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DOHERTY v. THORNBURGH

November 5, 1990

JOSEPH PATRICK THOMAS DOHERTY, PETITIONER,
v.
RICHARD L. THORNBURGH, ATTORNEY GENERAL OF THE UNITED STATES, GENE MCNARY, COMMISSIONER OF THE IMMIGRATION AND NATURALIZATION SERVICE, AND SCOTT BLACKMAN, DISTRICT DIRECTOR OF THE IMMIGRATION AND NATURALIZATION SERVICE, NEW YORK DISTRICT, RESPONDENTS.



The opinion of the court was delivered by: Cedarbaum, District Judge.

OPINION AND ORDER

Joseph Patrick Thomas Doherty, an illegal alien in custody pending deportation, petitions for a writ of habeas corpus on a narrow ground. He contends that the due process clause of the Fifth Amendment of the Constitution prohibits his prolonged detention and mandates his release on bond notwithstanding that the Board of Immigration Appeals ("BIA") has fairly and reasonably determined that he is a deportable alien who presents a risk of flight that cannot be overcome by any conditions of bail. Petitioner does not argue, nor can he do so persuasively, that the BIA abused its discretion when it made that determination. Rather, he urges that the unusual length of his detention violates the constitutional prohibition against deprivation of liberty without due process of law and, as a matter of law, outweighs the customarily countervailing consideration of risk of flight.

Although the Government argues that a deportable alien has no right to substantive as distinguished from procedural due process, both sides agree on the test the courts have applied to determine whether particular governmental action violates the commandment of the Fifth Amendment that "[n]o person shall . . . be deprived of life, liberty or property without due process of law." Governmental conduct that "shocks the conscience of a civilized society or interferes with the fundamental rights implicit in our American concept of ordered liberty" violates the due process clause of the Fifth Amendment. In this case, there is no claim of procedural unfairness. The only issue is whether petitioner's detention, prolonged over a period of many years by his and respondents' vigorous pursuit of all available administrative and judicial remedies, has become invalid because of its length. For the reasons discussed below, the petition is denied.

I.

Prior Proceedings

  The history of the legal proceedings involving Doherty has
been discussed in five prior published opinions. Doherty v.
U.S. Dept. of Justice, I.N.S., 908 F.2d 1108 (2d Cir. 1990);
Doherty v. Meese, 808 F.2d 938 (2d Cir. 1986); United States v.
Doherty, 786 F.2d 491 (2d Cir. 1986); United States v. Doherty,
615 F. Supp. 755 (S.D.N.Y. 1985); Matter of Doherty, 599 F. Supp. 270
 (S.D.N.Y. 1984). The following account is largely
chronological and deals with the events pertaining to (1) the
Government's effort to extradite petitioner, (2) the
Government's collateral attack by declaratory judgment on the
denial of extradition, (3) the Government's continuing attempt
to deport petitioner, and (4) petitioner's continuing effort to
obtain release on bond.

Doherty, a native of Belfast, was a member of the Provisional Irish Republic Army ("PIRA"). On May 2, 1980, at the direction of PIRA, he participated in an ambush of a convoy of British soldiers. In the ensuing gun battle, a British officer was killed. Petitioner was arrested and tried for murder. Before the final decision, at the direction of PIRA, petitioner and seven other PIRA members escaped from the maximum security prison where they were being held. Petitioner was convicted of murder in absentia and was sentenced to life imprisonment. He fled to the Republic of Ireland, where he remained in hiding for some time. On or about March 1, 1982, he illegally entered the United States with a false passport.

Upon his arrival, Doherty was met by friends of PIRA and given assistance in finding lodging and employment in New York City. Sixteen months later, on June 18, 1983, he was arrested on a deportation warrant issued by the Immigration and Naturalization Service ("INS"). The District Director of the INS determined that petitioner should be held without bond. Petitioner requested a bond redetermination hearing before an immigration judge. The bond redetermination hearing was interrupted when the United States Marshal took custody of petitioner pursuant to an extradition warrant. On October 12, 1983, Judge Sprizzo denied petitioner's application for release on bond pending the outcome of the extradition proceedings.

Petitioner's counsel sought assurance from the INS that deportation proceedings would be stayed during the extradition proceedings. Although the parties do not agree about what assurances were given, the deportation proceedings did not resume until after the proceedings before Judge Sprizzo had been concluded on December 12, 1984. Following an extensive hearing, Judge Sprizzo denied the extradition request because he found that the crimes on which it was based fell within the political offense exception to the extradition treaty between the United States and the United Kingdom. Matter of Doherty, 599 F. Supp. 270. The Marshal then returned petitioner to the custody of the INS pursuant to the deportation warrant.

On December 21, 1984, an immigration judge held a bond hearing and ordered petitioner released on $200,000 bond. At the request of the INS, the BIA issued a stay pending appeal.

On February 4, 1985, the Government filed a declaratory judgment action seeking collateral review of Judge Sprizzo's denial of extradition. Three weeks later, deportation proceedings were recommenced. The Government filed additional charges of deportability, and Doherty requested and received a one-month adjournment in order to respond to the new charges.

On March 4, 1985, the BIA reversed the immigration judge's bond determination and ordered petitioner held without bond. Two weeks later, petitioner requested a stay of the deportation proceedings until after (1) final determination of the Government's declaratory judgment action collaterally attacking Judge Sprizzo's denial of extradition, (2) resolution of two separate actions that he had brought under the Freedom of Information Act, and (3) the expiration of a reasonable time to respond to the additional charges of deportability. Over the INS's objection, the immigration judge granted petitioner's application and stayed the deportation proceedings until final resolution of the declaratory judgment action.

The Government's declaratory judgment suit was dismissed by Judge Haight on June 25, 1985. United States v. Doherty, 615 F. Supp. 755. The Second Circuit affirmed Judge Haight's order on March 13, 1986, United States v. Doherty, 786 F.2d 491, and later denied the Government's petition for rehearing.

On September 3, 1986, petitioner requested that deportation proceedings resume, and on September 12, 1986, he withdrew all his applications for relief from deportation, conceded that he was deportable because he had entered the United States without valid immigration documents, 8 U.S.C. § 1251(a)(1), 1182(a)(20), and designated the Republic of Ireland as the country of deportation, 8 U.S.C. § 1253(a). The INS objected to petitioner's designation of Ireland on the ground that deporting him to Ireland would be prejudicial to the interests of the United States. The INS requested that instead petitioner be deported to the United Kingdom. Id. On September 19, 1986, the immigration judge ordered that Doherty be deported to the Republic of Ireland.

Four days later, Doherty filed a petition for a writ of habeas corpus seeking immediate deportation to the Republic of Ireland. Petitioner sought to be deported before a new extradition treaty between the United Kingdom and the United States would eliminate the political offense exception upon which Judge Sprizzo had relied in denying extradition. Judge Leisure denied the petition on September 25, 1986. The following day, the INS appealed from the immigration judge's order of deportation to Ireland. Petitioner requested a summary dismissal of the INS appeal, which the BIA denied, as well as an expedited appeal of Judge Leisure's denial of his petition, which the Second Circuit granted. On December 23, 1986, the Second Circuit affirmed Judge Leisure's decision and rejected petitioner's claim that the Government was improperly delaying deportation in order to keep him available for extradition under the soon-to-be-enacted revised extradition treaty. Doherty v. Meese, 808 F.2d 938. The Second Circuit found instead that petitioner's "tactical decision" to seek a stay of the deportation proceedings during the declaratory judgment action was the "sole cause" of the almost eighteen-month delay from March 18, 1985 to September 3, 1986. Id. at 941.

The BIA affirmed the immigration judge's order of deportation to the Republic of Ireland on March 11, 1987. Two days later, the INS requested that the BIA stay its decision and reopen the deportation proceedings on the ground that, because of an administrative error, the BIA had never received supplemental evidence offered by the INS. The BIA rejected the INS request and affirmed its March 11th decision on May 22, 1987. The INS then asked the BIA to refer its decision to the Attorney General. 8 C.F.R. ยง 3.1(h). On October 28, 1987, Attorney General Meese agreed to review the ...


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