Nadarajah v. Gonzales

• Decision Date: 17 March 2006
• Docket Number: No. 05-56759.,05-56759.
• Citation: 443 F.3d 1069
• Parties: Ahilan NADARAJAH, Petitioner-Appellant, v. Alberto R. GONZALES, Attorney General; Tom Ridge; Michael J. Garcia; Ron Smith; Hector Najera; Barbara Wagner, Warden, in their official capacities, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

443 F.3d 1069

Ahilan NADARAJAH, Petitioner-Appellant, v. Alberto R. GONZALES, Attorney General; Tom Ridge; Michael J. Garcia; Ron Smith; Hector Najera; Barbara Wagner, Warden, in their official capacities, Respondents-Appellees.

No. 05-56759.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 7, 2006.

Filed March 17, 2006.

COPYRIGHT MATERIAL OMITTED

Ranjana Natrarajan, Ahilan T. Arulanatham, Mark D. Rosenbaum; ACLU Foundation of Southern California; Los Angeles, CA; and Jordan C. Budd, ACLU Foundation of San Diego and Imperial Counties; San Diego, CA; attorneys for appellant.

Christopher C. Fuller, Michael P. Lindemann, and Peter D. Keisler; United States Department of Justice; Washington, D.C.; attorneys for appellee.

Molly K. Beutz and James J. Silk; Allard K. Lowenstein International Human Rights Clinic; Yale Law School; New Haven, CT; attorneys for amicus curiae.

Appeal from the United States District Court for the Southern District of California, Larry A. Burns, District Judge, Presiding. D.C. No. CV-04-01939-LAB.

Before SIDNEY R. THOMAS and RICHARD C. TALLMAN, Circuit Judges, and JAMES M. FITZGERALD,^* District Judge.

Opinion by Judge THOMAS.

THOMAS, Circuit Judge.

Starting at age 17, Ahilan Nadarajah was repeatedly tortured in Sri Lanka. He fled to the United States where he was detained upon arrival. He applied for asylum, withholding of removal, and protection under the Convention Against Torture. Twice, the government's arguments against the grant of immigration relief have been rejected and Nadarajah has been awarded relief by an immigration judge. This decision was affirmed by the Board of Immigration Appeals. Yet, the government continues to detain Nadarajah, who has now been imprisoned for almost five years despite having prevailed at every administrative level of review and who has never been charged with any crime. We order that a writ of habeas corpus issue, and that he be released on appropriate conditions during the pendency of any further proceedings.

I

This is a case about one individual, but as with most immigration cases, it can only be understood in the larger context of country conflict. The backdrop of this case is the quarter century-old battle between the government of Sri Lanki and a group known as the Liberation Tigers of Tamil Eelam ("LTTE") that seeks the creation of an independent state in areas in Sri Lanka inhabited by ethnic Tamils. The Tamils are an ethnic group who live in southern India and on Sri Lanka, an island of 19 million people off the southern tip of India. Tamils comprise about 18 percent of the island's population, and most live in its northern and eastern areas. Their Hindu religion and Tamil language set them apart from the three-quarters of Sri Lankans who are Sinhalese — members of a largely Buddhist, Sinhala-speaking ethnic group.

The LTTE separatist group, also known as the Tamil Tigers, have used conventional, guerrilla, and terror tactics in the decades-old civil war with the Sri Lankan government that has claimed more than 60,000 lives and displaced hundreds of thousands of Sri Lankans. Based on its conflict with the Sri Lankan government, the United State Department of State has listed the LTTE as a foreign terrorist organization. After the terrorist attacks against the United States on September 11, 2001, the LTTE declared a cease-fire against the Sri Lankan government. In 2002, the LTTE and the Sri Lankan government signed a formal cease-fire accord. The cease-fire remains in effect; however, there have been outbreaks of sporadic violence in the area.

Ahilan Nadarajah is a 25 year old native and citizen of Sri Lanka.¹ He is a member of the Tamil ethnic minority. Nadarajah lived with his family in the Jaffna peninsula at the north of Sri Lanka. He finished his schooling at age 17, and was working as a farmer on land that his family owned. In 1995, the Sri Lankan army invaded and shelled the area, displacing his family to the town of Vanni, some 60 kilometers from Jaffna. While they were leaving Jaffna by bicycle, one of the shells hit and killed Nadarajah's older brother. Eighteen months later, in April of 1997, his family returned to Jaffna, but because their home was occupied by the Sri Lankan army, they stayed with an aunt, two kilometers away.

Shortly thereafter, Nadarajah first had problems with the Sri Lankan army. On May 22, 1997, around 4:30 a.m., six or seven soldiers came into the home, beat him, blindfolded him, and took him to their camp. Because he had been in Vanni, his attackers accused him of membership in the LTTE, which he denied. For four months, Nadarajah was kept in the army camp, where he was regularly questioned and tortured. His questioners asked him to admit LTTE membership; when he refused, they tortured him, with methods that included beating him, sometimes with boards and gun handles, hanging him upside down, pricking his toenails with needles and burning him with cigarette butts. He still bears the scars from those torture sessions. He was eventually released when his mother bribed an army commander.

On October 5, 2000, Nadarajah was again arrested in his home, this time by agents of the opposition Elam People's Democratic Party ("EPDP"). When he denied their accusations of LTTE membership, he was beaten and taken to an EPDP camp. Nadarajah testified that the EPDP camp was funded by and connected to the Sri Lankan government. For a month, he was beaten and locked inside "a dark, dirty room," and forced to do menial labor. After a month of his mother's begging, he was permitted to leave the camp in November of 2000, but required to report every morning for two months.

Nadarajah was again arrested, by the Sri Lankan army, on July 10, 2001. A group of 15 to 20 soldiers approached him and his brother while they were working in a garden and took them into custody. Although his brother was soon released because of poor health, Nadarajah was detained for a month, during which he was again tortured:

Q. In what ways did they abuse you?

A. They hung me upside down and they beat me. While hanging upside down they brought a bag of gasoline, put my head inside that bag and tied me. * * * About 30 to 40 seconds I fainted. When I opened my eyes I was in my room. * * * They [also] tied my toes together and one person will pull one side and the others, the other person will pull it. And the other person pulled my head. They would fill the plastic bag with sand and they will beat me with that. * * * [And t]hey burned me with cigarette butts.

Nadarajah was released when his mother again bribed an official. He was told it was the last time he would be released and he ought to leave the country. Accompanied and funded by an uncle, Nadarajah departed immediately for Colombo, with plans to go to Canada.

In October of 2001, Nadarajah left Sri Lanka, having obtained a passport and exit documents through a smuggler. He traveled through Thailand, South Africa, Brazil and then Mexico before reaching the United States on October 27, 2001. He was apprehended by U.S. immigration officials at the border, and has been detained since.

On November 9, 2001, the Immigration and Naturalization Service granted Nadarajah parole from custody, conditioned, inter alia, on payment of a $20,000 bond. Unable to pay the bond, Nadarajah remained in custody. Nadarajah requested that the bond amount be decreased on at least three occasions, but these requests were denied. On August 9, 2004, counsel for Nadarajah attempted to present $20,000 to secure his parole under the 2001 terms. However, the United States Bureau of Immigration and Customs Enforcement ("ICE") was "unwilling to accept the bond, stating that the previous order granting Mr. Nadarajah parole was `stale' and ICE could not honor it."

In November of 2001, removal proceedings began against Nadarajah. He conceded removability and applied for asylum and other relief, claiming past persecution and fear of future persecution on account of his ethnicity and imputed political opinion. The government obtained two continuances; not until April 21, 2003, was a hearing was held at which Nadarajah testified. The government opposed Nadarajah's asylum application on the grounds that he was affiliated with the LTTE, an allegation supported by the affidavit of an ICE agent who had received information from a confidential informant.

Despite the government's allegations and "some discrepancies" in Nadarajah's testimony, the immigration judge ("IJ") found Nadarajah credible, noting that his testimony was consistent and supportive of his asylum claim. The IJ granted asylum and relief under the Convention Against Torture.

On April 25, 2003, the government filed a motion to re-open the removal proceedings to introduce additional evidence, namely, to present the testimony of a Department of Homeland Security ("DHS") agent. The IJ denied the motion, and the government appealed to the Board of Immigration Appeals ("BIA" or "Board"). The BIA granted the motion to reopen and remanded to the IJ. In its remand order, the BIA instructed the IJ to hear evidence in the form of testimony by the DHS witness, special agent Schultz, even though the IJ had given the DHS two postponements in order to present its witness without the witness appearing.

Proceedings were held on June 8 and August 18, 2004. Agent Schultz testified, as well as Nadarajah's expert witness. Schultz testified that his knowledge of the matter came from research that "involved reviewing public information that was available on the [LTTE] from State Department reports, Amnesty International reports[, speaking] to people in the Canadian government that were considered experts on the ground, and [speaking to] an ass[e]t of the Royal Canadian Mounted Police who is an expert regarding the group." When asked about the reliability of his Canadian sources, Schultz replied that he "had no reason to question their reliability. So [...