                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                        F I L E D
                                                                          July 1, 2004
                           UNITED STATES COURT OF APPEALS
                                                                    Charles R. Fulbruge III
                                        FIFTH CIRCUIT                       Clerk
                                       _________________

                                             No. 03-60583

                                       (Summary Calendar)
                                       _________________


GODFREY MAYOMBWE MUTEBI,


                               Petitioner,

versus


JOHN ASHCROFT, U.S. ATTORNEY GENERAL,


                               Respondent.



                               Petition for Review of an Order of the
                                   Board of Immigration Appeals
                                       BIA No. A79 509 417



Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

         Godfrey Mayombwe Mutebi, a native and citizen of Uganda, petitions this court for review




         *
          Pursuant to 5th Cir. R. 47.5, the court has determined t hat this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
of the Board of Immigration Appeal’s (“BIA”) summary affirmance of the Immigration Judge’s (“IJ”)

decision denying his application for asylum. Mutebi argues that the IJ’s decision is not supported by

substantial evidence because the record shows he is eligible for asylum due to his past persecution

on the ground of an imputed political opinion. The IJ found that Mutebi’s testimony was credible but

concluded that he nevertheless did not meet the statutory definition of a “refugee,” consequently,

there are no credibility determinations at issue in this matter. See Mikhael v. INS, 115 F.3d 299, 303

(5th Cir. 1997).

        This court must uphold the IJ’s decision that Mutebi is not eligible for asylum unless the

evidence presented was so compelling that no reasonable factfinder could fail to find the requisite fear

of persecution. See INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992). The IJ determined that

Mutebi was tortured because of his involvement in the controversial sale of a jet owned by the

Ugandan government. After examining the evidence in this case it is clear that the IJ incorrect ly

determined that Mutebi was tortured in part to obtain information regarding the jet sale because this

sale took place after Mutebi was tortured. This finding is not supported by substantial evidence. The

BIA must determine whether Mutebi has established that the persecution he suffered was motivated

in part by Mutebi’s imputed political opinions, taking into consideration that Mutebi could not have

been tortured to obtain information about the jet sale.

        The petition for review is GRANTED, the BIA’s summary affirmance of the IJ”s ruling is

REVERSED and the case is REMANDED to the BIA.




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