F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 22 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
DAVID NYOMBI,
Petitioner,
v. No. 02-9563
(BIA No. A75 376 902)
JOHN ASHCROFT, United States (Petition for Review)
Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before BRISCOE and McKAY , Circuit Judges, and BRORBY , Senior Circuit
Judge.
Petitioner David Nyombi seeks review of the Board of Immigration Appeals
(BIA) decision denying his application for asylum, withholding of removal, and
relief under the Convention against Torture. The BIA affirmed the oral decision
of the immigration judge (IJ) without analysis, making the IJ’s decision the final
agency determination for purposes of appellate review. See Tsevegmid v.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Ashcroft , 336 F.3d 1231, 1235 (10th Cir. 2003). We have jurisdiction to consider
this petition for review of the agency’s denial of asylum. See id. at 1234. 1
On appeal, Mr. Nyombi does not address his claim under the Convention against
Torture; therefore it is waived. See State Farm Fire & Cas. Co. v. Mhoon ,
31 F.3d 979, 984 n.7 (10th Cir. 1994).
The IJ denied Mr. Nyombi’s applications for asylum and withholding of
removal based solely on his conclusion that Mr. Nyombi’s version of the facts
was not credible, a finding of fact. See Secaida-Rosales v. INS , 331 F.3d 297,
307 (2d Cir. 2003). The applicable standard of review for such findings, taken
verbatim from the Illegal Immigration Reform & Immigrant Responsibility Act
(IIRIRA), is that they are deemed “conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B). That
standard does not, however, require us to uphold the IJ’s negative credibility
finding unless we determine that a reasonable adjudicator would find
Mr. Nyombi’s story credible, as argued by respondent in this case. See Resp. Br.
at 24. Many circuits have held that the standard set out in § 1252 codifies the
substantial evidence standard previously set forth by the Supreme Court in INS v.
1
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
-2-
Elias-Zacarias , 502 U.S. 478, 481 (1992). See Dia v. Ashcroft , No. 02-2460,
2003 WL 22998113, *n.17 (3d Cir. Dec. 22, 2003) (en banc) (collecting cases);
Rivera-Jimenez v. INS , 214 F.3d 1213, 1216 n.4 (10th Cir. 2000) (“[N]o federal
court has held that this statutory provision modifies the substantial evidence
standard previously applied.”). Under the substantial evidence standard, we do
not weigh the evidence or evaluate Mr. Nyombi’s credibility, but we do examine
the agency’s determination to see whether there is a rational connection between
the credibility determination and the stated reasons therefor. See Woldemeskel v.
INS , 257 F.3d 1185, 1189 (10th Cir. 2001). Because an alien’s testimony alone
may support an application for asylum, 8 C.F.R. § 208.13(a), an IJ must give
“specific, cogent reasons” for disbelieving the testimony. See Secaida-Rosales ,
331 F.3d at 307 (further quotation omitted).
Mr. Nyombi, a native Ugandan, submitted two applications for asylum.
The first he completed with help from an INS interpreter, Mr. Muwenga, who told
Mr. Nyombi to say that he was a member of a human rights organization in
Uganda. Mr. Nyombi’s first application stated that he and his family members
were active members of Human Rights Africa. Admin. R. at 245-55. Before an
asylum officer, Mr. Nyombi testified that he worked part-time for this
organization, which had 1200 members in his area, and that he was the Assistant
Director of a local office of the organization, where he taught children not to join
-3-
the rebel movement. He also testified to the events resulting in the deaths of his
parents and his own incarceration, mistreatment, and interrogation by government
soldiers. He stated that an official of the human rights organization secured
his release from prison, after which time he came to this country. Id. at 116.
A second asylum officer concluded that Mr. Nyombi was not eligible for asylum.
The officer noted that his application was similar to others which had been
referred to fraud investigations involving Mr. Muwenga and other applicants from
Uganda and Ghana. The officer concluded that Mr. Nyombi’s allegations lacked
credibility because of their similarity to those in other applications and by recent
reports from Uganda about the treatment of human rights organization members.
Id. at 117.
After his application was referred to the immigration court, Mr. Nyombi
sought counsel. He submitted a second application, without the allegations
involving Human Rights Africa, but otherwise substantially similar to the facts
in his original application. See id. at 129-38. At his hearing before the IJ,
Mr. Nyombi acknowledged that his allegations about Human Rights Africa were
false, id. at 101, but stated that the balance of his story was true. His application
for asylum was based on imputed political opinion. Mr. Nyombi testified that his
father was arrested by government soldiers on suspicion of harboring rebels on
his farmland. When his father resisted arrest, he was shot in front of his home.
-4-
His mother was then taken by the soldiers. Id. at 73-78. When Mr. Nyombi went
in search of his mother in prison, he was himself incarcerated, suffering beatings
and other mistreatment, and interrogated about his father’s activities and his own
involvement with the rebels. Id. at 80-91. Mr. Nyombi testified that it was his
employer, not a member of Human Rights Africa, who secured his release from
prison. Id. at 92-94.
Unlike the asylum officer, the IJ did not base his credibility finding on the
admitted fact that Mr. Nyombi’s first application contained falsehoods. He
alluded to the differences between the two applications, but gave three specific
reasons for finding Mr. Nyombi not credible–reasons separate and apart from
Mr. Nyombi’s allegations about Human Rights Africa. First, the IJ found it
incredible that Mr. Nyombi was imprisoned and abused in light of the fact that he
was himself a government employee. 2
Id. at 49. The IJ, while acknowledging the
abysmal human rights record in Uganda, opined that “a government employee is
usually regarded as being loyal until proven otherwise.” Id. As Mr. Nyombi
argues on appeal, this statement has no support in the record. While we normally
defer to the IJ on matters of credibility, “that deference is expressly conditioned
on support in the record.” Dia , 2003 WL 22998113 at *14 (further quotation
2
Mr. Nyombi testified that he worked as an agricultural assistant at
Mityana Station, a district funded by the government. Admin. R. at 72-73.
-5-
omitted). Further, the IJ’s conclusion ignores Mr. Nyombi’s testimony that he
was interrogated about his involvement with the rebels because his father had
been accused by village chiefs and resistance counsel members of harboring
rebels on his land and giving them food.
Second, the IJ notes that Mr. Nyombi’s first application contained
allegations about his alleged involvement with Human Rights Africa, which the IJ
concluded demonstrated that Mr. Nyombi “spent a great deal of time
manufacturing his story.” Admin. R. at 50. The IJ also stated that it was difficult
to believe that his second application was true because Mr. Nyombi waited nearly
a year and a half before coming forward to admit to the falsehoods in the first
application. Id. These statements do not support the IJ’s negative credibility
finding. Speculation about how much time Mr. Nyombi spent on his story about
Human Rights Africa does not suggest that the balance of his story is false, and
fails to acknowledge or address the fact that Mr. Nyombi did come forward and
admit the falsehoods at his next scheduled appearance before the agency, and
explained that he was told to include the falsehoods by Mr. Muwenga. The IJ’s
blanket rejection of Mr. Nyombi’s testimony also fails to acknowledge the
documentary evidence which supports key points of Mr. Nyombi’s story about his
parents’ deaths and his employment in Uganda. See id. at 139-46.
-6-
The IJ’s third stated reason was his rejection of a psychologist’s opinion
that Mr. Nyombi suffers from posttraumatic stress disorder (PTSD). The IJ
appears to have substituted his own opinion for that of a medical professional
when he stated that if Mr. Nyombi were suffering from PTSD, “I do not believe
it is from the allegations that he has made.” Id. at 50. Essentially, the IJ started
with the conclusion that Mr. Nyombi’s story was not credible; therefore this
reasoning does not support his credibility determination.
We conclude that the IJ’s credibility determination does not merit deference
in this case because it “is based on speculation, conjecture, or an otherwise
unsupported personal opinion,” which cannot be upheld “because it will not have
been supported by such relevant evidence as a reasonable mind would find
adequate.” Dia , 2003 WL 22998113 at *14. We need not, and are not,
concluding that Mr. Nyombi’s testimony is credible. See id. at *24. Because the
IJ’s decision lacks support from substantial evidence in the record, the BIA
improperly affirmed the decision. Accordingly, we GRANT the petition for
review and VACATE the BIA’s order. The matter is REMANDED to the agency
for further proceedings on Mr. Nyombi’s application.
Entered for the Court
Wade Brorby
Senior Circuit Judge
-7-