Contesting the Bar to Asylum

The U.S. Justice Department has asked federal immigration officials to reopen a political asylum case that was denied despite strong evidence that the petitioner was repeatedly raped for six weeks by Congolese officials allegedly investigating the 2001 assassination of President Laurent Kabila.

Such intervention by the Justice Department is rare, and human rights lawyers applauded the decision. They are concerned that if the original decision to deny asylum stands, it could, by implication, make legitimate the use of rape in the course of an investigation.

The woman at the center of the case, identified as Monique M, fled the Democratic Republic of Congo, formerly known as Zaire, and is living with a friend in San Antonio.

Anibal Martinez, a Justice Department lawyer, and Jayne Fleming of Oakland, a specialist in political asylum cases who first sought to have the case reopened, filed a joint brief on Monique’s behalf last week with the Executive Office of Immigration Review.

The attorneys argued that new evidence shows that the Congolese prosecutor and his subordinates “may not have been pursuing a legitimate investigative purpose” when they detained her. They say that Col. Charles Alamba, the prosecutor, was himself a criminal who was later convicted of murder.

In affirming the immigration judge’s decision not to grant Monique asylum, the U.S. 5th Circuit Court of Appeals concluded she was not eligible because she did not prove she would be persecuted in her home country under one of five defined categories -- because of race, religion, nationality, membership in a particular social group or political opinion. The rapes and prolonged imprisonment she suffered were part of a “legitimate investigation,” the New Orleans-based appeals court held in March.

That reasoning is disputed in briefs filed in the case.

“Repeated rapes are never part of a legitimate investigation. Rape is torture,” wrote law professors Karen Musalo of UC Hastings College of Law in San Francisco, and Joseph Vail of the University of Houston Law Center. In asking the 5th Circuit to rehear the case they cited a December 1994 United Nations resolution denouncing systematic rape as a weapon of war.

Monique was falsely accused of being involved in Kabila’s assassination because she was considered a political opponent, the professors said, and a person persecuted for political views has a basis for asylum.

Among those who have expressed dismay over the appeals court ruling is Eleanor Acer, an attorney with Human Rights First in New York. “The decision is very disturbing because it essentially views government investigations that involve torture and rape as some kind of legitimate criminal investigation,” said Acer. “Repressive regimes often jail people who are in opposition to them and simply say they are conducting criminal investigations.”

The bid to reopen the case comes just weeks after Congo held its first democratic elections in more than four decades. The country’s 1998-2002 civil war claimed about 4 million lives. Although the civil war has officially ended, violence continues to plague the country and nongovernmental organizations estimate that 1,250 people a day die in Congo, primarily as a result of hunger and disease.

An Amnesty International report in October 2004 stated that tens of thousands of women and girls had been the “victims of systematic rape and sexual assault committed by combatant forces” and that the war left parts of the country in a lawless state.

At the time of the assassination, Monique M was working as a secretary in the Marble Palace, the chief government building in the capital Kinshasa. She was taken into custody shortly after Kabila was killed on Jan. 16, 2001. Government interrogators told her that her friends said she had helped the assassins enter the palace. Monique told the interrogators she had not been involved in Kabila’s death and had no information about who killed him.

Monique later told U.S. officials that she was held in a small cell with five other women and the guards in charge beat and raped them daily, each taking a turn while others held the woman. At the time she was taken into custody, Monique was the mother of three and was one month pregnant.

She told U.S. immigration officials that after one of the rapes she had a miscarriage.

Eventually, one of the judges conducting the assassination investigation told Monique that because he knew her family he would help her. A few days later, she was secretly taken to the border in the trunk of a car. She said the official who helped her said it would be made to appear on paper that she had been killed in prison and told her never to return to Congo or to communicate with anyone there. He said her parents would be told she had escaped from the country.

After stops in Ethiopia, Italy, New York and North Carolina, Monique arrived in San Antonio, where she is living with another person from the Congo. He advised her to apply for political asylum and helped her file the application in September 2001.

The immigration judge rejected Monique’s bid, however, saying her testimony lacked credibility. He said, for example, that it was implausible that she fled without saying goodbye to her family.

Although the 5th Circuit Court of Appeals upheld the judge’s ruling, it did not dispute the authenticity of Monique’s story.

Many of the immigration judge’s key findings “are not supported by the record and are based on pure speculation and conjecture.... There is nothing in the record to suggest that aliens fleeing from prison to a different country usually go home to say goodbye,” wrote 5th Circuit Judge Jerry E. Smith. The court scoffed at the immigration judge’s conclusion that the brutality Monique described “is simply not comprehensible.”

Smith wrote: “That brutality is extraordinary does not render it implausible.” Under the immigration judge’s logic, he added, “Jews fleeing Nazi Germany and describing the concentration camp atrocities would have been denied asylum because the brutality they described would be ‘incomprehensible.’ ”

In addition, Smith said, “the record shows that the Congolese guards apparently told [Monique] that she deserved to be raped and die because she was a criminal. This justification for brutality is far from incomprehensible.”

Nonetheless, the 5th Circuit said Monique was not entitled to asylum because her persecution did not fit into any of the established categories.