Garcia-Martinez v. Ashcroft

U.S. Court of Appeals for the Ninth Circuit

2004 U.S. App. LEXIS 11589

Petitioner Reina Izabel Garcia-Martinez (Garcia) appeals the IJ’s denial of her asylum claim, which the BIA affirmed without opinion.  Born and raised in the small Guatemalan village of San Andreas Villa Seca, Garcia experienced firsthand the atrocities of the civil war that ravaged the country for decades.  In 1983, when she was nine years old, fighting erupted in her village between the Guatemalan military and insurgent guerrillas.  The guerrillas terrorized Garcia’s village, beating and kidnapping men into their service, including her brother.  Under the mistaken belief that the residents had willingly joined and aided the guerrillas, the military retaliated by beating men, women, and children and systematically raping women.  The soldiers threatened to kill anyone who informed the police of these attacks.   The police not only failed to respond to reports of abuse but also disclosed the identities of the informants, whom the military then killed.  When Garcia was 19, soldiers invaded her home, repeatedly beat her parents and then took turns beating and raping her.  Fearful that they would return to hurt her and her family again, Garcia fled to the U.S. via Mexico.

When the INS issued Garcia a Notice to Appear in 1998 for entering the country without admission or parole, she requested relief in the form of asylum, withholding of removal, voluntary departure, and protection under the Convention Against Torture.  Although the IJ found Garcia’s testimony credible, she nevertheless held that the evidence did not support a finding that Garcia had suffered past persecution on one of the statutory grounds:  political opinion or affiliation, race, religion, or membership in a particular social group.  The IJ characterized Garcia’s rape as an isolated criminal act, lacking evidence to support a finding that the Guatemalan government condoned it or was unable or unwilling to control the perpetrator.  Moreover, the IJ determined Garcia had failed to prove a well-founded fear of future persecution by any pro or anti-government affiliate.  The IJ found Garcia ineligible for all forms of requested relief.

The Court of Appeals for the Ninth Circuit reversed the IJ’s decision, noting that asylum can be based on past persecution alone, including rape.  The applicant need only show the severity of the past abuse and that the government’s persecution of her was in some way motivated by her belonging in one of the statutory classifications.  If she meets this burden, a rebuttable presumption of well-founded fear of future persecution arises.  The government can rebut with a preponderance of evidence that the conditions in the applicant’s country have changed such that she, individually, no longer has a well-founded fear of persecution. 

The Court criticized the IJ’s treatment of Garcia’s rape and her brother’s kidnapping as isolated incidents, where the IJ had noted the ten-year interim during which Garcia’s family was not personally targeted.  Furthermore, the IJ erroneously focused on a single motive for Garcia’s persecution, requiring her to provide direct evidence that her attack stemmed from her brother’s forced alignment with the guerrillas.  The Court affirmed that circumstantial evidence (such as imputed political opinion here) would suffice, and that perpetrators often have mixed motives for their violent acts.  The IJ should have analyzed Garcia’s attack within the larger context of the systematic targeting of Garcia’s entire village as a perceived guerrilla stronghold, recognizing that rape is used to intimidate perceived political opponents during war.

Because the Court found that Garcia had established sufficient evidence of past persecution, it remanded to the BIA to review the IJ’s finding that Garcia lacked a well-founded fear of future persecution.  Neither the IJ nor the BIA had determined whether conditions in Guatemala had changed such that Garcia could return without fear of persecution.  The Court also remanded for the BIA to consider the humanitarian exception, whereby Garcia’s past persecution alone could support a discretionary grant of asylum.  The Court lacked jurisdiction to review the IJ’s denial of the other forms of relief Garcia requested because she did not raise them on appeal to the BIA.

*****

Vukmirovic v. Ashcroft

U.S.  Court of Appeals for the Ninth Circuit

2004 U.S. App. LEXIS 6420

The Petitioner, Predrag Vukmirovic, appealed a decision by the Immigration Judge (“IJ”) denying his application for asylum to the Ninth Circuit Court of Appeals.  The IJ, as was summarily affirmed by the Board of Immigration Appeals (“BIA”), denied asylum because the Petitioner engaged in persecution of others when he defended himself from the attacks of other religious groups.  The Ninth Circuit granted review of the decision and remanded the case with instructions that self-defense does not qualify as persecution of others.

The Petitioner, a Bosnian-Serb from Bosnia-Herzegovina, participated in a group whose purpose was to defend its town from the attacks of Bosnian-Croats.  He admitted to “breaking the noses and foreheads” of the attackers, but stated that he did not participate in the ethnic-cleansing campaign.  The Petitioner later gained employment as a cruise ship worker and entered the U.S. while his ship was docked at a U.S. port.  After living in Florida from 1991-94, the Petitioner was issued a notice a deportation.  He applied for asylum and withholding of removal. 

After lengthy proceedings, the IJ denied the application for asylum due to its determination that the acts of self-defense constituted persecution.  The IJ stated that immigration law does not provide for a self-defense exception when the applicant has committed violent acts against members of another religious, racial, political or ethnic group. 

The Ninth Circuit disagreed with the IJ, stating that the applicant’s individual behavior should be examined to determine whether or not he or she committed acts of persecution.  Furthermore, the court stated that ruling that acts of self-defense are persecution when the applicant was attacked because of religious and ethnic affiliations would frustrate the intent of the statute creating asylum.  Based upon such findings, the Ninth Circuit remanded for further proceedings consistent with its opinion.