Meguenine v. I.N.S.

• Decision Date: 04 February 1998
• Docket Number: No. 97-1991,97-1991
• Parties: Mohammed MEGUENINE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 25

139 F.3d 25

Mohammed MEGUENINE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 97-1991.

United States Court of Appeals First Circuit.

Heard Feb. 4, 1998.

Decided March 17, 1998.

Robert M. Warren, Goodland, KS, 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, Washington, DC, were on brief, for Respondent.

Before BOUDIN, Circuit Judge, ALDRICH, Senior Circuit Judge, and LYNCH, Circuit Judge.

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). ¹ 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. See Alvarez-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). ² 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...