Interim Decision #2831 

MATTER OF MCMULLEN 

In Deportation Proceedings 

A-23054818 

Decided by Board October 1, 1980 

(1) Unlike asylum, which is discretionary under the Refugee Act of 1980, relief under 

section 243(h), as amended by that Act, is mandatory for an eligible alien. 

(2) Those cases which hold that applications for withholding of deportation and/or 

asylum can be made where persecution by a nongovernmental individual or organization is feared, if a showing is made that the government in power is unwilling or 

unable to protect the alien, are as applicable under the Refugee Act of 1980 as they 

were under prior law. 

(3) The legislative history of the Refugee Act of 1980 indicates that Congress' intent in 

substituting "life or freedom would be threatened" for "persecution" in section 248(h) 

of the Immigration and Nationality Aat, 8 U.S.C. 1253(h), Was simply to adopt the 

United Nations 1951 Convention and 1967 Protocol Relating to the Status of Refugees, 

not to broaden the scope of section 243(h). 

(4) Newipaper and magazine articles submitted by the respondent regarding conditions 

in Ireland and Great Britain, which are of a general nature and which do not relate to 

the respondent specifically, will be accorded little evidentiary value, as this evidence is 

not probative on the issue of this particular alien being subject to persecution if 

deported to Ireland. 

5) Evidence submitted by the respondent to establish persecution claim, while showing 

the difficulty of controlling terrorism in Ireland, does not show, 1) that the Irish 

government would he unable, if necessary, to protect the respondent, a defected 

member, from the Provisional Irish Republican Army, or, 2) that the government of 

Ireland would persecute him. 

(6) Decisions resulting from extradition proceedings are not entitled to res indicate 

effect in later proceedings, and Board is thus not bound by United States Magistrate's 

determination, in extradition case, that respondent's crimes were political in nature. 

CHARGE: 

Order: Act of 1952—Sec. 241(a)(1) [8 U.S.C. 1251(a)(1))—Excludable at entry under 

sec. 212(a)(19) [8 U.S.C. 1182(a)(19)]—obtained visa or other 

documentation by fraud 

Sec. 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at entry under 

sec. 212(a)(26) [8 U.S.C. 1182(a)(26))—no valid nonimmigrant 

visa 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Michael Maggio, Esquire Gerald S. Hurwitz 

Goren & Maggio Appellate Trial Attorney 

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Interim Decision #2831 

1801 Columbia Road, N.W. 

Suite 100 Brian H. Simpson 

Washington, D.C. 20009 Trial Attorney 

Lynn Sonfield, Esquire 

Nancy Howard, Esquire 

San Francisco Neighborhood 

Legal Assistance Foundation 

250 Columbus Avenue, Suite 200 

San Francisco, California 44133 

By: Milhollan, Chairman; Maniatis, Applentan, and Maguire, Board Members 

In a decision dated January 10, 1980, an immigration judge found the 

respondent deportable, but granted his applications for political 

asylum and for withholding of deportation. The Immigration and 

Naturalization Service appealed. Oral argument was heard before the 

Board on June 19, 1980. The appeal will be sustained. 

The respondent, 32 years old, was born in Northern Ireland, and 

through this place of birth is a citizen of Great Britain. He also claims 

Irish citizenship through his grandmother's birth in Northern Ireland 

prior to 1921 (Tr. at 57). He last entered the United States on April 29, 

1978, as a nonimmigrant visitor, using a passport bearing the name of 

Kevin O'Shaughnessy. An Order to Show Cause was issued against 

him on May 19, 1978, charging him with deportability under section 

241(a)(1) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(1), 

as an alien excludable at entry under section 212(a)(19), 8 U.S.C. 

1182(a)(19), for having procured a visa by fraud or willful misrepresentation, and as an alien excludable at entry under section 

212(a)(26), as a nonimmigrant not in possession of a valid nonimmigrant visa. 

At a deportation hearing begun on May 22, 1978, and completed on 

October 28, 1979, the respondent admitted the allegations in the Order 

to Show Cause, and conceded deportability. He alleged, however, that 

he was formerly a member of the Provisional Irish Republican Army 

(hereinafter the PIRA), that in 1977 he refused to participate in a 

PIRA scheme to kidnap an American for ransom, and that, due to this 

refusal, he had been tried by the PIRA, and sentenced to death. He 

claims that if he is forced to return to Ireland, he will be killed by the 

PIRA, and the Irish government will be unable to prevent it. He also 

claims that he would be subject to persecution by the Irish government. The immigration judge did not address the claim of persecution 

by the government, but he accepted the claims of persecution by the 

PIRA. After some discussion, he found the respondent eligible for 

asylum and withholding, and, determining that he could not, under his 

interpretation of Matter of Thenar, 14 I&N Dee_ 310 (BIA 1973), deny 
Interim Decision #2831 

the applications on discretionary grounds, asylum and withholding 

were granted. We do not agree that the respondent has established 

that the government in Ireland will be unable or unwilling to protect 

the respondent from the PIRA. Nor do we believe that the respondent 

will suffer harm at the hands of the Irish government itself. The 

immigration judge's decision will accordingly be reversed. 

An applicant for withholding of deportation under section 243(h) of 

the Act, 8 U.S.C. 1253(h), must show that, if deported, he would be 

subject to persecution based on his race, religion, nationality, membership in a particular social group, or political opinion. Section 243(h) of 

the Act; as amended by section 203(e) of the Refugee Act of 1980. To 

meet his burden of proof, an alien must demonstrate a clear 

probability that he will be persecuted if returned to his country. Cheng 

Kai Fu v. INS, 386 F.2d 750 (2 Cir. 1967, cert. denied 390 U.S. 1003 

(1968). Under the Refugee Act, 243(h) relief is Mandatory, not discretionary, once eligibility has been shown, unless an alien comes within 

one of the four exclusions now set forth in section 243(h). 1Similarly, to 

qualify for asylum, an alien must show that he would be persecuted for 

one or more of the same five reasons mentioned above in describing 

section 243(h). See also 8 C.F.R. 208.5 regarding the burden of proof in 

asylum cases (effective June 1, 1980). A grant of asylum is discretionary under the Refugee Act, however. See section 101(a)(42) of the Act, 8 

U.S.C. 1101(a)(42) (Section 201(a) of the Refugee Act of 1980); section 

208 of the Refugee Act... 2 

Although in general 243(h) relief and asylum contemplate persecution of an alien by the government in the country to which he is 

returnable, the cases have held that a 243(h) claim can under certain 

circumstances be made where an alien claims that he will be persecuted not by a foreign government, but by an individual or an 

organization. In order to prevail with such a claim, there must be a 

showing that the government in power is either unable or unwilling to 

Subparagraph (2) of section 243(h) provides that relief under that section 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 a 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 

(14 there are reasonable grounds for regarding the alien as a danger to the security 

of the United States. 

2We note that under present regulations the exceptions to 243(h) apply also to 

applicants for asylum. See 8 C.F.R. 208.7(f)(1)(iii), (iv), (v), (vi) (effective June 1, 1980). 

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Interim Decision #2831 

protect the alien. Rosa v. INS, 440 F.2d 100 (1 Cir. 1971); Matter of 

Pierre, 15 I&N Dec. 461 (BIA 1975); Matter of Tan, 12 I&N Dec. 564 

(BIA 1967). While these cases were decided prior to the enactment of 

the Refugee Act of 1980, we believe they are applicable to an alien 

seeking 243(h) relief, or asylum, under the new Act. 

The current language of 243(h) is broader than it was previously, in 

that it now speaks not specifically of "persecution," as did the old 

243(h), but rather provides for withholding of deportation if the Attorney General determines that an "alien's life or freedom would be 

threatened" in a country to which he may be sent. There is nothing in 

the legislative history of the Refugee Act, however, to indicate that the 

new, broader language of 243(h) was intended to change the application of the section so as to provide relief to those who fear harm from a 

nongovernmental group or individual. Rather, the legislative history 

reflects that Congress' intent in substituting "life or freedom would be 

threatened" for "persecution," was simply to adopt, almost verbatim, 

the United Nations 1951 Convention and 1967 Protocol Relating to the 

Status of Refugees (United Nations Treaty Series, Vol. 189, p. 37 and 

Vol. 606, p. 267. See Article 1, section A(2) and F, and Article 33 of the 

Convention), and to insure that withholding under the Act be construed consistently with the Protocol. See S. Rep. No. 96-256, 96th 

Cong., 2nd Sess. 17, reprinted in April 1980, U.S. Code Gong. & Ad. 

News 531; House Conference Rep. 96-781, Joint Explanatory Statement of the Committee of Conference, 96th Cong., 2nd Bess. 20, 

reprinted in April 1980, U.S. Code Ccmg. & Ad. News 535. We will 

therefore require under the new Act, as we did under the old law, that 

an alien must show either persecution by the government in the 

country to which he is returnable, or persecution at the hands of an 

organization or person from which the government cannot or will not 

protect the alien. 

In the present case, the immigration judge stated that, "I am satisfied from the evidence presented that the Government of the Republic 

of Ireland is unable to control the activities of the PIRA and that if the 

respondent were to be returned to that country he would suffer persecution within the meaning of the Convention, Protocol and section 

243(h)." In making this determination, the immigration judge did not 

discuss the evidence in any meaningful manner; indeed he did not 

specifically discuss any evidence at all, so we cannot tell on what basis 

the immigration judge made his decision. Our own review of the 

evidence, however, does not persuade us that the respondent is likely to 

suffer persecution if returned to Ireland. 

The respondent has submitted voluminous documents in support of 

his persecution claim. Most of the documents are of a general nature, 

describing such things as Irish history and the workings of the IRA 
Interim Decision #2831 

and PIRA. Descriptions of numerous killings and violent incidents 

relating to the Irish conflict are given. There are also Amnesty International reports regarding allegations of brutality by the Irish 

police, and other documents relating to this alleged brutality. The vast 

majority of the documents relate either to conditions in Ireland and 

Northern Ireland generally, or to persons other than the respondent. 

Four documents, however, do relate specifically to the respondent. Two 

of these are articles from newspapers (the Irish, Times on August 24, 

1978, and the San Francisco Sunday Examiner & Chronicle on March 

28, 1979) reporting on the respondent's extradition proceedings. Both 

articles refer briefly to the respondent's belief that the PIRA has a 

"contract" out on him to kill him. A third article, from the August 31, 

1978, Hibernia Review, briefly describes the respondent's life, and 

indicates that he may have something to fear from the IRA. The final 

article, from the September 24, 1978, San Francisco Sunday Examiner 

& Chronicle, discusses the respondent's involvement in the 1972 bombing of a British army 'barracks and his subsequent break with the 

PIRA, but quotes several sources as saying that the IRA no longer has 

any interest in the respondent (these latter two articles speak of the 

respondent's involvement in the IRA, though in fact it was the PIRA in 

which the respondent was involved). 

We do not give much weight to those articles submitted by the 

respondent which are of a general nature and do not in any way relate 

to the respondent himself, Such evidence is not probative on the issue 

of the likelihood of this alien being subject to persecution if deported to 

Ireland. See generally Fleurinor v. INS, 585 F.2d 129 (5 Cir. 1978); 

Matter of Chumpitazi, 16 I&N Dec. 629 (BIA 1978). Those articles 

which do relate to the respondent, together with his own statement 

and those of his mother, sister, and brother, indicate that the respondent may be wanted, or may at one time have been wanted, by the PIRA. 

However, even accepting this possibility as fact, no adequate showing 

has been made that the government in Ireland cannot control the 

PIRA or protect the respondent from that organization. We recognize 

that the PIRA and the IRA have engaged in numerous acts of violence 

in recent years, and that the Irish government has not been able to 

wholly control this terrorism- However, the evidence presented by the 

respondent simply does not convince us that the respondent would be 

in imminent peril for his life or limb if returned to Ireland, and that 

the government there would be unable to protect him against harm 

from the PIRA. While the evidence submitted reflects the difficulty of 

controlling terrorism in Ireland, it does not show that the government 

there, which is a stable one, would not be able, if necessary, to protect 

the respondent. 

We turn next to the respondent's claim of persecution by the Irish 

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Interim Decision #2831 

government itself. The immigration judge specifically limited his decision to anticipated persecution by the PIRA. However, as certain of the 

documents submitted by the respondent relate to alleged mistreatment of detainees and prisoners, especially those suspected of terrorist 

activity, by the Irish police (the "Garda"), and as the respondent has 

alleged on appeal that he would be persecuted by the Garda due to his 

former membership in the PIRA, it is appropriate to address this issue 

here. 

We note at the outset that none of the evidence presented which 

relates to the actions of the Garda mentions the respondent specifically. Moreover, the evidence suggests that the Irish government has 

attempted to curb the abuses of the Garda. The respondent himself 

testified at his deportation hearing that when he was picked up and 

held by the Garda in 1974, he was not mistreated (Tr. at 47). He admits 

this again on appeal (respondent's brief at 15). However, the respondent argues that because he was a member of the PIRA and has 

knowledge of that organization, he will be questioned by the Garda if 

returned to Ireland. He further states that because of his fear of 

retaliation by the PIRA, he will refuse to give information to the 

Garda, as he did in 1974, and the Garda will therefore resort to 

physical and psychological coercion to force him to talk (brief at 17-18). 

These claims amount to no more than pure speculation. There is no 

evidence in the record, other than the respondent's own statements, to 

show that the Garda has any present interest in the respondent, or 

that, even if he were to be questioned, he would be mistreated or 

subject to undue coercion. The respondent has failed to meet his 

burden of establishing that he would be persecuted by the government 

of Ireland if deported to that country. 

Much of the immigration judge's decision, as well as much of the 

discussion on appeal (at oral argument and in the briefs presented), 

related to the issue of whether the crimes committed by the respond 

ent in Ireland were "political" crimes, and therefore not a bar to 

withholding of deportation or asylum.' Because we have determined 

that the respondent has not established that he would be persecuted 

within the meaning of the law, we need not reach the intriguing 

question of whether his crimes were of such a nature that they would 

not prevent him from obtaining the relief he now seeks. We will state 

in this regard, however, that we do not consider ourselves bound by the 

United States Magistrate's decision in extradition proceedings, in 

which he found that the crimes committed by the respondent were 

' The law has made provision for precluding those suspected or convicted of nonpolitical crimes from obtaining 245(h) relief or asylum. 

CA•, 
Interim Decision #2831 

political, and that they therefore barred his extradition.' 

Decisions resulting from extradition proceedings are not entitled to 

res judicata effect in later proceedings. Hooker v. .Klein, 573 F.2d 1360 

(9 Cir. 1978). See also Jitirad v. Fernandina, 526 F.2d 478 (2 Cit.. 1976). 

To begin with, the parties to the respondent's extradition case are not 

the same as the parties here, since the real party in interest in the 

extradition proceeding was the Republic of Ireland, not the United 

States, as it is in deportation proceedings. See Ornelas v. _Ruiz, 161 U.S. 

502 (1896); Cleugh, v. Strakosch,109 F.2d 330 (9 Cir. 1940). In order for 

res judicata to bar litigation of an issue in a subsequent proceeding, 

the two actions must involve the same parties (or those in privity with 

them). Hooker, supra; Commissiorter v. Summit, 333 U.S. 591 (1948); 

Pena-Cabanillas v. U05, 394 F.2d 785 (9 Cir. 1968). Moreover, the res 

judicata bar goes into effect only where a valid, final judgment has 

been rendered on the merits (Hooker, supra), and it is well established 

that decisions and orders regarding extraditability "embody no judgment on the guilt or innocence of the accused, but serve only to insure 

that his culpability will be determined in another ... forum." Aired, 

supra, at 482. While the function of a deportation proceeding also is not 

to decide an alien's guilt or innocence of a crime, those cases holding 

that extradition decisions do not bind judicial bodies in later criminal 

proceedings are as applicable to subsequent deportation proceedings 

as they are to subsequent court proceedings. The issues involved in a 

deportation hearing differ from those involved in an extradition case, 

and resolution of even a common issue in one proceeding is not binding 

in the other. This Board has noted that extradition and deportation 

proceedings are distinct and separate. See Matter of Perez-Jiminez, 10 

I&N Dec. 309 (BIA 1963). For these reasons, we do not consider ourselves in any way bound by the magistrate's decision denying extradition, and by his findings regarding the nature of the respondent's 

crimes. 

The record reveals some confusion as to the country of deportation, 

due in part, it appears, to the lengthy and drawn-out nature of the 

respondent's deportation hearing. See Tr. at 5, 8, 21-22, 58-60, 91-93. 

Despite some comments at the hearing to the contrary, the immigration judge in his decision stated that he had at the hearing designated 

only the Republic of Ireland; no mention was made in the decision of 

the possibility of deportation to Great Britain. On appeal, the respondent and the Service have gone to considerable trouble to support their 

The immigratinn judge at the hearing monessed his concern over the possibility that 

the magistrate's decision regarding the political nature of the respondent's crimes 

might be binding on this issue (Tr. at 32). In his decision, at p. 7, he stated that he agreed 

with the magistrate's conclusions on this issue, but did not say he considered himself 

bound by them_ 

CACI 
Interim Decision #2831 

respective arguments regarding the designation of countries of deportation. The Service argues that both the Republic of Ireland and 

Great Britain had to be designated, and should have been designated 

by the immigration judge. The respondent argues that it was proper 

for the immigration judge to designate only Ireland. We need not 

decide which of these positions is correct. However, as the respondent's 

persecution claims at the hearing related only to Ireland, in the event 

that deportation to that country cannot be effected, the Service may 

file a motion to reopen these proceedings for further designation of the 

place of deportation and related applications. 

ORDER: The appeal is sustained, and the respondent shall be 

deported to the Republic of Ireland.