Malachy McALLISTER; Mark J. McAllister; Sarah B. McAllister; Paul Gary McAllister; Nicola McAllister; Sean R. McAllister, Petitioners v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent.
Nos. 03-4513, 04-3695
United States Court of Appeals, Third Circuit
Argued June 29, 2005. April 10, 2006.
444 F.3d 178
Under New York law,4 an implied-in-fact contract requires all of the elements required of any valid contract, including consideration, mutual assent, legal capacity, and legal subject matter. Maas v. Cornell Univ., 94 N.Y.2d 87, 93-94, 699 N.Y.S.2d 716, 721 N.E.2d 966 (1999). A promise to perform a pre-existing legal obligation does not amount to consideration. Goncalves v. Regent Int‘l Hotels, Ltd., 58 N.Y.2d 206, 220, 460 N.Y.S.2d 750, 447 N.E.2d 693 (1983). Appellants argue that NGIT‘s issuance of certification letters to them induced them to travel to the United States and that this exchange constitutes consideration for their implied-in-fact contract. But it was NGIT‘s requirements under its contract with the DOS, not its desire to induce Appellants to travel to the United States, that obligated it to process Appellants’ applications and issue certification letters to them. Therefore, there is no implied-in-fact contract between Appellants and NGIT.
These same pre-existing obligations pertain to NGIT‘s relationship with LVA. NGIT did not enter into a contract with LVA as to which Appellants could advance a third-party beneficiary claim. NGIT‘s recommendation that LVA be approved as an IPPCTP employer was not made in consideration for any promise by or detriment to LVA. Instead, NGIT evaluated LVA as a potential employer as it was obligated to do by its contract with the DOS. Without consideration exchanged between NGIT and LVA, there was no contract for NGIT to breach.
Because Appellants’ breach of contract claims fail as a matter of law, they were properly dismissed on summary judgment by the district court.
CONCLUSION
For the foregoing reasons, the district court‘s grant of summary judgment to Appellee is hereby affirmed.
Malachy McALLISTER; *Mark J. McAllister; Sarah B. McAllister; Paul Gary McAllister; Nicola McAllister; Sean R. McAllister, Petitioners v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent.
* Dismissed Pursuant to Court‘s Order dated 1/13/04
Nos. 03-4513, 04-3695.
United States Court of Appeals, Third Circuit.
Argued on June 29, 2005.
April 10, 2006.
Peter D. Keisler, Assistant Attorney General, Michael P. Lindemann, Assistant Director, John M. McAdams, Jr., (Argued), Douglas E. Ginsburg, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.
Before ROTH, RENDELL and BARRY, Circuit Judges.
BARRY, Circuit Judge, concurring.
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
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 Con
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 activities. See
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
III. Jurisdiction
A. Malachy
We have jurisdiction to review final orders of removal. See
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
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); zek v. INS” cite=“114 F.3d 831” pinpoint=“831, 832” court=“9th Cir.” date=“1997“>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
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
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
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
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
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, 385 F.3d 293, 296 (3d Cir. 2004). We will only reverse the BIA‘s findings “if the evidence compels a contrary conclusion.” Ahmed v. Ashcroft, 341 F.3d 214, 216 (3d Cir. 2003) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). We give de novo review to constitutional claims. See Chong v. District Director, INS, 264 F.3d 378, 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 Ahmed, 341 F.3d at 217 (quoting Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). With respect to the denial of a motion to reopen,7 we apply the abuse of discretion standard. See Borges v. Gonzales, 402 F.3d 398, 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, 386 F.3d 556, 562 (3d Cir. 2004) (quoting Tipu v. INS, 20 F.3d 580, 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.
a. “Terrorist Activity”
Malachy asserts that the definition of “terrorist activity” in
A statute is unconstitutionally vague if “men of common intelligence must necessarily guess at its meaning and differ as to its application.” Id. (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (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.” Id. at 212 n. 5 (quoting Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 84 L.Ed. 1093 (1940)).
Clause (iii) of
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.
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-defense8 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,
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.”
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
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.
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
B. Asylum
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, 350 F.3d 1035, 1041 (9th Cir. 2003), superceded on other grounds by 383 F.3d 848 (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).”
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
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
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
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 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
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
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.
BARRY, Circuit Judge.
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.
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
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 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.
USX CORPORATION v. LIBERTY MUTUAL INSURANCE COMPANY, Appellant USX Corporation, Appellant v. Liberty Mutual Insurance Company.
No. 04-1277, 04-1300.
United States Court of Appeals, Third Circuit.
Argued March 7, 2006.
Filed April 10, 2006.
Notes
Notwithstanding any other provision of law (statutory or nonstatutory), including
Any alien who is described in subparagraph (B) or (F) of section 212(a)(3) [8 USCS § 1182(a)(3)] is deportable.