                            NOT FOR PUBLICATION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

                                          2
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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