San Francisco, CA, June 13, 2004– LAWFUEL – The US Court of Appeals for the Ninth
Circuit today granted Guatemalan asylum-seeker Reina Izabel Garcia-Martinez’s
Petition for Review of an adverse Board of Immigration Appeals decision. A
victim of gang-rape by soldiers in her native country in 1993, the decision
recognizes Ms. Garcia-Martinez is entitled to protection under national and
international laws that offer sanctuary for individuals who have been subjected
to torture and other egregious treatment in their homelands.
In remanding the case to the BIA, the three-member panel of judges — David
R. Thompson, A. Wallace Tashima and Johnnie B Rawlinson – noted that Ms.
Garcia-Martinez “has suffered atrocities that most of us experience only in our
worst nightmares.”
The panel found that in rejecting Ms. Garcia-Martinez’s initial application
for asylum on the grounds that she had failed to demonstrate past
persecution, Immigration Judge Mimi S. Yam had overlooked evidence of persecution
that was “stamped on every page” of her record. It is Ms. Garcia-Martinez’s
assertion that her rape was a form of torture or political persecution that
prevents her from returning to her homeland. In 1996, Judge Yam had ordered Ms.
Garcia-Martinez deported to Guatemala. A subsequent review of Yam’s decision by
the Board of Immigration Appeals resulted in a one-sentence affirmation
upholding the deportation order, without opinion.
Ms. Garcia-Martin was represented pro bono before the Ninth Circuit by Jayne
E. Fleming and Raymond A. Cardozo, Oakland based attorneys from the top 25
international law firm Reed Smith LLP. According to Ms. Fleming, today’s
opinion in Reina Izabel Garcia-Martinez vs. John Ashcroft, Attorney General is an
important one for all women applicants asserting asylum claims. “The Ninth
Circuit obviously agrees that the Department of Justice erred in focusing on
the form of persecution she experienced – that is, the sexual assault —
rather than on the motive for the persecution, which was political oppression.”
As the Court stated, the DOJ’s argument “simply perpetuates the myth that
rape is just forceful sex by men who cannot control themselves.” In reality,
the Court emphasized, “rape is not about sex; it is about power and control.”
As the Court noted, “this observation is particularly trenchant when
viewed in the context of war, where rape may be used to intimidate a civil
population perceived to be in political opposition to the armed force in
question.”
In its opinion penned by Judge Johnnie B. Rawlinson, the Court concluded, “
Ms. Garcia’s rape was inextricably tied to the village’s affiliation, in the
minds of the Guatemalan military, with the guerillas.” Because she was raped
for a political reason, Ms. Garcia is entitled to protection under our
asylum laws.
Ms. Garcia-Martinez is very excited about the result and is hopeful that
this result will allow her to put the past behind her and live her life in
peace.
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16 U.S. and two U.K. cities, represents Fortune 100 as well as mid-market and
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