Aydet Lopez Penaloza; v. ROBERT M. WILKINSON, Acting Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AYDET LOPEZ PENALOZA; et al.,
Petitioners,
v.
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
No. 18-71304
Agency Nos. A206-913-725
A206-913-726
A206-913-727
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 8, 2021**
Before: HAWKINS, GRABER, and BYBEE, Circuit Judges.
Lead petitioner Aydet Lopez Penaloza ("Petitioner") and two minor children
timely seek review of the Board of Immigration Appeals’ ("BIA") dismissal of
their appeal of an immigration judge’s ("IJ") denial of asylum, withholding of
removal, and relief under the Convention Against Torture. Reviewing for
* 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
FEB 10 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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substantial evidence the agency’s factual findings, J.R. v. Barr, 975 F.3d 778, 781
(9th Cir. 2020), we deny the petition in part, dismiss the petition in part, grant the
petition in part, and remand for further proceedings.
1. Substantial evidence does not support the BIA’s conclusion that
Petitioner "was able to leave her relationship with [her abusive partner,] Jorge[,]
and thus is not a member of her proposed particular social group defined as
‘Mexican women who are in a domestic partnership who are unable to leave their
partners.’"
The BIA’s analysis rested on a plainly erroneous understanding of the
record. In particular, the BIA stated that, after Petitioner returned to the same town
where Jorge lived, "Jorge would verbally harass [her] on occasion when he saw her
around town, but he did not physically harm her or attempt to force her to return to
a domestic relationship." Substantial evidence does not support the final
contention. Jorge attempted to force Petitioner to return to the relationship by
following her; telling her that either he or someone else would be following her;
and telling her that, as the IJ characterized it, "one day or another, she would end
up being back with him." As Petitioner credibly testified, in the full context of the
abusive relationship, that statement was a threat that, in effect, she had better return
to the relationship. On remand, the BIA may reconsider—with a proper

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understanding of the record—whether Petitioner was able to leave the relationship
successfully.
2. Because the BIA expressly declined to reach the IJ’s alternative holdings,
we lack jurisdiction to consider them. Navas v. INS, 217 F.3d 646, 658 n.16 (9th
Cir. 2000).
3. Substantial evidence supports the BIA’s conclusion that Petitioner is not
entitled to relief under the Convention Against Torture.
The parties shall bear their own costs on appeal.
DENIED in part, DISMISSED in part, GRANTED in part, and
REMANDED for further proceedings.

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