In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-4039

JUANA R. LEGUIZAMO-MEDINA,

Petitioner,

v.

ALBERTO R. GONZALES, Attorney General

of the United States,

Respondent.

____________

Petition for Review of an Order of the

Board of Immigration Appeals.

____________

ARGUED MAY 30, 2007—DECIDED JUNE 27, 2007

____________

Before EASTERBROOK, Chief Judge, and RIPPLE and

EVANS, Circuit Judges.

EASTERBROOK, Chief Judge. Juana Leguizamo-Medina,

a citizen of Mexico, lacks permission to be in the United

States. She applied for adjustment of status as the spouse

of a citizen, Florencio Ybarra, and swore that she was

living with him. At the hearing, however, she gave a

different address—and the agency produced an affidavit

from Ybarra that the “marriage” was a sham, for which he

had been paid. Ybarra withdrew the immediate-relative

petition he had filed on behalf of Leguizamo-Medina, who

nonetheless pressed on, this time with an application for

cancellation of removal under 8 U.S.C. §1229b. By the

time a hearing was held on that application, Ybarra had
2 No. 06-4039

recanted and submitted an affidavit stating that the

marriage was real—although this second affidavit contradicted Leguizamo-Medina’s own description of the

marriage. (The affidavit, signed in February 1998, asserted

that the couple had lived together since the marriage in

January 1997; Leguizamo-Medina testified, however, that

she moved out after four months and has not reconciled

with Ybarra.) After finding that Leguizamo-Medina is

living with and has had a child by a man other than

Ybarra, the immigration judge concluded that the marriage was bogus. This meant that Leguizamo-Medina had

given false testimony in order to obtain a benefit to which

she is not entitled, a disqualifying event because “good

moral character” is a statutory requirement for cancellation of removal. See 8 U.S.C. §1229b(b)(1)(B). (The definition of “good moral character” is in 8 U.S.C. §1101(f), and

§1101(f)(6) specifies that false testimony negates good

moral character.) The Board of Immigration Appeals

agreed.

Leguizamo-Medina argues in this court that the IJ

should have believed her story (and Ybarra’s second

affidavit) that the marriage was genuine. There is, however, a jurisdictional problem. Section 242(a)(2)(B)(i) of

the Immigration and Nationality Act, 8 U.S.C.

§1252(a)(2)(B)(i), provides:

Notwithstanding any other provision of law . . .

and except as provided in subparagraph (D), and

regardless of whether the judgment, decision, or

action is made in removal proceedings, no court

shall have jurisdiction to review—(i) any judgment

regarding the granting of relief under section

1182(h), 1182(i), 1229b, 1229c, or 1255 of this

title . . . [.]

Leguizamo-Medina wants relief under §1229b, so we must

turn to the “except” clause, pointing to subsection (D),

which reads:
No. 06-4039 3

Nothing in subparagraph (B) or (C), or in any other

provision of this chapter (other than this section)

which limits or eliminates judicial review, shall

be construed as precluding review of constitutional claims or questions of law raised upon a

petition for review filed with an appropriate court

of appeals in accordance with this section.

This tells us that “questions of law” may be reviewed. But

Leguizamo-Medina’s brief does not present any question of

law. There is no dispute about the meaning of §1101(f)(6),

§1229b(b)(1)(B), or any other legal rule.

Instead Leguizamo-Medina makes two factual arguments: first, that the IJ should have believed her testimony rather than Ybarra’s and should not have drawn

inferences from her living arrangements or the fact that

Ybarra is not the father of at least one child born after the

marriage; second, that the IJ abused his discretion by

declining to grant a continuance so that Ybarra’s sister

could testify. Neither of these arguments comes within

the scope of §242(a)(2)(D), which reserves only pure

questions of law. See, e.g., Cevilla v. Gonzales, 446 F.3d

658 (7th Cir. 2006). Cevilla observes that there is a conflict

among the circuits on the question whether factual or

discretionary decisions sometimes may be classified as

questions of “law”; we held that they may not be, and that

only “pure” legal questions (as opposed to characterizations

or “mixed” questions) are covered by subsection (D). See

also, e.g., Skorusa v. Gonzales, 482 F.3d 939 (7th Cir.

2007); Mireles v. Gonzales, 433 F.3d 965, 968 (7th Cir.

2006).

Leguizamo-Medina does not address either the statutory

language or this court’s decisions interpreting it. Her

entire argument with respect to jurisdiction reads:

Notwithstanding section 242(a)(2)(B)(i) of the

[Act], this Court has jurisdiction to review the
4 No. 06-4039

decision because it involves findings of fact and

questions of law regarding good moral character,

and not discretionary issues. Morales-Morales v.

Ashcroft, 384 F.3d 418, 422 (7th Cir. 2004).

Morales-Morales dealt with the statute as it was in

2004, before the Real ID Act of 2005, 119 Stat. 231, 305

(May 11, 2005), substantially amended §242 (8 U.S.C.

§1252). The panel in Morales-Morales expressed concern

that, without some opportunity for judicial review of legal

questions, the Attorney General could defy both the

statute and the Constitution, and it treated pure questions

of law as implied exceptions to the version of §242(a)(2)(B)

that preceded the Real ID Act. The 2005 amendments

made subsection (a)(2)(B) more comprehensive than it

was in 2004 but added subsection (D), which directly

addresses the concerns stated in Morales-Morales. We

must apply the statute now in force, rather than the pre2005 version, and the existing statute blocks review of

arguments such as those that Leguizamo-Medina presents.

(For what it is worth, Morales-Morales itself noted that

the court would not review arguments that immigration

judges erred in making findings of fact or managing

hearings.)

For reasons that the brief does not disclose, the Attorney General concedes that the argument about the

denial of a continuance is within our jurisdiction notwithstanding §242(a)(2)(B)(i). The brief actually says that

“Respondent declines to assert that the Court lacks

jurisdiction over this issue”, as if subject-matter jurisdiction were something that litigants may waive or forfeit

when they think that it would be easier to decide the

merits. That’s not right. See Steel Co. v. Citizens for Better

Environment, 523 U.S. 83 (1998). Subject-matter jurisdiction always comes ahead of the merits.

Perhaps the agency’s lawyer has confused

§242(a)(2)(B)(i) with §242(a)(2)(B)(ii), which says (again
No. 06-4039 5

subject to the proviso in subsection (D)) that there is no

judicial review of

any other decision or action of the Attorney General or the Secretary of Homeland Security the

authority for which is specified under this

subchapter to be in the discretion of the Attorney

General or the Secretary of Homeland Security,

other than the granting of relief under section

1158(a) of this title.

The agency’s lawyer refers to opinions such as Ahmed v.

Gonzales, 465 F.3d 806 (7th Cir. 2006), and Subhan v.

Ashcroft, 383 F.3d 591 (7th Cir. 2004), which hold that

when the relief the alien wants is a continuance—for

example, deferral of final decision until the Department of

Labor decides whether to issue a certification that the

alien has skills justifying a long-term stay in this country—an IJ’s decision to enter a removal order without waiting is not the sort of discretion of which

§242(a)(2)(B)(ii) speaks.

What §242(a)(2)(B)(ii) means is a difficult question that

another panel has under advisement following the submission of supplemental briefs that were invited so that

the court may clear up any confusion and inconsistency

in our decisions. See Ali v. Gonzales, No. 06-3240 (argued

Feb. 22, 2007). The agency’s current understanding is

that §242(a)(2)(B)(ii) does not bar review of continuances

because the discretion to grant or deny such motions is

not a product of “this subchapter”, a phrase that the

agency now submits limits §242(a)(2)(B)(ii) to statutory

grants of discretion. That subject need not detain us,

however, because it is §242(a)(2)(B)(i) rather than

§242(a)(2)(B)(ii) that applies to Leguizamo-Medina’s

situation. The effect of §242(a)(2)(B)(i) does not depend

on whether discretion has been delegated by a particular

statute (or whether any discretion at all has been exer-
6 No. 06-4039

cised); it forecloses all review of decisions denying requests for cancellation of removal.

When an alien seeks not deferral of final decision, but

just an opportunity to present more evidence, it is difficult to see how one could “review the denial of a continuance” at all. The thing being reviewed (when review is

authorized) is the agency’s final decision (here, a decision

not to cancel the petitioner’s removal). In an appeal from

a district court, we don’t “affirm the order sustaining

the hearsay objection” or anything similar; we review the

final decision (see 28 U.S.C. §1291) to determine whether

the steps leading to that decision were erroneous (and,

if erroneous, whether they were harmless). Just so here—

with the difference that §242(a)(2)(B)(i) puts the decision

beyond review, and thus insulates the choices leading to

that decision. When a decision is unreviewable, any

opinion one way or the other on the propriety of the

steps that led to that decision would be an advisory

opinion. See, e.g., Powerex Corp. v. Reliant Energy Services, Inc., No. 05-85 (S. Ct. June 18, 2007), slip op. 11;

Daniels v. Liberty Mutual Insurance Co., No. 06-3508 (7th

Cir. Apr. 19, 2007), slip op. 5-6.

That would be clear enough if the agency’s decision were

unreviewable because Leguizamo-Medina had neglected

to file a timely petition for review. She could not ask us

to “review the denial of a continuance” anyway, even

though our views about the continuance could not affect

the agency’s order. What is true about a decision that

cannot be reviewed because the petition is untimely is

equally true about a decision that cannot be reviewed

because of a statute such as §242(a)(2)(B)(i).

Subsection (D) could in principle allow review of a final

order to determine whether procedural errors along the

way to decision violated the alien’s constitutional or statutory rights. After all, it preserves review of “questions of
No. 06-4039 7

law,” and one applicable law is 8 U.S.C. §1229a(b)(4)(B),

which entitles an alien to a “reasonable opportunity . . .

to present evidence” at the hearing. An immigration judge

who thought that continuances are never appropriate, or

who scheduled the hearing knowing that the date would

make vital evidence unavailable, would deny the alien a

reasonable opportunity to present evidence. LeguizamoMedina does not contend, however, that the immigration judge managed the hearing in a way that deprived

her of the required “reasonable opportunity.” The date

was set well in advance, and the immigration court

regularly grants motions to reset the date for the convenience of counsel and witnesses. It requires, however, that

such motions be presented 14 days in advance—a prudent

step that allows the court to use all available time efficiently rather than be left with nothing to do if a hearing

is cancelled at the last minute. Other aliens are waiting

in a long queue for hearings, and adhering to schedules

enables the IJ to use available time to maximum effect.

When a hearing is postponed at the last minute, the slot

cannot be filled with another alien’s case.

Leguizamo-Medina does not contend that the 14-daynotice rule violates §1229a(b)(4)(B). She simply ignores

the rule, in this court as in the immigration court. Her

motion was made on the day of the hearing, and she has

never explained why it could not have been made earlier.

Faced with this last-minute motion, which may have

been a stalling tactic, the IJ did the sensible thing and

asked for an offer of proof. Counsel related what the

missing witness would have said; the IJ then held that this

evidence, if received in person and fully credited, would

not affect the outcome. There’s nothing remotely unreasonable about that procedure.

The petition for review is dismissed for want of jurisdiction.
8 No. 06-4039

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-27-07