"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, Circuit Judge, concurring

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 national security, but this is a fact that Congress does not permit us to consider.

 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.