Garcia-Martinez v. Ashcroft

This case of a woman from Guatemala importantly recognized that rape is a weapon of war and a form of persecution that may be on account of political opinion.  The case was decided in the U.S. Court of Appeals for the Ninth Circuit in 2004. See Garcia-Martinez v. Ashcroft, 371 F.3d 1066 (9th Cir. 2004).

CGRS Involvement

CGRS served as amicus counsel in this case, which was litigated by CGRS Advisory Board member, Jayne Fleming of Reed Smith.

Basic Facts

In 1993, during the 36-year-long civil war between the repressive Guatemalan government and the anti-government guerillas, soldiers came into Ms. García-Martínez’s home and physically and sexually assaulted her. The government targeted her village because they assumed its inhabitants supported the guerrillas. Other women in the village had experienced similar attacks, and many of the men had been beaten. The soldiers threatened Ms. Garcia-Martínez’s life if she should report the incident to the police. After the assault, Ms. García-Martínez fled to Mexico and then to the United States, fearing the soldiers would come after her again.

Procedural History

The immigration judge (IJ) denied Ms. García-Martínez asylum in 2001, concluding that the assault constituted a criminal act by a soldier rather than persecution under a statutorily protected ground. Ms. García-Martínez appealed her case to the Board of Immigration Appeals (BIA), which affirmed the IJ’s decision. The case was appealed to the U.S. Court of Appeals for the Ninth Circuit. CGRS submitted an amicus brief to the Ninth Circuit arguing that Ms. García-Martínez had established persecution on account of her imputed pro-guerrilla political opinion and/or her membership in a particular social group defined as women from a village perceived to be sympathetic to the guerrillas. The Court found that the record compelled the conclusion that systematic rape was being used as a weapon of war against women in Ms. García-Martínez’s village in Guatemala at least in part for the village’s believed affiliation with the guerrillas. On remand for a determination regarding Ms. García-Martínez’s well-founded fear in light of the end of the civil war in Guatemala, the BIA reversed its earlier ruling and granted asylum based on the atrociousness of the past persecution.


CGRS amicus brief to the Ninth Circuit (August 25, 2003)

Ninth Circuit decision (June 2004)

News Coverage

Howard Mintz, “Fight for Refuge,” San Jose Mercury News, September 18, 2005

Araceli Martínez-Ortega, “Final feliz para una pesadilla,” La Opinion, August 20, 2005

Tyche Hendricks, “Gang-rape victim granted asylum after long court battle,San Francisco Chronicle, July 15, 2005

Tyche Hendricks, “US Court Rules Rape is Grounds for Asylum,” San Francisco Chronicle, June 16, 2005

Jeff Chorney, "Ninth Leans to asylum for rape victim," The Recorder,April 15, 2004

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