Barapind

MEMORANDUM OPINION AND ORDER RE DEFENDANT’S MOTION TO DISMISS

I. INTRODUCTION

The United States moves to dismiss Kul-vir Singh Barapind’s complaint for declaratory and injunctive relief and second, successive petition for habeas corpus, for lack of subject matter jurisdiction and failure to state a claim. See Fed.R.Civ.P. 12(b)(1) & (6). Plaintiff opposes the motion.

II. PROCEDURAL HISTORY

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”). Mr. 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.

After an extended hearing before the Immigration Judge (“U”), a January 13, 1994, order found Plaintiff excludable and lacking in credibility; ineligible for asylum because he persecuted others; not statutorily eligible for asylum based on at…