Jonaitiene v. Holder-7th Circuit

In 2000 husband and wife, citizens of Lithuania, entered the U.S. with illegally-obtained visas. They have two children born in Lithuania and a third born in the U.S. When the visa fraud was discovered, they cooperated and were sentenced to one year of probation. The government charged them with removability 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). Petitioners applied for asylum and withholding of removal. The Immigration Judge denied the request for asylum; the Board of Immigration Appeals affirmed. The Seventh Circuit affirmed. The affidavits established, at best, that the government of Lithuania is unstable and does little to protect its citizens. Fear of retribution from co-defendants for an alien's cooperation with the U.S. government, in exchange for a reduced sentence, is not a well-founded fear based on a protected ground.

For the Seventh Circuit

Nos. 10-1100 & 10-1101

RASA JONAITIENE AND MARIUS BUBENAS,

Petitioners,

v.

ERIC H. HOLDER, 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

ARGUED OCTOBER 28, 2010—DECIDED SEPTEMBER 26, 2011 

Before MANION, ROVNER, and SYKES, Circuit Judges.

ROVNER, 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 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 Department of Homeland Security initiated removal proceedings against petitioners, charging them with removability 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 government is either unwilling or unable to protect them. In their written statements as well as their testimony at the hearing, the petitioners detailed threatening phone calls made to them by Reika after their arrest.

Jonaitiene’s brother, who had arranged for the payments 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 Lithuania. 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 cooperation 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 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-defendants 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. Accordingly, 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 supplements that decision with its own reasoning, we review the IJ’s decision as supplemented. Kaharudin v. Gonzales, 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 “‘supported by reasonable, substantial and probative evidence 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 persecution on account of race, religion, nationality, membership 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 problematic for the petitioners but we need not tarry long there because the latter part is insurmountable.

The first obstacle that petitioners face is that persecution 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 allegations 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 apartment. 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. Nevertheless, 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 cooperation was induced by the government through promises of protection. Rather than explain how that constitutes 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 unlawfully having overstayed her visitor’s visa, when she was arrested for her part in a scheme to obtain Social 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-protected 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 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 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 adequately develop their case. An immigration court’s denial of an alien’s request for a continuance is reviewable 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 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 specificity 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 AFFIRMED. 

Withholding of Removal, Macedonia Stanojkova v. Holder (7th Cir. 2011)

No. 10-3327 Decision Date: July 14, 2011 Petition granted

http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=10-3327_002.pdf (PDF)

Record failed to support Bd.'s denial of application for withholding of removal by aliens (native of Macedonia) alleging that they were persecuted by members of paramilitary police in native country because of their sympathetic views of Albanian minority within native country. While Bd. believed that aliens' 10-minute confrontation with paramilitary police was insufficient to establish persecution claim, evidence was sufficient where: (1) alien claimed that police entered his home, rendered his parents unconscious, held gun to his head, and sexually assaulted his pregnant wife while accusing him of being against Macedonia; and (2) actual police were unwilling to arrest assailants. On remand, though, Bd. may consider improved conditions in Macedonia when evaluating alien's claim.

In Stanojkova v. Holder, 2011 WL 2725850 (7th Cir. 2011), the U.S. Court of Appeals for the Seventh Circuit granted a petition for review filed by a Macedonian couple who claimed that they were victimized by rogue police officers, called “Lions,” on account of the male petitioner's refusal to report for duty with the Macedonia army due to his disapproval with his country's suppression of the Albanian minority. In remanding the matter back to the BIA to reassess whether the petitioners qualified for withholding of removal, the court took issue with the IJ's and the Board's prior determination that the mistreatment that they suffered, including a sexual assault of the wife-petitioner, constituted mere harassment as opposed to persecution. The court also pointed out that changed country conditions and the risk of future persecution were not addressed by the IJ or the Board in their prior deliberations, so those issues remained for consideration on remand.

Judge Richard Posner, writing for the court's three-judge panel, started his opinion by providing the historical context and demographics, noting that Macedonia emerged as a country after the breakup of Yugoslavia and is mostly Slavic with about a quarter of the population being of Albanian ethnicity. He observed that Albanian extremists began an insurrection in January 2001, but it “petered out” after the “Ohrid Framework Agreement” was negotiated in August 2001 to grant greater rights to the Albanian minority. During that time period, the male petitioner declined to report for military duty. Consequently, in 2002 three armed and masked men broke into the petitioners' home. They rendered the male petitioner's parents unconscious with a chemical spray and then proceeded to menace the male petitioner with a gun to his head, accusing him of being a “betrayer of Macedonians” for not participating in the war (against the Albanian minority). One of the assailants sexually assaulted his wife, who was pregnant at the time, and when the husband intervened, he was beaten on his head and back with a gun. The attackers left because of the wife's loud screams, and no actual rape occurred. Upon reporting this incident to the police, the petitioners were informed that the assailants were “Lions,” i.e., paramilitary police officers, with an implication that “ordinary” officers would not be able to afford protection. Consequently, the petitioners left their country.

They eventually came to the U.S. but without visas. In removal proceedings, they asked for asylum and related relief, but the IJ denied any relief, and the BIA, in a single-member decision, perfunctorily affirmed the IJ's removal order. As explained by Judge Posner, the petitioners missed the one-year filing deadline to be considered for asylum but remained eligible for withholding of removal (under INA § 241(b)(3) [8 USCA § 1231(b)(3)]. They did not press a CAT claim before the court. He further explained that to obtain withholding requires a demonstration that the applicant will more likely than not be subjected to persecution if removed from the U.S. and that a finding of past persecution creates a rebuttable presumption of future persecution pursuant to 8 CFR § 1208.16(b)(1)(i). He pointed out that the IJ, seconded by the BIA, ruled that the presumption was inapplicable because of their conclusion that the petitioners had not been persecuted.

Judge Posner described the IJ's decision as “garbled” on the issue of political motivation and criticized the IJ's statement that there was no evidence of human rights abuses by the Macedonian army in 2001 as ignoring the State Department's Country Report. He noted that the Board member found that the petitioners were credible but reasoned that the harm that they suffered during the home invasion did not rise to the level of persecution. He observed that neither the Board member nor the IJ made any effort to specify the amount of harm required to rise to the level of persecution and intimated that the court could not find a useful definition of persecution by the Board or the courts, although the importance of distinguishing between harassment and persecution has been noted. He remarked that “in terms of outcome the cases are all over the lot” and cited to an article by Jaya Ramji-Nogales et al., “Refugee Roulette: Disparities in Asylum Adjudication and Proposals for Reform” (2009), documenting this phenomenon. He referred to the Board's attempted definition of persecution in Matter of Acosta, 19 I. & N. Dec. 211 (B.I.A. 1985), as “harm or suffering that is inflicted upon an individual for possessing a belief or characteristic a persecutor seeks to overcome.” However, he described this definition as “vacuous with regard to the minimum amount of harm required.” He lamented the fact that “responsibility on this point of law has, by default, devolved on the courts, yet only provisionally - only until the Board assumes the responsibility - to try to create some minimum coherence in the adjudication of claims of persecution, as [the Seventh Circuit has] tried to do in the [instant]opinion.” He suggested that, in light of the current situation in Macedonia, there may well be less than a 50% probability that the petitioners would be persecuted if returned to Macedonia, which is the ultimate issue in a withholding case, but that this was a matter to be addressed by the Board or the IJ on remand.

Benitez Ramos 7th Circuit El Salvador withholding of removal former gang member

Record failed to support Bd.'s denial of alien's application for withholding of removal where alien (native of El Salvador) alleged that he would be persecuted by members of criminal gang on account of his status as former member of gang and as newly converted Christian if he were forced to return to El Salvador since his Christian religion would preclude him from rejoining gang. Bd. failed to give reasoned explanation for why statutory bar for individuals who commit serious crimes applied to former members of gang. Thus, Bd. must determine on remand whether alien actually committed violent acts as member of gang, which would preclude alien from obtaining relief, and whether alien was more likely to be persecuted by gang if returned to El Salvador.

Petition for review a BIA's denial of an El Salvadoran citizen's petition for withholding of removal on the ground that former Salvadoran gang members do not constitute a particular social group, nor can membership in a criminal gang constitute membership in a particular social group, is granted and the Board's decision is vacated and remanded as a gang is a group and being a former member of a group is a characteristic impossible to change, except perhaps by rejoining the group.

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El Salvador is a constitutional, multiparty democracy with a population of approximately 5.8 million. In 2004 voters elected Elias Antonio Saca of the Nationalist Republican Alliance (ARENA) as president for a five-year term in generally free and fair elections. Civilian authorities generally maintained effective control over the security forces.

Although the government generally respected the rights of its citizens, protection of human rights was undermined by widespread violent crime, including gang-related violence, high levels of impunity from prosecution, and judicial corruption. Other significant human rights problems included harsh, violent, and overcrowded prison conditions; lengthy pretrial detention; violence and discrimination against women; abuses against children, child labor, and forced child prostitution; trafficking in persons; and inadequate enforcement of labor rights.