NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 18 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALLAN S. YANEZ BARRIO, No. 16-73368
Petitioner, Agency No. A094-300-310
v.
MEMORANDUM*
MATTHEW G. WHITAKER, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 15, 2019**
Before: TROTT, TALLMAN, and CALLAHAN, Circuit Judges.
Allan S. Yanez Barrio, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) decision denying his applications for
cancellation of removal and special rule cancellation of removal for battered
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
spouses. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo
questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005).
We deny in part and dismiss in part the petition for review.
We lack jurisdiction to review the agency’s denial of cancellation of removal
in the exercise of discretion. Vilchez v. Holder, 682 F.3d 1195, 1200-01 (9th Cir.
2012) (the court lacks jurisdiction to review the denial of an application for
cancellation of removal in the exercise of discretion). Yanez Barrio’s contention
that the BIA engaged in fact-finding outside the scope of the IJ’s findings is not
supported by the record and does not amount to a colorable claim. See 8 C.F.R.
§ 1003.1(d)(3)(iv); Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005)
(“To be colorable in this context . . . the claim must have some possible validity.”
(citation and internal quotation marks omitted)). In light of this dispositive
determination, we do not reach Yanez Barrio’s challenge to the agency’s denial of
cancellation based on lack of exceptional and extremely unusual hardship.
We also do not reach Yanez Barrio’s contention concerning the IJ’s denial
of cancellation of removal for failure to establish good moral character because the
BIA did not rely on that ground. See Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th
Cir. 2004).
Our jurisdiction to review the agency’s denial of special rule cancellation of
removal for battered spouses as a matter of discretion is limited to constitutional
2 16-73368
claims and questions of law, and Yanez Barrio has not shown that the agency erred
in its determination. See Mendez-Castro v. Mukasey, 552 F.3d 975, 978-80 (9th
Cir. 2009) (no jurisdiction to review discretionary denial of cancellation of
removal, where IJ applied the proper legal standards and petitioner’s disagreement
was not with the standards applied, but with IJ’s application thereof); Martinez-
Rosas, 424 F.3d at 930; Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010)
(BIA only required to “announce its decision in terms sufficient to enable” review).
In light of this dispositive determination, the BIA did not err in declining to
reach Yanez Barrio’s contentions related to extreme hardship, and we do not reach
petitioner’s remaining contentions regarding statutory eligibility for special rule
cancellation of removal. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir.
2004).
Yanez Barrio failed to show that the agency violated 8 C.F.R.
§ 1240.21(c)(1) (2015) where the IJ reserved her decision at the removal hearing
on November 18, 2013, because the annual cap had already been met for that fiscal
year, and the IJ waited 18 months to issue her decision. Id. (“When grants are no
longer available in a fiscal year, further decisions to grant or deny such relief shall
be reserved until such time as a grant becomes available under the annual
limitation in a subsequent fiscal year.”).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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