Barapind v. Enomoto

• Citation: 360 F.3d 1061
• Decision Date: 10 March 2004
• Docket Number: No. 02-16944.,02-16944.
• Parties: Kulvir Singh BARAPIND, Petitioner-Appellant, v. Jerry J. ENOMOTO, United States Marshal for the Eastern District of California, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

360 F.3d 1061

Kulvir Singh BARAPIND, Petitioner-Appellant, v. Jerry J. ENOMOTO, United States Marshal for the Eastern District of California, Respondent-Appellee.

No. 02-16944.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 6, 2003 — San Francisco, California.

Filed March 10, 2004.

COPYRIGHT MATERIAL OMITTED

Jagdip Singh Sekhon, Law Offices of Sekhon & Sekhon, San Francisco, California, for the petitioner-appellant.

Richard Beltran Curtis, Amicus Curiae, The Sikh Coalition, Inc., Washington, D.C., for the petitioner-appellant.

James F. Smith, Amicus Curiae, King Hall Immigrant Detention Project, Davis, California, for the petitioner-appellant.

Cynthia S. Hahn, Federal Public Defender, Fresno, California, and Stanley A. Boone, Assistant United States Attorney, Fresno, California, for the respondent-appellee.

Appeal from the United States District Court for the Eastern District of California; Oliver W. Wanger, District Judge, Presiding. D.C. No. CV-01-06215-OWW.

Before: FARRIS, Farris, Stephen S. Trott, Circuit Judges, and Charles R. WEINER,^* Senior Judge.

Opinion by Judge Trott.

OPINION

TROTT, Circuit Judge.

I OVERVIEW

India requests the extradition of Kulvir Singh Barapind ("Barapind") in order to try him for crimes arising out of eleven (11) separate incidents in 1991 and 1992, specifically the crimes of murder, attempted murder, and robbery. The United States District Court for the Eastern District of California certified the request and approved Barapind's extradition with respect to crimes tied to only three of the eleven incidents.¹ The court determined that supporting probable cause had not been established for allegations regarding three of the other incidents, and that the "political offense" exception, articulated in Article VI of the relevant treaty, barred extradition on the remaining five.

Barapind challenged the court's decision to surrender him to India by petitioning for a writ of habeas corpus. His petition, which was heard by the same judge, attacked the probity, reliability, and competence of the evidence relied upon by the court to find probable cause to extradite, and it raised the "political offense" doctrine as a legal bar to the requisition for his surrender on the charges on which he was found extraditable. Barapind now appeals the district court's denial of his petition. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. §§ 1291 and 2253(a), and we affirm.

II FACTUAL BACKGROUND

For a complete recitation of the facts, see In re Extradition of Singh, 170 F.Supp.2d 982 (E.D.Cal.2001). The facts set forth below are only those pertinent to this appeal.

A. Historical Background

This extradition arises out of a series of connected events that occurred in the Indian State of Punjab from the mid-1980s to early 1990s, where Sikh insurgents sought to establish a new homeland within that state to be called Khalistan. The existing tensions caused by this movement in the Punjab between Sikh nationalists and the Indian Government erupted in June 1984, when Indian armed forces launched "Operation Bluestar" to capture and oust Sikh rebels who had taken refuge in the Golden Temple, the holiest of Sikh shrines. This military strike resulted in extensive damage to the temple complex, the killing of at least 500 persons, and numerous casualties among civilians who were caught in the crossfire. The incident came to be known as the "Golden Temple Massacre" and was a focal point for Sikh militancy.

In October 1984, in an apparent attempt to avenge the massacre, two Sikh body-guards assassinated Indira Ghandi, the Prime Minister of India. A decade of intense strife followed. Sikh militants, in pursuit of their goal of creating a new homeland, engaged in bombings, assassinations, and other terrorist activities against the Indian Government, its local collaborators, and innocent civilians. The Government of India responded with extensive counterinsurgency efforts, but it was not until 1994 that the active armed Sikh separatist insurgency was largely contained. It is estimated that during this decade, 30,000 to 100,000 people were killed in this confrontation.

B. Kulvir Singh Barapind

In 1985, Barapind, while a college student in Jalandhar, Punjab, India, became an active member of the All India Sikh Student Federation ("Federation"), a group committed to establishing the sovereign Sikh nation of Khalistan. Barapind subsequently moved up the group's hierarchy, becoming president of the Federation for the District of Jalandhar, Punjab in 1988. Despite personal harassment by the police and the killing of fellow Federation members, Barapind continued his protest activities. According to Dr. Cynthia Mahmood, an expert on international violence and terrorism, Barapind became a folk hero who has great popular support among Sikh Separatists.

C. Criminal Process in India

As summarized by the appellee, the initial phases of criminal process in India bear many similarities to our own. When a crime is committed, a First Information Report, or "FIR," is prepared by the Head Constable or other authorized officer in the police station having territorial jurisdiction over the offense. The FIR sets forth the facts regarding the case and the specific violation of the Indian Penal Code and other statutes. FIRs are prepared only for serious crimes like murder, attempted murder and conspiracy to commit murder. After they are prepared, an investigation is conducted by officers of the police station. In the case of serious crimes, when sufficient evidence has been gathered to form a reasonable basis to believe a crime has been committed by the accused, a document known as a "challan" is prepared by the station house officer.

Challans are then presented to the district attorney, whose duty is to review them and to ascertain whether there is sufficient evidence to obtain a judicial verdict against the accused. The qualifying challans are then filed with the Judicial Magistrate Courts in the sub district responsible for the police station where each case was initiated and investigated. This filing is accomplished by the prosecuting agencies who, in accordance with Indian law and other relevant provisions of the Criminal Procedure Code, submit the complete case files to the judicial magistrate for trial.

The challans supporting the case against Barapind and prepared according to this process were presented to the prosecuting agency, the District Attorney of Jalandhar District, State of Punjab. The District Attorney reviewed the challans to ascertain the sufficiency of the included evidence to obtain a judicial verdict against the accused. District Attorney of Jalandhar S.K. Kapoor made a sufficiency finding for every challan asserting charges against Barapind.

After the District Attorney certified the challans, the cases were filed with Judicial Magistrate Courts in the sub districts of Jalandhar. The filing was completed for Barapind's trial when the District Attorney submitted the case files to Judicial Magistrates in accordance with section 173 of the Indian Criminal Procedure Code. The judicial magistrate issued arrest warrants for Barapind for all of the crimes that predicate the extradition request. This request for extradition followed in due course.

D. Affidavit of Satish Kumar Sharma

At all times relevant, Satish Sharma was the Police Chief for the District of Jalandhar, Punjab. He was the ranking police official and was personally responsible for the investigation of all criminal cases in that district, including the case against Barapind. His duties included supervising the investigations conducted by officers under his command; reading reports of investigating officers; and personally reviewing the investigation reports and statements regarding the cases against Barapind that are the subject of the extradition request. Each criminal charge against Barapind is documented by an FIR, which identifies the substantive violation of the Indian Penal Code, the applicable provisions of the Terrorist and Disruptive Activities (Prevention) Act (TADA), and, in certain cases, the Arms Act. No extradition is sought for violations of TADA or the India Arms Act.

Satish Sharma alleges that Barapind is a fugitive from justice, that he could not be tried in his absence, and that the Judicial Magistrate declared Barapind a "proclaimed offender," as set forth in Section 82 of the Indian Criminal Procedure Code for each of the charges in the FIRs.

III PROCEDURAL BACKGROUND

Barapind arrived in the United States at the Los Angeles International Airport on April 25, 1993, under a passport bearing the false name, Mahim Mehra. An alert INS officer immediately detained Barapind and charged him as an excludable alien under the Immigration & Nationality Act (INA). See 8 U.S.C. §§ 1101 et seq. (2003). Barapind conceded he was excludable under the INA, but on June 7, 1993, he applied for asylum and withholding of deportation based on his alleged fear he would be persecuted upon his return to India on account of his Sikh political separatist activities. The Immigration Judge (IJ) denied Barapind's application, and ordered him excluded. The BIA affirmed the exclusion order.

On August 3, 1994, Barapind filed a first habeas petition pursuant to § 106(a)(10) of the Immigration and Naturalization Act, 8 U.S.C. § 1105a(a)(10) (1994), challenging the BIA's exclusion order in the United States District Court for the Central District of California. Because of legal error, the district court remanded Barapind's case to the BIA. Barapind appealed the order of remand to this Court. In an unpublished decision, we affirmed. 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, after Barapind was transferred to a detention facility in Bakersfield, California,...