A
Second Chance for Congolese Asylum Seeker
Fifth Circuit Court of Appeals Equates Gang-Rapes
and Beatings With “Legitimate Investigation”
CGRS
is working side-by-side with pro bono attorneys for Ms. M., a victim
of gang-rapes and beatings by government soldiers in the Democratic
Republic of Congo (DRC).
Ms. M. was a government employee in January
2001 when President Laurent Kabila was assassinated by one of his
bodyguards. Congolese security forces arrested and imprisoned the
27-year-old Ms. M. and other government employees who were working
in the Presidential Palace at the time of the assassination. The
security forces disregarded Ms. M’.s statements that she
knew nothing about the crime, and denied her request for a lawyer.
Prison guards raped Ms. M. and her cellmates daily. Ms. M. was
pregnant and suffered a miscarriage as a result of the gang-rapes;
the guards took no mercy on her and continued to subject Ms. M.
to daily rapes. No formal charges were ever filed against Ms. M.
After six weeks, an interrogator who knew her father helped her
to escape the country and warned her not to return. Ms. M. fled
to the United States and applied for asylum.
An immigration judge denied Ms. M’.s claim, finding—unbelievably—that
her story was just too horrific to be true. Instead, the judge
decided that she had been detained for two days at most and released
unharmed as part of a “legitimate investigation.”
Ms.
M. appealed to the Board of Immigration Appeals (BIA), which also
denied her case. As a last resort, she appealed to the Fifth Circuit
Court of Appeals. In a truly remarkable decision, the court reversed
the immigration judge’s finding that Ms. M’.s
story was not credible, ruling that it was clear from her testimony
and the supporting documentation that she had in fact been imprisoned
for six weeks, beaten, and gang-raped by guards. The court nevertheless
denied Ms. M’.s case on the same rationale as the immigration
judge—that her detention was part of a “legitimate
investigation.” The court failed to come to grips with the
fact that repeated gang-rapes and beatings constitute torture,
not a legitimate investigation. Given this gap in the court’s
analysis, the opinion essentially stands for the proposition that
gang-rapes and torture may be dismissed as part of a legitimate
investigation.
Ms. M’.s case was brought to CGRS’s attention
by Jayne Fleming, Reed Smith’s West Coast Pro
Bono Coordinator
and CGRS Advisory Board member. As Ms. M’.s claim had already
been denied by the Fifth Circuit, Jayne and CGRS pursued a number
of innovative legal and advocacy strategies to prevent her from
being returned to the DRC, where it was apparent that her life
would be in danger once again.
Jayne filed a formal request that
the Fifth Circuit rehear the case; CGRS co-counseled with the University
of Houston Law School’s
Immigration Clinic to file a “friend of the court” brief
in support of Jayne’s request. CGRS also partnered with NGOs
across the country in an attempt to persuade the U.S. government
to remedy this injustice. CGRS worked particularly closely with
U.S. Women Without Borders (U.S.W.W.B.), which seeks to educate
and mobilize women on U.S. foreign policy issues that impact violence
against women and girls in other countries. Over 2,800 CGRS supporters
and U.S.W.W.B. members signed a petition addressed to the Attorney
General demanding that Ms. M. be granted asylum.
Recently, there
was an extraordinary turn-around on the part of the Justice Department,
which, despite having won in federal court, has now joined in a
motion to reopen Ms. M.’s case—a
great step forward for her future.
The pervasive use of rape and
sexual assault in the DRC is well-documented by many human rights
organizations. It is deplorable that a U.S. court could deny asylum
to a woman who suffered this kind of brutality, and attempt to
justify its decision by essentially equating rape and torture with
a “legitimate governmental investigation.” Ms.
M. was detained and brutalized on the unfounded suspicion that
she was an opponent of the Kabila regime—i.e., that she held
an anti-government political opinion—facts which clearly
provide a basis for asylum protection. The U.S. should be protecting
women like Ms. M., rather than sending her back to a near-certain
death. |
