United States Court of Appeals
For the First Circuit
No. 97-1991
MOHAMMED MEGUENINE,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Circuit Judge,
Aldrich, Senior Circuit Judge,
and Lynch, Circuit Judge.
Robert M. Warren for petitioner.
Margaret Perry, Office of Immigration Litigation, Civil
Division, United States Department of Justice, with whom Mark C.
Walters, Assistant Director, and Frank W. Hunger, Assistant
Attorney General, Civil Division, were on brief, for respondent.
March 17, 1998
LYNCH, Circuit Judge. Petitioner Mohammed Meguenine
seeks reversal of an order of the Board of Immigration Appeals
(BIA or Board) denying his application for asylum under the
Immigration and Nationality Act (INA) 208, 8 U.S.C. 1158,
and his application for withholding of deportation under INA
243(h), 8 U.S.C. 1253(h). Meguenine's most substantial claim
is that the agency improperly required him to produce evidence
of individualized threats of persecution in violation of 8
C.F.R. 208.13(b)(2) (1997). Although the BIA failed to refer
to that regulation in its opinion, its reasoning was consistent
with the regulation and was otherwise supported by "substantial
evidence." We affirm.
I.
Mohammed Meguenine is a citizen of Algeria who came
to the United States on July 19, 1993 on a six-month tourist
visa at a time when violence between Algeria's military
government and its armed Islamic fundamentalist opponents was
growing. Meguenine overstayed his visa. On February 9, 1995,
he applied for asylum under INA 208(a), which gives the
Attorney General discretion to grant asylum to "refugees," as
defined by the INA, and for withholding of deportation under
INA 243(h), which requires the Attorney General to withhold
deportation to a country in which an alien is "likely" to face
persecution on account of specified grounds. Following his
interview with an asylum officer, the Immigration and
Naturalization Service (INS) brought deportation proceedings
against him. At a proceeding before an Immigration Judge (IJ),
Meguenine conceded deportability, and reasserted his
application for asylum and withholding of deportation.
The IJ found Meguenine ineligible both for asylum and
for withholding of deportation, and agreed to grant him
voluntary departure in lieu of deportation. Meguenine appealed
the IJ's decision to the BIA. On August 7, 1997, the BIA
affirmed the IJ's decision. Meguenine's case is governed by
the "transitional rules" of the Illegal Immigration and
Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-
208, Div. C., 110 Stat. 3009-546 (enacted Sept. 30, 1996).
That is because the BIA's decision dismissing his case was
issued after October 31, 1996, but proceedings were brought
against him prior to April 1, 1997 (IIRIRA's "Title III-A
effective date"). See IIRIRA 309(c)(1), as amended by Act of
Oct. 11, 1997, 2, Pub. L. No. 104-302, 110 Stat. 3656, 3657
(aliens "in proceedings" before April 1, 1997, but whose
deportation becomes final after October 31, 1996, are governed
by IIRIRA's "transitional rules"). In general, under those
"transition rules," aliens appealing a denial of a decision to
grant asylum under INA 208(a) or to withhold deportation
under INA 243(h) must file a petition for review within
thirty days under former INA 106. See IIRIRA 309(c)(4)
(providing that aliens under the "transition rules" continue to
be governed by former INA 106, subject to certain exceptions
which do not apply here). As Meguenine filed the requisite
petition for review within thirty days, this court has
jurisdiction.
II.
Meguenine's application for asylum must be understood
in light of the violent conflict between the Algerian
government and its armed Islamic fundamentalist opponents. In
1989, Algeria opened its political process to parties other
than its ruling secular party. An Islamic fundamentalist
party, the Islamic Salvation Front, soon became the most
important opposition party. In December 1991, the government
held elections in two stages. After the Islamic Salvation
Front won the first stage, the military cancelled the second
stage. The civilian president resigned and a military junta
took power. Radical Islamic fundamentalists, who had recently
formed the Armed Islamic Group, launched terrorist attacks to
destabilize the new government. The military government's
forces fought back. Both sides have acted with considerable
brutality toward the civilian population. So far, tens of
thousands of Algerians have died in the conflict.
Meguenine worked for many years as a nurse in a
government-run hospital in his native city of Oran, Algeria.
He testified before the IJ that he is a moderate Muslim, not a
fundamentalist, that he favors neither side in the present
conflict, and that he has never been active in politics. He
nevertheless seeks asylum because, he says, the Islamic
fundamentalists have targeted health care workers in general,
and those at his hospital in particular, if they refuse to
accede to demands that they stop treating government soldiers
who are injured in the violence. Meguenine says that, as a
health care professional, he feels ethically obliged to treat
any injured person regardless of that person's beliefs or
affiliation in the present conflict, and that he feared
violence because of a threatening terrorist note at his
hospital that warned hospital personnel not to treat soldiers.
Meguenine notes that, after this note appeared, other health
care workers at his hospital and elsewhere in the country were
injured or killed by the terrorists. He contends that this
evidence suffices to show that he has a "well-founded fear of
persecution on account of" either his "religion" as a moderate
Muslim, his "membership in a particular social group" of health
care professionals, or his "political opinion" of neutrality in
the conflict. INA 101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A)
(1994).
The BIA disagreed. First, it considered the evidence
Meguenine placed before the IJ in support of his contention
that neutral health care workers are, in general, subjects of
systematic persecution by the Islamic fundamentalist groups.
Finding this evidence insufficient to show that such
persecution of neutral health care workers was taking place on
a systematic basis, it concluded that Meguenine had not shown
that a nexus existed between his fear of harm at the hands of
the Islamic fundamentalists and his status as a nurse in a
government-run hospital. Second, it considered a threatening
note Meguenine observed personally at his hospital. The Board
found that this threat was too general and isolated to cause
Meguenine reasonably to fear that he personally had been
targeted for persecution on account of his refusal to accede to
demands that he refuse to treat soldiers fighting the Islamic
fundamentalists.
III.
On a petition for review under old INA 106, this
court reviews the BIA's decision that Meguenine is ineligible
for asylum and withholding of deportation to determine of it is
supported by "substantial evidence." Ipina v. INS, 868 F.2d
511, 513 (1st Cir. 1989). The court reviews the BIA's legal
conclusions de novo, although it gives deference, where
appropriate, to the agency's interpretation of the underlying
statute in accordance with administrative law principles. SeeAlvarez-Flores v. INS, 909 F.2d 1, 3 (1st Cir. 1990).
It is important to note that the BIA did not reject
Meguenine's application as a matter of law because it regarded
Meguenine's theory of persecution as legally insufficient to
establish eligibility for asylum. The BIA's decision took no
position on whether a health care professional who refuses to
violate his ethical obligations to treat all injured combatants
in a violent conflict, and who has a well-founded fear of
persecution for taking such a stand, qualifies as a "refugee"
under INA 101(a)(42)(A). Rather, it rejected Meguenine's
application because it found the evidence that he presented
insufficient to show that the Islamic fundamentalists were in
fact systematically targeting neutral health care workers, and
that the evidence that he individually had faced threats for
this reason was too scant to support eligibility for asylum.
Meguenine first argues that the BIA committed legal
error. He says that the BIA's decision, which relied in part
on the lack of threats directed at him individually, violated
a regulation that governs the circumstances in which an
applicant may be required to produce such evidence. That
regulation, 8 C.F.R. 208.13(b)(2)(i) (1997), provides:
In evaluating whether the applicant
has sustained his burden of proving that
he has a well-founded fear of persecution,
the Asylum Officer or Immigration Judge
shall not require the applicant to provide
evidence that he would be singled out
individually for persecution if:
(A) He establishes that there is
a pattern or practice in his country
of nationality or last habitual
residence of persecution of groups of
persons similarly situated to the
applicant on account of race,
religion, nationality, membership in
a particular social group, or
political opinion; and
(B) He establishes his own
inclusion in and identification with
such group of persons such that his
fear of persecution upon return is
reasonable.
Although the BIA did not mention this regulation in its
opinion, its reasoning is entirely consistent with it and we
find no violation. The regulation puts the burden on Meguenine
to "establish that there is a pattern or practice" of
persecution directed at "persons similiarly situated to the
applicant" and to establish his inclusion in such a group. The
BIA's decision first considered whether Meguenine had shown
that neutral health care workers face systematic persecution
from the Islamic fundamentalists. Only after it had found
Meguenine's evidence insufficient to show such a "pattern or
practice" of persecution did it consider whether the
threatening note at Meguenine's hospital was sufficiently
directed at Meguenine to cause him reasonably to fear harm
because he personally had been targeted for his persistence in
treating all patients regardless of their political or
religious beliefs or affiliation in the present conflict. This
is precisely the procedure that the regulation contemplates.
As the BIA's decision is not based on an error of
law, we review these conclusions to determine if they are
supported by substantial evidence. A reasonable factfinder
could determine on this record, as did the BIA, that there was
no pattern or practice targeting neutral health care workers
and that Meguenine's claimed fears stemmed from the general
insecurity in Algeria and not from persecution against him on
one of the statutorily enumerated grounds. See INS v. Elias-
Zacarias, 502 U.S. 478, 483-84 (1992).
In support of his claim that health care workers were
subject to systematic persecution at the hands of the Islamic
fundamentalists if they refused demands not to treat government
soldiers, Meguenine proffered the following evidence. First,
Meguenine testified to the anonymous warning note at his
hospital. Second, he testified that the newspaper reported
that a gynecologist at that hospital was murdered by the
fundamentalists because he treated women. Meguenine also had
heard that his friend, a nurse, was murdered even though,
according to Meguenine, "he never speak out (sic)." He had
also heard that his superior, the director of the hospital, was
shot and injured by the terrorists and fled to France. Next,
he proferred testimony by a lawyer who does business in Algeria
who said that Meguenine's story was plausible and that threats
such as the note on the wall were to be taken "very seriously"
and that "virtually anyone" working for a government
institution in Algeria, such as a hospital, could be a target
of terrorist violence. Finally, Meguenine submitted human
rights reports that recount the terrorist assassinations of
three prominent physicians elsewhere in the country.
This evidence did not compel the Board to find in
Meguenine's favor, either on his claim that health care workers
faced systematic persecution or on his claim that he reasonably
feared persecution individually. The evidence could be read to
tend to support the accuracy of Meguenine's contentions, but it
is not so persuasive that we feel free to reject the BIA's
conclusions when reviewing the BIA "under a deferential
substantial evidence standard." Cordero-Trejo v. INS, 40 F.3d
482, 487 (1st Cir. 1994) (citations and internal quotation
marks omitted).
In turn, the BIA's reasons for rejecting Meguenine's
arguments are rational. The Board noted that, according to the
human rights reports, the three prominent physicians who were
assassinated were prominent opponents of the fundamentalists,
not apolitical health care workers like Meguenine. Indeed,
those reports contained exhaustive lists of those groups that
the fundamentalists had singled out for persecution, and
"health care workers" who choose to remain neutral were not
among them. Those reports also lend support to the
government's view that terrorist violence is indiscriminate and
is not directed at any particular identifiable group of
civilians other than known supporters of the government. Next,
the Board observed that Meguenine failed to present competent
evidence concerning the reason why the physicians at his
hospital were attacked, thus raising the possibility that they
were also targeted for their opposition to the fundamentalists
rather than because of their status as health care workers.
The Board also noted that hundreds of nurses worked at the
hospital who had not been harmed, even though, like Meguenine,
they had not heeded the threat. Finally, the Board noted that
Meguenine worked at the hospital for more than a year after the
threat appeared, undercutting his claim that the threat
reasonably caused him to fear persecution from the
fundamentalists.
This was a valid application of the "well-founded
fear" standard as set forth in Matter of Mogharrabi, 19 I. & N.
Dec. 439 (BIA 1987). It is entirely reasonable for people to
fear harm if they are required to return to Algeria during the
current conflict, but Congress has not chosen to open the door
to this country on such a basis. As the government correctly
notes, it is the law that general fears (even "well-founded"
ones) of future harm from political upheaval or terrorist
violence are not sufficient to establish eligibility for asylum
under 208(a) of the INA. See Novoa-Umania, 896 F.2d at 5.
The BIA chose to reject Meguenine's argument that the facts
establish that an identifiable group of "health care workers"
face a "pattern or practice" of persecution in Algeria from
armed Islamic fundamentalist terrorists if they persist in
treating government soldiers. A careful review of the record
reveals that substantial evidence permitted the Board's
conclusion. Likewise, the Board could reject Meguenine's fears
of specific harm on this record as insufficiently severe and
particular to support eligibility for asylum or for withholding
of deportation.
The order of the Board of Immigration Appeals is
affirmed.