                            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 con-
tradicted 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 mar-
riage 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 cancella-
tion of removal. See 8 U.S.C. §1229b(b)(1)(B). (The defini-
tion 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, how-
ever, 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 constitu-
    tional 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 argu-
ments: first, that the IJ should have believed her testi-
mony 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 pre-
2005 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 Attor-
ney General concedes that the argument about the
denial of a continuance is within our jurisdiction notwith-
standing §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 jurisdic-
tion 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 juris-
diction 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 Gen-
   eral 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 coun-
try—an IJ’s decision to enter a removal order with-
out 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 sub-
mission 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 re-
quests for cancellation of removal.
   When an alien seeks not deferral of final decision, but
just an opportunity to present more evidence, it is diffi-
cult to see how one could “review the denial of a continu-
ance” 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 Ser-
vices, 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 statu-
tory 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. Leguizamo-
Medina does not contend, however, that the immigra-
tion 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 conve-
nience 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 effi-
ciently 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-day-
notice 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 unrea-
sonable about that procedure.
  The petition for review is dismissed for want of juris-
diction.
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
