United States Court of Appeals For the First Circuit
No. 24-1782
WUENDY ZAPET-ALVARADO; G.J.A.Z.,
Petitioners,
v.
PAMELA J. BONDI, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before
Montecalvo, Aframe, Circuit Judges, and Vélez-Rivé,* U.S. District Judge.
Kristian Robson Meyer, with whom Kevin P. MacMurray and MacMurray & Associates were on brief, for petitioners.
Jesse D. Lorenz, Trial Attorney, Office of Immigration Litigation, with whom Brett A. Shumate, Acting Assistant Attorney General, Civil Division, and Brett F. Kinney, Senior Litigation Counsel, were on brief, for respondent.
September 22, 2025
* Of the District of Puerto Rico, sitting by designation. AFRAME, Circuit Judge. Wuendy Celeny Zapet-Alvarado
("Zapet"), a citizen of Guatemala, petitions for review of the
administrative denial of her applications for asylum, withholding
of removal under the Immigration and Nationality Act ("INA"), and
protection under the Convention Against Torture ("CAT"). Zapet
argues that the Board of Immigration Appeals ("BIA") erred in
affirming the immigration judge's (the "IJ," and collectively with
the BIA "the agency") determinations that her asylum application
was untimely and that she did not qualify for withholding of
removal or CAT protection. We lack jurisdiction to review the
discretionary denial of Zapet's asylum application and determine
that substantial evidence supports the denial of her withholding
of removal and CAT claims.
I.
A. Zapet and her minor son arrived in the United States on
or about August 28, 2021, without visas or official immigration
status. On November 18, 2022, the Department of Homeland Security
served Zapet a notice to appear and initiated removal proceedings.
Nearly a year later, on October 19, 2023, Zapet applied for asylum,
withholding of removal, and CAT protection, with her son as a
2 derivative applicant.1 A few months later, the IJ convened a
removal hearing to consider Zapet's applications for relief.
The IJ made the following findings. Zapet is a native
and citizen of Guatemala. Her home village of Loma Linda is in an
area subject to land conflicts between the Tajumulco village and
the Ixtahuacan community. For roughly four years before Zapet
arrived in the United States, unidentified hooded men approached
Zapet and her husband to obtain their support in the ongoing
conflict.2 The men did not specify the nature of the support they
sought. However, the men threatened to kidnap Zapet's children if
support was not forthcoming. The threats continued until 2021,
when Zapet left for the United States. Zapet never called the
police or otherwise informed the authorities of the men's threats.
No kidnapping occurred and neither she, her husband, nor her
children suffered physical harm while in Guatemala.
1 Zapet's son also applied separately for the same relief on the same grounds asserted by Zapet. Because Zapet was the lead respondent before the agency and the only one who testified, we will focus our discussion on her. See Chun Méndez v. Garland, 96 F.4th 58, 61 n.1 (1st Cir. 2024). 2 At oral argument in this Court, Zapet's counsel disputed the period over which the threat occurred. Arguments first raised at oral argument are waived. See, e.g., Capen v. Campbell, 134 F.4th 660, 675 (1st Cir. 2025).
3 B.
Prior to the removal hearing, Zapet conceded
removability. The IJ accepted that stipulation and addressed
Zapet's asylum, withholding of removal, and CAT claims.
The IJ denied Zapet's asylum application as untimely.
While Zapet did not dispute that she filed her asylum claim after
the one-year deadline following her arrival in the United States,
8 U.S.C. § 1158(a)(2)(B), she claimed that she should nonetheless
receive relief from that deadline because of extraordinary
circumstances, id. § 1158(a)(2)(D). Zapet specifically cited her
unawareness of U.S. immigration laws as the extraordinary
circumstance. The IJ rejected this argument, concluding that a
"lack of knowledge of [i]mmigration laws is not considered an
extraordinary circumstance."
The IJ turned next to whether Zapet had established past
persecution or a well—founded fear of future persecution as needed
to qualify for asylum. The IJ concluded that the hooded men's
threats to kidnap Zapet's children did not constitute past
persecution because the threats were not serious enough to meet
the applicable standard. In support of this conclusion, the IJ
observed that the threats were never fulfilled despite occurring
over a four-year period, that "the threats were not menacing in
nature," and that the threats did not cause Zapet or her family to
suffer physical harm.
4 The IJ also rejected Zapet's claims that she had a
well-founded fear of future persecution. Zapet had argued that
she feared future threats if she were to return to Guatemala based
on her indigenous race, political opinion, familial relationships,
and landowner status. The IJ noted that Zapet had not: (1) shown
a connection between the identified protected grounds and the
previous threats; (2) demonstrated how the conflict between the
Tajumulco village and the Ixtahuacan community had affected or
harmed her; or (3) established why harm should be expected on her
return to Guatemala, given that the threats about which she
complains went unfulfilled for four years. The IJ also stated
that, because Zapet had remained safely in Guatemala for four years
while the threats persisted, it was reasonable to believe that she
could relocate safely within the country. For these reasons, the
IJ concluded that Zapet's asylum claim failed even if timely. The
IJ likewise denied her withholding of removal claim, finding that
Zapet's failure to establish eligibility for asylum made her
necessarily unable to satisfy the "highe[r] burden" required to
prove withholding of removal.3
3 While qualifying for asylum requires that "an applicant must establish that she suffered in the past or has a well-founded fear of suffering in the future[,] . . . [t]o obtain withholding of removal, the burden is even higher: The applicant 'must establish a clear probability that, if returned to [her] homeland, [s]he will be persecuted on account of a statutorily protected ground.'" Varela-Chavarria v. Garland, 86 F.4th 443, 449 (1st
5 Finally, the IJ rejected Zapet's application for CAT
protection because Zapet failed to demonstrate that she would more
likely than not be tortured upon her return to Guatemala or that
the Guatemalan government would consent or acquiesce in any
torture. As support for this determination, the IJ again relied
on Zapet's failure to demonstrate that she suffered physical harm
in Guatemala and noted that the threats Zapet received did not
involve imminent death or harm to her.
Following the IJ's decision, Zapet appealed each adverse
ruling to the BIA. For her untimely asylum claim, Zapet asserted
additional reasons to justify extraordinary circumstances
warranting relief from the one-year deadline, including lack of
education, lack of English skills, unfamiliarity with U.S.
culture, and fear of drawing attention to herself as being
unlawfully present. The BIA rejected these considerations as
constituting extraordinary circumstances "because they are
disabilities facing many, if not most, asylum applicants."
The BIA next addressed Zapet's withholding of removal
claim. The BIA affirmed the IJ's finding that Zapet had not
suffered past persecution. It held that, because the alleged
threats "were not accompanied by displays of force or violence,"
Cir. 2023) (third and fourth alterations in original) (quoting Sánchez-Vásquez v. Garland, 994 F.3d 40, 46 (1st Cir. 2021)).
6 the threats "were not specific or credible enough under the
circumstances to rise to the extreme level of 'persecution[.]'"
The BIA also rejected Zapet's argument that future
persecution would "more likely than not" occur. Zapet argued on
appeal that the prior threats she experienced, when coupled with
country conditions evidence showing the general prevalence of
violent crime and conflict in Guatemala and that indigenous persons
are particularly susceptible to such violence, sufficed to show
requisite fear of future persecution. The BIA disagreed. It
concluded that the general country conditions evidence did not tip
the scale because it did not establish that "a person in [Zapet's]
particular and individualized circumstances will 'more likely than
not' suffer persecution in Guatemala."
The BIA likewise affirmed the denial of the CAT claim.
It explained that torture requires "severe pain or suffering" to
be "intentionally inflicted on a person . . . by, or at the
instigation of, or with the consent or acquiescence of, a public
official or other person acting in an official capacity." The BIA
found that neither general evidence of gender-based and
gang-perpetuated violence nor law enforcement's lack of full
control over violence in the region sufficed to displace the IJ's
"predictive finding that [Zapet] does not personally face an
individualized risk of torture in Guatemala . . . much less with
official complicity or acquiescence."
7 Zapet timely petitioned this Court for review.
II.
Zapet argues that the agency erroneously denied her
requests for asylum, withholding of removal, and CAT protection.
We consider each claim in turn.
A.
For her asylum claim, Zapet contends that the BIA
incorrectly affirmed the IJ's determination that she failed to
present extraordinary circumstances sufficient to warrant
consideration of her untimely application. The government
counters that we lack jurisdiction to review the agency's
determination. We agree with the government.4
Under the INA, asylum applicants must demonstrate by
clear and convincing evidence that their application was filed
within one year from the date on which the applicant arrived in
the United States. See 8 U.S.C. § 1158(a)(2)(B). However, the
agency may still consider an untimely application if the applicant
"demonstrates to the satisfaction of the Attorney General either
the existence of changed circumstances which materially affect the
4 Zapet also argues that the BIA erred because it did not separately consider whether there was a basis to excuse her child's derivative application for relief. That argument was not presented to the BIA and therefore cannot be considered here. See Sunoto v. Gonzales, 504 F.3d 56, 59 (1st Cir. 2007) ("A petitioner who fails to present a claim to the BIA has failed to exhaust [their] administrative remedies on that issue, and we consequently lack jurisdiction to review the claim.").
8 applicant's eligibility for asylum or extraordinary circumstances
relating to the delay in filing an application" within the one-year
period. Id. § 1158(a)(2)(D).
There are two INA provisions that bear on our
jurisdiction to review the BIA's determination that Zapet failed
to show extraordinary circumstances under section 1158(a)(2)(D).
See 8 U.S.C. § 1158(a)(2)(D). The first is an adjacent provision
that provides "[n]o court shall have jurisdiction to review any
determination of the Attorney General under [the] paragraph"
containing the extraordinary-circumstances exception to the
one-year bar. See id. § 1158(a)(3). The second is a catchall
provision that broadly preserves federal appeals court
jurisdiction under the INA for "constitutional claims or questions
of law raised upon a petition for review." See id.
§ 1252(a)(2)(D).
We previously considered the interplay between these two
INA provisions in Chahid Hayek v. Gonzales. See 445 F.3d 501,
506-07 (1st Cir. 2006). There, we held that, under
section 1158(a)(3), "we have no jurisdiction to review the BIA's
decision that [petitioner's] application for asylum was untimely
and that the untimeliness was not excused." Id. at 506. We
determined that section 1252(a)(2)(D) does not affect this rule
because "[u]nder the terms of this limited jurisdictional grant,
discretionary or factual determinations continue to fall outside
9 the jurisdiction of the courts of appeals, and BIA findings as to
timeliness and changed circumstances are usually factual
determinations." Id. at 507 (alteration in original) (quoting
Mehilli v. Gonzales, 433 F.3d 86, 93 (1st Cir. 2005)).
Zapet argues, however, that under the United States
Supreme Court's later decision in Guerrero-Lasprilla v. Barr, 589
U.S. 221 (2020), this Court's jurisdiction to review the BIA's
timeliness determination is not so circumscribed. Zapet contends
that there, the Supreme Court established that whether a settled
fact satisfies a legal standard is a question of law that is
reviewable under section 1252(a)(2)(D). Seeking to apply that
holding here, Zapet argues that the BIA's rejection of a late-filed
asylum application for failing to meet the legal standard for
extraordinary circumstances codified under section 1158(a)(2)(B)
constitutes a question of law that we may review under
section 1252(a)(2)(D). We disagree.
In Guerrero-Lasprilla, the petitioner requested that
the BIA equitably toll the filing deadline for reopening a removal
proceeding. See 589 U.S. at 225-26. The BIA declined the request,
concluding that the petitioner had failed to show the required due
diligence to obtain equitable tolling. See id. at 226. The
Supreme Court subsequently rejected the contention that the BIA's
due diligence determination was a question of fact for which there
was no appellate jurisdiction. See id. at 228. The Court
10 explained that a "question[] of law" under section 1252(a)(2)(D)
"includes the application of a legal standard to undisputed or
established facts," i.e., mixed questions of law and fact. Id. at
227. Employing this holding, the Court concluded that application
of settled facts to the due diligence standard was the kind of
mixed question for which there was appellate jurisdiction under
section 1252(a)(2)(D). See id. at 228, 236.
About four years later, the Supreme Court again
considered the scope of our jurisdiction under
section 1252(a)(2)(D) in Wilkinson v. Garland, 601 U.S. 209
(2024). There, the Court considered a similar mixed question
concerning whether a person seeking cancellation of removal had
shown that removal would cause a qualifying spouse, parent, or
child to suffer "exceptional and extremely unusual hardship" under
title 8, section 1229b(b)(1)(D). Id. at 216-17. The Supreme Court
concluded again that this mixed question was reviewable under
section 1252(a)(2)(D) as a question of law. See id. at 217, 222.
Critically, however, the Court distinguished the "exceptional and
extremely unusual hardship" standard in section 1229b(b)(1)(D)
from other INA standards that are applied "to the satisfaction of
the Attorney General." Id. at 224 (citing 8 U.S.C.
§ 1182(h)(1)(B), (i)(1)) (emphasis added). The inclusion of such
additional language, the Court made clear, should be understood to
demonstrate a congressional intent to establish a discretionary
11 judgment not subject to review under section 1252(a)(2)(D). See
id. at 224; see also Rahman v. Bondi, 131 F.4th 399, 407-08 (6th
Cir. 2025) (applying this reasoning in the context of an "extreme
hardship" waiver under 8 U.S.C. § 1182(a)(9)(B)(v), (i)(1)).
Here, we face precisely the kind of situation that
Wilkinson identified as a discretionary determination not subject
to judicial review. See 601 U.S. at 224. Zapet challenges the
BIA's denial of her asylum application, arguing that the agency
should have excused her failure to timely file under
section 1158(a)(2)(D) given that her "cumulative circumstances
. . . are clearly extraordinary and not intentionally created."5
As discussed, section 1158(a)(2)(D) permits an untimely
application for asylum to be considered if the petitioner
demonstrates "to the satisfaction of the Attorney General . . .
5 We note that Zapet's challenge differs from that considered in Escobar v. Garland, 122 F.4th 465, 477 (1st Cir. 2024). There, this Court found jurisdiction to review the agency's denial of asylum relief on the grounds that the application was untimely and did not qualify under the change-of-circumstances exception under section 1158(a)(2)(D). See Escobar, 122 F.4th at 476–77. The Court considered in Escobar whether the text of section 1158(a)(2)(D) permits the agency to impose an additional requirement to qualify for the changed-circumstance exception -- specifically, that a petitioner must prove ineligibility for relief prior to the changed circumstance. See id. The Court found it had jurisdiction to consider this question of law. See id. Escobar therefore was not assessing the agency's exercise of its discretion (whether there was in fact a changed circumstance) but rather the correctness of a predicate legal determination to the exercise of its discretion (whether the agency was applying the correct changed-circumstance standard). See id.
12 extraordinary circumstances relating to the delay in filing an
application within the period." 8 U.S.C. § 1158(a)(2)(D).
Congress's specific inclusion in section 1158(a)(2)(D) of the
words "to the satisfaction of the Attorney General" demonstrates
that the extraordinary-circumstances determination is an
unreviewable discretionary judgment. See Wilkinson, 601 U.S. at
224. We therefore conclude, consistent with Wilkinson, that we
lack jurisdiction to review the BIA's decision that Zapet failed
to establish extraordinary circumstances under
section 1158(a)(2)(D). In so holding, we join other courts of
appeals that, after Wilkinson, have reached the same conclusion.
See Real v. Att'y Gen., 147 F.4th 361, 366-68 (3d Cir. 2025); A.P.A.
v. Att'y Gen., 104 F.4th 230, 240-41 (11th Cir. 2024).6
B.
We next address the BIA's denial of Zapet's application
for withholding of removal. Zapet contends that the evidence she
presented compelled the BIA to find that she suffered past
6 Zapet also cites Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), to argue, as we understand it, that the interpretation of the "extraordinary-circumstances standard" under section 1158(a)(2)(D) is "exclusively a judicial function." Loper Bright is irrelevant to this inquiry. There, the Supreme Court held that courts should not give deference to an agency's interpretation of a statute. See 603 U.S. at 412. Here, we are not reviewing the agency's interpretation of a statute, but rather whether we have jurisdiction to review an agency's discretionary application of a statutory standard.
13 persecution and would more likely than not suffer future
persecution.
To qualify for withholding of removal, Zapet must show
that there is a clear probability that her life or freedom would
be threatened in Guatemala because of her "race, religion,
nationality, membership in a particular social group, or political
opinion." 8 U.S.C. § 1231(b)(3)(A); see also López-Pérez v.
Garland, 26 F.4th 104, 111 (1st Cir. 2022). Zapet bears the burden
to establish her eligibility for relief by demonstrating that, if
she returns to Guatemala, it is more likely than not that she will
be persecuted on one of the five protected grounds. See 8 C.F.R.
§ 1208.16(b); see also Hernández-Lima v. Lynch, 836 F.3d 109, 113
(1st Cir. 2016). Alternatively, Zapet can show that she already
suffered persecution in Guatemala, which would establish a
rebuttable presumption of future persecution. See Hernández-Lima,
836 F.3d at 113 (citing 8 C.F.R. § 1208.16(b)(1)). These "two
methods" for seeking withholding of removal are "commonly referred
to as past and future persecution." Id. (quoting Sompotan v.
Mukasey, 533 F.3d 63, 68 (1st Cir. 2008)). Importantly, each
requires proof of harm sufficient to amount to persecution and a
nexus between the persecution and one of the five statutory
grounds. See id.
Before the agency, Zapet presented evidence of both past
and future persecution. We begin with the former. An applicant
14 "bears a heavy burden and faces a daunting task in establishing
subjection to past persecution." Martínez-Pérez v. Sessions, 897
F.3d 33, 39 (1st Cir. 2018) (internal quotation marks omitted)
(quoting Vasili v. Holder, 732 F.3d 83, 89 (1st Cir. 2013)).
Persecution exists where "the discriminatory experiences . . .
reached a fairly high threshold of seriousness." Id. (quoting
Alibeaj v. Gonzales, 469 F.3d 188, 191 (1st Cir. 2006)). It
requires "more than mere discomfiture, unpleasantness, harassment,
or unfair treatment." Id. at 40 (quoting Vasili, 732 F.3d at 90).
A past persecution claim may be based on threats. See
Lobo v. Holder, 684 F.3d 11, 18 (1st Cir. 2012). To constitute
persecution, however, the threats must be "so menacing as to cause
significant actual suffering or harm." Id. (quoting Vilela v.
Holder, 620 F.3d 25, 29 (1st Cir.2010)). "[V]ague or hollow
threats, without more, are insufficient to establish persecution."
Cano-Gutiérrez v. Bondi, 146 F.4th 26, 32 (1st Cir. 2025). "'[T]he
addition of physical violence, although not required, makes a
threat more likely to constitute' persecution." Montoya-López v.
Garland, 80 F.4th 71, 80 (1st Cir. 2023) (quoting Javed v. Holder,
715 F.3d 391, 396 (1st Cir. 2013)).
The BIA concluded that Zapet's evidence of threats did
not meet the standard for past persecution because the threats
were not accompanied by violence and her description of them was
"not specific . . . enough" to "rise to the extreme level of
15 'persecution[.]'" We review the BIA's finding that Zapet failed
to show past persecution under the substantial evidence standard.
See Barnica-López v. Garland, 59 F.4th 520, 527 (1st Cir. 2023).
Under that standard, we "only disturb the agency's findings if, in
reviewing the record as a whole, 'any reasonable adjudicator would
be compelled to conclude to the contrary.'" Id. (quoting
Gómez-Medina v. Barr, 975 F.3d 27, 31 (1st Cir. 2020)).
Substantial evidence supports the BIA's determination
that Zapet failed to demonstrate past persecution. Zapet's
testimony regarding the threats at the core of her claim lacked
specificity. The record indicates that she did not provide
particular details about the threats that she experienced. For
example, she was unable to describe what the hooded men wanted her
to do and could not recall the timeline of events, including the
number of times that she had been threatened. Nor does she dispute
that the alleged threats went unfulfilled. Zapet acknowledged
that there were no actual kidnapping attempts on her children and
admitted that no one in her family suffered physical harm. She
also did not describe any non-physical harm or suffering that she
endured because of the threats.
"Presented with evidence that threats of physical harm
were never fulfilled . . . and a total dearth of evidence that
[the threats] caused any non-physical harm or suffering . . . the
BIA had a substantial basis for concluding that [Zapet] failed to
16 meet [her] burden of proving that the threats [she] received were
sufficiently menacing." Hernández-Lima, 836 F.3d at 114. There
may be occasions in which threats without proof of physical harm
are sufficiently menacing to constitute persecution. See, e.g.,
Ruiz v. Mukasey, 526 F.3d 31, 37 (1st Cir. 2008) ("[A]n applicant
. . . is not obliged to show the infliction of physical harm in
order to carry her burden of proving past persecution."). But
where, as here, the proof permits the conclusion that the applicant
suffered "hollow threats," the record "do[es] not compel a finding
of past persecution." Hernández-Lima, 836 F.3d at 114 (emphasis
omitted) (quoting Moreno v. Holder, 749 F.3d 40, 44 (1st Cir.
2014)).
We similarly conclude that the BIA's rejection of
Zapet's claim that she would more likely than not be faced with
future persecution was supported by substantial evidence.
Because, as already discussed, the BIA made a supportable
determination that the threats themselves do not constitute
persecution, Zapet's only remaining argument is that the
circumstances in Guatemala are so dangerous that she should not be
required to return. In support of this contention, Zapet submitted
information about country conditions in Guatemala.
Substantial evidence supports the finding that Zapet did
not show any individual circumstances that make it likely that she
will face persecution were she to return to Guatemala. The country
17 conditions reports identify difficult aspects of life in
Guatemala, but the record lacks evidence showing how these
difficulties apply to Zapet. See Bopaka v. Garland, 123 F.4th
552, 562 (1st Cir. 2024) (finding country conditions reports
insufficient for failing to proffer particularized facts relating
to petitioner's claims).
Additionally, the record evidence does not compel a
finding that Zapet would face danger if she relocated within
Guatemala from the area where she previously lived. Cf.
Hernández-Méndez v. Garland, 86 F.4th 482, 489 (1st Cir. 2023)
(declaring in the context of asylum, which contains a more
petitioner-friendly standard than withholding of removal, that
"[a] petitioner does not have a well-founded fear of persecution
if [she] could 'avoid persecution by relocating to another part of
[her] country of nationality . . . if under all the circumstances
it would be reasonable to expect [her] to do so.'" (quoting 8
C.F.R. § 1208.13(b)(2)(ii))). In short, because Zapet's claim
relies mostly on "[g]eneralized country conditions reports that do
not shed light on [her] particular situation," Rodrigues v.
Garland, 124 F.4th 58, 66 (1st Cir. 2024), we cannot say on this
record that the agency was compelled to find that Zapet would more
likely than not suffer future persecution in Guatemala. For these
reasons, we leave undisturbed the BIA's denial of Zapet's
withholding of removal claim.
18 C.
Finally, we address the BIA's denial of Zapet's
application for CAT relief. For Zapet to succeed on her CAT claim,
she would need to prove that if she returned to Guatemala, it is
more likely than not that she would be tortured by the Guatemalan
government or with the Guatemalan government's consent or
acquiescence. Mayancela v. Bondi, 136 F.4th 1, 6 (1st Cir. 2025).
A finding of torture requires, among other elements, proof that a
person will suffer severe physical pain or mental pain or suffering
from an intentionally inflicted act. Samayoa Cabrera v. Barr, 939
F.3d 379, 382 (1st Cir. 2019). The BIA endorsed the IJ's finding
that Zapet had failed to show that she "personally face[d] an
individualized risk of torture . . . much less with official
complicity or acquiescence."
The BIA's determination again is supported by
substantial evidence. Zapet says that she was threatened with
forced conscription and the risk of her children's kidnapping.
But, as we have already noted, the threats Zapet experienced did
not manifest in actions against her or her children despite her
refusal to comply with her perpetrators demands, and she has shown
no reason to expect more severe treatment were she to return. See
Méndez v. Garland, 67 F.4th 474, 487 (1st Cir. 2023) (concluding
that there was substantial evidence to reject a CAT claim because
the evidence fell short of torture where the record showed that
19 the past persecution consisted of "death threats, intimidation,
and non-life-threatening physical violence"). Moreover, Zapet's
reliance on generalized facts from country conditions reports is
insufficient to establish that she would be subject to torture
with the consent or acquiescence of the government. See
Méndez-Barrera v. Holder, 602 F.3d 21, 28 (1st Cir. 2010)
(upholding the denial of CAT protection where "petitioner failed
to proffer any particularized facts relating to her specific claim
that she would face a likelihood of government-sanctioned
torture").
III.
For the reasons stated, the petition for review is
dismissed in part and denied in part.