Disha, Yllnis v. Gonzales, Alberto ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 9, 2006
Decided December 7, 2006
Before
Hon. DANIEL A. MANION, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 06-1542
YLLNIS DISHA, On Petition for Review of an Order of
Petitioner, the Board of Immigration Appeals
v. No. A98-152-064
ALBERTO R. GONZALES,
Respondent.
ORDER
Yllnis Disha petitions for review of a Board of Immigration Appeals’ order
affirming the Immigration Judge’s denial of his application for asylum, withholding
of removal, and relief under the Convention Against Torture. Disha alleged that he
fears future persecution in his native Albania because of his membership in a social
group he characterizes as “mental patients who cannot receive proper treatment in
Albania.” The IJ denied the application for asylum because he found it untimely.
The IJ also denied Disha’s applications for withholding of removal and relief under
the CAT because he found that Disha did not fall within the social group he
proposed and, even if he did, he would not suffer persecution or torture on account
of his membership in it. The BIA affirmed the IJ’s findings on appeal. We deny the
petition for review.
No. 06-1542 Page 2
Background
Although most of Disha’s family immigrated to the United States in
December 2001 after his mother received lawful permanent resident status through
the visa lottery, Disha stayed behind because he was more than 21 years old and
not eligible for a visa. See 8 U.S.C. § 1101(b)(1) (defining child entitled to benefits
under Act as under 21); 8 U.S.C. §§ 1153(c), (d) (explaining eligibility for visa
through diversity lottery). A year later, on December 12, 2002, Disha used a false
passport to enter the United States.
Disha came to the attention of immigration authorities after he was convicted
of a criminal offense in Illinois. In early 2004, Disha’s dissatisfaction with not
landing a job at a hotel in a Chicago suburb led to his conviction for harassing one
of the hotel’s human resources employees. Disha was sentenced to probation, and
in April 2005 his probation officer contacted immigration authorities, who arrested
him a month later. On June 27, 2005, more than two years after entering the
country, Disha applied for asylum, claiming persecution on account of his
membership in a social group.
At his hearing, Disha testified that he developed a mental illness after his
family left Albania. He testified that he “was very sick,” was unable to sleep, and
had tried to commit suicide by cutting his fingers. Concerned, a neighbor took
Disha to see a psychiatrist in Tirana, Albania, where he was diagnosed with
“Psychiatric Affective Irregulation” and treated with anti-psychotic, anti-
depressant, and anti-anxiety medication, along with certain unspecified “shots.”
Disha’s aunt cared for him after his parents left, but they returned to Albania in
2001 when they learned of his illness. His mother stayed with him for six months
until he bought the fake passport and left Albania for the United States.
Disha’s attorney characterized the particular social group in this case as “all
mental patients who cannot receive proper medical treatment” in Albania. He then
provided evidence about the inadequacy of care for the mentally ill there. That
evidence consists of reports from two international organizations which confirm a
small number of psychiatric hospitals and psychiatrists serving the entire country.
The IJ remarked that it seemed like counsel was making an unsuccessful argument
“that people with mental disabilities are being persecuted in Albania because of a
lack of resources.”
Counsel then called Disha’s mother, Figuret, who described the medical
treatment her son received in the United States. According to Figuret, Disha was
still suffering from his mental condition when he came to the United States, and so
they began looking for a doctor for him. Disha’s sister eventually found a clinic that
would treat him, and the medical records he submitted show that he saw a
No. 06-1542 Page 3
psychiatrist there—Dr. Pravin Bhatt—as early as January 2004. Dr. Bhatt
diagnosed Disha with “Psychosis NOS,” and prescribed him Zyprexa, at 15
milligrams a day. Dr. Bhatt also indicated in several reports that Disha’s condition
was stable. For example, in November 2004, Dr. Bhatt reported that despite his
earlier diagnosis of psychosis NOS, he had “not seen any evidence of psychosis in
this patient.” In April 2005, Dr. Bhatt wrote that Disha “has been stable ever since
I have been seeing him.”
Figuret testified that she feared Disha’s condition would worsen if he were
forced to return to Albania. She emphasized that Disha needed his medicine to
remain stable, and that if he returned to Albania they would “make fun of him” and
“treat him bad.” When asked whether Zyprexa was available in Albania, Figuret
replied that it wasn’t, and she knew that because “if it was there, [Disha] was going
to have it.”
The IJ denied Disha’s application for asylum because it was untimely. Disha
did not file his application until June 2005, well beyond the one-year deadline after
his arrival in the United States in December 2002. The IJ recognized that
extraordinary circumstances—Disha’s mental condition—could excuse his untimely
filing, at least for the period after his arrival before he received treatment. But the
IJ ultimately determined that, because Disha could have filed for asylum as early
as January 2004 (when he began receiving medical treatment and his mental
condition stabilized), he did not file his June 2005 asylum application within a
reasonable time. The IJ also noted that given the other documents submitted on
Disha’s behalf (an I-765, I-730, and a visa petition—Form I-130), either he or his
family could have applied for asylum earlier. The IJ remarked that Disha filed the
asylum application only as a last resort after being placed in removal proceedings.
The IJ went on to say that, even if Disha’s application were timely, he failed
to establish that he had a well-founded fear of being persecuted if returned to
Albania. The IJ commented that Disha’s proposed social group—“all mental
patients who cannot receive proper medical treatment in Albania”—was too broad
to constitute a cognizable social group under the definition of “refugee.” And, the IJ
continued, even if Disha were assumed to have proposed a cognizable social group,
he would not belong to that group because he received treatment in Albania. The IJ
added that, even if the proposed group were cognizable, and even if Disha were in
it, the evidence did not establish that he would be persecuted on account of it.
Because Disha did not meet the lower burden of proof required for asylum, the IJ
concluded that he could not meet the more stringent standards for withholding of
removal or relief under the CAT.
Disha appealed, arguing among other things that the IJ erred as a matter of
law in ruling that the proposed social group was too broad to be cognizable. The
No. 06-1542 Page 4
BIA determined that Disha failed to challenge the IJ’s finding that his asylum
application was untimely and summarily affirmed that finding. The BIA then
sidestepped whether the social group Disha proposed was cognizable but agreed
with the IJ’s conclusion that even if it were, Disha did not prove that he would be
persecuted or tortured on account of his membership in it if returned to Albania.
By noting that the evidence was insufficient to show that Disha could not receive
treatment if returned to Albania, the BIA also implicitly agreed with the IJ that
Disha did not belong to the social group he proposed.
Discussion
Disha argues that the BIA erred in determining that he waived his asylum
claim by not challenging the IJ’s finding that his application was time-barred. He
recognizes that he has a jurisdictional problem because 8 U.S.C. § 1158(a)(3),
together with § 1158(a)(2)(B), preclude judicial review of any finding that an alien’s
asylum application was untimely. See, e.g., Zaidi v. Ashcroft, 377 F.3d 678, 681
(7th Cir. 2004). But he insists that whether “exceptional circumstances” excuse an
untimely application is a question of law over which the REAL ID Act of 2005
provides this court with jurisdiction. He is wrong. As this court explained in Vasile
v. Gonzales, 417 F.3d 766, 768-69 (7th Cir. 2005), under the REAL ID Act of 2005,
Pub. L. No. 109-13, 119 Stat. 231, § 106(a)(1)(iii), determinations about whether
“exceptional circumstances” exist cannot be shoehorned into the “question of law”
category and are thus are insulated from review by § 1158(a)(3). Disha’s arguments
that the BIA erred in analyzing his claim for asylum are thus beyond review. See
Vasile, 417 F.3d at 769.
Although the merits of Disha’s asylum claim are not reviewable, this court
can nevertheless review them as they pertain to his claim for withholding of
removal. See Zaidi, 377 F.3d at 681; Nigussie v. Ashcroft, 383 F.3d 531, 534 (7th
Cir. 2004). Without addressing how he meets the stricter burden of proof for that
relief, Disha argues generally that “people who suffer from a mental illness”
constitute a social group. He does not identify any error on the part of the BIA,
however, and instead baldly asserts that this court should decide in the first
instance that he has proposed a cognizable social group.
But that argument is irrelevant. The BIA did not reach the question whether
Disha had proposed a cognizable social group because it ruled that, “even if” the
group was cognizable, Disha did not prove that he belonged to it or that he would
suffer future persecution on account of his membership in it. Disha does not
challenge those determinations and, consequently, provides no basis for reversing
the BIA’s decision. See Rehman v. Gonzales, 441 F.3d 506, 509 (7th Cir. 2006)
(explaining that “courts do not set aside agencies’ decisions unless mistakes cause
prejudice”); Ambati v. Reno, 233 F.3d 1054, 1062 (7th Cir. 2000) (seeing no reason to
No. 06-1542 Page 5
reverse where petitioners had not challenged the accuracy of BIA’s findings).
Moreover, the only case Disha cites to support his argument that we can
consider the mentally ill a social group, Tchoukhrova v. Gonzales, 404 F.3d 1181(9th Cir. 2005), was recently vacated by the Supreme Court on exactly this point,
Gonzales v. Tchoukhrova, 75 U.S.L.W. 3162 (U.S. Oct. 3, 2006). In Tchoukhrova,
the Ninth Circuit decided in the first instance that Russian children with cerebral
palsy (who are precluded from receiving public medical support), and their parents
who care for them, constitute a social group, and that the parent, spouse, and child
petitioners were entitled to withholding because of their membership in it. 404
F.3d at 1189-90. The Supreme Court remanded Tchoukhrova for further
consideration in light of Gonzales v. Thomas, 126 S.Ct. 1613 (2006) (per curiam),
which holds that a court of appeals, upon review of an administrative agency’s
decision, “is not generally empowered to conduct a de novo inquiry into the matter
being reviewed and to reach its own conclusions based on such an inquiry.” 126
S.Ct. at 1615 (internal quotation marks omitted). Thomas therefore vacated and
remanded the Ninth Circuit’s en banc decision that a particular family constituted a
social group for asylum purposes. See id. Thus, Disha’s assertion that this court
should determine in the first instance whether his proposed class constitutes a
social group runs directly contrary to Thomas. See Shao v. BIA, 465 F.3d 497, 503
(2d Cir. 2006) (remanding under Thomas for BIA to determine in first instance
whether having more children than Chinese law allows establishes a “well founded
fear of persecution” supporting an asylum claim); Ucelo-Gomez v. Gonzales, 464
F.3d 163, 170 (2d Cir. 2006) (remanding in light of Thomas for BIA to decide
whether affluent Guatemalans constitute a “particular social group” within
meaning of Immigration and Naturalization Act).
That said, it is doubtful that “mental patients who cannot receive proper
treatment in Albania” could constitute a “particular social group” for asylum
purposes. See Raffington v. INS, 340 F.3d 720, 723 (8th Cir. 2003) (rejecting claim
that mentally ill persons in Jamaica constitute a “particular social group” because
“the mentally ill are too large and diverse a group to qualify”). But it is Disha’s
failure to challenge the BIA’s ruling that he is not a member of his proposed class
that ultimately dooms his appeal. The petition for review is DENIED.