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

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NOT FOR PUBLICATION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
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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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