Nyombi v. Ashcroft

US Court of Appeals for the Tenth Circuit

2004 U.S. App. LEXIS 961

An Immigration Judge (IJ) denied the respondent’s application for asylum, withholding of removal and relief under the Convention Against Torture.  The Board of Appeals affirmed without opinion.  On appeal, the respondent did not argue the CAT claim. While the Court did not evaluate the respondent’s credibility, the court did seek to determine if the there is a rational connection between the credibility determination and the reasons offered for the decision.

With the filing of his first asylum application, the respondent, a native of Uganda, was assisted by an INS interpreter who had previously been involved with fraudulent applications.  The interpreter told the respondent to state that he was part of a human rights organization in Uganda. The asylum officer determined that the respondent’s statements lacked credibility because of the similarity to those in other fraudulent applications and recent reports from Uganda about the treatment of human rights organization members.

The respondent then filed a second application prior to appearing before the IJ.  He stated the information previously provided about his involvement with a human rights organization was not true, but argued that the other statements regarding the murder of his father and the beatings that he suffered were true.  The IJ based his credibility finding on issues other than the discrepancies between the two applications. 

First, the IJ believed the respondent was not abused because he was a government employee.  However, the Court stated that this statement had no support in the record and deference is expressly conditioned on support in the record. 

Second, the IJ noted that the false claims in the first application demonstrate that the respondent spent a great deal of time constructing his story.  The Court noted that this does not affect whether or not the rest of his story is false.  The rejection of his testimony also failed to acknowledge the evidence, which supported key points in his testimony.

Third, the IJ rejected a psychologist’s opinion that the respondent suffered from post-traumatic stress disorder.  The Court found that the IJ substituted his own opinion for that of a medical practitioner.

Based upon these findings, the Court held that the IJ’s determinations did not merit deference because it was not supported by relevant evidence and was based on “speculation, conjecture, or an otherwise unsupported personal opinion.”  However, the Court did not find that the respondent’s testimony was credible.  The matter was remanded to the agency for further proceedings.

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Mengistu v. Ashcroft

US Court of Appeals for the Seventh Circuit

2004 U.S. App. LEXIS 912

Thomas Mengistu, a citizen of Ethiopia of Eritrean decent, petitioned for review of the order of the Board of Immigrations Appeals (BIA) denying his motion to reopen deportation proceedings.

Mengistu filed a motion to reopen his case as a result of changed country conditions in Ethiopia in 2000.  At the time, Ethiopia and Eritrea were at war with each other, and Ethiopia began persecuting persons of Eritrean descent living in Ethiopia.  The war ended in December 2000, and the immigration service responded to the motion in April 2001.  The denial stated that because the war had ended, the Appellant’s changed country conditions claim was no longer valid.  

In granting Mengistu’s motion, the Seventh Circuit Court of Appeals found that the evidence that Ethiopia was beginning to withdraw its troops from Eritrea following end of war between the two countries, and that a United Nation’s peacekeeping mission had been dispatched was insufficient to demonstrate that conditions in Ethiopia had changed from what they were during war to warrant denial of the Appellant's motion to reopen based on changed country conditions.