By Ray O’Hanlon
A federal immigration court in New Jersey has ruled that former Irish National Liberation Army member Malachy McAllister is British.
In a pre-trial decision certain to prompt legal debate, Judge Henry Dogin ruled that McAllister is British and additionally does not qualify for political asylum in the United States.
The ruling against political asylum for McAllister was based on the fact that he carries a conviction for conspiracy to murder resulting from a so-called "supergrass" trial in a Belfast Diplock court.
The judge’s written decision was presented during a 40-minute hearing at the federal courthouse in Newark Tuesday.
McAllister, his wife, Bernadette, and their four children, fled Belfast after loyalist gunmen attacked their home. Malachy and Bernadette were not in the house at the time, but the children and their grandmother were, as gunmen fired more than 20 bullets through the windows.
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Reacting to Tuesday’s decision, McAllister said he was astonished at the decision.
"The judge classified me as British claiming asylum from my own country," he told the Echo.
McAllister said that the family had traveled to the U.S. on mostly British passports because they were the only travel documents they could quickly get hold of after the gun attack.
"We had to leave in a hurry. It was an emergency situation and the British passports were more readily available," he said.
He added that his next course of action is to apply at the Irish Consulate in Manhattan for Irish passports. His son Gary already has an Irish passport, which he had with him at the court hearing.
Under the recently revised version of Article Two of the Irish Constitution, all the McAllisters are entitled to Irish citizenship by "entitlement and birthright."
The family’s attorney, Diane George, said that the family had now been backed into a legal corner.
"It was probably the worst decision we could get and is indicative of the way the judge is thinking," George told the Echo.
She said that the judge’s decision that murder could never be a political act was "a very broad ruling he didn’t have to make."
Under that decision, conspiring to murder Hitler could not be a political act and a person found guilty of such an act could not file for political asylum in the U.S., she added.
Judge Dogin is due to preside over the family’s trial, currently set for July 12.
She said that Malachy McAllister’s legal option in the upcoming trial was now considerably narrowed by virtue of Tuesday’s decision. His main plea against deportation would be filed under the international convention on torture. "But that is a claim very hard to prove," she said.
She pointed out that he rest of the family is not being denied a chance to seek political asylum at the trial, during which the legal status of the initial entry of the McAllisters to the U.S. would be a primary issue.
George pointed out that Tuesday’s decision effectively divided the family on the matter of asylum with Malachy on one side, Bernadette and the children on the other.