                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 22 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



PETR KRZYZANEK,                                  No. 10-71792

              Petitioner,                        Agency No. A079-522-227

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



                     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.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      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).
      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.
