Burbiene v. Holder

United States Court of Appeals
For the First Circuit

No. 08-1478
JOLANTA BURBIENE, et al.,

Petitioners,

v.

ERIC H. HOLDER, Jr., Attorney General,*

Respondent.

ON PETITION FOR REVIEW OF AND ORDER OF THE

BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,
Selya and Lipez, Circuit Judges.

Glenn T. Terk for petitioner.
Manuel A. Palau, Trial Attorney, Office of Immigration
Litigation, with whom Gregory G. Katsas, Assistant Attorney
General, Terri J. Scadron, Assistant Director, and Kathryn L.
Deangelis, Trial Attorney, Office of Immigration Litigation, were
on brief, for respondent.

June 1, 2009

*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Eric.
H. Holder, Jr. has been substituted for former Attorney General
Michael B. Mukasey as respondent.
 LIPEZ, Circuit Judge. Petitioner Jolanta Burbiene seeks

review of a decision of the Board of Immigration Appeals ("BIA")

denying her application for asylum, withholding of removal, and

protection under the United Nations Convention Against Torture

("CAT"). Burbiene ("petitioner") filed an application for asylum

on behalf of herself and her daughter, Agniete Burbaite

("Agniete"). The petition identified Arvydas Burba ("Arvydas"), as

her husband. Petitioner and her family are citizens of Lithuania,

and petitioner claimed eligibility for asylum based on her fear

that she or her daughter could fall victim to human trafficking in

the sex trade if they returned to Lithuania.

The BIA rejected petitioner's claim on the ground that

she had failed to meet her burden of proving a well-founded fear of

future persecution in Lithuania. There was no attempt to establish

past persecution. Affirming the decision of an Immigration Judge

("IJ"), the BIA concluded that petitioner failed to establish that

the risk of being forced into prostitution in Lithuania results

from either government action, government-supported action, or

private conduct that the government is unwilling or unable to

control. The BIA also found that the petitioner failed to

establish membership in a particular social group for purposes of

asylum and withholding of removal.

After review of the record, we deny the petition.

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 I.

Petitioner and her family entered the United States on

August 20, 2001 on a tourist visa that gave them permission to

remain until February 19, 2002. On August 14, 2002, petitioner

filed an application for asylum which listed Arvydas as her spouse

and Agniete, their daughter, as a derivative beneficiary.1 As a

basis for the asylum claim, petitioner cited fear that she or

Agniete would be abducted and forced into prostitution if they

returned to Lithuania. She submitted documentation to support her

application, including Country Reports on Lithuania issued by the

United States Department of State.

On May 7, 2004 the family members were each served with

Notices To Appear in Immigration Court and charged with

removeability because they had remained in the United States longer

than permitted, in violation of section 237(a)(1)(b) of the

Immigration and Nationality Act ("INA"). See 8 U.S.C. §

1227(a)(1)(B). They conceded removeability, but petitioner renewed

her application for asylum for herself and for her daughter.

1
Petitioner only checked the box requesting the family member
"be included in this application" for Agniete, and not for Arvydas.
See 8 U.S.C. § 1158(b)(3)(A) ("A spouse or child . . . of an alien
who is granted asylum under this subsection may, if not otherwise
eligible for asylum under this section, be granted the same status
as the alien if accompanying, or following to join, such alien.").
The IJ and BIA appear to have considered the application as if it
included the entire family, although the record provides no
indication that the application was ever amended to include
Arvydas. We will also refer to the application as applying to the
whole family.

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 On June 2, 2006, an IJ conducted a hearing on the merits

of petitioner's application. Petitioner testified that shortly

after the family arrived in the United States in 2001, they learned

that Tovilla, a friend of Agniete, had been kidnaped in Lithuania

and almost sold into prostitution. After the kidnaping, Tovilla's

parents had asked the Lithuanian police and the media for help.

Tovilla was found five days later near the Polish border and

returned to her family.2 Petitioner also testified that in 1998

her cousin, Inga, had been kidnaped and forced into prostitution

after responding to an advertisement requesting childcare providers

to work in Germany. She was later arrested in a German

prostitution raid and returned to Lithuania. According to

petitioner, Inga did not report her experience to the police

because she was ashamed and because "even if she went to the

police, they certainly wouldn't have . . . looked for [the man

responsible], let alone arrest him." Petitioner testified that

Inga had refused to write a letter to support her asylum

application because she was ashamed, and that Tovilla's mother also

declined to write such a letter.

The IJ denied petitioner's application for asylum.

Although the judge found petitioner credible, he determined that

she is ineligible for asylum because human trafficking in Lithuania

2
According to petitioner's testimony, "a certain woman" found
Tovilla. It is unclear who this woman is or whether she was
affiliated with the government or any other group.

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is not the result of government action, government-supported

action, or the government's unwillingness or inability to control

private conduct, and therefore does not amount to persecution under

the INA. The judge disagreed with her claim that Lithuanian police

are unwilling to help trafficking victims, finding it unsupported

by the country reports submitted in support of her application for

asylum.

The IJ also found that petitioner failed to meet her

burden of establishing that the feared persecution would be on

account of "membership in a particular social group." 8 U.S.C. §

1158(b)(1)(B)(i). The IJ noted that petitioner "considers herself

rather to be beyond the age of kidnaping and forced prostitution,

but she considers her daughter to be a prime subject."3 The judge

3
Petitioner does not concede in her brief that she is not part
of the "particular social group" that she claims is persecuted.
However, to the extent she seeks to claim asylum for herself on the
basis of fear that her daughter will be persecuted, it is not clear
whether such a claim is viable. See, e.g., Kechichian v. Mukasey,
535 F.3d 15, 22 (1st Cir. 2008) ("This circuit has not considered
a parent's claim of psychological harm based solely on a child's
potential persecution, but the BIA has foreclosed such claims.");
Tchoukhrova v. Gonzales, 430 F.3d 1222, 1223 (9th. Cir.
2005)(Kozinski, J., dissenting from denial of rehearing en banc)
("By allowing the harms suffered by a child to be imputed to the
parent, the panel in effect creates a reverse derivative asylum
claim -- something expressly barred by 8 C.F.R. § 207.7(b)(6),
which provides that '[t]he following relatives of refugees are
ineligible for accompanying or following-to-join benefits . . . [a]
parent, sister, brother . . . .'"). But see Tchoukhrova v.
Gonzales, 404 F.3d 1181, 1190 (9th Cir. 2005) (holding that harms
suffered by a child may be imputed to parents who seek asylum),
vacated and remanded, 549 U.S. 2006. The parties have not fully
briefed this important question, which we need not reach because of
our conclusion that petitioner cannot establish a well-founded fear

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found that the alleged social group, which he described as "women

and children in Lithuania who are under 40 years of age, and who

fear being kidnaped by criminals," was not a recognizable social

group for purposes of the INA as the statute has been interpreted

by the BIA. See In re Acosta, 19 I. & N. Dec. 211, 214 (BIA 1985);

In re C-A-, 23 I. & N. Dec. 951, 955 (BIA 2006).

On March 18, 2008, the BIA affirmed the IJ's decision and

dismissed the appeal, agreeing that petitioner failed to meet her

burden of establishing a well-founded fear of persecution on

account of membership in a particular social group. The BIA

endorsed the IJ's finding that respondents feared criminal, not

governmental, activity. It noted that while human trafficking in

Lithuania is undoubtedly a "serious concern," the IJ's conclusion

that it does not amount to persecution on the basis of a

statutorily protected ground "properly reflects our immigration

laws." The BIA added that petitioner did not establish membership

in a particular social group for purposes of asylum and withholding

of removal, citing the Sixth Circuit's decision in Rreshpja v.

Gonzales, 420 F.3d 551, 556 (6th Cir. 2005), which held that young,

attractive Albanian women who fear being kidnaped and forced into

prostitution do not constitute a particular social group for asylum

purposes. See id. ("A social group may not be circularly defined

of future persecution resulting from government action or inaction
for any member of the family.

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by the fact that it suffers persecution. The individuals in the

group must share a narrowing characteristic other than their risk

of being persecuted."). Burbiene petitioned for review of the BIA

order.

II.

To qualify for asylum on the basis of a well-founded fear

of future persecution, an applicant must prove that she has a well-

founded fear that if she returns to her home country she will be

persecuted on account of race, religion, nationality, membership in

a particular social group, or political opinion. 8 U.S.C. §§ 1101

(a)(42)(A), 1158(b)(1)(B)(i). Her fear must be both subjectively

real and objectively reasonable. Silva v. Ashcroft, 394 F.3d 1, 4

(1st Cir. 2005). "Where, as here, 'the BIA adopted and affirmed

the IJ's ruling, but also discussed some of the bases for the IJ's

opinion, we review both the IJ's and BIA's opinions.'" Lin v.

Gonzales, 503 F.3d 4, 6-7 (1st Cir. 2007) (quoting Zheng v.

Gonzales, 475 F.3d 30, 33 (1st Cir. 2007)). We apply the highly

deferential substantial evidence standard to the agency's factual

determinations, considering "whether the agency's ruling is

supported by reasonable, substantial, and probative evidence on the

record considered as a whole." Wang v. Mukasey, 508 F.3d 80, 83-

84 (1st Cir. 2007) (internal quotation marks and citation omitted).

We review the BIA's legal determinations de novo, id. at 83,

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although we give some deference to its interpretations of the INA,

Silva, 394 F.3d at 5.

Under the INA, persecution "always implies some

connection to governmental action or inaction, related to a

protected ground." Orelien v. Gonzales, 467 F.3d 67, 72 (1st Cir.

2006). A petitioner bears the burden of establishing this

necessary link between persecution and government action or

inaction. See id. at 70. Country Reports for Lithuania, and

petitioner's own concessions in her brief, support the agency's

conclusion that human trafficking in Lithuania is committed by a

criminal element. Such criminal activity could only amount to

persecution under the INA if petitioner can show that either: 1) it

is committed by people aligned with the government, or 2) the

government is unwilling or unable to control it. See Raza v.

Gonzales, 484 F.3d 125, 129 (1st Cir. 2007). Here, only the second

prong is at issue, because petitioner does not argue that the

government is aligned with the kidnapers. Scattered incidences of

violence or harassment are not enough to establish that a

government is unwilling or unable to control violence; "[b]y

definition, persecution has a systematic aspect." Id.

Although petitioner argues that Lithuania is unable or

unwilling to control the problem of human trafficking, "reasonable,

substantial, and probative evidence" supports the IJ's conclusion

that Lithuania is "making every effort to combat" human

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trafficking, "a difficult task not only for the government of

Lithuania, but for any government in the world." The Country

Report for 2005 mentions legislative changes enacted that year to

strengthen the government's response to trafficking, such as

increased criminal sentences for traffickers. It also reports that

in 2005 a joint government task force uncovered an organized crime

ring that had transported nearly 100 young girls and women to work

in the sex trade in England, and that during that year the

government opened 24 criminal cases against alleged traffickers.

Furthermore, according to the report, the government provided

funding for fifteen "day centers" to assist victims of trafficking

and gave grants to thirteen non-governmental organizations that

similarly serve trafficking victims.

It is true that Lithuania has not been able to completely

eradicate the problem of human trafficking within its borders, and

that the problem persists despite what the Country Report described

as "significant efforts" by the government. Nonetheless, the

record does not indicate that Lithuania's inability to stop the

problem is distinguishable from any other government's struggles to

combat a criminal element. Lithuania has experienced both setbacks

and successes in its fight against this crime.4 But these

4
At oral argument, there was disagreement over the number of
women actually trafficked in Lithuania each year. The IJ observed
that Lithuanian police "determined that nine women, including one
minor, were victims of human trafficking" in 2005. Petitioner
noted the inconsistency between that determination and the Country

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circumstances do not subject the victims of human trafficking to

"persecution" under the INA.

Because the facts do not establish a nexus between the

petitioner's fear of harm and the government of Lithuania,

substantial evidence supports the BIA's conclusion that petitioner

failed to establish the well-founded fear of persecution required

for asylum. As this is an independent ground to reject her

petition, we do not reach the question of whether she established

"membership in a particular social group" to qualify as a refugee

under the INA.

We therefore reject the petition for review of the

asylum claim. Consequently, we also reject the petition to review

the claim for withholding of removal, which has a more demanding

standard of proof and obligates a petitioner to show a "clear

probability of persecution" if returned to her home country.

I.N.S. v. Stevic, 467 U.S. 407, 413 (1984). We likewise dismiss

the petition for review of the CAT claim. See Santosa, 528 F.3d,

88, 92 n.1 (1st Cir. 2008) ("The standard for withholding of

removal is more stringent than that for asylum. The CAT standard,

Report's statement that the Lithuanian government estimated that
1,000 to 1,500 women were trafficked, presumably also in 2005. We
note that the IJ's chosen figure was also taken from the same
Country Report, and that it was petitioner herself who submitted,
by way of the Country Report, the figure chosen by the IJ. Either
way, substantial evidence supports the IJ's conclusion that the
Lithuanian government was neither responsible for the trafficking
nor unable or unwilling to control it to an extent that would
constitute "persecution" under the INA.

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in turn, is more stringent than that for withholding of removal."

(citations omitted)). Protection under the CAT requires an alien

to show "that it is more likely than not that he or she would be

tortured," 8 C.F.R. § 208.16(c)(2), "by or at the instigation of or

with the consent or acquiescence of a public official," id.

§ 208.18(a)(1).5 As we have stated, there is no evidence of

government consent or acquiescence in the human trafficking problem

in Lithuania.

The petition for review is denied.

5
Because we do not grant withholding of removal or relief
under CAT to the petitioner, it is not necessary for us to consider
whether a derivative benefit could apply to her family on those
claims, an issue not raised by either party. We have previously
noted that there can be no derivative beneficiaries of a grant of
withholding of removal. Kechichian, 535 F.3d at 22 n.4 (noting
that the withholding of removal statute "does not permit derivative
withholding of removal under any circumstances." (internal
quotation marks and citation omitted)). The Eleventh Circuit has
held that "there are no derivative benefits associated with a grant
of withholding of removal because, unlike the asylum statute, the
withholding statute contains no mention of derivative rights. The
CAT regulation likewise contains no mention of derivative rights;
it limits the applicant and seemingly forecloses a derivative
claim." Martinez v. U.S. Att'y Gen., No. 08-14398, 2009 WL
1109294, at *3 (11th Cir. 2009); see also Delgado v. U.S. Att'y
Gen., 487 F.3d 855, 862 (11th Cir. 2007) ("[T]here are no
derivative benefits associated with a grant of withholding of
removal.")

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