Mark Berisha v. Eric Holder, Jr.

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 7, 2014
• Docket: 13-3490
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 14a0181n.06

No. 13-3490 FILED UNITED STATES COURT OF APPEALS Mar 07, 2014 FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk

MARK VASEL BERISHA, ) ) Petitioner, ) ) ON PETITION FOR REVIEW v. ) FROM THE UNITED STATES ) BOARD OF IMMIGRATION ERIC H. HOLDER, JR., Attorney General, ) APPEALS ) Respondent. ) ) )

BEFORE: BATCHELDER, Chief Judge; McKEAGUE, Circuit Judge; and OLIVER, District Judge.*

PER CURIAM. Mark Vasel Berisha, a native and citizen of Albania, petitions for review

of an order of the Board of Immigration Appeals (“BIA”), dismissing his appeal from the denial

of his application for asylum and withholding of removal. We deny the petition.

After leaving Albania in 1997 due to the civil war, Berisha entered the United States

without inspection in 1999. Ten years later, Berisha filed an application for asylum and

withholding of removal based on his membership in a particular social group — the mentally ill.

The Department of Homeland Security served Berisha with a notice to appear, charging him with

removability under Section 212(a)(6)(A)(i) of the Immigration and Nationality Act (“INA”), 8

U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without being admitted or

 The Honorable Solomon Oliver, Jr., Chief United States District Judge for the Northern District of Ohio, sitting by designation. No. 13-3490 Berisha v. Holder

paroled. Berisha admitted the factual allegations set forth in the notice to appear and conceded

removability as charged.

Following a hearing, an immigration judge (“IJ”) denied Berisha’s application for asylum

and withholding of removal and ordered his removal to Albania. The IJ determined that

Berisha’s asylum application was untimely. Assuming the timeliness of Berisha’s asylum

application, the IJ denied asylum on the merits as well as withholding of removal because

mentally ill persons do not constitute a particular social group cognizable under the INA.

Further, even if Berisha were in a cognizable group, he failed to demonstrate a well-founded fear

of persecution if he were removed to Albania. Berisha appealed the IJ’s decision. Dismissing

the appeal, the BIA agreed with the IJ that Berisha failed to establish membership in a particular

social group or a well-founded fear of persecution.

This timely petition for review followed. “Where the Board adopts the IJ’s decision and

supplements that decision with its own comments, as in this case, we review both the BIA’s and

the IJ’s opinions.” Hachem v. Holder, 656 F.3d 430, 434 (6th Cir. 2011). Questions of law are

reviewed de novo, while factual findings “are conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see Khalili v.

Holder, 557 F.3d 429, 435 (6th Cir. 2009).

To obtain asylum, Berisha must establish that he is a refugee — that he is unable or

unwilling to return to Albania “because of persecution or a well-founded fear of persecution on

account of . . . membership in a particular social group.” 8 U.S.C. § 1101(a)(42)(A); see also

8 U.S.C. § 1158(b)(1)(B)(i). Because Berisha does not claim past persecution, he must

“establish a well-founded fear of future persecution by demonstrating: (1) that he has a fear of

persecution in his home country on account of . . . membership in a particular social group . . . ;

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(2) that there is a reasonable possibility of suffering such persecution if he were to return to that

country; and (3) that he is unable or unwilling to return to that country because of such fear.”

Pilica v. Ashcroft, 388 F.3d 941, 950 (6th Cir. 2004). “A well-founded fear of persecution thus

has both a subjective and objective component: an alien must actually fear that he will be

persecuted upon return to his country, and he must present evidence establishing an ‘objective

situation’ under which his fear can be deemed reasonable.” Id. Berisha’s withholding of

removal claim is analyzed under the same basic framework as his asylum claim, except that he

“must show a ‘clear probability’ of persecution.” Dugboe v. Holder, 644 F.3d 462, 471-72 (6th

Cir. 2011).

Berisha claimed a well-founded fear of persecution on account of being a mentally ill

person. While we question whether mentally ill persons constitute a particular social group, see

Raffington v. INS, 340 F.3d 720, 723 (8th Cir. 2003) (holding that “the mentally ill are too large

and diverse a group to qualify”); see also Rreshpja v. Gonzales, 420 F.3d 551, 555 (6th Cir.

2005) (“[A]lmost all of the pertinent decisions have rejected generalized, sweeping

classifications for purposes of asylum.”), we need not address that issue because substantial

evidence supports the conclusion that Berisha failed to establish a well-founded fear of

persecution on account of his mental illness. Berisha asserted that he would not receive adequate

treatment for his mental illness in Albania, but conceded that he knew nothing about current

conditions given his long absence. As the IJ and BIA pointed out, the country reports indicate

that Albania’s laws prohibit discrimination against persons with mental disabilities, that mental

health facilities have improved, and that there is no shortage of essential drugs. The record does

not compel the conclusion that there is a reasonable possibility, let alone a clear probability, that

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Berisha would suffer harm rising to the level of persecution on account of his mental illness if he

were to return to Albania. Accordingly, we deny Berisha’s petition for review.

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