The Sixth Circuit Court of Appeals affirmed a decision that a person subject to removal from the United States cannot assert mental illness as a basis for seeking asylum in order to avoid being sent to one’s home country. In the appeal, Berisha v. Holder, No. 13-3490 (Ct. App. 6th Cir. 2014), Mark Vasel Berisha, a native and citizen of Albania, sought to have the ruling of Board of Immigration Appeal (BIA)- which itself upheld the Immigration Judge’s (IJ) refusal to grant asylum – reviewed by the federal appellate court.
The Department of Homeland Security served Mr. Berisha with a notice to appear before an IJ, 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. While Mr. Berisha conceded the issue of removal, he claimed that such removal should be withheld on the ground that he harbored a reasonable fear of persecution if he were to return to his native Albania. To support his claim, he asserted to the IJ that he suffered from mental illness and that the stigma attached to such condition in Albania would subject him to persecution.
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). Although he left Albania during its civil war in 1997, he does not allege that he was persecuted in the past. Accordingly in order to secure asylum here, he must demonstrate (1) that he has a fear of persecution in his home country on account of . . . membership in a particular social group . . .; (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."
But the distinction of having a mental illness does not place someone in a “particular social group” as that term is defined by law. Mr. Berisha could not establish that he faced a reasonable probability of persecution. And his argument that he cannot secure adequate treatment for his mental illness in Albania lacked any proof that such psychological services would not be available to him there. Furthermore, both the IJ and BIA noted 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. So even if the mentally ill did constitute a “social group” which could qualify for asylum, the conditions in Albania would not warrant that an immigration court find that such justifies a grant of asylum.
The Shulman Law Group, LLC has successfully handled and effectuated many asylum cases. The firm and its staff are well-versed in the nuances and underpinnings of claims of persecution involving individuals from many countries. What sets our firm apart from other law offices is that we skillfully prepare comprehensive applications that include country reports, autobiographical statements, affidavits from friends, family and colleagues, psychological evaluations, and expert witness testimonials--strategies that predispose the applicant to a higher probability of an approval. Our firm maintains an up-to-date knowledge on the latest case law which affects the manner in which these cases are reviewed.