Mediouni v. Immigration & Naturalization Service

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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