Sovereign Immunity Applies in Man’s Torture Claims

SAN FRANCISCO (CN) – Diplomatic communications with the United States do not waive sovereign immunity rights, even for torture, the Ninth Circuit affirmed Wednesday.

A three-judge panel unanimously affirmed a federal judge’s ruling that the Republic of India, state government of Punjab and the Punjab police did not waive their foreign sovereign immunity against torture by engaging in diplomatic relations with the United States.

Kulvir Singh Barapind argued the Indian officials violated an understanding with the U.S. State Department when they subjected him to post-extradition torture over his efforts to create an independent Punjab state.

Barapind appealed a federal judge’s ruling that India, Punjab and Punjab police did not waive their foreign sovereign immunity rights by engaging in diplomatic relations with the United States. The judge dismissed Barapind’s case for lack of subject-matter jurisdiction.

On appeal, the Ninth Circuit panel said Barapind did not show how India, Punjab or the Punjab police waived foreign sovereign immunity.

“Barapind has not met his burden of demonstrating that any of the three circumstances that ordinarily give rise to an implied waiver are implicated here,” U.S. Court of International Trade Judge Jane A. Restani, sitting by designation, wrote.

According to Barapind, he entered the United States on April 25, 1993, and applied for political asylum, saying “Indian security forces” repeatedly arrested him and subjected him to torture.

While awaiting a judicial ruling on his immigration status, Barapind said the Indian government submitted extradition papers to return him to India.

Because he “more likely than not” would be tortured if extradited, Barapind said the United States violated the Foreign Affairs Reform and Restructuring Act of 1998 by extradicting him.

In a series of communications with U.S. authorities, though, the Indian government assured that Barapind would not be tortured if extradited to India, Restani wrote. The State Department accordingly surrendered him to the Indian government in June 2006, but he says he was tortured over a four-day period in September 2012.

Barapind on May 7, 2013, filed a federal complaint accusing the Indian officials of violating the agreement to not torture him if extradited to India, which the judge dismissed in September 2014.

An implied waiver of foreign sovereign immunity, though, requires a state to agree to arbitration in another nation, agree that the laws of a particular nation govern a contract, or if a foreign state does not argue sovereign immunity in a U.S. court, Restani wrote.

The understanding reached between India and the U.S. government to extradite Barapind does not demonstrate that India agreed to arbitration in the United States, contemplated involvement of U.S. courts, or showed an intent to avail itself of the “privileges and protections” of U.S. courts, Restani wrote.

“Not only does the understanding not match any of the three circumstances that ordinarily give rise to an implied waiver, but it also does not demonstrate that India intended the understanding to be enforceable in United States courts,” Restani wrote.

Circuit Judges Carlos T. Bea, Sandra S. Ikuta and Restani heard oral arguments on Oct. 20.

Barapind is represented by attorneys Emily M. Alban and Clifton S. Elgarten of the Crowell & Moring law firm in Washington.

 

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