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Appeals Court Orders Release of Sri Lankan Asylum Seeker

By Darryl Fears
Washington Post Staff Writer
Saturday, March 18, 2006

A federal appeals court yesterday ordered the release of a Sri Lankan asylum seeker the government has detained in San Diego County since October 2001 on the suspicion that he once belonged to a terrorist organization.

The U.S. Court of Appeals for the 9th Circuit in San Francisco ruled that Ahilan Nadarajah, 25, should be released despite government's claims of having secret evidence that he was a member of the Liberation Tigers of Tamil Eelam, a guerrilla group waging war against Sri Lanka. The decision by the three-member panel is among the first to challenge the Bush administration's assertion that it may hold suspects indefinitely on terrorism charges while seeking to remove them from the country.

In a strongly worded opinion, written by Judge Sidney R. Thomas, the panel ruled: "In sum, . . . the government does not possess the authority under the general detention statutes to hold Nadarajah, or any other alien who is similarly situated, indefinitely.

"The length of the detention in this case has been unreasonable," Thomas wrote. "Nadarajah has established that there is no significant likelihood of removal in the . . . foreseeable future. The government has failed to respond with evidence sufficient to rebut that showing."

In shaping their opinion, the judges relied on Zadvydas v. Davis, a Supreme Court case involving the removal of a convicted felon who is an immigrant. In that case, the high court set the process for deporting an immigrant at six months. Nadarajah has been jailed for nearly five years.

The government did not indicate whether it will appeal yesterday's decision. Ahilan Arulanantham, a staff lawyer for the American Civil Liberties Union of Southern California, said the court's decision might lead to the release of another asylum seeker on its client list who has been detained for years.

Nadarajah is a member of Sri Lanka's Tamil ethnic minority, but his father and mother testified that he was not a member of the Tigers separatist group. In May 1997, according to court documents, Sri Lankan soldiers swept into the family's home, "beat him, blindfolded him and took him into their camp."

He still bears the scars of his torture, which included placing a rag soaked in gasoline over his head. Nadarajah was released when his mother bribed a soldier, allowing him to escape to the United States. He was arrested when he walked across the California border from Mexico.

An immigration judge granted him asylum in 2003, saying his story was credible, but the government disagreed and reopened removal proceedings. The government relied on the testimony of a special agent who received an anonymous letter implicating Nadarajah as a terrorist operative. The agent's testimony was disputed by Nadarajah's attorney.

"The government got it completely wrong about my client," said the lawyer, Arulanantham. "He is a torture victim . . . and the government just ignored the immigration courts' decisions and kept him locked up anyway. You can't just ignore that the immigration courts have found that he is not a threat to our country."

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