Moudjahed Ferchichi; A. F.; Salima Ferchichi; T. F. v. Pamela Bondi,1 Attorney General of the United States

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 23-1123
___________________________
Moudjahed Ferchichi; A. F.; Salima Ferchichi; T. F.
Petitioners
v.
Pamela Bondi,1 Attorney General of the United States
Respondent
____________
Petition for Review of an Order of the
Board of Immigration Appeals
____________
Submitted: October 24, 2024
Filed: February 14, 2025
____________
Before LOKEN, SMITH, and GRASZ, Circuit Judges.
____________
SMITH, Circuit Judge.
Salima and Moudjahed Ferchichi, along with their children T.F. and A.F.
(collectively, “Ferchichis”), seek review of the Board of Immigration Appeals’s
1 Attorney General Bondi is automatically substituted for her predecessor
under Federal Rule of Appellate Procedure 43(c)(2).

-- 1 of 13 --

-2-
(Board) dismissal of their appeal from the immigration judge’s (IJ) order of final
removal against them. We deny the petition.
I. Background
The Ferchichis are natives and citizens of Algeria. At birth, T.F. was
diagnosed with a severe form of spina bifida.2 His parents, Salima and Moudjahed,
were told by the doctors at the hospital that T.F. had a fatal birth defect. The doctors
removed T.F. from his mother, Salima, to an unknown location. Concerned, Salima
searched the hospital for T.F. and found him in an abandoned ward wrapped in a
sheet on a countertop.
After the hospital discharged T.F., they referred the Ferchichis to a
neurosurgeon. The neurosurgeon diagnosed T.F. with spina bifida, but consistent
with the hospital’s prognosis, offered no course of treatment or medication. While
waiting for their next scheduled appointment, Salima and Moudjahed researched
T.F.’s condition and discovered that survival typically requires that infants receive
immediate surgery. At their next appointment, they requested surgery, but the
neurosurgeon refused. The neurosurgeon told Salima and Moudjahed that surgery
was not necessary because the spinal column would “heal on its own and . . . he
would grow out of the condition.” A.R. at 471.
As T.F.’s condition worsened, the Ferchichis sought a second opinion from
Dr. Sidi Said, the President of the Algerian Neurosurgery Society. Dr. Said
recommended that T.F. have surgery abroad. Dr. Said commented that “having the
surgery in Algeria would leave [T.F.] at a higher risk of complications because
Algerian doctors are less experienced in performing such complex surgeries.” Id.
Dr. Said agreed to apply to the Ministry of Health for the necessary approval for
obtaining surgery abroad. However, when the Ferchichis returned three months later,
2 “[S]pina bifida . . . is a developmental birth defect that occurs when the
incomplete closure of the embryonic neural tube results in an incompletely formed
spinal cord.” A.R. 468–69. Consequently, the “vertebrae overlying the open portion
of the spinal cord do not fully form and remain unfused and open.” Id. at 469.

-- 2 of 13 --

-3-
Dr. Said revoked his offer to apply for surgery abroad and maintained that “Algerian
hospitals ha[d] the equipment and expertise necessary to perform the surgery
successfully.” Id. at 472. The Ferchichis suspected that this unexplained change in
position was likely due to “pressure from the Ministry of Health, or because he felt
he would lose credibility as a neurosurgeon if he admitted that Algerian doctors
[were] incapable of treating a disease that [could] be treated successfully in other
countries.” Id. at 471–72. Thereafter, Dr. Said claimed that he was unable to
schedule surgery because the hospital’s surgery schedule was full.
The Ferchichis sought nonmedical assistance through a meeting with the sister
of the Algerian president. The president’s sister was sympathetic to T.F.’s situation
and recommended a doctor who could sign the form needed for treatment abroad.
However, the recommended doctor refused to sign the form and claimed “that he
would lose his job if he did because authorizing the treatment was contrary to
Algeria’s policy of treating spina bifida domestically.” Id. at 473. The Ferchichis
explained in their affidavit that “[b]ecause the Algerian health care system requires
the government to pay for costs of treatment, whether performed in Algeria or
abroad, the Ministry of Health often refuses to send citizens abroad for expensive
treatments.” Id. Despite numerous attempts, the Ferchichis did not find a doctor who
would sign the form authorizing treatment abroad.
Unable to obtain authorization, the Ferchichis began raising funds to self-pay
for the international surgery. After receiving exposure through a YouTube video, a
regional radio station, and newspaper articles, the Ferchichis raised $130,000. In
connection with their fundraising efforts, Dr. Azzedine Stambouli from the Algerian
Association of Greater Washington located in Minnesota contacted Salima and
Moudjahed. Dr. Stambouli entered T.F.’s name into a lottery at the Mayo Clinic to
receive free treatment for his condition in Rochester, Minnesota. T.F.’s name was
entered and drawn. The Ferchichi family used their donated funds for transportation
expenses to the United States.

-- 3 of 13 --

-4-
While awaiting his surgery abroad, T.F.’s spinal sac became extremely
swollen, and the Ferchichis sought emergency surgery in Algeria. The Ferchichis
were referred to another doctor in Algiers, Algeria, to conduct the surgery. Although
willing to conduct the surgery, the doctor postponed it so he could bring in other
doctors to make a case study out of T.F.’s rare case of spina bifida.
One week later, the sac on T.F.’s back broke, and his spinal column was left
fully exposed. Salima and Moudjahed attempted to receive emergency medical
treatment for T.F. from several private clinics, but the clinics lacked “the equipment
or expertise necessary to treat him.” Id. at 474. Salima and Moudjahed then took
T.F. to the largest hospital in Algeria. The neurologist at the hospital, Dr. Houria
Benkhalas, confirmed that T.F. had contracted several severe infections. After
Salima’s continual pleading, Dr. Benkhalas finally sutured T.F.’s open wound. Dr.
Benkhalas also prescribed several medications. Those medications proved
ineffective at best and potentially deadly to T.F.
After undergoing emergency brain surgery to treat his infections, T.F. stopped
breathing. Although he was eventually intubated, he remained in a coma for a week.
During this time, Dr. Stambouli scheduled T.F.’s treatment with the Mayo Clinic in
Minnesota and arranged his medical air transport from Algeria. Dr. Benkhalas, on
the other hand, initially resisted discharging T.F. from the hospital and releasing his
medical records. She believed that T.F. simply needed to “return home to recover.”
Id. at 476. Eventually, Dr. Benkhalas released the medical records. On May 15,
2008, Salima and T.F. traveled to the Mayo Clinic with no interference from the
Algerian government. After receiving several surgeries in the United States and
continued medical treatment for his various infections, T.F.’s condition improved
and stabilized.
Moudjahed took a one-month absence from his job at the Ministry of
Religious Affairs to come join Salima in the United States. He stayed in the United
States beyond his authorized leave and was subsequently terminated by the Ministry

-- 4 of 13 --

-5-
of Religious Affairs. Moudjahed brought two of their sons, N.F. and A.F., and left
their two oldest sons in Algeria to continue their studies.
The Ferchichis entered the United States as BS-vistor visa holders on May 15,
2008, and November 24, 2008. Salima and T.F. had authorization to stay in the
United States until November 24, 2008, and Moudjahed, A.F., and N.F. had
authorization to stay until January 24, 2009. The Ferchichis filed an application for
asylum and for withholding of removal in 2009 based on “their status as parents of
a person born with spina bifida.”3 Id. at 441.
DHS commenced removal proceedings on November 9, 2009. The Ferchichis
conceded the charge of removability. However, the Ferchichis sought asylum,
withholding of removal, and protection under the Convention Against Torture
(CAT). The Ferchichis sought asylum for (1) past persecution based on T.F.’s
disability and (2) a well-founded fear of future persecution from the Algerian
government because of their publicization of the Algerian medical communities’
failures. Salima and Moudjahed submitted affidavits and presented testimony in
support of their claims.
On July 12, 2011, the IJ denied the Ferchichis’ claims for asylum, withholding
of removal, and protection under CAT. The IJ found Salima’s and Moudjahed’s
testimony generally credible. The IJ concluded, however, that no past persecution
occurred because the failure to treat T.F. resulted from Algeria’s inability to provide
care and did not constitute persecution based on T.F.’s condition. The IJ determined
that a broad government policy to avoid the costs of international treatment rather
than targeted persecution of persons with spina bifida was the reason behind the
denial of treatment. The IJ rejected the alternative explanation that it was the
Algerian government’s policy to persecute people born with spina bifida and noted
that the Algerian president’s sister’s sympathetic assistance to T.F. receiving
3 T.F. sought asylum and withholding of removal based on “his status as a
person born with a birth defect, and specifically as a person born with spina bifida.”
Id. at 441.

-- 5 of 13 --

-6-
treatment counteracted the Ferchichis’ argument. Additionally, there was no
evidence that the government retaliated against the Algerian president’s sister for
recommending treatment. Finally, the IJ noted that the government did not prevent
the family from leaving the country to seek medical attention at their own expense.
Next, the IJ turned to the Ferchichis’ claim of future persecution. The IJ
rejected the Ferchichis’ argument that they feared future persecution because of their
imputed public opinion. The Ferchichis claimed that they feared government
persecution because they openly criticized the government and shed light on
Algeria’s lack of medical expertise to treat spina bifida. The Ferchichis testified that
they left two sons in Algeria when seeking treatment for T.F. They noted that, on
several occasions, police officers in plain clothes visited their house asking about
the Ferchichis’ whereabouts. The IJ noted that the sons had not been verbally
threatened or physically harmed. The sons continued to live in Algeria without
suffering any harm. The IJ characterized these encounters as a “country’s right to
question where its citizens have gone when they disappear without notice.” Id. at
162. The IJ found that Moudjahed’s work as a security guard in Algeria’s Ministry
of Religious Affairs bolstered this argument because he had exceeded his one-month
authorized absence without telling his employer. Lastly, the IJ rejected the argument
that Moudjahed’s potential struggle to find a new job upon return to Algeria would
rise to the level of future persecution. Having failed to meet their burden of proof
with respect to the asylum claim, the IJ found that they necessarily failed to meet the
burden required for withholding of removal and their CAT claims. Accordingly, the
IJ denied asylum.
The Ferchichis appealed the IJ’s denial of asylum and withholding of removal
to the Board on August 30, 2011.4 The Ferchichis case was administratively closed
on May 8, 2013. On April 22, 2022, the Department of Homeland Security (DHS)
moved to reinstate the proceedings. On November 10, 2022, the Ferchichis filed a
4 The Ferchichis did not raise any challenge to the denial of their claim for
protection under CAT.

-- 6 of 13 --

-7-
motion to remand to the IJ because of changed circumstances.5 On December 22,
2022, the Board affirmed the IJ’s denial of their claims for relief and protection from
removal and denied the motion to remand.
First, the Board agreed with the IJ that sufficient record evidence supported
that the Algerian medical communities’ refusal to treat T.F. stemmed from the
inexperience of Algerian doctors and the government’s desire to avoid international
treatment costs. On appeal, the Ferchichis argued that the IJ ignored evidence
showing that the Algerian government had persecutory motives. The Board
acknowledged that mixed motives can underlay treatment. Nevertheless, the Board
reasoned that an IJ is not required to view evidence in a light favorable to the
Ferchichis when there are two permissible views of the evidence. Accordingly, the
Board found that the IJ did not clearly err by choosing to make a reasonable inference
from the evidence presented that the failure to treat T.F. arose from motives
unrelated to persecution.
Second, the Board affirmed the IJ’s determination that the Ferchichis had not
established a well-founded fear of future persecution. The Board reiterated many of
the IJ’s findings. It emphasized that the record lacked direct and specific evidence
demonstrating that a reasonable person would fear future persecution. The Board
pointed to the IJ’s findings that the Ferchichis’ family members who remained in
Algeria were not physically harmed or verbally threatened. Moreover, despite
Algerian media exposure while the Ferchichi family remained in Algeria, they faced
no persecution during their time there. The Board found the evidence of general
country conditions including kidnapping, disappearances, and torture in Algeria
5 The only change provided by the Ferchichis was that a visa petition filed on
N.F.’s behalf by his United States citizen spouse was pending. Otherwise, they did
not proffer any evidence that would suggest the outcome of their case would be
different based on the passage of time. Therefore, the Board denied the motion to
remand. On appeal, this court granted a motion to dismiss N.F. as a party to this
appeal pursuant to submissions that N.F.’s visa petition had been approved.
Accordingly, N.F. was removed as a party to this petition.

-- 7 of 13 --

-8-
unpersuasive. The Board found that the evidence presented was mere speculation
and insufficient to support a likelihood of future persecution. Therefore, the Board
affirmed the IJ’s decision. The Ferchichis petitioned this court for review.
II. Discussion
“[W]e review ‘decisions on asylum, withholding of removal, and CAT
protection under the substantial evidence standard, upholding the decision if it is
supported by reasonable, substantial, and probative evidence based on the record as
a whole.’” Calvo-Tino v. Garland, 107 F.4th 861, 865 (8th Cir. 2024) (alteration in
original) (quoting Lemus-Arita v. Sessions, 854 F.3d 476, 480 (8th Cir. 2017)).
Factual determinations, including the question of past persecution or well-founded
fear of future persecution, are reviewed under the substantial evidence standard. He
v. Garland, 24 F.4th 1220, 1224 (8th Cir. 2022). Under the substantial evidence
standard, “the administrative findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” Tojin-Tu v. Garland,
33 F.4th 1020, 1023 (8th Cir. 2022) (quoting 8 U.S.C. § 1252(b)(4)(B)). “Only the
[Board’s] order is subject to our review, including the IJ’s findings and reasoning to
the extent they were expressly adopted by the [Board].” Pacheco-Mota v. Garland,
84 F.4th 762, 765 (8th Cir. 2023) (quoting Silvestre-Giron v. Barr, 949 F.3d 1114,
1117 (8th Cir. 2020)).
To qualify for asylum, a petitioner must establish either past persecution or a
well-founded fear of future persecution on account of their race, religion, nationality,
political opinion, or membership in a particular social group. See 8 U.S.C.
§§ 1101(a)(42); 1158(b)(1)(B)(i). Persecution may stem from a mixed motive, and
a finding of a particular motive does not “preclude a finding of additional motives
that may concern a protected ground.” Marroquin-Ochoma v. Holder, 574 F.3d 574,
577 (8th Cir. 2009) (citing De Brenner v. Ashcroft, 388 F.3d 629, 637 (8th Cir.
2004)). However, the petitioners must show that a protected ground “was or will be
at least one central reason for persecuting the applicant.” 8 U.S.C.
§ 1158(b)(1)(B)(i). “Under the one central reason nexus standard, a protected ground
need not be the sole reason for persecution, but the protected ground cannot be

-- 8 of 13 --

-9-
incidental or tangential to the persecutor’s motivation.” Garcia-Moctezuma v.
Sessions, 879 F.3d 863, 868 (8th Cir. 2018) (internal quotations omitted).
A. Past Persecution
The Ferchichis argue that the IJ and the Board failed to properly consider the
Algerian government’s persecutory motive toward persons with spina bifida as the
central reason for refusal to treat T.F.
Our circuit has held that an “absence of [a] nexus between the conditions and
a persecutory motive” negates a finding of inadequate medical care as persecution.
Perez-Rodriguez v. Barr, 951 F.3d 972, 975 (8th Cir. 2020) (holding that inadequate
mental institutions were not persecutory toward persons with schizophrenia when
all individuals entering the institution faced the same conditions); Ixtlilco-Morales
v. Keisler, 507 F.3d 651, 655–56 (8th Cir. 2007) (holding that inadequacies in
Mexico’s healthcare for treating HIV positive individuals was not an attempt to
persecute those with HIV); see also Ramage v. Barr, 793 F. App’x 38, 40 (2nd Cir.
2019) (unpublished summary order) (holding that although medical care was more
limited generally, the petitioners failed to show specific examples of persons
similarly situated to petitioners who were deprived of or denied medical care).
The Ferchichis argue that, unlike the cases cited above, they submitted
sufficient record evidence to demonstrate a nexus between the inadequate medical
care and the Algerian government’s persecutory motive. In particular, the Ferchichis
submitted several Algerian news articles highlighting the difficulties that other
Algerian families experienced in receiving treatment for their children with spina
bifida. Although the articles acknowledged the parents’ difficulty in receiving
treatment for spina bifida, they also stated that the treatment is “impossible in
Algeria because of the limited expertise” in the field. A.R. 717. Therefore, the
statements in these articles only reinforce the IJ’s findings that the Algerian medical
community lacked the expertise and resources to effectively treat spina bifida.
Moreover, the surrounding evidence in the record illustrated that Algerians generally
have difficulty obtaining medical care in Algeria, not just those with spina bifida.

-- 9 of 13 --

-10-
As Moudjahed highlighted in his affidavit, the Ferchichis struggled to find a hospital
that would deliver T.F. because “[i]t is difficult to gain access to hospitals in Algeria
because the public health system is under funded. Public hospitals are over-crowded
and often require a political connection to gain admission.” Id. at 469.
Substantial evidence supported the Board’s conclusion that T.F.’s lack of care
stemmed from the medical communities’ lack of expertise and resources to treat
spina bifida. As Moudjahed admitted in his affidavit, “[I]t is common for Algerian
doctors to shy from treating severe cases of spina bifida, which pose risk of
complications and require advanced technologies.” Id.at 470. Notably, many doctors
from whom the Ferchichis sought help did meet and discuss T.F.’s condition.
Unfortunately, their medical advice was often uninformed, ineffective, or delayed.
Moreover, as admitted in Moudjahed’s affidavit, “[T]he Algerian health care
system requires the government to pay for costs of treatment, whether performed in
Algeria or abroad, [and] the Ministry of Health often refuses to send citizens abroad
for expensive treatments.” Id. at 473. The Algerian government did not prevent T.F.
from leaving Algeria to receive treatment. Instead, once T.F.’s family had the ability
to pay for his treatment abroad, he was free to travel to the United States to do so.
On this record, no reasonable adjudicator would conclude Algeria’s
inadequate medical care for persons with spina bifida resulted from governmental
persecution of such persons. Instead, the record overwhelmingly supports the
Board’s findings that the denial of care was linked to inadequacies in Algeria’s
health care system at large and the government’s reluctance to pay for international
treatment. Consequently, the Board had substantial evidence to conclude that the
Ferchichis did not establish that they were subject to past persecution on account of
T.F.’s status as a person with spina bifida.
B. Future Prosecution
A fear of future persecution is deemed to be “well-founded” when it is both
“subjectively genuine and objectively reasonable.” Feleke v. INS, 118 F.3d 594, 598

-- 10 of 13 --

-11-
(8th Cir. 1997). A fear is objectively reasonable if it has a “basis in reality” and is
“neither irrational nor so speculative or general as to lack credibility.”
Perinpanathan v. INS, 310 F.3d 594, 598 (8th Cir. 2002). Moreover, petitioners
“must demonstrate through credible, direct, and specific evidence that a reasonable
person in [their] position would fear persecution.” Zheng v. Gonzales, 415 F.3d 955,
960 (8th Cir. 2005) (internal quotation omitted).
“Persecution is an extreme concept that involves severe suffering or harm,
such as the infliction or threat of death, torture, or injury to one’s person or freedom,
on account of a protected characteristic.” Calvo-Tino, 107 F.4th at 865–66 (internal
quotations omitted). “Absent physical harm, . . . incidents of harassment, unfulfilled
threats of injury, and economic deprivation are not persecution.” Quomsieh v.
Gonzales, 479 F.3d 602, 606 (8th Cir. 2007). We have rejected claims of persecution
in cases “only involving cumulative social indignities, low-level harassment, or
verbal insults.” Calvo-Tino, 107 F.4th at 866. In Litvinov v. Holder, we held that
“generalized testimony” about the “government’s alleged interest in [petitioner’s]
location and various human rights reports regarding” the government were
insufficient to rise to the level of persecution in asylum. 605 F.3d 548, 554 (8th Cir.
2010).
The Ferchichis argue that their actions in Algeria and open disagreement with
the government’s treatment of T.F.’s condition has created a fear of future
persecution arising from an imputed political opinion. In support, the Ferchichis
point to instances when plain-clothes Algerian police officers came by their
residence in Algeria to question their family members about their whereabouts. They
also highlight country condition reports that document how people who criticize the
Algerian government are tortured, arrested, prosecuted for defamation, or otherwise
disappear at the hands of the government.
On this record, the Board had substantial evidence to conclude that the visits
by the Algerian government officials were not persecutory. The Ferchichis admitted
that their sons and other family members were not verbally or physically threatened

-- 11 of 13 --

-12-
and otherwise had not been subject to the speculative claims of torture, arrest, or
disappearance. See Tojin-Tiu, 33 F.4th at 1024 (“That [the petitioner’s] mother and
sisters remained in Guatemala unharmed further undermines the claimed
reasonableness of [the] fear.”). Mere harassment that does not materialize into
tangible threats or physical harm is generally insufficient for a showing of well-
founded fear. See Litvinov, 605 F.3d at 554–55. The undisputed safe condition of all
their family members since their departure, including their sons, undermines their
claim of a well-founded fear of future persecution.
Likewise, the country condition reports would not cause a reasonable
adjudicator to conclude contrary to the Board’s finding that the Ferchichis did not
have a well-founded fear of future persecution. The Ferchichis rely on precedent in
which we found a country condition report to be direct and specific evidence to
support a fear of persecution. See Bellido v. Ashcroft, 367 F.3d 840, 845 (8th Cir.
2004). However, in Bellido, we found that the State Department report documenting
government abuses against labor union leaders was sufficiently direct evidence when
the government had previously arrested the petitioner for being a union leader and
participating in union activities. Id.
Here, no link exists between the country conditions reports and the Ferchichi
family. The country condition reports concern suspicions that the government
arrested, tortured, or otherwise caused the disappearance of persons suspected of
terrorism against the government during the 1990s. Moreover, the Ferchichis fail to
show that their criticism of the Algerian government’s handling of T.F.’s treatment
may subject them to Algerian defamation laws. Their experience while in Algeria
makes this claim entirely speculative and otherwise doubtful. As the IJ and Board
noted, T.F.’s case gained the most notoriety while the Ferchichis were in Algeria.
Nonetheless, no member of the Ferchichi family was subjected to defamation laws,
imprisonment, or torture by the Algerian government. Moreover, there was no
evidence presented that the Algerian press who covered T.F.’s story or the Algerian
president’s sister incurred any penalty either. See Kimumwe v. Gonzales, 431 F.3d
319, 323 (8th Cir. 2005) (finding that petitioner did not have well-founded fear of

-- 12 of 13 --

-13-
future persecution when the government did not threaten or abuse him during his
time in the country). Accordingly, substantial evidence supported the Board’s
decision that the Ferchichis failed to show a well-founded fear of future persecution
in Algeria.
III. Conclusion
For the foregoing reasons, we deny the Ferchichis’ petition.
______________________________

-- 13 of 13 --