The Ninth Circuit Court of Appeals ruled that a Sikh lawyer-activist and his wife are eligible to avoid deportation.  In reaching the decision, the panel determined that a militant action against a foreign government will not always be a threat to the security of the United States.

Harpal Singh Cheema claimed that Indian officials tortured him.  He claims that they have beat him, broke his leg twice, stretched his body with a pulley, subjected him to electric shock and broke his muscles with a solid steam roller.

He and his wife, Rajwindur Kaur, are committed to the formation of an independent Khalistan, which is an area of northern India including the state of Punjab and, perhaps, some of Pakistan.  This area would be designated for Sikhs.  Cheema has raised money for families injured trying to cross into Pakistan and aided Sikh militants.  Kaur claims to have only aided Sikh widows and orphans.

While the Immigration and Nationality Act offers asylum protection to individuals who may face fear of death or freedom upon return to their home country, the attorney general can also deport an individual if “there are reasonable grounds for regarding the alien as a danger to the security of the United States.”

The Board of Immigration Appeals ruled that both Cheema and Kaur could be deported because by raising money for terrorist groups they necessarily harmed the lives of United States citizens and compromised the defense of the United States.  However, the Ninth Circuit panel reversed, 2-1, saying that Cheema and Kaur do not pose a threat to US security.

The decision cited other situations where what one person considered a “terrorist” effort was actually an attempt to liberate an oppressed people.  The opinion cited the Contras in Nicaragua and Nelson Mandela’s encouragement of guerrilla tactics against the apartheid regime.  The dissent viewed the opinion as making the United States a safe haven for individuals who want to cause international problems abroad.

Under the USA Patriot Act, a person supports terrorist activity if he or she intentionally gives money to an organization that the government considers to be a terrorist.  Experts believe that the case may have the effect of narrowing that broad provision.

The case was remanded to the immigration judge to determine if Cheema and Kaur should be granted asylum.