GR could face obstacles in entering US

by Daya Gamage

Sri Lanka’s former president Gotabaya Rajapaksa is reportedly seeking his once-renounced Lawful Permanent Residency (LPR) restored in the United States.

According to U.S. federal laws, foreign nationals – in this case Rajapaksa as a Sri Lankan citizen – have to apply for an immigrant visa at a U.S. Department of State consular office in Colombo (at the embassy) after receiving an approved petition or application. Without his petition or application ‘approved’ – according to stated federal law – he is unable to even apply to get the LPR restored.

Gotabaya renounced his US citizenship to contest Sri Lanka presidency as the Nineteenth Amendment of the Constitution barred dual citizens from entering the Executive Office or the Legislature.

With the reports of uncertainty surrounding his permanent residency in Sri Lanka due to personal security and safety, Rajapaksa, it is speculated, is making an endeavour to join his spouse and son – both US citizens – in the United States.

The Immigration and Nationality Act (INA) provides various bases for obtaining LPR status. These bases include (but are not limited to) sponsorship by a close family member who is a U.S. citizen or LPR.

Granting admission for permanent residency is spelled out in federal statutes such as 8 USC 1182, and Chapter 2 – Lawful Permanent Resident Admission for Naturalization. In 8 USC 1182, however, provisions for alien inadmissibility are very clearly defined.

In Title 8 USC 1182- Aliens and Nationality Chapter 12 read with Immigration and Nationality Subchapter II of Immigration Part II (Admission Qualifications for Aliens) provide the reasons the manner in which an alien is not considered for admission to the United States.

Title 8 Section (2) under Criminal and Related Grounds describes the inadmissibility of an alien as (Quote) Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime (End Quote)

Gotabaya Rajapaksa has not been convicted of any crime under the above provision but there are two lawsuits against him in the State of California judiciary alleging his ‘attempt or conspiracy to commit such a crime’. The judges refused to hear the cases citing immunity bestowed to a Head of State as prescribed in the US federal law.

The law says, “Sitting heads of state, heads of government, and foreign ministers are absolutely immune from suit during their terms of office. Head-of-state immunity is a status-based immunity that attaches because of these officials’ positions “to ensure the effective performance of their functions on behalf of their respective States.”

One of the law suites in the California judiciary related to detention-torture connected to the following Section II of the Title 8 USC 1182 which refers to the inadmissibility of an alien: (Quote) The seizing or detaining, and threatening to kill, injure, or continue to detain, another individual in order to compel a third person (including a governmental organisation) to do or abstain from doing any act as an explicit or implicit condition for the release of the individual seized or detained. (End Quote)

The US Code further states – reasoning why an alien is ineligible for admission to the United States – “with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property”.

The South Africa-based International Truth and Justice Project (ITJP), in partnership with the international law firm Hausfeld and human rights lawyer Scott Gilmore, filed a civil damages case in California against former Sri Lankan Defense Secretary, Gotabaya Rajapaksa, on behalf of a Tamil torture survivor Roy Samathanam.

The case was brought under the (US) Torture Victim Protection Act, which gives torture victims legal redress in US courts. Notice was formally served on Mr. Rajapaksa on April 7, 2019.

According to the lawsuit Roy Samathanam, a Canadian national, was arrested on false charges in the Sri Lankan capital, Colombo in September 2007 by Sri Lankan police who reported directly to Defense Secretary Gotabaya Rajapaksa at the time. Visiting Sri Lanka to marry his wife, Samathanam was detained for three years and repeatedly denied access to a lawyer or a judge. It has been alleged, under Mr Rajapaksa’s command, guards tortured Samathanam, threatened to rape and kill his wife and child, and made him watch the electrocution of other prisoners. He was forced to sign a false confession before being released in August 2010 on a plea deal. All these facts were in the lawsuit.

On April 4, 2019, Centre for Justice and Accountability (CJA) filed a civil suit against Gotabaya Rajapaksa for his alleged involvement in the killing of journalist Lasantha Wickrematunge and the widespread and systematic targeting of journalists perceived to be critical of the Rajapaksa government.

In this case Ahimsa Wickrematunga, the daughter of murdered investigative editor Lasantha Wickrematunga, filed a complaint for damages in the same U.S. District Court in California for allegedly instigating and authorising the extrajudicial killing of her father. In her complaint, Ahimsa said that after the murder of her father in January 2009 Gotabaya Rajapaksa and his allies obstructed her “efforts to seek justice in Sri Lanka by tampering with witnesses and engaging in a pattern of coercion and intimidation”.

Following Rajapaksa’s election to the presidency, the Court of Appeals for the Ninth Circuit (California) dismissed the complaint 27 February 2020 in light of his immunity as head of state.

So the case brought to the same court by Roy Samathanam was dismissed citing immunity.

There is a strong possibility that the above cited U.S. Federal statutes could be activated with the two law suits renewed as Gotabaya Rajapaksa has no immunity any more as he relinquished his presidency on July 15 this year.

The revival of Roy Samathanam and Ahimsa Wickrematunge law suits with the loss of immunity, 18 U.S.C 2340A could be activated to charge Rajapaksa in the U.S. Court, or the U.S. Citizenship and Immigration Service could deny or halt his entry to the United States.

The 18 U.S.C. 2340A defines torture as (QUOTE) Section 2340A of Title 18, United States Code, prohibits torture committed by public officials under colour of law against persons within the public official’s custody or control. Torture is defined to include acts specifically intended to inflict severe physical or mental pain or suffering. (It does not include such pain or suffering incidental to lawful sanctions.) The statute applies only to acts of torture committed outside the United States. There is Federal extraterritorial jurisdiction over such acts whenever the perpetrator is a national of the United States or the alleged offender is found within the United States, irrespective of the nationality of the victim or the alleged offender. (UNQUOTE)

The catch phrase in the Section is: “The statute applies only to acts of torture committed outside the United States. There is Federal extraterritorial jurisdiction over such acts whenever the perpetrator is a national of the United States or the alleged offender is found within the United States, irrespective of the nationality of the victim or the alleged offender”.

Both law suits declare – in keeping with Section 2340A – that the alleged crimes were committed by Gotabaya Rajapaksa when he was still a citizen of the United States and in a foreign jurisdiction “irrespective of the nationality of the victim or the alleged offender”.

Then the allegation of war crimes.

Defined in Section 1091(a) of Title 18 an alien is inadmissible if he/she:

(QUOTE) (ii) Participation in genocide

Any alien who ordered, incited, assisted, or otherwise participated in genocide, as defined in section 1091(a) of title 18, is inadmissible.

(iii)

Commission of acts of torture or extrajudicial killings

Any alien who, outside the United States, has committed, ordered, incited, assisted, or otherwise participated in the commission of-

(I)

any act of torture, as defined in section 2340 of title 18; or

(II)

under color of law of any foreign nation, any extrajudicial killing, as defined in section 3(a) of the Torture Victim Protection Act of 1991 (28 U.S.C. 1350 note) (UNQUOTE)

The American Embassy in Colombo did not approve the entry visa Rajapaksa sought in July when the protest campaign was gathering momentum in Colombo threatening his security and safety. Such administrative decisions are in fact classified material yet the Sri Lankan media somehow reported it. This writer is quite knowledgeable of ‘leaks’ from the US diplomatic mission to suit its projected purposes due to his long official engagement there. Many Sri Lankan military personnel including the current Joint Chief of Staff Gen. Shavendra Silva and war winning Army Commander Field Marshal Sarath Fonseka have been barred from entering the U.S. for ‘alleged war crimes’.

There is no allegation of genocide but war crimes are mentioned in U.S. official documents.

The U.S. embassy in Colombo on 15 January 2010 under the signature of Ambassador Patricia A. Butenis dispatched a classified analytical cable to Washington (later disclosed by Wikileaks) which stated “There are no examples we know of a regime undertaking wholesale investigations of its own troops or senior officials for war crimes while that regime or government remained in power. In Sri Lanka this is further complicated by the fact that responsibility for many of the alleged crimes rests with the country’s senior civilian and military leadership, including President Rajapaksa and his brothers and opposition candidate General Fonseka”.

Obviously the contents of the cable accusing them of war crimes were based on the gathered information the U.S. official intelligence network shared with the senior embassy and State Department officials.

The gathered information – both covert and overt – that the State Department and the National Security Agency (NSA) possess are communicated to the War Crimes and Human Rights Divisions of the U.S. Department of Homeland Security (DHS) through the offices of the State Department for scrutiny. When an alien applies to become a Lawful Permanent Resident the information the DHS possesses are taken into account.

When Gotabaya Rajapaksa applied to renounce his U.S. citizenship, this information which Washington already possessed was ignored for some unknown reason for him to have a safe passage to Sri Lanka’s presidency.

Section 1091 of Title 18, the United States Code declares “There is Federal jurisdiction if the offense is committed within the United States. There is also Federal extraterritorial jurisdiction when the offender is a national of the United States”.

At the time the U.S. Embassy dispatched the classified diplomatic cable to Washington accusing the three Rajapaksa brothers (along with Fonseka) as war criminals, one of the brother’s, Gotabaya, was a U.S. citizen who is well connected to Section 1091 of Title 18.

There is no doubt that the American embassy in Colombo and both the Departments of State and Homeland Security in Washington, D.C. could take note of the above mentioned Federal Statutes if and when Gotabaya Rajapaksa approaches the Consular Section of the embassy for the reinstatement of the Lawful Permanent Residency in the United States.

 

(The writer Daya Gamage is a retired Foreign Service National (FSN) Political Specialist – 1980 through 1995 – of the U.S. Department of State assigned to the Political Division of the American Embassy in Colombo, Sri Lanka)

courtesy The Island