NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALLAN S. YANEZ BARRIO, 

Petitioner, 

 v. 

MATTHEW G. WHITAKER, Acting 

Attorney General, 

Respondent.

No. 16-73368 

Agency No. A094-300-310 

MEMORANDUM*

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).

FILED

JAN 18 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 16-73368 

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 
3 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); MartinezRosas, 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.