Metropolitan News-Enterprise


Thursday, April 2, 2009


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Court Limits Right to Deny Asylum Based on Classified Evidence


By SHERRI M. OKAMOTO, Staff Writer


An immigration court cannot rely on classified evidence in rendering a discretionary asylum decision without granting the alien an opportunity to reasonably respond to the government’s allegations, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Reversing the Board of Immigration Appeals decision denying Rajwinder Kaur asylum, the panel explained that providing Kaur with only a one sentence summary of the accusations against her was fundamentally unfair and violated her due process rights.

Kaur and her husband, Harpal Singh Cheema, are both natives of India, where Cheema worked as a lawyer. He claimed that he was tortured by Indian authorities after he helped organize a rally in 1987 to protest the Indian government’s decision to divert water from the Punjab River and aided two All India Sikh Student Federation leaders in the aftermath of the protest.

Cheema fled to the United States in 1990, where he said he began raising money to be sent to families in the in the Punjab region and individuals injured in crossfire while trying to cross the border between Pakistan and India.

He said that he returned to India in 1992 when he learned that Kaur was ill. Cheema claimed that he was seized by the police on his arrival at the Bombay airport, and then held captive and tortured for three months.

After hiding in India for over a year, Cheema and Kaur both fled to New York, where they applied for asylum and withholding of deportation.

In opposing the motion, the government presented classified information and testimony by government employees which could not be disclosed to Cheema and Kaur.

Aided Sikhs

Kaur testified that she sent money to India to aid Sikh widows and orphans after she arrived in the United States. She denied having ever engaged in providing financial or other support for Sikh militants, and she said she was not aware of her husband doing so. The government did not present any evidence contradicting this testimony.

Immigration Judge Dana Marks Keener found both Cheema and Kaur to be credible even though said she did not believe some of Cheema’s testimony regarding his fundraising in the United States, and said neither was a danger to the security of the United States.

She found Kaur had not been engaged in terrorist activity and was entitled to asylum, withholding of deportation, and full relief under the Convention Against Torture. Keener denied Cheema asylum, but found he was entitled to withholding of deportation and partial relief under the torture treaty.

BIA Findings

On appeal, the BIA adopted Keener’s factual findings. But it held that, based on the non-classified evidence of record, those findings evinced acts of financial support for terrorists. The BIA made no reference to immigration fraud.

The Ninth Circuit ruled that the BIA had applied the wrong legal standard in determining whether Cheema was a danger to the security of the United States and remanded for a determination under the correct legal standard.

As for Kaur, the panel concluded that there was no evidence she had engaged in terrorist activity and remanded for the attorney general to exercise his discretion as to her asylum claim.

After remand, the BIA took the classified evidence that had been presented to Keener into account.

The unclassified summary of the confidential evidence relating to Kaur stated that “reliable confidential sources have reported that Kaur has conspired to engage in alien smuggling; has attempted to obtain fraudulent documents; and has engaged in immigration fraud by conspiring to supply false documents for others.”

The BIA ruled that Kaur was unworthy of asylum. It also found Cheema was a threat to national security.

Both Cheema and Kaur petitioned for review, but in February 2006 Cheema told the immigration judge that it would be better to “die in a real jail in front of his people” than remain incarcerated in the United States, and he was deported.

Writing for the appellate court, Judge M. Margaret McKeown noted that Cheema’s deportation rendered his claim for relief moot. She also explained that his inadmissibility was a collateral consequence of the BIA’s unchallenged determination that he had engaged in terrorist activities.

Turning to the issue of the classified evidence, McKeown explained that a summary of the secret evidence must be provided whenever such a summary can be issued without jeopardizing the classified nature of the information and its source, and must be as detailed as possible.

She noted that the one sentence summary provided to Kaur was “at best, conclusory and opaque,” which did not allow her an opportunity to offer opposing evidence. “Kaur cannot rebut what has not been alleged,” McKeown wrote.

 “At a minimum, Kaur should be provided with the alleged dates of and individuals involved in the claimed fraud” the judge said.

In addition to violating the regulations governing the admissibility of classified evidence, McKeown concluded that the BIA’s use of the secret evidence against Kaur was unconstitutional because Kaur had been granted CAT relief and was therefore an admitted alien entitled to due process.

The BIA also abused its discretion by justifying its decision with a “passing reference” to Cheema and Kaur’s possible lack of candor about certain issues, because Keener had found Kaur to have been credible, McKeown added.

Senior Judge John T. Noonan and Judge Johnnie B. Rawlinson joined McKeown in ordering further proceedings on Kaur’s asylum petition, but wrote separate concurrences.

Noonan opined that a proceeding where an alien could not test the information against her is unjust. “I would not like to leave the impression that a summary of secret evidence would have provided due process,” he wrote. 

Although Rawlinson noted her reluctance to concur because she had dissented from the Ninth Circuit’s prior decision, arguing that the unclassified evidence provided adequate support for a denial of relief for Kaur, she agreed that the BIA’s use of the classified information required remand based on fundamental fairness.

The case is Kaur v. Holder, 06-71048.


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