Barapind v. Reno, Attorney General

• Decision Date: 13 June 2000
• Docket Number: No. 99-16668,99-16668
• Citation: 225 F.3d 1100
• Parties: (9th Cir. 2000) KULVIR SINGH BARAPIND, Plaintiff-Appellant, v. JANET RENO, Attorney General, Defendant-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1100

225 F.3d 1100 (9th Cir. 2000)

KULVIR SINGH BARAPIND, Plaintiff-Appellant, v. JANET RENO, Attorney General, Defendant-Appellee.

No. 99-16668

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted June 13, 2000--San Francisco, California

Filed August 28, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

COUNSEL: Karen Snell, San Francisco, California, and Jagdip Singh Sekhon, San Francisco, California, for appellant Kulvir Singh Barapind.

Christine A. Bither, Washington D.C., for appellee Janet Reno.

Appeal from the United States District Court for the Eastern District of California Oliver W. Wanger, District Judge, Presiding D.C. No. CV-98-05583-OWW

Before: Donald P. Lay,¹ and Dorothy W. Nelson, Senior Circuit Judges, and Sidney R. Thomas, Circuit Judge.

OPINION

THOMAS, Circuit Judge:

We confront the question of whether the Board of Immigration Appeals ("BIA") may hold the adjudication of petitioner's asylum application in abeyance pending the resolution of his parallel extradition proceedings in federal district court. We conclude that the BIA may do so, and affirm the judgment of the district court, albeit on different grounds.

I

On April 25, 1993, the Immigration and Naturalization Service ("INS") detained Kulvir Singh Barapind as he attempted to enter the United States and charged him as an excludable alien. At exclusion proceedings, Barapind conceded that he was excludable, but applied for asylum and withholding of deportation based on persecution that he allegedly suffered because of his participation in a Sikh student group advocating the creation of a Sikh homeland in the Punjab, India.

The Immigration Judge ("IJ") denied Barapind's application and ordered him excluded. Along with her adverse credibility determination, the IJ looked to a Provisional Request for the Purpose of Extradition filed with the United States Department of State on November 29, 1994, by the government of India against Barapind alleging in thirty charges that he had injured eleven and killed fifty-two persons. Based on the allegations and information contained in the extradition documents, the IJ alternatively held that Barapind was ineligible for asylum "because he has killed people for their political opinions." The BIA affirmed the exclusion order. Barapind has been in custody continuously since his initial detention.

On August 3, 1994, Barapind filed a first habeas petition ("1994 petition") pursuant to S 106(a)(10) of the Immigration and Naturalization Act ("INA"), 8 U.S.C. S 1105a(a)(10) (1994), challenging the exclusion order in the United States District Court for the Central District of California. In a report and recommendation adopted by the district court, the magistrate judge sustained the IJ's adverse credibility determination, but held that the BIA erred in its application of our case law in finding that Barapind should not be granted asylum. The district court remanded Barapind's case to the BIA to review the extradition documents to determine whether the allegations in those documents barred Barapind from obtaining asylum and withholding of deportation. See 8 U.S.C. S 1158(a).

Barapind appealed the order of remand to this Court. In an unpublished decision, we affirmed and enlarged the district court's order of remand. We first rejected the IJ's adverse credibility determination on several grounds. See Barapind v. Rogers ("Barapind I"), 114 F.3d 1193, 1997 WL 267881, *3 (9th Cir. May 15, 1997) (table). We also faulted the IJ for treating as established facts the criminal allegations made by the government of India against Barapind in the extradition request. See id. The district court complied with our decision by issuing a modified remand order on July 17, 1997, directing the BIA to readjudicate Barapind's asylum application.

On September 18, 1997, the United States, on behalf of the government of India, separately sought in United States District Court for the Eastern District of California Barapind's extradition to India to face the charges alleged in the 1994 extradition request. See 18 U.S.C. S 3184. Extradition was sought pursuant to the Treaty for the Mutual Extradition of Criminals between the United States of America and Great Britain ("1931 Treaty"), Dec. 22, 1931, U.S.-Gr. Brit., T.S. No. 849 (1932), made applicable to India from March 9, 1942, in accordance with article 14. See U.S. Dep't of State, Treaties in Force 132 (1999).

Because separate extradition proceedings had been initiated, the INS filed a motion -to which Barapind objected -to stay the exclusion and asylum proceedings pending before the BIA upon remand. On October 30, 1997, the BIA held Barapind's immigration proceedings in abeyance pending the outcome of the extradition proceedings.

Barapind then filed a complaint and second habeas petition -the basis of this appeal -in federal district court challenging the BIA's decision to stay his immigration proceedings. As relief, Barapind sought (1) a declaration and order directing the BIA to adjudicate his asylum application, and (2) an injunction against the defendants from extraditing or taking any other action that "interferes" with his right to a final adjudication of his asylum application.²

On the INS's motion to dismiss, the district court held it lacked subject matter jurisdiction over Barapind's claims after the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009 (1996), as amended by Act of Oct. 11, 1996, Pub.L. No. 104-302, 110 Stat. 3656 (1996), and on other grounds. See Barapind v. Reno ("Barapind II"), 72 F. Supp. 2d 1132, 1138-40 (E.D. Cal. 1999). Because it dismissed Barapind's claims for lack of subject matter jurisdiction, the district court did not reach the merits of Barapind's claims, except to hold that Barapind failed to state a claim for equitable estoppel or laches against the United States for having waited until 1997 to file the extradition complaint in federal court. See id. at 1158-60.

II

A

Extradition from the United States is governed by 18 U.S.C. S 3184 (2000), and provides a separate and independent procedure from exclusion or removal proceedings initiated under the INA for the removal of an alien from the United States. See Cornejo-Barreto v. Seifert , 218 F.3d 1004, 1009-11(9th Cir.2000); McMullen v. INS, 788 F.2d 591, 596 (9th Cir. 1986); C. Gordon, S. Mailman, & S. Yale-Loehr, 1 Immigration Law and Procedure S 6.16 (2000); see also Restatement (Third) of Foreign Relations S 478, reporter's note 6 (1986).

The extradition process is ordinarily initiated by a formal request from a foreign government to the Department of State, which along with the Department of Justice, evaluates whether the request is within the scope of the relevant extradition treaty between the United States and the requesting nation. See Cornejo-Barreto, 218 F.3d at 1009. Once approved, the United States Attorney for the judicial district where the person sought is located files a complaint in federal district court seeking an arrest warrant for the person sought. See id. After a hearing, the district or magistrate judge must certify to the Secretary of State that "(1) the crime is extraditable; and (2) there is probable cause to sustain the charge." Id.; see 18 U.S.C. S 3184 ("the evidence [must be ] sufficient to sustain the [charges brought in the extradition complaint] under the proper treaty or convention, or under [8 U.S.C.] section 3181(b)").

In addition to its probable cause determination, the district or magistrate judge must also assess whether any of the applicable treaty provisions bar extradition of the alien for any of the charged offenses. Under the 1931 Treaty, for example, a magistrate judge must determine whether any of the offenses charged are nonextraditable because they fall within a "political offense" exception.³ See 1931 Treaty, art. 6; Quinn v. Robinson, 783 F.2d 776, 781 (9th Cir. 1986); see also Sandhu v. Bransom, 932 F. Supp. 822, 826 (N.D. Tex. 1996) (considering "political offense" exception under 1931 Treaty); Extradition of Sandhu, 886 F. Supp. 318, 323-24 (S.D.N.Y. 1993) (same). The political offense exception generally prevents a person from being extradited "to face prosecution for crimes committed in furtherance of a political uprising, movement or rebellion in the country in which such occurrences are taking place." McMullen, 788 F.2d at 595.

If the magistrate or district judge determines that there is sufficient probable cause that an extraditable crime has been committed, and that the extradition treaty does not bar the extradition of the person sought, the district or magistrate judge must issue a warrant for the extraditee's arrest and detention. Although this decision is not subject to direct appeal, a limited collateral review of the magistrate or judge's order is available through habeas corpus review.⁴ See Cornejo-Barreto, 218 F.3d at 1009 n.5.

Once the magistrate has certified to the Secretary of State that the individual is extraditable and any habeas review has concluded, the Secretary in her discretion may determine whether the alien should be surrendered to the custody of the requesting state based on humanitarian or other concerns. See Gordon, Mailman & Yale-Loehr, at S 6.16; United States v. Kin-Hong, 110 F.3d 103, 109-10 (1st Cir. 1997). Many courts, including ours, have adhered to the general rule that it is not the role of the courts, but rather the Secretary of State, to determine whether extradition should be denied on humanitarian grounds. See Cornejo-Barreto, 218 F.3d at 1011 (citing Lopez-Smith v. Hood, 121 F.3d 1322, 1326 (9th Cir. 1997)); see also Sidali v. INS, 107 F.3d 191, 195 n.7 (3d Cir. 1997); Escobedo v. United States, 623 F.2d 1098, 1107 (5th Cir. 1980).

However, we have recently held that certain decisions by the Secretary of State in determining whether to extradite a...