                                                                           FILED
                             NOT FOR PUBLICATION                             JUL 23 2012

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




                             FOR THE NINTH CIRCUIT



SERGEY ANIKIN; IRINA ANIKINA;                    No. 08-70375
DMITRY ANIKIN,
                                                 Agency Nos. A077-374-936
              Petitioners,                                   A077-374-937
                                                             A077-374-938
  v.

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

              Respondent.



                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                     Argued and Submitted November 17, 2011
                             San Francisco, California

Before: THOMAS, GOULD, and BYBEE, Circuit Judges.

       Petitioners seek review of agency decisions denying their applications for

adjustment of status, asylum, withholding of removal, and relief under the

Convention Against Torture. We deny the petition in part and grant it in part.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Because the parties are familiar with the history of this case, we need not recount it

here.

        1.    The Board of Immigration Appeals (BIA) permissibly concluded that

Irina Anikina was statutorily ineligible for adjustment of status, where her lawful

student status had expired four years before she applied for adjustment of status.

Congress has prohibited adjustment of status for any person “who is in unlawful

immigration status on the date of filing the application for adjustment of status or

who has failed (other than through no fault of his own or for technical reasons) to

maintain continuously a lawful status since entry into the United States.” 8 U.S.C.

§ 1255(c). Simply put, one must have status in order to adjust it.

        2.    Remand is required to determine if Sergey Anikin is eligible for

asylum, withholding of removal, or relief under the Convention Against Torture.

Here, the Immigration Judge (IJ) twice concluded that Anikin had established past

persecution; however, it is not clear from the agency’s orders that the IJ actually

afforded Anikin the benefit of this presumption. See Afriyie v. Holder, 613 F.3d

924, 935 (9th Cir. 2010) (remanding where unclear if BIA had incorrectly assigned

burden of proof to petitioner).

        Moreover, the IJ conducted no individualized determination of how changed

country conditions in Russia impacted Anikin’s specific circumstances. The IJ’s


                                          -2-
generalized analysis falls short of proving that the government overcame its

burden of presumption to demonstrate Anikin could reasonably return to Udmurtia

without a fear of future persecution. See Borja v. INS, 175 F.3d 732, 737–38 (9th

Cir. 1999) (en banc).

      On remand, the agency’s analysis should reflect the proper consideration of

the presumption of a well-founded fear of future persecution afforded by a finding

of past persecution. See 8 C.F.R. § 1208.13(b)(1); see also Deloso v. Ashcroft, 393

F.3d 858, 863-864 (9th Cir. 2005).

      Given our decision, we need not, and do not, decide any other issues urged

by the parties.

      Each party should bear their own costs.

      PETITION GRANTED IN PART; DENIED IN PART; REMANDED.




                                        -3-
