Mark Berisha v. Eric Holder, Jr.

Filing

Per Curiam OPINION filed : DENIED Berisha s petition for review, decision not for publication. Alice M. Batchelder, Chief Circuit Judge; David W. McKeague, Circuit Judge and Solomon Oliver , Jr., Chief District Judge for the Northern Ditrict of Ohio, sitting by designation.

Case: 13-3490

Document: 006111984461

Filed: 03/07/2014

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0181n.06
No. 13-3490

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Mar 07, 2014
DEBORAH S. HUNT, Clerk

MARK VASEL BERISHA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.

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ON PETITION FOR REVIEW
FROM THE UNITED STATES
BOARD OF IMMIGRATION
APPEALS

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

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The Honorable Solomon Oliver, Jr., Chief United States District Judge for the Northern
District of Ohio, sitting by designation.

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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.
Berisha’s asylum application was untimely.

The IJ determined that

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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