Baldaeva v. Holder , 357 F. App'x 795 ( 2009 )


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  •                                                                            FILED
    NOV 23 2009
    NOT FOR PUBLICATION
    MOLLY C. DWYER, CLERK
    U .S. C O U R T OF APPE ALS
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    ELENA V. BALDAEVA; et al.,                       No. 07-75099
    Petitioners,                        Agency Nos. A098-522-653
    A098-522-654
    v.
    ERIC H. HOLDER Jr., Attorney General,            MEMORANDUM *
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Submitted November 4, 2009 **
    Seattle, Washington
    Before: FERNANDEZ, KLEINFELD and CLIFTON, Circuit Judges.
    Elena V. Baldaeva, a native of the Buryat Republic and a citizen of the
    Russian Federation, petitions for review of the BIA’s order dismissing her appeal
    from an IJ’s decision denying her application for asylum. Baldaeva’s co-petitioner
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The panel unanimously finds this case suitable for decision without
    oral argument. See Fed. R. App. P. 34(a)(2).
    is her Romanian husband, Raul Petrisor, whose claim is derivative of his wife’s
    application. We deny the petition.
    Substantial evidence supports the BIA’s finding that Baldaeva suffered no
    past persecution. The harassment, discrimination, and rudeness that she
    experienced, even considered cumulatively, did not rise to the level of persecution.
    See Kumar v. Gonzales, 
    439 F.3d 520
    , 524 (9th Cir. 2006). Because she suffered
    no past persecution, Baldaeva bears the burden of establishing that she has a well-
    founded fear of persecution and cannot reasonably relocate within Russia. 8
    C.F.R. § 1208.13(b)(3)(i).
    Substantial evidence also supports the BIA’s determination that Baldaeva
    does not face a well-founded fear of future persecution. Her evidence of racially
    motivated violence was limited to certain metropolitan areas, and Baldaeva did not
    meet her burden of establishing the unreasonableness of relocating to another part
    of Russia.
    Assuming without deciding that the birth of Baldaeva’s child is material to
    her asylum application, the BIA did not abuse its discretion in denying her motion
    to reopen. To merit granting a motion to reopen, the movant must make a prima
    facie showing of eligibility for asylum. Ordonez v. INS, 
    345 F.3d 777
    , 785 (9th
    Cir. 2003). Even if all the facts that Baldaeva has pleaded are true, the birth of her
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    child does not establish prima facie eligibility for asylum because it does not
    negate the possibility of relocation within Russia. The evidence Baldaeva
    presented of the persecution faced by mixed race persons was limited to her native
    Buryatia.
    To prevail on her due process claim, Baldaeva must show “error and
    substantial prejudice.” Lata v. INS, 
    204 F.3d 1241
    , 1246 (9th Cir. 2000). She has
    shown neither. The IJ did not err by limiting the testimony of Baldaeva’s lay
    witness to facts about which the witness had personal experience. An IJ acts within
    his statutory powers when he limits proffered testimony to relevant evidence. See 8
    C.F.R. § 1240.1(c). The witness was allowed to provide relevant evidence about
    his own persecution and was only prevented from speculating about how Buryatian
    people would treat Baldaeva and her family and whether they would be safe
    elsewhere in Russia. The exclusion of this evidence did not prejudice Baldaeva
    because her witness, who lived in Buryatia and was of African and Buryatian
    ancestry rather than Romanian and Buryatian ancestry, was not established to be
    qualified to testify to the likelihood that Baldaeva and her family would be
    persecuted throughout Russia. The record reveals that Baldaeva received what due
    process requires: “a full and fair hearing of [her] claims and a reasonable
    3
    opportunity to present evidence on [her] behalf.” Robleto-Pastora v. Holder, 
    567 F.3d 437
    , 450 (9th Cir. 2009).
    PETITION DENIED.
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