Boyanivskyy v. Gonzales, 05-2813.

• Decision Date: 09 June 2006
• Docket Number: No. 05-2813.,05-2813.
• Citation: 450 F.3d 286
• Parties: Oleksandr BOYANIVSKYY, Petitioner, v. Alberto R. GONZALES, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

450 F.3d 286

Oleksandr BOYANIVSKYY, Petitioner, v. Alberto R. GONZALES, Respondent.

No. 05-2813.

United States Court of Appeals, Seventh Circuit.

Argued November 29, 2005.

Decided June 9, 2006.

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Mark S. Kocol (argued), Chicago, IL, for Petitioner.

Karen Lundgren, Department of Homeland Security, Office of the District Counsel, Chicago, IL, Hillel R. Smith, Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

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 removable 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 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 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 statement 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.

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.

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 Ivano-Frankivsk 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 x-rayed his head, put him on an "IV," and gave him "injections" and medication. The record contains medical documentation verifying Boyanivskyy's treatment for serious...