The opinion of the court was delivered by: Cedarbaum, District Judge.
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.
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
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
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
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
General. 8 C.F.R. § 3.1(h). On October 28, 1987, Attorney
General Meese agreed to review the ...