350 F.3d 1035 | 9th Cir. | 2003
Lead Opinion
Opinion by Judge NOONAN; Dissent by Judge RAWLINSON.
Harpal Singh Cheema (Cheema) and his wife Rajwinder Kaur petition for review of an order of the Board of Immigration Appeals (the Board) denying them asylum and the withholding of deportation and holding them eligible for relief under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) but granting them only deferral of removal. We hold that the Board’s denial of withholding cannot be sustained because of the lack of any evidence that reasonable grounds exist to believe the petitioners are a danger to the security of the United States. We remand to permit the Board to exercise discretion on the asylum petitions. We sustain the Board’s deferral of removal and its denial of full relief under CAT.
FACTS
Cheema is a Sikh, born in India in 1958. He is a lawyer and a member of the Sikh Lawyers Association. In 1987, he helped to organize an enormous rally to protest the government of India’s decision to divert water from the Punjab. Shortly after this public event, Indian police arrested Cheema, beat him with a wooden stick, and stretched his legs apart until the muscles began to break. He was released ten days later without charges.
In the aftermath in 1987, Cheema gave food and shelter to Gurjeet Singh and Charanjit Singh Channi, whom he describes as leaders in the All India Sikh Student Federation, an organization he describes as nonviolent. The government in its brief characterizes these two men as “well-known terrorists,” although its citations to the record showing them to be leaders do not support the characterization of them as terrorists. In January 1989, Cheema was arrested and questioned as to their whereabouts. When he was unable to say, he was taken into the jail yard, stripped, bound, stretched repeatedly on a pulley, and finally subjected to a solid steel roller being rolled over his thighs, breaking the muscles and causing him to lose consciousness. The next day he was again tortured on the pulley. Twenty days after his arrest he was released without charges. He was unable to walk and was hospitalized for a month.
In May or June of 1989, Cheema was again arrested and taken to Amritsar for interrogation. He was beaten and his right leg broken by his police interrogators. He was brought before a magistrate, who ordered him taken to a hospital where his broken leg was set, but on remand to police custody the police broke it again. After three months in a jail hospital, he was discharged from custody. Charges against him were withdrawn.
In August 1990, Cheema fled to Canada and, two months later, entered the United States. He joined the Sikh Youth of America, described by him as supporting the Sikh movement for an independent Khalistan and “very much against any kind of violence.” He was elected general secretary of this organization in 1991. Later in 1991, he helped organize the Khalistan Affairs Center, a lobbying office in the United States for the Sikh cause of independence from India.
The Sikh Student Federation in India splintered in 1986 into a peaceful and a militant group, the latter being led by
Between 1990 and 1992, Cheema raised money in the United States to be sent to individual families that had suffered in the Punjab and to individuals injured in crossfire while trying to cross the border between Pakistan and India. If someone wanted “to send money to Pakistan,” Cheema told them to contact Bittu, and he gave such potential donors Bittu’s telephone number. Cheema himself did not handle any money, and he assured potential donors that their money would not go toward militant activities.
In February 1992, Cheema learned that his wife, Rajwinder Kaur, still in India, was ill. He returned and was seized by the police on his arrival at Bombay airport and flown to Delhi. He was shackled, blindfolded and interrogated about his activities in the United States. The next day the police applied electric currents to his tongue, lips, nostrils, and temples. He was then racked again by pulley. Three weeks later he was handed over to the Punjab police, again tortured by electricity and subjected to a mock execution. His mother, when allowed to visit him, could not recognize him. Three months later he was released on bail.
Cheema remained in hiding in India until May 1993, when he flew to New York City with his wife. Prior to 1993, Cheema had never had any conversation with the head of the militant Khalistan Commando Force, Paramjit Singh Panjwar. In 1995, after two bomb blasts in the Punjab, Chee-ma called Panjwar to see if he was responsible. When he denied involvement, Chee-ma spread his denial through the media. Thereafter, approximately once a month until September 1997, Cheema talked by telephone to Panjwar. In 1995, Cheema aided the escape from India to Germany of Panjwar’s wife, who was not a militant. In the same year, Cheema sent $5,000 to Panjwar’s grandfather in India to pay for heart surgery.
In 1991 and in 1997, Cheema raised money for the Sikh Defense Fund, which offered legal assistance to Sikhs detained in North America. In 1995 and 1996, he raised $25,000 for the United Sikhs Defense Committee, a similar organization. He also sent money to Akal Academy, a Sikh temple in Kathmandu, and to a school for the blind in Delhi. He has helped support three Sikh activists for human rights.
Rajwinder Kaur testified that since coming to the United States in 1993 she has sent money to aid Sikh widows and orphans. According to her, she has never engaged in providing financial or other support for Sikh militants, and she is not aware of her husband doing so.
PROCEEDINGS
On arrival in the United States in May 1993, Cheema and his wife were paroled
On the key question of credibility, the judge found both petitioners fully credible as to what happened to them in India. The judge described Cheema as “an impressive witness. He is intelligent, thoughtful, well-spoken and sincere.” The judge stated that his wife “was also a convincing witness. Her testimony was detailed, consistent, and plausible.”
The judge did not believe some of Chee-ma’s testimony regarding his fund raising in the United States. The judge softened her findings by observing as to Cheema’s denial of fund raising for terrorists: “His decision to view this action through rose-colored glasses is a rationalization, not an outright lie.”
Based on this evaluation of the testimony of the petitioners and many other witnesses, the judge found Rajwinder Kaur not to have engaged in terrorist activity and to be entitled to asylum, to withholding of deportation, and to full relief under CAT. The judge in the exercise of her discretion denied Cheema asylum because of his “lack of candor.” The judge ruled that Cheema was entitled to withholding of deportation, a nondiscretionary form of relief, but was seemingly barred this relief as a danger to the security of the United States because he had engaged in terrorist activities. The judge, however, found that this bar was subject to discretionary waiver under the Immigration and Nationality Act (“INA”) § 243(h)(3) as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) § 413(f).
The judge held the waiver to be applicable and that, “to ensure compliance with the 1967 United Nations Protocol Relating to the Status of Refugees,” Cheema was entitled to withholding of deportation. The judge found that Cheema also qualified for relief under CAT, but not full relief as under CAT the bar raised by the finding as to terrorist activity could not be waived. Significantly, the judge found neither Cheema nor his wife to be a danger to the security of the United States.
Both the INS and petitioners appealed to the Board.
On appeal, the Board began by praising and adopting the immigration judge opinion as follows:
The Immigration Judge’s decision sets out the facts of this case in a thorough and meticulous manner. We commend the Immigration Judge on conducting a thorough hearing in this complex and difficult case, and then issuing an exceptionally well-written decision. Because the facts of this case are not in dispute, but rather how those facts and the applicants’ actions and motives are to be interpreted, we will not restate the facts as part of our decision. We adopt and incorporate the Immigration Judge’s*987 factual findings found in her written decision from pages 1 though 43.
The Board went on to add: “Our decision in this case is based solely on the non-classified evidence of record.” The Board noted several issues documented in the record which “raise concerns with regard to Mr. Cheema’s credibility.” After discussing these issues and the immigration judge’s finding that Cheema was credible, the Board concluded that the judge’s “credibility finding is supported by the record and we will not disturb it.”
The Board found that Cheema had been brutally tortured by Indian authorities and that he “is one of the few prominent pro-Khalistan leaders in the world who would be in danger if returned to India.” The Board accepted expert testimony that, as his wife, Rajwinder Kaur would also more likely than not be tortured if returned to India.
The Board did not disturb the findings that Cheema and his wife were entitled to withholding of deportation under INA § 243(h)(1) as well as under CAT unless barred by other provisions as to terrorists. The Board held that Cheema had engaged in terrorist activity “by soliciting funds for individuals and groups, i.e. Bittu and Panj-war, that he knew or reasonably should have known or at least had reason to believe had committed terrorist activity;” and that Cheema had given material support to Bittu and Panjwar by connecting calls to them from Sikh militants. The Board further found that his wife had engaged in terrorist activity “by sending money to various Sikh groups ... she knew or reasonably should have known or had reason to believe had committed or planned to commit terrorist activity.”
Contrary to the conclusions of the immigration judge, the Board held that these findings barred withholding of deportation, because the acts of financial support for terrorist persons or groups in India and the facilitation of telephone calls from such persons in India were acts such as to “necessarily endanger the lives, property and welfare of United States citizens and compromise the defense of the United States.” The Board also held that the petitioners could not be granted withholding of deportation under CAT but only deferral of removal.
Cheema and his wife appeal.
ANALYSIS
We do not find it necessary to consider the government’s use, in the case before the Immigration Judge, of classified material not made available to the petitioners. For the purposes of this decision, we accept the Board’s disavowal of consideration of this material.
A. STATUTORY FRAMEWORK
1. Withholding of Deportation. INA § 241(a)(4)(B) renders deportable “[a]ny alien who has engaged, is engaged, or at any time after entry engages in any terrorist activity (as defined in § 212(a)(3)(B)(iv)).”
“Engage in terrorist activity defined” is defined in INA § 212(a)(3)(B)(iv) as:
[T]o commit an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training—
(aa) for the commission of a terrorist activity;
(bb) to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity;
*988 (cc) to a terrorist organization described in clause (vi)(I) or (vi)(II); or
(dd) to a terrorist organization described in clause (vi)(III), unless the actor can demonstrate that he did not know, and should not reasonably have known, that the act would further the organization’s terrorist activity.
Notwithstanding a determination of terrorist activity an alien may be eligible for withholding of deportation or asylum. INA § 243, 8 U.S.C. § 1253, reads:
(h) Withholding of deportation or return.
(1) The Attorney General shall not deport or return any alien (other than an alien described in section 241(a)(4)(D)) to a country if the Attorney General determines that such alien’s life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.
(2) Paragraph (1) shall not apply to any alien if the Attorney General determines that—
(A) the alien ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion;
(B) the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States;
(C) there are serious reasons for considering that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States; or
(D)there are reasonable grounds for regarding the alien as a danger to the security of the United States.
Under the statute, the Board, acting for the Attorney General, must grant Cheema and Rajwinder Kaur withholding of deportation, unless there are “reasonable grounds” for regarding them as dangers to the security of the United States.
2. Asylum. As the asylum applications were filed before April 1, 1997, they are not governed by the Illegal Immigration and Immigrant Responsibility Act of 1996. They are governed by INA § 208, as amended by AEDPA § 421. This section, entitled “Denial of Asylum to Terrorists,” states:
The Attorney General may not grant an alien asylum if the Attorney General determines that the alien is excludable under subclause (I), (II), or (III) of section 212(a)(3)(B)© or deportable under section 241(a)(4)(B), unless the Attorney General determines, in the discretion of the Attorney General, that there are not reasonable grounds for regarding the alien as a danger to the security of the United States.
The bar against asylum for persons who fall under INA § 212(a)(3)(B)® or § 241(a)(4)(B) is mandatory, save for one exception. Section 421(a) allows granting relief to an alien who has engaged in terrorist activity if “the Attorney General determines, in the discretion of the Attorney General, that there are not reasonable grounds for regarding the alien as a danger to the security of the United States.”
In its decision, the Board acknowledged that an alien excludable for participation in terrorist activity is not automatically a danger to the United States, and that the bar to relief requires a separate determination with respect to the alien’s danger to national security. We agree
The 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. Having determined that Cheema and his wife engaged in terrorist activity, the Board turned to the second question of whether there are reasonable grounds for regarding them to be “a danger to the security of the United States.”
In construing the phrase “danger to the security of the United States,” the Board looked to several different definitions of the phrase “national security” but chose not “to adopt any of these definitions wholesale.” Instead, the Board created its own test: an alien poses a danger to the security of the United States where the alien acts “in a way which 1) endangers the lives, property, or welfare of United States citizens; 2) compromises the national defense of the United States; or 3) materially damages the foreign relations or economic interests of the United States.” We accept for the purposes of this appeal the Board’s interpretation of the sense of “national security.”
3. CAT. CAT creates a mandatory denial of withholding of deportation if the applicant falls within Section 241(b)(3)(B) of the INA. 8 C.F.R. § 208.16(d)(2). Section 241(b)(3)(B) creates an exception to the grant of withholding if “the Attorney General decides that ... there are reasonable grounds to believe that the alien is a danger to the security of the United States.” 8 U.S.C. § 1231(b)(3)(B)(iv). This clause is further modified by the following clause: “For purposes of clause (iv), an alien who is described in section 237(a)(4)(B) [governing terrorist activities] shall be considered to be an alien with respect to whom there are reasonable grounds for regarding as a danger to the security of the .United States.” 8 U.S.C. § 1231(b)(3)(B),
B. Substantial Evidenoe
1. CAT. We defer to the Board’s holding that the petitioners’ acts within the United States could be qualified as terrorist' activity. Full relief under CAT is barred. We affirm the Board’s holding that the petitioners may not be deported to the country where they are likely to be tortured. We recognize that this respite from torture is limited if the consequence is that a petitioner is deliberately detained in custody in this country. To be offered indefinite imprisonment as an alternative to likely torture is to be offered a harsh choice.
2. Withholding of deportation. The question presented is whether substantial evidence supports the Board’s conclusion that there are “reasonable grounds” for' regarding Cheema and Rajwinder Kaur as dangers to our national security. The Board chose the first criterion of national security, that is, whether either Cheema or his wife “endangers the lives, property, or welfare of United States citizens.” The Board did not address the
The Board stated only its conclusion: “It is clear that those who engage in terrorism within the United States, even when that terrorism is not directly aimed at the United States, necessarily endanger the lives, property, and welfare of United States citizens and compromises our national defense.” According to the Board, it is “self-evident” that such activities “inherently involve this country in [foreign] conflicts without our leave or agreement” and “create the very real possibility that such conflicts will be brought home to use by their warring factions.”
Saying that the conclusion is self-evident begs the question that the statute requires to be answered. Under the Board’s rationale, the requirement of evidence that an alien presents a danger to our national security evaporates. The Board has collapsed the two prongs of the inquiry, focusing entirely on the question of terrorist activity. This Board’s approach is an end-run around the very result the Board urges as the appropriate interpretation of AEDPA § 421(a): namely, that an alien who is excludable under one of the designated provisions is not “necessarily” ineligible for asylum without first determining that there are reasonable grounds for regarding the alien to be a danger to national security. This approach also makes superfluous the other two prongs of the Board’s own national security definition.
The Board’s analysis as to Rajwinder Kaur is even more deficient than with respect to Cheema. The only evidence in the record regarding Rajwinder Kaur’s donations or activities is a single admission that she had “sent money on one or two occasions to ... women ... that were widowed or to children that were orphaned.” Absolutely no evidence supplies a link between the donations and any specific organization, let alone Sikh militant organizations. Given that the Board accepted Rajwinder Kaur’s testimony as credible, the Board’s conclusion that Rajwinder Kaur’s donations to Indian widows and orphaned children “obviously” and “inherently” posed a danger to the security of the United States stretches logic to its breaking point. If Rajwinder Kaur’s one or two donations to unspecified widows and orphaned children are, without more, a reasonable basis to conclude that she posed a danger to the security of the United States, it is difficult to imagine that any alien could ever take refuge within the “danger to the United States” exception.
Substantial evidence is required to link the finding of terrorist activity affecting India with one of the criteria relating to our national security. With the extensive resources of the Executive Branch, including the resources of the Departments of Defense, State, Justice, Treasury and others, the INS is in a unique position to provide such evidence. It has not done so.
The Board cannot bypass the second prong of the statutory inquiry by asserting that its conclusions are “self-evident.” See Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir.1995); cf. Paramasamy v. Ashcroft, 295 F.3d 1047 (9th Cir.2002) (Board’s failure to provide requisite individual assessment warrants reversal). It is by no means self-evident that a person engaged in extra-territorial or resistance activities — even militant activities — is necessarily a threat to the security of the United States. One country’s terrorist can often be another country’s freedom-fighter. The
History, indeed, is to the contrary. At least since 1848, the year of democratic revolutions in Europe, the United States has been a hotbed of sympathy for revolution in other lands, often with emigres to this country organizing moral and material support for their countrymen oppressed by European empires such as those of Austria, Britain and Russia. In the twentieth century, active revolutionaries such as De Valera and Ben Gurion worked in the United States for the liberation of their homelands. More recently, foreign anticommunists living in the United States were active in encouraging and aiding movements against Communist tyranny in the Soviet Union and China. Much of this revolutionary activity would fall under the definition of terrorist activity as the Board interprets the statute. None of it had consequences for the lives and property of American citizens or the national defense, and the slight strains occasionally put on our foreign relations were more than offset by the reputation earned by the United States as a continuing cradle for liberty in other parts of the world.
That terrorist activity affecting a country struggling with strife cannot be equated automatically with an impact on the security of the United States is dramatically illustrated by the case of Nelson Mandela. In 1961, Mandela organized a paramilitary branch of the African National Congress, Umkhonto we Sizwe (MK) or “Spear of the Nation,” to conduct guerrilla warfare against the ruling white government. Anthony Sampson, Mandela: The Authorized Biography, Knopf (1999) at 150. He then went into hiding to carry out the MK’s mission: “to make government impossible,” and began arranging for key leaders and their volunteers to go abroad for training in guerrilla warfare. Sampson at 151, 158. Mandela was convicted by the South African government of treason in 1964 and sentenced to life in prison. In 1986, Congress passed the Comprehensive Anti-Apartheid Act, stating that its goal was to pressure the South African government to release Nelson Mandela from prison. 22 U.S.C. 5011 § 101(b)(2) (1986); Sampson at 177. It would not be sensible to conclude that Congress, in aiding a man convicted of treason by his own government, endangered the security of the United States or that the alien supporters of Mandela in this country were all deportable as terrorists endangering our national security.
To be clear, aliens who engage in terrorist activity may indeed affect this nation’s security, but we cannot conclude that they always do so. Evaluation of this issue requires evidence, not speculation. If the INS, with the impressive resources of the federal government at its disposal, had provided reasons, backed by evidence, for
As no evidence supports the Board’s conclusion that there are reasonable grounds for regarding Cheema and Rajwinder Kaur as dangers to our national security, we grant their petitions for withholding of deportation. As a consequence, they cannot be held in custody.
3. Asylum. The question here is whether, in the discretion of the Attorney General, there are not “reasonable grounds” for finding Cheema and his wife to be dangers to our national security. The question, it might well be thought, is answered by our holding that the Board found no evidence to support its denial of withholding. The statute, however, inserts a subtle distinction. The determination here is to be made by the Board in the exercise of the discretion the statute has conferred upon the Attorney General. The determination is a negative one: there are not reasonable grounds for finding Cheema and Rajwinder Kaur to be a danger to our national security. As the Board did not reach the exercise of its discretion, we remand so that it may do so. The discretion to be exercised is, of course, not that of a despot. The Board may not use its discretion to issue a decision that is “arbitrary, irrational, or contrary to law.” Lopez-Galarza v. INS, 99 F.3d 954, 960 (9th Cir.1996). The Board must provide an objective basis for its holding. Rodriguez-Matamoros v. INS, 86 F.3d 158, 161 (9th Cir.1996). We will not deny the Board the opportunity to make this judgment.
For the reasons stated, the petitions for withholding of deportation are GRANTED; the petitions for asylum are REMANDED; the petitions for full relief under CAT are DENIED and the deferral of removal AFFIRMED.
Dissenting Opinion
dissenting:
I must respectfully dissent.
Our review of asylum rulings made by the BIA has been curtailed in recent years. We may now reverse BIA’s factual findings made in the context of ruling on an asylum application only if a contrary finding is compelled by the evidence. See Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995, 998 (9th Cir.2003). We must also defer to the BIA’s interpretation of immigration law. See Vasquez-Lopez v. Ashcroft, 315 F.3d 1201, 1203 (9th Cir.2003).
Here is what the evidence in this case showed:
•The State Department has identified the Khalistan Commando Force (KCF), headed by Paramjit Singh Panjwar, and the Sikh Student Federation Faction (SSF) headed by Daljit Singh Bittu, as “terrorist Sikh organizations.”
• These organizations have engaged in robbery, murder, bombings, kidnappings, threats and general mayhem.
• Bittu has variously been sought for the assassination of relatives of India’s Vice-President, the assassination of an Indian Army General, and the largest bank robbery in India’s history.
• Bittu distributed weapons to various terrorist organizations, after receiving money from a source in the United States.
• The KCF has taken responsibility for a massacre of bus passengers, who were machine-gunned after the bus was forced from the road, and for a series of car bombings that left 300 dead and 1,200 injured.
• Panjwar and Bittu are described by the Petitioner, Cheema, as close person*993 al friends on whose behalf he has raised thousands of dollars in the United States.
• Cheema has acted as a communications link to Bittu and Panjwar by routing telephone calls through his home in the United States, and thereby avoid detection by Indian authorities.
• Cheema served as a communications link during the kidnapping of the Romanian ambassador by Sikh terrorists.
• Cheema provided food and shelter to terrorists while they were fugitives from the police.
• Cheema’s wife functioned in his stead during his absence.
It is not difficult to connect the dots from Cheema and his wife to Panjwar to Bittu and back again. The BIA’s finding that Cheema materially supported terrorist activity is bolstered by substantial evidence, including Cheema’s own testimony.
A finding that Cheema provided material support to major international terrorists in turn substantiates the BIA’s finding that Cheema and his wife threaten the security of this country. Car bombings, assassinations of government officials, massacres — world wars have begun with less impetus. See Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 494 F.Supp. 1190, 1219 (E.D.Pa.1980) (“On June 28, 1914, the assassination in Sarajevo of Archduke Franz Ferdinand of Austria-Hungary set off a chain of events that within a few months embroiled all Europe in World War I.”); see also M. Cherif Bassiouni, World War I: “The War to End All Wars” and the Birth of a Handicapped International Criminal Justice System, 30 Denv. J. Int’l L. & Pol’y 244, 244 (2002) (“The trigger for [World War I] was an incident that occurred in the volatile Balkans on June 28, 1914, in which Archduke Franz Ferdinand and his wife were assassinated by Gavrilo Princip as they rode in a car in Sarajevo”).
Contrary to the majority’s apparent view, our country should not become a haven for those who desire to foment international strife from our shores. I would deny the petition.
