Evidence lacking
Ninth Circuit Court orders release of immigrant deemed a terrorist by the feds

By Camille T. Taiara

A federal court has ordered the release of an immigrant detained as a national security risk, citing inadequate evidence. The decision has potentially far-reaching implications because it directly challenges the government's blanket authority in these types of cases.

Harpal Singh Cheema, an asylum applicant from Union City, faced a choice: remain behind bars indefinitely or be deported to his native India, where he'd almost certainly face violent persecution and, possibly, death for his political activities. The immigration service claimed that the efforts of Cheema and his wife, Rajwinder Kaur, on behalf of the Sikh nationalist movement amount to a terrorist threat against the United States (see "The American Inquisition," 7/23/03).

The Ninth U.S. Circuit Court of Appeals disagreed, saying in its Dec. 1 decision, "No evidence supports the Board [of Immigration Appeals'] conclusion that there are reasonable grounds for regarding Cheema and Rajwinder Kaur as dangers to our national security." The government never filed any criminal charges against the couple and, at least initially, relied heavily on secret Federal Bureau of Investigation evidence to make its case.

The court ordered that Cheema be released from jail, barred the feds from deporting him and his wife, and required the Justice Department's Board of Immigration Appeals to reconsider their asylum applications.

"This is a huge victory," said Cheema's attorney, Robert Jobe, who explained that the court's challenge could have wide ramifications for dozens, and possibly hundreds, of immigration cases.

But the fight isn't over yet. The government has 45 days to appeal the court's decision. Jobe thinks the feds may ultimately ask the U.S. Supreme Court to rule that courts don't have authority to review national security determinations. Cheema, who already has spent six years behind bars, may have to wait out the verdict in detention. And, Jobe said, "what [the Supreme Court] would do with the case is anybody's guess."

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