350 F.3d 1035 (9th Cir. 2003), 02-71311, Cheema v. I.N.S.

Docket Nº:02-71311
Citation:350 F.3d 1035
Party Name:Cheema v. I.N.S.
Case Date:December 01, 2003
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1035

350 F.3d 1035 (9th Cir. 2003)

Harpal Singh CHEEMA; Rajwinder Kaur, Petitioners,



No. 02-71311.

United States Court of Appeals, Ninth Circuit

December 1, 2003

Argued and Submitted April 9, 2003.

Robert B. Jobe, San Francisco, CA, for the Petitioners.

Ethan B. Kanter, Department of Justice, Office of Immigration and Litigation, Washington, DC, for the Respondent.

Ravinder S. Bhalla, Krovatin & Associates, LLC, Newark, NJ, for the amicus curiae, The Sikh Coalition.

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On Petition for Review of an Order of the Board of Immigration Appeals. INS Nos. A72-484-174, A72-484-175.

Before: NOONAN, McKEOWN, and RAWLINSON, Circuit Judges.

Dissent by Judge RAWLINSON.

NOONAN, Circuit Judge:

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 lack778 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.


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

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Daljit Singh Bittu and being known as SSB, Bittu. Cheema knew Bittu as a student in India. In 1983, Bittu became wanted by India for bank robbery and assassination. Cheema was contacted by him by telephone from Pakistan in 1996. Thereafter they spoke often about the independence movement, its need for a newspaper and a radio station, and the desirability of informing the United Nations about Indian atrocities in the Punjab. Cheema told Bittu that militant operations had greatly damaged the movement. Cheema took calls from individuals in India and connected them with Bittu in Pakistan. In October 1991, a Sikh connected with the kidnaping of Liviu Radu, the Romanian ambassador to India, called Cheema, who eventually put the caller in touch with Bittu. Cheema told Bittu that the kidnaping was objectionable, and Bittu told him that he had spoken to the kidnappers and they would release Radu unharmed, as they did.

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, Cheema called Panjwar to see if he was responsible. When he denied involvement, Cheema 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.


On arrival in the United States in May 1993, Cheema and his wife were paroled

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into the country, but not admitted. In November 1993, in the first of twenty-six hearings before Immigration Judge Dana Marks Keener, they applied for asylum and withholding of deportation under the statute and for relief under CAT. Part of the INS's evidence in opposition consisted of classified information and testimony by government employees; this classification prevented its disclosure to the petitioners. The immigration judge held this evidence to be admissible under 8 C.F.R. § 240.33(c)(4). The judge ordered the government to present any exculpatory evidence it had. None was produced. The judge found it "inconceivable that, in the classified evidence that has been collected on Mr. Cheema, there is no evidence supporting his position." The judge went on to say: "Because of this fact, among others, the classified evidence must be viewed with respectful scepticism." Nonetheless, the judge did note that she drew inferences from this evidence.

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 Cheema'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...

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