                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        FEB 6 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

ELEUTERIO REYES VASQUEZ,                         No.   17-70129

                Petitioner,                      Agency No. A096-061-860

  v.
                                                 MEMORANDUM*
WILLIAM P. BARR, Attorney General,

                Respondent.

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                              Submitted January 22, 2020**
                                 Pasadena, California

Before: RAWLINSON, LEE, and BRESS, Circuit Judges.

       Eleuterio Reyes Vasquez petitions for review of the Board of Immigration

Appeals’ reversal of the Immigration Judge’s decision to grant his application for

cancellation of removal. We agree that the Immigration Judge erred, so we deny

the petition.



       *
             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).
      First, the government argues that we lack jurisdiction because the BIA

remanded the case for further consideration. But because the BIA remanded only

to address issues regarding voluntary departure, this court has jurisdiction. See

Rizo v. Lynch, 810 F.3d 688, 691 (9th Cir. 2016).

      Second, issue preclusion does not apply to the prior Immigration Judge’s

statement that Reyes’s domestic violence conviction did not disqualify him from

relief. The previous oral decision concluded that Reyes failed to show the requisite

hardship for cancellation of removal. The prior Immigration Judge’s short, one-

sentence comment in the oral decision that Reyes’s prior conviction did not

disqualify him from relief had no relation to the ultimate conclusion about lack of

demonstrated hardship. Thus, even assuming that the prior proceeding is a final

judgment for preclusion purposes despite being reopened, the issue of whether the

prior conviction for domestic violence disqualified Reyes from relief was not

necessarily decided because “its determination was merely incidental to the

judgment in the prior action.” Resolution Tr. Corp. v. Keating, 186 F.3d 1110,

1115 (9th Cir. 1999). Therefore, issue preclusion did not apply.

      PETITION FOR REVIEW DENIED.




                                          2
