I have been
in receipt of a pseudonymous E-Mail forwarding what the person, who has sent
the mail, claims to be the proceedings in a US court on a petition for political asylum filed by one
Surender Jeet Singh on November 1,2004. The petitioner claimed to have been
working in the Khalistan Division of the R&AW and alleged that he fled from
India because he was asked to assassinate someone. The person who has forwarded
this to me by E-Mail feels that this Surender Jeet Singh is identical with Rabinder
Singh. Rabinder Singh, who was working as a CIA agent controlled by the CIA
station chief in Kathmandu, fled to the US along with his wife in May,2004,
when he was under surveillance by the R&AW.I would be grateful if any of my
readers in the US can throw further light on this at my E-Mail address seventyone2@gmail.com ---B.Raman,
31-7-12
393 F.3d 903
Surender Jeet SINGH, Petitioner,
v.
John ASHCROFT, Attorney General, Respondent.
No. 03-71868.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted November 1, 2004.
Filed December 23, 2004.
Joseph Siguenza, Ashwani Bhakhri, Burlingame, CA,
for the petitioner.
Jennifer Levings, Assistant United States Attorney,
Washington, DC, for the respondent.
On Petition for Review of an Order of the Board of
Immigration Appeals. Agency No. Aeg-iyq-lfk.
Before B. FLETCHER, NOONAN, and THOMAS, Circuit
Judges.
NOONAN, Circuit Judge.
1
Surender Jeet Singh petitions for review of the
decision by the Board of Immigration Appeals (the Board), denying him asylum,
withholding of deportation, and relief under the Convention Against Torture
(CAT). Holding that the Board's credibility determination cannot be sustained,
we remand.
FACTS
2
Singh, a native of India, was raised as a Sikh and
practices the Sikh religion. According to his testimony, he was recruited by an
organ of the government of India known as the Research and Analysis Wing (RAW),
situated in the office of the Prime Minister. Its functions, he testified, were
like those of the CIA. As an agent of the RAW, he made reports on individuals
believed to be Sikhs working to establish the separate Sikh state of Khalistan.
He investigated about three persons a year over a period of thirteen years. He
submitted postal receipts that he said showed his mailings to the RAW. He quit
when ordered to aid in the assassination of a very religious person he had
investigated. After hiding with friends for a year, he used his own passport to
come to the United States. He testified that he would be killed if returned to
India.
3
Finding him not credible, the Immigration Judge
denied Singh's application. Singh appealed. The Board, acting through a single
member, affirmed the decision of the immigration judge finding him not
credible. The Board stated as to the RAW:
4
... the respondent has presented no corroborative
evidence whatsoever of the existence of this Indian government agency that is
similar to the CIA and operates internationally. Despite the secrecy
surrounding the operations of the CIA and other security agencies worldwide, it
is not difficult to find evidence of their existence. Yet the respondent would
have the Immigration Judge or the Board grant asylum based simply on his tale
of being an agent for an organization that spies on and assassinates religious
minorities, perhaps worldwide.
5
Singh appeals.
ANALYSIS
6
We review the Board's decision. That decision did
not address the possible statutory bar to Singh's asylum. It focused on the
absence of proof of the existence of the RAW as necessary corroboration of
Singh's story. The "tale," the Board said, lacked corroboration. The
Board did not acknowledge that the RAW existed.
7
The RAW does exist. It is under the office of the
Prime Minister of India. It does engage in counterterrorism.
8
It has been suggested that we cannot take notice of
the RAW's existence and operations because we are limited in our review to the
administrative record upon which the deportation order is based and the
Attorney General's findings of fact. 8 U.S.C. § 1252(b)(4); Fisher v. INS, 79
F.3d 955, 963 (9th Cir.1996) (en banc) (citing the predecessor statute 8 U.S.C.
§ 1105a(a)(4)). But it is nonsense to suppose that we are so cabined and
confined that we cannot exercise the ordinary power of any court to take notice
of facts that are beyond dispute. We can notice that the government of India exists.
We can notice that the office of the Prime Minister of India exists. We can
notice that a part of the Prime Minister of India's office is the RAW.
9
Federal Rule of Evidence 201 permits us to take
notice of any "adjudicative" fact "not subject to reasonable
dispute in that it is either (1) generally known within the territorial
jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot be reasonably
questioned." As a matter of course we have taken judicial notice that
Japan has a constitution, a legislature that creates statutes, and a court
system that gives judicial decisions and operates by means of lawyers. Dulles
v. Katamoto, 256 F.2d 545, 547 (9th Cir.1958); cf. Quinn v. Robinson, 783 F.2d
776, 813 (9th Cir.1986) ("We do not ignore the constitutional, legal, and
military relationship between England and Northern Ireland. The ties are so
well established, see generally 1 Europa Year Book 1984, at 991-96; 14 World
Book Encyclopedia 403-06b (1985 ed.), that had evidence of the relationship not
been presented to the magistrate, judicial notice would have been
appropriate.").
10
The statutory authorization, already broad, has
been interpreted even more extensively in the context of appellate review of an
agency. Under the heading "Judicial Notice is Expanded in Administrative
Proceedings," the magisterial textbook of Judge Jack B. Weinstein states:
11
When a court reviews an administrative
determination to find if it is adequately supported by the record, the court
should use the scope of administrative notice authorized, rather than its own
more narrowly subscribed notice. The court should place itself in the same
position as the administrative board.
12
Jack B. Weinstein & Margaret A. Berger,
Weinstein's Federal Evidence § 201.02[4] (2d ed.2004) (footnotes omitted).
13
Every case "involves the use of hundreds or
thousands of non-evidence facts." Fed.R.Evid. 201 advisory committee's
note (proposed draft 1972) (paraphrasing Kenneth Culp Davis, "A System of
Judicial Notice Based on Fairness and Convenience," in Perspectives of Law
69, 72-73 (Roscoe Pound et al., 1964)). Administrative cases and the review of
administrative decisions are no exception to this universal truth. An agency or
an appeals court could not function if it had to depend on proof in the record
of facts "capable of accurate and ready determination by resort to sources
whose accuracy cannot be reasonably questioned." Fed.R.Evid. 201(b).
14
The language of the statute speaking of the
administrative record must be interpreted in the context of the Federal Rules
of Evidence, the general practice of administrative review,Dulles and the
common practice of the courts. The language in Fisher repeats the statutory
language and does not enhance its range. Its thrust is to exclude from our
consideration the kind of facts contained in the country reports of the State
Department unless the reports have been introduced into the record. See Fisher,
79 F.3d at 963 (citing cases and overruling some cases and parts of other cases
that took judicial notice of country conditions reports).
15
The existence and operations of the RAW are readily
known by the employment of an accessory tool as familiar in legal research
today as Shephard's Citations were half a century ago. A simple Lexis search
reveals over 1,500 articles on the RAW from reputable international media
sources including the BBC. Its situation in the office of the Prime Minister is
a matter of common knowledge. See Ejaz Akran, A Comparison of the Structures
and Functions of Intelligence Organizations in Israel and India, 23 Journal of
South Asian and Middle Eastern Studies 59, 70 (Spring 2000). As early as 1987,
the New York Times,reporting on the Indian Army's unsuccessful incursion into
Sri Lanka, ended its report from New Delhi: "Military analysts here say
the main failure was that of the Research and Analysis Wing, India's
intelligence agency." Steven R. Weisman, Toll in Sri Lanka Shakes India
Aides, N.Y. Times, Nov. 1, 1987, Sec. 1 at 4. Even the Encyclopedia Britannica
acknowledges the existence of the RAW: "India's most important
intelligence agency is a civilian service, the Research and Analysis Wing
("RAW"). The RAW's operations are primarily aimed at the Indian
subcontinent, though it also has directed efforts in the United States aimed at
influencing that government's foreign policy." 21 Encyclopaedia
Britannica787 (15th ed.2003).
16
A former member of the Cabinet Secretariat and of
the National Security Advisory Board of India, Bahukutumbi Raman, has testified
at length to Congress on terrorism to which India has been subjected from 1956
to the present and the measures taken by India against it. Raman's biographical
data, submitted to Congress, identified him as moving from the Indian Police
Service in 1984 to a permanent post in the Cabinet Secretariat and as serving
from 1988 to 1994 as "head of the Counter-terrorism division of the
Research & Analysis Wing (R & AW), India's external intelligence
agency." The Challenge of Terrorism in Asia and the Pacific: Joint Hearing
Before the Committee on International Relations, 108th Cong. 21 (2003)
(statement submitted by Bahukutumbi Raman).
17
If this case had involved an agent's claimed
membership in an agency more well-known in the United States, such as Interpol
or the KGB, the IJ or BIA would not have required evidence of their existence.
The issue simply would not have arisen because the IJ or BIA would have
unconsciously taken notice of the fact of those agencies' existence. Judicial
notice is appropriate in exactly this circumstance — to ensure that
administrative or judicial ignorance is not insulated from review through
hyper-technical application of the general rule that the court can consider
only evidence considered by the Board. Fisher, 79 F.3d at 964.
18
We are compelled to reverse an adverse credibility
finding by the Board whose centerpiece is lack of evidence of the existence of
the RAW.
19
Petition GRANTED. The case is REMANDED to the Board
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