Garcia-Martinez v. Ashcroft

• Decision Date: 14 June 2004
• Docket Number: No. 02-74068.,02-74068.
• Citation: 371 F.3d 1066
• Parties: Reina Izabel GARCIA-MARTINEZ, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

371 F.3d 1066

Reina Izabel GARCIA-MARTINEZ, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 02-74068.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 14, 2004.

Filed June 14, 2004.

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Raymond A. Cardozo and Jayne E. Fleming (argued) of Reed, Smith, Crosby, Heafey LLP, Oakland, CA, for petitioner-appellant Reina Garcia-Martinez.

Peter Keisler, Mary Jane Candaux, and James E. Grimes (argued), Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for respondent-appellee John Ashcroft, Attorney General.

Karen Musalo and Stephen M. Knight, U.C. Hastings College of Law, San Francisco, CA, for amicus curiae Center for Gender and Refugee Studies.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A76-847-476.

Before THOMPSON, TASHIMA, and RAWLINSON, Circuit Judges.

RAWLINSON, Circuit Judge:

Reina Garcia-Martinez (Garcia) has survived atrocities that most of us experience only in our worst nightmares. Her rural village in Guatemala was pillaged by both the guerillas and the military. Garcia's eventual rape was inextricably tied to the village's affiliation, in the minds of the Guatemalan military, with the guerillas. Because "[p]ersecution is stamped on every page of this record[,]" Lopez-Galarza v. INS, 99 F.3d 954, 959 (9th Cir.1996) (citation omitted), and the Immigration Judge's (IJ's) determination that Garcia failed to demonstrate past persecution is not supported by substantial evidence, we GRANT the Petition for Review and REMAND Garcia's case to the Board of Immigration Appeals (BIA), so that the agency can determine whether Garcia is eligible for asylum.

I. FACTUAL BACKGROUND¹

Garcia was born in the village of San Andres Villa Seca in Guatemala in 1973. Twenty to twenty-five families lived in the small, rural village. When Garcia was about nine years old, fighting between the Guatemalan military and insurgent guerillas spilled over into her village. At first, it appeared that the guerillas, rather than the military posed a greater threat to the villagers. The guerillas "would come at night and they would start knocking on the doors, they beat the people and most of all, they took the men [.]" They kidnapped approximately twenty people from the village — roughly "one man per family." Those who resisted the forced conscriptions were killed.

A year later, eight to ten guerillas came to Garcia's home seeking additional recruits. Although Garcia's father fought off the guerillas and managed to escape, the guerillas kidnapped her brother. Garcia's family has neither seen nor heard from her brother since that day. They did not report his abduction to the police "[b]ecause the guerillas said that if [they] told anything to the police, they were going to kill[her] brother."

A few years afterwards, the Guatemalan military, like the guerillas, began coming to the village. Although the villagers initially believed that the soldiers were there to protect them, the military soon began to beat the men, women, and children within the village. They also raped the women. Indeed, over the course of the next several years, someone in the village was raped by soldiers "[a]bout every 8 to 15 days." According to Garcia, the military targeted the village, and retaliated against its residents based on the mistaken belief that the villagers had voluntarily joined, and were thus attempting to aid, the guerillas.

The military's conduct went unchecked and largely unreported. The villagers were afraid to report the attacks because the soldiers threatened to kill them if they told the police. Even if a villager dared to make the two-hour trek to the nearest police station to report an attack by the military, the police rarely took action. In fact, rather than investigate a villager's complaint, the police would tell the military which villager made the report. The military would then carry out the murderous threats.

When Garcia was about sixteen years old, she saw firsthand what happened to those who reported military assaults. She woke up one morning to find, outside of a neighbor's house, "the bodies of eight people, men, women, and children, lined up on the ground, dead." According to the villagers, "someone in the family had reported an earlier attack by the military soldiers to the police, and ... the military soldiers had returned and killed the family."

When Garcia was nineteen, the violence invaded her home once again. Soldiers came at nine o'clock one night. They pounded on the door, waking the family, and demanding entrance. The soldiers forced their way into the house and began beating Garcia's father. Garcia "knew the men were military soldiers by the dark green and coffee colored clothing they wore" and the machine guns they all held. Garcia described what happened next:

The military soldiers told my father not to speak or they would kill him. When my mother begged them to stop hitting my father, they began to hit my mother, too. The soldiers told my father that they wanted to eat and to be with a woman. When my mother and father tried to talk to the soldiers, the soldiers would not listen and continued to hit my father until two of them took him outside and tied him up behind the back of the house. One of the soldiers came back inside of the house, told my mother that she had to cook food for them, and took her by force to the kitchen and made her cook food for them. While my mother was in the kitchen cooking food and my father was tied up, I was left alone with one of the soldiers. The soldier hit me with his gun and fists and then held my arms down while he raped me. When he was finished, the other two soldiers took turns raping and beating me.

Before the soldiers left, they told the family that if anyone revealed what they had done, they would return and hurt them again. When the soldiers left, they took the food Garcia's mother had cooked, as well as the family's flashlights and the gas they had for their lamps. After the soldiers left, Garcia and her mother went out back to untie her father, who was badly hurt and bleeding from the head.

Because her father was afraid that the soldiers would return if Garcia remained at home, he told Garcia to go to her aunt's house. Garcia made the thirty-minute trek while "hurt, bleeding, and ashamed." When she arrived at her aunt's house, they turned on all the lights so the military soldiers could not surprise them during the night. Because Garcia's aunt was afraid that Garcia had been followed by the soldiers, and that they would come to her house next, Garcia's aunt suggested that Garcia leave for the United States. Although no one in her family had ever gone to the United States, Garcia was afraid that the soldiers would hurt her again, or hurt her aunt. Consequently, once Garcia recovered from her injuries, she made her way to Mexico and then to the United States. She never returned home, and has not seen her family since she left Guatemala.

II. PROCEDURAL BACKGROUND

In 1998, the Immigration and Naturalization Service (INS) issued a Notice to Appear, alleging that Garcia was removable from the United States under the Immigration and Nationality Act § 212(a)(6)(A)(I), because she had entered the country without having been admitted or paroled. In lieu of removal, Garcia requested relief in the form of asylum, withholding of removal, relief under the Convention Against Torture, and voluntary departure.

When testifying before the IJ, Garcia recounted the use of forced conscription by the guerillas, including her own brother's kidnapping, as well as the Guatemalan military's resulting, but mistaken, belief that the villagers supported the guerilla movement. Garcia also detailed the systematic rapes committed by the military, and her own eventual rape. When asked why she thought she and her family had been assaulted by the soldiers, Garcia stated, "I think they were attacking us because the guerillas had taken my brother away, so they thought we were in favor of the guerillas." When asked in a follow-up question why she believed there was a connection between her brother's 1983 kidnapping and her 1993 rape, Garcia responded: "Because the guerillas continued to kidnap people from the town. So for the same reason, the military soldiers thought that all the persons that they took away, that they were in agreement with the guerillas."

In her oral decision, the IJ stated that Garcia had"testified sincerely and genuinely without hesitation" about her experiences in Guatemala. The IJ found Garcia's "testimony to be truthful" and considered her "a credible witness." Nevertheless, the IJ ruled that "the evidence in the record simply does not substantiate a finding that [Garcia] had been a victim of past persecution[.] Particularly, [Garcia ] has failed to show ... that her attack had anything to do with... her political opinion, her race, religion, her political affiliation or membership in a particular social group." To the IJ, Garcia's rape was simply "a criminal act that was committed against her by a soldier[,]" and there was no evidence that the rape was "condoned by the government" or that the individual who attacked Garcia could be considered a force the Guatemalan government was unable or unwilling to control.² The IJ also concluded that "[Garcia] has not shown any other evidence that any pro- or anti-government person, official or faction in Guatemala ... would have any present interest whatsoever in [her]." Consequently, the IJ determined that Garcia could not demonstrate a well-founded fear of persecution. In addition to finding that Garcia had failed to establish eligibility for asylum, the IJ found Garcia ineligible for withholding of removal or protection under the Convention Against Torture.

Garcia appealed the IJ's decision to the BIA, arguing that the IJ "erred in finding that there...