on all asylum applications filed after April 1,
1997. In this case, Malachy filed his application for
asylum after March 5, 1999. Therefore, the Cheema
twopart analysis does not apply.

Under the applicable version of the INA, an alien is
ineligible for asylum if the Attorney General determines
that the alien has engaged in terrorist activities. See
8 U.S.C. § 1158(b)(2)(A)(v). The BIA properly
interpreted the statute in determining that Malachy was
not eligible for asylum because he had engaged in
terrorist activities. Thus, we will affirm the BIA’s
determination that Malachy is not eligible for asylum.

C. Withholding of Removal

Malachy also claims that the BIA erred when it
determined that he was not eligible for withholding of
removal under the INA. He claims that the BIA should
have done more than rely on its determination that he
engaged in terrorist activities. Under the INA, an alien
is ineligible for withholding of removal when the
Attorney General decides that the alien is a danger to
the security of the United States. See 8 U.S.C. §
1231(b)(3)(B)(iv). The statute specifically provides
that, where the Attorney General has determined that an
alien has engaged in terrorist activities, “there are
reasonable grounds for regarding [that alien] as a
danger to the security of the United States.” 8 U.S.C. §
1231(b)(3)(B). Therefore, under the express language of
the statute, Malachy was ineligible for withholding of
removal. The BIA’s determination to this effect cannot
be considered unreasonable. Thus, we will affirm the
BIA’s determination that Malachy is ineligible for
withholding of removal under the INA.

D. Deferral of Removal

Malachy contends that the BIA erred when it found that
he had failed to establish a prima facie case for
deferral of removal. To establish a prima facie case for
deferral, an alien must establish that it is more likely
than not that he will be tortured in the country of
removal. See 8 C.F.R. § 208.16(c)(2). In its assessment
of whether an alien will likely be tortured in The Good
Friday Agreement was an agreement 12 between the major
political parties of Northern Ireland, setting forth new
constitutional arrangements for Northern Ireland. The
agreement was entered on April 10, 1998, and provided
that whether Northern Ireland would remain part of the
United Kingdom would be decided by a majority of
Northern Ireland voters. Seventy-one percent of Northern
Ireland voters the country of removal, the BIA must
consider “all evidence relevant to the possibility of
future torture, including “information regarding
conditions in the country of removal.” 8 C.F.R. §
208.16(c)(3). In this case, the BIA relied heavily on
the Department of State’s Country Report on Human Rights
and Practices, as it pertained to the conditions in
Northern Ireland and the United Kingdom. Based on the
Country Report, the BIA found that Catholic
nationalists, conservatives, and IRA supporters and
former IRA members (even those who were convicted and
sentenced for terrorist offenses) were able to “freely
go about their lives,” “hold prominent positions in
business, government, education and other walks of
life,” and “participate openly in the political process
and [] hold public office.” The Country Report has been
called the “‘most appropriate and perhaps the best
resource’ for ‘information on political situations in
foreign nations.’” Kazlauskas v. INS, 46 F.3d 902, 906
(9th Cir. 1995) (quoting Rojas v. INS, 937 F.2d 186, 190
n.1 (5th Cir. 1991)). Thus, there was ample basis for
the BIA’s determination that the United Kingdom was not
a place where members of Malachy’s race, religion, or
political affiliations were being tortured.

The BIA also pointed to other evidence that demonstrated
progress towards peace in Northern Ireland, including
the devolution of power from the British Parliament to
the Northern Ireland Assembly, a reduction in the
deployment of British military troops in Northern
Ireland, and evidence that paramilitary organizations
are abiding by the cease-fire, pursuant to the Good
Friday Agreement. The BIA found that Malachy had failed
to establish that either the government of Northern
Ireland or the government of the United Kingdom would
torture him. The BIA held that the record does not
support the finding that Malachy would more likely than
not be detained and, if detained, that he would more
likely than not be tortured and, if tortured, that it
would more likely than not be with the acquiescence of
the government to such torture.
----

The only new evidence that Malachy presents in support
of his argument that he is more likely than not to be
tortured in Northern Ireland, is the District Court
opinion regarding his son, Mark. See McAllister v.
Ashcroft, No. 04-0181 (D.N.J. July 21, 2004). Our
review, however, is limited to the administrative record
of this case. See 8 U.S.C. § 1252(b)(4)(A). The District
Court opinion that Malachy asks us to consider is not
part of the administrative record here and is therefore
beyond the scope of our review. Florida Power & Light
Co. v. Lorion, 470 U.S. 729, 743 (1985). Based on the
evidence in the administrative record and because
Malachy has failed to introduce any new evidence that we
may consider, we are not compelled to come to a
conclusion that is contrary to that of the BIA. We will
affirm the BIA’s holding that Malachy failed to
establish a prima facie case for deferral of removal.13

----
approved the agreement.

We also note that Malachy’s claim is that he will be 13
tortured if he is returned to Northern Ireland. Malachy,
however, is being removed to the United Kingdom. As the
federal regulations make clear, “[e]vidence that the
applicant could relocate to a part of the country of
removal where he or she is not likely to be tortured”
must be considered. We see no reason why Malachy and his
family may choose not to return to Northern Ireland but
to go instead to some other part of the United Kingdom.
----


E. Motion to Remand

Finally, Malachy asserts that the BIA erred when it
denied his Motion to Remand for a new hearing on his
request for deferral of removal. He argues that he is
able to present new evidence that challenges the
evidence on which the BIA relied.

In this case, the BIA determined that Malachy had failed
to establish a prima facie case for deferral of removal.
The BIA recognized that Malachy presented new evidence
but held that the evidence was insufficient to overcome
the BIA’s conclusion concerning conditions in Northern
Ireland. The BIA stated that a showing of past collusion
between the British government and loyalist forces in
Northern Ireland does not demonstrate that such
collusion still exists or that there is an on-going
threat to Malachy’s safety. The BIA’s reasoning in this
regard is neither arbitrary or capricious. We,
therefore, hold that the BIA did not abuse its
discretion when it denied Malachy’s motion.

VI. Conclusion

For the reasons stated above, we will deny Malachy
McAllister’s petition to review the BIA’s determination
that Malachy is removable for having engaged in
terrorist activities and to review BIA’s denial of
asylum, withholding of removal, deferral of removal, and
remand.

We will dismiss the petitions for review of Sarah, Paul
Gary, Nicola, and Sean McAllister for lack of
jurisdiction.

Barry, Circuit Judge, concurring

I refuse to believe that “Give me your tired, your poor,
your huddled masses yearning to breathe free . . .” is
now an empty entreaty. But if it is, shame on us.

I concede. I cannot find a way to keep the McAllisters
in this country, and I have surely tried. But the laws
Congress has enacted, particularly those enacted in the
wake of the September 11th horror, are bullet-proof,
designed, as they should be, to combat terrorism. The
problem here, though, is that Congress’s definition of
“terrorist activity” sweeps in not only the big guy, but
also the little guy who poses no risk to anyone. It
sweeps in Malachy McAllister.

Malachy’s children, Sean and Nicola, are swept in, too,
albeit in a very different way, as victims of the
“gotcha” defense – they presented too little, too late,
after their mother, Sarah, died of cancer a mere six
weeks after diagnosis and her successful asylum
application, on which they had been dependent, became
moot. The Immigration Judge had granted asylum to Sarah
and her children in a sixty-five page opinion issued
after twelve trial days during which he heard sixteen
witnesses, one of the most impressive opinions I have
read in my years on the federal bench. He found such
“overwhelming evidence of severe past persecution”
suffered by Sarah because of her religion, her political
opinion, and because she was Malachy’s wife, that,
without more, she and her children should not be forced
to go back to the United Kingdom.

But, in a mere four pages, the Board of Immigration
Appeals threw out that grant of asylum, concluding with
utterly no discussion that no event or combination of
events rose to the level of past persecution and that,
regardless, there was little chance of future
persecution in the United Kingdom. I simply cannot
understand how the Board can have given such short
shrift to the Immigration Judge’s extensive compilation
and discussion of the innumerable acts of persecution,
including “the most striking and blatant act” that
occurred on a Sunday evening in 1985 when twelve-year-
old Paul, two-year-old Nicola, and one-year-old Sean
survived twenty-six shots fired into their home by
masked gunmen “intending to kill the entire family.”
Nevertheless, because the children had to file
individual applications upon their mother’s death,
applications that were denied and then appealed to us
two weeks too late, we have no power to stop their
return to a country they left when they were little more
than babies. Gotcha.

Malachy, a Nationalist Catholic, concededly committed
two criminal acts in Belfast twenty-five years ago, and
so he has been branded guilty of “terrorist activity.”
Those were terrible days which saw, among other horrors,
rioting, the burning of vehicles, the demolition of
buildings, and the harassment of Catholic children
playing and walking to school. It was a time of violent
political conflict. But that was then. No one now
suggests that Malachy poses a threat to anyone, much
less to our national security, but this is a fact that
Congress does not permit us to consider.

Additionally, I cannot help but observe that Malachy’s
acts, and the ensuing conviction on which the findings
of removability and ineligibility for asylum or any
other relief was based, bear no relation to any common-
sense understanding of what “terrorist activity” really
is or should be. Because, however, Congress has defined
“terrorist activity” and “engage in terrorist activity”
so broadly, it is game, set, and match. Lest anyone
question how broad those definitions are, I offer this:
to assist a suicide by knowingly providing the weapon
used would be to “engage in terrorist activity,” as
would swinging a baseball bat at someone during a bar-
room brawl, as would teenage gang members planning to go
after a rival gang and use their knives if necessary.

Worse yet, we are prohibited from considering not only
the man Malachy is today, but the circumstances
surrounding his commission of those acts twenty-five
years ago invoked now to deny him relief – the eight
hundred years of history that led Malachy to fight with
his people to remove British rule, and the persecution
inflicted by that rule on Northern Ireland and on
Malachy and his family. “The Troubles,” the Immigration
Judge found, touched each of the McAllisters’ lives. In
what ways, and how deeply? Again, we cannot inquire.

It simply should not be that, particularly in
circumstances such as those we now have before us, the
individual and his individuality are largely, if not
entirely, irrelevant, lost in a sea of dispositive
definitions and harsh and complex laws. And we cannot be
the country we should be if, because of the tragic
events of September 11th, we knee-jerk remove decent men
and women merely because they may have erred at one
point in their lives. We should look a little closer; we
should care a little more. I would ask – no, I would
implore – the Attorney General to exercise his
discretion and permit this deserving family to stay.


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