Keita v. Gonzales , 175 F. App'x 711 ( 2006 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0257n.06
Filed: April 13, 2006
No. 04-3526
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
AOUA EPOUSE BIDANIS KEITA, )
)
Petitioner, )
) ON PETITION FOR REVIEW OF AN
v. ) ORDER OF THE BOARD OF
) IMMIGRATION APPEALS
ALBERTO GONZALES, Attorney General, )
)
Respondent. )
Before: SUHRHEINRICH, ROGERS, and COOK, Circuit Judges.
COOK, Circuit Judge. Aoua Keita, a citizen of Mali, petitions for review of a decision of
the Board of Immigration Appeals (BIA). The BIA found that Keita failed to establish that she
suffered persecution or that the government was unable or unwilling to control her alleged
persecutor. Because the record does not compel a contrary conclusion, we deny the petition for
review.
I
Keita conceded removability before an Immigration Judge (IJ) but sought asylum and
withholding of removal. She testified that, after her husband died, both her family and her
husband’s family began pressuring her to marry her husband’s cousin, Ladji Bidanis, who already
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had several other wives. She resisted this marriage on two grounds: she objects to “forced
marriage” and she objects to polygamous marriage. Keita averred that, upon her refusal to marry
Bidanis, the two families forced her from her home, and Bidanis began performing spells and
poisoning her, resulting in swelling of Keita’s limbs, weight loss, blackened fingernails, and
temporary blindness. After visits to Mali hospitals proved fruitless, Keita sought medical treatment
in the United States. Keita testified that, like the doctors in Mali, the United States doctors could
not pinpoint the cause of her ailments. During her time in the United States, however, Keita’s health
improved, and she returned to Mali, where Bidanis allegedly resumed his spells. Rather than going
to the police, whom she believed would not help her, Keita once again sought refuge in the United
States.
The IJ noted some credibility issues, describing Keita’s failure to provide objective medical
evidence of her harms as “the most troubling aspect” of the case. The IJ also concluded that Keita
had not established persecution on account of a protected category or that the Mali government was
unable or unwilling to control Bidanis. Keita appealed the IJ’s denial of asylum and withholding
of removal, and the BIA dismissed her appeal. It first found that Keita failed to “meet her burden
of proof that any harm she may have suffered rose to the level of persecution because she did not
provide any corroborating evidence of such harm, such as letters from the doctors in the United
States and Mali who allegedly treated her for her symptoms.” It also determined that she did not
show that her harm was inflicted by a group the government was unable or unwilling to control.
Keita petitions for review of the BIA’s decision.
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II
We uphold the BIA’s asylum decision where it is “‘supported by reasonable, substantial, and
probative evidence on the record considered as a whole.’” Mostafa v. Ashcroft, 395 F.3d 622, 624
(6th Cir. 2005) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)), and we reverse the BIA’s
determination only where “the evidence not only supports a contrary conclusion, but indeed compels
it.” Gilaj v. Gonzales, 408 F.3d 275, 283 (6th Cir. 2005) (quotation and emphasis omitted).
A. IJ Error
Keita first alleges that the IJ erred in several respects and asks us to review the BIA’s failure
to correct the alleged errors. But the BIA did not rely on any of the alleged errors in reaching its
decision, and we review only the decision of the BIA. Zaitona v. INS, 9 F.3d 432, 434 (6th Cir.
1993) (“[T]his court reviews the decision of the BIA, not of the IJ.”).
B. Lack of Corroborating Evidence
Keita maintains that the BIA erred in determining that she failed to prove past persecution
because she did not provide corroborating hospital reports. She advances three arguments: (1) that
her testimony sufficed to prove persecution; (2) that medical reports constitute hearsay under the
Federal Rules of Evidence; and (3) that the BIA overlooked “twenty-five letters from her children
corroborating the abuses [she] suffered.”
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Keita’s arguments are unavailing. First, this court has expressly approved the BIA’s rule that
“where it is reasonable to expect corroborating evidence for certain alleged facts pertaining to the
specifics of an applicant’s claim, such evidence should be provided. . . . The absence of such
corroborating evidence can lead to a finding that an applicant has failed to meet her burden of
proof.” Dorosh v. Ashcroft, 398 F.3d 379, 382 (6th Cir. 2004) (quotation omitted). At her hearing,
Keita testified on cross-examination that she obtained medical documents from hospitals in both
Mali and the United States, but she did not provide them during her immigration proceedings
because the doctors “didn’t see anything.” Although Keita claims that the hospitals reached
“inconclusive results,” hospital reports nevertheless would have provided important evidence that
she sought treatment and that she manifested objective symptoms such as the black spots on her
limbs and fingernails, swollen extremities, and temporary blindness. Because it is reasonable to
expect Keita to provide medical records to corroborate her allegations, and Keita did not sufficiently
explain her failure to present these records, this failure “can lead to a finding that an applicant has
failed to meet her burden of proof.” Id.
Keita’s remaining two arguments likewise fail. Assuming that, as Keita claims, the medical
reports would constitute hearsay under the Federal Rules of Evidence, these rules do not govern the
admissibility of evidence in immigration proceedings. Singh v. Ashcroft, 398 F.3d 396, 406-07 (6th
Cir. 2005). And although a few of the letters from Keita’s family reference problems she faced in
Mali, the letters do not compel a conclusion contrary to the one reached by the BIA, particularly
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when, as the BIA pointed out, it would be reasonable to expect Keita to present her hospital records
and she failed to do so.
C. The Government’s Inability or Unwillingness to Control Bidanis
The BIA also found that Keita had not demonstrated that the government was unable or
unwilling to control Bidanis. Although Keita testified that “the government does not mix itself into
the affairs of the community,” the BIA concluded that the record did not indicate that seeking
government protection would be futile or dangerous.
Keita contests this determination, citing In re SA, 22 I & N Dec. 1328 (2000), in which the
BIA found that the record corroborated the applicant’s and her aunt’s testimonies that seeking
governmental protection from her abusive father would have been futile and potentially dangerous.
But Keita points to no record evidence to compel such a conclusion in this case. She testified that
she thought seeking police protection would be useless, but she never offered any basis for her
speculation. Although one Department of State report in the record speaks of police reluctance to
enforce laws “against domestic violence,” nothing compels the conclusion that the police would
refuse to enforce the law in a situation involving an alleged nondomestic persecutor. Cf. Mann v.
Attorney General, 123 Fed. Appx. 514, 517 (3d Cir. 2005) (denying petition for review because,
“[e]ven assuming her distrust of local authorities was warranted, [applicant] could have turned to
police outside of the villages in which the alleged persecution took place, or national authorities”);
Lleshanaku v. Ashcroft, 100 Fed. Appx. 546, 549 (7th Cir. 2004) (“[T]his court has previously
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indicated its disinclination to accept an asylum claim based on persecution by private persons where
the applicant did not even attempt to seek police protection . . . .”).
D. Judicial Notice
Finally, we address Keita’s request that we take judicial notice of a 2003 State Department
report. As we previously discussed in an unpublished case, the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 prohibits our taking judicial notice of facts outside the
administrative record. Visha v. INS, 51 Fed. Appx. 547, 551 (6th Cir. 2002). Further, Keita seeks
only to supply evidence of forced marriages in Mali—evidence that, even if admitted, would not
demonstrate that she suffered persecution in Mali or that the government was unwilling to control
her persecutor.
III
Because Keita has not demonstrated that the record compels a conclusion contrary to the one
reached by the BIA, we deny her petition for review.
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