Meguenine v. INS

• Court: Court of Appeals for the First Circuit
• Decided: March 17, 1998
• Docket: 97-1991
• Status: Published

Opinion

USCA1 Opinion

                  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.