NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 20 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DOLORES MONZON-BARRIOS, No. 15-72295

Petitioner, Agency No. A070-644-118

v.

MEMORANDUM*

MATTHEW G. WHITAKER, Acting Attorney General,

Respondent.

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

Submitted December 6, 2018** Pasadena, California

Before: TASHIMA and WARDLAW, Circuit Judges, and PRATT,*** District Judge.

Dolores Monzon-Barrios, a native and citizen of Guatemala, petitions for

review of the decision by the Board of Immigration Appeals (BIA) denying both

* 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). *** The Honorable Robert W. Pratt, United States District Judge for the Southern District of Iowa, sitting by designation. special rule cancellation of removal under § 203 of the Nicaraguan and Central

American Relief Act of 1997 (NACARA), Pub. L. No. 105-100, 111 Stat. 2193,

2196, amended by Pub. L. 105-139, 111 Stat. 2644, and discretionary cancellation

of removal for exceptional hardship under the Immigration and Nationality Act

(INA), 8 U.S.C. § 1229b(b)(1). We have jurisdiction under 8 U.S.C. § 1252(a)(1).

We review de novo questions of law and mixed questions of law and fact.

Cordoba v. Holder, 726 F.3d 1106, 1113 (9th Cir. 2013). We consider only the

reasons the BIA relied on in affirming the immigration judge (IJ), “and then

examine the reasoning articulated in the IJ’s . . . decision in support of those

reasons.” Lai v. Holder, 773 F.3d 966, 970 (9th Cir. 2014) (quoting Tekle v.

Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008)).

NACARA allows for special rule cancellation of removal when, among

other requirements, a petitioner from a covered country, including Guatemala, can

show that he was not apprehended at the time of his entry into the country after

December 19, 1990. 8 C.F.R. § 1240.61(a)(1). The BIA affirmed denial of relief

on the ground that Monzon-Barrios had not demonstrated that he was not

apprehended at the time of his entry. “The burden of proof is on the applicant to

establish by a preponderance of the evidence that he or she is eligible for . . .

special rule cancellation of removal . . . .” 8 C.F.R. § 1240.64(a). Monzon-Barrios

testified that he was caught by immigration officers in Arizona after returning to

2 the United States in 2001, but he did not specify where, when, or how. That

testimony is equally consistent with both having been stopped at the border and

having been stopped inside the country. Because Monzon-Barrios failed to meet

his burden to show that he is eligible for special rule cancellation, including that he

was not apprehended at the time of his entry into the country, the BIA correctly

dismissed his appeal.

Monzon-Barrios also argues the BIA erred in finding he was ineligible for

cancellation of removal under the INA, which allows for cancellation of removal

that would result in exceptional and unusual hardship to a spouse, parent, or child

who is a U.S. citizen or lawful permanent resident. See 8 U.S.C. § 1229b(b)(1).

While we have jurisdiction to review a hardship determination for legal error, we

lack jurisdiction to review a discretionary hardship determination, so any challenge

to the substance of that decision necessarily fails. Arteaga-De Alvarez v. Holder,

704 F.3d 730, 735 (9th Cir. 2012). Here, the BIA considered future hardships, as

required, and did not commit legal error. See Figueroa v. Mukasey, 543 F.3d 487,

497-98 (9th Cir. 2008).

DISMISSED IN PART; DENIED IN PART.

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