McMULLEN

Interim Decision #2967

MATTER OF McMULLEN

In Deportation Proceedings

A-23054818

Decided by Board May 25, 1.984

(1)An alien seeking asylum or withholding of deportation under sections 208(a) and
243(h) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158(a) and 1253(h)
(1982), has the burden of showing that the persecution he fears is based on his
race, religion, nationality, membership in a particular social group, or political
opinion.
(2)The respondent's refusal, for reasons of personal safety, to carry out a kidnap-
ping assignment ordered by the Provisional Irish Republican Army ("PIRA") nei-
ther constitutes political opinion nor represents conduct which Congress intended
to protect by its adoption of the asylum and withholding provisions contained in
the Act.
(3)Any person who ordered, incited, assisted, or otherwise participated in the perse-
cution of others on account of race, religion, nationality, membership in a particu-
lar social group, or political opinion is specifically excluded from the definition of
"refugee" under section 101(aX42) of the Act, 8 U.S.C. § 1101(aX42) (1982), and is
thus ineligible for asylum under section 208(a) of the Act; similarly, such a person
is prohibited from obtaining withholding of deportation under section 243(h)(2XA)
of the Act.
(4) The statutory exclusion from the definition of "refugee" of those persons who
have participated in the persecution of others represents the view of the Congress
that such persons are unworthy and undeserving of international protection.
(5)The scope of the statutory exclusion of those persons who have participated in
the persecution of others is not limited to acts committed in an official capacity
but is equally applicable to acts committed within the framework of various non-
governmental groupings, whether officially recognized, clandestine, or self-styled,
and this restriction applies even though the person so excluded may, in fact, be
the subject of persecution and notwithstanding that his persecution of others was
politically motivated.
(6)The respondent, by his active and effective membership in the PIRA, participat-
ed in the persecution of targeted individuals based upon their public opposition to
the PIRA and its terrorist activities and, as such, he may not be considered a ref-
ugee within the meaning of the Act and is, accordingly, statutorily ineligible for
both asylum and withholding of deportation.
(7)The respondent's involvement in the terrorist use of explosives and his participa-
tion in the PIRA's campaign of violence randomly directed against civilians repre-
sent acts of an atrocious nature out of proportion to the political goal of achieving
a unified Ireland and are not, therefore, within the political offense exception; ac-

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 Interim Decision #2967

cordingly, his conduct provides "serious reasons for considering" that he has
"committed serious non-political crimes" prior to his arrival in this country,
making him statutorily ineligible for relief under sections 208(a) and 243(h) of the
Act.
CHARGE:
Order: Act of 1952—Sec. 241(aX1) [8 U.S.C. § 1251(aXM—Excludable at entry
under section 212(0(19) [8 U.S.C. § 1182(a)(19))—Procured
visa by fraud or willful misrepresentation of a material fact
Sec. 241(a)(1) [8 U.S.C. §1251(aXM—Excludable at entry
under section 212(aX26) [8 U.S.C. § 1182(aX26)]—No valid
nonimmigrant visa
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Terry J. Helbush, Esquire Gerald S. Hurwitz
Simmons & Ungar Appellate Trial Attorney
517 Washington Street
San Francisco, California 94111

BY: Milhollan, Chairman; Maniatis, Dunne, and Vacca, Board Members. Board
Member James P. Morris has abstained from consideration of this case.

On October 1, 1980, this Board sustained the Immigration and
Naturalization Service's appeal from a decision of an immigration
judge finding the respondent deportable but granting his applica-
tions for asylum and withholding of deportation pursuant to sec-
tions 208(a) and 243(h) of the Immigration and Nationality Act, 8
U.S.C. §§ 1158(a) and 1253(h) (1982). Matter of McMullen, 17 I&N
Dec. 542 (BIA 1980). On October 13, 1981, the United States Court
of Appeals for the Ninth Circuit granted the respondent's petition
for review and reversed this Board's finding that the respondent
had not established the likelihood of persecution at the hands of
the Provisional Irish Republican Army ("PIRA") and that the gov-
ernment in Ireland was unable or unwilling to protect him.
McMullen v. INS, 658 F.2d 1312 (9th Cir. 1981). In its order, the
Ninth Circuit did not grant the respondent asylum or withholding
of deportation; nor did it resolve all of the issues presented. Al-
though the court did not specifically remand the case for further
consideration, the parties agree that the case is properly before the
Board. We will, therefore, reconsider our decision of October 1,
1980, under the provisions of 8 C.F.R. § 3.2 (1984). Upon reconsider-
ation, the Service's appeal is again sustained.
The respondent is a 36-year-old native and citizen of the Republic
of Ireland and the United Kingdom. 1 He last entered the United

' The respondent claims Irish citizenship through his grandmother's birth in
Northern Ireland prior to 1921.

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Interim Decision #2967

States on April 29, 1978, as a nonimmigrant visitor, using a fraudu-
lent passport bearing the name of Kevin O'Shaughnessy. On May
19, 1978, the respondent was charged with deportability under sec-
tion 241(a)(1) of the Act, 8 U.S.C. § 1251(a)(1) (1976), as an alien ex-
cludable at entry under section 212(a)(19), 8 U.S.C. § 1182(a)(19)
(1976), for having procured a visa by fraud, and as an alien exclud-
able at entry under section 212(a)(26), as a nonimmigrant not in
possession of a valid nonimmigrant visa. At his deportation hearing
the respondent admitted the allegations contained in the Order to
Show Cause, Notice of Hearing, and Warrant for Arrest of Alien
(Form I -221S) and conceded his deportability as charged. His de-
portability is not at issue.
The facts of this case have previously been discussed in both the
Ninth Circuit's decision and our prior order. The respondent claims
that he would be subject to persecution by the PIRA if deported to
the Republic of Ireland. The record overwhelmingly establishes
that the PIRA is a clandestine, terrorist organization committed to
the use of violence to achieve its objectives. During the course of
these proceedings the respondent has submitted 37 exhibits, con-
taining more than 300 pages, consisting of newspaper and maga-
zine articles, scholarly reports, and other publications, document-
ing PIRA terrorist activities between 1968 and 1979. 2 The state-
ment of Dr. Jeffrey Prager, submitted on appeal as Exhibit A to
the respondent's May 5, 1982, supplemental brief, indicates that
the PIRA, formally established in 1969, grew out of the increased
political agitation in Northern Ireland in the late 1960's. He states
that it represented a break with the controlling faction of the Irish
Republican Army ("IRA") committed to the use of parliamentary,
nonviolent means of achieving a unified Ireland. The PIRA's com-
mitment to physical force is characterized by attacks on both gov-
ernment civilian institutions and military installations, random vi-
olence against innocent civilian populations through indiscriminate
bombing campaigns, the murder or maiming of targeted individ-
uals for political reasons based on their public opposition to the
PIRA, and the use of violence to maintain order and discipline
within the PIRA's membership. Its operations have been funded, in
part, through the commission of thousands of armed robberies.
The exhibits reflect that these terrorist attacks, which include
murder, torture, maiming, and indiscriminate bombings, have been

z Respondent's exhibits 1-27 were made a part of the record as Group Exhibit 3,
his exhibits 28-33 were made a part of the record as Group Exhibit 4, and his exhib-
its 34-35 were made part of the record as Group Exhibit 'T. The respondent's supple-
mental brief on appeal contained two additional exhibits (A and B).

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 Interim Decision #2967

directed against the civilian and military populations and social in-
stitutions of Northern Ireland, the Republic of Ireland, and Great
Britain. Between 1968 and 1978, random bombings numbering in
excess of 4,000 have resulted in payment of compensation claims,
primarily related to property damage, of more than $280 million.
An example of the PIRA's suppression of public opposition reflect-
ed in the respondent's exhibits was the December 1975 doorstep
murder of Ross McWhirter, 50-year-old founder and co-editor of the
Guiness Book of Records. In response to increased terror bombings
in London by the PIRA, McWhirter had been campaigning for IRA
terrorists to be charged with treason, the only crime that still car-
ried the death penalty in Great Britain, and had organized a fund
to put up rewards totaling $102,000 for the capture of terrorists.
The PIRA later claimed credit for McWhirter's assassination. The
PIRA is also believed to be responsible for the murder of Lord
Mountbatten, his 14-year-old grandson, and others in his boating
party in September 1979, and for the murder of Sir Richard Sykes,
the ambassador to the Netherlands who was shot to death in The
Hague in March 1979.
The respondent testified that the PIRA's use of violence and
bombing campaigns rapidly escalated following the Government's
institution of its internment (detention without trial) policy in
August 1971. He also claimed responsibility for the bombing of the
British Army's Palace Barracks outside of Belfast, Northern Ire-
land, in January 1972. The respondent testified that the PIRA en-
gages in beatings, kneecappings (crippling by shooting into or
crushing the victim's knees), and murder to maintain discipline
within its membership. He contended that the PIRA commits its
violent crimes in the context that it is acting as a government, that
it recognizes no other courts or government, and that it is the only
source of law and order in the country.
In January 1972, the respondent deserted his British Army unit
and joined the PIRA. The respondent's duties with the PIRA in-
cluded providing military training to its members and conducting
special operations which involved intelligence collection and execu-
tion of operations. In 1972 he was sent to the United States by the
PIRA's General Headquarters in Dublin to coordinate arms pur-
chases and shipments. He stated that he was responsible for coordi-
nating a considerable number of arms shipments back to Northern
Ireland. The respondent testified that he had no fear of reprisals in
1974 after his initial resignation from the PIRA, as he had been on
excellent terms with the organization between 1972 and 1974, and
that until his refusal in 1977 to participate in a PIRA operation to
kidnap an American citizen for ransom, he was highly respected as

cIR
Interim Decision # 29 67

an effective member. The record reflects that the respondent re-
fused to carry out the kidnapping for reasons of personal security
based on his belief that the operation would not be successful.
On review, the Ninth Circuit found that the respondent's evi-
dence established that the PIRA is a clandestine, terrorist organi-
zation, that the Government of the Republic of Ireland is unable to
control the PIRA, and that the respondent was likely to suffer per-
secution by the PIRA if returned to the Republic of Ireland. The
Ninth Circuit did not reach the question of whether the persecu-
tion the respondent was likely to suffer would be the result of his
political opinions within the meaning of the Act. In reaching this
question now, we note at the outset that the burden is on the re-
spondent to show that the persecution he fears by the PIRA is
based on his race, religion, nationality, membership in a particular
social group, or political opinion. 8 C.F.R. § 208.5 (1984); Matter of
McMullen, supra. We conclude that the respondent has failed to es-
tablish that the persecution he fears is based on his political opin-
ion or any of the other enumerated grounds within the Act for
which asylum and withholding of deportation may be granted.
The respondent argues that his resignation from the PIRA in
1974 and his subsequent refusal in 1977 to participate in the kid-
napping of a United States citizen for ransom represents political
opinion for which the PIRA now seeks his persecution. He argues
that his refusal to carry out the kidnapping assignment and the
subsequent PIRA Court of Inquiry in 1978 charging him with the
"military violation" of failing to carry out an order was the culmi-
nation of 4 years of conflict and differences between the respondent
and the PIRA. The record does not support this argument. By his
own admissions he was on excellent terms with the PIRA in 1974
and did not fear any reprisals by the organization as a result of his
resignation at that time. Nor does the record contain any evidence
of ill will by the PIRA towards the respondent because of the resig-
nation. Following his release from prison in 1977 the PIRA ap-
proached the respondent and requested his assistance. Despite his
claim that he agreed to work for the PIRA because of threats, he
subsequently testified that the reason he began working with the
PIRA in 1977 was because 'Whey were low on manpower and
money and the organization was trying to get back on its feet." The
only evidence in the record suggesting a basis for the PIRA's perse-
cution of the respondent is his refusal to carry out the kidnapping
assignment. With regard to this refusal, the respondent testified
that his reasons were primarily for his personal security based on
his belief that too many people knew about the operation and that
as a result it more than likely would have failed.
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 Interim Decision #2967

We are satisfied from a review of the record that the respondent
has not established that the persecution he fears by the PIRA is
based on political opinion or any other designated ground within
the Act. His refusal to commit the crime of kidnapping for reasons
of personal safety does not constitute political opinion. Nor does it
represent conduct which Congress intended to protect by its adop-
tion of the asylum and withholding provisions contained in sections
208(a) and 243(h) of the Act. The record clearly shows that the
PIRA uses violence and threats of violence internally to maintain
discipline and order within the rank and file of its membership. As
such, the 1111A.'s use of violence against its members is essentially
apolitical, representing an indifference to the personal views and
opinions of those members who are subject to sanctions. We con-
clude that this internal use of violence by the PIRA does not con-
stitute persecution within the meaning of the Act. See Matter of
Pierre, 15 I&N Dec. 461 (BIA 1975). Moreover, its use of internal
violence existed at the time the respondent joined the PIRA and
continued throughout his active membership. Having elected to
participate in the PIRA, with knowledge of its internal disciplinary
policies, the respondent is not now in a position to complain.
We further conclude that the respondent, by his membership in
the PIRA, participated in the persecution of others and may not,
therefore, be considered a refugee. He is, accordingly, statutorily
ineligible for both asylum and withholding of deportation. Section
208(a) of the Act authorizes the Attorney General., in his discretion,
to grant asylum to an alien who is determined to be a refugee
within the meaning of section 101(a)(42) of the Act, 8 U.S.C.
§ 1101(aX42) (1982). That section defines "refugee," in relevant part,
as
any person who is outside any country of such person's nationality or, in the case
of a person having no nationality, is outside any country in which such person
last habitually resided, and who is unable or unwilling to return to, and is unable
or unwilling to avail himself or herself of the protection of, that country because
of persecution or a well-founded fear of persecution on account of race, religion,
,

nationality, membership in a particular social group, or political opinion.
Section 101(a)(42)(B) specifically excludes from the definition of
"refugee" "any person who 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." The identical limitation regarding the scope of
coverage also prohibits granting withholding of deportation. pursu-
ant to section 243(h)(2)(A). See 8 C.F.R. § 208.8(f)(1)(a0 (1984).
While there is no universally accepted defmition of "persecu-
tion," "a threat to life or freedom on account of race, religion, na-
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Interim Decision #2967

tionality, political opinion or membership of a particular social
group is always persecution." Matter of Laipenieks, 18 I&N Dec.
433, 457 (MA 1983). We recognize that the persecution contemplat-
ed under the Act is not limited to the conduct of organind govern-
ments but may, under certain circumstances, be committed by indi-
viduals or nongovernmental organizations. Rosa v. INS, 440 F.2d
100 (1st Cir. 1971); Matter of McMullen, supra; Matter of Pierre,
supra; Matter of Tan, 12 I&N Dec. 564 031A 1967).
The record demonstrates that the PIRA engages in the persecu-
tion of targeted individuals based on their public opposition to the
orgwnivation and its terrorist activities. These political assassina-
tions are exemplified by the murder of Ross McWhirter and the
suspected responsibility for the murder of Sir Richard Sykes and
Lord Mountbatten. This persecution by the PIRA is distinguished
from its use of violence to maintain discipline and order within the
rank and file of its membership and its indiscriminate bombing
campaigns, neither of which involve persecution based on political
opinion.
We find that the respondent, by his active and effective member-
ship in the PIRA, participated in the persecution of others. Our
finding is supported by the London Agreement of 8 August 1945
and Charter of the International Military Tribunal 8 which in-
cludes in the definition of "crimes against humanity" "persecutions
on political, racial or religious grounds" and states with regard to
any such crimes that "Meaders, organisers, instigators and accom-
plices participating in the formulation or execution of a common
plan or conspiracy to commit any of the foregoing crimes are re-
sponsible for all acts performed by any persons in execution of such
plan." The record reflects that at the time the respondent joined
the PIRA its use of violence was escalating. The respondent testi-
fied that he was respected as an effective member of the PIRA
until 1977 and that his duties included training other PIRA mem-
bers and conducting special operations. We find it significant that
the respondent was personally responsible for coordinating a con-
siderable number of illegal arms shipments from the United States
to Northern Ireland. Through those arms shipments the respond-
ent directly provided, in part, the instrumentalities with which the
PIRA perpetrated its acts of persecution and violence. We have no
difficulty in concluding that these arms were directly involved in

3 Artiole 6 of the London Agreement is reproduced in Annex V, of the Office of

the United Nations High Commissioner for Refugees, Handbook on Procedures and
Criteria for Determining Refugee Status Under the 1951 Convention and the 1967
Protocol Relating to the Status of Refugees 88 (Geneva, 1979).

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 Interim Decision #2967

the murder, torture, and maiming of innocent civilians who public-
ly opposed the PIRA, and we are unwilling to isolate these arm
shipments from their ultimate use by the PIRA in conducting its
campaign of terror. Thus, we find clear evidence that the respond-
ent aided and assisted in the persecution of others within the
meaning of the Act. See Fedorenko v. United States, 449 U.S. 490
(1981); Matter of Laipenieks, supra; see also United States v. Kowal-
chuk, 571 F. Supp. 72 (E.D. Pa 1983); United States v. Osidach, 513
F. Supp. 51 (E.D. Pa. 1981).
The provisions of sections 101(a)(42)(B) and 243(hX2)(A), by ex-
cluding from the definition of "refugee" persons who have partici-
pated in the persecution of others, parallel and are consistent with
the fundamental principles embodied in the United Nations 1951
Convention 4 and 1967 Protocol Relating to the Status of Refugees. 5
ThisexcluonfrmgstaudehAcrpsnt
view that those who have participated in the persecution of others
are unworthy and not deserving of international protection. The
persecution which forms the basis of the exclusion is not, limited to
acts committed in an official capacity but is equally applicable to
persons who have committed such persecution within the frame-
work of various nongo veunneutal groupings, whothor officially rec-
ognized, clandestine, or self-styled. This restriction on the scope of
refugee status applies even though the person so excluded may, in
fact, be the subject of persecution and notwithstanding that his
persecution of others was politically motivated. 6 The prohibited
conduct is deemed so repugnant to civilized society and the commu-
nity of nations that its justification will not be heard.
We are also satisfied from a review of the record that "there are
serious reasons for considering" that the respondent by his activi-
ties as a member of the PIRA has committed "serious non-political
crimes," making him. statutorily ineligible for asylum and with-
holding of deportation. 8 C.F.R. § 208.8(f)(1)(v) (1984); section
243(h)(2)(C) of the Act; see also Matter of Rodriguez-Palma, 17 I&N
Dec. 465 (BIA 1980); of Matter of Frenteseu, 18 I&N Dec. 244 (BIA
1982). Whether crimes are of a political character is primarily a
question of fact. Ornelas v. Ruiz, 161 U.S. 502 (1896). In evaluating
the political nature of a crime, we consider it important that the

4 United Nations Convention Relating to the Status of Refugees, July 28, 1951,
189 U.N.T.S. 150.
United Nations Protocol Relating to the Status of Refugees. Jan. 31, 1967.119681
19 U.S.T. 6223, T.I.A.S. No- 65'17, 606 U.N.T.S. 268.
6 Compare section 243(hX2XC) of the Act with 8 C.F.R. §208.8(f)(1Xv) (1984) (involv-
ing ineligibility for asylum and withholding of deportation based on the commission
of a "serious non-political crime").

nr7
Interim Decision #2967

political aspect of the offense outweigh its common-law character.
This would not be the case if the crime is grossly out of proportion
to the political objective or if it involves acts of an atrocious
nature.
The record before us reflects that during the period of the re-
spondent's active membership in the PIRA, that organization's use
of random bombings of civilian targets increased. An example of
this random bombing, depicted in the respondent's exhibits, was
the detonation of 500 pounds of explosives contained in a van
parked on a Belfast street, half a block from the Europa, the city's
principal hotel. The exhibits further reflect the common practice of
using vehicles parked in residential streets containing 100-800
pounds of explosives. These bombings are not generally directed at
specific targets but rather are designed to randomly terrorize the
public. We note that such terrorist bombings have been universally
condemned as atrocious in nature. The record further reflects that
the respondent's duties as a member of the PIRA included the
training of other PIRA members and the conduct of special oper-
ations. One such operation was the coordination of a considerable
number of arms shipments to Northern Ireland for use by the
PIRA. The actions and policies of the PIRA of which the respond-
ent was fully cognizant and participated in while a member provid-
ed serious reasons to believe that he is responsible for committing
"serious non-political crimes."
We find that the respondent's involvement in the terrorist use of
explosives and his participation in the PIRA's campaign of violence
randomly directed against civilians represent acts of an atrocious
nature out of proportion to the political goal of achieving a unified
Ireland and are not, therefore, within the political offense excep-
tion. See Ornelas v. Ruiz, supra; Bain v. Wilkes, 641 F.2d 504, 519-
24 (7th Cir.), cert. denied, 454 U.S. 894 (1981). Ornelas involved ex-
tradition proceedings related to a. raid on a Mexican village and its
military garrison by more than. 100 men, resulting in murder,
arson, robbery, assault, and kidnapping of both Mexican soldiers
and private citizens. The Court refused to apply the political of-
fense exception there "in view of the character of the foray, the
mode of attack, the persons killed or captured, and the kind of
property taken or destroyed," notwithstanding the political inten-
tions and objectives of those who committed the violent crimes. Or-
nelas v. Ruiz, supra, at 510-12. It is apparent that the Court viewed
the civilian status of the victims as significant in evaluating the
applicability of the political offense exception and considered the
raid a form of political activity not encompassed within the excep-
tion.
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 Interim Decision #2967

In Eain, also involving extradition proceedings, the Seventh Cir-
cuit refused to apply the political offense exception to the bombing
of a West Bank marketplace, crowded with civilians, by a Palestini-
an Liberation Organization terrorist. The court distinguished be-
tween acts directed at civilians, "terrorist activity," and those di-
rected at a government, with only the latter type possibly being
within the political offense exception. Characterizing this distinc-
tion as the difference between "isolated acts of social violence"
such as the killing of civilians, and a more concerted effort to
topple the existing government in a country, the court stated:
The definition of "political disturbance," with its focus on organized forms of ag-
gression such as war, rebellion and revolution, is aimed at acts that disrupt the
political structure of a State, and not the social structure that established the gov-
ernment. The exception does not make a random bombing intended to result in
the cold-blooded murder of civilians incidental to a purpose of toppling a govern-
ment, absent a direct link between the perpetrator, a political organization's polit-
ical goals, and the specific act. Bather, the indiscriminate bombing of a civilian
populace is not recognized as a protected political act even when the larger "polit-
ical" objective of the person who sets off the bomb way be to eliminate the civil-
ian population of a country.
Eain v. Wilkes, supra, at 520-21. Comparing terrorist activities di-
rected at the civilian population with those of the anarchist, the
,

court concluded:
As recent commentators have stated, "an offense having its impact upon the citi-
zenry, but not directly upon the government, does not fall within the political of-
fense exception." See Costello, International Terrorism and the Development of the
Principle Aut Dedere Aut Judicare, 10 J. Intl Law & Econ. 475, 501 (1975) quoting
U.N. Secretariat study: "(The legitimacy of a cause does not in itself legitimize
the use of certain forms of violence especially against the innoceng.1" (Citation
omitted.)
Id. at 521. In view of the respondent's effective participation in the
PIRA and the nature of the offenses perpetrated against innocent
civilians, we conclude that he has committed "serious non -political
crimes" and is ineligible for the requested relief.
Moreover, considering the record in its entirety, we find that the
respondent is not deserving of asylum and specifically deny this
relief in the exercise of discretion. Matter of Salim, 18 I&N Dec.
311 (BIA 1982). In Salim, asylum was denied in the exercise of dis-
cretion based on the alien's avoidance of this country's orderly ref-
ugee procedures through the use of fraudulently obtained documen-
tation. Although present in the instant case, the respondent's use
of fraudulently obtained documentation is clearly overshadowed by
the serious adverse factor of his involvement in the PIRA's random
violence directed against innocent civilians. He may not separate
the active and effective role he played in the PIRA's operations
from responsibility for that organization's indiscriminate bombing
Interim Decision # 2967

campaigns or its murder, torture, and maiming of innocent civil-
ians who disagreed with the PIRA's objectives or methods. The
record contains no countervailing equities to overcome the ex-
tremely negative discretionary factors present.
Accordingly, we will again sustain the appeal.
ORDER: On reconsideration, the appeal is sustained, and the
respondent shall be deported to the Republic of Ireland.

100