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Gang-rape victim granted asylum after long court battle
Appeals court says attack on woman in Guatemala was political persecution
- Tyche Hendricks, Chronicle Staff Writer
Friday, July 15, 2005



An East Bay woman gang-raped by soldiers in Guatemala a dozen years ago has won asylum in the United States, a year after a San Francisco federal appeals court ruled the assault was a form of political persecution, not just an individual criminal act.

"I'm so relieved because it has been many years of waiting," said Reina Garcia-Martinez, 31, who fled to the United States in 1993. "To be sent back to Guatemala would have been terrible. I would always be thinking about what happened. Now instead, I feel a sense of peace."

Rape has long been used as a weapon of war, according to Karen Musalo, director of the Center for Gender and Refugee Studies at Hastings College of the Law in San Francisco, which filed an amicus brief in the case. But it is only in recent years that courts are beginning to recognize sexual assault as more than random violence.

"This decision is important for stopping the knee-jerk reaction that if the harm is of a sexual nature, that it's personal, not political, that it's just some rogue soldiers satisfying their lustful urges," said Musalo.

Garcia-Martinez's attorney, Jayne Fleming, learned this week that the U.S. Board of Immigration Appeals had reversed its own 2002 ruling and granted asylum on humanitarian grounds. In June 2004, the Ninth U.S. Circuit Court of Appeals ruled that Garcia-Martinez was eligible to remain in the United States, and it sent the case back to the immigration board.

The Ninth Circuit's decision must be followed in cases within its jurisdiction, but it is not binding in other circuits. But Musalo said that because of the high volume of immigration and asylum cases the Ninth Circuit hears, it often charted the course for other courts on those issues.

In a March ruling that lawyers learned of only this week, the immigration board said the gang rape of Garcia-Martinez in front of her family was a form of torture and that although the war in Guatemala had ended, she still merited protection.

"It is an important victory in a gender violence case," said Fleming, an attorney with the San Francisco law firm Reed Smith Crosby Heafey. "The point of the humanitarian grant is that if someone has experienced such horrific suffering, we don't want to send them back, because it's a memory that can't be erased."

Fleming said the decision would help victims who made it to the United States, even though wartime sexual violence continues.

"What's so heartbreaking is that we established a precedent in this case, and yet we see the same type of treatment in Sudan right now, and we're still not calling it what it is," she said. "We need to translate that individual relief into awareness about violence against women as a war crime."

Garcia-Martinez, now a Richmond resident and mother of three small children, was 19 when soldiers forced their way into her house, beat her parents and then took turns raping and beating her, she testified. The abuse was part of a pattern of mistreating villagers in her community in the belief that some of them supported anti-government guerrillas, according to testimony before immigration judge Mimi S. Yam.

A United Nations truth commission documented that rape was used systematically by the military during Guatemala's civil war, which ended in 1996.

Garcia-Martinez first applied for asylum in 1998, after five years of living underground, fearful that if she came forward she would be deported. Yam ruled in 2001 that she had failed to show that the gang-rape fell into one of the five categories of persecution that can form the basis for an asylum claim: a political opinion, race, religion, political affiliation or membership in a particular social group.