14 April 2006

Judge decries rigid immigration laws in Irishman's asylum case (Malachy McAllister)

Newsday.com

By MARYCLAIRE DALE
Associated Press Writer
April 13, 2006, 7:08 PM EDT

PHILADELPHIA -- A federal appeals court judge sharply criticized U.S. immigration laws, writing in a court opinion that rules designed to combat terrorism instead force the "knee-jerk" removal of "decent men and women."

Judge Maryanne Trump Barry complained that judges have no discretion in applying harsh and complex laws and asked the attorney general to intervene in the case of a man from Northern Ireland denied asylum this week by the 3rd U.S. Circuit Court of Appeals.

"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," Barry wrote in a concurring opinion.

The case involved Malachy McAllister, a former member of the paramilitary Irish National Liberation Army convicted in the 1981 wounding of a British policeman.

McAllister served three years in a Northern Irish prison for his role as the lookout. In 1988, British loyalists stuck assault rifles through the windows of his Belfast home and fired 26 rounds when only McAllister's mother-in-law and young children were there.

McAllister and his family came to the U.S. through Canada on a tourist visa in 1996 and have spent more than a decade living quietly in a northern New Jersey suburb, where he works as a stone mason.

After McAllister applied for asylum, the Bureau of Immigration Affairs ordered him deported on the grounds of prior "terrorist activity." McAllister's lawyers appealed, arguing that the definition of such activity was unconstitutionally broad and vague.

The 3rd Circuit panel disagreed.

"The definition includes a great deal of conduct, but all of this conduct could reasonably constitute terroristic activities," Judge Jane R. Roth wrote.

Barry agreed with the conclusion, but suggested judges should be given more discretion.

"We cannot be the country we should be if, because of the tragic events of Sept. 11, we knee-jerk remove decent men and women merely because they may have erred at one point in their lives," wrote Barry, who said McAllister's actions came as part of a struggle to end more than 800 years of British rule. "We should look a little closer; we should care a little more."

McAllister's supporters doubt an appeal to the Supreme Court would succeed, and are instead seeking relief through Congressional and Bush administration channels.

U.S. Rep. Steve Rothman, D.-N.J., who is pushing a bill to let the family stay, has secured a pledge from the Department of Homeland Security not to detain McAllister for at least the next several weeks to give Congress time to act, an aide said Thursday.

"I don't think we're going to have any opposition in Congress," said Bob Decheine, Rothman's chief of staff.

Meanwhile, they have asked Homeland Security Secretary Michael Chertoff, who once served on the 3rd Circuit, to step in. By law, the department cannot comment on whether people are seeking asylum, a spokeswoman said.

McAllister's lawyer, Eamonn Dornan, said judges should have the leeway to distinguish between his client's case and that of someone from a country at odds with the United States.

"He is no threat to the safety and security of the United States. No Irish man ever has been," Dornan said.

Two of McAllister's children were also ordered deported on grounds their appeal was filed two weeks too late.

An immigration judge had at one point granted them and their mother asylum, but the children's application _ which was attached to their mother's _ was rendered moot when she died suddenly of cancer in May 2004.

Those children, Nicola, 19, and Sean, 18, are now college students.

Malachy McAllister believes the family could face persecution if they return to Northern Ireland.

"We could be sent back to a country that we were lucky to escape from with our lives," McAllister, who lives in Wallington, N.J., told The Associated Press earlier this year. "It plays on my mind every second of the day."

Roth, in her opinion, points to a State Department report that finds that former members of the Irish Republican Army have been able to live freely and hold office in Great Britain.

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