Singh

MEMORANDUM *

Harpal Singh, a native of India, appeals the district court’s dismissal of his habeas petition, challenging the INS’ discretionary decision to deny parole. The INS arrested Singh in 1997, and he is still in custody. Singh alleges that he was arrested and tortured numerous times by the Indian security forces because he is an outspoken advocate for the establishment of an independent Sikh state. An immigration judge granted Singh deferral of removal under the Torture Convention. The immigration judge’s decision is currently before the BIA on cross-appeals. We have jurisdiction over Singh’s habeas petition pursuant to 28 U.S.C. §§ 1291 , 2253. We affirm. Because the parties are familiar with the factual and procedural history of this case, we do not recount it here except as necessary to explain our decision.

This Court reviews the District Court’s decision to grant or deny a petition for habeas corpus de novo. Desir v. Ilchert, 840 F.2d 723, 726 (9th Cir.1988).

Singh raises two issues on appeal. The first issue being whether it is unconstitutional for the INS to serve both an adjudicatory and prosecutorial role in Singh’s deportation proceedings. The second issue,…

concurring.

The majority’s opinion concludes that Harpal Singh is an excludable alien and is therefore unentitled to the protection of the Fifth Amendment’s Due Process Clause. While I concur in the result the majority reaches, I write separately to highlight exactly why the Due Process Clause is not in play.

The Supreme Court’s decision in Zadvydas v. Davis, 533 U.S. 678 , 121 S.Ct. 2491 , 150 L.Ed.2d 653 (2001), is the key to understanding why Singh cannot resort to due process protections. In Zadvydas , the Court was confronted with the government’s argument that the due process clause does not prohibit indefinite detention of aliens because of their status qua aliens. Id. at 692 . In particular, the government pointed the Court to a 1953 Supreme Court case, holding that due process protections did not apply to an alien who was refused admission to the United States and detained indefinitely at Ellis Island. Shaughnessy v. United States ex rel. Mezei 345 U.S. 206, 215-16 , 73 S.Ct. 625 , 97 L.Ed. 956 (1953).

The majority in Zadvydas , however, rejected this argument and found Mezei distinguishable. Justice Breyer, writing for the majority, explained that there is a world of…

Dissenting.

This is a difficult case with hard consequences. A man, grievously, repeatedly, and unspeakably tortured in his native country on account of his political opinion, now sits indefinitely in an American detention facility. And simply because he did not further risk the life and limb of his family and himself by sneaking into the United States through more adventuresome means, he is likely to spend the duration of his existence under INS detention because he is not a “person” entitled to rudimentary due process under the majority’s reading of the law. I fault my colleagues not—for the law is harsh, but not as harsh as they read it.

Mr. Singh is a person. And the majority is wrong to hew so closely to the language of cases in which excludable aliens have only those due process rights that Congress is prepared to grant them. The cases relied upon by the majority address excludable aliens subject to discretionary relief from the Attorney General. The United States, through its treaty obligations and its own sovereign laws, has distinguished that kind of relief from cases requiring mandatory relief. The relief Mr. Singh claims is mandatory. Because Mr. Singh fits-into a…