In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-1100 & 10-1101
R ASA JONAITIENE AND M ARIUS B UBENAS,
Petitioners,
v.
E RIC H. H OLDER, JR., Attorney General of
the United States,
Respondent.
On Petition for Review of the Orders
of the Board of Immigration Appeals.
Nos. A077-651-529, A077-495-492
A RGUED O CTOBER 28, 2010—D ECIDED S EPTEMBER 26, 2011
Before M ANION, R OVNER, and SYKES, Circuit Judges.
R OVNER, Circuit Judge. Rasa Jonaitiene and Marius
Bubenas were citizens of Lithuania in 2000, when each
gained entry into the United States through the use
of illegally-obtained visas. They do not dispute that
Bubenas, along with Jonaitiene’s brother Daruas
Daugela, arranged to obtain a United States visa from
2 Nos. 10-1100 & 10-1101
a man named Darius Reika. Bubenas used that visa to
come to the United States in March 2000, and Jonaitiene
followed in July of that year. Bubenas and Jonaitiene
have three children together, two born in Lithuania and
the third born in the United States.
Eventually, the United States government became
aware of the visa fraud scheme that included bribery of
a United States Foreign Officer in Lithuania to obtain
the visas, and the petitioners were both arrested and
charged in three counts of a nineteen-count indictment
in federal court. The petitioners agreed to cooperate in
the investigation and prosecution of other members of
the scheme. Based on that cooperation, the government
dismissed two counts of the superceding indictment
and filed a substantial assistance motion. Petitioners
pled guilty to the remaining count and were sentenced
to one year of probation. On June 17, 2008, the Depart-
ment of Homeland Security initiated removal pro-
ceedings against petitioners, charging them with remova-
bility for being inadmissible at the time of entry and
for having been convicted of a crime involving moral
turpitude. 8 U.S.C. § 1227(a)(1)(A), 1182(a)(7)(B)(i)(II),
and 1227(a)(2)(A)(i). The petitioners conceded their
removability, but sought relief from removal through
applications for asylum and withholding of removal.
Petitioners contend that they are fearful of returning
to Lithuania because of threats from Darius Reika,
who resides there, and because the Lithuanian govern-
ment is either unwilling or unable to protect them. In
their written statements as well as their testimony at
Nos. 10-1100 & 10-1101 3
the hearing, the petitioners detailed threatening phone
calls made to them by Reika after their arrest.
Jonaitiene’s brother, who had arranged for the pay-
ments to Reika for the visas and who also resides in
the United States, received threats from Reika as well,
and ultimately committed suicide. The petitioners also
introduced evidence that the Lithuanian newspapers
had published articles detailing their cooperation in
the government investigation into the visa fraud
scheme. They asserted that because of that cooperation,
they would be in danger from Reika if returned to Lithua-
nia. They also asserted that they would be considered
traitors in their country, but could not explain upon
questioning why a cooperating witness in a criminal
case would be considered a traitor, nor how such co-
operation in identifying fraud in the American embassy
would be considered a traitorous act against Lithuania.
In addition to the threats from Reika, the petitioners
provided evidence that after Jonaitiene’s threatening
calls, the door to Jonaitiene’s mother’s apartment was
set on fire in Lithuania. The petitioner’s children were
staying with Jonaitiene’s mother at that time. In
response to that fire, the United States government
brought the children and Jonaitiene’s mother to the
United States temporarily under Significant Public
Benefit Parole. The fire department investigated the
blaze, but according to the petitioners the police did not
do so.
The only evidence presented relating to the Lithuanian
government was their inadequate response with respect
4 Nos. 10-1100 & 10-1101
to Reika and the fire. When the visa fraud scheme was
first revealed, Reika was detained by the Lithuanian
police for two weeks but then released. No charges
were filed against Reika. Moreover, as was noted, the
petitioners argue that the police failed to investigate
the fire at the apartment.
The Immigration Judge (IJ) denied the request for
asylum, and the Board of Immigration Appeals (BIA)
affirmed in a separate opinion. The IJ held that the
harm that the petitioners feared in Lithuania was not on
account of a protected ground, and that no competent
evidence was presented to support the contention that
the government was complicit in the visa fraud or
would be supportive of the persons such as Reika that
the petitioners feared. The BIA echoed those holdings
in its separate opinion. It agreed that the petitioners
had failed to provide evidence of government
complicity, and noted that a personal dispute cannot
support a claim of asylum. Relying on our decision in
Jun Ying Wang v. Gonzales, 445 F.3d 993, 999 (7th Cir. 2006),
the BIA noted that the fear of retribution from co-defen-
dants for an alien’s cooperation with the United States
government, in exchange for a reduced sentence, is not
a well-founded fear based on a protected ground. Ac-
cordingly, the BIA held that the petitioners failed to
establish a nexus between the feared persecution and
a protected ground.
Where the BIA adopts the decision of the IJ and supple-
ments that decision with its own reasoning, we review
the IJ’s decision as supplemented. Kaharudin v. Gonzales,
Nos. 10-1100 & 10-1101 5
500 F.3d 619, 622 (7th Cir. 2007). Under the substantial
evidence test, we affirm the denial of asylum and of
withholding of removal by the IJ and BIA if it is “ ‘sup-
ported by reasonable, substantial and probative evi-
dence on the record considered as a whole.’ ” Wang, 445
F.3d at 997, quoting INS v. Elias-Zacarias, 502 U.S. 478,
481 (1992); Gjerazi v. Gonzales, 435 F.3d 800, 807 (7th
Cir. 2006).
In order to obtain asylum, the petitioners must
establish that they are refugees, which is defined as
persons unable or unwilling to return to their country
“because of persecution or a well-founded fear of per-
secution on account of race, religion, nationality, member-
ship in a particular social group, or political opinion.”
8 USC § 1101(a)(42)(A); Wang, 445 F.3d at 997;
Hernandez-Baena v. Gonzales, 417 F.3d 720, 722-23 (7th
Cir. 2005). The first part of that definition may be prob-
lematic for the petitioners but we need not tarry long
there because the latter part is insurmountable.
The first obstacle that petitioners face is that persecu-
tion under that definition does not encompass purely
private actions. In order to demonstrate persecution or
a well-founded fear of persecution, the petitioners
must demonstrate that the threatening conduct is by the
government, or that it is by private persons whom
the government is unwilling or unable to control. Tapiero
de Orejuela v. Gonzales, 423 F.3d 666, 672 (7th Cir. 2005);
Galina v. I.N.S., 213 F.3d 955, 958 (7th Cir. 2000). The
petitioners have presented very little evidence of such
government complicity or inability. We have only al-
6 Nos. 10-1100 & 10-1101
legations that Reika was not prosecuted by the
Lithuanian government for the visa fraud scheme, and
that the police did not investigate the fire at the apart-
ment. Missing is any indicator as to why those
decisions were made, and whether they constituted a
deviation from standard operating procedures. We do
not know, for instance, whether the investigation of
fires is normally left to the fire department, which did
investigate the incident, nor do we know whether the
Lithuanian government was presented with sufficient
evidence to prosecute Reika but chose not to do so. Never-
theless, even if the allegations here were sufficient
to demonstrate persecution, petitioners do not even
allege that it is on account of one of the protected grounds.
The petitioners assert in a conclusory manner that
they were members of a particular social group, but
provide no identification of that alleged group
other than to identify themselves as informants whose co-
operation was induced by the government through prom-
ises of protection. Rather than explain how that con-
stitutes a “social group” under the refugee definition,
they argue that the United States government created a
dangerous condition by inducing their cooperation,
and therefore had an affirmative duty to protect them
from that danger.
We have rejected a similar argument in Wang v.
Gonzales, 445 F.3d 993 (7th Cir. 2006). Jun Ying Wang, a
native of China, was present in the United States unlaw-
fully having overstayed her visitor’s visa, when she
was arrested for her part in a scheme to obtain Social
Nos. 10-1100 & 10-1101 7
Security cards using fraudulent documents. Id. at 994.
Wang cooperated with the government’s investigation
and in turn received a more lenient sentence. Id. She
applied for asylum based on her fear that she would
be attacked by her codefendants, who were in China
and sought retribution for her cooperation against them.
Id. We rejected the asylum claim, holding that Wang had
failed to demonstrate that the persecution she feared
was on account of one of the five statutorily-pro-
tected grounds. Wang did not explain how her claim
fit within one of the protected grounds, choosing
instead to argue that the term “refugee” should not be
interpreted too rigidly and that she should be eligible
because her persecution stemmed from her assistance
to the United States government. Id. at 997. The
petitioners mirror those arguments in their briefs to
this court. We rejected that argument in Wang, holding
that we are bound by the language of the statute, and
that fear of persecution as a result of a personal dispute
rather than on account of a person’s membership in a
protected group fails to satisfy the definition of refugee.
Id. at 998; Marquez v. I.N.S., 105 F.3d 374, 380 (7th
Cir. 1997).
A “social group” under the Act is one ‘whose members
share “common characteristics that members of the
group either cannot change, or should not be required to
change because such characteristics are fundamental to
their individual identities.’ ” Ramos v. Holder, 589 F.3d
426, 428 (7th Cir. 2009), quoting In re Kasinga, 21 I. & N. Dec.
357, 366 (BIA 1996); see also Poroj-Mejia v. Holder, 397
Fed.Appx. 234, 237, 2010 WL 4102295, 2 (7th Cir. 2010). The
8 Nos. 10-1100 & 10-1101
social group, however, cannot be defined merely by the
fact of persecution. See Castillo-Arias v. U.S. Atty. Gen., 446
F.3d 1190, 1198 (11th Cir. 2006) (“The risk of persecution
alone does not create a particular social group within
the meaning of the INA . . .”) Nor may a social group be
defined solely by the shared characteristic of facing
dangers in retaliation for actions they took against
alleged persecutors. Wang v. Gonzales, 445 F.3d 993, 998
(7th Cir. 2006); Pavlyk v. Gonzales, 469 F.3d 1082, 1088-89
(7th Cir. 2006); Poroj-Mejia, 397 Fed.Appx. at 237, 2010
WL 4102295 at 2. The petitioners have not attempted to
distinguish their claim from those precedents, and in
fact have made no argument as to how they constitute
a protected group under the Act. They rely instead on
their generalized assertion that the government must
grant asylum because it placed them in danger by
inducing their cooperation in the criminal case. That
argument suffers from the glaring problem that they
chose to cooperate in return for the benefit of a lesser
sentence, and that the choice to place themselves in
that danger was theirs not that of the government.
More fundamentally, petitioners fail to identify any
legal authority for granting asylum on that basis. As we
noted in Wang, “there are legal alternatives for an alien
placed in danger by virtue of her cooperation with the
government. . . . [T]he government may seek an ‘S-visa’ on
behalf of an alien cooperating in a criminal investigation.”
Wang, 445 F.3d at 999 n.2, citing 8 U.S.C. § 1101(a)(15)(S)(I)
and United States v. Zendeli, 180 F.3d 879, 881 (7th Cir.
1999). In this case as in Wang, the government has chosen
not to pursue that option for reasons not clear on the
Nos. 10-1100 & 10-1101 9
record. The S-visa, not asylum, is the avenue by which the
petitioners could lawfully remain in the United States, but
that is not a hand that this court can force. Because the
petitioners have failed to demonstrate a well-founded fear
of persecution on account of a protected ground for
purposes of asylum, they cannot meet the more stringent
standards of withholding of removal which require a
showing of a clear probability of persecution. Toure v.
Holder, 624 F.3d 422, 428 (7th Cir. 2010); Kaharudin v.
Gonzales, 500 F.3d 619, 623 (7th Cir. 2007).
The remaining arguments are similarly unavailing.
The petitioners contest the denial of their request for a
continuance of the hearing, asserting that it denied them
due process because their counsel was not able to ade-
quately develop their case. An immigration court’s
denial of an alien’s request for a continuance is review-
able for abuse of discretion, but the petitioners have
failed to demonstrate any abuse of discretion here.
Vahora v. Holder, 626 F.3d 907, 915, 919 (7th Cir. 2010);
Kucana v. Holder, 130 S. Ct. 827, 839-40 (2010). To the extent
that they are claiming a due process violation, they fail for
the additional reason that they have not adequately alleged
prejudice from the denial of the continuance. Even before
this court, they still have not identified what evidence they
hoped to obtain by that continuance. A due process claim
cannot succeed absent concrete evidence that the due
process violation had the potential to affect the outcome
of the hearing. Ambati v. Reno, 233 F.3d 1054, 1061 (7th
Cir. 2000). Where a petitioner does not “set forth any
evidence that would have been presented or arguments
that would have been made had his counsel been given
10 Nos. 10-1100 & 10-1101
additional time to prepare his case,” the petitioner has
failed to demonstrate that the alleged violation
potentially impacted the outcome of the hearing, and
therefore the due process claim must be rejected. Id. at
1062; Kuciemba v. INS, 92 F.3d 496, 501 (7th Cir.1996.)
Moreover, the petitioners complain of the denial of their
motion to remand, but again fail to allege with any speci-
ficity what evidence could have been obtained on that
remand. The affidavits in support of that motion appear
to establish at best that the government of Lithuania
is unstable and does little to protect its citizens, but
that helps the petitioners only if the actions against them
by the private actor—Reika—were on account of one of
the five protected grounds. They have failed to even
argue that. The potential for private violence based on
personal grudges, and the inability of a country to
protect its citizens from such unlawfulness, is not a basis
for asylum. As we noted, the government could have
avoided this result by seeking an “S-visa” on behalf of
the petitioners, but it did not do so. The asylum and
withholding of removal limitations handcuff our ability
to provide any relief here. The decision of the IJ and BIA
is A FFIRMED.
9-26-11