Kulvir Singh Barapind v. Jerry J. Enomoto, United States Marshal for the Eastern District of California

400 F.3d 744 Kulvir Singh BARAPIND, Petitioner-Appellant, v. Jerry J. ENOMOTO, United States Marshal for the Eastern District of California, Respondent-Appellee. No. 02-16944. United States Court of Appeals, Ninth Circuit. Argued and Submitted October 14, 2004. Filed March 9, 2005. COPYRIGHT MATERIAL OMITTED Jagdip Singh Sekhon, Sekhon & Sekhon, San Francisco, CA, for the appellant. Stanley A. Boone, Assistant United States Attorney, Fresno, CA, for the appellee. Appeal from the United States District Court for the Eastern District of California; Oliver W. Wanger, District Judge, Presiding. D.C. No. CV-01-06215-OWW. Before SCHROEDER, Chief Judge, KOZINSKI, RYMER, KLEINFELD, HAWKINS, THOMAS, GRABER, W. FLETCHER, TALLMAN, RAWLINSON and CALLAHAN, Circuit Judges. Per Curiam Opinion; Partial Concurrence and Partial Dissent by Judge RYMER. OPINION PER CURIAM. 1 We consider whether the district court erred in denying Kulvir Singh Barapind's habeas corpus petition challenging the certification of his extradition to India. FACTS 1 2 Barapind, a native and citizen of India, is a prominent leader of the All India Sikh Student Federation. The Federation is dedicated to establishing an…

concurring in the judgment in part and dissenting in part.

This appeal requires us to decide whether there is any competent evidence to support the extradition court’s finding of probable cause that Kulvir Singh Barapind committed multiple murders and, if so, whether the crimes charged are of a “political character” which the extradition treaty between the United States and India protects from extradition. This, in turn, requires us to settle the standard by which we determine that question.

In my view there was competent evidence of the criminality of Barapind with respect to each of the three incidents at issue. Given my belief that probable causé also exists on all three charges, I must decide whether the political offense exception applies. Although we suggested a standard in Quinn v. Robinson, 783 F.2d 776, 809-10 (9th Cir.1986), for whether an offense is “incidental to” a political uprising and thus within the exception, we are now sitting en banc and so are free to consider whether that standard, or some other, should govern. I believe we should overrule Quinn’s elaboration of the “incidental to” prong and instead follow the approach articulated by the Supreme Court in…

PER CURIAM Opinion; Partial Concurrence and Partial Dissent by Judge RYMER.

OPINION

We consider whether the district court erred in denying Kulvir Singh Barapind’s habeas corpus petition challenging the certification of his extradition to India.

*747 FACTS 1

Barapind, a native and citizen of India, is a prominent leader of the All India Sikh Student Federation. The Federation is dedicated to establishing an independent sovereign Sikh nation. From the mid-1980s through the early 1990s, while Bara-pind was still in India and an active Federation member, Sikh insurgents frequently clashed with the Indian government and its supporters, resulting in tens of thousands of casualties.

In 1993, Barapind came to the United States using a passport bearing a false name and was immediately detained by the Immigration and Naturalization Service (INS). He applied for asylum and withholding of deportation, asserting that he would face persecution if he were returned to India, but the immigration judge denied relief and ordered him excluded. On ha-beas review, a panel of this court affirmed the district court’s remand to the Board of Immigration Appeals, finding that the immigration judge…