In re Extradition of Singh

Decision Date27 August 2001
Docket NumberNo. CV. 98-5489 OWW.,CV. 98-5489 OWW.
Citation170 F.Supp.2d 982
PartiesIn the Matter of the Extradition of Kulbir SINGH, aka Kulbira aka Kulvir Singh Barapind, aka Mahim Mehra,
CourtU.S. District Court — Eastern District of California

Jagdip Singh Sekhon, Esq., Karen L. Snell, Esq., San Francisco, CA, for Kulvir Singh Barapind.

MEMORANDUM DECISION AND ORDER RE EXTRADITION

WANGER, District Judge.

I. INTRODUCTION

An evidentiary hearing was held on February 9, 13, 14, 15, 16, and March 1, 2001. Evidence was taken, legal authorities submitted, and oral argument heard and considered.

II. PROCEDURAL HISTORY1

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").2 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. Barapind v. Reno, 72 F.Supp.2d at 1138.

On January 13, 1994, Barapind was denied asylum by an Immigration Judge (IJ). On July 26, 1994, the Board of Immigration Appeals (BIA) dismissed Barapind's appeal and barred him from claiming refugee status. Barapind sought review of the IJ decision in the United States District Court for the Central District of California in Los Angeles. On August 3, 1994, Barapind petitioned for a writ of habeas corpus in the United States District Court for the Central District of California. The District Court ordered a stay pending further hearings before the INS. On March 14, 1996, the District Court in Los Angeles remanded the asylum/withholding application for further proceedings before the BIA. Barapind appealed. On May 15, 1997, in Barapind v. Rogers, 114 F.3d 1193, 1997 WL 267881, *3 (9th Cir. May 15, 1997) (unpublished), the Court of Appeals for the Ninth Circuit rejected the IJ's adverse credibility determinations and faulted the IJ for treating, as established facts, India's criminal allegations made against Barapind in the extradition request. It affirmed the district court's remand, but modified the remand order for further proceedings before the IJ in the asylum/withholding case, specifically overturning the IJ's adverse credibility determinations and veracity findings as to criminal allegations made against Barapind by the Indian government in extradition documents. A modified remand order was entered by the District Court 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, India filed a complaint for extradition in the U.S. District Court for the Eastern District of California. Extradition is sought under 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. Dept. of State, Treaties in Force 132 (1999).

Once the extradition proceedings were initiated, the INS filed a motion to stay the remanded asylum/withholding proceedings pending before the BIA. Barapind objected. On October 30, 1997, the BIA ordered Barapind's exclusion and asylum proceeding held in abeyance pending the outcome of the extradition.

On February 17, 1998, Barapind filed a second complaint and habeas corpus petition in the Central District of California, challenging the BIA stay of immigration proceedings and seeking declaratory relief to compel the BIA to adjudicate his asylum application first and to enjoin the defendants from extraditing or in any other way interfering with his right to a final adjudication of his asylum application. On February 27, 1998, Barapind's second habeas petition was transferred to the Eastern District of California. On April 29, 1998, the Magistrate Judge, on Barapind's motion, stayed the extradition case, pending outcome of the BIA proceeding. The stay was vacated by the District Court on October 14, 1998.

On June 4, 1999, on the INS's motion, the District Court in Barapind v. Reno, 72 F.Supp.2d 1132 (E.D.Cal.1999) aff'd on other grounds, 225 F.3d 1100 (9th Cir. 2000), dismissed Barapind's second habeas petition for lack of subject matter jurisdiction and failure to state a claim as a second, successive petition, 72 F.Supp.2d at 1142; and for failure to demonstrate legal justification to stay the extradition proceedings, id. at 1144-47. On August 28, 2000, the Court of Appeals affirmed dismissal without prejudice on a different ground, that extradition is a separate and independent procedure from exclusion or removal proceedings under the INA; citing Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1009-11 (9th Cir.2000), and held the BIA was authorized to hold exclusion/asylum proceedings in abeyance pending completion of the extradition. Barapind v. Reno, 225 F.3d at 1114.

III. FACTUAL BACKGROUND
A. Historical Background

This extradition arises out of events that occurred in the Indian State of Punjab in the mid-1980s to early 1990s, where Sikh insurgents sought to establish a new homeland, Khalistan. At the relevant time, the State of Punjab had a population of approximately 24 million persons, 14 million of whom were Sikhs. India has 20 million Sikhs who represent about 2% of India's population. The existing tensions in the Punjab between Sikh nationalists and the Indian Government erupted in June 1984, when Indian armed forces under General Braur launched "Operation Bluestar" to interdict 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. Thirty-seven other Sikh temples were attacked resulting in the deaths of 3,000-4,000 Sikhs. Sikhs were "horrified" and alienated from the Indira Ghandi government. See Trial Testimony and Dep. of Dr. Cynthia Mahmood, 30:10-34:4.

In October 1984, two Sikh bodyguards assassinated Indira Ghandi to avenge the massacre. A decade of strife followed. India adopted anti-Sikh programs and 3,000-4,000 Sikh casualties were suffered. Sikh militants, in their quest for 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 counterin-surgency efforts, by which Indian security forces in their endeavor to suppress Sikh militants, committed human rights abuses, engaged in extrajudicial "encounter" killings, detentions without trial, and torture. See Amnesty International, Human Rights Violations in Punjab: Use And Abuse of the Law (May, 1991). Estimates are that between 7,000-30,000 people were killed during the Sikh separatist movement in 1991-92, and that from 30,000 to 100,000 persons were killed in the 1984-1993 period. See Dep. of Dr. Cynthia Mahmood, 13:3-13:9.

By the early 1990s, Indian security forces gained hegemony in the conflict and by 1994, the active armed Sikh separatist insurgency was largely contained.

1. Kulbir Singh Barapind

In 1985, Barapind, a Sikh, while a college student in Jalandhar, Punjab, India, became an active member of the All India Sikh Student Federation ("Federation"); a group committed to establish a sovereign Sikh nation of Khalistan to be created from the Punjab state. He subsequently moved up the group's hierarchy until he became president of the Federation for the District of Jalandhar, Punjab in 1988. Because of his Federation involvement, Barapind was arrested numerous times and tortured by the Indian police, then released. Cpt. ¶¶ 20-46. Despite police harassment and killing of Federation members, Barapind continued his protest activities. See id. ¶¶ 61-63.

Police harassed Barapind's family in an effort to obtain Barapind's surrender. Cpt. ¶¶ 51-55; 64-65. Barapind escaped from India to the United States using false documents and a fictitious identity in April 1993. Barapind was immediately detained and arrested by the INS upon his arrival at Los Angeles International Airport before entering the United States. Cpt. ¶¶ 67-86. See Barapind v. Reno, 72 F.Supp.2d at 1141-42.

2. Affidavit of Satish Kumar Sharma

Satish Sharma, Senior Superintendent of Police, Ferozepur, was, at all times relevant, the Police Chief for the District of Jalandhar, Punjab. He is the ranking police official and was personally responsible for investigation of all criminal cases in that district. See Affidavit of Satish Kumar, Govt. Ex. 1, p. 2, 1.

Chief Sharma's duties include 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. See Affidavit of Satish Kumar, Govt. Ex. 1, p. 2, 1. Extradition is sought in eleven cases, each covered by a First Information Report ("F.I.R."). The cases involve multiple offenses and victims. Each criminal charge against Barapind is documented by an F.I.R., 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...

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