b'Deportation Proceedings of Joseph Patrick Thomas Doherty\nT he A ttorney G eneral reversed the decision o f the Board o f Im m igration A ppeals that there was insuf\xc2\xad\nficient evidence that the deportation o f the respondent to the Republic o f Ireland w ould be preju d i\xc2\xad\ncial to the interests of the United States, and rem anded the case to the BIA for further proceedings.\n\nJune 9,1988\nIn re: Joseph Patrick Thomas Doherty (A26-185-231)\nIn D\n\ne p o r t a t io n\n\nP r o c e e d in g s\n\nUnder 8 U.S.C. \xc2\xa7 1253(a), an alien is to be deported to a country designated\nby the alien if that country is willing to accept him \xe2\x80\x9cunless the Attorney General,\nin his discretion, concludes that deportation to such country would be prejudicial\nto the interests of the United States.\xe2\x80\x9d In this case, the Board of Immigration Ap\xc2\xad\npeals (\xe2\x80\x9cBIA\xe2\x80\x9d) ruled that there was insufficient evidence that the deportation of\nrespondent to the Republic of Ireland (\xe2\x80\x9cIreland\xe2\x80\x9d) was prejudicial to the interests\nof the United States and accordingly rejected the request of the Immigration and\nNaturalization Service (\xe2\x80\x9cINS\xe2\x80\x9d) that respondent be deported to the United King\xc2\xad\ndom of Great Britain and Northern Ireland (\xe2\x80\x9cthe United Kingdom\xe2\x80\x9d). Pursuant to\n8 C.F.R. \xc2\xa7 3.1 (h)( 1)(iii), I granted the INS\xe2\x80\x99s request to review the decision of the\nBIA. For the reasons set forth below, I disapprove the BIA \xe2\x80\x99s decision and con\xc2\xad\nclude that it would be prejudicial to the interests of the United States for respon\xc2\xad\ndent to be deported to Ireland and that he should be deported instead to the United\nKingdom.\nI.\n\nRespondent is a citizen of both Ireland and the United Kingdom. He was con\xc2\xad\nvicted in the United Kingdom in 1981 of murder, attempted murder, and pos\xc2\xad\nsession of firearms and ammunition with intent to endanger life or cause serious\ninjury to property. These charges arose out of an incident in which respondent\nand other members of the Provisional Irish Republic Army (\xe2\x80\x9cPIRA\xe2\x80\x9d) ambushed\na British army convoy. One of the soldiers was killed during the attack. Prior to\nhis sentencing, respondent escaped from prison and fled to Ireland and then to\nthe United States, which he entered illegally in 1982.\nRespondent was arrested by the INS in 1983. The United States, acting on be\xc2\xad\nhalf of the United Kingdom, instituted proceedings to extradite him to that coun\xc2\xad\n1\n\n\x0ctry. The district court, however, held that his actions involving the ambush of the\nBritish army patrol and escape from prison fell within the political offenses ex\xc2\xad\nception to the extradition treaty between the United States and England, and thus\ndenied the request for extradition. In Re Doherty, 599 F. Supp. 270 (S.D.N.Y.\n1984).\nRespondent\xe2\x80\x99s deportation proceeding had been stayed during the pendency of\nthe extradition litigation. When it resumed, respondent conceded his deportabil\xc2\xad\nity at a hearing before the immigration judge on the basis of having entered with\xc2\xad\nout valid immigration documents, 8 U.S.C. \xc2\xa7\xc2\xa7 1251(a)(1), 1182(a)(19), (20), and\ndesignated Ireland as the country to which he wished to be deported.1 INS ob\xc2\xad\njected to Ireland as the country of deportation on the ground that deportation there\nwould be prejudicial to the interests of the United States, and contended that he\nshould instead be deported to the United Kingdom. In support of this contention\nit supplied the immigration judge with newspaper articles and speeches on the\ngeneral issue of terrorism. Although INS was given a continuance of one week\nto produce further evidence to support its contention, it failed to submit any ad\xc2\xad\nditional evidence.\nOn the basis of this record, the immigration judge held that respondent should\nbe deported to the country he had designated, Ireland, as INS had failed to pro\xc2\xad\nduce any evidence that deportation to Ireland would be prejudicial to the inter\xc2\xad\nests of the United States. INS appealed this decision to the BIA, arguing that re\xc2\xad\nspondent\xe2\x80\x99s deportation to Ireland would be prejudicial to the interests of the\nUnited States. On March 11, 1987, the BIA affirmed the decision of the immi\xc2\xad\ngration judge, stating:\n[W]e are unwilling to find that deportation to the Republic of Ire\xc2\xad\nland would be prejudicial to the interests of the United States in\nthe absence of clear evidence to support that conclusion. The Ser\xc2\xad\nvice was granted a continuance to allow it to secure evidence of\nsuch interest, but it has produced none.\nBIA Decision o f March 11, 1987 at 5 (\xe2\x80\x9cMarch Decision\xe2\x80\x9d).\nWhen it issued this opinion, the BIA was unaware that on March 4 INS had\nfiled a Motion to Supplement the Record or to Remand for Further Proceedings\nBefore the Immigration Judge (\xe2\x80\x9cMotion\xe2\x80\x9d).2 The Motion contained an affidavit\nfrom Associate Attorney General Trott, signed on February 19,1987, stating that\nin his judgment the deportation o f respondent to Ireland would be prejudicial to\nthe interests of the United States.\n1 INS had added several other grounds fo r deportation, 8 U.S.C. \xc2\xa7 1182(a)(9), (10), (27), (28)(F)(ii). These\ncharges deal with criminal conduct, either actual or potential. INS requested that it be allowed to prove these addi\xc2\xad\ntional charges. The immigration judge declined, holding that since respondent had conceded deportability, there\nwas no point in proving that he was deportable on additional grounds. This holding was affirmed by the BIA BIA\nD ecision o f M arch 11, 1987 at 3.\n2 INS had filed the M otion with the BIA on March 5, but it was apparently lost or misfiled due to administra\xc2\xad\ntive error. BIA Decision o f M ay 22, 1987 at 3.\n\n2\n\n\x0cAfter the BIA had issued its March Decision, the INS successfully moved the\nBIA to reopen the appeal for consideration of its Motion. The BIA declined, how\xc2\xad\never, to remand the case to the immigration judge, holding that the affidavit did\nnot constitute previously unavailable evidence as required by BIA\xe2\x80\x99s regulations,\n8 C.F.R. \xc2\xa7\xc2\xa7 3.2, 3.8. BIA Decision of May 22, 1987 at 3-5. In addition, the BIA\nstated that \xe2\x80\x9cthe affidavit does not purport to be based upon evidence that re\xc2\xad\nspondent\xe2\x80\x99s deportation to the Republic of Ireland will be prejudicial to the United\nStates\xe2\x80\x99 interests. Rather, it appears to be based only upon the . . . logical infer\xc2\xad\nence\xe2\x80\x9d that our allies would view respondent\xe2\x80\x99s deportation to Ireland as shielding\na terrorist from punishment. Id. at 5.3\n\nII.\nRespondent was notified that the Attorney General would consider only\nwhether respondent\xe2\x80\x99s deportation to Ireland would be prejudicial to the interests\nof the United States and whether, instead, he should be deported to the United\nKingdom. Nonetheless, in his memorandum, respondent raises the issue of the\nAttorney General\xe2\x80\x99s authority to review the BIA\xe2\x80\x99s decision. Respondent appears\nto contend that the Attorney General lacks the power to overturn the BIA\xe2\x80\x99s de\xc2\xad\ncision, particularly if he were to do so after having considered Mr. Trott\xe2\x80\x99s affi\xc2\xad\ndavit. Given that respondent has raised the issue, it is appropriate, before turning\nto the merits, to address the scope of the Attorney General\xe2\x80\x99s decisionmaking au\xc2\xad\nthority in this case.\nSection 1253(a), like most other provisions of the immigration law, vests the\npower to make determinations in the Attorney General personally.4 That power\nincludes the power to receive evidence, make findings of fact, and decide issues\nof law. The Attorney General has delegated his decisionmaking authority, in the\nfirst instance, to the BIA and the immigration judges.5 They exercise \xe2\x80\x9csuch dis\xc2\xad\ncretion and authority conferred upon the Attorney General by [law] as is appro\xc2\xad\npriate and necessary for the disposition\xe2\x80\x9d of the case. 8 C.F.R. \xc2\xa7\xc2\xa73. l(d)( 1), 236.1.\n\n3 Counsel for respondent was notified that the Attorney General would be reviewing the decision of the BIA,\nand would determine whether the deportation of respondent to Ireland would be prejudicial to the interests o f the\nUnited States and whether, instead, he should be deported to the United Kingdom. Counsel for respondent was\ngiven the opportunity to submit a memorandum addressing the question under review Counsel for respondent was\nalso informed that the Attorney General would be considering Mr. Trott\xe2\x80\x99s affidavit in the course o f his review of\nthe BIA\xe2\x80\x99s decision, and thus that respondent might wish to respond to the facts and reasoning contained in that af\xc2\xad\nfidavit. Counsel for respondent filed a memorandum, as well as a shorter supplemental letter in response to a sub\xc2\xad\nsequent letter from INS setting out its views on the case. In my review, I have considered these filings made by\ncounsel for respondent and INS, the record o f the proceedings below, Mr. Trott\xe2\x80\x99s affidavit, the decision in the ex\xc2\xad\ntradition proceedings cited in Mr. T rott\xe2\x80\x99s affidavit, and a letter from Michael M. Armacost, Undersecretary for Po\xc2\xad\nlitical Affairs at the Department o f State, setting forth the Department o f State\xe2\x80\x99s views regarding the interests of\nthe United States in this case.\n4 See generally 8 U S.C \xc2\xa7 1103.\n5 The BIA is entirely a creation of the Attorney General. See Greene v INS, 313 F.2d 148 (9th Cir.), cert, d e\xc2\xad\nnied, 374 U S. 828 (1963). Immigration judges receive some o f their powers and duties directly from Congress, 8\nU.S C \xc2\xa7 1252(b), and some by delegation from the Attorney General. See Lopez-Telles v INS, 564 F.2d 1302 (9th\nCir 1977).\n\n3\n\n\x0cThus, to the extent that the immigration judges or the BIA have authority to make\ndeterminations under section 1253(a), including the authority to receive evidence\nand make findings of fact, it is because they are exercising, by delegation, the\nAttorney General\xe2\x80\x99s authority.\nAlthough he has delegated his decisionmaking authority in the first instance\nto the immigration judges and the BIA, the Attorney General has retained the au\xc2\xad\nthority to review the decisions of the BIA pursuant to 8 C.F.R. \xc2\xa7 3.1(h), and thus\nhas retained final decisionmaking authority. Id. \xc2\xa7 3.1(d)(2). The regulations set\xc2\xad\nting out his review authority do not expressly or by implication circumscribe the\nAttorney General\xe2\x80\x99s statutory decisionmaking authority. Thus, when the Attorney\nGeneral reviews a case pursuant to 8 C.F.R. \xc2\xa7 3.1(h), he retains full authority to\nreceive additional evidence and to make de novo factual determinations.6\nAccordingly, there can be no doubt that the Attorney General has authority to\nconsider evidence such as Mr. T rott\xe2\x80\x99s affidavit even though that evidence was\nnot considered by the BIA or the immigration judge. Nor can there be any doubt\nthat the Attorney General has authority to reach a decision different from that of\nthe BIA. In any event, in this case respondent was notified that the Attorney Gen\xc2\xad\neral would consider Mr. Trott\xe2\x80\x99s affidavit and was given an opportunity to respond\non the merits to the facts and reasoning contained in it, an opportunity which re\xc2\xad\nspondent has exercised.7\nIII.\nRespondent\xe2\x80\x99s actions and his criminal convictions were established by the dis\xc2\xad\ntrict court in the extradition proceeding. In Re Doherty, 599 F. Supp. 270\n(S.D.N.Y. 1984). Respondent did not contest the factual findings of the court; in\xc2\xad\ndeed, he testified at length as to the events giving rise to his criminal conviction.\nId. at 272. Respondent\xe2\x80\x99s testimony and his criminal convictions as established in\nthe extradition proceeding are summarized in the opinion of the district court:\n6 M oreover, despite the contention of respondent, the regulations governing the BIA are not applicable to the\nA ttorney General. Thus, even after having rendered a decision, if the Attorney General was presented with a mo\xc2\xad\ntion to reconsider, or a m otion to remand as th e BIA was, he would not be governed by 8 C.F.R. \xc2\xa7\xc2\xa7 3.2 and 3.8 in\ndeciding that motion.\n7 On April 21,1988, respondent filed a m otion requesting that the Attorney General, and any individual to whom\nhe m ight delegate decisionmaking authority, be rescued from an adjudicative role in these proceedings. Respon\xc2\xad\ndent does not allege any personal bias as the basis for this motion. Rather, in essence the motion is based on the al*\nlegation that the history o f the extradition litigation and these deportation proceedings demonstrates that the Jus\xc2\xad\ntice Department is persecuting respondent by advancing improper legal theories and denying him procedural nghts.\nThis does not appear to be, in fact, a "recusal\xe2\x80\x9d motion; rather, the motion appears to me to be a repetition of legal\narguments that respondent has made in these proceedings and elsewhere.\nIn any event, respondent\xe2\x80\x99s allegation is without foundation. The Justice Department has in no way perse\xc2\xad\ncuted respondent by advancing improper legal theories or denying him procedural rights. In this connection, I would\nnote that, in an interim review o f these proceedings, the United States Court o f Appeals for the Second Circuit has\nalready rejected a number o f the claims that respondent makes in this motion In particular, it held that it was \xe2\x80\x9cabun\xc2\xad\ndantly clear\'\xe2\x80\x99 that the INS had a reasonable basis for appealing the adverse decision o f the immigration judge, and\nit also rejected the argument that the determination o f the district court that respondent was not extraditable in some\nway precluded his deportation Doherty v. M eese, 808 F.2d 9 3 8 ,942,944 (2d Cir. 1986). Accordingly, respondent\'s\nmotion is denied.\n\n4\n\n\x0cRespondent Doherty was a member of the provisional Irish Re\xc2\xad\npublican Army (\xe2\x80\x9cPIRA\xe2\x80\x9d). On May 2,1980, at the direction of the\nIRA, Doherty and three others embarked upon an operation \xe2\x80\x9cto\nengage and attack\xe2\x80\x9d a convoy of British soldiers.\nDoherty testified that he and his group took over a house at 371\nAntrim Road in Belfast, and awaited a British Army convoy. Some\nthree or four hours later, a car stopped in front of 371 Antrim Road\nand five men carrying machine guns emerged. These men, mem\xc2\xad\nbers of the Special Air Service of the British Army (\xe2\x80\x9cSAS\xe2\x80\x9d), and\nDoherty\xe2\x80\x99s group fired shots at each other.\nIn the exchange of gunfire Captain Herbert Richard Westmacott, a British army captain, was shot and killed. Doherty was ar\xc2\xad\nrested, charged with the murder, among other offenses, and held\nin the Crumlin Road prison pending trial. On June 10,1981, after\nthe trial was completed but before any decision by the Court, Do\xc2\xad\nherty escaped from the prison along with seven others. He was\nconvicted in absentia on June 12, 1981 of murder, attempted mur\xc2\xad\nder, illegal possession of firearms and ammunition, and belong\xc2\xad\ning to the Irish Republican Army, a proscribed organization.\n599 F. Supp. at 272 (citations to transcript omitted).8\nThe facts established in the extradition proceedings show that respondent killed\na member of the British army. While the victim was a soldier rather than a civil\xc2\xad\nian, the use of violence against a democratic society is unjustified irrespective of\nthe identity of the victim. It is unjustified for the fundamental reason that in a de\xc2\xad\nmocratic society the political system is available for peaceful redress of griev\xc2\xad\nances. Given the availability of peaceful alternatives, there is no legitimate rea\xc2\xad\nson to resort to violence against any person whether or not that person has an\nofficial status within the State.9\nThe availability of such alternatives cannot be questioned here. While in some\ncases the question whether a society is democratic would be a difficult one, it is\nclear that the United Kingdom (of which Northern Ireland is a part) is a democ\xc2\xad\nratic society. Its citizens have fundamental political rights and are fully able to\npursue their political goals through the electoral process.\n\n8 Mr. T ro tfs affidavit states that respondent has committed certain additional crimes. Respondent states that he\nhas not committed such crimes. I do not consider it necessary to resolve this factual dispute The record o f the ex \xc2\xad\ntradition proceeding establishes the fact that respondent has committed serious crimes. I base my decision on the\nfacts established in the extradition proceedings, and do not consider it relevant whether or not respondent has com \xc2\xad\nmitted additional crimes.\n9 This, o f course, is not to say that the United States may not also condemn acts of violence in a non-democratic state. In particular, it is the policy o f the United States to condemn acts of violence directed against non-com\xc2\xad\nbatants even by those who are otherwise legitimately seeking to oppose a non-democratic government.\n\n5\n\n\x0cIt is the policy of the United States that those who commit acts of violence\nagainst a democratic state should receive prompt and lawful punishment. The\nfactual premise of Mr. Trott\xe2\x80\x99s affidavit is that this policy would be prejudiced if\nrespondent were deported to Ireland because, while he could be prosecuted there\nfor any crimes he committed in connection with his escape from prison, he could\nnot be prosecuted there or extradited to the United Kingdom for murder or the\nother offenses he committed in connection with the ambush of the British army\npatrol. Trott affidavit at 4\xe2\x80\x945,1111 9, 11. This factual premise is challenged by re\xc2\xad\nspondent, who asserts that he would be subject to extradition from Ireland to the\nUnited Kingdom, apparently after having served any sentence Ireland would im\xc2\xad\npose with respect to his escape from prison in the United Kingdom. Brief of Respondent-Appellee Joseph Patrick Thomas Doherty To The Attorney General at\n24-25 (Jan. 8, 1988).\nRespondent apparently bases his statement that he would be subject to extra\xc2\xad\ndition from Ireland to the United Kingdom on the Extradition Act recently pro\xc2\xad\nmulgated in Ireland.10 Assuming for purposes of this decision that Irish law sup\xc2\xad\nports respondent\xe2\x80\x99s contention, it would nonetheless be prejudicial to the interests\nof the United States for respondent to be deported to Ireland rather than the United\nKingdom for two independent reasons. First, respondent has committed serious\ncrimes in the United Kingdom and has received a prison sentence in the United\nKingdom. As indicated above, it is the policy of the United States that those who\ncommit acts of violence against a democratic state should receive swift and law\xc2\xad\nful punishment, and it is thus in the interests of the United States that respondent\nserve his sentence in the United Kingdom. Deporting respondent to Ireland would\nrequire the United Kingdom to invoke Irish law to secure respondent\xe2\x80\x99s return to\nthe United Kingdom. It is in our interest that he be sent directly to the United\nKingdom instead.\nSecond, Michael H. Armacost, the Undersecretary for Political Affairs at the\nDepartment of State, has communicated to me the views of the Department of State\nthat a decision to deport respondent to Ireland rather than the United Kingdom\nwould be injurious to our relations with the United Kingdom. Mr. Armacost states:\nWe note in particular that the United Kingdom is the only State\nwhich has requested Doherty\xe2\x80\x99s extradition from the U.S., and that\nthe denial of that request by our courts met with great disap\xc2\xad\npointment. Additionally, Her M ajesty\xe2\x80\x99s Government has repeat\xc2\xad\nedly and vigorously expressed its desire that the United States ef\xc2\xad\nfect Doherty\xe2\x80\x99s deportation to the United Kingdom; to our\nknowledge, no other State has made a competing request. There\xc2\xad\nfore, in our view, the government and people of the United King\xc2\xad\n10\nI note that the affidavit o f counsel attached to the Motion o f Respondent to Reopen or Reconsider (Dec. 3,\n1987), which, as discussed in the next section o f this opinion, was referred to me by the BIA, states that the Extra\xc2\xad\ndition (European Convention on the Suppression o f Terrorism) Act went into effect in Ireland on December 1,1987,\nand that it changed the Irish law governing deportation such that respondent would now be subject to extradition\nfrom Ireland to the United Kingdom. Affidavit o f Mary Boresz Pike (Dec. 3, 1987) at UU 25-27\n\n6\n\n\x0cdom would not welcome a decision by the Attorney General to\ndeport Doherty elsewhere.\nMoreover, the United Kingdom is the United States\xe2\x80\x99 closest\npartner in our counter-terrorism efforts. Failure to return Doherty\nto the United Kingdom could undermine HMG[\xe2\x80\x98s] confidence in\nthe ability of the United States to cooperate in counter-terrorism\nefforts of special bilateral concern.\nFinally, given the strength of British views on this issue, we be\xc2\xad\nlieve that an Executive Branch determination not to deport Do\xc2\xad\nherty to the U.K. might well prejudice broader aspects of our bi\xc2\xad\nlateral relationship beyond cooperation in counter-terrorism\nactivities.\nI certainly agree with the State Department that a decision to deport respondent\nto Ireland rather than the United Kingdom would be injurious to our relations\nwith the United Kingdom.11\nFor the foregoing reasons, I conclude that deportation of respondent to Ireland\nwould be prejudicial to the interests of the United States and that he should be\ndeported instead to the United Kingdom. Accordingly, I disapprove the decision\nof the BIA affirming the order of the immigration judge that respondent be de\xc2\xad\nported to Ireland rather than the United Kingdom.12\n11 Respondent points to the fact that he was held unextraditable under the United States-United Kingdom Ex\xc2\xad\ntradition Treaty B nef o f Respondent-Appellee at 3-4. Deportation proceedings such as these, however, are inde\xc2\xad\npendent from, and governed by a different standard than, extradition proceedings. Doherty v. Meese, 808 F.2d 938,\n944 (2d Cir. 1986). Application o f the extradition treaty involves an interpretation of the reciprocal legal obliga\xc2\xad\ntions created by that treaty; the application o f 8 U.S.C. \xc2\xa7 1253(a) involves a determination of the interests o f the\nUnited States \xe2\x80\x94 potentially a much broader inquiry Thus, the fact that respondent\'s actions were held to fall within\nthe political offenses exception to the then applicable extradition treaty between the United States and the United\nKingdom does not preclude a finding that it would be prejudicial to the interests of the United States for respon\xc2\xad\ndent to be deported to Ireland.\nRespondent also asserts that he has a substantive right to be deported to the country he designates, and that\ndenial o f that right would violate his constitutional right to due process and equal protection Brief of RespondentAppellee at 18-23. This latter claim is based on his assertion that he is the first alien whose country of designation\nhas been rejected Respondent is, of course, correct that 8 U S.C. \xc2\xa7 1253(a) authorizes an alien to designate a coun\xc2\xad\ntry o f deportation, but he fails to acknowledge that the statutory authorization is subject to the authority of the At\xc2\xad\ntorney General to reject the designated country. Nor has he been singled out unconstitutionally. In the analogous\narea of decisions whether or not to exercise prosecutorial discretion, a decision to prosecute is only unconstitutional\nif it is based on a characteristic such as race or religion Oyler v. Boles, 368 U.S. 448,456 (1962); Wayte v. United\nStates, 470 U.S. 598,608 (1985). Respondent does not assert that he has been singled out based on such a charac\xc2\xad\nteristic, nor would there be any grounds for him to do so.\n12 My decision on the merits is based on the evidence and reasoning set forth in Part III of this opimon. I ex\xc2\xad\npress no opinion regarding the BIA \xe2\x80\x99s decision, pursuant to 8 C.F.R. \xc2\xa7\xc2\xa7 3.2 and 3.8, to deny INS\xe2\x80\x99s Motion to Sup\xc2\xad\nplement the Record or to Remand for Further Proceedings Before the Immigration Judge I do, however, disap\xc2\xad\nprove o f the B IA \xe2\x80\x99s statement that Mr. Trott\xe2\x80\x99s affidavit consisted solely o f \xe2\x80\x9clogical inferences\xe2\x80\x9d and thus was not\n\xe2\x80\x9cevidence.\xe2\x80\x9d BIA Decision o f May 12, 1987 at 5. The judgment under 8 U.S.C. \xc2\xa7 1253(a) whether an alien\xe2\x80\x99s des\xc2\xad\nignation o f a country o f deportation would be prejudicial to the interest o f the United States \xe2\x80\x9cmust be based on an\nanalysis o f the impact o f a particular deportation on United States\' interests viewed as a whole by a politically re\xc2\xad\nsponsible official \xe2\x80\x9d Doherty v M eese, 808 F.2d at 943. Such an analysis is likely to take the form of an affidavit\nsuch as Mr. Trott\xe2\x80\x99s. Indeed, it is difficult to see what other kind of evidence could be offered. Certainly, the INS\n\n7\n\n\x0cIV.\nOn December 3, 1987, respondent filed a motion with the BIA requesting an\norder reopening the deportation proceedings, and remanding the case to the im\xc2\xad\nmigration judge for a hearing on respondent\xe2\x80\x99s claims for asylum, withholding of\ndeportation, and for redesignation of country of deportation. It appears that re\xc2\xad\nspondent\xe2\x80\x99s arguments are twofold: first, that the enactment of the Extradition Act\nin Ireland has changed the facts upon which he based his earlier concession of\ndeportability and his waiver of other legal claims; and second, that because the\nprolongation of the administrative proceedings prevented him from being de\xc2\xad\nported to Ireland prior to the entry into force of this law, he should be allowed\nnow to revoke his earlier concession and waiver.\nOn February 2, 1988, the BIA issued a per curiam opinion referring respon\xc2\xad\ndent\xe2\x80\x99s motion to the Attorney General. BIA decision of February 2,1988 at 2. In\nits decision, the BIA stated it was taking this action because it was unclear whether\nit had authority to consider the motion while an appeal was pending before the\nAttorney General. Accordingly, the decision referred the motion to the Attorney\nGeneral \xe2\x80\x9cfor such action as he deems appropriate.\xe2\x80\x9d Id.\nI have concluded that it is appropriate to remand this motion to the BIA for its\ndecision. I express no opinion as to how the BIA should decide the motion, or as to\nhow the immigration judge or the BIA should make any subsequent determina\xc2\xad\ntions in the event that all or part o f that motion were to be granted. In light of the\nlength of time that the respondent\xe2\x80\x99s deportation proceedings have already con\xc2\xad\nsumed, however, I do recommend that the BIA give priority on its docket to this\nmotion to the extent that, in the B IA \xe2\x80\x99s judgment, this can be done consistent with\nany applicable procedural rules and the reasonable requirements of the parties.\nV.\nFor the foregoing reasons, the decision of the BIA is disapproved, and the case\nis remanded to the BIA for proceedings consistent with this opinion.\nE d w i n M e e s e III\nAttorney General\n12 ( . . . continued)\nshould not be required, for instance, to offer the affidavits o f foreign government officials stating what the official\nposition o f their governments would be regarding a particular deportation, and stating whether they will lessen their\ncooperation with the United States as a result o f the deportation proceeding.\nFinally, I approve o f the decision of the BIA that the immigration judge, in the circumstances o f this case,\ndid not abuse his discretion in refusing to let the INS prove additional charges. This refusal in no way impaired the\nIN S\xe2\x80\x99s ability to establish that it would be prejudicial to the interests o f the United States for respondent to be de\xc2\xad\nported to Ireland. As the BIA stated: \xe2\x80\x9cDeportability and designation o f the country for deportation are separate and\ndistinct issues.\xe2\x80\x9d M arch Decision at 5. Once deportability is established on any ground, as it was here, the INS can\nproceed to establish its objections to the country of designation under 8 U.S.C. \xc2\xa7 1253(a). O f course even m cir\xc2\xad\ncumstances similar to those here, the INS m ust be given the opportunity to prove when necessary additional facts\nthat are relevant to its objection to a country o f designation, but that need not be done by proving additional grounds\nof deportability.\n\n8\n\n\x0cO PIN IO N S\nOF THE\n\nOFFICE OF LEGAL COUNSEL\n\n\x0c\x0c'