NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 15-3728

_____________

LINAS VAITKUS, 

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,

 Respondent 

_____________

On Appeal from the Board of Immigration Appeals

(Agency No. A206-195-223)

Immigration Judge: Hon. Mirlande Tadal

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 6, 2016

Before: CHAGARES, KRAUSE and SCIRICA, Circuit Judges.

(Filed: July 6, 2016 )

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OPINION*

____________

CHAGARES, Circuit Judge.

Petitioner Linas Vaitkus challenges a decision by the Board of Immigration 

Appeals (BIA), dismissing an appeal of an Immigration Judge’s (IJ) denial of 

 * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

applications for asylum pursuant to 8 U.S.C. § 1158(b)(1), withholding of removal 

pursuant to 8 U.S.C. § 1231(b)(3)(A), humanitarian asylum pursuant to 8 C.F.R. §

208.13(b)(1)(iii), and protection under the Convention Against Torture (CAT). For the 

following reasons, the petition for review will be denied. 

I.

We write solely for the parties and therefore recite only the facts necessary to our 

disposition. In November 2014, Vaitkus, a citizen of Lithuania, arrived at Newark 

Liberty Airport, seeking admission to the United States under the Visa Waiver Program. 

Officers for the Department of Homeland Security declined to admit him, and charged 

him with inadmissibility after determining that Vaitkus had previously overstayed a 

period of authorized admission, had previously engaged in unauthorized employment, 

and had an outstanding warrant in Florida for petit retail theft. However, as Vaitkus also 

expressed a fear of returning to Lithuania, he was detained and referred to immigration 

authorities for asylum proceedings. 

Vaitkus filed applications for asylum and withholding of removal, as well as for 

protection under the CAT. During his immigration proceedings, Vaitkus testified that he

had become involved with a local drug gang called the Centers of Kaunus while living in 

Kaunus, Lithuania in 2006. Vaitkus testified that, although he did not sell drugs for the 

gang, he recruited others to sell drugs and acted as an intermediary between those he 

recruited and the gang. Over the next two years, according to Vaitkus, he was beaten

multiple times by gang members. Vaitkus did not attempt to move to a different city or 

region within Lithuania. 
3

Vaitkus left Lithuania in September 2009 and relocated to the United States. 

While living in Florida, he was arrested for petty theft. In June 2012, while his criminal 

case was pending, he left the United States for England. While in England, Vaitkus was 

contacted by some gang members, which caused Vaitkus to worry that the gang members 

would find him in England. Vaitkus was attacked at a holiday party in December 2013. 

He reported the attack to police but did not know whether his attacker was related to the 

gang. In November 2014, Vaitkus departed England for the United States, where he was 

detained upon arrival. 

Vaitkus’s petition for relief is based on two primary grounds: that he is unable or 

unwilling to return to Lithuania because of persecution or a well-founded fear of 

persecution on account of (1) his membership in a particular social group consisting of 

Lithuanian men who refuse to continue to be associated with criminal gangs; and (2) his 

political opinion, as manifested through his refusal to sell drugs for the gang. The IJ 

denied the applications, and the BIA affirmed. Vaitkus filed a timely petition for review 

of the BIA decision. 

II.

The BIA had authority to review the IJ’s decision pursuant to 8 C.F.R. § 

1003.1(b)(3), and we have jurisdiction to consider the petition for review pursuant to 8 

U.S.C. § 1252(a). Venue properly lies in this judicial circuit because his proceedings 

were completed in Elizabeth, New Jersey. See 8 U.S.C. § 1252(b)(2). 

If the BIA issues a separate opinion from the IJ, we review the BIA’s disposition 

and look to the IJ’s ruling only insofar as the BIA defers to it. Chavarria v. Gonzalez, 
4

446 F.3d 508, 515 (3d Cir. 2006). We review the BIA’s legal conclusions de novo. 

Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004). We review the BIA’s findings of 

fact under the “substantial evidence” standard, and we can only reverse the Board’s 

decision if “‘any reasonable adjudicator would be compelled to conclude to the 

contrary.’” Valdiviezo-Galdamez v. Att’y Gen., 663 F.3d 582, 590 (3d Cir. 2011) 

(quoting 8 U.S.C. § 1252(b)(4)(B)). 

III.

To be eligible for asylum, an applicant must show that he is unwilling or unable to 

return to his native country because of persecution or a well-founded fear of persecution 

on account of one of five protected grounds: race, religion, nationality, membership in a 

particular social group, or political opinion. See 8 U.S.C. 1158(b)(1). An applicant must 

also present direct or circumstantial evidence that one of the protected grounds was at 

least “one central reason for persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i);

Ndayshimiye v. Att’y Gen., 557 F.3d 124, 131 (3d Cir. 2009). Vaitkus argues that he 

should be granted relief on the basis of persecution on account of two protected grounds:

membership in a particular social group and political opinion. We will address each in 

turn. 

First, Vaitkus argues that he qualifies for asylum relief as a member of a 

“particular social group,” which he defines as a “former member of a criminal gang who 

is not willing to further participate in the gang.” Vaitkus Br. 19. The BIA has recently 

interpreted the phrase “particular social group” to be defined by three requirements: “(1) 

composed of members who share a common immutable characteristic, (2) defined with 
5

particularity, and (3) socially distinct within the society in question.”1 Matter of M-E-VG-, 26 I. & N. Dec. 227, 237 (BIA 2014); see Matter of W-G-R-, 26 I. & N. Dec. 208, 

212 (BIA 2014). 

Vaitkus challenges the BIA’s definition of “particular social group” as elucidated 

in Matter of M-E-V-G- and Matter of W-G-R-. In support of his argument, Vaitkus relies 

on Valdiviezo-Galdamez, where we rejected an earlier BIA interpretation of the term 

“particular social group” as requiring “particularity” and “social visibility” in addition to 

the longstanding requirement of “immutability.”2

 663 F.3d at 604-08 (3d Cir. 2011). We 

indicated that “social visibility,” despite the government’s argument to the contrary, 

appeared to require “on-sight visibility.” Id. at 606. In holding that the BIA’s 

interpretation was not entitled to deference under Chevron, we noted that requiring “onsight visibility” for an asylum claim was inconsistent with prior BIA decisions granting 

asylum. “When an administrative agency’s decisions are inconsistent, a court cannot 

pick one of the inconsistent lines and defer to that one, unless only one is within the 

scope of the agency’s discretion to interpret the statutes it enforces or to make policy as

 1 Whether the BIA’s interpretation of the statutory term “particular social group” is a 

reasonable interpretation of the INA is a question of law to be reviewed de novo, subject 

to established principles of administrative law requiring deference under Chevron U.S.A., 

Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), to an agency’s interpretation 

of a statute it administers if the plain language of the statute is ambiguous. 

2 Immutability is established through a common characteristic shared by all members of 

the group that they “either cannot change, or should not be required to change because it 

is fundamental to their individual identities or consciences.” Matter of Acosta, 19 I. & N. 

Dec. 211, 233 (BIA 1985).
6

Congress’s delegate.” Id. (quoting Gatimi v. Holder, 578 F.3d 611, 616 (7th Cir. 2009)). 

We also held that the BIA’s “particularity” requirement was not entitled to Chevron

deference, as we were “hard-pressed to discern any difference between the requirement 

of ‘particularity’ and the discredited requirement of ‘social visibility.’” Id. at 608. 

Following Valdiviezo-Galdamez, the BIA issued Matter of M-E-V-G-, 26 I. & N.

Dec. 227, and Matter of W-G-R-, 26 I. & N. Dec. 208, which attempted to clarify its 

interpretation of the term “particular social group.” The BIA indicated that “literal or 

ocular visibility” is not a prerequisite for a cognizable “particular social group,” and 

renamed the “social visibility” requirement to “social distinction.” Matter of M-E-V-G-, 

26 I. & N. Dec. at 240, 252. Instead, “to have the ‘social distinction’ necessary to 

establish a particular social group, there must be evidence showing that society in general 

perceives, considers, or recognizes persons sharing the particular characteristic to be a 

group.” Matter of W-G-R-, 26 I. & N. Dec. at 217. The BIA also explained that the 

particularity requirement is “definitional in nature” and is used to determine the “outer 

limits of a group’s boundaries.” Matter of M-E-V-G-, 26 I. & N. Dec. at 241. 

Vaitkus asks us to consider whether the BIA’s recent reformulation of the 

“particular social group” requirements — immutability, social distinction, and 

particularity — avoids the pitfalls outlined in Valdiviezo-Galdamez and should be 

accorded Chevron deference.3 However, we need not decide this question. Regardless of 

 3 In evaluating Vaitkus’s asylum claim on this ground, the IJ looked to the immutability, 

social distinction, and particularity requirements set forth in Matter of M-E-V-G- and 

Matter of W-G-R-. The IJ concluded that Vaitkus failed to show his purported group was 

“socially distinct,” because he had not shown that members of his group are 
7

whether the BIA’s standard for “particular social group” governs, there is substantial 

evidence to support the agency determination that Vaitkus is ineligible for asylum on the 

basis that the alleged persecution was not “on account of” any protected ground. 8 

U.S.C. § 1101(a)(42).

In addition to establishing one of the protected grounds for asylum relief, an 

applicant must also demonstrate that there is a “nexus” between the past or future 

persecution and the protected ground. See Ndayshimiye, 557 F.3d at 129; Matter of NM-, 25 I. & N. Dec. 526 (BIA 2011). That is, “the applicant must establish that race, 

religion, nationality, membership in a particular social group, or political opinion was or 

will be at least one central reason for persecuting the applicant.” 8 U.S.C. §

1158(b)(1)(B)(i) (emphasis added).

4 See also Ndayshimiye, 557 F.3d at 129.

 

“meaningfully distinguished” within Lithuanian society, and there was no evidence that 

“such individuals understand their own affiliation with this group, and that Lithuanian 

society does so as well.” Appendix (“App.”) 57. Further, the IJ held that the proposed 

group lacked the requisite “particularity,” because Vaitkus had not established “any outer 

limits or a clear benchmark” for determining who falls within the group. Id. at 58. Nor 

did Vaitkus provide documentary evidence regarding the Centers of Kaunas gang or 

provide evidence that the term “criminal gang” has a commonly accepted definition in 

Lithuania. Id.

The BIA affirmed. The BIA held that Vaitkus’s proposed groups “lack the requisite 

social distinction or particularity to qualify as a cognizable particular social group for 

purposes of establishing eligibility for refugee relief” because the terms defining the 

groups were “broad, diffuse, and subjective” and could include “Lithuanian males of any 

age and background.” Id. at 45. The BIA also indicated that the proposed groups were 

not “socially distinct” as there was insufficient evidence to demonstrate that members of 

the proposed social group were “perceived, considered, or recognized in Lithuanian 

society as discrete groups.” Id.

4 We note that Congress added this paragraph requiring an applicant to establish “one 

central reason” in 2005, with the passage of the REAL ID Act. See Ndayshimiye, 557 
8

Here, the BIA held that Vaitkus failed to establish a nexus between past or future 

harm and any protected ground. The BIA found no clear error in the IJ’s findings 

pertaining to the motives of the criminal gang, and held that “[Vaitkus] did not establish 

that his alleged actual or imputed political opinion, or any other protected ground was or 

will be at least one central reason as to why the Centers of Kaunus, or any other group in 

Lithuania would harm the applicant, or did so in the past.” App. 45 (quotation marks 

omitted). 

Substantial evidence supports the BIA’s conclusion that Vaitkus did not establish 

that any protected ground was “one central reason” as to why the criminal gang had 

harmed him or would harm him. The BIA found no clear error in the IJ’s findings 

regarding the motives of the criminal gang, and neither do we. The IJ determined, and 

the BIA upheld the finding, that Vaitkus was targeted for “purposes of recruitment, 

criminal activity, and a personal vendetta rather than on account of a protected ground.” 

App. 46. Vaitkus argues that the central reason for the “vendetta” was his “refusal to sell 

drugs for the gang and thus fully participate in its activities.” Vaitkus Br. 27. However,

as the IJ found, Vaitkus testified that he believed the gang targeted him because of money 

he owed. See, e.g., App. 60; Administrative Record (“A.R.”) 146-47, 154-59, 162, 194-

95. For example, Vaitkus testified that members of the gang told him that they were 

owed 10,000 euros and referred to that obligation during some of the attacks. See A.R. 

 

F.3d at 129. In looking to this statutory provision, we have held that asylum may not be 

granted if the protected ground is only an “incidental, tangential, or superficial” reason 

for persecution of an asylum applicant. Id. at 130. 
9

154, 158. Vaitkus testified that it was a violation of the gang that he had not “paid off the 

debt” and “just left the country.” A.R. 166. Thus, there is substantial evidence to support 

the BIA’s finding that the gang’s central reasons for targeting Vaitkus were purposes of 

recruitment, criminal activity, and a personal vendetta based off his debt to the gang, 

rather than a protected ground. 

Second, in addition to his “particular social group” claim, Vaitkus argues that he 

experienced past persecution or an objectively reasonable fear of persecution on the basis 

of political opinion. In order to prevail on an asylum claim based on political opinion, a 

petitioner must: “(1) specify the political opinion on which he or she relies; (2) show that 

he or she holds that opinion; and (3) show that he or she would be persecuted or has a 

well-founded fear of persecution based on that opinion.” Fatin v. I.N.S., 12 F.3d 1233, 

1242 (3d Cir 1993). However, a petitioner must still establish a “nexus” between the past 

or future harm and any protected ground, such as actual or imputed political opinion. See

Ndayshimiye, 557 F.3d at 129; Matter of N-M-, 25 I. & N. Dec. at 526. See also I.N.S. v. 

Elias-Zacarias, 502 U.S. 478, 482 (1992) (holding that petitioner’s resistance to forced 

recruitment to guerilla group, without more, failed to show a political motive by 

petitioner). Vaitkus testified that he refused to sell drugs for the gang, and that he was 

attacked for money he owed. However, he never testified that his refusal to sell drugs 

was politically based. Thus, Vaitkus’s claim for asylum based on “political opinion” fails 

for the same reason that his “particular social group” claim fails. 
10

As substantial evidence supports the BIA’s determination that Vaitkus had not 

established that a protected ground was “one central reason” for the alleged persecution, 

we will deny his petition for review on the asylum claims.5

 

B.

In addition to his asylum claims, Vaitkus petitions for relief under the CAT.6

 An 

applicant is eligible for withholding of removal under the CAT, if he demonstrates that, 

more likely than not, he will be subject to torture in the country of removal, and that the 

 5 For substantially the same reasons, Vaitkus’s claims for humanitarian asylum and 

withholding of removal also fail. Under 8 C.F.R. § 1208.13(b)(1)(iii), an immigration 

court can grant humanitarian asylum to an applicant who has suffered past persecution on 

account of one of the protected grounds, even in the absence of a well-founded fear of 

persecution. See Al-Fara v. Gonzales, 404 F.3d 733, 740 (3d Cir. 2005); Matter of L-S-, 

25 I. & N. Dec. 705, 710 (BIA 2012) (“We emphasize that every asylum applicant who 

arrives at this stage of the analysis has demonstrated past persecution and thus has proven 

that he or she is a ‘refugee.’”). To qualify for withholding of removal, an applicant bears 

the more onerous burden of establishing a “clear probability” that his or her life or 

freedom would be threatened if returned to the country of removal on account of a 

protected ground. Kaita v. Att’y Gen., 522 F.3d 288, 296 (3d Cir. 2008). See also

Zubeda v. Ashcroft, 333 F.3d 463, 470 (3d Cir. 2003) (“Under both the ‘well founded 

fear’ threshold required for asylum and the ‘clear probability’ required for withholding of 

deportation, the alien must establish that persecution he/she fears is ‘on account of’ one 

of the enumerated classifications or activities incorporated into the definition of 

‘refugee.’”). As discussed previously, substantial evidence supports the BIA’s 

conclusion that the persecution alleged was not “on account of” a protected ground. 

Accordingly, we will affirm the BIA’s denial of the humanitarian asylum and 

withholding of removal applications.

6 In the conclusion of his brief, Vaitkus also appears to make an argument that he was 

deprived of due process of law as a result of factual and legal errors by the BIA. The 

only factual error identified is a misstatement by the IJ that Vaitkus returned to Lithuania 

in February 2009. Vaitkus argues that “[i]t is simply impossible for such an important

fact not to affect the IJ’s decision.” Vaitkus Br. 45. Insofar that Vaitkus is raising a due 

process claim on this misstatement, it necessarily fails. Any such purported error is 

harmless as neither the IJ nor the BIA alluded to this fact in their legal analyses. 
11

torture will occur at the hands of, or with the consent or acquiescence (including willful 

blindness) of, a public official or person acting in an official capacity. See 8 C.F.R. §§

1208.16(c), 1208.18(a)(1); Silva-Rengifo v. Att’y Gen., 473 F.3d 58, 64-65 (3d Cir. 

2007). Unlike the asylum claims at issue, there is no requirement that the applicant 

demonstrate a nexus to a protected ground for relief under the CAT. 

The IJ denied relief under the CAT. The IJ determined that, although Vaitkus 

provided evidence of general corruption by Lithuanian authorities, he did not provide 

evidence that established a connection between the police and the criminal organization. 

The IJ indicated that although Vaitkus “submitted several documents that discuss 

generalized corruption in Lithuania, they do not establish that the government is willfully 

blind to the torture of current or former gang members.” App. 62. The BIA affirmed. 

The BIA held that the IJ did not clearly err in her factual findings “regarding the 

likelihood of the applicant being subject to harm amounting to torture upon removal to 

Lithuania.” App. 46. The BIA noted that the IJ made a “reasonable inference based on 

the totality of the documentary evidence presented as to the country conditions in 

Lithuania,” and held the claim to be “too speculative to warrant a grant of protection 

under the CAT.” Id.

Substantial evidence supports the BIA’s denial of relief under CAT. The IJ found 

that Vaitkus did not provide evidence establishing that government officials were 

infiltrated or influenced by gang members, and noted that the submitted country reports

indicated that the Lithuanian government has effective mechanisms to investigate and 

punish abuse and corruption. See App. 62-63. The Department of State 2013 Country 
12

Report notes that corruption exists in Lithuania. But “generalized evidence of 

government corruption in the record” is insufficient to show that a government would 

acquiesce in or turn a blind eye to torture. Matter of G-K-, 26 I. & N. Dec. 88, 98 (BIA 

2013). Here, the Country Report does not suggest that police officers are influenced or 

infiltrated by gang members. A.R. 544-52. Rather, the Country Report indicates that the 

Lithuanian government has taken measures to investigate and prosecute abuse and 

corruption. See A.R. 545. Thus, substantial evidence supports the BIA determination. 

As substantial evidence supports the BIA’s determination that Vaitkus did not 

establish that, more likely than not, he will be subject to torture if removed, and that the 

torture will occur at the hands of, or with the consent or acquiescence of a public official 

or person acting in an official capacity, we will deny his petition for review on the CAT 

claim.

IV.

For the foregoing reasons, we will deny the petition for review.