Jonaitiene v. Holder

660 F.3d 267, 2011 U.S. App. LEXIS 19597, 2011 WL 4435995
CourtCourt of Appeals for the Seventh Circuit
DecidedSeptember 26, 2011
Docket10-1100, 10-1101
StatusPublished
Cited by37 cases

This text of 660 F.3d 267 (Jonaitiene v. Holder) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jonaitiene v. Holder, 660 F.3d 267, 2011 U.S. App. LEXIS 19597, 2011 WL 4435995 (7th Cir. 2011).

Opinion

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)®. 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.

*270 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, 112 S.Ct. 812, 117 L.Ed.2d 38 (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 U.S.C. § 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 *271

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Bluebook (online)
660 F.3d 267, 2011 U.S. App. LEXIS 19597, 2011 WL 4435995, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jonaitiene-v-holder-ca7-2011.