                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 14a0618n.06

                                           Nos. 13-3589/4119

                            UNITED STATES COURT OF APPEALS                                      FILED
                                 FOR THE SIXTH CIRCUIT                                  Aug 13, 2014
                                                                                    DEBORAH S. HUNT, Clerk
ANEES MOUSTAFA FAHMY,                  )
                                       )
       Petitioner,                     )                       ON PETITION FOR REVIEW
                                       )                       FROM THE BOARD OF
v.                                     )                       IMMIGRATION APPEALS
                                       )
ERIC H. HOLDER, JR.,                   )                               OPINION
Attorney General,                      )
                                       )
       Respondent.                     )
_______________________________________)



Before:          GIBBONS and McKEAGUE, Circuit Judges; and LAWSON, District Judge.*

       DAVID M. LAWSON, District Judge. Anees Moustafa Fahmy, an Egyptian citizen, seeks

review of the denial by the Board of Immigration Appeals (BIA) of his motion to reopen and the

denial by an immigration judge (IJ) of his petition for withholding of removal under the Immigration

and Nationality Act (“INA”) and the Convention Against Torture (“CAT”), resulting in a final order

of removal by the BIA. Fahmy contends that he would be persecuted if he returned to Egypt

because of his mental illness and the political activities of his uncle, who died in 1987. Because we

find that the decision of the IJ as supplemented by the BIA’s decision is supported by substantial

evidence, we deny the petitions.




             *
             The Honorable David M. Lawson, United States District Judge for the Eastern District of
     Michigan, sitting by designation.
Nos. 13-3589/4119, Fahmy v. Holder


                                     I. Facts and Proceedings

A. Background

        Fahmy, a 41-year-old citizen of Egypt, was admitted to the United States as a non-immigrant

visitor on June 24, 1995. His parents and two brothers are United States citizens. He overstayed

his visa. Fahmy concedes that he is removable, but he contends that he should not be sent back to

his country of citizenship, because he likely will be tortured if he returns. His fear is based in part

on his mental illness, which emerged when he was 17 years old, but is presently under control with

the benefit of a prescription drug that is not available in Egypt. Fahmy believes that if he relapses,

he will be detained by Egyptian authorities and subjected to intolerable conditions of confinement.

He also fears that Egyptian authorities will seek retribution against him because of the activities of

his uncle, a journalist and political activist, who was imprisoned in Egypt for 17 years and tortured

because of his political beliefs. Fahmy contends that his uncle’s treatment at the hands of a prior

Egyptian regime hastened his death in 1987.

       An immigration judge (IJ) ordered Fahmy removed in abstentia in January 2000 because he

overstayed his non-immigrant visa in violation of INA section 237(a)(1)(B), 8 U.S.C.

§ 1227(a)(1)(B). Another IJ vacated that order in 2010 because Fahmy’s failure to appear for his

hearing was due to his involuntary commitment to a mental health institution before the scheduled

hearing. After conceding removability, Fahmy sought relief from removal in July 2010 in the form

of withholding of removal and protection under Article III of the CAT.

       Fahmy’s mental illness is well documented. At the merits hearing, Dr. Victor Ajluni, a

practicing psychiatrist, testified that he diagnosed Fahmy with paranoid schizophrenia, a condition

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Nos. 13-3589/4119, Fahmy v. Holder


that causes delusions and hallucinations and may lead a person to harm himself or others. Dr. Ajluni

explained that Fahmy has suffered from these symptoms in the past but is currently stable because

“he has a family that cares for him” and is treated with the prescription drug Seroquel. The medicine

has allowed Fahmy to maintain employment, and Dr. Ajluni said that he would relapse if he were

to stop taking Seroquel. Dr. Ajluni did not have any particular specialized knowledge about care

in Egypt, but a colleague told him that Seroquel is not available in Egypt, which he confirmed

through online research. He did not know whether Fahmy could be treated successfully with any

other medication if Seroquel were unavailable.

       Fahmy testified that he was born in Kuwait, visited Egypt during the summers, and went to

college in Egypt for three to four years. His mental illness, he said, first appeared when he was

17 years old while living in Kuwait. He began to hear voices in his head and had “weird thoughts”

that affected his behavior and attitude. Fahmy was hospitalized for a few days until he “came back

to [his] senses,” and then was released from the hospital.

       Fahmy said that his first “main episode” from schizophrenia took place in 1999 while he was

living with his parents in Lansing, Michigan. He said that he had heard voices for days, which told

him that he was an FBI agent and was supposed to arrest somebody. At a Meijer’s department store,

where he had worked, Fahmy approached a random individual, identified himself as an FBI agent,

and told the individual that he was under arrest. He grabbed the individual by the arm and escorted

him toward the exit until store employees intervened and calmed Fahmy down. Local police soon

arrived and placed Fahmy under arrest. Fahmy was transferred to a mental health facility, where

he was first diagnosed with paranoid schizophrenia.

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Nos. 13-3589/4119, Fahmy v. Holder


        Fahmy testified that he continued to hear voices, but was able to maintain employment.

However, he relapsed and was hospitalized after he lost his job and health insurance. This was the

first of three separate hospitalizations over the next several years. On two occasions, Fahmy turned

himself in to immigration authorities in New York and Detroit because he believed it was “wrong

for me to stay here in the United States illegally” and “wanted to get that off my conscience.” In

New York, he was transferred to Bellevue Hospital for mental health treatment. In Detroit,

immigration officials “kick[ed] [him] out of the Immigration office . . . and [told him] not to come

back.” His last major episode occurred in 2004 when Fahmy was transferred to Heritage Hospital

in Detroit.

        Fahmy also described several episodes that occurred before he arrived in the United States.

Once when he was 17 years old in Kuwait, he “wanted to live like people used to live in the past,”

so he stopped eating, talking, and taking medication, and walked in the desert for forty kilometers

until he came upon some Bedouin people and decided to return home. Fahmy also said that he

jumped off a bridge in Cairo, Egypt in 1994. Although the authorities saw him jump off the bridge,

they did not detain him.

        Fahmy also explained that the Egyptian police arrested his uncle, Ismael Almahdawy, a well-

known journalist in Egypt, and prosecuted and tortured him after he criticized the government.

Fahmy also testified that his cousin (his uncle’s son) was tortured and beaten by the Egyptian army

after they learned that his cousin shared similar political views as his father.

        Fahmy reported that his sister still lives in Egypt with her husband and three children. She

has never been tortured or prosecuted. Notably, she is married to a pharmacist, who told Famhy that

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Nos. 13-3589/4119, Fahmy v. Holder


his medication, Seroquel, is not available there. Fahmy said that he would only be able to live with

her temporarily because her husband had been diagnosed with hepatitis C, which is not being

properly treated.

       Anissa Abdelhaleem Almahdawy and Mostafa Ali Fahmi, Fahmy’s mother and father,

confirmed much of Fahmy’s testimony. Anissa explained that her family moved to Kuwait to avoid

torture in Egypt due to the political opinions of her brother, Ismael Almahdawy. Ismael passed

away in 1987 after spending between 17 and 20 years in prison and mental institutions. Mostafa

said that Ismael, a communist, was followed and persecuted in Egypt because he advocated the

overthrow of the Egyptian government. Anissa said that Ismael received electrical shocks, which

made him the “same as an animal.” Anissa also testified that her nephew, Ismael’s son, started

“acting weird” when he began mandatory military services and the authorities tortured him because

of his behavior. However, Anissa acknowledged that she never experienced any harm from the

government when she lived in Egypt, although she lived in fear until she left in 1960.

       The IJ also considered written evidence, including documentation of Fahmy’s mental illness

and treatment, declarations from his psychiatrist and family members, and two reports from

Amnesty International that address human rights abuses in Egypt after the ouster of former President

Hosni Mubarak. One, “Time for Justice,” reported that the Egyptian prison system was plagued by

inadequate medical care and poor living conditions, and that detainees experience torture and severe

physical and psychological mistreatment. The report did not address police or prison officials’

attitudes or behavior toward the mentally ill. Fahmy also submitted documentation about his uncle’s




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Nos. 13-3589/4119, Fahmy v. Holder


mistreatment and death, including articles in Egyptian newspapers describing his past mistreatment

due to his political activism.

B. Immigration Judge’s Decision

        The IJ found Fahmy’s testimony credible as well as the testimony of his mother, father, and

psychiatrist. He also found that Fahmy is a member of social groups consisting of mentally ill

Egyptians and his family. The IJ recognized that Fahmy needed Seroquel to treat his severe mental

illness but found no evidence that the Egyptian government did anything to make that drug

unavailable there. He also pointed out that the Egyptian government was taking steps to address the

inadequate medical care provided to administrative detainees.

       The IJ also found that Fahmy did not show that any family member was ever tortured or

persecuted in Egypt based upon the involvement of his uncle or cousin and their opposition to the

government of Egypt. The IJ noted that Fahmy has spent time in Egypt without any persecution or

torture based upon his mental illness or his relationship with his family. There was no evidence that

anyone connected to the Egyptian government would torture him if he returned to Egypt. Therefore,

he denied relief.

C. The BIA Decisions

       The BIA agreed with the IJ that “the country conditions evidence in the record does not

establish that the respondent is more likely than not to be persecuted on account of his mental illness

or his family ties in Egypt.” Although long-term prisoners receive inadequate medical care and may

face torture or other ill-treatment, the BIA found that Fahmy failed to establish that he is likely to

be detained if he returns to Egypt. First, there was insufficient evidence that the unavailability of

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Nos. 13-3589/4119, Fahmy v. Holder


Fahmy’s medication will result in his detention and mistreatment. Although the BIA noted the

existence of inadequate medical treatment in detention facilities in Egypt, it found that the record

does not establish that such harm is “sufficiently widespread” such that Fahmy was more likely than

not to be tortured. Second, Fahmy did not establish that he was politically active or that he would

be sought “fifteen years” after his uncle’s death on account of his family ties. The BIA upheld the

IJ’s decision.

       On July 22, 2013, Fahmy filed with the BIA a timely motion to reopen, arguing that

conditions in Egypt have changed. He cited the military’s removal of a democratically-elected

president, which resulted in significant deterioration in the country. Fahmy argued that the political

breakdown in Egypt would make it more difficult for him to receive adequate medical treatment and,

as a result, he would be more susceptible to persecution or torture if he returned to Egypt.

       The BIA denied Fahmy’s motion to reopen. Although it recognized the existence of

“general violence” in Egypt relating to the overthrow of the Muslim Brotherhood government by

the military, the BIA found that the political and social unrest presently extant in Egypt approximate

the same conditions that existed at the time of Fahmy’s 2012 hearing. The BIA also concluded that

Fahmy failed to establish “exceptional circumstances” warranting the BIA to reopen his case on its

own motion.

       Famhy timely filed a petition for review of the denial of his requests to withhold removal

under the INA and CAT, and the denial of his motion to reopen his proceedings. We consolidated

both petitions in this appeal.




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Nos. 13-3589/4119, Fahmy v. Holder


                                           II. Discussion

       Where, as here, the BIA incorporated the IJ’s decision into its own decision, the Court

reviews the decision of the IJ, as supplemented by the BIA, as the final administrative order. Ceraj

v. Mukasey, 511 F.3d 583, 588 (6th Cir. 2007). Factual findings “must be sustained if the

determination is ‘supported by reasonable, substantial, and probative evidence on the record

considered as a whole.’” Kaba v. Mukasey, 546 F.3d 741, 747 (6th Cir. 2008) (quoting INS v.

Elias–Zacarias, 502 U.S. 478, 481 (1992)); see also 8 U.S.C. § 1252(b)(4)(B) (stating that the IJ’s

factual findings “are conclusive unless any reasonable adjudicator would be compelled to conclude

to the contrary”). The IJ’s application of legal principles to undisputed facts is reviewed de novo.

Mapouya v. Gonzales, 487 F.3d 396, 405-06 (6th Cir. 2007).

A. Withholding of Removal

       “To establish a claim for withholding of removal under section 2[3]1(b)(3)(A) of the Act,

an applicant must demonstrate a clear probability that his life or freedom would be threatened in the

country directed for removal on account of his race, religion, nationality, membership in a particular

social group, or political opinion.” Shan Sheng Zhao v. Holder, 569 F.3d 238, 245 (6th Cir. 2009)

(citing INS v. Stevic, 467 U.S. 407, 430 (1984)); see also Khozhaynova v. Holder, 641 F.3d 187,

192-93 (6th Cir. 2011). Persecution is defined as “‘the infliction of harm or suffering by the

government, or persons the government is unwilling or unable to control, to overcome a

characteristic of the victim.’” Urbina-Mejia v. Holder, 597 F.3d 360, 364-65 (6th Cir. 2010)

(quoting Khalili v. Holder, 557 F.3d 429, 436 (6th Cir. 2009)).




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Nos. 13-3589/4119, Fahmy v. Holder


         The IJ found, and the BIA affirmed, that Fahmy is a member of two particular social groups:

his family and those suffering from mental illness in Egypt. Membership in the same family “is

widely recognized by the caselaw” as a particular social group. Al-Ghorbani v. Holder, 585 F.3d

980, 995 (6th Cir. 2009) (collecting cases). Although we have “question[ed] whether mentally ill

persons constitute a particular social group,” Berisha v. Holder, 558 F. App’x 555, 556 (6th Cir.

2014) (per curiam), we need not discuss the point at length because substantial evidence supports

the IJ’s finding that Fahmy did not establish a clear probability of persecution on account of his

family or mental illness.

         The BIA found that Fahmy failed to show a likelihood that the Egyptian authorities would

persecute him based on his relationship to his uncle or cousin. Fahmy’s disagreement is based on

the fact that Egyptian authorities tortured his uncle and cousin because of their political opinions.

However, the record does not “compel[]” a “reasonable adjudicator” to subscribe to the view that

Fahmy himself will be persecuted, 8 U.S.C. § 1252(b)(4)(B); to the contrary, the record contains

substantial evidence to support the BIA’s finding. There is no evidence that Fahmy or his immediate

family have experienced any persecution based on his uncle’s political views. Fahmy lived in Egypt

for three or four years while attending college and did not experience any persecution on account

of his uncle’s political opinions. Fahmy’s father visited Egypt in 2006 without facing any

persecution and his sister, brother-in-law, and their children live in Egypt currently and have never

experienced any harm. Additionally, Fahmy’s uncle died over 25 years ago and faced persecution

under a different regime. And there is no evidence that Fahmy shares his uncle or cousin’s political

views.

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Nos. 13-3589/4119, Fahmy v. Holder


       Substantial evidence also supports the BIA’s finding that Fahmy did not establish a

likelihood of persecution by Egyptian authorities because of his mental illness. Fahmy’s main

argument is that his critical medication, Seroquel, is unavailable in Egypt, and therefore he likely

will relapse and subject himself to heightened scrutiny by the Egyptian authorities, and then face

arrest and detention for his “weird” behavior. But there is no evidence in the record that the

Egyptian government is denying Seroquel to people with paranoid schizophrenia in order to

persecute the mentally ill and Fahmy conceded that the unavailability of the drug had nothing to do

with him personally. “Because a critical element of persecution is motive, a petitioner ‘must provide

some evidence of it, direct or circumstantial.’” Al-Ghorbani, 585 F.3d at 997 (quoting Elias-

Zacarias, 502 U.S. at 483). The absence of any evidence of motive is fatal to Fahmy’s claim. See

Kholyavskiy v. Mukasey, 540 F.3d 555, 573-74 (7th Cir. 2008) (finding that the petitioner failed to

establish that the unavailability of Paxil and Klonopin in Russia was the result of the Russian

government’s attempt to injure the petitioner or, more generally, individuals with mental illness);

Soobrian v. Atty. Gen. of U.S., 388 F. App’x 182, 191 (3d Cir. 2010) (holding that the petitioner did

not establish grounds for withholding of removal because “the alleged persecution appears to be a

simple lack of resources for the mentally ill in Guyana, not an intent on the part of the government

to persecute mentally ill persons.”).

       Moreover, Fahmy’s fear of arrest and detention if he exhibits symptoms of mental illness is

highly generalized. A generalized fear will not establish the threat to an alien’s life or freedom that

section 231(b)(3)(A) requires. Cf. Dieng v. Holder, 698 F.3d 866, 872 (6th Cir. 2012) (holding that

to qualify for asylum, “[t]he fear of future persecution must be based on reasonably specific

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Nos. 13-3589/4119, Fahmy v. Holder


information showing a real threat to individual persecution, not mere assertions of fear of possible

persecution or speculative conclusions” (quoting Mapouya, 487 F.3d at 412)). There is no evidence

in the record that Egyptian authorities routinely arrest and detain people with mental illness. To the

contrary, Egyptian authorities observed Fahmy jump off a bridge during a schizophrenic episode

while he attended college in Egypt, but did not arrest or detain him.

        Substantial evidence supports the BIA’s decision to deny Fahmy withholding of removal

under section 1231(b)(3)(A).

B. Convention Against Torture

        The CAT provides protection to individuals facing removal who are likely to be tortured if

returned to their home country. To prevail on a claim under the CAT, the petitioner must prove that

it is more likely than not that he will be tortured if removed to the designated country. 8 C.F.R.

§ 208.16(c)(2); Ramaj v. Gonzales, 466 F.3d 520, 532 (6th Cir. 2006). The regulations define

torture as the intentional infliction of pain or suffering “by or at the instigation of or with the consent

or acquiescence of a public official or other person acting in an official capacity” for a variety of

purposes, such as coercing a confession, or as punishment for an act, or due to discrimination. 8

C.F.R. § 208.18(a)(1). “‘An applicant for relief need not show that the harm she [or he] faces is

based on one of the five grounds . . . required under the INA, but rather must establish a

particularized threat of torture.’” Bi Xia Qu v. Holder, 618 F.3d 602, 610 (6th Cir. 2010) (quoting

Cruz-Samayoa v. Holder, 607 F.3d 1145, 1155 (6th Cir. 2010)). “‘Torture,’ in any of its myriad

manifestations, must entail the intentional infliction of severe mental or physical pain upon an

individual . . . .” Alhaj v. Holder, 576 F.3d 533, 539 (6th Cir. 2009) (citation omitted).

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Nos. 13-3589/4119, Fahmy v. Holder


       Fahmy argues that detainees in Egypt face torture. However, he has not established that it

is more likely than not that Egyptian authorities will detain him. There is simply no evidence in the

record that Egyptian authorities respond to mental illness through incarceration rather than

treatment.

       Even if Fahmy were detained, there is no evidence in the record that Egyptian authorities

target mentally ill inmates for torture. Although prison conditions in Egypt may be poor, the reports

in the record do not indicate that mentally ill inmates are singled out for torture for discriminatory

reasons or as a form of punishment. See Lysaire v. Att’y Gen. of U.S., 368 F. App’x 329, 331 (3d

Cir. 2010) (per curiam) (holding that the petitioner with mental illness did not qualify for relief

under the CAT because all detainees experienced “terrible” prison conditions, which were not

targeted at mentally ill people); Cherichel v. Holder, 591 F.3d 1002, 1017 (8th Cir. 2010) (holding

that detention in “squalid, overcrowded cells without adequate food, water, sanitation, exercise, or

medical treatment” in Haitian prisons does not constitute torture under CAT because there is no

evidence that Haitian authorities have the specific intent to inflict pain or suffering); Villegas v.

Mukasey, 523 F.3d 984, 988-89 (9th Cir. 2008) (stating that although Mexican mental patients are

“housed in terrible squalor,” there is no evidence that Mexican officials created those conditions for

the specific purpose of inflicting suffering upon the patients and not because of “historical gross

negligence and misunderstanding of the nature of psychiatric illness”). The BIA’s decision to deny

relief under the CAT is supported by substantial evidence.




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Nos. 13-3589/4119, Fahmy v. Holder


C. Motion to Reopen

       We review the BIA’s denial of a motion to reopen for abuse of discretion. Liu v. Holder,

560 F.3d 485, 489 (6th Cir. 2009). An abuse of discretion occurs if the decision to deny a motion

to reopen “‘was made without a rational explanation, inexplicably departed from established

policies, or rested on an impermissible basis such as invidious discrimination against a particular

race or group.’” Id. at 490 (quoting Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir. 2005)). The

Attorney General’s discretion to reopen a matter is “broad.” INS v. Doherty, 502 U.S. 314, 323

(1992). The evidence sought to be offered at the reopened proceeding must be “material and . . . not

available and could not have been discovered or presented at the former hearing.” Sako v. Gonzalez,

434 F.3d 857, 863 (6th Cir. 2006) (quoting Allabani, 402 F.3d at 675).

       In his motion, Fahmy argued that the BIA should reopen his case because political conditions

in Egypt, including the overthrow of the democratically elected president, would make it more likely

that he would not receive the medical care that he needs. The BIA reasoned that the evidence that

Fahmy submitted with his motion — documenting political and social unrest in Egypt — was similar

to the evidence that he submitted during his removal proceedings. The BIA concluded that Fahmy’s

evidence did not alter Fahmy’s fear of harm based on his mental illness or his uncle’s political

activity and, accordingly, found that the evidence would be unlikely to change its determination that

Fahmy was ineligible for withholding of removal. Fahmy has offered no evidence that the BIA’s

conclusion was “arbitrary, irrational, or contrary to law.” Daneshvar v. Ashcroft, 355 F.3d 615, 625-

26 (6th Cir. 2004).




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Nos. 13-3589/4119, Fahmy v. Holder


                                     III. Conclusion

      For the foregoing reasons, the petitions for review are DENIED.




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