EXCLUSION
PROCEEDING
for
ORLANDO BOSCH AVILA
NOTE: Double brackets
are used to place notes into the text. The footnotes were consolidated
for clarity.
U.S. Department of Justice
Office of the Associate Attorney General
-----------------------------------------------------------------------------------------------
The Associate Attorney General
Washington, D.C. 20530
FILE: A28 851 622
A11 861 810
IN THE MATTER OF:
ORLANDO BOSCH-AVILA,
APPLICANT
In exclusion proceedings under
section 235 (c) before the
Acting Associate Attorney General
Decision of the Acting Associate Attorney General
INTRODUCTION+
Pursuant to my responsibilities as Acting Associate Attorney General, I have
undertaken a review of the Immigration and Naturalization Service's (INS)
decision of May 19, 1989 concerning the applications of Orlando Bosch-Avila
for admission to the United States and for asylum. This review has
included consideration of the decisions of the INS Regional Commissioner
and the Commissioner, the submission of Bosch to the Regional Commissioner
arguing against exclusion and requesting a hearing on his asylum application,
and certain confidential and nonconfidential information respecting Bosch.
-------------------------------
page 2
For 30 years Bosch has been resolute and unwavering in his advocacy of terrorist
violence. He has threatened and undertaken violent terrorist acts against
numerous targets, including nations friendly toward the United States and
their highest officials. He has repeatedly expressed and demonstrated
a willingness to cause indiscriminate injury and death. His actions
have been those of a terrorist, unfettered by laws or human decency, threatening
and inflicting violence without regard to the identity of his victims.
The United States cannot tolerate the inherent inhumanity of terrorism as
a way of settling disputes. Appeasement of those who would use force
will only breed more terrorists. We must look on terrorism as a universal
evil, even if it is directed toward those with whom we have no political
sympathy. As United States District Court has eloquently states with
respect to this very case, "the evils of terrorism do not become less because
of the participants and the cause." Orlando Bosch Avila v. Perry Rivkind,
88-973-C.V.-HOEVELER (S.D. Fla. June 1, 1988) (Order On Petition For Writ
of Habeas Corpus). See also Matter of Rivero-Diaz, 12 I & N Dec.
475 (BIA, 1967).
As a result of this review, the conclusion is inescapable that it would be
prejudicial to the public interest for the United States to provide a safe
haven for Bosch. I have moreover concluded that he is an alien excludable
from the United States under 8 U.S.C.- 1182 (a) (27), (28) (ii), (28) (iii),
(28) (iv) and (29), and that his applications for asylum and withholding
of
-------------------------
page 3
deportation should be and herein are denied. In addition, pursuant
to 8 U.S.C. 1225 (c), and after consultation with appropriate security agencies
of the United States, I conclude that disclosure of the confidential information
upon which this decision is based would be prejudicial to the public interest,
safety, or security.
BACKGROUND
Orlando Bosch-Avila, age 62, is a native, citizen and national of Cuba.
On July 28, 1960, he was admitted to the United States as a nonimmigrant
visitor for pleasure, with authorization to remain until August 28, 1960.
Bosch, however, remained in the United States without permission until about
April 12, 1974. He has never been granted lawful permanent residence
status.
From about 1960 to 1968, Bosch was the leader of Movimiento Insurreccional
de Recuperacion Revolucionaria (MIRR), and anti-Castro terrorist organization.
On or about September 16, 1968, Bosch was involved in firing a shot from
a 57 mm. recoilless rifle at the Polish vessel "Polanica", which was then
docked at the Port of Miami. The shell hit the side of the "Polanica",
causing damage to the vessel, but no loss of life. On November 15,
1968, Bosch was convicted in the United States District Court for the Southern
District of Florida of various felony offenses arising out the assault on
the Polish vessel. At that time he was also convicted on an indictment
that had charged him with
-------------------------
page 4
using the telegraph to convey threats: 1) to the President of Mexico to damage
and destroy Mexican ships and planes; 2) to General Francisco Franco of Spain
to damage and destroy Spanish ships and planes; and 3) to Prime Minister
Harold Wilson of Great Britain to damage and destroy British ships.
Bosch was sentenced to ten years imprisonment, paroled in 1972, and left
the United States in 1974, thereby violating the terms of his parole.
Subsequently, Bosch, while outside the United States, founded and let Coordinacion
de Organizaciones Revolucionarias Unidas (CORU), an anti-Castro terrorist
organization which has claimed responsibility for numerous bombings in Miami,
New York, Venezuela, Panama, Mexico, Argentina, and elsewhere.
In October, 1976, Bosch was arrested in Venezuela in connection with the
October 6, 1976 in- flight bombing of a civilian Cuban airliner, which resulted
in the deaths of 73 men, women, and children. Though detained in Venezuela
for eleven years on charges arising from this incident, he was finally acquitted.
At his trial, evidence was presented that the two men convicted of homicide
in connection with the bombing were in contact with Bosch both before and
after the bombing.
Despite being related to a number of United States citizens or permanent
resident aliens who have sought to help him obtain lawful immigration status
in this country, Bosch's applications for both immigrant and non-immigrant
visas were denied in 1987 by the Department of State because of his criminal
history and involvement in terrorism. Bosch, nevertheless, came to
the
-------------------------
page 5
United States from Venezuela on February 18, 1988, without valid entry documents.
Upon arrival, Bosch was taken into custody on an outstanding warrant for
his 1974 parole violation, and he served an additional three months for his
violation.
Upon release from criminal incarceration on May 17, 1988, Bosch was taken
into custody by INS. At that time, the INS District Director in Miami
served Bosch with a notice of temporary exclusion, alleging that he was excludable
from the United States because:
* There is reason to believe he would seek to enter the United States
solely, principally, or incidentally to engage in activities prejudicial
to the public interest. (8 U.S.C. 1182 (a) (27)).
* That he is or has been an alien who advocates or teaches or has been
a member of an organization that advocates or teaches the duty, necessity,
or propriety of assaulting or killing officers of any organized government.
(8 U.S.C.1182 (a) (28) (F) (ii)).
* That he is or has been an alien who advocates or teaches or has been a
member of an organization that advocates or teaches the unlawful damage,
injury or destruction of property. (8U.S.C. 1182 (a) (28) (F) (iii)).
* That he is or has been an alien who advocates or teaches or has been
a member of an organization that advocates or teaches sabotage. (8 U.S.C.
1182 (a) (28) (F)(iv)).
* That there are reasonable grounds to believe that he probably would, after
entry, engage in activities which would be prohibited by the laws of the
United States relating to espionage, sabotage, public disorder, or in other
activity subversive to the national interest. (8U.S.C. 1182 (a) (29)).
In addition, the notice alleged that Bosch also is excludable on the grounds
that he has been convicted of a crime of moral turpitude (other than a purely
political offense), 8
-------------------------
page 6
U.S.C. 1182 (a) (9), and that he did not possess valid entry documents. 8U.S.C.
1182 (a) (20).
Because Bosch appeared to be excludable under paragraphs (27), (28) or (29)
or section 1182 (a), the INS District Director in Miami, pursuant to 8 U.S.C.
1225 (c) and 8 C.F.R. 235.8, referred the matter to the INS Regional Commissioner
for review. Under section 1225(c) and its implementing regulation,
the Regional Commissioner may order an alien excluded and deported, without
a hearing before an immigration judge, if he is satisfied that the alien
is excludable under paragraphs (27), (28) or (29) of 8 U.S.C. 1182 (a) "on
the basis of information of a confidential nature, the disclosure of which
the [Attorney General's designee] in the exercise of his discretion, and
after consultation with the appropriate security agencies of the Government,
concludes would be prejudicial to the public interest, safely, or security."
On May 19, 1989, the Regional Commissioner concluded, in what he described
as a "close call," that the record did not establish that Bosch was inadmissable
under 8U.S.C. 1182 (a) (27) or (29). He further concluded that while
both confidential and non-confidential evidence indicated that Bosch may
be excludable under 8U.S.C. 1182 (a) (28) (F), there was adequate non- confidential
evidence available to obviate the need for excluding Bosch without a hearing.
The Regional Commissioner's decision was affirmed by the Commissioner on
the same day in a one- paragraph order.
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page 7
EVIDENCE OF EXCLUDABILITY
The files of the FBI and other government agencies contain a large quantity
of documentary information which reflects that, beginning in the early 1960's
Bosch held leadership positions in various anti-Castro terrorist organizations.
The information contained in these files clearly and unequivocally reflects
that Bosch has personally advocated, encouraged, organized and participated
in acts of terrorist violence in this country as well as various other countries.
While some this information is of a non-confidential nature, greater quantity,
both classified and unclassified, is of a confidential nature because of
the need to protect intelligence sources and methods. The information
presented for my review included all of the evidentiary materials made available
to INS, the material submitted by Bosch to the Regional Commissioner, and
additional classified information furnished by the FBI.
What follows is a brief descriptive inventory of some of the more significant
non-confidential and confidential evidentiary items that form the basis of
my decision. The description of the latter necessarily has been abbreviated
and sanitized to protect its confidential nature.
NON-CONFIDENTIAL
* The record of the 1968 conviction in the United States District Court for
the Southern District of Florida on charges arising out of the assault on
the Polish vessel
-------------------------
page 8
"Polanica", and the threats conveyed by Bosch to leaders of other countries
to damage ships and planes.
* An FBI interview of Bosch on August 22, 1963 concerning an August 15, 1963
MIRR bombing attack on a Cuban sugar mill.
*Documents reflecting that in June, 1974 Bosch publicly admitted having sent
package bombs to Cuban Embassies in Lima, Madrid, Ottawa, and Buenos Aires.
Apparently, the bomb sent to Lima injured and embassy employee, an the one
sent to Madrid exploded and injured a Spanish postal employee.
* A letter entitled "Cuban Terrorism" by Orlando Bosch, issued in Prison
in Caracas, January 1977.
*A radio interview of Bosch during his incarceration in Venezuela in which
he advocated violent action against the Venezuelan government. Letters
from Bosch to CORU requesting that Venezuelan property be bombed if he were
not brought to trial.
*An interview of Bosch tape-recorded by the author of an article entitled
"I Am Going to Declare War" which appeared in the news magazine "New Times",
5/13/77. Apparently, Bosch claimed CORU was responsible for over fifty
bombings, but refused to take personal credit for terrorist actions within
the United States because of "FBI heat".
* Excised classified documents relating to Cuba exile operations against
Cuba in 1963.
* A statement by Bosch while in prison in Venezuela, to investigators for
a committee of the U.S. House of Representatives investigating the assassination
of President John F. Kennedy. According to the House Assassinations
Committee, Bosch denied involvement in the 1976 Cuban civilian airliner bombing,
but said that he approved of it. Declaring that terrorism is a necessary
evil in the fight against Castro, Bosch asserted that "You have to fight
violence with violence. At times you cannot avoid hurting innocent
people"
[[footnote 1]] Investigation
of the Assassination of
-------------------------
[[footnote 1]] The section of the Committee's
report devoted to its investigation of Bosch concluded as follows: "Orlando
Bosch, a zealot, turned out to be the most aggressive and volatile of the
anti- Castro leaders. That alone could validly raise the question of
possible association with the assassination of President Kennedy. In
addition, the Committee was presented with an allegation that specifically
linked him to a conspiracy, but
(continued...)
[[footnote continued on page 9]]
investigation failed to support the claim that Bosch has been in Dallas in
November 1963 in the company of Lee Harvey Oswald. When asked, Bosch
told the Committee he was at his home in Miami when he learned President
Kennedy had been shot." Investigation of the Assassination of President
John F. Kennedy: Appendix to Hearings Before the House Select Comm. on Assassinations,
95th Cong., 2nd Sess. 91-92 (1979) (submitted by Gaeton J. Fonzi, investigator,
and Elizabeth J. Palmer, researcher).
[[NOTE: ABOVE REFERENCE: MIRR &
ORLANDO BOSCH
Gaeton Fonzi's writings on the JFK assassination can be viewed from THE JFK MENU . Orlando Bosch is
mentioned in his article titled The Last Investigation, available
from the Gaeton Fonzi MENU .]]
-------------------------
page 9
President John F. Kennedy: Appendix to Hearings Before the House Select Comm.
on Assassinations, 95th Cong., 2nd Sess. 89 (1979) (submitted by Gaeton J.
Fonzi, investigator, and Patricia M. Orr, researcher).
* The record of Bosch's trial in Venezuela on charges stemming from the mid-air
bombing of a civilian Cuban airliner.
CONFIDENTIAL
* Information relating to Bosch's involvement, between 1961 and 1968, in
more than 30 acts of sabotage and violence in the United States, Puerto Rico,
Panama, and Cuba. These acts included the May 4, 1968 bombing of the
British vessel "Granwood," the May 30, 1968 bombing of the Japanese vessel
"Mikagesan Maru".
* Information relating to Bosch's involvement in the attempted assassination
of the Cuban Ambassador in Buenos Aires, Argentina in August 1975.
* Information relating to Bosch's involvement in the September 1, 1976 bombing
of the Mexican Embassy in Guatemala City, Guatemala.
* Information relating to plans by CORU in 1977 to assassinate a high-ranking
Cuban diplomat.
* Information relating to the organization and command structure of CORU,
and reflecting that between June 1976 and March 1977, persons associated
with CORU engaged in some 16 episodes involving bombings, attempted kidnapings,
assassination and attempted assassination. These episodes occurred
in the United States, Spain, the Caribbean, and Central and South America.
* Information reflecting that between 1974 and 1976 in Venezuela, Bosch was
in possession of bombs, explosive materials and an automatic weapon.
-------------------------
page 10
* Information reflecting that the October 6, 1976 Cuban airline bombing was
a CORU operation under the direction of Bosch.
* Information reflecting that Bosch, while incarcerated in Venezuela, ordered
the bombing of Venezuelan facilities.
* Information reflecting that between 1979 and 1984, while incarcerated in
Venezuela, Bosch was in contact with persons associated with CORU and other
anti-Castro groups, and that during this period he advocated acts of violence
and sabotage.
BOSCH'S SUBMISSION
In his reply to the order of temporary exclusion, Bosch has asserted that
he does not intend to engage in any activity prejudicial to the United States,
that he has always opposed bombing within the United States, that he currently
does not favor the commission of violent acts in the United States, and that
he has not come here to engage in espionage or any other subversive activity.
He contends that he is now simply an old man who has learned lessons over
the years, and he wants to be with his family and to escape the threat of
assassination by agents of Fidel Castro. He advances additional claims
respecting his past membership in organizations such as MIRR and CORU, respecting
a limited exception to excludability based on such past membership, and respecting
asylum.
Perhaps most notable in his submission is his repeated disavowal of any interest
to commit violent or terrorist actions in the United States, while at the
same declining to disavow such activities elsewhere. Simply by looking
to his own assertions here, it is evident that Bosch has not given up his
-------------------------
page 11
personal and violent battle. He merely says he will not wage his "war"
on our soil anymore.
[[ see sworn affidavit by Orlando Bosch
]]
CONCLUSIONS RESPECTING EXCLUDABILITY
Our exclusion laws specifically place the burden of showing admissibility
on the alien. 8 U.S.C. 1361. The United States does not have
to experience the harm to the public or to the national security that may
be caused by aliens such as Bosch before they may be denied our hospitality.
Based on all of the information made available to me, both confidential and
non-confidential, it is clear that for more than 30 years Bosch has been
resolute and unwavering in his advocacy of terrorist violence. He has
formed and led organizations whose purposes include precisely the actions
declared to be grounds for exclusion in 8 U.S.C. 1182 (a) (28). Over
the years he has personally advocated and has been involved in terrorist
attacks abroad and has advocated and been involved in bombings and sabotage.
There is no substantial information to indicate that Bosch has renounced
terrorism in the service of the cause to which he has devoted his life.
Despite his current assertions of oppositions to violence in the United States,
his personal history indicates that he will take violent action against any
target if he believes it will advance his cause. At this moment, he
may or may not truly believe that forsaking violent acts within the United
States will advance that cause. But his behavior and beliefs are consistent,
-------------------------
page 12
and the evidence leads me inescapably to the conclusion that Bosch would
instigate, plan, and participate in terrorist actions in the United States
if and when it served his purposes. I therefore conclude that he is
a threat to the national security.
From the foregoing it is evident that I do not agree with the suggestion
in the Regional Commissioner's opinion that the exemption in 8 U.S.C. 1182
(a) (28) (I) applies in this case. Even assuming that the exemption
would ever be available where, as here, exclusion is based on advocacy or
teaching of unlawful violence, as opposed to mere membership in an organization
that so advocates or teaches, I do not believe the evidence supports Bosch's
assertion that he is and has been "actively opposed" for the past five years
to the doctrine and principles of the terrorist organizations of which he
has been a member.
Furthermore, I am utterly unable to conclude that his admission would be
"in the public interest," as required under the exemption.
Furthermore, I am convinced that the Regional Commissioner substantially
understated the weight of the evidence when he described the questions under
8 U.S.C. (a) (27) an (29) as being "close calls." The Regional Commissioner's
decision cannot be squared with the indisputable and overwhelming weight
of the record in Bosch's case.
The evidence leads me to conclude that Bosch seeks to enter the United States
to engage in activities that would be prejudicial to the public interest
and subversive to the national
-------------------------
page 13
security, as provided in sections (a) (27) and (29). This is so even
if I were persuaded that Bosch would never commit a violent or terrorist
act in this country. As he made plain in his most recent affidavit
and his filings responding to the charges of excludability, he does not disavow
terrorist acts committed outside the United States. Even if his repudiation
were more universal and credible, Bosch would still be subject to the proscription
of these sections of the statute. Indeed, his mere presence in this
country, given his well publicized history of terrorist acts, would be prejudicial
to the public interest and subversive to the national security.
More specifically, I conclude, based in part on information of a confidential
nature, that:
1. Bosch is an excludable alien because there is reason to believe
that he seeks to enter the United States incidentally to engage in activities
which would be prejudicial to the public interest, or endanger the welfare,
safety or security of the United States, 8 U.S.C. 1182 (a) (27).
2. Bosch is an excludable alien both because he has personally advocated
and taught the duty, necessity, or propriety of the unlawful assaulting or
killing of any officer or officers (either of specific individuals or of
officers generally) of the Cuban government because of his or their official
character, and because of his membership in MIRR and CORU. 8 U.S.C. (A) (28)
(F) (ii).
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page 14
3. Bosch is an excludable alien because he has personally advocated
and taught the unlawful damage, injury, or destruction or property, and because
of his membership in MIRR and CORU.
8 U.S.C. 1182 (a) (28) (F) (iii).
4. Bosch is an excludable alien because he has personally advocated
and taught sabotage, and because of his membership in MIRR and CORU. 8 U.S.C.
1182 (a) (28) (F) (iv).
5. Bosch is an excludable alien because there is reasonable ground
to believe that he probably would, after entry, engage in activities which
would be prohibited by the laws of the United States relating to espionage,
sabotage, public disorder, or in other activity subversive to the national
security, 8 U.S.C. 1182 (a) (29).
6. The exemption in section 1182 (a) (28) (I) is unavailable in a case
where, as here, exclusion is based on active advocacy and teaching of violence,
as opposed to mere membership in or affiliation with an organization that
so advocates or teaches. The evidence here would not in any event allow
Bosch to invoke that exception.
APPLICATION FOR ASYLUM AND WITHHOLDING OF DEPORTATION
Inasmuch as I have concluded that Bosch is excludable and deportable, his
application for asylum is properly before me for decision.
[[footnote 2 ]]
_______________
[[footnote 2]] While the regulations do
not address specifically how and asylum application should be handled in
the context of a section
(Continued...)
[[footnote continuation on page 15]]
235(c) proceeding, I believe the regulatory framework taken as a whole clearly
contemplates the adjudication of an asylum claim in the same forum as the
adjudication of excludability. See 8 C.F.R. 208.1 (b). Moreover,
remanding Bosch's asylum claim to the District at this point would clearly
frustrate the very purpose of the summary procedure provided in section 235(c).
And, the Attorney General has specifically directed me to consider
and dispose of Bosch's application for asylum and withholding of deportation.
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page 15
I have carefully reviewed Bosch's asylum application, together with its attachments.
I consider it also as an application for withholding of deportation.
For purposes of deciding whether or not to grant Bosch asylum, I assume,
without deciding, based on Bosch's own representations, that there is a clear
probability he will be subject to persecution if he is returned to Cuba.
This assumption would allow Bosch to meet the lesser standard of a well-founded
fear of persecution as that term is used in Section 101(a) (42) of the Immigration
and Nationality Act, and thus to meet the threshold test for the granting
of asylum. 8 U.S.C. 1101 (a) (42).
[[footnote
3 ]]
Of course, even if an individual has established a clear probability of persecution
in his country or origin, this does not end the inquiry as to whether an
individual will receive asylum. The regulations provide for the discretionary
consideration of other factors which may lead to the conclusion
__________________
[[footnote 3]] Given the assumption,
there is no need to request an opinion from the Bureau of Human Rights and
Humanitarian Affairs, as would ordinarily be appropriate if this matter were
before the Immigration and Naturalization Service or the Executive Office
for Immigration Review.
8 C.F.R. 208.7, 208.10 (b).
-------------------------
page 16
that asylum should nonetheless not be granted. In this case those considerations
are dispositive.
Under the governing statute and its implementing regulations, withholding
of deportation must be denied if an individual has been convicted of a particularly
serious crime and, therefore, constitutes a danger to the community of the
United States. 8 U.S.C. 1253 (h) (2) (B). Bosch's 1968 conviction
of a particularly serious crime by itself makes him ineligible for withholding
of deportation. In addition, the conclusions reached in the foregoing
section respecting Bosch's long history of support for and active participation
in terrorist activities and organizations, confirms my belief that he constitutes
a danger to the community. For these reasons, in the exercise of discretion,
he denied asylum.
[[footnote 4]]
An additional ground for denial of asylum and withholding of deportation
is that there are "reasonable grounds for regarding the alien as a danger
to the security of the United States."
8 U.S.C. 1253 (h) (2) (D), 8 C.F.R. 208.8 (f) (l) (vi). Based on my
review of the confidential information in this case, as described in previous
sections of this opinion, I find that Bosch's presence in the United States
does not constitute such a danger.
__________________
[[footnote 4]] Under the applicable regulations,
the District Director is required to deny asylum to an alien convicted of
a particularly serious crime. See 8 C.F.R. 208.8 (f) (l) (iv).
But see Arauz v. Rivkind, 845 F.2d 271 (11th Cir., 1988) (immigration judge
must consider other evidence presented by alien as well as prior conviction
in deciding whether asylum will be granted).
-------------------------
page 17
Finally, the confidential information considered in the course of adjudicating
the exclusion order leads me to believe that Dr. Bosch has committed serious
nonpolitical crimes outside the United States prior to his last arrival here.
This too is a sufficient basis to deny his application for withholding of
deportation and to support a discretionary denial of asylum. 8 U.S.C. 1253
(h) (2) (C). See Matter of MacMullen, Int. Dec. 2967 (BIA, May 25,
1984).
Any of the three bases for denying asylum and withholding of deportation
described above would be sufficient standing alone to bar Bosch from the
relief he seeks. Considered cumulatively, they are more than sufficient
to outweigh the consideration I have given to Bosch's fear of persecution.
In light of Bosch's extensive involvement in terrorist activities and organizations,
his declaration that he would not engage in terrorist activities in the United
States is not credible. Further, even if he limited his activities
to the advocacy of terrorist acts by others outside the United States, there
is a substantial risk of retaliation aimed against this country or its citizens.
The United States cannot grant shelter to someone who will, from that shelter,
advocate the visitation of injury and death upon the property or person of
innocent civilians. The security of this nation is affected by
its ability to urge credible other nations to refuse aid and shelter to terrorists,
whose target we too often become. We could not shelter Dr. Bosch and
maintain our credibility in this respect.
-------------------------
page 18
CONFIDENTIALITY
Pursuant to 8 U.S.C. 1225 (c) and after consultation with the appropriate
security agencies of the Government, I conclude that disclosure of the confidential
information upon which I have relied would be prejudicial to the public interest,
safety, or security.
CONCLUSION
For the reasons set forth above, it is this date hereby ORDERED that Orlando
Bosch-Avila be excluded and deported from the United States. It is
further ORDERED that his applications for asylum and withholding of deportation
under 8 U.S.C. 1158 and 1253 (h), respectively, be denied.
JAN 23, 1989
Date
[SIGNATURE OF]
--------------------
Joe D. Whitley
Acting Associate Attorney General
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