Barapind v. Reno, Civ-F-98-5583 OWW.

Decision Date04 June 1999
Docket NumberNo. Civ-F-98-5583 OWW.,Civ-F-98-5583 OWW.
Citation72 F.Supp.2d 1132
CourtU.S. District Court — Eastern District of California
PartiesKulvir Singh BARAPIND, Plaintiff/Petitioner, v. Janet RENO, Attorney General of the United States of America, and Madeline Albright, Secretary of State of the United States of America, Defendant/Respondent.

Karen L. Snell, Clarence and Snell LLP, San Francisco, CA.

Jagdip Singh Sekhon, San Francisco, CA.

Glyndell E. Williams, U.S. Atty., Sacramento, CA.

Stanley A. Boone, U.S. Atty., Fresno, CA.

Teresa A. Wallbaum, U.S. Dept., of Justice, Office of Immigration Litigation, Washington, DC.

MEMORANDUM OPINION AND ORDER RE DEFENDANT'S MOTION TO DISMISS

WANGER, District Judge.

I. INTRODUCTION

The United States moves to dismiss Kulvir Singh Barapind's complaint for declaratory and injunctive relief and second, successive petition for habeas corpus, for lack of subject matter jurisdiction and failure to state a claim. See Fed.R.Civ.P. 12(b)(1) & (6). Plaintiff opposes the motion.

II. PROCEDURAL HISTORY

Plaintiff 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 INS officer immediately detained Plaintiff and charged him as an excludable alien under the Immigration & Nationality Act ("INA"). Mr. Barapind conceded he is excludable under the INA and applied for asylum and withholding of deportation under a false name, based on his alleged fear he would be returned to India and persecuted. On June 7, 1993, he applied for asylum/withholding in his true name.

After an extended hearing before the Immigration Judge ("IJ"), a January 13, 1994, order found Plaintiff excludable and lacking in credibility; ineligible for asylum because he persecuted others; not statutorily eligible for asylum based on at least one of the five grounds in the INA, to wit: Plaintiff sought to enter the United States to work without a valid labor certification; to enter the United States by fraud or willful misrepresentation of material facts while an alien; and was an intended immigrant without a valid visa. Plaintiff formally conceded his excludability under all I & N Form I-122 charges.

On July 26, 1994, the Board of Immigration Appeals ("BIA"), dismissed the appeal, found Plaintiff barred from refugee status because he was a threat to national security of the United States; had not established a well-founded fear of persecution; and was incredible under the IJ's findings.

On August 3, 1994, Plaintiff petitioned for writ of habeas corpus review of the BIA decision in the U.S. District Court for the Central District of California, Barapind v. Rogers, Case No. CV-94-5279 JGD (RNB).1 The District Court issued a stay of deportation to India during the pendency of District Court proceedings.

On March 14, 1996, the District Court ordered a remand for further proceedings before the BIA pursuant to 8 U.S.C. § 1158(a).2 The District Court upheld the adverse credibility determination against Plaintiff and directed the BIA to review "extradition documents" to determine whether the information in such documents barred Plaintiff from relief under 8 U.S.C. §§ 1158(a) (asylum) and 1253(h) (withholding of deportation). Plaintiff appealed. On May 15, 1997, the Ninth Circuit affirmed, but modified the remand order, rejecting the IJ's adverse credibility determination and veracity findings as to criminal allegations made against plaintiff by the Indian government in extradition documents. Barapind v. Rogers, 114 F.3d 1193 (Table), 1997 WL 267881 (Text) (9th Cir.1997). No party sought review. The District Court's modified remand order followed on July 17, 1997, directing the BIA to re-adjudicate Plaintiff's asylum/withholding application. On October 30, 1997, on the Attorney General's (INS) motion, over plaintiff's objections, the BIA ordered the exclusion-asylum proceedings held in abeyance pending the extradition request. There have been no further proceedings before the BIA.

Petitioner was transferred to custody of the U.S. Marshal in Fresno, California, pursuant to a warrant of arrest issued September 18, 1997. On September 18, 1997, the government of India filed a complaint for extradition in the U.S. District Court for the Eastern District of California, Fresno, erroneously numbered by the Clerk as Case No. MC-F-97-96. The case was renumbered and assigned as CV-F-98-5489 OWW, In the Matter of the Indian Government's Request for the Extradition of Kulvir Singh aka Kulvir Singh Barapind (the Extradition case). The Extradition Case was based on a diplomatic note prepared by the Indian Embassy filed with the Department of State on November 29, 1994, supported by a declaration of the Attorney-Advisor in the Office of the United States Department of State Legal Advisor, acknowledging and finding the extradition request complete as of December 1994.

On February 17, 1998, Plaintiff filed this complaint for declaratory/injunctive relief with a second, successive habeas petition in the Central District of California, Case No. 98-1122 DT (RNB). A notice of related case to the first habeas case, resulted in reassignment to Judge Davies on February 27, 1998, who, by sua sponte order transferred this second case to the United States District Court for the Eastern District of California, first to Sacramento where it was assigned Case No. CIV-S-98-5027 FCD GGH, and then to the Fresno Division where it was renumbered Case No. CIV-F-98-5583 OWW SMS.

Plaintiff's counsel admitted at oral argument that instead of seeking to amend the initial, still active, habeas case in the Central District, they chose to file this new case, as a related case in the Central District of California. The Government of India maintains it has the right to extradite Plaintiff before conclusion of and without regard to the BIA and INA proceedings, the pending Central District case, or this case.

On April 29, 1998, the Magistrate Judge denied Plaintiff's motion for pretrial release and stayed the Extradition Case, pending outcome of the BIA proceeding. An October 14, 1998, District Court order vacated that stay. An October 13, 1998, order consolidated this case for pretrial proceedings with the Extradition Case.

III. BACKGROUND

This case seeks declaratory, injunctive, and habeas relief to force the Attorney General/BIA to vacate the BIA decision to hold in abeyance and to adjudicate the exclusion/asylum proceedings. Barapind has filed a certified copy of the administrative record and the Snell Declaration in Support of Judicial Consideration of Humanitarian Concerns Regarding Plaintiff's Extradition to India. Defendants do not object to the declaration or documents, which detail her unsuccessful efforts to address humanitarian concerns to the U.S. State Department in an unrelated case, In the Matter of Requested Extradition of James J. Smyth, 863 F.Supp. 1137 (N.D.Cal.1994), reversed, 61 F.3d 711 (9th Cir.), modified, 73 F.3d 887, reh'g en banc denied, 72 F.3d 1433 (9th Cir.), cert. denied, 518 U.S. 1022, 116 S.Ct. 2558, 135 L.Ed.2d 1076, (1996). Plaintiff filed a March 15, 1999, surreply to Defendant's reply.3 The motion to dismiss was heard May 18, 1999. Letter briefs, not authorized by Local Rules, see L.R. 7-130; have been filed and considered.

IV. LEGAL STANDARDS
A. MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION, FED.R.CIV.P. 12(b)(1)

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) addresses the court's subject matter jurisdiction, derived from the case or controversy clause of Article III of the U.S. Constitution. It is presumed that a case lies outside the jurisdiction of the federal courts unless Plaintiff proves otherwise. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 376, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221 (9th Cir.1989); Thornhill Publishing Co. v. General Telephone & Electronics Corp., 594 F.2d 730, 733 (9th Cir.1979). "A motion to dismiss for lack of subject matter jurisdiction may either attack the allegations of the complaint or may be made as a `speaking motion' attacking the existence of subject matter jurisdiction in fact." Id. at 733; FDIC v. Nichols, 885 F.2d 633, 635-36 (9th Cir.1989).

In a 12(b)(6) facial attack on the complaint, "the court must consider the allegations of the complaint as true." Mortensen v. First Federal S & L Ass'n, 549 F.2d 884, 891 (3rd Cir.1977); see also, NL Indus. Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986). The motion will be denied unless the allegations appear to be frivolous. See Black v. Payne, 591 F.2d 83, 86 n. 1 (9th Cir.), cert. denied, 444 U.S. 867, 100 S.Ct. 139, 62 L.Ed.2d 90 (1979). Plaintiff's allegations need not be taken as true when considering a Rule 12(b)(1) motion. Thornhill Publishing, 594 F.2d at 733.

Defendants may "rely on affidavits or any other evidence properly before the court." St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.) (citations omitted), cert. denied, 493 U.S. 993, 110 S.Ct. 541, 107 L.Ed.2d 539 (1989). "It then becomes necessary for the party opposing the motion to present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction." Id.

B. MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

A motion to dismiss for failure to state a claim under Fed.R. of Civ.P. 12(b)(6) is disfavored and rarely granted: "a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); see also Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir.1997) (issue is not...

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