McMullen v. INS

Peter Gabriel John McMullen (plaintiff) was a former soldier in the British army who deserted to join the Provisional Irish Republican Army (the paramilitary group). The paramilitary group’s terroristic activities were designed to force the British to leave Northern Ireland. McMullen participated in bombings against British military barracks. After two years, McMullen left the paramilitary group, was arrested, and served three years in prison in Ireland. After McMullen’s release, the paramilitary group still wanted McMullen’s assistance. McMullen refused at first, but after being intimidated, he aided the paramilitary group again by training members and procuring shipments of illegal arms. However, when the paramilitary group ordered McMullen to kidnap an American for ransom, he refused. A friend in the paramilitary group notified McMullen that a hit squad was being assembled to kill him. McMullen secured a visa in another person’s name and fled to the United States, where he began cooperating with the Bureau of Alcohol, Tobacco and Firearms in hopes of being granted asylum. After deportation proceedings had begun, the United Kingdom sought to extradite McMullen on criminal charges related to the bombing of the barracks. Therefore, the Immigration and Naturalization Service (INS) (defendant) suspended deportation proceedings during McMullen’s extradition proceedings. A magistrate judge determined that under the United States’ extradition treaty with the United Kingdom, McMullen’s actions constituted a political offense, and the judge denied extradition. Deportation proceedings resumed. An immigration judge granted withholding of deportation. However, the Board of Immigration Appeals (BIA) reversed, determining that McMullen was not eligible for asylum or withholding of deportation due to his membership in the paramilitary group and his activities in furtherance of the group’s random terrorist acts targeting civilians rather than agencies of the state, including training members, securing arms, and bombings. Consistent with the 1951 Convention Relating to the Status of Refugees (the convention), the BIA considered that there were serious reasons to believe that McMullen’s acts constituted serious nonpolitical crimes in that they were atrocious and disproportionate to the political goal. Pure political crimes included sedition and espionage, but relative political crimes, which mixed political and common-law crimes, such as assassinations and bombings, constituted serious nonpolitical crimes based on various factors. Factors included: (1) lack of true political motivation, (2) intention to modify the structure of the state, (3) lack of a direct causal link between the political goal and the crime, (4) level of atrocity, and (5) disproportionality of the crime to the political goal. McMullen sought review, arguing that he did not personally participate in targeting civilians and that the same standard that applied in the extradition context to classify his prior acts as political offenses—whether there was an uprising at the time of his crimes—should be applied in the deportation context.