                                                                            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      This order and judgment is not binding precedent, except under the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


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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

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