NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 10 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

AYDET LOPEZ PENALOZA; et al., No. 18-71304

Petitioners, Agency Nos. A206-913-725

A206-913-726

v. A206-913-727

ROBERT M. WILKINSON, Acting Attorney General, MEMORANDUM*

Respondent.

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). 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

2 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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