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McAllister v. Attorney General of the United States

April 10, 2006

MALACHY MCALLISTER; *FN1MARK 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.
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).

The opinion of the court was delivered by: Roth, Circuit Judge

PRECEDENTIAL

Argued on June 29, 2005.

BEFORE: ROTH, RENDELL and BARRY, Circuit Judges.

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.*fn2 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 lookout 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 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)*fn3 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 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.*fn4 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 eliminated. See 8 U.S.C. § 1252(a)(2)(D).*fn5 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),*fn6 we lack 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).*fn7 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, 257 F.3d 1304, 1310 (11th Cir. 2001) (holding that 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, 209 F.3d 788, 793 (5th Cir. 2000) (same); Abdel-Razek v. INS, 114 F.3d 831, 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, 260 F.3d 318, 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, 173 F.3d 601, 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, 129 F.3d 29, 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 Yousefi, 260 F.3d at 325. See also Xiong, 173 F.3d at 608; Choeum, 129 F.3d at 39. 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.

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. CONST. art. III, § 2; Spencer v. Kemna, 523 U.S. 1 (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, 523 U.S. 1, 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. ยง 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 ...


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