United States Court of Appeals
For the First Circuit
No. 02-1492
SADEK MEDIOUNI,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
ON PETITION FOR REVIEW FROM
THE BOARD OF IMMIGRATION APPEALS
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
Maureen O'Sullivan, with whom Ilana Greenstein, Jeremiah
Friedman, Harvey Kaplan, and Kaplan, O'Sullivan & Friedman, LLP,
were on brief for petitioner.
Brenda M. O'Malley, Attorney, Office of Immigration
Litigation, with whom Robert D. McCallum, Jr., Assistant Attorney
General, Civil Division, and Christopher C. Fuller, Senior
Litigation Counsel, Office of Immigration Litigation, were on brief
for respondent.
December 20, 2002
STAHL, Senior Circuit Judge. Sadek Mediouni petitions
for review of the decision of the Board of Immigration Appeals to
deny him asylum, withholding of deportation, and relief under the
United Nations Convention Against Torture. While we perceive some
support in the record for Mediouni's asylum claim, we cannot say
that the record compels the conclusion that he demonstrated a well-
founded fear of persecution. Accordingly, we affirm the Board's
denial.
I. BACKGROUND
Mediouni was born in Algeria in 1962. His claims are set
forth against the backdrop of Algeria's struggle against the French
colonial presence beginning in the 1950s; its independence from
France in 1962; the insurrection by Islamic fundamentalists against
the secular government in the 1980s; and the ensuing civil war that
began in 1992.1
Mediouni's father, a Tunisian-born naturalized French
citizen and former French military police officer, was stationed in
Algeria for approximately seventeen years toward the end of the
period of French colonial government. Mediouni's mother was
Algerian. Until he was an adult, Mediouni was stateless: he lacked
1
Mediouni presented documentary evidence and testimony
concerning the history of and current conditions in Algeria, which
the Board appeared to accept. Neither the Immigration Judge nor
the Board impugned his credibility or the accuracy of the
documentary evidence.
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Algerian citizenship, had no identification documents, and was
denied government services and the ability to travel freely.
After the end of the war against the French, Mediouni's
father fled Algeria in fear of his life, but returned soon
afterward because his wife missed their home. In 1962, shortly
before Mediouni's birth, his father was kidnaped and eventually
declared dead. Mediouni's mother married an Arab Algerian soon
thereafter.
Until he was nine years old, Mediouni suffered harassment
and threats because he was the son of a French police officer. At
that point, his family moved to a different city, where his
background was unknown. There, he did not experience further
harassment or abuse until 1980, when he applied for an identity
card that he needed to take academic exams. Following Mediouni's
application for an identity card, the Algerian government conducted
an investigation of him. As a result, he received cold and
suspicious treatment from neighbors and school authorities.
Although he eventually acquired Algerian citizenship
(through the interventions of a judge who was a relative), over the
next four years Mediouni was detained and interrogated by the
police on four separate occasions. In 1988, he opened a video
rental store. During the three years that he owned the store, the
Algerian authorities repeatedly interfered with his business and
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investigated him for distributing videos of "Anti-Algerian
content."
On November 16, 1991, Mediouni entered the United States
as a visitor for pleasure. He remained in the United States beyond
his authorization date. In 1992, civil war erupted in Algeria. On
July 27, 1995, the Immigration and Naturalization Service issued an
Order to Show Cause charging Mediouni as deportable under former
section 241(a)(1)(B) of the Immigration and Nationality Act, 8
U.S.C. § 1251(a)(1)(B)(i) (1995).
Mediouni conceded that he was deportable as charged, but
sought relief in the form of asylum and withholding of deportation.
He also sought prevention of deportation under the Convention
Against Torture.2 On February 21, 1997, an immigration judge
conducted a hearing, and later denied Mediouni's applications for
relief and protection. On April 10, 2002, the Board dismissed his
appeal.
2
Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85.
The United States ratified the Convention in 1994; in 1998,
Congress passed legislation to implement the Convention's
requirement, contained in article 3, section 1, that "[n]o
state . . . expel, return ('refouler') or extradite a person to
another State where there are substantial grounds for believing
that he would be in danger of being subjected to torture." Foreign
Affairs Reform and Restructuring Act of 1998 § 2242, Pub. L. No.
105-277, 112 Stat. 2681-761, 822-23 (1998) (codified at 8 U.S.C. §
1231 (Supp. V 1999)).
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II. DISCUSSION
We review the Board's findings of fact and credibility
under a "substantial evidence" standard. Yatskin v. INS, 255 F.3d
5, 9 (1st Cir. 2001); Cordero-Trejo v. INS, 40 F.3d 482, 487 (1st
Cir. 1994). Board determinations of statutory eligibility for
relief from deportation, whether via asylum or withholding of
deportation, are conclusive if "supported by reasonable,
substantial, and probative evidence on the record considered as a
whole." INS v. Elias-Zacharias, 502 U.S. 478, 481 (1992) (quoting
8 U.S.C. § 1105a(a)(4)). This standard of review is quite
deferential: we will not reverse unless "the record evidence would
compel a reasonable factfinder to make a contrary determination."
Aguilar-Solis v. INS, 168 F.3d 565, 569 (1st Cir. 1999); see also
Arkansas v. Oklahoma, 503 U.S. 91, 113 (1992) (under general
principles of administrative review, we will not "supplant the
agency's findings merely by identifying alternative findings that
could be supported by substantial evidence"). Deference is not
due, however, if the Board's findings and conclusions are "based on
inferences or presumptions that are not reasonably grounded in the
record, viewed as a whole, or are merely personal views of the
immigration judge." Cordero-Trejo, 40 F.3d at 487 (internal
citations omitted).
We begin with the denial of Mediouni's asylum claim.
Because the standard for withholding deportation is more stringent
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than that for asylum, "a petitioner unable to satisfy the asylum
standard fails, a fortiori, to satisfy the former." Velasquez v.
Ashcroft, 305 F.3d 62, 64 n.2 (1st Cir. 2002) (citing
Alvarez-Flores v. INS, 909 F.2d 1, 4 (1st Cir. 1990)).
An alien bears the burden of establishing eligibility for
asylum by proving either past persecution or a well-founded fear of
persecution on account of his or her race, religion, nationality,
membership in a particular social group, or political opinion. Id.
at 65 (citing 8 C.F.R. § 208.13(b)(1)). Mediouni does not assert
that he suffered past persecution, so we deal only with his
contention that he demonstrated a well-founded fear of persecution
based on his membership in a particular social group or imputed
political opinion.3 Accordingly, he must show both a genuine
subjective fear and an objectively reasonable fear of persecution
on one of those protected grounds. Id. at 66.
The Board found that the record did not support the
conclusion that Mediouni reasonably feared persecution because of
his father's service with the police four decades ago. The
documentary evidence, it said, indicated that only current members
of security forces "or those who the terrorists might consider
3
An imputed political opinion is an opinion attributed to the
asylum applicant by his or her persecutors. Whether correctly or
incorrectly attributed, an imputed political opinion "may
constitute a reason for political persecution within the meaning of
the Act." Vasquez v. INS, 177 F.3d 62, 65 (1st Cir. 1999) (quoting
Ravindran v. INS, 976 F.2d 754, 760 (1st Cir. 1992)).
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their current enemies" had reason to be fearful. The Board likened
Mediouni's fears to those arising from employment in the military
and from "general conditions of violence and civil unrest," neither
of which ordinarily may support a claim of persecution. See id.;
Matter of Fuentes, 19 I & N Dec. 658, 661 (BIA 1988). The Board
also held that Mediouni did not satisfy the standards for
eligibility for withholding of deportation or for relief under the
Convention Against Torture.
As an initial matter, we believe that the Board
inappropriately analogized Mediouni's claim to "dangers that arise
from employment in the military in areas of domestic unrest."
While the Board correctly stated that such dangers generally do not
support asylum claims, this legal proposition simply does not apply
to Mediouni's circumstances. Mediouni did not himself choose
employment in the military or law enforcement, thereby risking
attack as a "highly visible embodiment[] of the power of the
state." Fuentes, 19 I & N Dec. at 661. Rather, he is associated
with the police solely by virtue of his kinship ties with his
father, a former officer. In Fuentes, the Board held that status
as a former policeman is an immutable characteristic, and that
mistreatment resulting from such status could be found to be
persecution on account of political opinion or membership in a
particular social group. Id. at 662. A similar argument can be
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made that Mediouni, as the son of a former military police officer,
is not categorically precluded from sustaining an asylum claim.
Nonetheless, we affirm the Board's conclusion that
Mediouni did not adduce sufficiently compelling evidence that his
fear of persecution, based on his kinship with a colonial-era
police officer, was objectively reasonable. Conceivably, the Board
could have inferred from the record that family members such as
Mediouni are at risk despite the passage of decades. A 1993 United
States Department of State report noted that individuals whose
high-profile associations with disfavored groups had long since
ended had been targeted for attack, including former Marxist Party
officials and a former national television director. Three years
later, the State Department reported that Algerian government
officials and security service members, as well as their families,
were attacked.
Moreover, Mediouni points to record evidence as to
Islamic fundamentalists' recent invocations of colonialism to
foment anti-French and general xenophobic sentiment. The 1996
State Department report also states that "[t]errorists attacked
civilians whom they regarded as instruments of the State or whose
lifestyles they considered in conflict with Islamic values."
While this evidence may permit an inference that the son
of a deceased colonial-era military police officer could be
targeted for attack by terrorists, it does not compel it. None of
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the evidence in the record explicitly addresses the present
persecution of family members of police officers dating from the
French colonial government. Mediouni does not fall into any
specific category of government official or public figure currently
being singled out for terrorist attack, nor is he related to such
a person.4 Moreover, he has not offered any evidence that his
lifestyle was or would be deemed offensive in the eyes of the
Islamic radicals. In short, nothing in the record requires us to
substitute our judgment for the Board's. See Aguilar-Solis, 168
F.3d at 569. Accordingly, we affirm the Board's asylum decision
pursuant to the substantial evidence standard of review.5
The petition for review is denied.
4
His father was not, apparently, a particularly high-level
former official comparable to those cited in the 1993 State
Department report.
5
As Mediouni did not brief his claim under the Convention
Against Torture on appeal, we consider the argument waived. Ortiz
v. Gaston County Dyeing Machine Co., 277 F.3d 594, 597 (1st Cir.
2002).
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