By Ray O’Hanlon
In an 11th hour move, the U.S. Immigration and Naturalization Service has appealed against a New Jersey judge’s ruling granting political asylum to a Belfast woman, Bernadette McAllister, and her four children.
Bernadette’s husband Malachy, meanwhile, has filed an appeal against the same judge’s ruling that he be deported from the U.S. despite the family’s claims that it faces possible attack by loyalists in Northern Ireland.
In what amounted to an unfavorable Solomonic decision last month, Judge Henry Dogin of the U.S. Immigration Court in Newark split the family in two along the asylum-deportation line.
In granting Bernadette and the children asylum, Dogin ruled that Bernadette McAllister and her four children had suffered “severe persecution” at the hands of loyalist paramilitaries, the Royal Ulster Constabulary and British army.
Dogin stated at the time that the McAllisters had suffered “extreme past persecution” and discrimination as a result of being Catholics. He pointed to a “constant campaign of harassment” by loyalists who the British government were unable or unwilling to control.
Never miss an issue of The Irish Echo
Subscribe to one of our great value packages.
Dogin also cited incidents of public humiliation, physical abuse and a loyalist gun attack on the family home.
But while the judge acknowledged that Malachy McAllister had also suffered persecution in Northern Ireland, he ruled that the former Irish National Liberation Army member did not qualify for political asylum in the U.S. due to a conviction and prison term served in the North.
However, even as Malachy McAllister now appeals that decision, the INS is challenging Dogin’s contrary opinion with regard to the dangers faced by Bernadette McAllister and the couple’s children.
As the 30-day appeal period neared its end this week, the INS filed an appeal with the Board of Immigration Appeals. The INS is arguing that the danger posed to the family in Northern Ireland is not sufficiently harmful to warrant asylum.
The McAllisters fled Belfast in 1988 after loyalist gunmen opened fire on the family home. Twenty-six bullets were fired into the house. The McAllister children and their grandmother were in the house during the attack.
“We think the government’s argument is frivolous. There were hours and hours of very compelling testimony about the government and loyalist persecution of this republican family and the long-lasting harm it has caused them,” said Claudia Slovinsky, an attorney for the McAllisters.
“Why can’t they leave my family alone,” was Bernadette McAllister’s reaction to the INS appeal.
Malachy McAllister — who Judge Dogin at one point declared to be British despite McAllister’s one-time membership of the INLA — told the Echo that he had been hoping that the INS appeal would not come at the least minute.
“It was another knock. Bernadette and the kids are all very upset and this just adds to the stress of the last several months,” he said.
“We’re one of the strongest cases for asylum because we were actually attacked.”
McAllister is hopeful that his family might win a permanent reprieve from deportation as a result of an anticipated move by President Clinton before he leaves office.
Speculation has been mounting that Clinton will permanently end active and potential legal moves against a number of Irish nationals currently facing possible or likely deportation.
With this in mind, several members of Congress have appealed to the administration in recent weeks on behalf of the “deportees.”
“Whether or not we are included in any such move is up in the air but we are very hopeful that something positive will happen in the remaining time Clinton has in office,” McAllister said.
In the meantime, McAllister’s appeal against Judge Dogin’s decision against him is based heavily on the argument that his offenses in Northern Ireland were of a political rather than criminal nature.
McAllister’s lawyers, Slovinsky and Diane George, further contend that there is a contradiction between the judge’s acknowledging of abuses suffered by Malachy McAllister at the hands of the security forces in Northern Ireland and the judge’s denial that McAllister had any right to fight back against such abuses.
The appeal is also based on the grounds that Dogin was wrong to consider the RUC an ordinary civilian police force as opposed to a combatant force in a conflict.
“It makes no sense to call Malachy a terrorist for fighting against the brutal repression he experienced. The ruling is particularly irrational given the widespread release of prisoners under the Good Friday agreement, which has come about because all sides acknowledge that there was a war-like conflict going on,” Slovinsky said.
In his October decision, Dogin openly acknowledged the McAllister family’s fears, but he significantly ruled in line with the U.S. attorney’s arguments that Malachy McAllister had entered the U.S. illegally while carrying the burden of a conviction for terrorism in Northern Ireland.
McAllister served four years after being convicted in a non-jury Diplock court, where he was charged with taking part in what turned out to be a non-fatal INLA attack on an RUC patrol during which McAllister acted as a lookout.
The evidence against McAllister was provided by a so-called “supergrass” witness, who later retracted his testimony.