Petr Krzyzanek v. ERIC H. HOLDER, Jr., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETR KRZYZANEK,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 10-71792
Agency No. A079-522-227
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 6, 2013
Pasadena, California
Before: KOZINSKI, Chief Judge, WARDLAW and GOULD, Circuit Judges.
Petr Krzyzanek petitions for review of the Board of Immigration Appeals’
(“BIA”) dismissal of his appeal from an Immigration Judge’s (“IJ”) denial of his
application for withholding of removal under the special rule for battered spouses,
8 U.S.C. §1229b(c)(2). We deny the petition for review.
FILED
MAR 22 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The BIA did not base its decision on a lack of corroborating evidence, but
rather credited Krzyzanek’s testimony and concluded that the incidents he
described were not “battery or extreme cruelty.” The record does not compel a
finding that Yoon battered Krzyzanek because substantial evidence supports the
BIA’s conclusion that Yoon was not responsible for the incident in which her
friend hit Krzyzanek, and the record is ambiguous as to whether Yoon attempted to
throw a can at Krzyzanek during an argument. See 8 C.F.R. § 204.2(c)(1)(vi).
Nor does the record compel a finding that Yoon subjected Krzyzanek to
extreme cruelty. The BIA acknowledged that “physical attacks” are not a
prerequisite to a finding of extreme cruelty, and concluded that Yoon’s “verbal
cruelty” and “financial abuse” nonetheless did not rise to the requisite level. Yoon
insulted and cursed at Krzyanek, left home for days at a time, dumped trash on the
floor during an argument, threatened that something bad would happen if
Krzyzanek did not purchase a car from her friend, and ran up large cell phone bills.
Taken together, these incidents do not compel a finding that Yoon’s behavior was
“part of an overall pattern of violence,” 8 C.F.R. § 204.2(c)(1)(vi), or that she
employed “tactics of control . . . intertwined with the threat of harm in order to
maintain [her] dominance through fear.” Hernandez v. Ashcroft, 345 F.3d 824,
840 (9th Cir. 2003) (internal quotation omitted).

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Finally, the BIA did not violate the “lowest common denominator” principle
from Clark v. Martinez, 543 U.S. 371 (2005). In Clark, the Supreme Court used
the language of “the lowest common denominator” to describe the canon of
constitutional avoidance that when choosing between two possible interpretations
of an ambiguous statute, “[i]f one of them would raise a multitude of constitutional
problems, the other should prevail– whether or not those constitutional problems
pertain to the particular litigant before the court.” Id. at 380-81. Here, the BIA’s
interpretation of 8 U.S.C. §1229b(c)(2) does not create “constitutional problems.”
Its reasoning was factually specific, and nothing in the record suggests that its
decision turned on Krzyzanek’s gender.
PETITION FOR REVIEW DENIED.

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