                              NOT FOR PUBLICATION                        FILED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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