The opinion of the court was delivered by: LASKER
Michael O'Rourke petitions for a writ of habeas corpus on the ground that he is being unlawfully held without bail pending resolution of his deportation proceedings.
O'Rourke was arrested by agents of the Immigration and Naturalization Service ("INS") early in November, 1979, on charges of being a deportable alien because of illegal entry under 8 U.S.C. § 1251(a)(2). The District Director of the INS, pursuant to 8 U.S.C. § 1252(a), decided that O'Rourke should be held in custody pending final determination of deportability. O'Rourke then applied to Immigration Judge Nathan W. Gordon for bail and his application was denied on November 7, 1979, on the representations of the INS that O'Rourke is a member of the Irish Republican Army ("I.R.A."), that he is a terrorist, and that he had escaped from an Irish prison. (Administrative Record at 3). O'Rourke then appealed to the Board of Immigration Appeals ("BIA"), which remanded the case because there had been no substantiation of the INS assertions about O'Rourke. At the hearing on remand, the INS presented evidence to show that O'Rourke had been convicted in Ireland of possessing explosives and had been sentenced to terms of imprisonment of two years and six years, to run concurrently; that while serving that sentence, O'Rourke and two fellow I. R. A. members escaped from prison by exploding a bomb in a court holding pen in which they were waiting to testify at a trial; and that he faces a possible sentence of life imprisonment from charges arising out of the escape. Asserting his rights under the Fifth Amendment, O'Rourke refused to answer any questions at the hearing. O'Rourke's application for bail was again denied on the basis that he presented a risk of flight. On appeal, the BIA affirmed the decision denying O'Rourke bail.
Soon afterward, on July 17, 1980, it was determined in the separate deportation proceedings that O'Rourke was deportable on the INS' amended charge that he had overstayed his visa. O'Rourke then filed for an "adjustment of status" under 8 U.S.C. § 1255 on the basis of his common-law marriage to an American citizen. In support of his application, O'Rourke argued that he had committed no crimes in the United States and that his I. R. A. activities did not render him excludable because those activities constituted political, rather than common, crimes.
Subsequently, in July, 1980, O'Rourke moved the BIA for reconsideration of its earlier denial of bail. On this occasion, he waived his Fifth Amendment privilege and submitted his own extensive affidavit in which he described how he came to be involved with the I. R. A., his strong conviction that the British presence in Ireland was wrong and oppressive, and the activities leading up to his convictions in Ireland.
According to O'Rourke, he joined the I. R. A. in the summer of 1971, the culmination of a gradually increasing dedication to the cause of the I. R. A. He describes the experience of I. R. A. membership as being "no different than any other Army training." (Administrative Record at 270). He was trained in weapons and explosives use, drilling, and other aspects of soldiering. At the conclusion of his training, he became a regular I. R. A. member and was assigned as an Engineering Officer to work at Army Headquarters, where he was involved in the research, development and manufacture of weapons, explosives, rockets, and mortars for use by I. R. A. troops until his arrest in August, 1975. O'Rourke states that he learned immediately after his arrest that his father had also been arrested and that he was questioned and asked to give a statement, which he refused until the authorities told him that since explosives were found at his home, on his father's property, his father would be charged and sentenced. He claims that he was also told that because of his age, his father would die in prison and that he was told that if he signed a confession, his father would be freed, and if he did not his father would be charged. He states that his requests for the assistance of counsel were denied and that he eventually signed a confession, and his father was released.
Upon sentence, O'Rourke was imprisoned in the Port Laoise Jail which he describes as a special place of detention for those convicted of I. R. A. activities. As O'Rourke describes the division of authority in the jail, the I. R. A. prisoners were specially treated as political prisoners or prisoners of war rather than as criminals. They were not required to work, were permitted to wear their own clothes, enjoyed free association within the prison and elected their own officers to whom the governmental authorities directed communications; they were allowed unlimited mail and visits, food parcels, radios and other goods from the outside, and simply upon the word of another I. R. A. prisoner assuring return, received unescorted parole to visit death beds or funerals of immediate relatives. The prisoners' daily regime consisted of military drills, Gaelic language courses, guerilla warfare classes, and political discussion sessions, all organized and supervised according to the I. R. A. hierarchy. The prison staff, according to O'Rourke, did not discipline any I. R. A. member: discipline was carried out within the I. R. A. organization itself, and the only function of the prison staff was to prevent escape.
In June of 1976, O'Rourke asserts, he was directed by senior I. R. A. officers to participate in an escape, to be made from a courthouse holding cell. In preparation for the escape, O'Rourke made a small diversionary bomb to distract attention from the larger bombing of the cell's wall through which the escape would occur. He states that he threw the small bomb out of the cell and it landed near a guard who did not see it, and that he yelled to the guard to move away from the bomb, who moved in time to escape injury. Subsequently, the guards fled and O'Rourke and his comrades escaped after opening the cell door with another bomb. According to O'Rourke, he returned to service with the I. R. A. after his escape, until he learned from I. R. S. intelligence sources that the government was planning to kill him because they believed that he was involved in the death of a British ambassador.
At that point, O'Rourke states, he was instructed to obtain a passport and visa under a ficticious name and to go to the United States. He did so. Once in the United States, he settled in Philadelphia where he made contacts in the Irish community and secured employment doing contracting work. Soon thereafter, he met Margaret Lieb and they fell in love. They wished to get married, but O'Rourke did not want to marry under a ficticious name, so they performed a ceremony themselves in the hope and belief that their action constituted a legal marriage under Pennsylvania common law.
In October, 1979, O'Rourke asserts, he began to hear from friends that the FBI was looking for him and had learned his assumed name and true identity. He decided not to run, but to wait and he was arrested on October 30, 1979.
O'Rourke explained his silence in the earlier bail proceedings on the ground that, at the time of his arrest, the agents told his attorney that they believed that he could provide information about a suspected plot to assassinate British Prime Minister Thatcher and Irish Prime Minister Lynch when they visited the United States as well as on the fact that the Assistant United States Attorney had stated that O'Rourke was believed to have been involved in the murder of the late Lord Mountbatten. Because he had believed that he was the subject of criminal investigations, he refused to answer questions at earlier proceedings until his attorneys determined that the United States government would not prosecute him for any reason, including his alleged illegal entry. In addition, O'Rourke states that since his entry into the United States, he has not been involved in I. R. A. activities, and is deemed to have resigned from the I. R. A., and that his devotion to his wife would assure his not leaving the jurisdiction before the deportation proceedings are concluded. He states that he wishes to pursue all legal opportunities to gain permanent residence in the United States and asserts that he could have designated countries other than Northern Ireland to which to be deported but has not done so because he wishes to remain in the United States.
In addition to O'Rourke's own affidavit, he presented to the BIA the affidavits of some fifty persons who know him in Philadelphia and who attested to his good character and their belief that he would not flee.
In August, 1980, the BIA denied O'Rourke's motion for reconsideration on the grounds of his admitted participation in I. R. A. activities and the pending charges against him, which the BIA found to create a substantial risk that O'Rourke would flee rather than await the outcome of deportation proceedings which could result in his deportation to Ireland to face possible life imprisonment. The BIA essentially disregarded the "character" affidavits which he submitted, because the affiants were shown to know him only under an assumed name and therefore, according to the BIA, their opinions of him were not entitled to great weight. Moreover, the BIA found the argument as to the importance of O'Rourke's marriage to be unpersuasive because its validity had not been determined. They gave his assertion that he would be able to designate other countries for deportation no weight because it had not been established that he would in fact be able to designate other countries which would be willing to receive him.
Two of the five members of the BIA dissented. They emphasized that O'Rourke had demonstrated close community ties in Philadelphia and close family ties because of his marriage. The dissenters criticized the majority's failure to credit the many affidavits which had been submitted, pointing out that the affidavits had been submitted after the affiants had learned O'Rourke's true identity. The dissenters also expressed concern that O'Rourke had already, by that time, been detained for nine months and that further proceedings were likely to consume many more ...