McMULLEN

Interim Decision #2831




                              MATTER OF MCMULLEN

                            In Deportation Proceedings
                                       A-23054818
                        Decided by Board October 1, 1980
(1) Unlike asylum, which is discretionary under the Refugee Act of 1980, relief under
  section 243(h), as amended by that Act, is mandatory for an eligible alien.
(2) Those cases which hold that applications for withholding of deportation and/or
  asylum can be made where persecution by a nongovernmental individual or organization is feared, if a showing is made that the government in power is unwilling or
  unable to protect the alien, are as applicable under the Refugee Act of 1980 as they
  were under prior law.
(3) The legislative history of the Refugee Act of 1980 indicates that Congress' intent in
  substituting "life or freedom would be threatened" for "persecution" in section 248(h)
  of the Immigration and Nationality Aat, 8 U.S.C. 1253(h), Was simply to adopt the
  United Nations 1951 Convention and 1967 Protocol Relating to the Status of Refugees,
   not to broaden the scope of section 243(h).
(4) Newipaper and magazine articles submitted by the respondent regarding conditions
  in Ireland and Great Britain, which are of a general nature and which do not relate to
  the respondent specifically, will be accorded little evidentiary value, as this evidence is
  not probative on the issue of this particular alien being subject to persecution if
  deported to Ireland.
5) Evidence submitted by the respondent to establish persecution claim, while showing
  the difficulty of controlling terrorism in Ireland, does not show, 1) that the Irish
  government would he unable, if necessary, to protect the respondent, a defected
  member, from the Provisional Irish Republican Army, or, 2) that the government of
  Ireland would persecute him.
(6) Decisions resulting from extradition proceedings are not entitled to res indicate
  effect in later proceedings, and Board is thus not bound by United States Magistrate's
  determination, in extradition case, that respondent's crimes were political in nature.
CHARGE:
  Order: Act of 1952—Sec. 241(a)(1) [8 U.S.C. 1251(a)(1))—Excludable at entry under
                        sec. 212(a)(19) [8 U.S.C. 1182(a)(19)]—obtained visa or other
                        documentation by fraud
                      Sec. 241(a)(1) [8 U.S.C. 1251(a)(1)]—Excludable at entry under
                        sec. 212(a)(26) [8 U.S.C. 1182(a)(26))—no valid nonimmigrant
                        visa
ON BEHALF OF RESPONDENT:                                ON BEHALF OF SERVICE:
 Michael Maggio, Esquire                                 Gerald S. Hurwitz
 Goren & Maggio                                          Appellate Trial Attorney

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  1801 Columbia Road, N.W.
  Suite 100                                        Brian H. Simpson
  Washington, D.C. 20009                           Trial Attorney
  Lynn Sonfield, Esquire
  Nancy Howard, Esquire
  San Francisco Neighborhood
    Legal Assistance Foundation
  250 Columbus Avenue, Suite 200
  San Francisco, California 44133
By:   Milhollan, Chairman; Maniatis, Applentan, and Maguire, Board Members


   In a decision dated January 10, 1980, an immigration judge found the
 respondent deportable, but granted his applications for political
 asylum and for withholding of deportation. The Immigration and
Naturalization Service appealed. Oral argument was heard before the
 Board on June 19, 1980. The appeal will be sustained.
   The respondent, 32 years old, was born in Northern Ireland, and
through this place of birth is a citizen of Great Britain. He also claims
Irish citizenship through his grandmother's birth in Northern Ireland
prior to 1921 (Tr. at 57). He last entered the United States on April 29,
1978, as a nonimmigrant visitor, using a passport bearing the name of
Kevin O'Shaughnessy. An Order to Show Cause was issued against
him on May 19, 1978, charging him with deportability under section
241(a)(1) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(1),
as an alien excludable at entry under section 212(a)(19), 8 U.S.C.
1182(a)(19), for having procured a visa by fraud or willful misrepresentation, and as an alien excludable at entry under section
212(a)(26), as a nonimmigrant not in possession of a valid nonimmigrant visa.
   At a deportation hearing begun on May 22, 1978, and completed on
October 28, 1979, the respondent admitted the allegations in the Order
to Show Cause, and conceded deportability. He alleged, however, that
he was formerly a member of the Provisional Irish Republican Army
(hereinafter the PIRA), that in 1977 he refused to participate in a
PIRA scheme to kidnap an American for ransom, and that, due to this
refusal, he had been tried by the PIRA, and sentenced to death. He
claims that if he is forced to return to Ireland, he will be killed by the
PIRA, and the Irish government will be unable to prevent it. He also
claims that he would be subject to persecution by the Irish government. The immigration judge did not address the claim of persecution
by the government, but he accepted the claims of persecution by the
PIRA. After some discussion, he found the respondent eligible for
asylum and withholding, and, determining that he could not, under his
interpretation of Matter of Thenar, 14 I&N Dee_ 310 (BIA 1973), deny
 Interim Decision #2831

 the applications on discretionary grounds, asylum and withholding
 were granted. We do not agree that the respondent has established
 that the government in Ireland will be unable or unwilling to protect
 the respondent from the PIRA. Nor do we believe that the respondent
 will suffer harm at the hands of the Irish government itself. The
 immigration judge's decision will accordingly be reversed.
   An applicant for withholding of deportation under section 243(h) of
 the Act, 8 U.S.C. 1253(h), must show that, if deported, he would be
subject to persecution based on his race, religion, nationality, membership in a particular social group, or political opinion. Section 243(h) of
the Act; as amended by section 203(e) of the Refugee Act of 1980. To
meet his burden of proof, an alien must demonstrate a clear
probability that he will be persecuted if returned to his country. Cheng
Kai Fu v. INS, 

 (2 Cir. 1967, cert. denied 

(1968). Under the Refugee Act, 243(h) relief is Mandatory, not discretionary, once eligibility has been shown, unless an alien comes within
one of the four exclusions now set forth in section 243(h). 1 Similarly, to
qualify for asylum, an alien must show that he would be persecuted for
one or more of the same five reasons mentioned above in describing
section 243(h). See also 8 C.F.R. 208.5 regarding the burden of proof in
asylum cases (effective June 1, 1980). A grant of asylum is discretionary under the Refugee Act, however. See section 101(a)(42) of the Act, 8
U.S.C. 1101(a)(42) (Section 201(a) of the Refugee Act of 1980); section
208 of the Refugee Act... 2
   Although in general 243(h) relief and asylum contemplate persecution of an alien by the government in the country to which he is
returnable, the cases have held that a 243(h) claim can under certain
circumstances be made where an alien claims that he will be persecuted not by a foreign government, but by an individual or an
organization. In order to prevail with such a claim, there must be a
showing that the government in power is either unable or unwilling to

    Subparagraph (2) of section 243(h) provides that relief under that section shall not
apply to any alien if the Attorney General determines that—
     (A) the alien ordered, incited, assisted, or otherwise participated in the persecution
  of any person on account of race, religion, nationality, membership in a particular
  social group, or political opinion;
     (B) the alien, having been convicted by a final judgment of a particularly serious
  crime, constitutes a danger to the community of the United States;
     (C) there are serious reasons for considering that the alien has committed a serious
  nonpolitical crime outside the United States prior to the arrival of the alien in the
  United States; or
     (14 there are reasonable grounds for regarding the alien as a danger to the security
  of the United States.
  2 We note that under present regulations the exceptions to 243(h) apply also to

applicants for asylum. See 8 C.F.R. 208.7(f)(1)(iii), (iv), (v), (vi) (effective June 1, 1980).

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protect the alien. Rosa v. INS, 

 (1 Cir. 1971); Matter of
Pierre, 

 (BIA 1975); Matter of Tan, 

(BIA 1967). While these cases were decided prior to the enactment of
the Refugee Act of 1980, we believe they are applicable to an alien
seeking 243(h) relief, or asylum, under the new Act.
  The current language of 243(h) is broader than it was previously, in
that it now speaks not specifically of "persecution," as did the old
243(h), but rather provides for withholding of deportation if the Attorney General determines that an "alien's life or freedom would be
threatened" in a country to which he may be sent. There is nothing in
the legislative history of the Refugee Act, however, to indicate that the
new, broader language of 243(h) was intended to change the application of the section so as to provide relief to those who fear harm from a
nongovernmental group or individual. Rather, the legislative history
reflects that Congress' intent in substituting "life or freedom would be
threatened" for "persecution," was simply to adopt, almost verbatim,
the United Nations 1951 Convention and 1967 Protocol Relating to the
Status of Refugees (United Nations Treaty Series, Vol. 189, p. 37 and
Vol. 606, p. 267. See Article 1, section A(2) and F, and Article 33 of the
Convention), and to insure that withholding under the Act be construed consistently with the Protocol. See S. Rep. No. 96 256, 96th
                                                                -


Cong., 2nd Sess. 17, reprinted in April 1980, U.S. Code Gong. & Ad.
News 531; House Conference Rep. 96-781, Joint Explanatory Statement of the Committee of Conference, 96th Cong., 2nd Bess. 20,
reprinted in April 1980, U.S. Code Ccmg. & Ad. News 535. We will
therefore require under the new Act, as we did under the old law, that
an alien must show either persecution by the government in the
country to which he is returnable, or persecution at the hands of an
organization or person from which the government cannot or will not
protect the alien.
   In the present case, the immigration judge stated that, "I am satisfied from the evidence presented that the Government of the Republic
of Ireland is unable to control the activities of the PIRA and that if the
respondent were to be returned to that country he would suffer persecution within the meaning of the Convention, Protocol and section
243(h)." In making this determination, the immigration judge did not
discuss the evidence in any meaningful manner; indeed he did not
specifically discuss any evidence at all, so we cannot tell on what basis
the immigration judge made his decision. Our own review of the
evidence, however, does not persuade us that the respondent is likely to
suffer persecution if returned to Ireland.
  The respondent has submitted voluminous documents in support of
his persecution claim. Most of the documents are of a general nature,
describing such things as Irish history and the workings of the IRA
Interim Decision #2831

and PIRA. Descriptions of numerous killings and violent incidents
relating to the Irish conflict are given. There are also Amnesty International reports regarding allegations of brutality by the Irish
police, and other documents relating to this alleged brutality. The vast
majority of the documents relate either to conditions in Ireland and
Northern Ireland generally, or to persons other than the respondent.
Four documents, however, do relate specifically to the respondent. Two
of these are articles from newspapers (the Irish, Times on August 24,
1978, and the San Francisco Sunday Examiner & Chronicle on March
28, 1979) reporting on the respondent's extradition proceedings. Both
articles refer briefly to the respondent's belief that the PIRA has a
"contract" out on him to kill him. A third article, from the August 31,
1978, Hibernia Review, briefly describes the respondent's life, and
indicates that he may have something to fear from the IRA. The final
article, from the September 24, 1978, San Francisco Sunday Examiner
& Chronicle, discusses the respondent's involvement in the 1972 bombing of a British army 'barracks and his subsequent break with the
PIRA, but quotes several sources as saying that the IRA no longer has
any interest in the respondent (these latter two articles speak of the
respondent's involvement in the IRA, though in fact it was the PIRA in
which the respondent was involved).
  We do not give much weight to those articles submitted by the
respondent which are of a general nature and do not in any way relate
to the respondent himself, Such evidence is not probative on the issue
of the likelihood of this alien being subject to persecution if deported to
Ireland. See generally Fleurinor v. INS, 

 (5 Cir. 1978);
Matter of Chumpitazi, 

 (BIA 1978). Those articles
which do relate to the respondent, together with his own statement
 and those of his mother, sister, and brother, indicate that the respondent may be wanted, or may at one time have been wanted, by the PIRA.
However, even accepting this possibility as fact, no adequate showing
has been made that the government in Ireland cannot control the
PIRA or protect the respondent from that organization. We recognize
that the PIRA and the IRA have engaged in numerous acts of violence
in recent years, and that the Irish government has not been able to
wholly control this terrorism- However, the evidence presented by the
respondent simply does not convince us that the respondent would be
in imminent peril for his life or limb if returned to Ireland, and that
the government there would be unable to protect him against harm
from the PIRA. While the evidence submitted reflects the difficulty of
controlling terrorism in Ireland, it does not show that the government
there, which is a stable one, would not be able, if necessary, to protect
the respondent.
   We turn next to the respondent's claim of persecution by the Irish
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government itself. The immigration judge specifically limited his decision to anticipated persecution by the PIRA. However, as certain of the
documents submitted by the respondent relate to alleged mistreatment of detainees and prisoners, especially those suspected of terrorist
activity, by the Irish police (the "Garda"), and as the respondent has
alleged on appeal that he would be persecuted by the Garda due to his
former membership in the PIRA, it is appropriate to address this issue
here.
   We note at the outset that none of the evidence presented which
relates to the actions of the Garda mentions the respondent specifically. Moreover, the evidence suggests that the Irish government has
attempted to curb the abuses of the Garda. The respondent himself
testified at his deportation hearing that when he was picked up and
held by the Garda in 1974, he was not mistreated (Tr. at 47). He admits
this again on appeal (respondent's brief at 15). However, the respondent argues that because he was a member of the PIRA and has
knowledge of that organization, he will be questioned by the Garda if
returned to Ireland. He further states that because of his fear of
retaliation by the PIRA, he will refuse to give information to the
Garda, as he did in 1974, and the Garda will therefore resort to
physical and psychological coercion to force him to talk (brief at 17 18).          -


These claims amount to no more than pure speculation. There is no
evidence in the record, other than the respondent's own statements, to
show that the Garda has any present interest in the respondent, or
that, even if he were to be questioned, he would be mistreated or
subject to undue coercion. The respondent has failed to meet his
burden of establishing that he would be persecuted by the government
of Ireland if deported to that country.
  Much of the immigration judge's decision, as well as much of the
discussion on appeal (at oral argument and in the briefs presented),
related to the issue of whether the crimes committed by the respond
ent in Ireland were "political" crimes, and therefore not a bar to
withholding of deportation or asylum.' Because we have determined
that the respondent has not established that he would be persecuted
within the meaning of the law, we need not reach the intriguing
question of whether his crimes were of such a nature that they would
not prevent him from obtaining the relief he now seeks. We will state
in this regard, however, that we do not consider ourselves bound by the
United States Magistrate's decision in extradition proceedings, in
which he found that the crimes committed by the respondent were


  ' The law has made provision for precluding those suspected or convicted of nonpolitical crimes from obtaining 245(h) relief or asylum.

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Interim Decision #2831

political, and that they therefore barred his extradition.'
  Decisions resulting from extradition proceedings are not entitled to
res judicata effect in later proceedings. Hooker v. .Klein, 

(9 Cir. 1978). See also Jitirad v. Fernandina, 

 (2 Cit.. 1976).
To begin with, the parties to the respondent's extradition case are not
the same as the parties here, since the real party in interest in the
extradition proceeding was the Republic of Ireland, not the United
States, as it is in deportation proceedings. See Ornelas v. _Ruiz, 

 (1896); Cleugh, v. Strakosch,

 (9 Cir. 1940). In order for
res judicata to bar litigation of an issue in a subsequent proceeding,
the two actions must involve the same parties (or those in privity with
them). 

 Commissiorter v. Summit, 

 (1948);
Pena-Cabanillas v. U05, 

 (9 Cir. 1968). Moreover, the res
judicata bar goes into effect only where a valid, final judgment has
been rendered on the merits (

 and it is well established
that decisions and orders regarding extraditability "embody no judgment on the guilt or innocence of the accused, but serve only to insure
that his culpability will be determined in another ... forum." Aired,
supra, at 482. While the function of a deportation proceeding also is not
to decide an alien's guilt or innocence of a crime, those cases holding
that extradition decisions do not bind judicial bodies in later criminal
proceedings are as applicable to subsequent deportation proceedings
as they are to subsequent court proceedings. The issues involved in a
deportation hearing differ from those involved in an extradition case,
and resolution of even a common issue in one proceeding is not binding
in the other. This Board has noted that extradition and deportation
proceedings are distinct and separate. See Matter of Perez-Jiminez, 

 (BIA 1963). For these reasons, we do not consider ourselves in any way bound by the magistrate's decision denying extradition, and by his findings regarding the nature of the respondent's
crimes.
   The record reveals some confusion as to the country of deportation,
due in part, it appears, to the lengthy and drawn-out nature of the
respondent's deportation hearing. See Tr. at 5, 8, 21-22, 58-60, 91-93.
Despite some comments at the hearing to the contrary, the immigration judge in his decision stated that he had at the hearing designated
only the Republic of Ireland; no mention was made in the decision of
the possibility of deportation to Great Britain. On appeal, the respondent and the Service have gone to considerable trouble to support their
   The immigratinn judge at the hearing monessed his concern over the possibility that
the magistrate's decision regarding the political nature of the respondent's crimes
might be binding on this issue (Tr. at 32). In his decision, at p. 7, he stated that he agreed
with the magistrate's conclusions on this issue, but did not say he considered himself
bound by them_

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                                                Interim Decision #2831
respective arguments regarding the designation of countries of deportation. The Service argues that both the Republic of Ireland and
Great Britain had to be designated, and should have been designated
by the immigration judge. The respondent argues that it was proper
for the immigration judge to designate only Ireland. We need not
decide which of these positions is correct. However, as the respondent's
persecution claims at the hearing related only to Ireland, in the event
that deportation to that country cannot be effected, the Service may
file a motion to reopen these proceedings for further designation of the
place of deportation and related applications.
   ORDER: The appeal is sustained, and the respondent shall be
deported to the Republic of Ireland.