# United Stat es Court of Appeals For the First C ircuit

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 Fr iedm an , 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, 20021 Me diouni presented documentary evidence and testimo n y

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 accu rac y of the documentary evidence. -2-

STAHL, Senior Circuit Judge . Sadek Mediou ni p etitions for review of the decision of the Board of Immigration Appeals to deny him asylum, withholding of deportation, and relief under the UnitedNations 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 wellfoundedfear of pe rsecut ion. 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 andformer French military police officer, was stationed in Algeria for approximately sevent een years toward the end of the peri odof French colonial government. Mediouni's mother was Algerian. Until he was an adult, Mediouni was stateless: he lacked-3-

Algerian citizenship, had no identificat ion d ocuments, 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 afterwardbecause his wife missed their home. In 1962, shortly before Mediouni's birth, his father was kidnaped and eventually declareddead. Mediouni's mother married an Ar ab Algerian soon thereafter.

Until he was nine years old, Mediouni suffered harassment andthreats because he was the son of a French police officer. At that point, his family moved to a different city, where his backgroundwas unknown. There, he did no t 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 inv estigati on 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 a nd int errogated by the police on four separate occasions. In 198 8, h e opened a video rental store. During the three years that he owned the store, the Algerian authorities repeatedly inte rfer ed with his business and2 Convention Agai ns t 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, sec tion 1, that "[n]o state . . . expel, return ('refoule r') or ext radite 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 Refor m 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)). -4- investigatedhim for distributing videos of "Anti-Algerian content." On November 16, 1991, Mediouni enteredthe 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 July27, 1995, the Immigration and Naturalization Service issued an Orde r to S how Cause charging Mediouni as deportable under former section 241(a)(1)(B) of the Immigration and Nation alit y 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 Again st 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.-5- II. DISCUSSION W e review the Board's findings of fact and credibi lit y 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 statu tory 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 gen era l principles o f ad ministrative review, we will not "supplant the agency's findings merely by identifying alternative findings that couldbe 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 groundedin the record, viewed as a whole, o r ar e merely personal views of the immigration judge." Cordero-Trejo , 40 F.3d at 487 (in tern al citations omitted).

We begin with the deni al o f Mediouni's asylum claim. Because the standard for withholding deportation is more stringent3 An imputed political opinion is an opinion attributed to the

asylumapplicant by his or her persecutors. Whether correctly or incorrectlyattributed, 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)). -6- 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 asylumby 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 basedon his membership in a particular social group or imputed polit ica l 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.

Th e Boar d 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 documentaryevidence, it said, indicatedthat only current members of security forces "or those who the terrorists might consider-7-

their current enemies" hadreason to be fearful. The Board likened Mediouni's fears to those arising from employment in the military andfrom"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 tha t M ediouni did not satisfy the standards for eligibilityfor 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 fromemplo yment 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 emp loyment in the military or law enforcement, thereby riski n g 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 hi s 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 cou ld 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-8-

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 f ear of persecution, based on his kinship with a colonial-era police officer, was objectively reasonable. Conceivably, the Board couldhave inferred from the record that family members such as Mediouni are at risk despite the passage of decades. A 1993 United States Departmen t of State report noted that individuals whose high-profile associations with disfavored groups had lon g since endedhad 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 evid ence a s to Islamic fundamentalists' recent invocations of colonialism to foment anti-French a nd g eneral xenophobic sentiment. The 1996 State Department report also s tates 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 targetedfor attack by terrorists, it does not compel it. None of4 His father was not, apparently, a particularly high-l eve l

former official comparable to those cited in the 1993 State Department report.

5 A s Mediouni did not brief his claim under the Conve ntio n Against Torture on appeal, we consider the argument waived. Ortiz v. Gaston County Dyei ng Ma chine Co. , 277 F.3d 594, 597 (1st Cir. 2002).

-9- the evidence in the record explicitly addresses the present persecution of family member s of police officers dating from the French colonial government. Me diouni 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 th at hi s li festyle w as 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 Ag uilar- Solis , 168 F.3dat 569. Accordingly, we affirm the Board's asylum decision pursuant to the substantial evidence standard of review. 5

The petition for review is denied.