Eleuterio Reyes Vasquez v. William Barr

NOT FOR PUBLICATION FILED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.
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