In the

United States Court of Appeals

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
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 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
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 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
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-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,
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 “ ‘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 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 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
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-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
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 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
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 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.

9-26-11