In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-2550

LOLITA WOOD a/k/a LOLITA BENDIKIENE,

Petitioner,

v.

MICHAEL B. MUKASEY, Attorney General

of the United States,

Respondent.

____________

Petition for Review of an Order of the

Board of Immigration Appeals.

No. A95-398-538

____________

ARGUED MARCH 28, 2007—DECIDED FEBRUARY 14, 2008

____________

Before POSNER, ROVNER, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Lolita Wood, a native and citizen

of Lithuania who overstayed her visitor’s visa, married a

U.S. citizen during the final stages of her removal proceedings. In a last-ditch effort to stave off removal to her

native country, she requested a continuance to apply

for adjustment of status as the spouse of a U.S. citizen.

An immigration judge (“IJ”) denied her request because

Wood had already received a 14-month continuance by

presenting herself as the “wife” of her asylum-seeking

Lithuanian ex-husband at an earlier removal hearing.

Wood appealed the IJ’s ruling to the Board of Immigration
2 No. 06-2550

Appeals (“BIA”), which adopted and affirmed the IJ’s

decision. Based on the same conduct cited by the IJ as

grounds for denying the continuance, the BIA also determined that Wood did not merit a discretionary adjustment of status. The BIA ordered Wood to voluntarily

depart the United States.

On petition for review to this court, Wood challenges

the BIA’s denial of a continuance and its determination

that she did not warrant a discretionary adjustment of

status. We have no jurisdiction to review either determination. See 8 U.S.C. § 1252(a)(2)(B)(ii); Ali v. Gonzales,

502 F.3d 659, 664 (7th Cir. 2007). Wood also argues the

BIA exceeded its appellate-review authority by reaching

and deciding the ultimate adjustment-of-status question,

even though the IJ had not. This is a legal issue over

which our review jurisdiction remains intact, 8 U.S.C.

§ 1252(a)(2)(D); Ali v. Achim, 468 F.3d 462, 465 (7th Cir.

2006), but we reject Wood’s argument. The BIA properly

exercised its appellate-review authority over discretionary issues when it determined Wood did not merit a

status adjustment. The petition for review is denied.

I. Background

Lolita Wood overstayed a visitor’s visa that expired in

October 2000. Daries Bendikas, Lolita’s Lithuanian

husband at the time she entered the United States, also

overstayed his visa, and in February 2002 he submitted

an asylum application naming his wife as a derivative

beneficiary. A few months later, however, Wood was no

longer married to Bendikas; in May 2002 a Lithuanian

court in Vilnius granted her divorce petition. Unaware

of the divorce, the Immigration and Naturalization Service

(which merged into the Department of Homeland Security

as the U.S. Citizenship and Immigration Services in

March 2003) denied Bendikas’s asylum application and
No. 06-2550 3

1 Only aliens physically present in the United States may apply

for adjustment of status based on marriage to a U.S. citizen.

8 C.F.R. § 245.1 (2006). As such, by ordering voluntary depar-

(continued...)

referred the couple to immigration court for removal

proceedings.

 In January 2003 the couple appeared pro se before an

IJ for their initial hearing. The IJ assumed the couple

was still married; they appeared as husband and wife,

and neither told the IJ about their divorce. Rather,

Bendikas told the IJ he wished to challenge the denial of

his asylum application, which still listed Wood as a

derivative beneficiary by virtue of their marriage. To give

the couple time to obtain counsel and prepare their

asylum case, the IJ granted Bendikas and Wood a

14-month continuance and scheduled their final asylum

and removal hearing for April 2004.

Wood appeared with counsel at the April 2004 hearing,

but Bendikas did not appear at all. By this time the IJ had

learned of the couple’s May 2002 divorce and informed

Wood that she was ineligible for asylum because she

was no longer married to the primary asylum applicant.

The IJ explained that the only type of relief available to

Wood was voluntary departure, which he would determine

in his discretion. Wood’s attorney then told the IJ that

Wood planned to marry a U.S. citizen in July 2004, but the

IJ was reluctant to prolong the proceedings to accommodate any future marriage-based challenges to removal—

namely, an application to adjust status to that of a lawful

permanent resident. The IJ noted that Wood’s contemplated marriage might make her eligible for admission

as a lawful permanent resident in the future, but she

would need to apply through the U.S. Embassy in Lithuania, not in the context of her removal proceedings.1

 The
4 No. 06-2550

1 (...continued)

ture, the IJ in Wood’s case would require her to pursue lawful

permanent residency from abroad. As the IJ noted, once abroad,

an alien married to a U.S. citizen must seek an immigrant visa

for admission as a lawful permanent resident through a consular office of the U.S. Department of State. 8 C.F.R. § 211.1;

22 C.F.R. §§ 42.21(a), 42.61(a). What the IJ failed to mention,

however, was that an alien ordered to voluntarily depart the

country as a result of a visa overstay is inadmissible for three

or ten years depending on the length of the overstay. 8 U.S.C.

§ 1182(a)(9)(B)(i) (2000). The period of inadmissibility may be

waived in cases like Wood’s where the visa applicant is a spouse

of a U.S. citizen, but only by the Attorney General—not the

Department of State—and only when “the refusal of admission to

such immigrant alien would result in extreme hardship to

the citizen.” Id. § 1182(a)(9)(B)(v). Wood understandably fears

that consular officials in Vilnius, being under the direction of

the Department of State and not the Attorney General, will fail

to make provision for such a waiver request. The Department

of State has issued regulations instructing consular officials

to explain to aliens in Wood’s position the procedure for requesting a waiver from the Attorney General. 22 C.F.R.

§ 40.92(3).

IJ then granted a continuance until December 2004 so

that Wood’s attorney, whom she had retained only the

night before, could explain to Wood the implications of

voluntary departure and investigate any other possible

forms of relief. The IJ made it clear there would be no

more continuances—even one based on Wood’s contemplated marriage and any resulting visa petition by her

American husband—and instructed Wood’s attorney to

“advise your client that she is going to either be willing

to depart voluntarily at the next hearing . . . or I am

simply going to enter an order that she be deported.” On

July 23, 2004, Wood married U.S. citizen Timothy Wood,

who promptly filed an I-130 immigrant relative visa

petition on her behalf.
No. 06-2550 5

Before the December 2004 hearing, Wood moved for

another continuance to afford her an opportunity to

apply for adjustment of status based on her July 2004

marriage to an American citizen and her husband’s I-130

petition (as yet unapproved). The IJ denied Wood’s request (as he previously warned he would), citing the prior

14-month continuance based solely on Wood having

misrepresented her status as a derivative asylum beneficiary (available only for spouses and children, see

8 U.S.C. § 1158(b)(3)(A) (2000)). The IJ explained that

Wood essentially bought herself an extra 14 months of

unlawful presence by failing to disclose her divorce at

the January 2003 hearing. Wood had no remaining defenses to removal. The IJ granted voluntary departure

in lieu of removal.

Wood appealed the denial of her continuance to the

BIA. While that appeal was pending, another division of

DHS approved Timothy Wood’s I-130 visa petition on

Lolita’s behalf. Now armed with prima facie evidence

that her marriage was bona fide (a prerequisite to applying for adjustment of status based on a marriage

entered into during removal proceedings, 8 C.F.R.

§ 245.1(c)(8)(v) (2006)), Wood also asked the BIA to

remand her case to the IJ to adjudicate her form I-485

(application for adjustment of status). In a one-page order,

the BIA dismissed the appeal and denied the motion to

remand. The BIA adopted and affirmed the IJ’s justification for denying the additional continuance, and also

stated a supplemental reason for denying either a continuance or remand—that further proceedings before

the IJ were unnecessary because Wood did not merit

discretionary adjustment of status. The BIA refused to

exercise its discretion in Wood’s favor “for the same

reasons which the [IJ] set forth for declining to continue proceedings,” that is, because she falsely presented

herself as still married to her Lithuanian ex-husband
6 No. 06-2550

for purposes of derivative relief under his asylum application. The BIA then ordered Wood to voluntarily depart

the country within 60 days or face removal. That final

order gave rise to this petition for review.

II. Discussion

Because the BIA adopted the IJ’s decision but articulated a supplemental reason for affirmance, we review

both decisions. Gjerazi v. Gonzales, 435 F.3d 800, 807 (7th

Cir. 2006); Giday v. Gonzales, 434 F.3d 543, 547 (7th Cir.

2006). Wood’s petition for review challenges the BIA’s

affirmance of the IJ’s denial of a continuance and its

independent determination that Wood did not merit

a discretionary adjustment of status. When this case

was orally argued, this circuit had not yet affirmatively

decided whether the jurisdiction-stripping provision of

§ 242(a)(2)(B)(ii) of the Immigration and Nationality Act

(“INA”), 8 U.S.C. § 1252(a)(2)(B)(ii), applies to continuance decisions of immigration judges. We have now done

so; in Ali v. Gonzales, 502 F.3d at 664, we held that

§ 1252(a)(2)(B)(ii) precludes judicial review of continuance

decisions. Because the BIA, in its discretion, addressed

and decided the merits of the status-adjustment question

under 8 U.S.C. § 1255, Wood’s case does not come within

the exception to the jurisdictional bar recognized in

Subhan v. Ashcroft, 383 F.3d 591, 595 (7th Cir. 2004). See

Ali, 502 F.3d at 664-65. The adjustment-of-status determination itself is expressly immunized from our review. See 8 U.S.C. § 1252(a)(2)(B)(i) (2000). Accordingly,

we have no jurisdiction to review either the BIA’s

affirmance of the denial of a continuance or its determination that Wood did not merit a discretionary status

adjustment.

Constitutional claims and questions of law, however, are

specifically exempt from the jurisdiction bar. See 8 U.S.C.
No. 06-2550 7

§ 1252(a)(2)(D); see also Ali v. Achim, 468 F.3d at 465.

Wood’s petition for review raises one legal question: she

claims the BIA exceeded its appellate-review authority

under 8 C.F.R. § 1003.1(d) by ruling on her entitlement

to adjustment of status instead of remanding to the IJ

to make that determination in the first instance.

We review de novo the question of whether the BIA’s

action was ultra vires. See Guevara v. Gonzales, 472 F.3d

972, 975-76 (7th Cir. 2007); Knutsen v. Gonzales, 429 F.3d

733, 736 (7th Cir. 2005). We note that because the

BIA never interpreted the regulations pertaining to its

appellate powers—it simply assumed it had the authority

to deny Wood a status adjustment—its action is not

entitled to the judicial deference normally afforded an

agency’s interpretation of its own regulations. Auer v.

Robbins, 519 U.S. 452, 461 (1997); see Orichitch v. Gonzales, 421 F.3d 595, 597 (7th Cir. 2005) (addressing judicial deference to the Board’s statutory interpretations).

We conclude the BIA acted within its regulatory authority when it denied Wood the discretionary relief

underlying her request for a continuance and remand.

The pertinent regulations describe the BIA as “an

appellate body charged with the review of those administrative adjudications . . . the Attorney General may by

regulation assign to it.” 8 C.F.R. § 1003.1(d)(1). The BIA

has administrative appellate jurisdiction over decisions

of IJs in removal proceedings. Id. § 1003.1(b)(3). While

the BIA reviews an IJ’s factual findings for clear error

and may not itself engage in fact-finding, the BIA reviews de novo “questions of law, discretion, and judgment and all other issues in appeals from decisions of

immigration judges.” Id. § 1003.1(d)(3)(i)-(iv). Whether an

alien is entitled to an adjustment of status is a question of

discretion over which the BIA exercises de novo review.

8 U.S.C. § 1255(a); Wallace v. Gonzales, 463 F.3d 135, 140-
8 No. 06-2550

41 (2d Cir. 2006). A closer question is whether Wood’s

entitlement to a status adjustment was properly before

the BIA given that the IJ decision she appealed—the

denial of a continuance—meant that the IJ refrained from

deciding any adjustment-related issues in the first instance. Had Wood formally submitted a request for

adjustment of status to the IJ, he would have (among other

things) decided as an initial matter whether Wood merited

a favorable exercise of discretion. 8 U.S.C. § 1255(a);

8 C.F.R. § 1245.2.

Wood claims the BIA’s appellate jurisdiction extends

only to issues actually decided by the IJ, not issues the IJ

might have decided had he not denied her a continuance.

We do not read the regulations so narrowly. As we have

noted, under 8 C.F.R. § 1003.1(d)(3)(ii), the BIA’s power of

de novo review extends to “questions of . . . discretion . . .

and all other issues in appeals from decisions of immigration judges.” In other words, for a legal or discretionary

issue to be within the scope of the BIA’s review, it need

only be a matter “in” the appeal. This does not require

an explicit prior determination of the issue by the IJ. The

BIA has routinely decided appeals based upon issues

never reached by the IJ, a practice we have implicitly

approved. See, e.g., Palmer v. INS, 4 F.3d 482, 485 (7th

Cir. 1993) (denying petition for review where Board

determined alien was not entitled to a form of discretionary relief never considered by the IJ).

The issue of Wood’s entitlement to a status adjustment was certainly “in” her appeal because she asked

the BIA to grant her a continuance and a remand to the

IJ to pursue adjustment of status before the IJ. Implicit

in Wood’s request was the assertion that she merited a

favorable exercise of discretion, a prerequisite to adjustment of status. 8 U.S.C. § 1255(a); United States v. Singh,

404 F.3d 1024, 1028 (7th Cir. 2005). It strikes us as both

impractical and strange to suggest that the BIA, when
No. 06-2550 9

confronted with an alien seeking a continuance to apply

for a purely discretionary form of relief, cannot decide

whether the alien would merit a favorable exercise of that

discretion. After all, the BIA—not the IJ—has the last

word on issues of discretion (assuming no intervention

by the Attorney General under 8 C.F.R. § 1003.1(h)).

See Guevara, 472 F.3d at 975 (addressing impact of

8 C.F.R. § 1003.1(d)(3)); Palmer, 4 F.3d at 484 n.4.

Provided the BIA can do so without additional factfinding, 8 C.F.R. § 1003.1(d)(3)(iv), we see no reason why

it must avoid issues of discretion in an appeal because

they were never reached by the IJ. Although this proviso

is potentially important, in Wood’s case the BIA did not

stray from the administrative record; it premised the

exercise of its discretion on the IJ’s finding that Wood

falsely portrayed herself as Bendikas’s wife for purposes

of asylum during the January 2003 hearing. We conclude the BIA acted within the scope of its appellate

jurisdiction when it denied Wood the discretionary relief for which she unsuccessfully sought a continuance

before the IJ.

Wood raises no other legal or constitutional challenge

to the decision of the BIA. 8 U.S.C. § 1252(a)(2)(D).

Accordingly, her petition for review is DENIED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—2-14-08