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Court: Cheema Aided Terrorism in India, But Is Not a Threat to the U.S.

By BOB EGELKO

San Francisco Chronicle, Dec. 3, 2003

In the first ruling of its kind, a federal appeals court in San Francisco has ordered immigration officials to release a Bay Area Sikh activist who has been held for six years in jails for aiding terrorists overseas. Immigration officials never tried to deport Harpal Singh Cheema to his native India - where, according to court records, he has been repeatedly arrested and tortured - but kept him locked up because he helped raise money for Sikh militants. The U.S. Court of Appeals in San Francisco ruled Monday that a noncitizen's financial support of foreign terrorists does not automatically make one a danger to U.S. national security. Since the government offered no evidence that Cheema was actually dangerous, he must be released from jail, cannot be deported and is eligible for political asylum, the court said.

'It is by no means self-evident that a person engaged in extra- territorial or resistance activities - even militant activities - is necessarily a threat to the security of the United States,' wrote Judge John Noonan in the 2-1 ruling. 'One country's terrorist can often be another country's freedom fighter.' He cited a wide range of historical examples: support by U.S. citizens for 19th century European revolutionaries and 20th century anti-Communist leaders, congressional support for Nelson Mandela's release from prison in South Africa and U.S. government backing for the Nicaraguan Contras in the 1980s. The court also barred the deportation of Cheema's wife, Rajwinder Kaur, who lives in Fremont and was accused by U.S. immigration officials of aiding terrorist groups. She has not been jailed, the couple's attorney, Robert Jobe, said Tuesday.

'I've never seen another case where a court overturned a governmental finding that an alien is a danger to national security,' said Jobe, a longtime immigration lawyer. 'The most significant thing is that the court got involved at all. The government has been arguing that their decision was unreviewable. . . . They were going to hold him forever.' He said Cheema, who applied for asylum when he entered the United States with his wife in 1993, had been held in various federal immigration jails in California since November 1997. The court said Cheema, a lawyer, had been arrested and beaten by police in India in 1987 after organizing a protest rally. He became a leader in the Sikh independence movement and was tortured three more times in the next five years by police who stretched his body over a pulley, broke his leg and subjected him to electric shocks and a mock execution, the court said.

Cheema said his political activities were on behalf of nonviolent groups and human rights activists, but he admitted putting potential donors in touch with a Sikh militant leader, Daljit Singh Bittu, who was based in Pakistan and wanted by the Indian government. He also admitted communicating with the leader of another militant group in 1995 and helping the leader's wife escape India. A U.S. immigration board said Cheema had aided terrorist activity, and the court accepted that conclusion. Nevertheless, the court said, Cheema is entitled to remain in the United States - since he would face persecution and torture if deported - and cannot be imprisoned unless the government provides evidence that he threatens national security.

Dissenting Judge Johnnie Rawlinson recited violent acts attributed to the militant groups Cheema had aided and said they justified his detention. 'A finding that Cheema provided material support to major international terrorists . . . substantiates the (immigration board's) finding that Cheema and his wife threaten the security of this country,' Rawlinson said. 'Our country should not become a haven for those who desire to foment international strife from our shores.'