                            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 proceed-
ings. 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 deter-
mined that Wood did not merit a discretionary adjust-
ment 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 determina-
tion. 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 discre-
tionary 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

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 accommo-
date 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 contem-
plated 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 Lithua-
nia, not in the context of her removal proceedings.1 The


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...)
4                                                 No. 06-2550

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 contem-
plated 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.


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 con-
sular 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 re-
questing a waiver from the Attorney General. 22 C.F.R.
§ 40.92(3).
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 re-
quest (as he previously warned he would), citing the prior
14-month continuance based solely on Wood having
misrepresented her status as a derivative asylum bene-
ficiary (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 de-
fenses 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 ap-
plying 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 justifica-
tion for denying the additional continuance, and also
stated a supplemental reason for denying either a con-
tinuance 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 con-
tinue 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 applica-
tion. 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 articu-
lated 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 continu-
ance 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 deter-
mination itself is expressly immunized from our re-
view. 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 determina-
tion 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. Gonza-
les, 421 F.3d 595, 597 (7th Cir. 2005) (addressing judi-
cial deference to the Board’s statutory interpretations).
We conclude the BIA acted within its regulatory au-
thority 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 adminis-
trative 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 re-
views de novo “questions of law, discretion, and judg-
ment 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 in-
stance. 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 immigra-
tion 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 discretion-
ary relief never considered by the IJ).
  The issue of Wood’s entitlement to a status adjust-
ment 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 adjust-
ment 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 fact-
finding, 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 con-
clude the BIA acted within the scope of its appellate
jurisdiction when it denied Wood the discretionary re-
lief 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
