General. 8 C.F.R. § 3.1(h). On October 28, 1987, Attorney
General Meese agreed to review the case. At petitioner's
request, the Attorney General extended the date for submission
of petitioner's brief from December 1, 1987 to January 8, 1988.
On December 1, 1987, a new extradition treaty between the
United Kingdom and the Republic of Ireland became effective.
Two days later, petitioner made a motion before the BIA in
which he argued that the new treaty revised the political
offense exception in a way that would subject him to
extradition to the United Kingdom in the event that he were
deported to the Republic of Ireland. Petitioner moved to
reopen the deportation proceedings to allow him to submit new
applications for relief from deportation, specifically,
applications for asylum, 8 U.S.C. § 1158(a), withholding of
deportation, 8 U.S.C. § 1253(h), and redesignation of the
country of deportation. The BIA referred Doherty's motion to
reopen to the Attorney General.
On June 9, 1988, Attorney General Meese reversed the BIA and
held under 8 U.S.C. § 1253(a) that deportation to Ireland would
be prejudicial to the interests of the United States and that,
instead, the INS should deport petitioner to the United
Kingdom. At the same time, the Attorney General remanded to the
BIA petitioner's motion to reopen his deportation proceedings.
On June 21, 1988, Doherty filed a petition for review by the
Second Circuit of the Attorney General's determination. At
Doherty's request, that petition was held in abeyance pending
the conclusion of deportation proceedings.
On November 14, 1988, the BIA granted petitioner's motion to
reopen the deportation proceedings. On December 5, 1988, the
INS requested that the BIA's decision to reopen be certified
to the Attorney General for review. The Attorney General
accepted the request for certification on February 22, 1989.
In accordance with the briefing schedule set by the Attorney
General, all briefs regarding the motion to reopen were
submitted by April 26, 1989.
On May 2, 1989, petitioner filed an application for
redetermination of bond which was dismissed by the immigration
judge. He then applied to the BIA for redetermination of bond.
On June 30, 1989, Attorney General Thornburgh reversed the
BIA's decision to reopen petitioner's deportation proceedings.
On July 20, 1989, petitioner filed in the Second Circuit a
petition for review of Attorney General Thornburgh's denial of
the motion to reopen, which was consolidated with the petition
for review of Attorney General Meese's rejection of Ireland as
the country of deportation.
On August 9, 1989, the BIA denied petitioner's application
for redetermination of bond on the ground that the Attorney
General's denial of the motion to reopen made the order of
deportation to the United Kingdom administratively final and
divested the BIA of jurisdiction. On August 22, 1989,
petitioner filed a bond application with the Acting District
Director of the INS, who, upon motion of petitioner, recused
himself and forwarded petitioner's application to the
Associate Regional Commissioner. The Associate Regional
Commissioner denied petitioner's bond application on September
22, 1989. Three weeks later, petitioner appealed the denial to
the BIA, arguing that the length of his detention without bond
violated due process.
On March 29, 1990, the BIA affirmed the denial of Doherty's
application for redetermination of bond. Among its holdings
were that (1) "a substantial portion of the period of
[Doherty's] detention" was attributable to his litigation
strategy, (2) the Fifth Amendment due process clause did not
preclude further detention, and (3) Doherty continued to
present such a great risk of flight that no bond conditions
could ensure his availability for deportation. In re Doherty,
BIA File No. A26185231 (BIA March 29, 1990). On April 20, 1990,
Doherty filed this petition for habeas corpus, in which he
seeks review of the BIA's decision only with respect to the due
On June 29, 1990, the Second Circuit affirmed Attorney
General Meese's rejection of Ireland as the country of
deportation, reversed Attorney General Thornburgh's denial of
Doherty's motion to re-open,
and remanded the case to the BIA for consideration of
Doherty's applications for relief from deportation.
908 F.2d 1108. Subsequently, the Second Circuit denied the Government's
petition for rehearing.
On September 4, September 17 and October 2, 1990, I held
evidentiary hearings in connection with this petition.
Standard of Review
Petitioner seeks review of the March 29, 1990 affirmance by
the BIA of the Associate Regional Commissioner's denial of
bond redetermination. In re Doherty, BIA File No. A26185231.
The BIA's findings of fact must be affirmed if they are
supported by "substantial evidence," but review of purely legal
issues is plenary. Ardestani v. U.S. Dept. of Justice, I.N.S.,
904 F.2d 1505, 1508 (11th Cir. 1990). Petitioner has not
attacked the BIA's factual findings. However, because the
Second Circuit has suggested that broader review of factual
findings may be appropriate when risk of flight is weighed in
the context of determining the constitutionality of prolonged
detention, see United States v. Gonzales Claudio, 806 F.2d 334,
343 (2d Cir. 1986), I held evidentiary hearings to permit
petitioner to persuade me that, in the context of due process
analysis, the risk of his flight should be given less weight.
After further reflection, I do not believe that the
reevaluation performed by the Second Circuit in Gonzales
Claudio contemplates an evidentiary hearing. In any event, the
evidence presented did not in any respect undermine the BIA's
evaluation of the appropriate factors to consider in weighing
risk of flight or the BIA's uncontested findings of fact. I
have concluded that the BIA correctly gave very heavy weight to
the risk of petitioner's flight, and that its constitutional
decision was correct as well.
Respondents have raised the threshold question of whether
petitioner has standing to claim the substantive protection of
the Fifth Amendment. While they concede that deportable aliens
have procedural due process rights, respondents argue that
admittedly illegal aliens have no substantive due process
right to liberty during deportation proceedings. Although
courts have used hyperbole to emphasize the breadth of
governmental power over immigration matters, the cases cited
by respondents do not support such an extreme position. Nor
does the language of the Fifth Amendment's due process clause
that "[n]o person" shall be deprived of liberty without due
process of law distinguish between aliens and citizens.
Procedural and substantive due process are not two independent
kinds of rights; they are two aspects of the same
constitutional protection of life, liberty, and property. As
the Supreme Court has explained,
[s]o-called "substantive due process" prevents
the government from engaging in conduct that
"shocks the conscience," or interferes with
rights "implicit in the concept of ordered
liberty." When government action depriving a
person of life, liberty, or property survives
substantive due process scrutiny, it must still
be implemented in a fair manner. This requirement
has traditionally been referred to as
"procedural" due process.
United States v. Salerno,