Thursday, September 10, 2009
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Court Denies Asylum for Former Kashmiri Separatist
By STEVEN M. ELLIS, Staff Writer
A ban on asylum for aliens who engaged in “terrorist activity” does not provide an exception for legitimate armed resistance against military targets, the Ninth U.S. Circuit Court of Appeals held yesterday.
Rejecting an argument that acts prohibited in an alien’s home country only implicate the ban if they violate the international law of armed conflict, a three-judge panel affirmed an order barring asylum and withholding of removal for an Indian man formerly involved with the political wing of a Kashmiri separatist group.
Writing for the court, Judge William A. Fletcher conceded petitioner Anjam Parvez Khan’s point that the ban might theoretically apply to armed resistance by Jews against the government of Nazi Germany, but noted that the secretaries of state or homeland security can exercise a discretionary waiver of the ban under the Immigration and Nationality Act.
“These officials are in a position to judge the characteristics of particular groups engaging in armed resistance in their home countries, as well as the implications for our foreign relations in determining whether the actions of these groups are terrorist activities,” he said.
Khan—who was involved with the Jammu Kashmir Liberation Front in the 1970s, but was never officially a member—sought asylum, withholding of removal and relief under the Convention Against Torture in 1998 after fleeing India.
Separatist Group
The group was dedicated to the establishment of an independent Kashmiri state in the northwestern region of the Indian subcontinent, which is disputed by India and Pakistan, but split into different organizations in the mid-1990s when many of its members renounced the use of violence.
Before the split, the organization’s political wing advocated for independence nonviolently, but its militant wing took part in killings of politicians, the kidnapping of the Indian home minister’s daughter, and repeated attacks on the Indian Army, including attacks on military convoys.
An immigration judge granted Khan’s request under the Convention Against Torture, but denied the requests for asylum and relief from removal, finding them barred because the JKLF was a terrorist organization; because Khan solicited funds for the group; and because Khan knew or reasonably should have known that the group was a terrorist organization.
‘Terrorist Activity’
The Board of Immigration Appeals affirmed and Khan appealed, arguing that the activities of an organization engaged in armed resistance against an illegitimate government are permitted under international law. He asserted that the definition of “terrorist activity” in the INA—various violent acts which are “unlawful under the laws of the place where [they are] committed”—did not extend to violent activities in furtherance of armed resistance so long as the activities complied with international law.
But Fletcher wrote that Khan’s contention was “not a permissible reading of the statute.”
Referring to the example that the ban might apply to Jews in Nazi Germany, the judge wrote:
“This may be true, but the text does not make an exception for actions that are lawful under international law. An action would be lawful…if the law of the country in question incorporates international law such that the conduct in question is no longer ‘unlawful’ under the country’s domestic law, but Khan has made no argument that that is the case here.”
Fletcher similarly rejected Khan’s argument that the United States’ obligations under the 1967 United Nations Protocol Relating to the Status of Refugees compelled a narrower definition of “terrorist activity” and concluded substantial evidence supported the immigration judge’s findings.
Judge Richard C. Tallman and Senior Judge Dorothy W. Nelson joined Fletcher in his opinion, but Nelson wrote separately to consider the issue of India’s incorporation of international law.
Pointing out that the U.S. military’s invasions of Afghanistan and Iraq were indisputably “unlawful” under the domestic laws of those countries, rendering any individual or group who assisted the U.S. military in those efforts ineligible for asylum or withholding of removal, she said that interpreting the INA without reference to international law would lead to “anomalous, and unintended, results.”
Nelson also called the availability of waivers “at best, an inadequate piecemeal solution,” but opined that recourse to international law did not help Khan.
Commenting that even though India had ratified the Geneva Conventions and the JKLF was “arguably engaged in a qualifying conflict,” she said the group—by targeting noncombatants and taking hostages—had “exceeded the bounds of permissible conduct.”
The case is Khan v. Holder, 07-72586.
Copyright 2009, Metropolitan News Company