                               In the

     United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 13-3849
AIMIN YANG,
                                                         Petitioner,

                                 v.

ERIC H. HOLDER, JR.,
Attorney General of the United States,
                                                        Respondent.
                     ____________________

                On Petition for Review of an Order of
                 the Board of Immigration Appeals.
                          No. A079 013 934
                     ____________________

        ARGUED JUNE 4, 2014 — DECIDED JULY 25, 2014
                     ____________________

    Before WOOD, Chief Judge, and CUDAHY and ROVNER, Cir-
cuit Judges.
   WOOD, Chief Judge. Aimin Yang, the petitioner in this
case, is in a difficult position. After Feng Li, who is a U.S. cit-
izen, married Yang, Li submitted a Petition for Alien Relative
form (Form I-130) to the U.S. Citizenship and Immigration
Services (USCIS) on Yang’s behalf. If approved, this form
permits the alien relative to file a Form I-485 for adjustment
2                                                 No. 13-3849

of status to that of a lawful permanent resident; he or she
may do so, however, only once a visa number becomes
available. USCIS sent Li a notice of intent to deny, not be-
cause there was anything wrong with the marriage (which
was Yang’s third), but because it believed that Yang’s second
marriage had been a sham. Yang and Li submitted materials
to rebut this allegation, but USCIS lost them and then denied
the I-130 petition for lack of support. Li appealed that deci-
sion to the Board of Immigration Appeals (Board). On a sep-
arate track, Yang sought asylum, withholding of removal,
and relief under the Convention Against Torture (CAT). He
was unsuccessful. He has now brought before us a petition
for review of the Board’s decision denying all relief. Alt-
hough we are satisfied that the Board did not abuse its dis-
cretion in denying Yang’s request for asylum and associated
relief, the same cannot be said for its decision to uphold the
IJ’s denial of a continuance pending adjudication of Yang’s I-
130; we grant the petition for review only on that basis.
                                I
    Yang is a native and citizen of China who entered the
United States on April 9, 1998, as a tourist. On October 6,
2000, he married a U.S. citizen, Deirdre Prestin. Prestin filed
an I-130 visa petition and application for adjustment of sta-
tus on Yang’s behalf on November 16, 2000, but in the wake
of marital problems, she withdrew her petition on January
10, 2003. In August of 2003, Yang’s application for adjust-
ment of status was denied after an investigation led USCIS
to conclude that his marriage to Prestin was for immigration
purposes only and thus fraudulent. In November 2007, he
and Prestin were divorced.
No. 13-3849                                                   3

    In August 2003, the Department of Homeland Security
(DHS) initiated removal proceedings against Yang. He con-
ceded removability, but shortly after his divorce from Prestin
he filed an application for asylum and associated relief based
on his practice of Falun Gong. He asserted that he began
practicing Falun Gong in China in 1997 after doctors were
unable to cure his pneumonia. Two months of Falun Gong
exercises, he reported, restored his health and persuaded
him to become a more serious practitioner. Matters took a
turn for the worse, however, when his work supervisors dis-
covered his practice of Falun Gong and told him that he
would be fired if he did not stop. He did not heed their
warnings. Although Falun Gong was not officially banned in
China until July 1999, in March 1998 the police arrested Yang
and placed him in a cell overnight. During that encounter,
they told him that he should stop practicing Falun Gong and
slapped him twice on the face, causing his gums to bleed.
These encounters prompted Yang’s first wife to divorce him,
and not long afterward he came to the United States.
    In this country, Yang continued practicing Falun Gong.
Though he generally did so alone, he attended some group
meetings and a number of protests in New York outside the
Chinese consulate, where he was photographed. Yang testi-
fied that his father (still in China) was visited by Chinese of-
ficials around January 2012; the officials questioned his fa-
ther about Yang’s whereabouts. They also asked why Yang
had not yet returned from the United States and whether
Yang had participated in any anti-government activities.
Upon learning of this conversation, Yang became afraid that
Chinese officials were aware of his practice of Falun Gong in
the United States.
4                                                 No. 13-3849

    The first merits hearing in Yang’s removal case took
place in September 2008. About a month later, Yang married
Li. As we noted, Li immediately filed an I-130 petition on
Yang’s behalf, but USCIS tentatively decided to deny it on
the grounds that Yang’s marriage to Prestin had been a
sham.
    When Yang and Li received the Notice of Intent to Deny
Li’s I-130 petition, they assembled a comprehensive response
to demonstrate the bona fides of the Prestin marriage and sent
it to USCIS using an overnight express delivery service. The
package included an affidavit from Prestin swearing that the
marriage was bona fide; an affidavit from Prestin’s daughter
confirming Yang’s good character; an affidavit that the mar-
riage was genuine from one of Yang’s friends; a statement
from one of Prestin’s colleagues to the same effect; and
Yang’s own affidavit explaining both the romance and the
break-up of the marriage. Yang also explained that he had
lived apart from Prestin solely because of the demands of his
job. The delivery service’s tracking receipt showed that the
package arrived at USCIS at 11:30 a.m. on July 24, 2011, three
days before the deadline, and that the receipt was signed by
an employee. Nonetheless, USCIS issued a final order deny-
ing Li’s I-130 application on the mistaken ground that she
had failed to file a response to the Notice of Intent to Deny.
Li appealed the denial to the BIA, pointing out the mistake
of fact, and she included the receipt showing that USCIS had
indeed received the responsive materials. The Board recog-
nized the error and on April 30, 2013, it remanded the I-130
denial to the District Director. As far as we know, that is
where it still is.
No. 13-3849                                                  5

    While the I-130 issues were percolating, Yang’s removal
proceedings continued to progress. On July 30, 2012, Yang
had his final merits hearing. At that time his attorney in-
formed the IJ that Yang had not updated his fingerprints
since September 23, 2010, even though he was required to do
so for his asylum application. The attorney explained that
Yang had tried to submit fingerprints from New York, but
could not because the removal proceedings were out of state.
(At oral argument, counsel asserted that the immigration au-
thorities do not accept fingerprints from just anywhere, and
so it can be difficult for someone to arrange for this seeming-
ly straightforward task to be done.)
    On July 12, 2012, Yang filed a motion to continue his
hearing date until a time after the re-adjudication of Li’s I-
130 petition (and a renewed petition she filed). But on July
30, 2012, the IJ issued a decision from the bench finding Yang
removable, denying asylum and related relief, denying the
requested continuance, and granting voluntary departure.
Addressing the continuance, the IJ said that “the respondent
has the right to appeal [USCIS’s mistaken denial of Li’s I-130
for lack of response but] [h]e has no right to delay his re-
moval hearing until the appeal is adjudicated, which could
last a number of years.” On November 27, 2013, the Board
dismissed Yang’s appeal of the IJ’s decision and denied his
motion for a remand to USCIS. The Board agreed with the IJ
that Yang was barred from asylum for failing to file within a
year of his arrival and failing to demonstrate extraordinary
or changed circumstances warranting an exception. Yang
was not entitled to withholding of removal, the Board con-
firmed, because the relatively mild events Yang had recount-
ed were not enough to show that he had been persecuted in
the past or that it was more likely than not that his life or
6                                                 No. 13-3849

freedom would be threatened in China upon his return. The
Board also affirmed the IJ’s alternative ground for denying
withholding, which was based on Yang’s failure to present
updated “biometric requirements” (the fingerprints). The
Board also rejected Yang’s CAT application. Finally, it found
that the IJ acted within his discretion when he declined to
grant the continuance, and it denied Yang’s request to re-
mand the case to the IJ for further proceedings on the I-130
and I-485 forms that Yang had refiled. Despite the fact that
the Board already had remanded the District Director’s de-
nial of the I-130 petition to consider the evidence that Yang
had properly submitted, it wrote that “such decision did not
reverse the director’s denial of his visa petition.” In a foot-
note, the Board went out of its way to say that its decision
was not one “on the merits of the [USCIS’s] denial of the un-
derlying I-130 visa petition.” The net result for Yang was an
order of removal.
                                II
    Yang has brought this bureaucratically messy case before
us through his petition for review. In it, he challenges the
denial of his asylum, withholding of removal, and CAT ap-
plications as well as the denial of his request for a continu-
ance pending a final determination of the I-130 petition. We
quickly dispose of the former arguments so that we can fo-
cus on the continuance.
Asylum Application
    Asylum applications must be filed within one year after
the date the seeker arrives in the United States. 8 U.S.C.
§ 1158(a)(2)(B). Yang filed for asylum in 2007, either eight or
nine years after he arrived here from China. His application
No. 13-3849                                                     7

must be denied as untimely unless he demonstrates either
the existence of changed circumstances that materially affect
his eligibility for asylum or extraordinary circumstances re-
lating to the delay in filing the petition, 8 U.S.C.
§ 1158(a)(2)(D); 8 C.F.R. § 1208.4(a)(4), (5). The IJ and Board
found that he had not shown that he qualified for either ex-
ception to the one-year rule and thus denied his petition.
Yang argues that they erred in so concluding.
    Whether they were right or wrong is not, however, the
immediate question before us. We can reach that issue only
if we have jurisdiction to address it. Courts generally lack
jurisdiction to review a determination that an asylum appli-
cation is barred on the ground of noncompliance with the
statutory time limit or the denial of one of the statutorily al-
lowed excuses, 8 U.S.C. § 1158(a)(3). It is true that the REAL
ID Act of 2005 supplies jurisdiction for review of constitu-
tional claims and questions of law. See 8 U.S.C.
§ 1252(a)(2)(D), added by the REAL ID Act of 2005,
§ 106(a)(1)(ii), Pub.L. No. 109–13, 119 Stat. 231, 310–11 (2005);
see also Mabasa v. Gonzales, 455 F.3d 740, 744 (7th Cir. 2006).
But there’s the rub. We have held that the issues of changed
or extraordinary circumstances are questions of fact that lie
outside the realm of § 1252(a)(2)(D). See, e.g., Viracacha v.
Mukasey, 518 F.3d 511, 514–15 (7th Cir. 2008). We are aware
that some circuits have concluded that these issues are re-
viewable mixed questions of law and fact, see, e.g., Mandebvu
v. Holder, No. 11-3969, 2014 WL 2743608 at *6 (6th Cir. June
18, 2014); Vahora v. Holder, 641 F.3d 1038, 1042 (9th Cir. 2011).
But others agree with us, e.g., Goromou v. Holder, 721 F.3d 569,
579-80 (8th Cir. 2013); Xiao Ji Chen v. U.S. Dep’t of Justice, 471
F.3d 315, 331–32 (2d Cir. 2006). We are not inclined to change
our approach and thus conclude that we have no jurisdiction
8                                                     No. 13-3849

to address Yang’s arguments based on changed or extraordi-
nary circumstances.
Denial of Yang’s withholding of removal application
    Under INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A), the
Attorney General must grant withholding of removal to an
alien who shows that his “life or freedom would be threat-
ened in that country of removal because of [his] race, reli-
gion, nationality, membership in a particular social group, or
political opinion.” To establish eligibility for withholding of
removal, the applicant must show that it is more likely than
not that he will face persecution in the country to which the
government plans to remove him. See INS v. Stevic, 467 U.S.
407, 429–30 (1984). The Act does not define “persecution,”
but we have described it as “‘punishment or the infliction of
harm for political, religious, or other reasons that this coun-
try does not recognize as legitimate.’” Mitev v. INS, 67 F.3d
1325, 1330 (7th Cir. 1995) (quoting De Souza v. INS, 999 F.2d
1156, 1158 (7th Cir. 1993)); see also Capric v. Ashcroft, 355 F.3d
1075, 1084 (7th Cir. 2004) (internal quotation marks and cita-
tions omitted) (persecution “includes detention, arrest, inter-
rogation, prosecution, imprisonment, illegal searches, con-
fiscation of property, surveillance, beatings, … torture, be-
havior that threatens the same, and non-life-threatening be-
havior such as torture and economic deprivation if the re-
sulting conditions are sufficiently severe.”).
    The IJ rejected Yang’s application for withholding of re-
moval on two independent grounds, which the Board af-
firmed. First, the IJ found that Yang failed to establish that
the Chinese authorities were aware or likely to become
aware of his Falun Gong-related activities in the United
States. Furthermore, the IJ found the contact between Yang’s
No. 13-3849                                                  9

father and Chinese police in 2012 was not enough to permit
the inference that the Chinese authorities were “specifically
aware” of his Falun Gong practices. The IJ also doubted that
the Chinese government would punish its citizens for engag-
ing in Falun Gong outside of China. In the alternative, the IJ
found that Yang’s failure to comply with the biometrics re-
quirement was an independent ground to reject his applica-
tion. See 8 C.F.R. §§ 1003.47(c), (d), & 1208.10; see also Ume-
zurike v. Holder, 610 F.3d 997, 1002 (7th Cir. 2010). We review
the decision of the IJ as supplemented by the additional rea-
soning of the Board. Milanouic v. Holder, 591 F.3d 566, 570
(7th Cir. 2010). We must deny the petition if the IJ’s decision
is supported by reasonable, substantial, and probative evi-
dence on the record as a whole; we may reject the ruling on-
ly if the record compels a contrary result. See Mema v. Gonza-
les, 474 F.3d 412, 416 (7th Cir. 2007).
    The IJ was not on solid ground when he found that there
was no indication that the Chinese government was specifi-
cally aware of Yang’s practice of Falun Gong. According to
Yang, whose account the IJ was willing to credit, police held
him overnight and hit him in the face because of his Falun
Gong activities before he left China. The Chinese police also
went back to Yang’s father’s house in 2012 inquiring about
whether Yang was involved in “anti-government” activities
while in the United States. Nevertheless, we need not decide
whether the IJ abused his discretion when he found to the
contrary, because Yang has no satisfactory answer to his fail-
ure to comply with the biometrics requirement.
    The applicable regulations do not make the submission
of current fingerprints optional. They provide that “[f]ailure
to comply with processing requirements for biometrics and
10                                                 No. 13-3849

other biographical information within the time allowed will
result in dismissal of the application, unless the applicant
demonstrates that such failure was the result of good cause.”
8 C.F.R. § 1208.10 (emphasis added). The IJ required Yang to
submit several sets of fingerprints: one within two weeks of
the master calendar hearing, and another within one year of
any continued hearing. Yang did not do so. Even though we
wonder why USCIS requires applicants continually to re-
fingerprint and the government’s counsel had no explana-
tion for this practice when asked at oral argument, we are
not responsible for the wisdom or efficiency of the agency’s
rules. The IJ expressly ordered multiple rounds of finger-
printing; Yang did not comply; and the regulations say such
a failure will result in dismissal.
    Although in theory someone might show good cause for
a failure to submit required biometric data, Yang did not do
so. He asserts only that he made “diligent efforts” and told
the Trial Attorney Unit that USCIS had an earlier set of fin-
gerprints. But simply stating that one made “diligent efforts”
without further details is not enough, and we find it hard to
see how Yang could prove diligence when he had at least
two years to arrange for the new fingerprints. As Umezurike
held, when counsel offers only “vague excuses for delay but
no concrete explanations,” we will not find an abuse of dis-
cretion. See Umezurike, 610 F.3d at 1003.
    Even if we were to reach the merits, Yang’s applications
for withholding of removal and relief under the CAT cannot
succeed. Neither of those is untimely, but the IJ and the
Board did not abuse their discretion when they concluded
that Yang’s one night in the police station and slaps were not
sufficiently severe to warrant relief. See INA § 241(b)(3)(A), 8
No. 13-3849                                                  11

U.S.C. § 1231(b)(3)(A) (withholding of removal); 8 C.F.R.
§ 1208.16 (CAT).
Motion for continuance
    We review the denial of a continuance for abuse of dis-
cretion. See Calma v. Holder, 663 F.3d 868, 876 (7th Cir. 2011).
This is a deferential standard, under which we uphold the
Board’s decision unless it “was made without a rational ex-
planation, inexplicably departed from established policies,
or rested on an impermissible basis such as invidious dis-
crimination against a particular race or group.” Id. at 878.
     In Matter of Hashmi, 24 I. & N. Dec. 785, 790–91 (B.I.A.
2009), a precedential opinion, the Board discussed the factors
an IJ should consider when deciding whether to grant a con-
tinuance. See also Calma, 663 F.3d at 872. “[D]iscretion
should be favorably exercised,” it held, “where a prima facie
approvable visa petition and adjustment application have
been submitted in the course of an ongoing removal hearing.
This presumption is reasonable given the significant interest
at stake—the chance to acquire lawful permanent resident
status through a family-based visa petition.” Hashmi, 23 I. &
N. Dec. at 790. It offered the following non-exclusive check-
list for continuance requests:
   •   The likelihood that the adjustment will be granted;
   •   USCIS’s response to the motion, though “unsup-
       ported opposition does not carry much weight,”
       id. at 791;
   •   Whether the underlying visa petition is prima facie
       approvable;
12                                                  No. 13-3849

     •   The alien’s statutory eligibility for adjustment of
         status;
     •   Whether other aspects of the alien’s background
         (such as family ties in the United States, length of
         residence in the country, hardship of travel, and
         immigration history) merit a favorable exercise of
         discretion; and
     •   The reason for the continuance and which party is
         more responsible for the delay.
    Most of the points on that list either favor Yang or are
neutral. The final point is especially important in his case:
the reason the continuance was needed was directly related
to USCIS’s carelessness in losing the critical package of sup-
porting materials that Yang and Li sent—materials that
would have responded to the agency’s qualms about the
Prestin marriage. The IJ elided the agency’s misstep entirely.
He gave two reasons for denying the continuance: (1) the
supposed fact that the second marriage had been shown to
be a sham, and thus gave rise to a statutory bar to adjust-
ment, and (2) the fact “that the [third] marriage occurred af-
ter the first merits hearing.” The Board said only that Yang’s
visa petition “remains denied”—a point Yang obviously
knew—without explaining why the removal proceeding
could not, in these unusual circumstances, be coordinated
with the measures taken to cure USCIS’s negligence.
    The IJ’s second “reason” is actually just a statement of
fact; he did not explain why the timing of the Li marriage
required the denial of a continuance. No one has ever sug-
gested that the Li marriage is a sham, and so that ground is
not available to support the IJ’s decision. In fact, there is am-
No. 13-3849                                                  13

ple evidence in the record to support the genuineness of the
Li marriage: Yang and Li had a five-year relationship before
they married, and so this was not a last-minute liaison
hatched after immigration proceedings began. The reason
their marriage happened when it did was because it took Li
a long time to extricate herself from her own prior marriage.
On this record, the timing of Yang’s marriage to Li offers no
support to the decision to deny the continuance. The IJ mere-
ly stated a fact without explaining why that fact was a rea-
son for his ruling. Denial of a continuance on the basis of a
non-reason is an abuse of discretion. See Subhan v. Ashcroft,
383 F.3d 591, 595 (7th Cir. 2004).
    This leads us to the IJ’s other reason for his ruling: the
purportedly sham nature of Yang’s second marriage. But that
was the issue that USCIS’s carelessness had prevented Yang
from contesting. Yang and Li strenuously deny that allega-
tion. Since the cause for the delay is attributable to the gov-
ernment and not Yang, it “augurs in favor of a continuance.”
Hashmi, 23 I. & N. Dec. at 793.
    Had the IJ taken the Board’s advice and moved through
the Hashmi checklist, the ultimate decision on the continu-
ance would have been better informed. In particular, the
Board’s list effectively instructs the IJs to take a peek at the
merits of the pending application before ruling. In this case,
in assessing Yang’s likelihood of success (the first factor) the
judge should have looked at Yang and Li’s response to
USCIS’s sham-marriage allegation. See id. Had he done so,
he would have found significant and credible evidence of
the legitimacy of Yang’s second marriage. He would have
seen, for example, the crucial role Yang played and plays as
a stepfather to Prestin’s daughter, as explained by his step-
14                                                No. 13-3849

daughter in sworn statements, and he would have found
significant third-party confirmation that the marriage was
real. Other aspects of Yang’s background, such as the role he
plays in his family with Li, would also have illuminated the
decision. See id.
    Since neither of the reasons the Board relied on for the
denial of the continuance withstands scrutiny, we are com-
pelled to conclude that the decision stands unsupported by
any reason. It thus represents an abuse of discretion, and
Yang is entitled to one more chance to pursue this line of re-
lief.
                      **********************
    The IJ’s denials of Yang’s request for asylum, withholding
of removal, and relief under the CAT were not an abuse of
discretion and so we DENY his petition for review from those
aspects of the Board’s decision. We conclude, however, that
the IJ’s reasons for denying the continuance Yang requested,
as supplemented by the Board, fail to confront the facts of
this case and do not meet the standards the Board set for it-
self in Hashmi. We therefore GRANT the petition for review
on that point only and REMAND the case to the Board for fur-
ther proceedings consistent with this opinion.
