Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-10-2006

McAllister v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 03-4513




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                             PRECEDENTIAL
       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                Nos. 03-4513/04-3695


 MALACHY MCALLISTER; *MARK J. MCALLISTER;
SARAH B. MCALLISTER; PAUL GARY MCALLISTER;
  NICOLA MCALLISTER; SEAN R. MCALLISTER,

                          Petitioners in 03-4513

                          v.

        Attorney General of the United States,

                                      Respondent.

  *Dismissed Pursuant to Court's Order dated 1/13/04

              NICOLA MCALLISTER
              SEAN R. MCALLISTER,

                           Petitioners in 04-3649

                          v.

        Attorney General of the United States




        Petition for Review of an Order of the
            Board of Immigration Appeals
 (Agency Nos. A73-629-577; A73-551-831; A73-551-832;
       A73-551-833; A73-551-834; A73-551-835)




               Argued on June 29, 2005




 BEFORE: ROTH, RENDELL and BARRY, Circuit Judges


                ( Filed: April 10, 2006 )


Eamonn S. Dornan, Esquire (ARGUED)
Smith, Dornan & Dehn, P.C.
110 East 42 nd Street, Suite 1303
New York, NY 10017

           Counsel for Petitioners

Peter D. Keisler, Esquire
Assistant Attorney General
Michael P. Lindemann, Esquire
Assistant Director
John M. McAdams, Jr., Esquire (ARGUED)
Douglas E. Ginsburg, Esquire
Office of Immigration Litigation
Civil Division
United States Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044

           Counsel for Respondent



                           -2-
                   OPINION OF THE COURT




ROTH, Circuit Judge:

        We review here two decisions of the Board of
Immigration Appeals (BIA). In the first, the BIA found that
Malachy McAllister (Malachy) was removable because he had
engaged in terrorist activities. See 8 U.S.C. § 1227(a)(4)(B).
The BIA also denied all of Malachy’s requests for relief from
removal. In the second, the BIA found that Malachy’s wife,
Sarah McAllister (Sarah), and their four children, Nicola, Sean,
Mark and Paul Gary, were removable because they had
overstayed their visas.1 See 8 U.S.C. § 1227(a)(1)(B). The BIA
granted Sarah and the children voluntary departure but denied
all other relief from removal.

I. Facts

       The McAllisters are natives and citizens of Northern
Ireland in the United Kingdom. In the early 1980s, Malachy
became involved with the Irish National Liberation Army
(INLA). In 1981, as a member of the INLA, Malachy
participated in two incidents. First, he acted as an armed look-
out while other members of the INLA used firearms to shoot a
Royal Ulster Constabulary (RUC) officer. Second, he acted as
a member of a conspiracy to shoot and kill a RUC officer. For
these actions, Malachy was ultimately convicted of “unlawful
and malicious wounding with intent to do grievous bodily harm”
and “conspiring to murder.” He was sentenced to seven years
incarceration for these offenses. On September 30, 1985,
Malachy received an early release from prison for good


       1
           This appeal does not involve Mark.

                               -3-
behavior.

       On December 15, 1988, Malachy, Sarah and their
children left Northern Ireland for Canada. The family fled
Northern Ireland following vicious attacks by Loyalist forces
and the RUC. For example, Loyalist paramilitaries raked the
family home with gunfire and the RUC threw Sarah out of a
moving vehicle while she was pregnant. Malachy applied for
asylum in Canada but it was denied and he was ordered
deported. On March 6, 1996, Malachy and his family entered
the United States as nonimmigrant visitors for pleasure. On
March 5, 1999, the Immigration and Naturalization Service
(INS) instituted removal proceedings against each member of
the McAllister family. Malachy filed an application requesting
asylum, withholding of removal, and withholding of removal
under the Convention Against Torture (CAT). Sarah filed a
similar application, with each of her children as a derivative
applicant.

II. Procedural History

        On October 11, 2000, an Immigration Judge (IJ) found
that each member of the McAllister family was removable. The
IJ denied all of Malachy’s requested relief but granted asylum
to Sarah and the children. Malachy filed a timely appeal. The
Office of Immigration Litigation (OIL)2 appealed the IJ decision
concerning Sarah and the children.         On November 17,
2003, the BIA issued two final orders of removal. In the first
order, the BIA affirmed the IJ’s determination that Malachy was
removable on the grounds that he had engaged in terrorist


       2
        On March 1, 2003, the INS was eliminated as an agency
under the Department of Justice. The functions for which INS
was responsible were transferred to the Department of
Homeland Security and, as regards the proceedings in this case,
to OIL. See Homeland Security Act of 2002, Pub. L. No. 107-
296, 116 Stat. 2135 (2002).

                              -4-
activities. See 8 U.S.C. § 1227(a)(4)(B). The BIA also affirmed
the IJ’s denial to him of relief from removal. In the second
order, the BIA affirmed the IJ’s determination that Sarah and the
children were removable for overstaying their visas. The BIA,
however, reversed the IJ’s grant of asylum to Sarah and the
children and denied all their other requests for relief, except for
voluntary departure. The McAllisters appealed and their appeals
were consolidated.

        On May 10, 2004, Sarah died of cancer. On July 1, 2004,
Nicola and Sean filed a Motion to Reopen the November 17,
2003, Order of the BIA so that they could independently file
applications for asylum and for relief under CAT. On August 3,
2004, the BIA denied their motion because it was not timely
filed.3 See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(2).
On September 16, 2004, Nicola and Sean filed a petition for
review of the BIA’s decision.

III. Jurisdiction

       A. Malachy

        We have jurisdiction to review final orders of removal.
See 8 U.S.C. § 1252(a)(1). There are, however, certain
situations in which our jurisdiction to review final orders of
removal is limited or eliminated.            See 8 U.S.C. §§
1252(a)(2)(A)-(C), 1158(b)(2)(D). If the issues presented in a
petition for review of a final order involve constitutional claims
or questions of law, our jurisdiction is never limited or




       3
        The BIA’s decision also found that Nicola and Sean’s
motion did not meet any of the exceptions to the timeliness
requirement. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. §
1003.2(c)(3)(ii).

                                -5-
eliminated. See 8 U.S.C. § 1252(a)(2)(D).4 On the other hand,
if an alien is removable for having committed one of the
offenses enumerated in 8 U.S.C. § 1252(a)(2)(C),5 we lack


       4
         On May 11, 2005, the President signed into law the
REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231
(2005). The REAL ID Act amended the INA and provided that
the courts of appeals shall have jurisdiction to review all final
orders of removal that raise constitutional claims and questions
of law.
       5
        8 U.S.C. 1252(a)(2)(C) Orders against criminal aliens
                Notwithstanding any other provision of
       law (statutory or nonstatutory), including section
       2241 of title 28, United States Code [28 USCS §
       2241], or any other habeas corpus provision, and
       sections 1361 and 1651 of such title [28 USCS §§
       1361 and 1651], and except as provided in
       subparagraph (D), no court shall have jurisdiction
       to review any final order of removal against an
       alien who is removable by reason of having
       committed a criminal offense covered in section
       212(a)(2) or 237(a)(2)(A)(iii), (B), (C), or (D)
       [crimes of moral turpitude, violation of laws
       relating to controlled substances, conviction of 2
       or more offenses with aggregate sentences of
       confinement of 5 years of more, involvement in
       drug trafficking, involvement in prostitution and
       o t h e r u n la w f u l c o m m e r c ia li z e d v ic e ,
       immunization from prosecution for a crime
       committed in the U.S., severe violations of
       religious freedom by foreign government
       officials, significant trafficking in persons, money
       laundering, and other enumerated offenses.], or
       any offense covered by section 237(a)(2)(A)(ii)
       [multiple criminal convictions] for which both
       predicate offenses are, without regard to their date

                               -6-
jurisdiction to review a final order of removal that does not raise
constitutional claims or questions of law. See 8 U.S.C. §
1252(a)(2)(C)-(D).

        In the present case, the BIA did not specifically find that
Malachy was removable for having committed one of the
offenses enumerated in subsection (C). Rather, the BIA found
Malachy removable based on his engagement in terrorist
activities. See 8 U.S.C. § 1227(a)(4)(B).6 Thus, whether
subsection (C) limits our jurisdiction depends on whether the
jurisdictional bar of subsection (C) requires the final order of
removal to be based on one of subsection (C)’s enumerated
offenses. We address this issue as one of first impression for
our Court.

        Our sister circuits have addressed the application of the
jurisdictional bar of subsection (C), and of similar jurisdictional
provisions, e.g., § 440(a) of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110
Stat. 1214 (1996), and § 309(c)(4)(G) of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA),
Pub. L. No. 104-208, 110 Stat. 3009 (1996), amended by the Act
of Oct. 11, 1996, Pub. L. No. 104-302, 110 Stat. 3656 (1996).
Some courts have held that the final order of removal does not
need to be grounded in one of the enumerated offenses for the
jurisdictional bar to apply. See Fernandez-Bernal v. Attorney
General, 

, 1310 (11th Cir. 2001) (holding that


       of commission, otherwise covered by section
       237(a)(2)(A)(i) [moral turpitude].


       6
        8 U.S.C. § 1227(a)(4)(B) Terrorist activities
             Any alien who is described in
       subparagraph (B) or (F) of section 212(a)(3) [8
       USCS § 1182(a)(3)] is deportable.


                                -7-
jurisdictional bar of subsection (C) is not dependent upon the
grounds of removal being based on one of the enumerated
offenses); Lopez-Elias v. Reno, 

, 793 (5th Cir.
2000) (same); Abdel-Razek v. INS, 

, 832 (9th Cir.
1997) (holding that jurisdictional bar of AEDPA § 440(a) is not
dependent upon the final order of removal referring to one of the
provision’s enumerated offenses) Other courts, however, have
required the final order of removal to be based on one of the
enumerated offenses. See Yousefi v. INS, 

, 325 (4th
Cir. 2001) (requiring a deportation order to be based on an
offense enumerated in § 309(c)(4)(G) for that provision’s
jurisdictional bar to apply); Xiong v. INS, 

, 608 (7th
Cir. 1999) (prohibiting the INS from arguing that the alien
committed an enumerated offense on appeal in support of a
jurisdictional bar because the final order of removal was based
on an unenumerated offense); Choeum v. INS, 

, 39
(1st Cir. 1997) (finding it doubtful that Congress intended
“deportable for reason of” in AEDPA § 440(a) to be the
equivalent of “potentially susceptible to being deported by
reason of”).

       We conclude that Congress intended that the clear
language of the statute be utilized. Thus, we read the
jurisdictional bar of subsection (C) to apply when the actual
basis for the final order of removal was the alien’s commission
of one of the enumerated offenses. See 

. See also 

; 

.
We are convinced that the approach taken by the First, Fourth
and Seventh Circuits with regard to the jurisdictional bar for
review of final orders of removal is the proper approach. We
hold that for purposes of the jurisdictional bar found in 8 U.S.C.
§ 1252(a)(2)(C), an alien is not “removable for reason of having
committed [an enumerated] criminal offense” unless the final
order of removal is grounded, at least in part, on one of those
enumerated offenses.




                               -8-
       In this case, the BIA found Malachy removable because
he engaged in terrorist activities, which is not an offense
enumerated in subsection (C). Therefore, subsection (C) does
not limit our jurisdiction to review the BIA’s final order of
removal, and we will give full review to his petition.

       B. Sarah

       When a case or controversy ceases to exist between two
parties, the case is rendered moot. See U.S. C ONST. art. III, § 2;
Spencer v. Kemna, 

(1998). When an alien dies with
her case pending before the court of appeals, the court of
appeals can no longer grant the relief that the alien seeks. The
case or controversy ceases to exist, rendering the alien’s claim
moot. In this case, Sarah died on May 10, 2004, while her case
was pending before us. Her death rendered her claims moot and
we will dismiss her petition. See Spencer v. Kemna, 

,
18 (1998).

       C. Nicola and Sean

        Nicola and Sean were derivative applicants on Sarah’s
applications for relief from removal. As derivative applicants,
they relied on Sarah’s application for relief. See 8 U.S.C. §
1153(d). When Sarah’s claim became moot, Nicola and Sean
were left without the principal alien upon whose application
their own status rested. On July 1, 2004, Nicola and Sean filed
a motion to reopen their case in order to file independent
applications for relief based on the events that were the subject
of Sarah’s original application as well as on an assertion that a
cousin in Northern Ireland had been attacked and beaten by a
gang of Loyalists. On August 3, 2004, the BIA denied the
motion to reopen on the basis that it was filed more than 90 days
after the November 17, 2003, order of the BIA, denying them
asylum. The BIA further held that the motion to reopen did not
fall within any of the exceptions to the timely filing of motions
to reopen because Nicola and Sean had not demonstrated prima


                                -9-
facie eligibility for asylum. See 8 U.S.C. § 1229a(c)(7)(C)(ii).

        On September 16, 2004, Nicola and Sean filed a petition
for review of the BIA’s denial. Because the petition for review
was filed more than thirty days after the BIA’s August 4, 2004,
final order, the petition was untimely. Thus, we lack jurisdiction
to review this decision by the BIA, and we will dismiss Nicola
and Sean’s appeals. See 8 U.S.C. § 1252(b)(1). See also
Navarro-Miranda v. Ashcroft, 

, 676 (5th Cir. 2003)
(applying the thirty-day deadline of § 1252(b)(1) to a petition for
review of a motion to reopen).

       D. Paul Gary

        On March 17, 2004, the BIA remanded Paul Gary’s case
to the Immigration Court so that he could apply for adjustment
of status. Pursuant to 8 U.S.C. § 1252(d)(1), we no longer have
jurisdiction to review his claims. Therefore, we will dismiss
Paul Gary’s claim for lack of jurisdiction.

IV. Standard of Review

       We now turn to the substance of Malachy’s petition. We
review the BIA’s findings of fact to determine whether
substantial evidence supports them. See Singh-Kaur v. Ashcroft,

, 296 (3d Cir. 2004). We will only reverse the
BIA’s findings “if the evidence compels a contrary conclusion.”
Ahmed v. Ashcroft, 

, 216 (3d Cir. 2003) (citing INS
v. Elias-Zacarias, 

, 481 n.1 (1992)). We give de
novo review to constitutional claims. See Chong v. District
Director, INS, 

, 386 (3d Cir. 2001). We review the
BIA’s interpretation of the INA to determine whether it is
“arbitrary, capricious or manifestly contrary to the statute.” See

(quoting Chevron, U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 

, 844 (1984)).




                               -10-
With respect to the denial of a motion to reopen,7 we apply the
abuse of discretion standard. See Borges v. Gonzalez, 

, 404 (3d Cir. 2005). The BIA’s denial of a motion to
reopen will not be disturbed unless it is “arbitrary, irrational, or
contrary to law.” Guo v. Ashcroft, 

, 562 (3d Cir.
2004) (quoting Tipu v. INS, 

, 582 (3d Cir. 1994)).

V. Analysis

       A. Removal

        Malachy challenges the BIA’s determination that he is
removable, claiming that he did not engage in “terrorist
activities.” Malachy asserts four grounds to support his
contentions of error. First, he argues that the INA’s definition
of “terrorist activity” is unconstitutionally overbroad because it
encompasses common crimes that no reasonable person would
consider to be terrorist acts. Second, he claims that the BIA
failed to find that he was a member of a terrorist organization.
Third, he asserts that he did not target non-combatants. Finally,
he contends that the situation in Northern Ireland had risen to
the level of an Article 3 conflict under the Geneva Convention
so that his conduct could not be considered a terrorist activity.
In the alternative, Malachy claims that the INA’s “political
offense” exception applies in this case, and therefore the BIA’s
determination that he was removable is erroneous.




               1. Engaging in Terrorist Activity


       7
        For purposes of jurisdiction and standard of review,
motions to remand and motions to reopen are treated the same.
See Korytnyuk v. Ashcroft, 

, 282 & n.15 (3d Cir.
2005).

                               -11-
                      a. “Terrorist Activity”

       Malachy asserts that the definition of “terrorist activity”
in 8 U.S.C. § 1182(a)(3)(B)(iii)(V)(b) is unconstitutionally
overbroad. We note that Malachy’s argument also raises issues
of vagueness, which is similar to the doctrine of overbreadth.
Waterman v. Farmer, 

, 212 n.4 (3d Cir. 1999). As
such, we will examine both doctrines.

        A statute is unconstitutionally vague if “men of common
intelligence must necessarily guess at its meaning and differ as
to its application.” 

v. Gen. Constr. Co.,

, 391 (1926)). A statute is unconstitutionally
overbroad if it “does not aim specifically at the evils within the
allowable area of control [by the government] but . . . sweeps
within its ambit other [constitutionally protected] activities.” 

n.5 (quoting Thornhill v. Alabama, 

, 97
(1940)).

        Clause (iii) of 8 U.S.C. § 1182(a)(3)(B) states, in relevant
part, that “terrorist activity” is:

               any activity which is unlawful . . .
               which involves . . . [using an]
               explosive, firearm, or other weapon
               or dangerous device (other than for
               mere personal monetary gain), with
               intent to endanger, directly or
               indirectly, the safety of one or more
               individuals or to cause substantial
               damage to property.

8 U.S.C. § 1182(a)(3)(B)(iii)(V)(b). While this definition is
certainly broad, we conclude that it is neither vague nor
overbroad in that it does not infringe on constitutionally
protected behavior. The definition includes a great deal of
conduct, but all of this conduct could reasonably constitute


                               -12-
terrorist activities.

        First, the parenthetical phrase “other than for mere
personal monetary gain” removes common crimes from the
definition by requiring that the offending activity be conducted
for reasons other than money. For that reason, offenses like
robbery and burglary are not included in the definition. Second,
the mens rea element of the provision requires the actor to have
the specific intent to endanger the safety of individuals or to
cause substantial damage to property. Thus, the definition of
terrorist activity does not include situations in which an alien has
acted in self-defense 8 or in which the alien lacks the capacity9 to
meet the requisite intent. More importantly, none of the
aforementioned activities constitute a protected activity outside
of the permissible bounds of Congressional regulation.

        In support of his position, Malachy provided three
hypothetical examples of conduct that he claims would
unconstitutionally fall under the statutory definition of “terrorist
activity.” The examples are “an 8-year-old child who brings a
baseball bat to school to protect himself from bullies; an
individual institutionalized for a mental health disorder who
attacks a doctor; [and] a woman who protects herself, in the
course of a domestic violence attack, with standard kitchen
cooking utensils.” Our examination of the conduct involved in
these three hypotheticals convinces us, however, that none of
them would constitute “terrorist activity” under the definition
because none of them satisfies the elements of the definition nor
are the characters engaging in protected activity. For example,
both the little boy and the battered wife have acted in self-
defense, which negates the “unlawful” element.                 The
institutionalized individual in all likelihood does not have the


        8
        See 2 W AYNE R. L AF AVE, S UBSTANTIVE C RIMINAL L AW
§ 10.4(a) (2d ed. 2003 & Supp. 2005).
        9
            See 1 L AF AVE supra § 7.1.

                                 -13-
legal capacity to satisfy the intent requirement under the
common law. See 1 L AF AVE supra § 7.1. Although we concede
that the INA’s definition of “terrorist activity”certainly
encompasses more conduct than our society, and perhaps even
Congress, has come to associate with traditional acts of
terrorism, e.g., car bombs and assassinations, nevertheless, we
conclude that the INA’s definition of “terrorist activity” found
in 8 U.S.C. § 1182(a)(3)(B)(iii)(V)(b), is neither
unconstitutionally overbroad nor vague.

                      b.      Member       of    a    “Terrorist
Organization”

        Malachy next contends that the BIA erred when it found
that he had engaged in terrorist activities because the BIA did
not at the same time find that he was a member of a terrorist
organization. To be engaged in a terrorist activity, the INA
requires an alien to act either “in an individual capacity or as a
member of an organization.” 8 U.S.C. § 1182(a)(3)(B)(iv)
(emphasis added). The statute does not qualify the term
“organization.” Terms and provisions may not be added to a
statute where Congress has omitted them. See Sale v. Haitian
Centers Council, Inc., 

, 168 n.16 (1993).
Therefore, the BIA must find that an alien acted on his own or
as a member of an organization – not just a terrorist organization
– before it determines that the alien engaged in “terrorist
activity.”

        In this case, it is undisputed that Malachy acted as a
member of the Irish National Liberation Army (INLA) and not
as an individual. The INLA is not a terrorist organization as the
INA defines that term. See 8 U.S.C. § 1182(a)(3)(B)(vi).
Because the INA does not expressly require the organization,
with which the alien was acting, to be a terrorist organization,
we accept as reasonable the BIA’s construction of 8 U.S.C.§
1182(a)(3)(B)(iv): an alien must be acting either individually or
as a member of an organization – but not necessarily as a


                              -14-
member of a terrorist organization.10

                      c.   Targeting Non-Combatants and
Article 3 Conflict

       Malachy claims that the BIA erred in finding that he
engaged in terrorist activities because, at the time he engaged in
the conduct, he did not target non-combatants and the situation
in Northern Ireland had risen to the level of an Article 3 conflict
under the Geneva Convention. The issue we must now consider
is whether the BIA must weigh such factors in making the
determination that an alien has engaged in terrorist activities.

        The BIA did not consider whether Malachy had targeted
non-combatants and did not consider whether the situation in
Northern Ireland had risen to the level of a Geneva Convention
Article 3 conflict. The INA’s definition of engaging in terrorist
activity does not address either the targeting of non-combatants
or the levels of conflict under the Geneva Convention.
Consequently, Malachy’s proffered distinctions between
combatant and non-combatant and Article 3 verses non-Article
3 conflict are not sustainable, and the BIA did not err.11


       10
          We also note that even if 8 U.S.C. § 1182(a)(3)(B)(iv)
were not clear on its face, for us to interpret the provision to
mean that the offending conduct must have been committed in
one’s individual capacity or as a member of a terrorist
organization would leave a gaping hole in the statute that
Congress could not have intended. The result of such an
interpretation would be that conduct identical to that which the
statute calls “engaging in terrorist activity” would not be such if
the alien chose to act as a member of an organization that the
INA does not define as a “terrorist organization.” To interpret
the statute in this manner would be unreasonable.
       11
         Even if the INA were ambiguous on this point, we are
reluctant to find that the BIA’s interpretation of “terrorist

                               -15-
                              2. “Political Offense” Exception

        In the alternative, Malachy claims that, even if he has
engaged in terrorist activities, the BIA erred when it found him
removable because the “political offense” exception to the INA
applies to his conduct. “Political offenses” is a “designation of
a class of crimes usually excepted from extradition treaties, this
term denotes crimes which are incidental to and form a part of
political disturbances.” Black’s Law Dictionary 1158 (6th ed.
1990). The “political offense” exception appears three times in
the text of the INA. See 8 U.S.C. §§ 1101(a)(43)(F),
1182(a)(2)(A)(i)(I), and 1182(a)(2)(B). None of the provisions
that contain the “political offense” exception applies in this case.
Section 1101(a)(43) defines the term “aggravated felony.”
Section 1182(a)(2)(A)(i)(I) deals with aliens who have been
convicted of a crime involving moral turpitude. Section
1182(a)(2)(B) deals with aliens who have committed two or
more offenses with an aggregate time of incarceration that is
five years or more. In this case, the BIA found Malachy
removable because he engaged in terrorist activities. None of
the provisions containing the term “political offense” pertain to
or refer to provisions involving terrorist activities. The BIA
determined that the “political offense” exception was a limited
exception that applied only to the specific subsections in which
it was found and thus did not apply to terrorist activities. We
conclude that this interpretation of the “political offense”
exception was reasonable. See 

;

.

       B. Asylum


activity” is unreasonable or that it was necessary to include these
factors in its analysis. See Chevron USA, Inc. v. Natural
Resources Defense Council, Inc., 

, 843 (1984);
Abdulai v. Ashcroft, 

, 552 (3d Cir. 2001) (quoting
Chevron).


                               -16-
        In addition to challenging his removal order, Malachy
contends that the BIA erred when it found that he was ineligible
for asylum. He asserts that to be found ineligible for asylum, the
BIA must find that he has engaged in terrorist activities and that
he is a danger to the security of the United States. He claims
that the BIA found only the former. Whether the INA requires
the BIA to make both findings is a question of law.

        According to Malachy, “[t]he statute imposes a two-part
analysis: (1) whether an alien engaged in a terrorist activity and
(2) whether there are reasonable grounds to believe that the alien
is a danger to the security of the United States.” Cheema v. INS,

, 1041 (9th Cir. 2003), superceded on other
grounds by 

(9th Cir. 2004). We disagree with
Malachy for two reasons. First, under the clear language of the
statute, an alien is not eligible for asylum if the Attorney
General determines “there are reasonable grounds for regarding
the alien as a danger to the security of the United States,” or that
“the alien is described in . . . section 1227(a)(4)(B) of [Title 8]
(relating to terrorist activity).” 8 U.S.C. § 1158(b)(2)(A)(iv)-(v).
In this case, the BIA affirmed the IJ’s determination that
Malachy was removable under 8 U.S.C. § 1227(a)(4)(B). For
that reason, under the express language of the statute, Malachy
was not eligible for asylum.




        Second, Malachy inappropriately relies on Cheema. The
Ninth Circuit limited the Cheema ruling to cases in which the
application for asylum was filed prior to April 1, 1997, because
the Cheema decision was based on a version of the asylum
statute that preceded IIRIRA. IIRIRA eliminated the application
of the Cheema two-part analysis on all asylum applications filed
after April 1, 1997. In this case, Malachy filed his application
for asylum after March 5, 1999. Therefore, the Cheema two-
part analysis does not apply.



                               -17-
       Under the applicable version of the INA, an alien is
ineligible for asylum if the Attorney General determines that the
alien has engaged in terrorist activities. See 8 U.S.C. §
1158(b)(2)(A)(v). The BIA properly interpreted the statute in
determining that Malachy was not eligible for asylum because
he had engaged in terrorist activities. Thus, we will affirm the
BIA’s determination that Malachy is not eligible for asylum.

       C. Withholding of Removal

        Malachy also claims that the BIA erred when it
determined that he was not eligible for withholding of removal
under the INA. He claims that the BIA should have done more
than rely on its determination that he engaged in terrorist
activities. Under the INA, an alien is ineligible for withholding
of removal when the Attorney General decides that the alien is
a danger to the security of the United States. See 8 U.S.C. §
1231(b)(3)(B)(iv). The statute specifically provides that, where
the Attorney General has determined that an alien has engaged
in terrorist activities, “there are reasonable grounds for
regarding [that alien] as a danger to the security of the United
States.” 8 U.S.C. § 1231(b)(3)(B). Therefore, under the express
language of the statute, Malachy was ineligible for withholding
of removal. The BIA’s determination to this effect cannot be
considered unreasonable. Thus, we will affirm the BIA’s

determination that Malachy is ineligible for withholding of
removal under the INA.

       D. Deferral of Removal

        Malachy contends that the BIA erred when it found that
he had failed to establish a prima facie case for deferral of
removal. To establish a prima facie case for deferral, an alien
must establish that it is more likely than not that he will be
tortured in the country of removal. See 8 C.F.R. § 208.16(c)(2).
In its assessment of whether an alien will likely be tortured in


                              -18-
the country of removal, the BIA must consider “all evidence
relevant to the possibility of future torture, including
“information regarding conditions in the country of removal.”
8 C.F.R. § 208.16(c)(3). In this case, the BIA relied heavily on
the Department of State’s Country Report on Human Rights and
Practices, as it pertained to the conditions in Northern Ireland
and the United Kingdom. Based on the Country Report, the
BIA found that Catholic nationalists, conservatives, and IRA
supporters and former IRA members (even those who were
convicted and sentenced for terrorist offenses) were able to
“freely go about their lives,” “hold prominent positions in
business, government, education and other walks of life,” and
“participate openly in the political process and [] hold public
office.” The Country Report has been called the “‘most
appropriate and perhaps the best resource’ for ‘information on
political situations in foreign nations.’” Kazlauskas v. INS, 

, 906 (9th Cir. 1995) (quoting Rojas v. INS, 

, 190 n.1 (5th Cir. 1991)). Thus, there was ample basis for
the BIA’s determination that the United Kingdom was not a
place where members of Malachy’s race, religion, or political
affiliations were being tortured.

       The BIA also pointed to other evidence that demonstrated
progress towards peace in Northern Ireland, including the
devolution of power from the British Parliament to the Northern
Ireland Assembly, a reduction in the deployment of British
military troops in Northern Ireland, and evidence that
paramilitary organizations are abiding by the cease-fire,
pursuant to the Good Friday Agreement.12 The BIA found that


       12
          The Good Friday Agreement was an agreement
between the major political parties of Northern Ireland, setting
forth new constitutional arrangements for Northern Ireland. The
agreement was entered on April 10, 1998, and provided that
whether Northern Ireland would remain part of the United
Kingdom would be decided by a majority of Northern Ireland
voters. Seventy-one percent of Northern Ireland voters

                              -19-
Malachy had failed to establish that either the government of
Northern Ireland or the government of the United Kingdom
would torture him. The BIA held that the record does not
support the finding that Malachy would more likely than not be
detained and, if detained, that he would more likely than not be
tortured and, if tortured, that it would more likely than not be
with the acquiescence of the government to such torture.

        The only new evidence that Malachy presents in support
of his argument that he is more likely than not to be tortured in
Northern Ireland, is the District Court opinion regarding his son,
Mark. See McAllister v. Ashcroft, No. 04-0181 (D.N.J. July 21,
2004). Our review, however, is limited to the administrative
record of this case. See 8 U.S.C. § 1252(b)(4)(A). The District
Court opinion that Malachy asks us to consider is not part of the
administrative record here and is therefore beyond the scope of
our review. Florida Power & Light Co. v. Lorion, 

,
743 (1985). Based on the evidence in the administrative record
and because Malachy has failed to introduce any new evidence
that we may consider, we are not compelled to come to a
conclusion that is contrary to that of the BIA. We will affirm

the BIA’s holding that Malachy failed to establish a prima facie
case for deferral of removal.13




approved the agreement.
       13
          We also note that Malachy’s claim is that he will be
tortured if he is returned to Northern Ireland. Malachy,
however, is being removed to the United Kingdom. As the
federal regulations make clear, “[e]vidence that the applicant
could relocate to a part of the country of removal where he or
she is not likely to be tortured” must be considered. We see no
reason why Malachy and his family may choose not to return to
Northern Ireland but to go instead to some other part of the
United Kingdom.

                              -20-
       E. Motion to Remand

        Finally, Malachy asserts that the BIA erred when it
denied his Motion to Remand for a new hearing on his request
for deferral of removal. He argues that he is able to present new
evidence that challenges the evidence on which the BIA relied.
In this case, the BIA determined that Malachy had failed to
establish a prima facie case for deferral of removal. The BIA
recognized that Malachy presented new evidence but held that
the evidence was insufficient to overcome the BIA’s conclusion
concerning conditions in Northern Ireland. The BIA stated that
a showing of past collusion between the British government and
loyalist forces in Northern Ireland does not demonstrate that
such collusion still exists or that there is an on-going threat to
Malachy’s safety. The BIA’s reasoning in this regard is neither
arbitrary or capricious. We, therefore, hold that the BIA did not
abuse its discretion when it denied Malachy’s motion.

VI. Conclusion

       For the reasons stated above, we will deny Malachy
McAllister’s petition to review the BIA’s determination that
Malachy is removable for having engaged in terrorist activities
and to review BIA’s denial of asylum, withholding of removal,
deferral of removal, and remand.

      We will dismiss the petitions for review of Sarah, Paul
Gary, Nicola, and Sean McAllister for lack of jurisdiction.




                              -21-
Barry, Circuit Judge, concurring

             I refuse to believe that “Give me your tired, your
poor, your huddled masses yearning to breathe free . . .” is now
an empty entreaty. But if it is, shame on us.

              I concede. I cannot find a way to keep the
McAllisters in this country, and I have surely tried. But the laws
Congress has enacted, particularly those enacted in the wake of
the September 11th horror, are bullet-proof, designed, as they
should be, to combat terrorism. The problem here, though, is
that Congress’s definition of “terrorist activity” sweeps in not
only the big guy, but also the little guy who poses no risk to
anyone. It sweeps in Malachy McAllister.




        Malachy’s children, Sean and Nicola, are swept in, too,
albeit in a very different way, as victims of the “gotcha” defense
– they presented too little, too late, after their mother, Sarah,
died of cancer a mere six weeks after diagnosis and her
successful asylum application, on which they had been
dependent, became moot. The Immigration Judge had granted
asylum to Sarah and her children in a sixty-five page opinion
issued after twelve trial days during which he heard sixteen
witnesses, one of the most impressive opinions I have read in
my years on the federal bench. He found such “overwhelming
evidence of severe past persecution” suffered by Sarah because
of her religion, her political opinion, and because she was
Malachy’s wife, that, without more, she and her children should
not be forced to go back to the United Kingdom.




                              -22-
        But, in a mere four pages, the Board of Immigration
Appeals threw out that grant of asylum, concluding with utterly
no discussion that no event or combination of events rose to the
level of past persecution and that, regardless, there was little
chance of future persecution in the United Kingdom. I simply
cannot understand how the Board can have given such short
shrift to the Immigration Judge’s extensive compilation and
discussion of the innumerable acts of persecution, including “the
most striking and blatant act” that occurred on a Sunday evening
in 1985 when twelve-year-old Paul, two-year-old Nicola, and
one-year-old Sean survived twenty-six shots fired into their
home by masked gunmen “intending to kill the entire family.”
Nevertheless, because the children had to file individual
applications upon their mother’s death, applications that were
denied and then appealed to us two weeks too late, we have no
power to stop their return to a country they left when they were
little more than babies. Gotcha.




       Malachy, a Nationalist Catholic, concededly committed
two criminal acts in Belfast twenty-five years ago, and so he has
been branded guilty of “terrorist activity.” Those were terrible
days which saw, among other horrors, rioting, the burning of
vehicles, the demolition of buildings, and the harassment of
Catholic children playing and walking to school. It was a time
of violent political conflict. But that was then. No one now
suggests that Malachy poses a threat to anyone, much less to our
national security, but this is a fact that Congress does not permit
us to consider.




       Additionally, I cannot help but observe that Malachy’s
acts, and the ensuing conviction on which the findings of
removability and ineligibility for asylum or any other relief was
based, bear no relation to any common-sense understanding of


                               -23-
what “terrorist activity” really is or should be. Because,
however, Congress has defined “terrorist activity” and “engage
in terrorist activity” so broadly, it is game, set, and match. Lest
anyone question how broad those definitions are, I offer this: to
assist a suicide by knowingly providing the weapon used would
be to “engage in terrorist activity,” as would swinging a baseball
bat at someone during a bar-room brawl, as would teenage gang
members planning to go after a rival gang and use their knives
if necessary.




       Worse yet, we are prohibited from considering not only
the man Malachy is today, but the circumstances surrounding his
commission of those acts twenty-five years ago invoked now to
deny him relief – the eight hundred years of history that led
Malachy to fight with his people to remove British rule, and the
persecution inflicted by that rule on Northern Ireland and on
Malachy and his family. “The Troubles,” the Immigration Judge
found, touched each of the McAllisters’ lives. In what ways,
and how deeply? Again, we cannot inquire.

       It simply should not be that, particularly in circumstances
such as those we now have before us, the individual and his
individuality are largely, if not entirely, irrelevant, lost in a sea
of dispositive definitions and harsh and complex laws. And we
cannot be the country we should be if, because of the tragic
events of September 11th, we knee-jerk remove decent men and
women merely because they may have erred at one point in their
lives. We should look a little closer; we should care a little
more. I would ask – no, I would implore – the Attorney General
to exercise his discretion and permit this deserving family to
stay.




                                -24-