                             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 Ukrai-
nian 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-


1
 The INS has since been subsumed into the newly created
Department of Homeland Security.
2                                                    No. 05-2813

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 Immi-
gration 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 persecu-
tion. 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


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 withhold-
ing 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.
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 Jan-
uary 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 citizen-
ship 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 anti-
Jewish 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 state-
ment gave a general description of the harassment and
discrimination Boyanivskyy suffered from the time he
married Ivanna; it also said Ivanna had endured anti-
Semitic 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 Septem-
ber 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 mar-
riage 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 Ivano-
Frankivsk police opened a criminal investigation, but there
is no evidence that any suspects were arrested or prose-
cuted.
   Boyanivskyy suffered a third assault the next month, in
December 1999. As he left his workplace, two men con-
fronted 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 x-
rayed his head, put him on an “IV,” and gave him “injec-
tions” and medication. The record contains medical docu-
mentation 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 immigra-
tion 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 under-
standing 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 credi-
bility. 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 testi-
mony would be worthless. He dismissed Zarichnyak’s
statement as incredible because it referred to an addi-
tional 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 immigra-
tion 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

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 restric-
tions. “An immigration judge cannot be permitted, by
arbitrarily denying a motion for a continuance without
which the alien cannot establish a ground on which Con-
gress has determined he is eligible to seek to remain in this
country . . . to thwart the congressional design.”
Benslimane, 430 F.3d at 832.


3
   Boyanivskyy would qualify for asylum by showing “a well-
founded fear of persecution on account of race, religion, national-
ity, 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.
10                                                   No. 05-2813

  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 arbi-
trary 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


4
  8 U.S.C. § 1229a(b)(4)(B) provides, in relevant part, that in
immigration hearings “the alien shall have a reasonable opportu-
nity . . . 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...)
No. 05-2813                                                    11

for compliance with these statutory and regulatory provi-
sions 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 dur-
ing the first two days of his immigration hearing, but the
pace of the proceedings kept them from giving their testi-
mony. 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 immigra-
tion 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 evi-
dence. 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


5
  (...continued)
and consider material and relevant evidence, rule upon objections,
and otherwise regulate the course of the hearing.”
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 unavail-
able 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 conclud-
ing 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 corrobora-
tive 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 re-
cord—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
