Daria Korzhina v. Jefferson Sessions , 699 F. App'x 675 ( 2017 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
OCT 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DARIA NIKOLAYEVNA KORZHINA, Nos. 11-71906
12-70201
Petitioner,
Agency No. A099-912-023
v.
JEFFERSON B. SESSIONS III, Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted September 11, 2017
San Francisco, California
Before: SCHROEDER and TALLMAN, Circuit Judges, and WHALEY,** District
Judge.
Daria Nikoayevna Korzhina, a native and citizen of Russia, petitions for
review of the Board of Immigration Appeals’ (“BIA”) denial of asylum,
withholding of removal, and protection under the Convention Against Torture.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Robert H. Whaley, United States District Judge for the
Eastern District of Washington, sitting by designation.
On appeal, she contends the BIA’s denial of her petition was not supported
by substantial evidence and that the record compels the conclusion that the harm
she suffered rose to the level of persecution. See INS v. Elias-Zacarias, 502 U.S.
478, 483 (1992). Korzhina also argues the BIA should have granted her motion to
reopen to present evidence showing country conditions have changed, and seeks a
remand for that purpose.
The government does not defend the agency decision on the merits. It
contends the BIA exceeded the scope of its review by engaging in improper fact
finding under Ridore v. Holder, 696 F.3d 907 (9th Cir. 2012). The government
asks us to remand for the BIA to address the merits of the Immigration Judge’s
decision and motion to reopen. In her reply, Petitioner contends that because the
government waived any arguments going to the merits of her position, her petition
must be granted. See Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009)
(arguments not raised in an answering brief are waived).
We are faced with the unusual situation in which the parties effectively agree
the BIA erred in how it handled Petitioner’s application. Granting the petition to
reopen would permit both parties to offer evidence to help resolve the application
in light of current country conditions. Under such circumstances, the motion to
reopen should be granted. Ms. Korzhina’s petition for review of the BIA’s denial
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of her motion to reopen is GRANTED, and we remand on an open record to allow
the BIA to resolve the application in light of current country conditions.
Petition GRANTED and REMANDED.
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