2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-29-2010

Sekou Koita v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-3001

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-3001

___________

SEKOU OUMAROU KOITA,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On a Petition For Review of an Order

of the Board of Immigration Appeals

Agency No. A096-207-074

Immigration Judge: Charles Honeyman

___________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 28, 2010

Before: BARRY, STAPLETON and NYGAARD, Circuit Judges

(Opinion filed: April 29, 2010)

___________

OPINION

___________

PER CURIAM

Petitioner Sekou Oumarou Koita, a native and citizen of Mali, entered the United

States in 2000 without being admitted or paroled. (He used a fraudulent passport.) On

November 21, 2003, the Department of Homeland Security ("DHS") issued a Notice to
2

Appear ("NTA"), charging that he was removable pursuant to Immigration & Nationality

Act (“INA”) § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the

United States without being admitted or paroled. The allegations were conceded. On

January 16, 2004, Koita, through counsel, filed an application for asylum under INA §

208(a), 8 U.S.C. § 1158(a), withholding of removal under INA § 241(b)(3), 8 U.S.C. §

1231(b)(3), and protection under the Convention Against Torture, 8 C.F.R. §§ 1208.16(c),

1208.18, in which he claimed that he was persecuted in Mali on the basis of his political

opinion. Koita later withdrew his asylum application because it was untimely.

During the merits hearing held on February 14, 2008, Koita testified that he was a

Secretary of the Association of Pupils and Students of Mali (“AEEM”), a student

organization at the Faculté des Sciences Juridiques et Economiques (part of the

University of Bamako), a public university. Koita attended the university for about five

months from November, 1999 to March, 2000, and he hoped to become a lawyer. As one

of five Secretaries in AEEM, Koita served as a liaison between the students and

organization leaders. During the relevant time period, January, 2000, through March,

2000, AEEM complained to the government that teachers were not being paid and

students were not receiving stipends for books and supplies. The government was

unresponsive and AEEM called for a strike. Shortly after the strike began in March,

2000, Koita fled to Niger and eventually came to the United States. 

Koita testified that he learned from letters that five AEEM members were arrested
3

during the strike. Since the strike, police have continued to search for him. He has

monthly contact with his mother, who remains in Mali, and she has told him that, as

recently as 2007, the police came to her home looking for him. As a result of the

government’s continued pursuit of him for his involvement in AEEM, an organization the

government believes is trying to destroy the country, he fears that he will be put in jail

and killed if he returns to Mali. On cross-examination, Koita admitted that he was never

injured or arrested before or during the 2000 strike. He told the IJ that he did not timely

file for asylum when he first came to the United States because he hoped that conditions

in Mali would improve.

Koita presented numerous exhibits in support of his case, including, in pertinent

part, the 2002, 2003, 2005 and 2006 U.S. State Department Country Reports on Human

Rights Practices in Mali; the 1995 State Department’s Profile of Asylum Claims and

Country Conditions in Mali; an item entitled “VERBAL LAWSUIT,” which appears to

be committee minutes from a meeting of the student association from March 2, 2000,

A.R. 283-84; a letter from Modibo Kane Fofana, General Secretary of AEEM, dated

March 10, 2004, A.R. 275-76; a letter from the General Secretary of AEEM, dated

February 7, 2005 and addressed to Koita, A.R. 279-80; a certificate of Koita’s attendance

at the University, A.R. 287-88; the 2003 State Department’s Background Note on Mali,

A.R. 344-53; and a letter addressed to Koita from the Secretary General of the

Coordination Committee of AEEM, Cheick Mohamed Bady, dated July 20, 2007,
 The IJ specifically discussed the 2006 Country Report, which states, under the 1

“Freedom of Assembly” section, that, on November 13, 2006, police fired tear gas into a

demonstration of medical students who were seeking higher stipends from the

government. Five students, including a woman, were arrested, charged with damaging

property, and held for six days before being released. The students’ union claimed that

the five were physically and sexually abused while in police custody. A.R. 227.

4

indicating that there was still a search for certain unidentified students going on in Mali

and advising Koita to stay in exile, A.R. 269-70.

The Immigration Judge denied all relief, concluding that Koita had not testified

credibly, and, in the alternative, that he failed to meet his burden of proof for entitlement

to withholding of removal under the statute or the CAT. Specifically, the IJ found that

Koita did not suffer past persecution; therefore, he was not entitled to a presumption of

future persecution. In addition, he failed to meet his burden of proof to establish that he

faced a “clear probability” of future persecution on account of his political opinion. The

IJ found that there was no evidence that would establish objectively that there was a risk

to any exiled students who had previously participated in the 2000 strike. Koita’s

exhibits, including the 2006 Country Report, while referencing difficulties between

students and the government, did not support his contention concerning the plight of

students who had been in exile since 2000. 

1

Furthermore, the IJ concluded that Koita failed to prove that he would be singled

out for persecution upon his return to Mali. Noting that a great deal of time had passed

since the 2000 demonstration/strike, the IJ faulted Koita for failing to present independent
5

evidence from his mother, for example, that would support his assertion that he

specifically was the target of a continuing investigation, especially since he talked to his

mother on a monthly basis. The IJ also concluded that Koita had not shown that it was

more likely than not he would be tortured in Mali. The IJ ordered Koita removed to Mali. 

Koita appealed to the Board of Immigration Appeals.

In a decision dated June 23, 2009, the Board assumed without deciding that Koita

had testified credibly, but the Board agreed with the IJ that Koita simply had not met his

burden of proof even assuming that he testified credibly. The Board agreed with the IJ,

for the reasons given by the IJ, that Koita had not established past persecution or a clear

probability of future persecution. As to the probability of future persecution in particular,

the Board specifically held that, because Koita claimed that his mother told him that

authorities continued to look for him in Mali, it was reasonable to expect him to provide

an affidavit or letter from her, or other persuasive, first-hand evidence, to substantiate this

claim. Without the letter from his mother, his claim that Mali authorities continued to

look specifically for him over nine years after his departure was otherwise based only on

“oral hearsay.” A.R. 3-4. The Board agreed with the IJ’s CAT conclusion as well. Koita

timely petitioned for review of the Board’s decision.

We will deny the petition for review. We have jurisdiction to review the final

order of removal under 8 U.S.C. § 1252(a)(1), (b)(1). Where the Board adopts and

affirms the opinion of the IJ, we review the IJ’s decision to the extent of the adoption and
6

affirmance. See Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. 2001). The agency’s

factual determinations are upheld if they are supported by reasonable, substantial, and

probative evidence on the record considered as a whole. Immigration & Naturalization

Serv. v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Under this deferential standard, the

petitioner must establish that the evidence does not just support a contrary conclusion but

compels it. See id. at 481 n.1; Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). The

alien bears the burden of proof of establishing that he is a refugee and that he has suffered

past persecution or has a well-founded fear of persecution. See id.; 8 C.F.R. §

1208.13(a).

Under INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A), withholding of removal is

not discretionary: “The Attorney General may not remove an alien to a country if the

Attorney General decides that the alien’s life or freedom would be threatened in that

country because of the alien’s race, religion, nationality, membership in a particular social

group or political opinion.” The test for relief is, however, more exacting than the asylum

test because it requires the alien to show by a “clear probability” that his life or freedom

would be threatened on account of a protected ground in the proposed country of

removal. Immigration & Naturalization Serv. v. Stevic, 467 U.S. 407 (1984). See also

Immigration & Naturalization Serv. v. Cardoza-Fonseca, 480 U.S. 421, 430 (1987)

(“would be threatened” standard has no subjective component). Persecution is defined as

“threats to life, confinement, torture, and economic restrictions so severe that they
 Koita also waived review of his CAT claim. See id. In view of that waiver, we will 2

not address the CAT issue.

7

constitute a threat to life or freedom.” Kibinda v. Att’y Gen. of U.S., 477 F.3d 113, 119

(3d Cir. 2007) (quoting Fatin v. Immigration & Naturalization Serv., 12 F.3d 1233, 1240

(3d Cir. 1993)). It refers only to “severe” conduct and “does not encompass all treatment

our society regards as unfair, unjust or even unlawful or unconstitutional.” Id. 

Koita has waived the issue of whether he suffered past persecution. See

Petitioner’s Brief, at 15 n.4. The record in any event does not compel a finding of past 2

persecution because Koita was never arrested or harmed on account of his affiliation with

the student organization, AEEM. He has not identified a single event that caused him

extreme harm or suffering sufficient to meet the standard of persecution. See Kibinda,

477 F.3d at 119; Fatin, 12 F.3d at 1240. Because he failed to establish past persecution,

he was not entitled to the future persecution presumption. See 8 C.F.R. §

1208.16(b)(1)(i). With respect to the future persecution issue, the Board’s and IJ’s

determination that Koita did not show a clear probability that the government of Mali

would arrest or harm him now on the basis of his political activities in 2000 was

supported by reasonable, substantial, and probative evidence on the record considered as

a whole. Elias-Zacarias, 502 U.S. at 481. 

Koita failed to present any persuasive evidence that the Mali government currently

seeks out members of the student group AEEM who played some role in the 2000
8

strike/demonstration. Because Koita’s problems in Mali are so remote in time, it was not

sufficient for him to show merely that he was involved with AEEM ten years ago. The

record establishes that Koita offered Country Reports, internet articles, and letters, some

of which were addressed to him or referenced him, in support of his allegations. The IJ

did not ignore Koita’s documentary evidence. In his brief, Koita specifically discusses

four items. See Petitioner’s Brief, at 11-12. The letter from Cheick Mohamed Bady

describes trouble at the Faculté des Sciences Juridiques et Economiques at the beginning

of 2007 and states that leaders have been imprisoned. It warns exiled students to stay

away but it does not persuasively state that government authorities have any interest in

arresting students who participated in the 2000 strike/demonstration. A.R. 269. 

The March 10, 2004 letter from Secretary General Modibo Kane Fofana states that

demonstrators had been gassed and 40 students had been arrested. A.R. 275. This

recounting of events appears, however, to refer to recent difficulties and not the 2000

strike/demonstration. Furthermore, the letter makes no persuasive reference to

government authorities having any current interest in students who participated in the

2000 strike/demonstration. The February 7, 2005 letter from an unidentified AEEM

General Secretary states that the crisis started up again in 2004-2005. The author “lost”

three of his friends and even “actual leaders” were on a “black list.” A.R. 279. The

author warns exiled students to stay away, but, again, the letter makes no persuasive

reference to government authorities having any current interest in students who
 One other internet article specifically included in Koita’s appendix, entitled “Mali: 3

Institutional Situation,” which appears to have been authored by a person or persons

connected with Montesquieu Univerity-Bordeaux, France, states that AEEM is “the most

antiestablishment of the Malian union movements. Its actions laid down the foundations

of the ‘revolution’ that overthrew the dictatorship [of General Moussa Traoré in 1991]. 

Recent action comprised the academic year 1998-99.” A.R. 297. This article does not

even reference the 2000 strike/demonstration.

9

participated in the 2000 strike/demonstration. Last, the March 2, 2000 minutes (“Verbal

Lawsuit”) from a student meeting held at the University states that the situation is tense

and certain “comrades” were in prison, but the letter states that Koita himself was known

to have gotten out of Mali. A.R. 283. These minutes do not address current conditions in

Mali.3

The IJ properly gave little weight to Koita’s documentary evidence and properly

concluded that it was inadequate to support an assertion that the government of Mali is

currently interested in detaining and harming AEEM members who participated in the

2000 strike/demonstration. In light of the insufficient evidence, the IJ and the Board

properly focused on the only thing that specifically supported Koita’s purported fear of

harm: that his mother has told him that authorities continued to look for him in Mali. But

Koita did not provide an affidavit or letter from his mother, or other persuasive evidence

to substantiate this assertion, and his failure to present any documentation from his

mother was not reasonable because he testified that he talks to her on a monthly basis. 

Koita contends in his brief that the Board erred in denying his claim based on the

absence of corroborative evidence from his mother. See Petitioner’s Brief, at 9-10. We
10

have held that corroboration may be required, even from credible applicants, see Abdulai,

239 F.3d at 554, where it is (1) reasonable to expect the applicant to produce

corroboration, (2) the applicant fails to corroborate, and (3) the applicant fails to

adequately explain that failure. Chukwu v. Att’y Gen. of U.S., 484 F.3d 185, 191-92 (3d

Cir. 2007) (citing Toure v. Att’y Gen. of U.S., 43 F.3d 310, 323 (3d Cir. 2006). The IJ

and the Board in Koita’s case fully complied with this test. The Board, for example,

concluded that it was reasonable to expect corroboration because Koita’s assertions

otherwise were based on hearsay and were not persuasive. Moreover, Koita claimed that

his mother had personal knowledge of the Mali authorities’ continued interest in him nine

years after the 2000 strike, and he testified that he talked to his mother as recently as

January, 2008. When questioned, he had no reasonable explanation for his failure to

request a letter from his mother corroborating his claims. A.R. 190-193.

Last, Koita contends that the Board acted improperly in not reaching the issue of

his credibility. This argument lacks merit because the Board, indeed any court or agency,

is not required to decide an issue that is not necessary to the result it reaches. See

Immigration & Naturalization Serv. v. Bagamasbad, 429 U.S. 24, 25 (1976). In light of

the substantial evidence that supported the Board’s determination that Koita’s fear of

future persecution was not clearly probable, the Board was not required to address his

credibility.

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