1 The INS has since been subsumed into the newly created

Department of Homeland Security.

In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-2813

OLEKSANDR BOYANIVSKYY,

Petitioner,

v.

ALBERTO R. GONZALES,

Respondent.

____________

Petition for Review of an Order of the

Board of Immigration Appeals.

No. A78-110-767

____________

ARGUED NOVEMBER 29, 2005—DECIDED JUNE 9, 2006

____________

Before MANION, WILLIAMS, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Oleksandr Boyanivskyy, a Ukrainian by ethnicity and citizenship, sought asylum in the

United States, claiming the police in Ukraine persecuted

him because of his marriage to a Jewish woman. He

traveled from Ukraine to Mexico, then made two failed

attempts to enter the United States illegally. After his

second attempt, the Immigration and Naturalization

Service1

 placed him into removal (deportation) proceedings.

An immigration judge held that Boyanivskyy was remov-
2 No. 05-2813

2 The immigration judge’s decision denied Boyanivskyy “deferral

of removal” under the Convention Against Torture, but the

applicable form of relief—and the relief Boyanivskyy sought—is

“withholding of removal” under the Convention. “Deferral of

removal” applies if an alien is statutorily ineligible for withholding because he has committed certain crimes or presents a danger

to the security of the United States. 8 C.F.R. §§ 208.16(c)(4),

208.17(a). There is no suggestion Boyanivskyy is subject to

mandatory denial of withholding of removal.

able and not entitled to asylum or withholding of removal,

and also not entitled to “deferral of removal” under the

Convention Against Torture (“CAT”).2

 The Board of Immigration Appeals (“BIA”) adopted the immigration judge’s

decision without opinion.

Boyanivskyy raises several issues in his petition for

review; we need address only one. He argues that the

immigration judge denied him a fair hearing by excluding

key evidence supporting his persecution claim. We agree

that Boyanivskyy’s immigration hearing was statutorily

insufficient because the immigration judge excluded critical

material evidence bearing directly on his claim of persecution. We therefore grant his petition for review, vacate the

BIA’s decision, and remand for further proceedings.

I. Background

Boyanivskyy first attempted to cross from Mexico into the

United States on February 13, 2000. United States border

agents were not fooled by the photo-altered Austrian

passport he showed them and they sent him back to Mexico.

On February 24, 2000, Boyanivskyy tried to cross the

border again, this time showing up with no documentation

at all and telling border agents he lost his papers in Mexico.

Border agents interviewed Boyanivskyy at some length and

generated several documents relating to Boyanivskyy’s
No. 05-2813 3

second attempted entry. These documents contain internal

inconsistencies and errors that weaken their reliability, but

two of them indicate Boyanivskyy falsely claimed to be a

United States citizen during his attempted entry on

February 24. Boyanivskyy denies that he ever claimed

United States citizenship.

A border agent specifically asked Boyanivskyy if he had

any “fear or concern about being returned” to Ukraine. He

answered: “Yes. I fear to go back because I can not feed my

family; I can not earn enough money to feed my family.”

When the agent followed up by asking whether he had any

concerns “[o]ther than economic concerns,” Boyanivskyy

simply repeated his financial worries: “Yes. My salary in

Ukraine was fifteen dollars per month. I could not support

my family with the amount of money that I made.” During

the entire February 24 interview, Boyanivskyy never

mentioned anything about being persecuted on account of

his marriage to a Jewish woman.

The government initiated removal proceedings against

Boyanivskyy that culminated in an immigration hearing

that began on October 31, 2002, and continued on January 6 and 8, 2004. At the hearing Boyanivskyy conceded

he was removable because he lacked the required entry

documents. The immigration judge also found Boyanivskyy

was removable for falsely claiming United States citizenship during his second attempt to enter the country. The

remainder of the hearing focused on Boyanivskyy’s effort to

persuade the immigration judge to grant him asylum,

withholding of removal, or relief under the CAT because

he had been persecuted in Ukraine on account of his

marriage to a Jewish woman and would face further

persecution if returned.

Boyanivskyy planned to show a likelihood of persecution

through his own testimony about past persecution he had

suffered, including several violent beatings; the testimony
4 No. 05-2813

of Dr. Jeffrey Burds, an expert on Ukrainian country

conditions; and the testimony of two of his former neighbors

in Ukraine, Igor Zarichnyak and Vasyl Yakovishak.

Boyanivskyy provided advance notice of the substance of

these witnesses’ prospective testimony by submitting a

prehearing affidavit from Dr. Burds and unsworn written

statements from Zarichnyak and Yakovishak. Dr. Burds’s

nineteen-page affidavit discussed Ukrainian anti-Semitism

in detail and concluded that Boyanivskyy’s account of the

persecution he faced for marrying a Jewish woman “directly

conform[s] to patterns of dramatically escalating antiJewish and anti-Russian violence throughout Ukraine since

November 1991, when Ukraine declared independence from

the former Soviet Union.” Based on his numerous visits to

Boyanivskyy’s hometown of Ivano-Frankivsk, Burds found

Boyanivskyy’s version of events “probable and persuasive.”

He also noted the “systematic failure of the Ukrainian

government to prosecute crimes committed against ethnic

Russians and Jews.”

Lay witnesses Zarichnyak and Yakovishak would have

testified to the ill treatment Boyanivskyy and his wife,

Ivanna, endured in Ivano-Frankivsk. Zarichnyak’s statement gave a general description of the harassment and

discrimination Boyanivskyy suffered from the time he

married Ivanna; it also said Ivanna had endured antiSemitic discrimination all her life. Yakovishak’s statement

likewise described the verbal abuse, threats, and insults

Boyanivskyy and his wife experienced in Ivano-Frankivsk.

He also indicated in his statement that while driving home

on the evening of September 21, 1998, he witnessed six men

beating Boyanivskyy “in the vicinity of the station.” (The

context suggests he meant the police station.) According to

his written statement, Yakovishak recognized at least one

of the attackers as an Ivano-Frankivsk police officer, though

the man wore civilian clothing. Yakovishak says he found

Boyanivskyy lying unconscious on the ground and called an

ambulance to take him to the hospital.
No. 05-2813 5

Boyanivskyy testified at his hearing that he experienced

persecution in Ivano-Frankivsk beginning at the time of his

marriage to Ivanna in September 1997. He is Orthodox

Christian; Ivanna is Jewish. The worst of what Boyanivskyy

described were three severe beatings he suffered in September 1998, and May and December 1999. In September 1998,

Boyanivskyy reported to police that his car had been stolen.

On September 21, about ten days after he reported the

stolen car, the police asked Boyanivskyy to come to the

station to receive a report indicating the case would be

closed because they deemed it a “non-criminal act.”

Boyanivskyy said he reported as requested, and shortly

after he left the police station, six men in civilian clothing

assaulted him. The attackers made it clear they knew he

had reported his car stolen and that he was targeted for

attack because he was married to a Jewish woman. They

repeatedly called Boyanivskyy and his wife “kikes” while

they punched and kicked him. The beating left him with

a concussion, a dislocated jaw, bruised ribs, and eyes that

were swollen shut. Boyanivskyy recalled that his friend

Yakovishak called an ambulance that took him to a hospital

where he remained for fifteen days. For a week and a half,

Boyanivskyy had trouble walking. He could not say for

certain whether his attackers were police officers, but he

suspected they were at least connected with the police

because they knew his car had been stolen and the attack

occurred shortly after he had been called to the police

station.

The second beating came on May 12, 1999, as

Boyanivskyy walked home from work. Three men attacked

him and told him he could not “have kids with a kike.”

Ivanna was five months pregnant at the time. This assault

was so violent that Boyanivskyy was hospitalized for over

a month with injuries ranging from a brain hematoma to a

dislocated collar bone.
6 No. 05-2813

Ivanna gave birth to the Boyanivskyys’ first child, a son,

in September 1999, and they began receiving telephone

death threats from unidentified callers soon after. The

callers made it clear they disapproved of the mixed marriage and were particularly incensed about the couple

having children. Boyanivskyy had not reported either the

September 1998 or the May 1999 beating to police—he

feared notifying the police would only exacerbate his

problems—but in November 1999 he submitted a written

request asking the police to investigate the death threats.

Boyanivskyy explained that despite his concern that the

police might retaliate against him for reporting the threats,

he feared greatly for his son’s safety and did not know what

else to do, so he filed the request with the police. The IvanoFrankivsk police opened a criminal investigation, but there

is no evidence that any suspects were arrested or prosecuted.

Boyanivskyy suffered a third assault the next month, in

December 1999. As he left his workplace, two men confronted him and one threatened him with a gun, pointing it

between his eyes. The men wore civilian clothes, but

Boyanivskyy recognized the man with the gun as a “militia”

man whom he had seen many times wearing a police

uniform and patrolling the train station. The man with the

gun told Boyanivskyy he would kill him because he had

been “warned on several occasions” yet he “continue[d]

living with a kike” and had a child with her. He then struck

Boyanivskyy in the head with the gun, causing great pain

and swelling. It is unclear whether Boyanivskyy was

hospitalized following this incident, but he reported seeing

a doctor daily for about two weeks. He says his doctor xrayed his head, put him on an “IV,” and gave him “injections” and medication. The record contains medical documentation verifying Boyanivskyy’s treatment for serious

injuries after each of the three beatings. Boyanivskyy left

Ukraine the next month, January 2000, and made his failed

attempts to enter the United States one month after that.
No. 05-2813 7

Boyanivskyy’s three witnesses, Dr. Burds, Zarichnyak,

and Yakovishak, had all been available to testify—either in

person or by telephone—on the first two days of the hearing

(October 31, 2002, and January 6, 2004). But by the end of

the day on January 6, the hearing had only just progressed

to the point where their testimony would appropriately fit.

Boyanivskyy’s counsel asked the immigration judge to

continue the hearing to a date on which his witnesses could

again be available, but the judge insisted on resuming the

hearing on January 8, a date when all three witnesses were

unavailable. According to Boyanivskyy’s counsel, when

Boyanivskyy finished testifying on January 8, the immigration judge told him he would be resting his case because the

judge was ready to render a decision. Counsel reports a

“heated argument” ensued over whether a continuance was

necessary for Boyanivskyy to present his corroborating

witnesses. The transcript strangely contains none of this

“argument” but simply says “OFF THE RECORD.” Once

back on the record, the immigration judge made the

following contradictory remarks: “All right. It’s my understanding the parties have rested. The respondent would like

to call another witness. I am denying that request, Mr.

Kocol [Boyanivskyy’s counsel]. The respondent would rest.”

The immigration judge then rendered an oral decision

denying all relief sought by Boyanivskyy and ordering him

removed from the country. This decision flowed from the

judge’s finding that Boyanivskyy’s testimony lacked credibility. The immigration judge cited the following reasons for

the adverse credibility determination: Boyanivskyy’s failure

to mention any marriage-related persecution to the border

agents who interviewed him on February 24, 2000; his

denial that he falsely claimed United States citizenship;

and his testimony that he filed a report with the police

when his family received death threats after the birth of his

son, which the judge perceived as irreconcilable with

Boyanivskyy’s professed fear of the police.
8 No. 05-2813

The immigration judge stated he would receive Dr.

Burds’s affidavit “for the truth of the matter asserted,” but

then completely disregarded it, finding the expert’s opinion

“lost on this case” because—in the judge’s view, at

least—the expert’s affidavit simply assumed Boyanivskyy’s

testimony was true. The immigration judge also gave

no weight to the unsworn prehearing statements of

Zarichnyak and Yakovishak, concluding that their testimony would be worthless. He dismissed Zarichnyak’s

statement as incredible because it referred to an additional run-in Boyanivskyy had with the “militia” that

Boyanivskyy had not mentioned in his own testimony

(perhaps because this brush with the militia did not result

in his hospitalization). As far as we can tell, the immigration judge discredited Yakovishak’s statement solely

because it corroborated Boyanivskyy’s account of his first

severe beating, an account the judge had already deemed

incredible.

II. Analysis

When the BIA affirms an immigration judge’s decision

without opinion, we review the immigration judge’s decision

as the final agency determination. Georgis v. Ashcroft, 328

F.3d 962, 966-67 (7th Cir. 2003). The procedural sufficiency

of an immigration hearing is a legal question, which we

review de novo. See Kerciku v. I.N.S., 314 F.3d 913, 917 (7th

Cir. 2002).

Boyanivskyy argues that the immigration judge’s refusal

to continue his hearing to enable his three witnesses to

testify prejudiced his claims for asylum and withholding of

removal by excluding critical corroborating evidence in
No. 05-2813 9

3 Boyanivskyy would qualify for asylum by showing “a wellfounded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion”

if returned to his country of origin. 8 U.S.C. § 1101(a)(42); 8 C.F.R.

§ 208.13(a). To be eligible for withholding of removal under federal

immigration law, he must show that his “life or freedom would be

threatened” in Ukraine on account of those same factors. 8 U.S.C.

§ 1231(b)(3)(A); 8 C.F.R. § 208.16(b). He is eligible for withholding

of removal under the Convention Against Torture (“CAT”) if he

shows it is more likely than not that if removed to Ukraine, he

will be subject to torture. 8 C.F.R. § 208.16(c)(2). “Torture” is

defined in relevant part as “any act by which severe pain or

suffering, whether physical or mental, is intentionally inflicted on

a person . . . based on discrimination of any kind, when such pain

or suffering is inflicted by or at the instigation of or with the

consent or acquiescence of a public official or other person acting

in an official capacity.” 8 C.F.R. § 208.18(a)(1). His CAT claim

requires government involvement or acquiescence in torture.

support of his persecution claim.3 The government questions

our jurisdiction to review this decision because 8 U.S.C. §

1252(a)(2)(B) strips courts of jurisdiction to review denials

of discretionary immigration relief. A decision on a motion

to continue an immigration hearing is discretionary and

generally falls within this door-closing provision.

Benslimane v. Gonzales, 430 F.3d 828, 831-32 (7th Cir.

2005); Subhan v. Ashcroft, 383 F.3d 591, 595 (7th Cir.

2004). But where the denial of a continuance operates to

nullify some statutory right, Subhan, 383 F.3d at 595, or

leads inescapably to a substantive adverse decision on the

merits of an immigration claim, Benslimane, 430 F.3d at

832, we retain jurisdiction despite § 1252(a)(2)(B)’s restrictions. “An immigration judge cannot be permitted, by

arbitrarily denying a motion for a continuance without

which the alien cannot establish a ground on which Congress has determined he is eligible to seek to remain in this

country . . . to thwart the congressional design.”

Benslimane, 430 F.3d at 832.
10 No. 05-2813

4 8 U.S.C. § 1229a(b)(4)(B) provides, in relevant part, that in

immigration hearings “the alien shall have a reasonable opportunity . . . to present evidence on the alien’s own behalf, and to

cross-examine witnesses presented by the Government.”

5 8 C.F.R. § 1240.1(c) says: “The immigration judge shall receive

(continued...)

To the extent that the immigration judge’s denial of a

continuance had the substantive effect of defeating

Boyanivskyy’s ability to establish his claims for relief, his

case resembles Subhan and Benslimane. We proceed then

to the merits of Boyanivskyy’s claim that the immigration

judge wrongly denied his request for a continuance. He

couches his argument in terms of a denial of due process.

This formulation is understandable since our cases have

sometimes applied due process principles to evaluate claims

that an immigration judge has denied an alien an adequate

opportunity to present evidence in support of his claim. See,

e.g., Kerciku, 314 F.3d at 917 (also noting the alien’s

statutory rights to present evidence under 8 U.S.C. §

1229a(b)(4)(B)); Kuciemba v. I.N.S., 92 F.3d 496, 501 (7th

Cir. 1996); Shahandeh-Pey v. I.N.S., 831 F.2d 1384, 1389

(7th Cir. 1987). But “[n]on-constitutional arguments always

come first; constitutional contentions must be set aside

until their resolution is unavoidable.” Rehman v. Gonzales,

441 F.3d 506, 508 (7th Cir. 2006) (citing N.Y. Trans. Auth.

v. Beazer, 440 U.S. 568, 582-83 (1979)); see also Djedovic v.

Gonzales, 441 F.3d 547, 550 (7th Cir. 2006).

Boyanivskyy argues that the immigration judge’s arbitrary refusal to continue the hearing to a day when his

witnesses were available denied him the opportunity to

present critical evidence in support of his claims for relief.

His right to a reasonable opportunity to present all relevant

evidence at an impartial hearing is protected by statute, 8

U.S.C. § 1229a(b)(4)(B),4

 and regulation, 8 C.F.R.

§ 1240.1(c),5

 so we evaluate the immigration judge’s action
No. 05-2813 11

5 (...continued)

and consider material and relevant evidence, rule upon objections,

and otherwise regulate the course of the hearing.”

for compliance with these statutory and regulatory provisions rather than constitutional due process. We would

reach the constitutional question only if Boyanivskyy

complained that the procedures outlined in the statutes and

regulations were constitutionally deficient. Rehman, 441

F.3d at 509; Djedovic, 441 F.3d at 550. He makes no such

claim.

Boyanivskyy’s witnesses were available to testify during the first two days of his immigration hearing, but the

pace of the proceedings kept them from giving their testimony. Although Boyanivskyy made it clear he anticipated

the need for his witnesses to testify during the third day of

the hearing, the immigration judge inexplicably chose to

continue the hearing to January 8, a day on which he knew

the witnesses would be unavailable. When the hearing

resumed on January 8, the immigration judge denied

Boyanivskyy’s motion for a continuance and declared that

“[t]he respondent would rest” without his corroborating

witnesses. This left Boyanivskyy himself as his only

witness. The judge then rendered an oral decision denying

all forms of relief based on his conclusion that

Boyanivskyy’s testimony lacked credibility. The immigration judge held that because Boyanivskyy’s story was not

believable, there was no need to hear his other witnesses.

This was error.

When an immigration judge finds an alien’s testimony

incredible, the alien carries the burden of explaining any

discrepancies or introducing credible corroborating evidence. Capric v. Ashcroft, 355 F.3d 1075, 1086 (7th Cir.

2004). “Without such an explanation or corroboration . . .

the applicant cannot meet his burden of proof and his
12 No. 05-2813

asylum claim will fail.” Balogun v. Ashcroft, 374 F.3d 492,

500 (7th Cir. 2004). The burden was squarely on

Boyanivskyy to come forward with corroborating evidence

to prove he had actually suffered persecution because of his

marriage to a Jewish woman. The testimony of Dr. Burds,

Zarichnyak, and Yakovishak could not have been more

central to his claim.

The immigration judge continued the hearing to a date

when he knew Boyanivskyy’s witnesses were unavailable and then declared the hearing at an end, denying a

further continuance, without which he knew Boyanivskyy

could not present essential corroborating evidence. By doing

so, the judge denied Boyanivskyy the opportunity to present

evidence on his own behalf, 8 U.S.C. § 1229a(b)(4)(B), and

refused to “receive and consider material and relevant

evidence.” 8 C.F.R. § 1240.1(c). Although the immigration

judge purported to receive Dr. Burds’s affidavit “for the

truth of the matter asserted,” he completely discredited it

as “lost on this case” because he had already determined

Boyanivskyy’s testimony to be incredible. The prehearing

statements of Zarichnyak and Yakovishak were similarly

dismissed. The immigration judge thus eliminated

Boyanivskyy’s opportunity to present his corroboration

witnesses precisely because they were corroboration

witnesses—that is, because their testimony would have

been consistent with testimony the judge disbelieved. But

“[a]n applicant’s right to present testimony to support his or

her claims is not nullified by adverse considerations,

including negative credibility findings, that may weigh

against, or ultimately doom, the applicant’s case in the

judge’s eyes.” Kerciku, 314 F.3d at 919.

These errors by the immigration judge entitle

Boyanivskyy to relief only if he can show prejudice.

Rehman, 441 F.3d at 509. We have no difficulty concluding that his case was harmed by the exclusion of his

corroboration witnesses. Dr. Burds would have testified that
No. 05-2813 13

Boyanivskyy’s testimony about anti-Semitic persecution

was all too typical in Ukraine. Contrary to the immigration

judge’s suggestion that Dr. Burds’s opinion simply assumed

the veracity of Boyanivskyy’s story, the expert’s affidavit

indicates that he found Boyanivskyy’s account “probable

and persuasive” only after finding it consistent with the

current state of anti-Semitic hostility and persecution in

Ukraine. Zarichnyak and Yakovishak would have testified

to their personal knowledge of the anti-Semitic abuse

endured by Boyanivskyy and his wife. Yakovishak in

particular would have delivered highly relevant corroborative testimony about the circumstances of the first attack

Boyanivskyy described, when he was set upon and beaten

unconscious by six men outside the police station. If the

testimony of these three witnesses had been heard and

properly considered, the outcome of Boyanivskyy’s hearing

may well have been different. The immigration judge

reached his decision based on an underdeveloped record—underdeveloped because the judge deprived

Boyanivskyy of his statutory and regulatory right to present

material evidence essential to his persecution claim.

Accordingly, we GRANT the petition for review, VACATE

the BIA’s decision, and REMAND this case for further

proceedings consistent with this opinion.
14 No. 05-2813

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-9-06